EXHIBIT 10.5
X. XXXXX MEDICAL INC. LEASE AGREEMENT (Contract No._________)
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This LEASE AGREEMENT (the "Lease") is made this 12th day of May 2003 by and
between X. Xxxxx Medical Inc., a Pennsylvania corporation ("X.Xxxxx") whose
address is 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 and Curaflex Health Services,
Inc. ("Customer"). Any reference to "Lease" shall mean this Infusion System
Lease Agreement and any and all Schedules, Supplements and Addenda attached at
any time hereto.
Curaflex Health Services, Inc. c/o Medical Specialties
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(Name of Account) (Customer's shipping address)
0000 Xxxxxxxx Xxxxx 000 000 Xxx Xxxxx Drive
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(Street, State and Zip Code)
Xxxxxx, Xxxxxxxx 00000 00-0000000 Xxxxxxx, Xxxxxxxx 00000
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(Federal ID #)
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1. PRODUCTS. Subject to the terms and conditions of this Lease, X.Xxxxx shall
furnish the following equipment (the "Leased Products") to Customer:
QUANTITY CATALOG/ REORDER # DESCRIPTION PRICE PER UNIT EXTENDED PRICE
-------- ------------------ ----------- -------------- --------------
1000 637-102 VISTA BASIC IV PUMPS $1,502.00 $1,502,000.00
X.Xxxxx will also credit Customer for returning the following products to X.Xxxxx as a trade in:
1000 TRADE INS BAXTER 3030 PUMPS $ (250.00) $ (250,000.00)
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TOTAL EXTENDED PRICE $1,502,000.00
LESS TRADE-IN $ (250,000.00)
NET EXTENDED PRICE $1,252,000.00
LEASE FINANCE CHARGE $ 139,723.20
EXTENDED LIMITED WARRANTY $ 96,000.00
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TOTAL LEASE AMOUNT $1,487,723.20
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Customer shall ship or cause to be shipped all trade-in products to X.Xxxxx
within seventy-five (75) days of its receipt of the Leased Products. If the
trade-in products are not sent to X.Xxxxx as required herein, Customer will
not receive a trade-in credit for the amount of the shortfall, and the
trade-in credit will be reduced appropriately, and this Lease will be
amended to reflect the adjusted Lease Finance Charge, Total Lease Amount,
and Monthly Lease Payments. Customer represents and warrants that it or one
of its affiliates has good and marketable title to the trade-in products
and that such products shall be shipped to X.Xxxxx, free and clear of all
liens and encumbrances.
2. LEASE CHARGE. Customer shall pay X.Xxxxx the Total Lease Amount in equal
monthly installments as follows:
(a) $15,463.59 for months 1 through 12 of the Term;
(b) $35,763.14 for months 13 through 24 of the Term; and
(c) $72,749.93 for months 25 through 36 of the Term
(the "Monthly Lease Payments"). For each month, X.Xxxxx shall deliver to
Customer an invoice reflecting the Monthly Lease Payment due for such month.
Payment terms of each Monthly Lease Payment shall be net thirty (30) days
irrespective of the payment terms set forth on any invoice provided by X.Xxxxx.
Customer shall make all Monthly Lease Payments regardless of whether Customer
receives an invoice from X.Xxxxx. In addition to the Total Lease Amount,
Customer shall pay and be solely liable for any and all applicable sales, use,
privilege, excise, personal property or other taxes imposed or levied in
connection with this Lease or the Leased Products, whether federal, state or
local, and such taxes shall be separately stated in the monthly invoice provided
by X.Xxxxx.
If Customer fails to pay any Monthly Lease Payment when due under this Lease,
then, in addition to paying the Monthly Lease Payment, Customer shall pay
X.Xxxxx a late charge equal to five percent (5%) of the Monthly Lease Payment
that is delinquent until such Monthly Lease Payment is paid (and such late
charge shall be included in the Total Lease Amount due under this Lease).
Customer agrees that the late charge is a reasonable approximation of the
internal administrative costs incurred by X.Xxxxx as a result of Customer's
delinquency in the timely payment of a Monthly Lease Payment. Customer shall be
liable for and shall reimburse X.Xxxxx for its reasonable costs and attorneys'
fees and expenses incurred by X.Xxxxx for collection of overdue amounts or
enforcement of its rights under this Lease.
This Lease is a non-cancelable net lease, and Customer's obligations to pay the
Total Lease Amount and other amounts due hereunder are absolute and
unconditional. Customer shall not be entitled to any abatement, reduction or
offset with respect to its obligations under this Lease. Notwithstanding the
foregoing, if Customer is not in default of any of its obligations under this
Lease, Customer may elect to purchase the Leased Products at any time during the
Term of this Lease at a purchase price determined by X.Xxxxx, upon Customer's
request. Such sale shall be on an "as-is, where-is" basis without any recourse
to or representation or warranty by X.Xxxxx, and the purchase price shall be due
and payable in immediately available funds.
3. TERM. The Term shall be for a period of thirty-six (36) months commencing on
the first day of the month after shipment of the Leased Products from X.Xxxxx to
Customer and ending on the last day of the 35th month thereafter (the "Term"),
unless or until sooner terminated in accordance with the terms hereof.
4. PURCHASE OPTION; RETURN OF LEASED PRODUCTS. By providing at least thirty (30)
days written notice to X.Xxxxx, Customer shall have the continuing option,
exercisable from time to time during the Term of this Lease to purchase all or a
portion of the Leased Products from X.Xxxxx. Upon request by Customer of its
desire to purchase any of the Leased Products prior to expiration of the Term,
X.Xxxxx will provide Customer with (a) a price per unit as of the effective date
of the purchase (plus the remaining balance owed on the Extended Limited
Warranty for such Leased Products being purchased), which must be paid in full,
and (b) an amendment to this Lease, which will set forth the Monthly Lease
Payments for the remaining Term. All outstanding amounts then owed under this
Lease must be paid in full prior to X.Xxxxx'x obligation to sell any of the
Leased Products to Customer. Upon full payment of the purchase price of the
Leased Products purchased by Customer and any and all then outstanding amounts
due under this Lease (including late charges, penalties and interests, if any),
X.Xxxxx
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shall deliver to Customer a xxxx of sale for the Leased Products purchased by
Customer, which shall indicate that such purchase by Customer is on an "as is,"
"where is" basis and without any recourse to or representation or warranty by
X.Xxxxx (except for the Product Warranty, as defined in paragraph 6 of this
Lease). Customer shall be solely liable for any sales, use or similar taxes
imposed in connection with the purchase of the Leased Products under this Lease.
If, upon expiration of the Term, Customer has paid all amounts due under this
Lease (including late charges, penalties and interests, if any) Customer shall
be deemed to have elected to purchase all of the Leased Products, at a purchase
price of $1.00 per unit, which have not been purchased from X.Xxxxx as of the
expiration of the Term, unless within thirty (30) days prior to the expiration
of the Term, Customer has advised X.Xxxxx that it does not intend to purchase
some or all of the remaining Leased Products hereunder.
If Customer does not purchase the Leased Products at the expiration of the Term
or any extension of this Lease, or if X.Xxxxx terminates this Lease under
Section 11, then, within ten (10) days after termination, Customer, at its sole
cost and expense, shall return the Leased Products to X.Xxxxx in good working
condition (normal wear and tear excepted) by delivering the Leased Products,
adequately packaged, addressed, and insured against loss in transit, to X.Xxxxx
at such location as X.Xxxxx shall specify in writing to Customer. Any Leased
Products to be returned to X.Xxxxx as part of a "trade in" or other exchange of
leased products shall be returned within thirty (30) days after receipt of such
new leased products.
If Customer fails to purchase or return the Leased Products, as applicable, then
Customer shall be deemed to have elected to renew the Term on a month-to-month
basis upon the same terms as set forth herein, except that X.Xxxxx shall have
the right at any time after the deemed election to terminate this Lease upon ten
(10) days' prior notice to Customer, in which event, Customer shall, at its sole
cost and expense, promptly return the Leased Products to X.Xxxxx in good
working condition (normal wear and tear excepted) by delivering the Leased
Products, adequately packaged, addressed, and insured against loss in transit,
to X.Xxxxx at such location as X.Xxxxx shall specify in writing to Customer.
5. MAINTENANCE AND REPAIRS. Customer shall at all times during the Term and at
its sole cost and expense, maintain the Leased Products in good working
condition and repair, reasonable wear and tear excepted. Customer immediately
shall notify X.Xxxxx of any repairs or replacements of the Leased Products that
are necessary and shall not, without the prior authorization of X.Xxxxx, make
any such repairs or replacements. Any replacement parts, changes in or
improvements to the Leased Products shall become and remain the sole property of
X.Xxxxx. X.Xxxxx will not be responsible at any time for the cost of repairs or
replacement of the Leased Products resulting from the negligent or intentional
acts of, or misuse by, Customer or from any services performed by persons other
than X.Xxxxx or its authorized agent
6. WARRANTY. The product warranty, and the Extended Limited Warranty
(collectively, the "Product Warranty") made by X.Xxxxx is attached hereto and
made a part of this Lease. The Total Lease Amount includes the cost of the
Extended Limited Warranty during the period from the second anniversary of this
Lease through the third anniversary, and is provided in accordance with the
terms and conditions of the Extended Warranty Program Agreement attached hereto.
7. DELIVERY. X.Xxxxx shall deliver the Leased Products to Customer at the
shipping address noted above. Shipment of the Leased Products by X.Xxxxx will be
made F.O.B. origin. All shipping dates quoted whether verbal or written are
approximate and are based upon prompt receipt by X.Xxxxx of all necessary
information from Customer. X.Xxxxx shall not be liable to Customer for any
delays in the delivery of the Leased Products.
8. TITLE/LOCATION/USE.
(a) TITLE; SECURITY INTEREST
Title to the Leased Products shall at all times remain with X.Xxxxx. This Lease
is intended by X.Xxxxx and Customer to be a lease and not a sale, but to the
extent, at any time or from time to time, this Lease is construed or asserted to
be a transaction intended as security, X.Xxxxx retains and/or Customer hereby
grants to X.Xxxxx a first lien security interest in and to all of the Leased
Products, the proceeds of any sale thereof, assignment, lease or sublease
thereof, any insurance proceeds, and any other rights of Customer in and to the
Leased Products, this Lease and/or their proceeds. The parties understand and
agree that, unless otherwise specified herein, Customer does not acquire, under
this Lease, any right, title or interest in or to the Leased Products, except
the right to possess and use the Leased Products during the Term so long and
only so long, as there is no Event of Default continuing with respect to
Customer. Unless and until the Leased Products are purchased and paid for by
Customer pursuant to Section 2 or 4 of this Lease, the Leased Products are, and
shall remain at all times, the personal property of X.Xxxxx regardless of how
they are or may become attached or installed by Customer. In order to protect
X.Xxxxx'x security interest in the Leased Products, Customer hereby authorizes
X.Xxxxx (or X.Xxxxx'x agent) to file any UCC-1 forms, financing statements or
other forms to evidence X.Xxxxx'x rights to, interest in, and claims upon the
Leased Products. Customer agrees to reimburse X.Xxxxx for any expenses incurred
by X.Xxxxx in preparing and filing any such financing statements or forms and
for X.Xxxxx'x other documentation costs in connection with this Lease.
(b) LOCATION, USE, INSPECTION
On every June 1st and December 1st during the Term, and if requested by
X.Xxxxx at any other time, Customer will submit a report to X.Xxxxx that
identifies the location of the Equipment, by serial number, as of the date of
such report. Customer shall be responsible for maintaining accurate records,
which shall include the identification by serial number and location for each
Leased Product, in accordance with the United States Food and Drug
Administration ("FDA") rules and regulations. Customer shall use and/or operate
the Leased Products in a careful and lawful manner, and shall not make any
alterations or additions to the Leased Products without the prior written
consent of X.Xxxxx. Customer shall use the Leased Products only for the purposes
and in accordance with the instructions indicated on the labeling of or included
with the Leased Products. X.Xxxxx retains the right to inspect the Leased
Products at any time upon reasonable notice to Customer to ensure compliance
with the provisions of this Lease and all applicable laws. Customer certifies
and warrants that the Leased Products are for its own use and Customer will not
sell or otherwise transfer the Leased Products without the prior written consent
of X.Xxxxx. Customer agrees to notify X.Xxxxx, in writing, as to the change in
Customer's legal name, fictitious or d/b/a name, and address. Any failure by
Customer to notify X.Xxxxx of any such change shall, at X.Xxxxx'x election, be
deemed a material breach of this Lease.
(c) LOSS OR DAMAGES
Customer shall bear the entire risk of loss or theft, destruction or damage of
the Leased Products from any cause whatsoever, which loss or damage occurs after
X.Xxxxx delivers the Leased Products to Customer. No such event shall relieve
Customer of its obligations to pay Monthly Lease Payments or any charges then
outstanding or as may become due under this Lease.
(d) LIENS AND TAXES
Customer shall at all times during the Term protect and defend, at its own cost
and expense, the title of X.Xxxxx in the Leased Products from and against all
claims, liens, encumbrances and legal processes ("Encumbrances") of Customer's
creditors, and shall keep all Leased Products free and clear from all
Encumbrances.
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Customer shall also prepare and file all applicable tax returns relating to the
ownership, use, lease or possession of the Leased Products and shall pay all
taxes when due, including without limitation, all excise and property taxes, and
upon reasonable request of X.Xxxxx, shall furnish X.Xxxxx with evidence of such
filing.
(e) MODIFICATIONS, ALTERATIONS
Customer shall make no alterations in, or attachments to, the Leased Products,
without the prior written consent of X.Xxxxx. In addition, Customer shall not
remove, alter, or cover any trademarks, tradenames, labels, signs, symbols or
serial numbers that are, or may be attached to the Leased Products by or at the
request of X.Xxxxx. Notwithstanding the foregoing sentence, Customer may xxxx
the Leased Products with its own identifiers to meet its own internal tracking
requirements.
9. INSURANCE. Customer shall at all times during the Term maintain, at its sole
cost and expense, insurance against (i) loss, theft, destruction or damage of or
to the Leased Products and (ii) third party liability insurance in amounts and
with exclusions and deductions acceptable to X.Xxxxx. All such insurance shall
be underwritten by insurance companies and on such terms as are satisfactory to
X.Xxxxx. Upon request, Customer shall provide X.Xxxxx with satisfactory evidence
of such insurance and, if requested by X.Xxxxx, shall cause X.Xxxxx and its
successors and assigns to be named as a loss payee or additional insured on such
policies. During the Term, Customer shall not terminate amend or modify such
insurance without the prior written consent of X.Xxxxx. No insurance shall be
subject to any co-insurance clause and Customer shall be obligated to maintain
insurance under this Lease as primary coverage for X.Xxxxx and irrespective of
any insurance maintained by X.Xxxxx on the Leased Products.
10. FORCE MAJEURE. X.Xxxxx shall be excused from any delay in, or impossibility
of, performance due to any cause beyond its or its supplier's or
sub-contractor's control, acts of God, war, acts of government, regulatory
agencies or judicial bodies, acts of Customer or third parties, raw materials
shortages, energy or fuel shortages, fire, flood, strike or labor trouble,
sabotage, or delays in manufacturing or delays in obtaining labor, materials,
equipment or transportation. In the event of any such delay, X.Xxxxx may
allocate the products among all of its customers, without penalty or liability.
11. DEFAULT AND DEFAULT REMEDIES. The following shall constitute an Event of
Default under this Lease: (a) Customer repudiates this Lease for any reason, (b)
Customer fails to use or operate the Leased Products in a careful and lawful
manner and in a manner consistent with their intended purpose, (c) Customer
fails to protect X.Xxxxx'x property rights in and to the Leased Products, (d)
Customer fails to maintain required property and liability insurance as required
by Section 9 of this Lease, (e) Customer winds up, dissolves, or otherwise
terminates its existence, or consolidates or merges with or into another entity
or sells, leases or transfers all or substantially all of its assets to any
entity, (f) Customer becomes or is adjudicated insolvent or bankrupt, admits in
writing its inability to pay its debts or makes an assignment for the benefit of
credits, or there is an appointment of a receiver or trustee for Customer or for
a substantial part of its assets, or Customer institutes any bankruptcy or
reorganization under the laws of any jurisdiction or any such proceeding is
instituted against Customer, (g) Customer fails to make any Monthly Lease
Payment or any other amount payable to X.Xxxxx under this Lease when such
payment is due, (h) Customer is in breach of any provision of this Lease or
Customer fails to perform any other of its obligations under this Lease, or
there occurs an event under clauses (b), (c) (d), (g) or (i) of this paragraph,
and such failure continues for ten (10) days after X.Xxxxx gives Customer
written notice of such failure and Customer fails to cure such breach or failure
to X.Xxxxx'x satisfaction within such ten (10) day period, or (i) Customer is in
default under any document, lease or other agreement or instrument evidencing
obligations of Customer or any of its affiliates to X.Xxxxx, whether now
existing or hereafter existing, which default remains uncured beyond the
expiration of any applicable grace or cure period.
Upon an Event of Default, X.Xxxxx, at its sole discretion and without further
notice to Customer, may (in addition to other remedies available at law or
equity) undertake any or all of the following remedies: (a) recover from
Customer any further amounts then due as of the date of the Event of Default and
declare due and payable any unpaid Total Lease Amount and all amounts which
would have become due if this Lease had remained in effect for the full Term
following such Event of Default; (b) demand the return of the Leased Products to
X.Xxxxx in the manner set forth in Section 4 of this Lease; (c) take immediate
possession of the Leased Products wherever located, without demand or notice,
without any court order or other process of law, and without any liability to
Customer for any damages occasioned by such taking, it being agreed that X.Xxxxx
may enter the premises of Customer where the Leased Products are maintained to
remove the Leased Products; (d) terminate this Lease by notice to Customer;
provided that, a termination hereunder shall occur only with respect to the
Leased Products specified in such written notice and in all other respects, this
Lease shall continue in full force and effect and Customer shall be obligated to
perform all acts and to pay all amounts when due with respect the Leased
Products for which this Lease was not terminated; and/or (e) pursue any other
remedy available at law or in equity.
No right or remedy herein conferred upon or reserved to X.Xxxxx is exclusive of
any other right or remedy herein or provided by law or at equity, but each such
remedy shall be cumulative of every other right or remedy, and may be enforced
concurrently or sequentially. If an Event of Default occurs under this Lease
prior to confirmation of a plan of reorganization in Bankruptcy Case No.
00-3329, the trustee in such bankruptcy case and Customer agree not to oppose
X.Xxxxx in obtaining relief from the automatic stay under 11 U.S.C. Section 362
to exercise any of its rights under the terms of this Lease or applicable law.
12. INDEMNIFICATION. Except for liabilities arising from a breach of the Product
Warranty by X.Xxxxx (prior to the expiration thereof), Customer hereby accepts
responsibility for, and indemnifies and holds X.Xxxxx and its successors and
assigns harmless from and against, any and all liabilities, damages and claims
(including, without limitation, expenses of litigation, investigators and
attorney's fees, settlements and damages) arising from or related to Customer's
acceptance, leasing, purchase by Customer, possession, maintenance, selection,
use or operation of the Leased Products, including without limitation and by way
of example, any failure to utilize appropriate type(s) of Leased Products for a
given patient or type of IV administration, failure to observe the Leased
Product's audio or visual alarms during IV administration, or failure to observe
proper set-up, operation and supervision procedures prior to, during and after
IV administration. Customer's obligations hereunder shall survive the
termination of this Lease.
X.Xxxxx indemnifies and holds Customer and its successors and assigns ("Customer
Parties") harmless from and against any and all liabilities damages and claims
(including, without limitation, expenses of litigation, investigators' and
attorneys' fees, settlements and damages asserted by persons other than Customer
Parties arising from or related to defects in materials and/or workmanship of
the Leased Products, except to any extent due to the acts or omissions of
Customer Parties or any other party, failure to use or maintain the Lease
Products in accordance with their instructions, or any modification or
alteration made to the Leased Products by Customer Parties or any other party,
other than X.Xxxxx. Customer shall immediately submit all such claims to X.Xxxxx
and X.Xxxxx shall control the defense thereof. If Customer desires to join any
defense of such claim, it shall be entitled to do so at its sole cost and
expense. Customer agrees to cooperate with X.Xxxxx and its counsel.
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13. COMPLIANCE WITH LAWS.
(a) COMPLIANCE
Customer shall comply with all applicable laws, ordinances, rules and
regulations of federal, state and local government authorities and/or agencies
applicable to this Lease or the purchase, operation, condition, maintenance or
use of the Leased Products.
(b) REIMBURSEMENT
IF ANY PRICING UNDER THIS LEASE CONSTITUTES A DISCOUNT OR OTHER REDUCTION IN
PRICE UNDER SECTION 1128(b)(3)(A) OF THE SOCIAL SECURITY ACT, 42 U.S.C.
1320a-7b(b)(3)(A), CUSTOMER SHALL DISCLOSE THE DISCOUNT OR REDUCTION IN PRICE TO
THE FULL EXTENT REQUIRED UNDER ANY STATE OR FEDERAL PROGRAM WHICH PROVIDES COST
OR CHARGE BASED REIMBURSEMENT TO CUSTOMER FOR ANY PRODUCTS COVERED UNDER THIS
LEASE. THIS ACT REQUIRES, AMONG OTHER THINGS, THAT CUSTOMER FULLY AND ACCURATELY
REPORT ON ANY CLAIM OR REQUEST FOR PAYMENT IT SUBMITS TO MEDICARE AND MEDICAID
THE ACTUAL PURCHASE PRICE PAID BY CUSTOMER FOR THE LEASED PRODUCTS, NET OF ANY
DISCOUNTS, REBATES OR ALLOWANCES PROVIDED TO CUSTOMER UNDER THIS LEASE.
(c) REPORTING
Customer acknowledges that it is familiar with the Safe Medical Devices Act of
1990 (the "Devices Act") and the reporting obligations imposed on device users
thereunder. In this regard, Customer agrees to notify X.Xxxxx within ten (10)
days of the occurrence of any event identified in the Devices Act imposing a
reporting obligation on Customer and/or X.Xxxxx (except for events representing
an imminent hazard that requires notification to the FDA within seventy -two
(72) hours, in which case, such notice will be delivered to the other party
immediately upon receipt).
(d) DEVICE TRACKING
Customer shall maintain adequate tracking systems for the Leased Products to
enable X.Xxxxx to meet the FDA requirements applicable to the tracking of
medical devices.
14. MISCELLANEOUS.
(a) LIMITATION OF LIABILITY
In no event shall X.Xxxxx be liable to Customer for any indirect, incidental,
special, consequential or punitive damages (including damages for lost profits)
arising out of or in connection with the delivery, use or service of the Leased
Products or the performance, use or inability to use the Leased Products or
otherwise, whether based in contract, warranty, tort (including negligence) or
any other legal or equitable theory. X.Xxxxx'x total liability for any claim or
action arising out of or related to this Lease or the Leased Products shall not
in any event exceed the Total Extended Price.
(b) GOVERNING LAW
This Lease, including any warranties, and any dispute or claim arising out of or
relating to this Lease or the Leased Products shall be governed by the laws of
the Commonwealth of
Pennsylvania excluding any choice of law rules which may
direct the application of the laws of any other jurisdiction. Any suits,
actions, claims, causes of action or proceedings arising directly, indirectly or
otherwise in connection with, out of, or related to, this Lease, the Leased
Products, any dealings between X.Xxxxx and Customer relating to the subject
matter hereof and/or the relationship established between X.Xxxxx and Customer
under this Lease (each, an "Action") shall be brought, at X.Xxxxx'x sole
discretion and election, in the courts situated within the Commonwealth of
Pennsylvania and Customer hereby consents and submits to the jurisdiction of any
state or federal court located within the Commonwealth of
Pennsylvania. Customer
hereby waives any right it may have to transfer or change the venue of any
Action. CUSTOMER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
ACTION, AND ACKNOWLEDGES AND AGREES THAT THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL ENCOMPASSING OF ANY AND ALL ACTIONS THAT MAY BE FILED IN ANY COURT.
CUSTOMER ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THIS SECTION 14(b)
CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH X.XXXXX IS RELYING IN ENTERING INTO
THIS LEASE.
(c) AMENDMENTS
Any term may be amended and the observance of any term may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of X.Xxxxx and Customer. The failure of X.Xxxxx in
any instance to exercise any of its rights under this Lease shall not constitute
a waiver of it or any other right under this Lease. No waiver of any breach or
condition of this Lease shall be deemed to be a waiver or breach of any other or
a subsequent breach or condition whether of like or different nature. No changes
in this Lease, including any conflicting or additional terms contained in any
purchase order, invoice or other document submitted by Customer, shall be valid.
(d) ASSIGNMENT
Customer may not assign, transfer, pledge, hypothecate, encumber, sublease,
grant a security interest in or otherwise dispose of Customer's interest in this
Lease, the Leased Products or any interest therein, or permit the Leased
Products to be used by anyone other than Customer or its authorized personnel,
in each instance, without the prior written consent of X.Xxxxx. X.Xxxxx'x
consent to any of the foregoing shall not discharge or diminish Customer's
obligations under this Lease and any person's rights with respect to this Lease
and the Leased Products shall be expressly made subject and subordinate to the
rights of X.Xxxxx under this Lease. X.Xxxxx shall have the right at any time to
assign (including title to the Leased Products) or grant a security interest in
this Lease or the Leased Products or any part or parts thereof for any purpose
without notice to, or consent by, Customer. Any assignee or secured party shall
have the same rights as X.Xxxxx under this Lease. Customer shall not assert
against any assignee or secured party any defense, claim or set-off Customer may
have against X.Xxxxx and any assignee or secured party shall not be liable or
responsible to perform any of X.Xxxxx'x obligations under this Lease. Customer's
duties and obligations under this Lease shall not be effected by any assignment
of this Lease and Customer shall, if requested, recognize each such assignment
or grant of a security interest and upon reasonable notice from X.Xxxxx, shall
execute and deliver such documents as X.Xxxxx reasonably believes are necessary
to effect such assignment. Customer hereby expressly waives any protections
available under 11 U.S.C. Section 365(f).
(e) BINDING EFFECT
The obligations and liabilities of Customer arising under this Lease shall
survive the expiration or earlier termination of this Lease until all
obligations have been met and all liabilities have been paid in full. This Lease
shall be binding upon and inure to the benefit of X.Xxxxx and Customer and each
of their respective successors and permitted assigns including without
limitation, any successor of Customer's by way of merger, consolidation or sale
of all or substantially all of its assets or equity.
(f) REPRESENTATIONS OF THE PARTIES
Each party hereby represents to the other party that (i) it has the right to
enter into this Lease and to perform all of its obligations hereunder, (ii) this
Lease when executed and delivered by the party, will be a legal, valid and
binding obligation of such party, enforceable against it in accordance with its
terms; and (iii) neither the
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execution of this Lease by such party nor the performance of its obligations
hereunder conflicts with or contravenes any other contract, agreement, lease or
instrument to which such party is a party or by which such party or its assets
are bound.
(g) SEVERABILITY
If any clause or provision of this Lease or the application thereof to any
person or circumstance is conclusively determined by a court of competent
jurisdiction to be invalid or unenforceable to any extent, the remainder of this
Lease and the application thereof shall not be affected thereby and shall be
enforced to the fullest extent permitted by applicable law.
(h) ENTIRE LEASE
This Lease, the Warranty, the Extended Warranty Program Agreement, and any
addenda, schedules, attachments and supplements now or hereafter attached
hereto, as the same may be amended from time to time, constitutes the entire
agreement between the parties hereto with respect to the Leased Products
irrespective of any inconsistent or additional terms and conditions on
Customer's purchase orders or other documents. Customer understands and agrees
that any terms and conditions outside of this Lease shall be without force and
effect. All prior negotiations, representations, discussions, contracts or
agreements concerning the subject matter hereof, whether express or implied,
oral or written, are cancelled and of no force and effect.
(i) NOTICES
Any notice or other communication required or which may be given hereunder shall
be in writing and either be delivered personally (by hand, messenger or other
overnight courier service), or deposited in the United States mail, first class,
certified, return receipt requested, postage prepaid, and shall be deemed given
(i) when delivered, if delivered personally, (ii) one business day if delivered
by overnight courier service, or (iii) three (3) business days after the date of
deposit in the United States mail, if mailed; and shall be addressed to X.Xxxxx
and Customer at the street addresses set forth in the beginning of this Lease.
Either party may change its address to which notices or other communications are
to be sent by giving written notice of any such change to the other party in the
manner provided herein for giving notice.
(j) [INTENTIONALLY OMITTED]
(k) BANKRUPTCY COURT APPROVAL AND ASSUMPTION OF AGREEMENT
This Lease shall not become effective unless and until the United States
Bankruptcy Court for the District of Delaware enters a final Order in a form
reasonably satisfactory to X.Xxxxx approving the terms and conditions of the
Continuing Guaranty and Suretyship of
Coram Healthcare Corporation and Coram,
Inc., which jointly and severally, are guarantors and suretys of the obligations
of Customer under this Lease. X.Xxxxx'x obligations under this Lease are
contingent upon X.Xxxxx'x satisfaction with the Court's Order.
(l) COUNTERPARTS
This Lease may be executed in one or more counterparts, all of which shall
constitute one original agreement for all purposes. Any and all counterpart
signatures may be executed by facsimile or electronic means and any signature so
executed shall be deemed an original signature of the executing party.
By execution hereof, Customer agrees to be bound by all of the terms and
conditions of this Lease. This Lease does not become effective unless and until
it is executed by X.Xxxxx
IN WITNESS WHEREOF, X.Xxxxx and Customer have executed this
Lease Agreement as
of the date first above written.
CUSTOMER: CURAFLEX HEALTH SERVICES, INC. X.XXXXX MEDICAL INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------
Signature Signature
Name: Xxxxx Xxxxxx Name Xxxxx Xxxxxx
--------------------------------- ---------------------------
(Type or print name) (Type or print name)
Title: Senior Vice President Title Vice President, OPM Sales
Materials Management ---------------------------
---------------------------------
------------------------------------ --------------------------------------
FOR INTERNAL USE ONLY:
Shipping Date ADDITIONAL FORMS ATTACHED:
---------------------
Lease Payment Start Date X Warranty
-----------
Expiration Date X Extended Warranty Program Agreement
-------------------
Repair Authorization
--------------
Other
-----------------------------
------------------------------------ --------------------------------------
5
================================================================================
X. XXXXX MEDICAL INC.
Vista(TM) Basic Infusion Device
PRODUCT WARRANTY
X. Xxxxx Medical Inc. ("X.Xxxxx") warrants to and only to the original purchaser
or lessee ("Customer") of the Vista(TM) Basic Infusion Device ("Equipment") that
reasonable care has been used in the manufacture of each unit of Equipment and
that, when properly used and maintained by Customer, it shall be free from
defects in material and workmanship in accordance with its specifications for a
period of two (2) years from the date of shipment of such Equipment by X.Xxxxx
("Warranty Period"). Any unit of Equipment that is found by X.Xxxxx not to meet
these standards within this Warranty Period will, at X.Xxxxx'x sole option, be
repaired or replaced without charge. Any defective unit of Equipment or
component thereof should be returned promptly to X.Xxxxx, properly packaged and
with postage prepaid by Customer. Customer shall provide labor for the removal
of defective Equipment and installation of its replacement, and shall bear all
risk of loss or damage while in transit. In the event no breach of warranty is
discovered by X.Xxxxx upon receipt of any returned item, the item will be
returned to Customer at Customer's expense.
This Warranty is valid only if the Equipment is operated and maintained as
described in X.Xxxxx'x operator's manuals, supplements or other operating
instructions. This Warranty shall not apply to any Equipment or component
thereof if (1) any repairs, alterations, or other work has been performed on the
Equipment or any component thereof by anyone other than X.Xxxxx or a technician
or repair facility authorized in writing by X.Xxxxx; (2) the Equipment is
altered in any manner that, in X.Xxxxx'x sole judgement, affects its stability
or reliability; (3) the alleged condition or defect is a result of the misuse,
improper cleaning or improper handling, negligence, accident or improper
maintenance of any party; (4) the Equipment is not used in accordance with its
instructions for use furnished by X.Xxxxx or is not used for its intended
purpose.
Any defect or condition that has been caused by the misuse, unauthorized
modification, or abnormal conditions of operation, or that is otherwise excluded
from this Warranty, will be repaired by X.Xxxxx at its then current repair
charges. In this case, upon the request of Customer, X.Xxxxx will submit an
estimate of the repair cost to Customer prior to making any repairs. This
Warranty does not extend to damages to, or resulting in whole or in part from
the use of, components, accessories, parts or supplies not supplied by X.Xxxxx
for use with the Equipment. Products or components not manufactured by X.Xxxxx
are not warranted by X.Xxxxx, and Customer must rely on the warranties, if any,
provided directly be the manufacturer of such product or component.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, X.XXXXX MAKES NO WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE
EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The sole and exclusive
remedy of Customer for breach by X.Xxxxx of any warranty shall be limited, at
X.Xxxxx'x sole election, to the repair or replacement of the unit of Equipment
or any component thereof. In no event shall X.Xxxxx be liable to Customer for
any indirect, incidental, special, consequential or punitive damages (including
damages for lost profits) arising out of or in connection with the delivery, use
or service of any Equipment or the performance, use or inability to use the
Equipment or otherwise, whether based in contract, warranty, tort (including
negligence) or any other legal or equitable theory.
X.Xxxxx neither assumes, nor authorizes any person to assume for it, any
additional liability or responsibility in connection with the Equipment and no
agent, employee or representative of X.Xxxxx has the right to modify or expand
the warranties set forth herein and no such modification or expansion should by
relied upon by Customer.
X. XXXXX MEDICAL INC. 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000
CUSTOMER SUPPORT 0 (000) 000-0000 2/3/03
================================================================================
X. XXXXX MEDICAL INC.
EXTENDED WARRANTY PROGRAM AGREEMENT
The undersigned Curaflex Health Services, Inc. ("Customer") is leasing 1000
Vista(R) Basic IV Pumps (the "Equipment") from X. Xxxxx Medical Inc. ("X.Xxxxx")
under its
lease agreement dated May 12, 2003, Contract No. ______________ (the
"Contract").
In connection with the Contract, Customer has elected to purchase from X.Xxxxx
the following additional product warranty:
TYPE AND PERIOD OF WARRANTY PURCHASED BY CUSTOMER:
Extended Limited Warranty for a period of one (1) year at a purchase price of
$96.00 per unit of Equipment per year, for an aggregate purchase price of
$96,000.00 per year (said period to commence upon the second anniversary of the
Contract through the third anniversary thereof)
PAYMENT:
The applicable purchase price set forth above shall be referred to as the
"Annual Warranty Price." The Annual Warranty Price shall be paid by Customer to
X.Xxxxx as provided in the Contract. This Extended Warranty Program Agreement is
subject to the terms and conditions in the Contract, and the Contract is hereby
incorporated herein, by reference thereto.
WARRANTY DESCRIPTION:
The Extended Limited Warranty Program provides for repair by factory trained
technicians at the manufacturing facility, subject to the terms of this
agreement. The Extended Limited Warranty shall commence immediately after
expiration of X.Xxxxx'x standard factory warranty covering such type of
equipment (which is two year from date of shipment). During the Extended Limited
Warranty period, X.Xxxxx shall repair or replace, at X.Xxxxx'x option and at no
cost to Customer, any unit of Equipment determined by X.Xxxxx to have defects in
material or workmanship. To initiate the repair or replacement of a defective
unit of Equipment, Customer must notify X.Xxxxx at (800) 627-PUMP and fully
complete and deliver to X.Xxxxx a Returned Material Authorization Form ("RMA").
All defective items must be properly packaged and shipped freight prepaid to
X.Xxxxx at the address indicated on the RMA. Any loss or damage during shipment
of any defective Equipment to X.Xxxxx shall be at the sole risk of Customer.
Only Equipment appearing on an RMA shall be acceptable for repair or
replacement. If X.Xxxxx determines that any defect or condition in any unit of
Equipment has been caused by the misuse, unauthorized modification, or abnormal
conditions of operation, X.Xxxxx shall repair the item at a cost to Customer
equal to its then current repair charges. In such case, X.Xxxxx shall provide
Customer with an estimate of the repair cost prior to making any repairs.
WARRANTY EXCLUSIONS
The Extended Limited Warranty shall not apply:
o to any cosmetic upgrades, including cosmetic bezels, case
tops, case bottoms and key pads;
1
o if any condition or defect is a result of the misuse, improper
cleaning or improper handling, negligence, abuse, accident or
improper maintenance of any party other than X.Xxxxx;
o if the Equipment and/or the repair kit is not used in
accordance with its instructions for use furnished by X.Xxxxx
or is not used for its intended purpose;
o if any repairs, alterations, or other work has been performed
on the Equipment or any component thereof by anyone other than
X.Xxxxx or a technician or repair facility authorized in
writing by X.Xxxxx; or
o the Equipment is altered in any manner that, in X.Xxxxx'x sole
judgement, affects its stability or reliability;
Batteries are not included in the Extended Limited Warranty. The Extended
Limited Warranty is valid only if the Equipment is operated and maintained as
described in X.Xxxxx'x operator's manuals, supplements or other operating
instructions. This Extended Limited Warranty does not extend to damages to, or
resulting in whole or in part from the use of, components, accessories, parts or
supplies not supplied by X.Xxxxx for use with the Equipment. Products or
components not manufactured by X.Xxxxx are not warranted by X.Xxxxx, and
Customer must rely on the warranties, if any, provided directly be the
manufacturer of such product or component.
Any defect or condition that has been caused by the misuse, unauthorized
modification, or abnormal conditions of operation, or that is otherwise excluded
from this Warranty, will be repaired by X.Xxxxx at its then current repair
charges. In this case, upon the request of Customer, X.Xxxxx will submit an
estimate of the repair cost to Customer prior to making any repairs.
EXCLUSIVE REMEDY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, X.XXXXX MAKES NO WARRANTY OF ANY KIND,
EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE WITH RESPECT TO THE
EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE
REMEDY OF CUSTOMER FOR BREACH BY X.XXXXX OF ANY WARRANTY PURCHASED BY CUSTOMER
HEREIN SHALL BE LIMITED, AT X.XXXXX'X SOLE ELECTION, TO THE REPAIR OR
REPLACEMENT OF THE UNIT OF EQUIPMENT OR ANY COMPONENT THEREOF OR THE SERVICES
PROVIDED. IN NO EVENT SHALL X.XXXXX BE LIABLE TO CUSTOMER FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR
LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR SERVICE
OF ANY EQUIPMENT OR THE PERFORMANCE, USE OR INABILITY TO USE THE EQUIPMENT OR
OTHERWISE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR
ANY OTHER LEGAL OR EQUITABLE THEORY.
X.Xxxxx neither assumes, nor authorizes any person to assume for it, any
additional liability or responsibility in connection with the Equipment and no
agent, employee or representative of X.Xxxxx has the right to modify or expand
the warranties set forth herein and no such modification or expansion should by
relied upon by Customer.
2
TERM
The Extended Limited Warranty shall remain in effect for the period identified
on the front page of this agreement, unless terminated earlier by X.Xxxxx due to
Customer's failure to pay any amounts due hereunder. In the event of termination
by X.Xxxxx, X.Xxxxx shall be entitled to the Annual Warranty Price for the
remainder of the warranty period as if such termination did not occur.
This Extended Warranty Program Agreement shall not become effective unless
signed below by X.Xxxxx.
Agreed to:
CURAFLEX HEALTH SERVICES, INC. X. XXXXX MEDICAL INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
(Customer Signature) (Authorized Signature)
Print Name: Xxxxx Xxxxxx Print Name: Xxxxx Xxxxxx
------------------------ ------------------------
Title Senior Vice President, Title Vice President, OPM Sales
Materials Management ------------------------------
------------------------------
Date May 12, 2003 Date May 12, 2003
------------------------------- -------------------------------
3
CONTINUING GUARANTY AND SURETYSHIP
BY
CORAM HEALTHCARE CORPORATION AND CORAM, INC.
Intending to be legally bound hereby, and in consideration of X. Xxxxx
Medical Inc. ("X.Xxxxx") agreeing to lease 1000 Vista(R) Basic IV Pumps (the
"Leased Products") to Curaflex Health Services, Inc. ("Curaflex") under a
Lease
Agreement of even date herewith (the "Lease"),
Coram Healthcare Corporation and
Coram, Inc. (individually and collectively, "Guarantor"), jointly and severally,
hereby guarantee and become surety for the prompt payment and performance in
full and of all of the obligations of Curaflex to X.Xxxxx under the Lease,
including all amounts now owed and all amounts which may be owed under the Lease
in the future, together with all attorneys' fees and all of X.Xxxxx'x other
costs of collection. Curaflex is a wholly-owned affiliate of Guarantor. In
addition to all other liabilities of the Guarantor hereunder, the Guarantor also
agrees to pay to X.Xxxxx, on demand, all costs and expenses (including
reasonable attorneys' fees and costs) which may be incurred in the enforcement
of the Guarantor's liability hereunder. Payment in full of any obligation of
Curaflex under the Lease to X.Xxxxx shall not affect the continuing liability of
the Guarantor hereunder with respect to any other obligation under the Lease
whenever arising.
This is an unconditional and absolute guaranty and suretyship of
payment and performance, regardless of any set-off or counterclaim of Curaflex
or the Guarantor, and regardless of whether X.Xxxxx shall have instituted any
proceeding or exhausted any rights against Curaflex, the Guarantor or any other
person to compel such performance or to collect any sum under the Lease, at law,
in equity or otherwise regardless of any other condition or contingency. X.Xxxxx
may, in its sole discretion, enforce this Continuing Guaranty and Suretyship
("Guaranty") against either one or both of the Guarantors, each of which shall
be jointly and severally liable hereunder.
All obligations of Curaflex to X.Xxxxx under the Lease shall be
conclusively presumed to have been created in reliance hereupon. No invalidity,
unenforceability or release of any of Curaflex's obligations to X.Xxxxx shall
affect this Guaranty, which shall be a primary obligation of the Guarantor.
The Guarantor waives notice of acceptance of this Guaranty and notice
of any obligation to which it may apply, and waives presentment, demand of
payment, protest, notice of dishonor or nonpayment of any such obligation, suit
or other action by X.Xxxxx against, and any other notice to, any party liable
thereon (including the Guarantor).
In the event of any breach of any provision of the Lease or if Curaflex
fails to perform any other of its obligations under the Lease, or if there
occurs an event under clauses (b), (c), (d), (g) or (i) under paragraph 11 of
the Lease, X.Xxxxx will provide written notice to Guarantor of such event and
Guarantor shall have ten (10) days to cure such breach or failure to X.Xxxxx'x
satisfaction within such ten (10) day period. If Guarantor fails to cure such
breach or failure to X.Xxxxx'x satisfaction within such period, or under any of
the following circumstances, X. Xxxxx may, without further notice to Curaflex or
the Guarantor, declare that all obligations of Curaflex under the Lease and of
Guarantor under this Guaranty, whether or not then due, are immediately due and
payable hereunder as to the Guarantor, and X.Xxxxx shall have the right to
enforce the obligations of the Guarantor hereunder:
1. the failure of Guarantor to perform any of its obligations hereunder
and, upon receiving written notice thereof from X.Xxxxx, if Guarantor
fails to cure such failure to X.Xxxxx'x satisfaction within ten (10)
days after the date of such notice;
2. a material adverse change in the financial condition of the Guarantor
(considered collectively), or the transfer of any substantial part of
the assets of the Guarantor (considered collectively) for a
consideration less than the fair market value thereof; or
3. the suspension of business of the Guarantor, or the sale, dissolution,
merger or reorganization of the Guarantor, or the transfer of more than
49% of the ownership interest in, or 20% of the assets of, the
Guarantor (except to the extent that any of the foregoing occur when
Coram Healthcare Corporation and Coram, Inc. are merged or consolidated
into a single entity pursuant to a plan of reorganization in Bankruptcy
Case No, 00-3329 and Bankruptcy Case No. 00-3300 (collectively, the
"Bankruptcy Cases") and the surviving entity continues to own
substantially all of the assets now owned by
Coram Healthcare
Corporation and Coram, Inc.).
1
Guarantor hereby agrees that the automatic stay under 11 U.S.C. Section
362 shall not be applicable to the enforcement by X.Xxxxx of any of its rights
under the terms of this Guaranty or applicable law, and the Order approving this
Guaranty will so provide.
The Guarantor agrees that the obligations under this Guaranty shall not
be discharged under the terms of the United States Bankruptcy Code and agree to
oppose any effort to effect such outcome, unless all obligations presently due
and which may become due in the future under the Lease are fully satisfied prior
to such discharge. In the event of a plan of reorganization of the estates of
the Guarantor pursuant to which substantially all of their assets are merged or
consolidated into a single entity, the obligations under the Guaranty shall be
assumed by such reorganized entity. Notwithstanding the foregoing, in the event
a discharge of Guarantor's obligations under this Guaranty occurs, then all
currently due and future obligations under the Lease shall become immediately
due and payable by the Guarantor and shall be deemed to be an allowed
administrative claim against the Guarantor's bankruptcy estates pursuant to
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code, 11 U.S.C Section 503(b), and
shall be immediately due and payable upon demand. Any claim arising under this
Guaranty during the pendency of the Guarantor's bankruptcy proceeding shall be
deemed to be an allowed administrative claim under Section 503 (b) of the United
States Bankruptcy Code, 11 U.S.C. Section 503 (b).
X.XXXXX WILL ONLY HAVE THE RIGHT TO EXERCISE THE FOLLOWING CONFESSION
OF JUDGMENT AFTER CONFIRMATION OF A PLAN OF REORGANIZATION OF THE BANKRUPTCY
CASES.
AFTER THE OCCURRENCE OF AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT UNDER THE LEASE OR A DEFAULT HEREUNDER, THE GUARANTOR HEREBY AUTHORIZES
X.XXXXX, BY ITS ATTORNEY, TO APPEAR FOR THE UNDERSIGNED AND CONFESS JUDGEMENT
AGAINST IT IN FAVOR OF X. XXXXX FOR THE FULL AMOUNT OF THE OBLIGATIONS
GUARANTEED HEREUNDER, PLUS REASONABLE ATTORNEYS FEES, WITH OR WITHOUT
DECLARATION, AND WITHOUT STAY OF EXECUTION, FOR WHICH THIS GUARANTY OR A COPY
VERIFIED BY X.XXXXX'X AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THIS AUTHORITY
SHALL CONTINUE AND MAY BE EXERCISED AS OFTEN AS X.XXXXX DESIRES FROM TIME TO
TIME UNTIL THE OBLIGATIONS ARE FULLY PAID.
THE FOREGOING PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY TO CONFESS
JUDGEMENT AGAINST THE GUARANTOR. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS
JUDGEMENT, THE GUARANTOR ACKNOWLEDGES THAT IT UNDERSTANDS THE MEANING AND EFFECT
OF THE CONFESSION CONTAINED IN THE FOREGOING PARAGRAPH. SPECIFICALLY, THE
GUARANTOR UNDERSTANDS THAT (1) IT IS RELINQUISHING ITS CONSTITUTIONAL RIGHT TO
HAVE NOTICE AND AN OPPORTUNITY TO BE HEARD, AND THE RIGHT OT HAVE THE BURDEN OF
PROOF OF DEFAULT REST ON X.XXXXX PRIOR TO THE ENTRY OF JUDGEMENT, (2) THE ENTRY
OF JUDGEMENT MAY RESULT IN A LIEN ON ITS PROPERTY, INCLUDING ITS REAL ESTATE,
(3) IT WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE JUDGEMENT AND
CHALLENGING EXECUTION OF THE LIEN AND SALE OF THE PROPERTY COVERED THEREBY, AND
(4) ITS PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST, COSTS AND
ATTORNEYS' FEES. ON THE ADVICE OF SEPARATE COUNSEL OF THE GUARANTOR, THE
GUARANTOR KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, UNCONDITIONALLY WAIVES ITS
CONSTITUTIONAL RIGHTS AS PROVIDED HEREIN.
Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally (by hand,
messenger or other overnight courier service), or deposited in the United States
mail, first class, certified, return receipt requested, postage prepaid, and
shall be deemed given (i) when delivered, if delivered personally, (ii) one
business day if delivered by overnight courier service, or (iii) three (3)
business days after the date of deposit in the United States mail, if mailed;
and shall be addressed as follows:
2
If to X.Xxxxx: If to Guarantor:
X. Xxxxx Medical Inc.
Coram Healthcare Corporation
and/or Coram, Inc.
000 Xxxxxxx Xxxxxx 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxxxx Xxxx, Esq.
With a copy to: Xxxxx Xxxxxx, Esq.,
Asst. General Counsel
Either party may change its address to which notices or other communications are
to be sent by giving written notice of any such change to the other party in the
manner provided herein for giving notice. All notices sent to Guarantor
hereunder, if occurring prior to the confirmation of a Plan of Reorganization in
Bankruptcy Case 00-3329, shall also be sent to: Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxx
LLP, Suite 3600, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000-0000, Attention: H.
Xxx Xxxxxxxxxxxx, Xx., Esquire, by facsimile at (000) 000-0000.
This Guaranty shall inure to the benefit of X.Xxxxx and its successors
and assigns and shall be binding upon the Guarantor and the Guarantor's
successors and assigns.
X.Xxxxx may change the manner or terms of payment, or extend the time
for payment, of any or all of Curaflex's liabilities, and may sell, exchange,
release or surrender, or otherwise deal with in any manner or order, any other
guaranty or suretyship of, and any property by whomsoever at any time pledged to
secure, any of Curaflex's liabilities, and may exercise or refrain from
exercising any right against Curaflex or any other person in X.Xxxxx'x absolute
discretion, without affecting this Guaranty.
The Guarantor hereby submits to the jurisdiction and venue of the Court
of Common Pleas of Lehigh County,
Pennsylvania (following confirmation of a plan
of reorganization in the Bankruptcy Cases)and the United States District Court
for the Eastern District of
Pennsylvania, and hereby waives trial by jury. This
Guaranty shall be construed in accordance with and enforced under the laws of
the Commonwealth of
Pennsylvania, notwithstanding its laws of conflict of laws.
Any provisions hereof that is void or unenforceable shall be
disregarded and the remaining provisions hereof shall be enforced as if such
void or unenforceable provisions were omitted.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned has executed this Guaranty this 12th day of May, 2003.
Guarantors:
Coram Healthcare Corporation
By /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President,
Materials Management
Coram, Inc.
By /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President,
Materials Management
3
