EXHIBIT 10.12
HemaCare Corporation
Lease (Installment Sale) Agreement
December 30, 2003
GAMBRO BCT
December 30, 2003
LEASE (INSTALLMENT SALE) AGREEMENT
COBE(R) Spectra(TM) Apheresis System/Trima(TM) Automated
Blood Collection System
Gambro BCT, Inc., 10811 W. Collins Avenue, Lakewood, CO 80215-
4440 ("Company"), hereby agrees to sell to HemaCare Corporation,
21101 Oxnard Street, Woodland Hills, CA 91367, ("Customer") and
Customer hereby agrees to lease the equipment ("Equipment")
identified below, subject to the following terms and conditions:
1. TERM OF AGREEMENT
The term of this Agreement shall begin thirty days after the
date the Equipment is shipped by Company to the Customer's
location and, unless sooner terminated shall continue for
thereafter for the term stated on Exhibit A.
2. PAYMENTS
(a) Lease Payments. Customer shall pay Company the monthly
lease charges in equal monthly installments, as stated in
Exhibit A, for the duration of the term of this Agreement.
Each monthly lease payment is due within thirty (30) days of
Company's invoice date. Customer shall submit a valid
purchase order for the total monthly lease billings covering
the full term of the Agreement.
(b) Purchase Option. Subject to Customer's compliance with
its obligations under this Agreement, Customer shall have
the option to purchase the Equipment for an exercise price
calculated as set forth in Exhibit "B" to this Agreement.
Customer must give thirty (30) days prior written notice to
Company and pay the full exercise price plus all amounts
otherwise due and payable under this Agreement within such
thirty (30) day period. Should early termination of this
Agreement occur pursuant to Paragraph 14, or should Customer
be in default of any of its obligations arising hereunder,
this option shall be null and void. See Exhibit B for an
amortization schedule for the purchase option.
(c) Terms of Payment. All monthly lease installment payments
and any other payments by Customer under this Agreement shall be
made at Company's "remit to" address as set forth on Company's
invoices. Company shall have the right to charge Customer
interest at the rate of one and one-half percent (1-1/2%) per
month (or the maximum rate permitted by law, whichever may be
less) on any lease installment billing or other billing under
this Agreement which is not paid when due.
3. DELIVERY OF PRODUCT
All Company product (equipment and disposable products)
shall be shipped and delivered to Customer F.O.B. Shipping
Point, via surface transportation, at the address specified
in the first paragraph of this Agreement. Freight and
handling charges are prepaid and added to the invoice.
4. LIMITED WARRANTY
Company will replace or, at its option, repair (free of
charge) for the original purchaser any part of new Equipment
which is defective in materials or workmanship during the
first 12 months of the term of this Agreement (during the
first 6 months for refurbished Equipment). This limited
warranty does not include replacement or repair of any part
which fails because of misuse, accident, neglect, failure to
use and maintain the Equipment in accordance with
instructions of Company, as set forth in the Operator's
Manual, or alterations by unauthorized persons. THIS
LIMITED WARRANTY IS EXPRESSLY IN LIEU OF ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GAMBRO
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WILL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THIS AGREEMENT OR THE CUSTOMER'S USE
OF THE EQUIPMENT. Repairs required as a result of abuse or
misuse of the Equipment, as determined by Company in good
faith, will be charged to the Customer. To request service,
Customer should call the Service Response Center at (800)
525-2623 and provide the Name, Model Number and Serial
Number of the Equipment.
5. INSTRUCTION
Company will complete the in-service programmed training of
two or three of the Customer's employees in the use of the
Equipment and Disposable Products. Should there be changes
in the contracted Equipment or its use or the Disposable
Products with the Equipment, Company agrees to provide
additional instruction as reasonably necessary for
Customer's employees to properly utilize the Equipment and
Disposable Products.
6. MAINTENANCE
(a) In conjunction with the execution of an Agreement, a
Company-approved equipment maintenance and service program
must be undertaken to commence at the end of the warranty
period and remain in effect for the term of the Agreement.
(b) Customer will operate the Equipment in accordance with
the instructions given in the ("Gambro") Operator's Manual
for the Equipment and will perform all cleaning and
maintenance procedures set forth in the Manual.
7. LOSS OR DAMAGE
Customer shall bear the entire risk of loss, theft,
destruction or damage of or to the Equipment (herein "loss")
from any cause other than the negligence of Company, whether
or not covered by insurance, and no such loss shall release
Customer from its obligations under this Agreement,
including Customer's obligation to pay the monthly lease
installment payments for the term of this Agreement. In the
event of loss, Customer shall repair the Equipment or, if
not repairable, shall either replace the Equipment with
another ("Gambro") equipment unit of equal quality or
provide Company with such substitute security for
performance of its obligations hereunder as Company may
reasonably require.
8. INSURANCE
Customer shall provide and maintain, at its own cost and
expense, insurance for the Equipment against loss, theft,
damage, or destruction in an amount not less than the
stipulated value, as stated below, naming Company as an
additional insured, and provide Company with such evidence
of this insurance as Company may reasonably require.
STIPULATED VALUES DURING TERM: (Per Instrument)
SPECTRA STIPULATED VALUES DURING TERM (Per Instrument):
First 12 Months $51,350
Second 12 Months $46,729
Third 12 Months $42,523
Thereafter $38,696
TRIMA STIPULATED VALUES DURING TERM (Per Instrument):
First 12 Months $57,680
Second 12 Months $52,489
Third 12 Months $47,765
Thereafter $43,466
9. NONASSIGNABILITY BY CUSTOMER
Without Company's prior written consent, Customer shall not
(a) assign, transfer or otherwise dispose of the Equipment,
and its rights and obligations under this Agreement, or (b)
sublet or lend the Equipment or permit it to be used by
anyone other than Customer, Customer's employees, or
authorized personnel using the Equipment under Customer's
supervision.
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10. TAXES
Customer agrees to pay promptly any and all applicable
taxes, assessments, or other charges levied or assessed on
or with respect to acquisition, possession, or use of the
Equipment, or reimburse Company in the event Company has
paid such taxes.
11. GOVERNMENT REGULATIONS
Customer shall comply with all governmental statutes,
ordinances and regulations relating to possession or use of
the Equipment and indemnify Company against all liability
and expense (including attorney fees) arising from
Customer's failure to do so.
12. SURRENDER-RETURN
Upon termination of this Agreement for any reason other than
Customer's full payment of the lease price, or if Company
should rightfully demand possession of the Equipment, the
Customer shall immediately return the Equipment to Company,
at Customer's expense, and to the extent permitted by
applicable law, Company shall have the right to enter the
Customer's premises to take possession of the Equipment.
The return packaging and shipping expenses shall be paid by
Customer, in addition to the cost to refurbish the
Equipment. The Equipment when returned to Company shall be
in as good condition as when delivered to Customer, ordinary
wear and tear excepted.
13. TITLE
Title to the Equipment shall remain at all times in Company.
Customer shall attach to, and shall not remove from, the
Equipment all labels provided by Company identifying the
Equipment as belonging to Company. Upon Customer's exercise
of the Purchase Option set forth in Section 2 (b) and full
payment of the exercise price and all amounts due hereunder,
or upon completion of payment of the monthly Lease Payments
set forth in Section 2 (a) and all amounts due hereunder,
Company shall promptly convey title in the Equipment to
Customer.
14. SECURITY INTEREST
Customer grants to Company a security interest in the
Equipment to the extent of Customer's interest therein and
any proceeds therefrom to secure Customer's payment of the
monthly lease installment payments for the term of this
Agreement and Customer's performance of its obligations
under this Agreement. Customer agrees that it will not
sell, transfer, or encumber the Equipment or any interest
therein and will, upon demand, execute and deliver to
Company such financing statements and other documents and
will do all such acts and things as Company may reasonably
request or as may be necessary or appropriate to establish
and maintain a valid security interest in the Equipment and
proceeds therefrom, subject to no prior liens or
encumbrances. Upon Customer's default in payment of any
installment payment or performance of any of its other
obligations arising under this Agreement (such default not
having previously been cured as otherwise provided herein),
Company at its option may declare all monthly lease
installment payments to be immediately due and payable and
shall then have the remedies of a secured party under the
Uniform Commercial Code or other applicable law. Expenses
of retaking, holding, preparing for sale, selling, including
Company's reasonable attorney's fees and expenses shall be
paid by Customer. The security interest created hereby
shall survive any termination of this Agreement by Company
pursuant to Paragraph 15 below. Customer hereby authorizes
Company or its agents or assigns to execute and file on its
behalf any and all necessary Uniform Commercial Code filings
to perfect the security interest granted herein.
15. DEFAULT
Company may terminate this Agreement upon written notice to
Customer if Customer remains in breach of the terms of this
Agreement fifteen (15) days following written notice of such
breach. In addition, Company may immediately terminate this
Agreement upon written notice to the Customer of nonpayment
of a monthly lease installment payment or other amounts due
under this Agreement, or upon Customer's dissolution,
insolvency, receivership, assignment for the benefit of
creditors, or bankruptcy.
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Upon termination of this Agreement, all of Customer's rights
under this Agreement shall absolutely terminate, but
Customer shall remain liable for the remaining monthly lease
payments and any other amounts which may have accrued during
the term of this Agreement.
16. ATTORNEY FEES
Customer agrees to pay all reasonable attorney fees and
expenses Company may incur in enforcing its security
interest in the Equipment or in recovering amounts owed to
Company under this Agreement.
17. NOTICES AND DEMANDS
All notices required or permitted under this Agreement shall
be delivered in person, by telecopy or by certified mail,
return receipt requested, postage prepaid, to the party
receiving notice at the party's address stated in this
Agreement, or to such other address as the party to receive
notice may specify to the other party by written notice
pursuant to the paragraph. Notices shall be effective on
personal delivery on receipt of the telecopy or on the third
business day following the date of mailing.
18. ENTIRE AGREEMENT
This Agreement constitutes the final, complete and exclusive
expression and statement of the terms of the agreement
between the parties. In case of any conflict between the
terms and conditions of this Agreement and any order,
confirmation, acknowledgment or correspondence pertaining to
the subject matter hereof, the terms and conditions of this
Agreement shall govern and no change, modification, addition
in the terms and conditions of this Agreement shall be
binding on Company or Customer unless such change has been
expressly agreed to in writing by the parties hereto.
19. MISCELLANEOUS
This Agreement shall be governed by Colorado law. No
representations, warranties or agreements, oral or written,
express or implied, have been made by either party with
respect to this Agreement. Compliance with the terms of
this Agreement may only be waived in a writing signed by the
party waiving compliance with such terms. Should any
provision of this Agreement be found by a court to be
unenforceable or invalid, this Agreement shall be construed
as if the unenforceable or invalid provision were omitted.
This Agreement is binding upon the legal representatives and
successors in interest of the parties hereto.
20. ACCEPTANCE OF AGREEMENT
This Agreement must be signed and returned with your
confirming purchase order (which does not contain any other
terms and conditions) by January 16, 2004; after which date,
this Agreement becomes null and void.
Gambro BCT, Inc. HemaCare Corporation
- -------------------------- ---------------------------------
Customer: Full Corporate Name
/s/ Barbara Zahlen /s/ Judi Irving
- -------------------------- ---------------------------------
Signature Signature
Barbara Zahlen Judi Irving
- -------------------------- ---------------------------------
Name (Typed or Printed) Name (Typed or Printed)
Contract Administrator CEO
- -------------------------- ---------------------------------
Title Title
December 3, 2003 December 30, 2003
- -------------------------- ----------------------------------
Date Date
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FEI #
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EXHIBIT A
LEASE AGREEMENT PURCHASE
DESCRIPTION OF EQUIPMENT
QPP and Usage Equipment listed below is currently at customer
sites under the previous Quantity Purchase Program Agreement
(QPP) and is now transferred to this new Lease Installment Sale
Agreement.
QPP Equipment currently under the Agreement at HemaCare sites:
Equipment Serial/Lot Numbers
- ------------------------------------ --------------------------------
COBE SPECTRA(TM) Apheresis System 3086
- ----------------------------------------------------------------------
Trima Collection System 1T00177, 1T00178, 1T00179,
1T00180
- ----------------------------------------------------------------------
QPP Equipment currently under the Agreement at Coral Blood
Services Sites:
Equipment Serial/Lot Numbers
- ------------------------------------ ---------------------------------
COBE SPECTRA(TM) Apheresis System 4037, 2862, 2963
- -----------------------------------------------------------------------
Single-Needle Return Flow Controller 1396
- -----------------------------------------------------------------------
Spectra Seal Safe 2268
- -----------------------------------------------------------------------
SpectraTHERM(TM) Blood/Fluid Warmer 1232, 1400, 1399
- -----------------------------------------------------------------------
Trima(TM) System 1T00404, 1T00615, 1T00621,
1T00623, 1T00838, 1T00839,
1T00915
- -----------------------------------------------------------------------
Trima Seal Safe 0083, 0211, 0181, 0212, 0333,
0344, 0391
- -----------------------------------------------------------------------
Usage Equipment currently under the Agreement at HemaCare sites
(Title remains with Gambro BCT):
Equipment Serial/Lot Numbers
- ---------------------------------- -----------------------------------
COBE SPECTRA(TM) Apheresis System 2138, 2139, 4544, 4549, 4552
- ------------------------------------------------------------------------
Usage Equipment currently under the Agreement at Coral Blood Services
Sites (Title remains with Gambro BCT):
Equipment Serial/Lot Numbers
- ---------------------------------- -----------------------------------
COBE SPECTRA(TM) Apheresis System 963, 630
- ------------------------------------------------------------------------
Equipment to be added to this Lease Installment Sale Agreement:
(The equipment listed below is currently at Coral Blood Services
sites and was NOT included in the previous QPP Agreement.)
Catalog Description Quantity Serial Number #
- ----------- ----------------------- -------- -----------------------------
917-000-000 Trima Collection System 8 1T01179, 1T01178, 1T01175,
1T01181, 1T01304, 1T01302,
1T01338, 1T01572
- ------------------------------------------------------------------------------
917-100-000 Trima Seal Safe 8 0521, 0513, 0519, 0512, 0587,
0541, 0672, 0914
- ------------------------------------------------------------------------------
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SCHEDULE A: EQUIPMENT AND DISPOSABLES (continued)
Disposable Products - Pricing is firm for 12 months from date of
signature on this Agreement.
Spectra Disposable Products:
Catalog # Product Code Description Price/Procedure
- --------- ------------ ------------------------------------ ---------------
CPT1003 70500 Therapeutic Plasma Exchange (TPE) $106.00
Set, 6/case
- -------------------------------------------------------------------------------
CPT1005 777-006-000 White Blood Cell (WBC) Removal $106.00
Set, 6/case
- -------------------------------------------------------------------------------
CPT1007 70700 Red Blood Cell (RBC) Exchange Set, $140.00
6/case
- -------------------------------------------------------------------------------
CPT1112 777-003-015 Dual Needle (DN) Extended Life $120.00
Platelet (ELP) Set w/LRS Chamber,
6/case
- -------------------------------------------------------------------------------
CPT1119 777-003-215 Single Needle (SN) Extended Life $120.00
Platelet (ELP) Set w/LRS Chamber,
6/case
- -------------------------------------------------------------------------------
Trima Disposable Products:
Catalog # Product Code Description Price/Procedure
- --------- ------------ ------------------------------------ ---------------
CPT1081 777-800-100 Trima RBC, Platelet, Plasma Set, $140.00
6/case
- -------------------------------------------------------------------------------
CPT1280 777-800-150 Trima RBC, Platelet, Plasma +TLR $158.00
filter, 6/case
- -------------------------------------------------------------------------------
CPT1182 777-800-200 Trima RBC Plasma Set, 6/case $60.00
- -------------------------------------------------------------------------------
CPT1282 777-800-250 Trima Plasma, RBC +TLR filters, $100.00
6/case
- -------------------------------------------------------------------------------
CPT1340 777-800-400 Trima Accel RBC, Platelet, $166.00
Plasma, 6/case
- -------------------------------------------------------------------------------
CPT1345 777-800-450 Trima Accel RBC, Platelet, Plasma $184.00
w/TLR filter, 6/case
- -------------------------------------------------------------------------------
CPT1350 777-800-500 Trima Accel RBC/Plasma, 6/case $60.00
- -------------------------------------------------------------------------------
CPT1355 777-800-550 Trima Accel RBC/Plasma w/TLR $100.00
filter, 6/case
- -------------------------------------------------------------------------------
TERM: 60 Months
MONTHLY LEASE
INSTALLMENT PRICE: $17,083.32