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MASTER HIRE PURCHASE AGREEMENT
DATED: 16TH DECEMBER 1999
BETWEEN:-
(1) IGE MEDICAL SYSTEMS LIMITED, ("THE OWNER") of Coolidge House, 352 Buckingham
Avenue, Slough, Berkshire SL1 4ER.
(2) MOBILE P.E.T. LEASING LIMITED, ("THE HIRER") whose registered office is at
21 St. Thomas Street, Bristol, England
WHEREAS the Hirer wishes to hire from the Owner on hire purchase terms the
equipment ("Equipment", which expression includes each part thereof and all
replacements, additions and accessories thereto) described in each schedule
("Schedule") now or hereafter entered into pursuant hereto by the Hirer and the
Owner, and references to this Agreement shall include each Schedule.
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IT IS AGREED as follows:-
1. ACQUISITION, DELIVERY AND ACCEPTANCE OF THE EQUIPMENT
1.01 This Agreement shall be effective as from the date on which it is executed
by the parties hereto PROVIDED HOWEVER THAT the obligation of the Owner to
hire any Equipment acquired by it to the Hirer hereunder shall be subject
to receipt by the Owner prior to the Cut-Off Date (as specified in the
Schedule relating to such Equipment) of the following each in form and
substance satisfactory to the Owner; (i) a Schedule and a certificate of
acceptance ("Certificate of Acceptance") relating to such Equipment; (ii) a
certified copy of the resolution of the Hirer's Board of Directors
authorizing this Agreement and all documents (including the Schedule)
relating thereto; (iii) evidence of insurance pursuant to Clause 5.03; and
(iv) such other documents as the Owner may require.
1.02 The Hirer shall be responsible for the delivery and installation (if
applicable) of the Equipment at the site (if any) specified in the Schedule
(the "Location") and shall indemnify the Owner on demand against any
transportation, delivery and installation costs. Upon the date of execution
of the Certificate of Acceptance ("Acceptance Date"), the Equipment
referred to therein shall be deemed delivered to and unconditionally
accepted by, the Hirer from the Owner and shall be conclusive evidence that
the Hirer has examined such Equipment and found it to be complete, in good
order and condition, of merchantable quality, fit for any purpose for which
it may be intended or required and in every way satisfactory.
2. HIRING AND PERIOD OF HIRE
2.01 This Agreement and each Schedule when taken together shall have effect as a
separate contract ("Hire Agreement") between the Hirer and the Owner in
relation to Equipment comprised in such Schedule.
2.02 As and from the Acceptance Date, the Owner agrees to hire and the Hirer
agrees to take on hire the Equipment, upon the terms and conditions
contained herein and in the Schedule relating to such Equipment, for the
period specified in such Schedule ("Hire Period"). This Agreement shall not
be extended or cancelled except pursuant to its express terms.
3. RENTALS AND PAYMENTS
3.01 The Hirer shall throughout the Hire Period pay to the Owner, without
demand, the rentals ("Rentals") in the amounts and at the times as set out
in the Schedule. Rentals payable in advance shall not be returnable in the
event of termination of the hiring of the Equipment for whatever reason.
3.02 All payments to be made by the Hirer to the Owner hereunder shall be made
in immediately available funds on the due date (PROVIDED THAT if payment
falls due on a day which is not a Working Day, payment shall be made on
the preceding Working Day) and paid to the Owner as specified in the
Schedule or as the Owner may from time to time direct.
3.03 All Rentals and other payments to be made under this Agreement are
calculated without regard to VAT and the Hirer shall, in addition to such
Rentals and other payments, pay to the Owner, on demand, such VAT as is
required from time to time by law to be paid.
3.04 If any payment due from the Hirer to the Owner hereunder is not paid on the
due date or if the Owner shall make any payment under the powers herein
conferred on the Owner, the Hirer shall, without prejudice to the Owner's
other rights and remedies, pay on demand interest thereon at the Overdue
Rate (as well after as before judgement or decree) from and including such
due date or the date of payment by the Owner, as the case may be, to the
date of actual payment or reimbursement to the Owner. "Overdue Rate" means
the rate of 5% per annum over Barclays Bank PLC Base Rate from time to time
calculated on a daily basis and compounded quarterly.
3.05 All payments due under this Agreement from the Hirer shall be made without
any deduction, set-off, counterclaim or withholding whatsoever. If under
applicable law the Hirer is required to make any deduction or withholding,
the Hirer shall increase the payments to the Owner so that the net amount
received by the Owner after any deduction or withholding shall be equal to
the full amount which the Owner would have been paid had payment not been
made subject to any deduction or withholding.
4. EXCLUSION OF OWNERS LIABILITY AND BENEFIT OF WARRANTIES
4.01 The Hirer has selected the Equipment relying solely on its own judgement
and skill. No condition or warranty of any kind whatsoever (express or
implied) has been or is given or made by the Owner, its servants or agents
in relation to the Equipment. All conditions and warranties (express or
implied and whether statutory, collateral hereto or otherwise) as to the
age, description, state, condition, design, construction, use or
merchantability of the Equipment or its fitness or suitability for any
particular purpose are hereby expressly excluded. No person not in the
actual employ of the Owner is or is to be deemed to be the agent, or
entitled to act on behalf, of the Owner for any purpose.
4.02 The Owner shall not be liable to the Hirer (in contract or tort or
otherwise) for any loss, liability, damage or expense of any kind arising
directly or indirectly in connection with the Equipment, its condition or
any defect therein or from any action or omission (negligent or otherwise)
of the Owner, its servants or agents PROVIDED THAT nothing herein shall
exclude any liability of the Owner for death or personal injury caused by
the Owner's negligence to the extent that such exclusion is prohibited by
statute. The Owner shall not be obliged to supply any replacement for the
Equipment or any part thereof in the event of it being defective, unusable,
lost, damaged or otherwise unfit or unavailable for any period and the
Hirer shall not be entitled to any remission of Rentals or any other sum in
respect of any such period.
4.03 The Owner shall not be liable (i) if the Hirer fails to comply with
technical standards and regulations in force, and/or user or general
maintenance manuals in relation to the Equipment; or (ii) for any failure
to use or process dates, in particular if the Hirer fails to install
upgrades or take other action which the Owner may recommend so that IGE
Medical Systems Equipment properly functions using dates; or (iii) for any
malfunction which results from any item(s) failing to use or process
correctly dates or front design or manufacturing defects in any item(s); or
(iv) if the Hirer uses the Equipment in improper environmental conditions
or makes any modification to the Equipment so that it no longer conforms to
regulatory standards. In all such cases, the Owner shall not be directly or
indirectly liable for any damage to the Equipment itself or to property or
for any bodily injury or environmental damage, (unless such damage or
injury arises from the negligence or wilful misconduct of Owner, its
employees, agents or sub-contractors) and the Hirer shall fully and
promptly indemnify the Owner in respect thereof and in respect of other
claims, demands, losses, damages and liabilities asserted by any person
against the Owner relating to the design, manufacture, condition, use,
possession, operation, delivery or removal of the Equipment (save for any
claim against the Owner for death or personal injury resulting from the
negligence of Owner). This obligation to indemnify shall survive the
termination or expiration of this Agreement (however caused).
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4.04 The Owner warrants that the Equipment and Software, at the time of
delivery are not subject to any valid patent or copyright infringement
claim, the Owner will defend or settle any suit against Hirer to the
extent it is based on an infringement claim which would be in breach
of this warranty.
5. INSURANCE
5.01 The Hirer shall, at its own expense, from the Acceptance Date until
the Equipment is returned to the Owner, sold to the Hirer pursuant to
Clause 13 or otherwise sold or disposed of, maintain insurance: (i) of
the Equipment, in respect of loss or damage howsoever occurring in an
amount at least equal to the higher of its full market replacement
value from time to time (in each case on an agreed value basis),
against all risks, noting the Owner's interest on the policy and naming
the Owner as loss payee in respect of any Casualty (as hereinafter
defined) and any other loss or damage in excess of L10,000 per
occurrence; (ii) in favour of the Owner and each member of the group of
companies of which the Owner is a member ("the Owner's Group"),
against all third party liability risks arising out of or in
connection with the Equipment, in an amount as the Owner shall approve
and naming the Owner and each member of the Owner's Group as an
additional insured; and (iii) against such other or further risks as
may be required by status, regulation or order.
5.02 All insurance shall be in a form and with insurers approval by the
Owner and shall; (i) provide that the Owner shall be given 30 days
prior notice of any cancellation, amendment, non-renewal or
non-payment of premium; (ii) provide that the Owner's and such members
interests shall not be invalidated by any act or omission or breach of
warranty of the Hirer or its servants or agents; and (iii) provide a
waiver by insurers of any right of subrogation against the Owner and
of any right of contribution from any other insurance carried by the
Owner.
5.03 The Hirer shall on the Acceptance Date and upon each renewal (and at
such other times as the Owner may request) produce to the Owner each
policy of insurance together with written evidence of payment of
premiums.
5.04 The Hirer shall not do or omit to do anything which is contrary to the
terms of any such policy of insurance or which might entitle the
insurers to cancel such policy or reduce or avoid any liability
thereunder.
5.05 The Hirer shall notify the Owner in writing forthwith of any
occurrence which shall or may give rise to a claim under any policy of
insurance and shall not agree to any settlement of any such claim
without the prior consent of the Owner. Any costs incurred by the
Owner in connection with the adjustment or collection of insurance
proceeds shall be borne by the Hirer.
6. DESTRUCTION AND DAMAGE
6.01 If any unit of Equipment shall become lost, stolen, confiscated,
requisitioned, destroyed or damaged beyond repair (such a "Casualty"),
then the Hirer shall promptly and fully notify the Owner in writing
thereof. On the next date for payment of Rental in respect of such
Equipment following such Casualty ("Settlement Date"), the Hirer shall
pay to the Owner the sum of (i) by way of additional rental, the
Termination Value (ascertained in accordance with Clause 12.02) for
such Equipment for the Settlement Date and (ii) all Rentals and other
sums due or in arrears on the Settlement Date. Upon payment of all
such amounts, the hiring of such Equipment shall be terminated. Any
insurance proceeds received by the Owner in respect of such Equipment
shall be applied in accordance with the last two sentences of Clause
12.03 but with reference therein to Clauses 12.03 and 12.02 being
construed as reference to Clause 5.05 and 6.01 respectively.
6.02 As and from the Acceptance Date, the Equipment shall be at the sole
risk of the Hirer. The Hirer shall be liable promptly to reinstate or
repair, at its own cost, any loss or damage to (not amounting to a
Casualty) any of the Equipment from whatsoever cause. The Owner shall
apply any insurance proceeds received in respect of such loss or
damage in reimbursement to the Hirer of the cost of reinstatement or
repairs on completion of the same PROVIDED THAT if any of the events
referred to in Clause 12.01 shall have occurred such proceeds may be
applied first towards payment of any sums then owning to the Hirer
thereunder.
7. SOFTWARE LICENCE
7.01 Software ("Software") furnished with the Equipment and as described
in the Software Licence (Exhibit 1) remains the property of the Owner
and is licensed to the Hirer for use under conditions described in
the Software Licence (Exhibit 1). The Hirer undertakes that it shall, at
all times, comply with the conditions of the said Software Licence.
All documentation in respect of the Software, unless clearly
identified to the contrary, shall remain the property of the Owner.
8. USE AND MAINTENANCE
8.01 The Equipment and the Software shall be used by the Hirer solely in
the conduct of its business, in compliance with all applicable laws
and regulations, and in a skillful and proper manner in accordance with
all operating instructions of the manufacturer and supplier thereof.
8.02 The Equipment shall at all times remain in the Hirer's physical
possession and control and be kept (or, in the case of moveable
equipment, ordinarily kept) at the Location (if any) specified in the
Schedule (save for temporary removal for repairs and maintenance). In
no event shall the Equipment be removed from the mainland of Great
Britain. Upon request, the Hirer will promptly provide written
confirmation of the current location of the Equipment.
8.03 The Hirer shall, at its own expense, maintain the equipment in good
condition (fair wear and tear excepted) and in good and safe working
order in accordance with all instructions and recommendations of the
manufacturer and supplier. The Hirer shall also, at its own expense,
make all alterations, additions or modifications required by applicable
law or regulation, but shall not otherwise make alterations, additions
or modifications. All replacement parts and additions shall become
the property of the Owner and a part of the Equipment.
8.04 The Owner has the right to inspect the Equipment and related
maintenance records throughout the term of this Agreement. All
repairs, replacements, substitutions, parts and other accessories to
the Equipment and/or Software will become the property of the Owner.
8.05 The Hirer shall keep in effect any permits, licenses or other
authorisations which are from time to time necessary for the carrying
out of its obligations under this Agreement.
8.06 The Hirer on executing the Schedule warrants to the Owner that it is
making this Agreement in the course of its business.
8.07 The Hirer may request that the Equipment be upgraded. In such case the
Parties may set a new Rental, and/or extend the term of the Agreement,
as the case may be.
8.08 If during the term of this Agreement, applicable laws, rules or
specifications are revised to set new standards that require the Owner
to modify or replace the Equipment provided under this Agreement, the
Owner may, upon notice to the Hirer, adjust the Rental to reflect
those necessary modifications or replacements.
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9. TITLE, OWNERSHIP AND PROTECTION OF THE OWNER'S INTEREST
9.01 Subject to Clause 13, the Equipment shall at all times remain the
property of the Owner and the Hirer's sole rights in relation thereto
shall (save to the extent the same are disturbed by any third party)
be the use and possession thereof throughout the Hire Period subject to
and in accordance with the terms of this Agreement.
9.02 The parties hereto agree that notwithstanding that the Equipment may
at any time be or become affixed to any land or buildings, it shall
remain the personal property of the Owner. The Hirer shall ensure that
all persons having any interest at any time in any such land or
buildings in which the Equipment may from time to time be located
shall, prior to the installation of the Equipment, or if later upon
acquisition of such interest, receive written notice of the Owner's
ownership thereof and obtain such persons written waivers (in such
forms as the Owner may reasonably require) of any rights which may
have been acquired in the Equipment.
9.03 Unless title to the Equipment shall have passed to the Hirer pursuant
to Clause 13, the Hirer shall, at its own expense, take all steps as
may be necessary to safeguard the rights of the Owner in the Equipment
and in particular shall; (i) if so requested by the Owner, affix and
maintain nameplates on the Equipment indicating the Owner's ownership
thereof and not remove or cover up the same or allow any nameplates or
inaigmia dealing with the rights of any person to be placed on the
Equipment; (ii) not sell, charge, assign, pledge, lend or otherwise
dispute of the Equipment or any interest therein or in the insurance
thereon or its rights under this Agreement not hold itself out as
owner of the Equipment nor pledge the credit of the Owner for the
repair of the Equipment or otherwise allow to arise any lien or
encumbrance over the Equipment; (iii) keep the Equipment free of all
claims by other persons (including by way of confiscation, seizure,
execution, distress, diligence, impounding or forfeiture) and in the
event of any such claim shall procure the immediate release therefrom
of the same; and (iv) keep the Owner immediately informed of the
happening of any event which might affect the rights of the Owner or
involve the Owner in any proceedings, loss or liability.
10. PAYMENT OF OUTGOINGS AND INDEMNITY
10.01 The Hirer agrees to pay and discharge forthwith, and indemnity fully
the Owner and each member of the Owner's Group at all times against,
(i) all taxes (other than corporation tax on the owner's profits),
insurance premiums, rents, registration fees, license duties and other
similar outgoing payable in connection with this Agreement or the
Equipment or any premises in which the Equipment may from time to time
be located and (ii) all claims, liabilities, losses, damages, costs
and expenses (including legal fees) incurred or suffered directly or
indirectly by the Owner or any member of the Owner's Group in
connection with this Agreement or the Equipment or the design,
manufacture, purchase, ownership, delivery, use, return, sale or
other disposition of the Equipment.
11 RETURN OF EQUIPMENT AND END OF HIRE PERIOD
11.01 Without prejudice to Clause 11.03, following the expiration or
termination of the hiring of any of the Equipment (and unless title to
the Equipment shall have passed to the Hirer pursuant to Clause 13),
the Hirer shall, upon request of the Owner promptly at the expense of
the Hirer, (i) perform any testing and repairs required (at the
Hirer's expense) to place such Equipment in good condition (fair wear
& tear expected) and in good working order; (ii) if installation
disassembly or crating is required, cause such Equipment to be
disinstalled, disassembled and crated by an authorised representative
of the manufacturer or such other service entity as is satisfactory to
the Owner; (iii) return such Equipment to such location within the
mainland of Great Britain as the Owner shall direct; (iv) store (but
not use) and, in accordance with the terms of this Agreement, insure,
maintain and keep safe such Equipment; and/or (v) dispose of such
Equipment in such manner and to such persons as the Owner may require.
11.02 Without prejudice to Clause 11.03, if the Hirer shall fail to return
any of the Equipment in accordance with a request pursuant to Clause
11.01, all the Hirer's obligations, including to pay Rental, under
this Agreement shall (notwithstanding any expiration or termination of
the hiring of such Equipment) continue until such Equipment is so
returned. Nothing in this Clause 11.02 shall be construed as giving the
Hirer the right to retain such Equipment beyond the date of such
expiration or termination.
11.03 Upon the expiration of termination of the hiring of any of the
Equipment (and unless title to such Equipment shall have passed to
the Hirer pursuant to Clause 13) the Hirer shall no longer be in
possesion of such Equipment with the consent of the Owner and the
Owner shall be entitled to retake possesion of such Equipment for
which purpose the Owner and its agents may alter any premisce where
such Equipment is believed to be located and the Hirer shall indemnify
the Owner and such agents against any claim made in respect of any
damage caused to such premises by any such entry or by the removal of
such Equipment.
12 DEFAULT
12.01 If; (i) the Hirer fails to pay any Rental or other sums due to the
Owner under this Agreement within 10 days of its due date; (ii) the
Hirer fails to perform and observe any of its obligations under Clause
5 (Insurance); (iii) the Hirer allows the Equipment to be used for any
illegal purpose, or does or allows to be done any act or thing which
might jeopordise or prejudice the value, or the Owner's ownership, of
the Equipment or the Equipment shall for any reason become hazardous
to health or safety; (iv) the Hirer breaches any of the other terms of
this Agreement and fails to remedy such breach within 30 days after
receipt of notice thereof; (v) any representation or warranty made by
the Hirer in connection with this Agreement proves to have been
incurred when made; (vi) the Hirer or any guarantor of the Hirer's
obligations convenes any meeting of, or makes any arrangement or
composition with its creditors; (vi) the Hirer or any such guarantor
takes any steps, or has steps taken against it for its winding up or
for the making of an administration order against it; (viii) the
Hirer or any such guarantor has a receiver, administration or similar
officer appointed over any of its business or assets; (ix) the Hirer
or any such guarantor is unable, or admits its inability, to pay its
debts as they fall due; (x) the Hirer or any guarantor ceases to carry
on all or any substantial part of its business, disposes of all or a
substantial part of its assets, or attempts to do any of the same;
(xi) any distress, diligence, execution, administration or other legal
process is levied or enforced upon any of the assets of the Hirer or
upon the Equipment; or (xii) the Hirer is in default under any other
agreement with any member of the Owner's Group: THEN the Owner shall
be entitled (without prejudice to any other right or remedy) by
written notice to the Hirer to terminate the hiring of all or any of
the Equipment under this Agreement. Any such notice shall be deemed to
terminate the hiring of all of the Equipment (under all of the
Schedules) unless otherwise expressly provided in such notice.
12.02 Forthwith on the termination of the hiring of any Equipment pursuant
to Clause 12.01 the Hirer shall (without prejudice to any other right
or remedy or to the Hirer's obligations to pay any other sums which
may be or become due before, on or after such termination) pay to the
Owner the sum of (i) all Rentals and other sums due or in areas on the
the date of such termination; and (ii) as compensation for the
Owner's financial loss, by way of additional rental, an amount
("Termination Value") equal to the aggregate of all Rentals which (but
for such Termination) would have become due in respect of the
Equipment on or after the date of such Termination and during the
balance of the Hire Period less a discount for early receipt of such
Rentals at the rate of 5% per annum.
12.03 Provided that the Owner shall be in undisputed possession of the
Equipment following a termination pursuant to Clause 12.01, the Owner
shall endeavour to sell, lease or otherwise dispose of such Equipment
upon such terms as the Owner shall in its absolute discretion
determine. The Hirer shall pay upon demand to the Owner any costs
incurred by the Owner in repossessing, holding, repairing, selling,
leasing or otherwise disputing of such Equipment. The proceeds (if
any) of such sale, lease or other disposition (net of VAT and any
sales commissions) received by the Owner shall be
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applied in the following order of priority; (i) to the extent not
previously paid by the Hirer, to reimburse the Owner for the costs
identified in the second sentence of this clause 12.03; then (ii) to the
extent not previously paid by the Hirer, to pay to the Owner the amounts
required under Clause 12.02; then (iii) by way of rebate of Rentals, to
pay to the Hirer an amount equal to the aggregate of any Rentals, and any
Termination Value under Clause 12.02, previously paid by the Hirer to the
Owner for and on account of such Equipment, and then (iv) any surplus to
be retained by the Owner. Not withstanding such application, the Hirer
shall remain liable for any shortfall in the amounts referred under (i)
and (ii) above.
12.04 Upon the occurrence of any of the events specified in Clause 12.01 above,
the Owner may de-activate remotely any items of Equipment forthwith upon
giving notice to the Hirer. The right of the Owner to de-activate
remotely shall be in addition to the Owner's rights to terminate the
hiring of the Equipment and to repossess the Equipment, all of which
rights shall constitute separate rights and are hereby expressly
reserved.
13. PURCHASE OPTION
13.01 The Hirer shall have the option to purchase the Equipment on the terms
and conditions of the purchase option set out in the Schedule.
14. DEDUCTIBILITY AND INDEMNITY PAYMENTS
14.01 Notwithstanding any other provision hereof, the Owner shall be entitled
to withhold from any payment due to the Hirer under this Agreement, such
amount as the Owner determines to protect the Owner against such payment
not being deductible by the Owner for the purpose of computing its
liability to corporation tax for any financial year of the Owner.
14.02 If at any time any payment received or receivable by the Owner under this
Agreement by way of indemnity is taxable to the Owner then the amount of
such payment shall be increased to an amount ("the grossed-up payment")
which will restore the after-tax position of the Owner to that which it
would have been had the payment by way of indemnity not been so taxable.
15. GENERAL
15.01 The Hirer shall pay on demand, on a full indemnity basis, all costs and
expenses (including legal fees) of the Owner in connection with the
negotiation, completion or enforcement of this Agreement or any other
documents entered into in connection therewith or in connection with any
waiver, variation, consent or approval relating to any of the same or in
connection with the tracing or recovery of possession of the Equipment.
15.02 This Agreement shall not be varied except by agreement in writing between
the parties hereto. No waiver or consent by the Owner shall be effective
unless in writing signed by or on behalf of the Owner. No failure or
delay on the part of the Owner in exercising any right of power hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power preclude any other or further
exercise of any such right or power. The rights and remedies herein
provided are cumulative with and not exclusive of any rights or remedies
provided by law. The indemnities by the Hirer contained in this Agreement
shall continue in full force and effect notwithstanding the termination
of the Hiring of any Equipment through effluxion of time or otherwise or
the disposal of the Equipment.
15.03 If any provision hereof is void or unenforceable in any jurisdiction,
such voiding or unenforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
15.04 All notices or other communications under this Agreement shall be in
writing and sent first class post or hand delivered to the addressee at
its address set forth in each Schedule (or to such other address as that
party may notify in writing to the other) and shall be deemed to have
been received by the addressee 2 Working Days after posting if sent by
first class post or on delivery if hand delivered. The contents of any
demand, notice or certificate issued by the Owner as to the amount of any
payment due from the Hirer hereunder shall (save for manifest error) be
conclusive and binding on the Hirer.
15.05 Time of payment of sums due from the Hirer and of performance of all
other obligations by the Hirer under this Agreement shall be of the
essence. Notwithstanding any other provisions hereof, the Owner shall be
entitled to set-off or withhold from any sum or sums expressed in this
Agreement to be payable to the Hirer by the Owner any amount due and
payable to the Owner from the Hirer on any account whatsoever. In the
case of a failure of the Hirer to comply with any provision of this
Agreement, the Owner shall have the right (but not the obligation) to
effect such compliance and the Hirer shall reimburse the Owner upon
demand for expenses related thereto.
15.06 Clause headings are for case of reference only and references to Clauses
are, unless otherwise stated, references to Clauses of this Agreement.
References to a statute or statutory provision shall include reference to
any statutory modification or re-enactment of the same and "Working Day"
means any day other than a Saturday or a Sunday on which banks generally
are open for business in London.
15.07 This Agreement shall be governed by, and construed in accordance with
English law.
AS WITNESS whereof the parties hereto have hereunder set their hands the day and
year first above written.
SIGNED for and on behalf of the Owner:
IGE MEDICAL SERVICES LIMITED
BY:
--------------------------------
TITLE:
--------------------------------
SIGNED for and on behalf of the Hirer:
MOBILE P.E.T. LEASING LIMITED
BY:
--------------------------------
TITLE:
--------------------------------
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MASTER HIRE PURCHASE AGREEMENT,
DATED
16TH DECEMBER 1999
Owner's Address: Hirer's Name and Address:
IGE MEDICAL SERVICES LIMITED MOBILE P.E.T. LEASING LIMITED
Coolidge House 154 Harley Street
352 Buckingham Avenue London
Slough WIN 1HH
Berkshire SL1 4ER
(Attention: Fiona Rogers ) (Attention: Paul Crowe)
THE PARTIES HERETO agree that the Owner shall hire and the Hirer shall take on
hire the Equipment described herein on the terms hereinafter and in the above
Master Hire Purchase Agreement ("the Agreement") contained.
Terms defined in the Agreement shall bear the same meanings in this Schedule. In
the event of a conflict between the provisions of this Schedule and those of the
Agreement, the provisions of this Schedule shall prevail with respect to the
Equipment described herein.
1. DEFINITIONS AND CERTAIN TERMS
The Equipment: The equipment described in Annex A hereto.
Location: 154 Harley Street, London, WIN 1HH
Owner's Bank: Barclays Bank plc, Account Number: 30803502, Sort Code
20-00-00, quoting reference 8700661-001
Commencement Date: On acceptance of the equipment or 21st February 2000
which ever is the earliest.
Hire Period: 72 MONTHS
<TABLE>
<S> <C>
Cost of the Equipment (from Annex A) : L 1,113,873.00
VAT at 17.50% (add) : L 194,927.78
Total Cost : L 1,308,800.78
Initial Payment (deduct) : L 236,945.78
Balance of Total Cost (A) : L 1,071,855.00
Total Estimated Finance Charges (B) : L 398,775.00
Total Estimated Amount payable (exclusive
of VAT and Option Price) : L 1,512,648.00
Option Price (excluding VAT) : L 10.00
</TABLE>
Outstanding Balance of Total Cost: For any date the amount outstanding
of the Balance of Total Cost after deducting therefrom all amounts
referred to in Paragraph 3(b) below required to be paid prior to that
date.
2. INITIAL PAYMENT
The Hirer shall on or before the date of this Schedule pay to the Owner
the Initial Payment.
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3. RENTAL
(a) The Balance of Total Cost and Finance Charges shall be paid by
instalments ("Base Rental") in ADVANCE on a MONTHLY basis as
and from the Commencement Date and thereafter throughout the
Hire Period with the first such payment being due on
acceptance.
(b) Each Base Rental payment shall be L21,009.00
(c) The term "Rental" shall include Base Rental
4. PURCHASE OPTION
Provided that none of the events referred to in Clause 12.01 of the
Agreement has occurred and is subsisting, the Hirer may on giving not
less than 90 days' prior written notice (which notice shall be
irrevocable) purchase, on the last day of the Hire Period, all (but not
part) of the Equipment by paying the Owner on that day the sum of (i)
the Option Price set forth above, and (ii) all rentals and other
amounts due or in arrears in respect of the Equipment. On receipt of
such sum, title to such Equipment shall pass to the Hirer without
further transfer or document on an "as is, where is" basis without any
condition, representation, warranty or recourse of any kind whatsoever,
express or implied. If any further act or document is required to pass
such title, all costs, charges and expenses in connection therewith
shall be borne by the Hirer.
AS WITNESS whereof the parties hereto have hereunto set their hands this _______
day of _________ 1999.
SIGNED for and on behalf of the Owner:
IGE MEDICAL SERVICES LIMITED
By: ___________________________________
Title: ________________________________
SIGNED for and on behalf of the Hirer:
MOBILE P.E.T. LEASING LIMITED
By: ___________________________________
Title: ________________________________
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<PAGE>
ANNEX A
TO
SCHEDULE 8700661-001
TO
MASTER HIRE PURCHASE AGREEMENT,
DATED 16TH DECEMBER 1999
<TABLE>
<CAPTION>
DESCRIPTION OF EQUIPMENT
Type and Number Serial/ Acceptance
Model of of Identification Date
Equipment Units Number
<S> <C> <C> <C>
GE PET SCANNER ONE QUOTATION JANUARY 2000
NO. 027370A
</TABLE>
Total Cost L1,113,873.00
-------------
-------------
Initialled: The Owner ________________ Initialled: The Hirer ________________
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<PAGE>
ANNEX B
TO
SCHEDULE NO. 8700661-001
TO
MASTER HIRE PURCHASE AGREEMENT,
DATED
16TH DECEMBER 1999
CERTIFICATE OF ACCEPTANCE
We hereby confirm and certify to you that:
(i) on __________________, 2000 we duly received and accepted the
Equipment and we acknowledge that it corresponds with the Equipment
described in the Schedule;
(ii) we duly examined and tested the Equipment and we are satisfied
that the Equipment complete, in good working order and condition, of
merchantable quality, fit for its purpose and in every way satisfactory
and is safe for use;
(iii) accordingly, for the purpose of the Agreement, the Equipment has
been delivered to and accepted by us from you.
SIGNED for and on behalf of the Hirer:
MOBILE P.E.T. LEASING LIMITED
BY:______________________________________
TITLE:____________________________________
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<PAGE>
EXHIBIT 1 TO THE HIRE PURCHASE AGREEMENT
This Licence is granted by IGE ("Licensor") to Hirer ("Licensee") pursuant to a
Master Hire Purchase Agreement dated 10th August 1999. Terms defined in the
Master Hire Purchase Agreement have the same meaning when used herein.
--------------------------------------------------------------------------------
This Licence is incorporated by reference in the Master Hire Purchase Agreement
(see Clause 7 thereof).
a) Whereas Licensee is a provider of health care and/or medical imaging
services which at the time of execution hereof, holds all such regulatory
permits as are required by law to use the Equipment referred to below for
the purpose of obtaining medical diagnostic images, and
b) Where Licensor places at the disposal of Licensee, either at or prior to
the time of execution of the Licence, [ ] (the Equipment), and
c) Whereas either (i) the Equipment comes fitted with OPERATING SOFTWARE
and BASIC MAINTENANCE SOFTWARE (together referred to as "LICENSED
SOFTWARE") or (ii) the LICENSED SOFTWARE is delivered to Licensee
subsequent to Acceptance of the Equipment, and
d) Whereas Licensee desires to be granted a licence to use said software,
subject to the following terms and conditions.
It is hereby agreed as follows;
1 - IDENTIFICATION OF LICENSED SOFTWARE
Each package of LICENSED SOFTWARE, which includes operating software and basic
maintenance software will be affixed with a white label and/or the following
markings:
Operating software LOGICIEL D'UTILISATION
PROPERTY OF MANUFACTURER PROPRIETE DU FABRICANT
BASIC MAINTENANCE SOFTWARE LOGICIEL DE MAINTENANCE DE BASE
PROPERTY OF MANUFACTURER PROPRIETE DU FABRICANT
2 - OWNERSHIP
Title to the LICENSED SOFTWARE (as well as to the ADVANCED PACKAGE described at
paragraph 7 below) is not transferred to Licensee, but will remain with
Licensor. The Licensor will at all times be entitled, as soon as Licensee ceases
to hold any of the permits referred to in the first recital hereof, or as soon
as Licensee has failed to abide by any of its commitments hereunder, to
repossess all or any of the LICENSED SOFTWARE (and/or of the ADVANCED PACKAGE
described at paragraph 7 below), and any corresponding archival copies.
3 - LICENCE
Licensor hereby grants Licensee personally a limited, non-assignable,
non-exclusive Licence to use the LICENSED SOFTWARE, (consisting of the Operating
Software and the Basic Maintenance Software) whereby Licensee will be granted
the following rights exclusive of any others:
- 3.1 The right to load and run the OPERATING SOFTWARE on the Equipment,
subject to the latter remaining on the Equipment site designated in the
Specific Terms of the Hire Purchase Agreement hereto ("the Site") and being
used solely for the purpose of obtaining medical diagnostic images;
- 3.2 The right to produce an archival copy of the OPERATING SOFTWARE, such
right to be exercised solely through Licensee's own employees;
- 3.3 The right to load and run the BASIC MAINTENANCE SOFTWARE on the
Equipment, subject to the latter remaining on the Site and being used
solely for the purpose of maintaining the medical diagnostic equipment at
the Site, such right to be exercised solely through Licensee's own
employees;
- 3.4 The right to produce an archival copy of the BASIC MAINTENANCE
SOFTWARE, such right to be exercised solely through Licensee's own
employees;
- 3.5 Licensee is NOT granted any licence with regard to any software other
than the LICENSED SOFTWARE (that is, the OPERATING SOFTWARE and the BASIC
MAINTENANCE SOFTWARE). Specifically, Licensee is not granted any licence or
rights with regard to Advanced Service Software which Licensor might bring
to the Site to assist Licensor in servicing the Equipment.
4 - LIMITED LICENE - PROHIBITED ACTIVITIES
Except pursuant to the provision of article 3 above, Licensee will not perform
any of the following operations and will see to it that no third party is in a
position to perform any of the same:
- to duplicate, access, use in whole or in part, display, disassemble,
decompile, assign to a third party, any or all of the information built
into the OPERATING SOFTWARE or the BASIC MAINTENANCE SOFTWARE;
- to use an unauthorized copy of LICENSED SOFTWARE or to scrutinise or
display all or part of the code or of the information that make up the said
SOFTWARE.
5 - CONFIDENTIALITY
Licensee acknowledges the confidentiality of the LICENSED SOFTWARE and will take
all such steps as will be necessary in order that access thereto be barred to
any person other that its own employees or those of Licensor.
6 - MODIFICATION
Licensee will make no change to the LICENSED SOFTWARE unless it has obtained
Licensor's written consent thereto.
7 - ADVANCED PACKAGE
(Licensor may store for its own use at Licensee's premises (hereafter the
"Location"), either at the time of delivery of a piece of Equipment or during
the life span thereof, a copy of the ADVANCED PACKAGE corresponding to that
piece of Equipment (Said ADVANCED PACKAGE consists of ADVANCED MAINTENANCE
SOFTWARE and ADVANCED MAINTENANCE MANUAL.)
Every package of ADVANCED MAINTENANCE SOFTWARE will be affixed with a yellow
label and/or the following marking:
Advanced maintenance software LOGICIEL DE MAINTENANCE AVANCEE
PROPERTY OF MANUFACTURER PROPRIETE DU FABRICANT
The ADVANCED MAINTENANCE MANUAL will bear the corresponding label. No licence is
granted with regard to Advanced Package.)
8 - STORAGE OF MATERIALS NOT PURCHASED BY OR LICENSED TO LICENSEE
In connection with the installation and delivery of the Equipment, Licensor
personnel sometimes use (i) documentation and tools not hired by Licensee, (ii)
an Advanced Package not licensed to Licensee (described in paragraph 7) and
(iii) certain software, documentation and tools that may be provided to Licensor
by one or more of its vendors, which also have not been licensed to Licensee.
Some or all of such property might be in the Location from time to time, and
some or all of which might be delivered to the Location with the Equipment. For
convenience, Licensor personnel might store from time to time such property in
the Site for varying periods. Licensee hereby consents to the presence of a
locked Licensor cabinet or box for such storage; to the use of the Site for such
storage without charge; and to Licensor's removal of any or all of such property
at any time.
Licensee hereby agrees to use its best efforts to protect all of such property
from damage or loss and its best efforts to protect all of such property from
access or disclosure to or use by anyone other that Licensor personnel. The
presence of such property in the Location shall not give Licensee any right or
title to the same or any licence to use the same, but to the contrary, any
access, disclosure or use of any of such property to or by Licensee, its
employees or any person other than Licensor personnel is strictly prohibited,
and Licensee agrees that it will use its best efforts to prevent any access,
disclosure or use contrary to such prohibition.
9 - TERM
This Licence will come into force upon the Acceptance Date. It will remain in
force for as long as Licensee holds the permits referred to in the first recital
above, as it uses the Equipment on the Site, and as it fulfils its commitments
hereunder. It will end upon termination of the hiring of Equipment under the
Master Hire Purchase Agreement however arising.
-10-
<PAGE>
Licensor may terminate this licence in the event of any breach by Licensee. Upon
termination or expiry hereof, Licensee will return to Licensor, upon the
latter's first demand, the LICENSED SOFTWARE and corresponding archival copies.
Up until then, Licensee will continue to be bound by its commitments hereunder
notwithstanding the expiry of the Licence.
10 - CONSEQUENCES OF LICENSEE'S FAILURE TO COMPLY
Should Licensee fail to fulfil any of its commitments hereunder, Licensor will
be released from all and any of its commitments to Licensee. The foregoing
provision will not prejudice any other claims which Licensor may have.
11 - COPYRIGHT
The Buyer acknowledges that the LICENSED SOFTWARE as well as the ADVANCED
PACKAGE are protected under the copyright legislation of the countries where
they have been developed, as well as under international copyright conventions.
-11-
