Exhibit 10X
Hewlett-Packard Financing Agreement No. MA
Financing Agreement -------------------------
Lessee XxXxxxxx.xxx & MedCare Technologies, Inc.
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Lessor hereby agrees to finance for Lessee and Lessee hereby agrees to finance
with Lessor, subject to the terms of this Financing Agreement ("Agreement"), the
personal property together will all attachments, replacements, parts,
substitutions, additions, software licenses, repairs, support, consulting, and
accessories incorporated/affixed, whether or not provided by Hewlett-Packard
("Product") described in any Lessor Product Schedule ("Schedule") executed by
the parties pursuant to this Agreement.
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1. Non-Cancellable
This Agreement shall be effective as of the date of execution by both parties.
THIS AGREEMENT AND ANY SCHEDULES EXECUTED HEREUNDER CANNOT BE CANCELLED OR
TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN.
2. Rent; Acceptance of Product
Lessee shall pay to Lessor for use of the Product during the initial and any
renewal term of any Schedule, the payment amount specified on said Schedule
("Rent"). Lessee's acceptance will be presumed unless Lessee demonstrates
within 14 days after delivery that the Product is not acceptable. Lessor
reserves the right to charge interest on any balance which exceeds 30 days past
due. Rent shall begin to accrue upon delivery and acceptance of Product ("Rent
Commencement Date"). Rent shall accrue whether or not Lessee has received
notice that such payment is due.
3. Taxes; Insurance
Lessee agrees to pay to Lessor, when due, all license fees, assessments, sales,
use personal property, excise, and other, taxes except for taxes based on
Lessor's income, now or hereafter imposed on the Product or the possession,
operation or use thereof. Lessee shall obtain and maintain liability insurance
against loss or damage to the Product. Upon request, Lessee shall furnish to
Lessor a Certificate of Insurance or other evidence of insurance coverage.
4. Loss or Damage
Lessee shall bear the entire risk of loss or damage to the Product from any
cause whatsoever from the date of delivery until it is returned and received by
Lessor. Lessee shall promptly notify Lessor of any loss or damage. No loss or
damage shall relieve Lessee of the obligation to pay Rent or perform any other
obligation hereunder. In the event of loss or damage, Lessee, at Lessor's
option, shall either place the Product in good condition and repair or pay
Lessor the buyout option price set out in the applicable Schedule.
5. Intellectual Property Rights
Unless otherwise stated in writing by Lessor, Lessor copyrighted material
(software and printed documentation) may not be copied except for archival
purposes, to replace a defective copy or for program error verification. If
Lessor's software license is included in Product, then Lessor's standard
software terms shall apply. Lessor will defend or settle any claims against
Lessee that an HP Product or Support delivered under this Agreement infringes a
patent, utility model, industrial design, copyright, mask work or trademark in
the country where Lessee uses the HP Product or receives Support, provided
Lessee: (i) promptly notifies Lessor in writing of the claim; and (ii)
cooperates with Lessor in, and grants Lessor sole authority to control the
defense and any related settlement. Lessor will pay the cost of such defense
and settlement and any costs and damages finally awarded by a court against
Lessee. If such a claim is made, Lessor may produce the right for Lessee to
continue using HP Product, may modify the Product or replace it. If use of the
HP Product is enjoined by a court and Lessor determines that none of these
alternatives is reasonably available, Lessor will take back the HP Product and
refund its depreciated value if a purchase option has been exercised. Lessor
has no obligation for any claim of infringement arising from: (i) Lessor's
compliance with any designs, specifications or instructions of Lessee; (ii)
modification of the HP Product by Lessee or a third party; (iii) use of the HP
Product in a way not specified by Lessor; or (iv) use of the HP Product with
Non-HP products not supplied by Lessor. These terms state the entire liability
of Lessor for claims of infringement.
6. Identification; Personal Property
If Lessee is in compliance with the terms of this Agreement and applicable
Schedules, Lessee shall have quiet enjoyment of the Product. No other right,
title or interest shall pass to Lessee. Lessor, at its own expense, may require
markings to be affixed to or placed on the Product to give notice of Lessor's
ownership thereof. Both parties hereby confirm their intent that the Product
shall always remain and be deemed personal property even though said Product may
hereafter become attached or affixed to real property.
7. Use; Relocation; Assignment
Lessee will operate the Product in accordance with manufacturer's manuals and
instructions, by competent and duly qualified personnel only, in accordance with
applicable governmental regulations, if any, and for business, medical,
scientific, or commercial purposes only, and not for personal use. Lessee
agrees not to sell, assign, sublet, hypothecate or otherwise encumber or suffer
a lien upon or against any interest in this Agreement, any Schedule hereunder,
or the Product. Lessee agrees not to alter the Product or remove the Product
from its original location without Lessor's prior written consent. Relocation
by Lessor's support personnel shall not constitute Lessor's consent.
8. Support; Repairs
If lessee finances Support provided by Lessor the tern of the financed support
is non-cancellable. Lessee acknowledges that the finance period and Support
period may not correspond. If no order for Support is made, Lessee at its own
costs and expense, shall keep the Product in good repair, condition and working
order.
9. Warranty
For HP Product, Lessee shall have the benefit of applicable manufacturer's
warranties which are normally furnished to purchasers of identical product
manufactured by HP. THIS WARRANTY IS EXCLUSIVE AND NO OTHER WARRANTY, WHETHER
WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. LESSOR SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABLILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Non-HP Product; Non-HP Vendor
Lessee acknowledges that it has selected the Vendor and Product supplied by
Vendor. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED WHATSOEVER WITH RESPECT TO
VENDOR'S PRODUCT, AND AS TO LESSOR, LESSEE ACQUIRES THE PRODUCT "AS IS". If
Vendor's Product is unsatisfactory for any reason, Lessee shall make any claim
on account thereof solely against Vendor and shall, nevertheless, pay Lessor all
payments due under the Agreement. It is Lessee's sole responsibility to acquire
updates or other necessary documentation to Vendor's Product. If Lessee should
forfeit any rights granted to Lessee, or if Vendor terminates any rights granted
to Lessee, payment shall continue uninterrupted to Lessor. Lessee agrees that
it will not assert any defenses, deduction, abatement, counterclaim or set-off
against Lessor. Lessee understands and agrees that neither Vendor nor any
employee, agent, representative of Vendor is an agent of Lessor. No agent of
Vendor is authorized to waive or alter any terms or conditions of this
Agreement, and no representations as to the Vendor's Product or any other matter
by Vendor shall in any way affect Lessee's obligations under this Agreement.
11. Return of Product
Upon expiration or termination, Lessee, at its own risk and expense, shall have
the Product packed for shipment in accordance with manufacturer's specifications
and shall immediately return the Product to Lessor in the same condition as when
delivered, ordinary wear and tear excepted, freight prepaid and insured, to
Lessor's remarketing facility.
12. Limitation of Liability
Lessor will be liable for damage to tangible property per incident up to greater
of $300,000 or the actual charges paid to Lessor for the Product that is subject
of the claim, and for damages for bodily injury or death, to the extent that
all such damages are by a court of competent jurisdiction to have been directly
caused be a defective Product financed hereunder. Lessor will not be liable for
performance delays or for non-performance, due to causes beyond its reasonable
control. For any material breach of Support services by HP, Lessee's remedy and
Lessor's liability will be limited to a refund of the related Support charges
paid during the period of breach, up to a maximum of 12 months. THE REMEDIES
PROVIDED XXXXX ARE LESSEE'S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL
LESSOR BE LIABLE FOR LOSS OF DATA OR FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL (INCLUDING LOST PROFIT), OR OTHER DAMAGE WHETHER BASED IN
CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
13. Events of Default; Remedies
If Lessee fails to pay Rent when due and fails to cure such breach within (10)
days of notice of same, or in the event of any other breach of this Agreement,
any Schedule hereunder, or any other Agreement between the parties hereto, or if
any credit or other information submitted to Lessor is false or misleading in
any material respect, or in the event of any act of insolvency or bankruptcy by
or against Lessee, Lessor may, at its option, exercise any one or more of the
following remedies: (i) declare all sums due and to become due as immediately
due and payable; (ii) enter upon the premised where the Product is located and
take immediate possession of and remove the same; (iii) sell any or all of the
Product at public or private sale or otherwise dispose of, hold, use or lease to
others said Product; (iv) exercise any other right or remedy which may be
available to Lessor under applicable law, including the right to recover damages
for the breach hereof. No remedy referred to herein is intended to be exclusive
but each shall be cumulative and in addition to any of the remedies referred to
above or otherwise available to Lessor a law or in equity. No express or
implied waiver by Lessor of any default should constitute a waiver of any other
default or a waiver of any of Lessor's rights. If any action is brought by
either party to enforce this Agreement or to protect its interest in the
Product, the losing party agrees to pay costs thereof including reasonable
attorneys' fees and other costs of collection.
14. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of California. Nothing herein shall be deemed to preclude or prevent
Lessor from bringing any action or claim to enforce the provisions of this
Agreement in any appropriate state or forum.
15. Financing Statements
Lessee hereby grants and Lessor reserves a Purchase Money Security Interest in
the product financed hereunder and any proceeds thereof. Lessee hereby
nominates and appoints Lessor as its attorney-in-fact for the sole purpose of
executing on Lessee's behalf financing statements (and any appropriate
amendments thereto) under the provisions of the Uniform Commercial Code for
protective purposes, related to this Agreement and any Schedule hereunder.
16. Miscellaneous
(a) This Agreement, together with any Schedules hereunder, and any referenced
addenda, exhibits or attachments shall constitute the entire understanding
between the parties and supersedes any previous communications, representations,
or agreements, whether oral or written; (b) any notice or demands made hereunder
shall be in writing and by regular mail or facsimile; (c) No charge or
modification of any term or condition hereof shall be valid unless made in
writing and signed by an authorized representative of each party; (d) Any
provisions of this Agreement which is unenforceable in any jurisdiction shall as
to that jurisdiction only be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof.
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By execution hereof, the signer on behalf of Lessee hereby certifies that s/he
has read this Agreement and the referenced Exhibits, and that s/he is duly
authorized by Lessee to execute the Agreement.
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Lessor: Hewlett-Packard Company Lessee: XxXxxxxx.xxx
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By_______________________________ By________________________________
Name_____________________________ Name Xxxx Xxxxxxxx
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Title_____________ Date__________
Title CFO Date 5-17-00
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Co-Lessee: MedCare Technologies, Inc.
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Name Xxxx Xxxxxxxx
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Title CFO Date 5-17-00
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Hewlett-Packard
Product Schedule & Payment Arrangement
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Company Full Legal Name XxXxxxxx.xxx & MedCare Technologies, Inc.
Information: ---------------------------------------------
Street Address 0000 Xxxx 00xx Xxxxxx, Xxxxx 0000
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Please use the full legal City Oak Brook County Du Page
Name of your company ----------- ---------------
State Illinois Zip Code 60523
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Tax Status Federal Tax I.D. # 00-0000000
(attach documentation -----------------------------------
if applicable)
Contact Xxxx Xxxxxxxx Phone (000)000-0000
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Sales/Use tax [X] Taxable [_] Direct Pay Permit [_] Tax exempt
Personal property tax [X] Paid Upfront [_] Billed Upfront (financed) [_] Billed with each payment
[_] Include in rate [X] Xxxx as additional [_] Lessee pays directly
[_] Lessee is exempt
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Product Location Street Address Same as above
(if other than above) ---------------------------------------------
City ___________________ Country ___________________
State __________________ Zip code __________________
Billing Address Street Address Same as above
(if other than above) ---------------------------------------------
City ___________________ Country _____________
State __________________ Zip code _____________
Contact ________________ Phone _______________
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Our [X] Master Lease # MA
Agreement ---------------
Includes: [_] First year support Coverage [_] Multi Year Support Coverage
The items checked [X] Early Buyout Schedule dated 5-16-2000 [_] ___________________________
are incorporated and by ---------
this reference made a
part of this agreement
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Please see the attached Quotation from Comark dated May 3, 2000 in the amount of $198,197.00
The
Product
Schedule:
Please attach Net Price - Hardware $159,677.00 Total Net Price - Product $197,402.00
Equipment Quote ----------- -----------
Or complete this Net Price - Software Misc $445.00
Schedule. ----------- -------
APC, Cisco & Procurve $17,769.00 Freight $350.00
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Microsoft Software $19,956.00 Less: Down Payments/Credits $29,730.00
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Total Net Price - Product $197,402.00 Amount to Finance $168,467.00
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Lease Term Number of Payments Payment Frequency Payment Amount
Payments: (plus applicable taxes)
6 6 Monthly $0.00
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18 18 Monthly $11,080.07
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Hewlett-Packard Financing Agreement______25853A_________
Product Schedule & Payment Agreement
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This agreement is for an: [X] HP Lease [_] HP Installment
[_] HP Rental [_] HP Easy Rent
[_] _________ [_] ____________
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1. Non-cancellable: THIS AGREEMENT CANNOT BE CANCELLELLED OT TERMINATED EXCEPT
AS EXPRESSLY PROVIDED FOR HEREIN.
2. Term: The term of this Schedule and Agreement for each Product covered
hereunder shall commence upon the date Lessor executes the same and shall
expire 24 months following the "Rent Commencement Date" as defined in
paragraph 2 of the Financing Agreement, or on the expiration of any
applicable renewal period. However, if Lessee has executed this Schedule and
the Product ordered has been delivered prior to Lessor's execution thereof,
the term of this Schedule and Agreement shall be effective on the date of
execution by Lessee.
3. Interest: [Applicable only to Installment sales and leases with $1.00 buy
out options] The interest to be paid under this Schedule and Payment
Agreement is $30,974.26.
4. Purchase, Renewal, Return Options: Provided that no event of default has
occurred and is continuing to occur at the end of the initial non-
cancellable lease term or subsequent renewal term, Lessee shall have the
option to exercise the following options by providing Lessor with at least
sixty (60) days prior written notice of its intent to:
(i) purchase all or some of the Product covered by this Agreement
for:
(CHECK ONE)
[_] The then fair market value of each Product to be purchased. Lessor
will advise Lessee in writing as to the then applicable Fair Market Value
for each Product to be purchased;
OR
[X] One Dollar ($1.00) for each Product (available only for State and
Local Government Leases or with special approval);
OR
[_] Fixed Purchase Option of _____% of the original amount to finance of
the Product to be purchased (less discounts if applicable) plus any
accrued late charges and taxes applicable to the transfer of this
Product.
(ii) Except for HP ChannelRent and EasyRent, renew all or some of the
Equipment covered by this Agreement for an additional non-
cancellable period of twelve (12) months for the:
Net Price of Equipment to be Renewed Original
------------------------------------ X Monthly x 75%
Total Net Price of Equipment Payment
(iii) Renew all or some of the Product covered by this Agreement on a
month-to-month basis for the:
Net Price of Equipment to be Renewed Original
------------------------------------ X Monthly
Total Net Price of Equipment Payment
(iv) Return in accordance with the referenced Financing Agreement any
Product covered by this Schedule that is not purchased or
renewed. If Lessee fails to notify Lessor of its intentions at
least sixty (60) days prior to the expiration of this Schedule,
it is agreed that Lessee shall renew all of the Product covered
hereunder in accordance with option (iii) above.
During the renewal period, Lessee may purchase all or some of the Product
covered hereunder for the price computed in accordance with option (i) above by
providing Lessor with sixty (60) days prior written notice. If Lessee has
selected a fixed-price purchase option, during the renewal period, such purchase
option shall be re-determined based on the total lease term. IF LESSEE
EXERCISES ITS OPTION TO PURCHASE THE PRODUCT, IT IS SOLD IN ITS THEN `AS IS'
CONDITION AT ITS LOCATION WHEN THE OPTION IS EXERCISED.
5. Early Buyout Option: At its option beginning with the fourth (4th) month
following the Rent Commencement Date, Lessee may purchase all of the Product
in it's then "as is" condition at its location when the option is exercised.
Except for leases with Fair Market Value purchase options, the purchase
price shall be determined from the referenced Early Buyout Schedule. The
early buyout purchase price for leases with Fair Market Value purchase
options shall be such that Lessor's projected yield from the lease shall be
preserved.
6. Product Upgrade/Add-On: At its option but subject to Lessor's prior written
consent, Lessee may enhance or upgrade those items covered under this
Schedule by leasing additional or upgrade Product on a then currently
marketed Lessor upgrade program. Such additional or upgrade equipment shall
be scheduled on a new Product Schedule and Payment Agreement.
7. Upgrade Credit: If this Schedule reflects an upgrade credit for Product to
be returned by Lessee, Lessee agrees to return such Equipment within thirty
(30) days of delivery and acceptance of the new Product acquired hereunder
to Lessor's remarketing facility.
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By execution hereof, the signer certifies that s/he has read this agreement and
that s/he is duly authorized to execute this agreement on behalf of Lessee.
8. Financing Statement: Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf financing
statements (and any appropriate amendments thereto) under the provisions of the
Uniform Commercial Code for protective purposes.
Lessor: Hewlett-Packard Company Lessee: XxXxxxxx.xxx
By By Xxxx Xxxxxxxx
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Name Name Xxxx Xxxxxxxx
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Title Date Title CFO Date 5-17-00
------------ ----------- -------------- -----------
(second lessee authorization)
By MedCare Technologies, Inc./Xxxx Xxxxxxxx
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Name Xxxx Xxxxxxxx
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Title CFO Date 5-17-00
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