Exhibit 10.67
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Xxxxxx Healthcare Corporation
Xxxxxx Capital Services
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
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Equipment Lease Agreement
This Agreement is between Xxxxxx Healthcare Corporation, a Delaware Corporation,
on behalf of itself and its affiliates ("Xxxxxx") and Nexell Therapeutics Inc.,
on behalf of itself and its affiliates (the "Customer"). Customer has, by
separate xxxx of sale, transferred and sold all the equipment listed on Schedule
A attached hereto to Xxxxxx. Subject to the provisions of this Agreement,
Xxxxxx shall lease to Customer the equipment listed on Schedule A (the
"Equipment"). Xxxxxx may assign this Agreement at any time to any of its
subsidiaries or affiliates without any notice to Customer.
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1. DATES. The Effective Date of this Agreement, and the Commencement Date of
this Agreement is December 21, 2000.
2. PAYMENTS. Under this Agreement, beginning on the Commencement Date, and on
the same day of each month thereafter, Customer shall pay to Xxxxxx, by
automated ACH credit or wire transfer, or other electronic means acceptable to
Xxxxxx, the Total Monthly Rent listed on Schedule B attached hereto for the 36
months following Commencement Date. At the end of the 36 month term, Customer
shall make a final rental payment listed on the bottom of Schedule B.
If any part of a payment is more than 5 days late, Customer agrees to pay a late
payment service fee of 1.5% per month or the highest amount allowed by law, if
it is less than 1.5% per month, of the amount of the payment which is late.
3. TAXES AND OTHER CHARGES. Customer agrees to pay all federal, state, and
local taxes, license and registration fees, freight and transportation charges
and all similar costs based on Customer's use of the Equipment, unless Customer
is exempt from paying any or all taxes that apply to this Equipment, in which
case Customer must provide Xxxxxx with the proper exemption certificates prior
to the Effective Date of this Agreement. Xxxxxx will pay all property taxes
based on the Equipment to the appropriate taxing authority and Customer will
reimburse Xxxxxx for all such payments promptly upon request.
4. OWNERSHIP OF EQUIPMENT. Xxxxxx is the owner of the Equipment and has title
to the Equipment. Customer will sign all UCC financing statements Xxxxxx
desires to file such to give notice of Xxxxxx'x ownership.
5. POST TERMINATION. If Customer retains possession of any Equipment beyond the
end of the Term of this Agreement, the Term shall be extended on a month-to-
month basis for as long as Customer possesses the Equipment and Customer shall
pay Xxxxxx at the rate equal to 100% of the Total Monthly Fee set forth above.
6. WARRANTIES: DISCLAIMER. XXXXXX MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
UNLESS THE EQUIPMENT IS USED IN ACCORDANCE WITH THE DIRECTIONS ON THE LABELING
AND THE INSTRUCTIONS ACCOMPANYING THE EQUIPMENT, THE WARRANTIES IN ANY
DESCRIPTIONS OR DIRECTIONS ARE VOID AND OF NO EFFECT. XXXXXX SHALL HAVE NO
LIABILITY TO CUSTOMER FOR PROXIMATE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH CUSTOMER'S USE OF THE EQUIPMENT.
7. LOCATION AND USE OF EQUIPMENT. From the date of receipt of the Equipment,
Customer agrees to use the Equipment only for the purposes and according to the
instructions indicated on the labeling of or included with the Equipment.
Customer shall not modify the Equipment without Xxxxxx'x prior written consent,
and the Equipment shall remain personal property at all times, regardless of how
it is attached or installed. Customer shall not move the Equipment outside any
premises owned or leased by Customer, its affiliates or its customers.
8. LOSS OF EQUIPMENT. From the date of receipt of the Equipment, in the event
of loss, theft, or destruction of a unit of Equipment, Customer will replace
such equipment at the Customer's sole cost.
9. INSURANCE. Customer agrees, at Customer's own cost and expense, to keep the
Equipment fully insured against destruction and loss from the date of receipt of
the Equipment until this Agreement is paid in full and to have Xxxxxx named as
loss payee on all such policies. Upon request, Customer will provide Xxxxxx
with proof of insurance.
10. ASSIGNMENT. Customer has no right to sell, transfer, assign, or sublease
(A) the Equipment or (B) this Agreement without Xxxxxx'x prior written consent.
Xxxxxx may sell, assign, encumber, or transfer this Agreement to another party
without any consent by or from Customer.
11. DEFAULT. If Customer fails to make any of the Total Monthly Rent or if
Customer fails to perform Customer's other obligations under this Agreement,
Customer will be in default. If Customer defaults, Xxxxxx may require that
Customer pay the remaining Total Monthly Rent balance of this Agreement and
return the Equipment to Xxxxxx, in addition to other remedies available to
Xxxxxx at law.
12. PURCHASE OR RETURN OF EQUIPMENT. At the end of the Term of this Agreement,
or upon request or demand by Xxxxxx pursuant to the terms of this Agreement,
Customer shall return the Equipment to Xxxxxx in the same condition as when it
was delivered to Customer, allowing for normal wear and tear, to such place or
on board such carrier, packed for shipping, freight prepaid, as Xxxxxx may
specify. Alternatively, Customer may, at its option, purchase all the Equipment
for the fair market value of such Equipment on such date. Xxxxxx and Customer
shall agree in writing as to all the terms of such purchase.
13. RESPONSIBILITY. Customer acknowledges that the selection, possession,
operation and use of the Equipment is solely the Customer's responsibility.
Therefore, Customer shall be responsible for all liabilities, costs and expenses
(including lawsuits and claims for personal injury and property damage) to the
extent of and arising out of Customer's selection, possession, operation and use
of the Equipment. Customer agrees to hold Xxxxxx harmless against any and all
damages or injury associated with the selection, possession, operation and use
of the Equipment.
14. MISCELLANEOUS. This Agreement is the entire agreement between Xxxxxx and
Customer relating to the Equipment and, in the event of conflict, supersedes all
prior agreements, all purchase orders, acknowledgment forms or other written
documents submitted by Customer, and all invoices of Xxxxxx. It shall not be
changed or amended except by written agreement executed by both parties and this
Agreement shall not be valid or binding unless approved and accepted by Xxxxxx
at its home office. This Agreement shall be governed by and interpreted in
accordance with Illinois law.
No changes in this Agreement, including any conflicting or additional terms
contained in any purchase order or other document submitted by Customer, shall
be valid unless approved in writing by Xxxxxx at its home office.
IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties have executed this Agreement on the date below.
Nexell Therapeutics Inc. Xxxxxx Healthcare Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Printed Name: Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxx
Title: President, Chief Operating Officer and CFO Corporate Treasurer
