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(10) (i) Lease Purchase Agreement between the Company and X. Xxxxx
Medical, Inc. dated August 24, 1995.
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LEASE AGREEMENT
1290895
Date: August 24, 1994
BETWEEN:
("LESSOR") and ("LESSEE")
X. XXXXX MEDICAL INC. Medicore Inc.
BLOOD TREATMENTS DIVISION 0000 X. 00xx Xxxxxx
000 XXXXXXX XXXXXX Xxxxxxx, Xxxxxxx 00000
XXXXXXXXX, XX 00000
EQUIPMENT
QUANTITY DESCRIPTION ("COLLATERAL") S E R I A L
NUMBERS
10 New HD-SECURA DIALYSIS UNITS 288,289,290,618,619
000 XXX - HeB version with BP cuff 620,621,622,623,624
SINGLE BLOOD PUMP - 10/20 amplifiers
STANDARD ACCESSORIES PACKAGE
7 New HD-SECURA DIALYSIS UNITS 304,305,306,307,404,
000 XXX - HeB version with BP cuff 412,405
SINGLE BLOOD PUMP - 10/20 amplifiers
STANDARD ACCESSORIES PACKAGE
"EQUIPMENT LOCATION"
10 HD-securas Dialysis Services of PA (Lemoyne)
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
7 HD-securas Dialysis Services of PA (Wellsboro)
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
HD-secura purchase price with BP cuff is $12,000 each. Total Lease amount is
$204,000.
TERM PAYMENT/MONTH TOTAL PAYMENTS
---- ------------- --------------
$1 Buy-out Option
60 months $4,435/month $266,100
ADVANCE PAYMENT
Last two monthly payments are due with and upon Execution and Return of Lease
Agreement.
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TERMS AND CONDITIONS
1.0-THE LEASE. Lessor leases to Lessee and the Lessee rents from Lessor the
equipment listed above or, if separately scheduled, in the schedule hereto
annexed, marked Schedule "All and made a part hereof,for the lease term
specified above and on the terms and conditions stated in this agreement. Said
equipment will be located at the above equipment location address and will not
be moved to a new location without written permission first given by Lessor.
1.1-If the Lessee is desirous of canceling this lease prior to the rental
period commencement date and the Lessor accepts said cancellation, the Lessor
can retain the Advance Payment to offset the expense incurred.
1.2-Lessee hereby acknowledges that he has received a copy of this lease.
1.3-Lessee hereby authorizes Lessor to insert in this lease the serial numbers,
and other identification data, of the equipment when determined by Lessor.
2.0-LEASE PAYMENTS. The obligation to make Lease Payments begins upon delivery
and acceptance. Lessee shall make Lease Payments, in advance, on the date or
dates specified by Lessor in a notice to Lessee. Lease Payments shall be paid
at the office of Lessor or at any other place specified by Lessor. Advance
Payment is due on signing of the lease specifying such amount. If any part of
a payment is more than ten days late, Lessee shall pay a late charge of 10% of
the payment, all or a portion of which is late(or such lesser rate as is the
maximun rate allowable under applicable law).
3.0-DELIVERY AND ACCEPTANCE. Lessor will ship the Equipment directly to
Lessee. Lessee shall take delivery and upon installation and acceptance of the
Equipment will sign and deliver to Lessor the Certificate of Delivery and
Acceptance submitted by Lessor. If Lessee has not, within 10 days after
delivery of the Equipment, delivered to Lessor written notice of any
non-acceptance of the Equipment, specifying the reasons therefore and fully
referencing the lease. Lessee shall be deemed to have irrevocably accepted the
Equipment under the lease. If Lessee properly rejects the Equipment in
accordance with the foregoing including reasonable time and efforts to cure
said defects(s), then Lessor and Lessee shall be relieved of all obligations or
liabilities under the lease. Lessor shall retain any Advance Lease Payment as
liquidated damages for loss of a bargain and not as a penalty, and Lessee shall
be responsible for paying for the safe return of the equipment and related
reasonable costs of freight, repair necessitated by Lessee negligence, and
standard restocking charges. The validity of the lease will not be affected by
any delay in Lessee's receipt of the Equipment.
4.0.-RIGHT OF INSPECTION: CONDITION. Lessor may inspect the equipment at any
time: and Lessee agrees to keep it in first class condition and repair at
Lessee's expense and house the same in suitable shelter, and not to sell or
otherwise dispose of this interest therein or any equipment or accessories
attached thereto. Lessee agrees to furnish Lessor upon request current
financial statements reflecting the Lessee's financial status during the term
of the contract.
5.0. TITLE to EQUIPMENT. No title or right in said equipment shall pass to
Lessee except the rights herein expressly granted under Rider I. - The Purchase
Option. Plates or other marking have
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been affixed to or placed on said equipment by Lessor. Lessee will not remove
the same. Upon the termination of the initial lease period, unless Purchase
Option is exercised, Lessee will immediately crate, insure and ship the
equipment and operating manuals to whatever destination Lessor shall direct,
all at Lessee's expense, in as good condition as received, less normal wear and
tear, said destination to be confirmed by Lessee prior to shipment. Lessee
agrees to pay Lessor monthly rent at the rate specified for the initial term
for any month or part thereof from the end of the initial term until the
equipment is received by Lessor. Said equipment shall always remain and be
deemed personal property even though attached to realty. All replacements,
accessories, or capital improvements made to or placed in or upon said
equipment shall become component parts thereof and title thereto shall be
immediately vested in Lessor and shall be included under the terms hereof. The
Lessee agrees that the Lessor is authorized, at its option, to file financing
statements or amendments thereto without the signature of the Lessee with
respect to any or all of the lease property and, if a signature is required by
law, then the Lessee appoints Lessor as Lessee's attorney-in-fact to execute
any such financing statements and further agrees to pay the Lessor a fee of
twenty-four dollars and fifty cents($24.50) to cover the expense of making such
filing(s).
6.0. RIGHT OF ASSIGNMENT. Lessor may assign the lease and its assignee may
assign the same. All rights of Lessor hereunder shall be succeeded by any
assignee hereof and said assignee's title to this lease to the rental herein
provided for to be paid, and in and to said equipment shall be free from all
defense, setoffs or counterclaims of any kind which Lessee may be entitled to
assert against Lessor, Lessee hereby waiving the same as against such assignee
it being understood and agreed that any assignee of Lessor does not assume
obligations of the Lessor herein named. It is further understood and agreed,
however, that Lessee may separately claim against Lessor as to any matters
which Lessee may be entitled to assert against Lessor. Lessee shall not assign
mortgage or hypothecate this lease or any interest herein or sublet said
equipment without the prior written consent of the Lessor. Any assignments,
mortgage, hypothecation or sublease by Lessee without such consent shall be
void.
7.0 RISK OF LOSS: INSURANCE COVERAGE. Lessee assumes the entire risk of
loss or damages to the equipment, whether or not covered insurance, and no such
loss shall relieve Lessee of its obligation hereunder. Lessee agrees to keep
the equipment insured and provide proof of insurance to Lessor, to protect all
interests of Lessor, at Lessee's expense, against all risks of loss or damage
from any cause whatsoever for not less than the unpaid balance of the lease
rentals due hereunder or eighty(80%)per cent of the then current value of said
equipment, whichever is higher; and to purchase insurance in an amount
reasonable under the circumstances to cover the liability of Lessor for public
liability and property damage. The proceeds from said insurance policy as they
relate to subject equipment and any unpaid lease payments related thereto shall
be the sole property of Lessor and Lessor shall be named as an insured in all
said policies and as sole loss payee in the policies insuring the equipment.
Each policy shall expressly provide that said insurance as to Lessor and its
assigns shall not be invalidated by any act, omission or neglect of Lessee and
cannot be canceled without ten(10)days prior written notice to Lessor. As to
each policy, Lessee shall furnish Lessor a Certificate of Insurance and copy of
policy from the insurer reflecting the coverage required by this paragraph on
or before Commencement date of Lease. The proceeds by such insurance whether
resulting from loss or damage or return of premium or otherwise, shall be
applied toward the replacement or repair of the said equipment or the payment
of obligations of Lessee hereunder at the option of Lessor. Lessee hereby
appoints Lessor as Lessee's attorney-in-fact to make claim for, receive payment
of and execute or endorse all documents, checks or drafts for loss or damage or
return premium under any insurance policy issued on said equipment. Lessee
agrees to pay Lessor
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an insurance fee monthly with the rental payment equal to one quarter of one
(.25%)per cent of equipment cost in lieu of, or until the provisions of this
paragraph are met.
8.0 INDEMNIFICATION. Lessee does hereby agree to indemnify and hold
Lessor free and harmless against all claims, loss, liability and expense
(including attorneys' fees)resulting from any loss or damage to the equipment
and for injuries to, or deaths of persons, and damage to property, howsoever
arising, directly or indirectly from or incident to the use, operation or
storage of the equipment and whether such injury or death to persons be to
agents or employees of the Lessee or to third parties; it being specifically
agreed to and acknowledged by the Lessee that the foregoing provision includes
but is not limited to all claim, loss, liability and expense(including
attorneys' fees)occurring by reason of any negligence(active or
passive),omission or other act or conduct of the Lessor or any third party
acting for or on behalf of the Lessor.
9.0 USE: TAXES AND FEES. Lessee agrees to use, operate and maintain said
equipment in accordance with all laws; to pay all licensing and registration
fees for said equipment; to keep the same free from levies,liens and
encumbrances; to pay all taxes, assessments, fees and penalties which may be
levied or assessed on or in respect to said equipment or its use or any
interest therein, or rental payments thereon including but not limited to all
federal, state and local taxes, however designated, levied or assessed upon the
Lessee and Lessor or either of them or said equipment, or upon the sale,
ownership, use or operation thereof. If not paid directly by Lessee, then
Lessee agrees to pay Lessor thirty-five hundredths of one (.35%) per cent of
equipment costs per month to be escrowed and applied to personal property tax
cost. Lessor may pay such taxes and other amounts and may file such returns on
behalf of Lessee if Lessee fails to do so as provided herein. Lessee agrees to
reimburse Lessor for reasonable costs incurred in collecting any charges,
taxes, assessments or fees for which Lessee is liable hereunder.
10.0 REIMBURSEMENT. All advances made and costs incurred by lessor to preserve
said equipment or to discharge and pay any taxes, assessments, fees, penalties,
liens or encumbrances thereon shall be added to the unpaid balance of rentals
due hereunder and shall be repayable by Lessee to Lessor immediately together
with interest thereon at the rate of one and three quarters(1-3/4%)per cent per
month until paid.
11.0 EVENT OF DEFAULT. In the event Lessee shall default in the payment of any
rent, additional rent or any other sums due hereunder or in the event of any
default or breach of the terms and conditions of this lease, or any other
agreement between the parties hereto, or if any execution or other writ or
process shall be issued in any action or proceeding, against the Lessee,
whereby the said equipment may be taken or distrained, or if a proceeding in
bankruptcy, receivership or insolvency shall be instituted by or against the
Lessee or its property, or if the Lessee shall enter into any agreement or
composition with its creditors, breach any of the terms of any loan or credit
agreement, or default thereunder, or if the condition of the Lessee's affairs
shall so change as to, in the Lessor's opinion, impair the Lessor's security or
increase the credit risk involved, or the Lessee shall merge, consolidate or
transfer all or substantially all of its assets, then and in the event the
Lessor shall have the right to: (1) retake immediate possession of its
equipment without any Court Order or other process of law and for such purpose,
the Lessor may enter upon any premises where said equipment may be and may
remove the same therefrom with or without notice of its intention to do same,
without being liable to any suit or action or other proceedings by the Lessee.
Lessor may, at its option, sell the equipment at public or private sale for
cash or on credit and may become the purchaser at such sale. Lessee shall be
liable for arrears of rent, if any, the expense of retaking possession and the
removal of the equipment, court costs, in addition to the balance of the
rentals
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provided for herein, or in any renewal hereof and a reasonable attorney's fees
not to be less than an amount equal to twenty-five(25%)per cent of the balance
due at the time it is placed with an attorney; and/or (2)accelerate the
balance of rentals and other sums payable hereunder, thereby requiring
prepayment of this lease, with all such sums due and payable forthwith upon
such notice of acceleration and demand for payment. Should Lessee fail to make
such payment after this notice and demand, Lessor shall be entitled to
institute appropriate legal proceedings against Lessee with the Lessee being
responsible for said sums, court costs, and a reasonable attorney's fee. The
dual rights granted the Lessor herein, shall be cumulative, and action upon one
shall not be deemed to constitute an election or waiver of the other right of
action, or any other right to which Lessor may be entitled. All sums due under
the calculations above shall become immediately due and payable an are to be
construed as liquidated damage rather than a penalty provision. The Lessee
shall remain and be liable for the return of the equipment and any loss of,
destruction of, or injury to the equipment in the same manner as herein
provided. Lessee hereby waives trial by jury in any actin or proceeding
arising hereunder. Whenever any payment is not made when due hereunder,
interest shall accrue and be payable on the amount due at the rate of one and
three quarters(1-3/4%)per cent per month or any portion thereof until paid.
12.0 LATE CHARGES. In the event a rent payment of personal property tax
payment is not made when due hereunder the Lessee promises to pay(l)a late
charge to the Lessor or his assigns not later than one month thereafter, in an
amount calculated at the rate of ten cents per one($1.00)dollar of each such
delayed payment or fifteen($15)dollars, whichever is greater(2)interest to the
Lessor upon each delayed payment calculate at the rate of one and three
quarters(1-3/4%)per cent-per month, or any part thereof, cornmencing one month
after the due date of the first delayed payment. In the event charges other
than rent and/or personal property tax are not paid when due, Lessee promises
to pay interest at the rate of one and three quarters(1-3/4%)per cent per month
on any part thereof commencing on the due date. The late charge and/or the
interest payments set forth in this contract shall apply only when permitted by
law and, if not permitted by law, the late charges and/or interest payments
shall be calculated at the maximum rate permissible by law. Lessee shall
reimburse Lessor for time and expense incurred by Lessor in collecting any
amounts due and owing and not timely paid under this Lease, such reimbursement
to be at Lessor's standard rates for collection procedures which are hereby
agreed to be not less than fifteen dollars and fifty cents($15.50)for each
telephone inquiry and fifty($50.00)dollars for each personal contact made by
any employee or agent of Lessor.
13.0 GENERAL PROVISIONS. The omission by the Lessor at any time to enforce
any default or right reserved to it, or to require performance of any of the
terms, covenants or provisions hereof by the Lessee at any time designated,
shall not be a waiver of any such default or right to which the Lessor is
entitled, nor shall it in any way affect the right of the Lessor to enforce
such provisions thereafter. The Lessor may exercise all remedies
simultaneously, pursuant to the terms hereof, and any such action shall not
operate to release the Lessee until the full amount of the rentals due and to
become due and all other sums to be paid hereunder have been paid.
13.1. The provisions of this agreement apply to and bind the
heirs,executors, administrators, successors and assigns of the respective
parties hereto.
13.2. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE AND BETWEEN THE PARTIES HERETO RELATIVE TO THIS LEASE ARE
MERGED IN THIS AGREEMENT, WHICH CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING
OF THE PARTIES
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HERETO, AND NEITHER PARTY RELIES UPON ANY OTHER STATEMENT OR REPRESENTATION.
THIS AGREEMENT MAY NOT BE MODIFIED OR CANCELED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY THE LESSEE AND A CORPORATE OFFICER OF THE LESSOR.
13.3. The parties hereto agree that the equipment subject to this lease
shall remain as personal property and shall not, in any case, become part of
the real property on which it is placed. The Lessee shall maintain each unit
of equipment so that it may be removed from the building in which it is placed
without damage to such building, and shall obtain a landlord waiver with
respect to any such property located in building not owned by Lessee.
13.4. Anything herein contained to the contrary notwithstanding, the title
to the equipment subject to this Lease is retained by the Lessor and the Lessee
covenants that it will not pledge or encumber the equipment in any manner
whatsoever, nor permit any liens to attach thereto. The Lessee further agrees
that it (a)will not permit its right or interests hereunder to be subject to
any lien, charge or encumbrance, and(b)will keep each unit of equipment free
and clear of any and all liens, charges and encumbrances which may be levied
against or imposed on such unit of equipment as a result of the failure of the
Lessee for any reason to perform or observe any of the covenants and agreements
required to be performed or observed by the Lessee hereunder.
13.5. This Agreement shall be governed and interpreted in accordance with
the laws of the State of Pennsylvania and, for the purpose of resolving
any-issue pertaining to conflict of laws, this Agreement shall be deemed to be
fully and solely executed, performed and/or observed in the State of
Pennsylvania. The parties hereto expressly consent to personal jurisdiction of
the State of Pennsylvania any action or proceeding brought in any court
therein, state or federal, arising from or alleging facts arising from the
transactions contemplated herein.
13.6. You agree that service of process for any such action or process shall
be valid if mailed by certified mail, return receipt requested with delivery
directed to either you, your registered' agent, or any agent you appoint in
writing to accept such process.
BY EXECUTING BELOW THE PARTIES AGREE TO BE BOUND BY THE ABOVE TERMS
AND CONDITIONS. THE PERSONS EXECUTING REPRESENT THAT THEY HAVE AUTHORITY TO
BIND THEIR RESPECTIVE PARTIES TO THIS AGREEMENT.
By: /s/ Xxxx Xxxxxxxx
-----------------
XXXX XXXXXXXX,
GENERAL COUNSEL
FOR X. XXXXX MEDICAL INC.
(LESSOR)
By: /s/ Xxxxxx Xxxxxx
-----------------
XXXXXX XXXXXX
SENIOR VICE PRESIDENT,
FINANCE MEDICORE, INC.
(LESSEE)
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CORPORATE LEASING RESOLUTION
I, Xxxxxx X. Xxxxx, do hereby certify that I am duly elected and qualify Asst.
Secretary of Medicore Inc., a Corporation, organized, existing, and in good
standing under the laws of the state of Florida; that the following is a true
and correct copy of resolution duly adopted by the Board of Directors of said
corporation at a meeting of said Board of Directors on the 23rd day of August
1995, and that said resolutions are now in full force and effect:
"RESOLVED: That the
Authorized Representative- Sr. Vice President - Xxxxxx X. Xxxxxx
of this corporation be and hereby is authorized and directed to negotiate,
execute, and deliver on behalf of this corporation a lease agreement and all
schedules and documents thereto, with X. Xxxxx Medical Inc., Blood Treatments
Division, as (Lessor), whereby this corporation will lease various items of
property to be used in the operation in the business of the corporation on
terms and conditions which shall be determined by said officers to be advisable
and in the best interests of this corporation and the execution of such lease
agreements by said officers shall be conclusive of their approvals thereof.
BE IT FURTHER RESOLVED: That the Secretary be and hereby is authorized to
furnish to Lessor a certified copy of this resolution which shall remain in
full force and effect until and unless withdrawn by vote at a meeting of
Directors only as to leases hereafter made and only after notification to
Lessor.
In witness whereof, I have affixed my name as Asst. Secretary of said
corporation and have caused the corporate seal of said corporation to be
hereunto affixed this 23rd day of August, 1995
By: /s/ Xxxxxx X. Xxxxx
------------------------
Assistant Secretary
Xxxxxx X. Xxxxx
Affix Corporate Seal Here
(if Available)
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SCHEDULE TO UCC-1
August 1995
LEASE # 1290895
LOCATION:
10 HD-securas Dialysis Services of PA (Lemoyne)
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
7 HD-securas Dialysis Services of PA (Wellsboro)
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
QUANTITY DESCRIPTION ("COLLATERAL") S E R I A L
NUMBERS
10 New HD-SECURA DIALYSIS UNITS 288,289,290,618,619
000 XXX - HeB version with BP cuff 620,621,622,623,624
SINGLE BLOOD PUMP - 10/20 amplifiers
STANDARD ACCESSORIES PACKAGE
7 New HD-SECURA DIALYSIS UNITS 304,305,306,307,404,
000 XXX - HeB version with BP cuff 412,405
SINGLE BLOOD PUMP - 10/20 amplifiers
STANDARD ACCESSORIES PACKAGE
Customer Certification
I hereby certify that, on behalf of Medicore, Inc the equipment described above
has been delivered and received in proper working condition and accepted by the
undersigned as satisfactory on this 24th of August 1995.
Date: August 24, 1995
--------------------
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
Senior Vice President
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OPTION TO PURCHASE
RIDER I
X. XXXXX MEDICAL INC., The Lessor named in a certain Equipment Lease dated
July 26, 1995 number 1290895 does hereby grant to Medicore Inc. the Lessee
named in said Lease, the option to Purchase the equipment leased thereby, as a
whole and not in part, and on an as-is where-is basis, at the end of the
original or any renewal term of said Lease. This option shall expire and
become null and void if Lessee shall be in default for a period of thirty (30)
days or longer. This option may be exercised by Lessee only upon giving not
less than thirty (30) days nor more than sixty (60) days, prior written notice
to Lessor, and accompanied by the purchase option price of $ 1 plus applicable
tax.
LESSOR: LESSEE:
X. XXXXX MEDICAL INC Medicore Inc.
BLOOD TREATMENTS DIVISION
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
----------------- ------------------
Date: Date:
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