Okaloosa County BOCC — January 19, 2016 — Master Lease Agreement — reading text

Philips Medical Capital Master Lease Agreement PHONE: (866) 514-4PMC FAX: (866) 516-4PMC Full Legal Name Okaloosa County Phone Number 8506895960 Carrying on Business as (If Any) Fax Number Billing Address City State Zip Send Invoice to Attention of: 302 North Wilson Street, Suite 203 Crestview FL 32536 TERMS AND CONDITIONS This MASTER LEASE AGREEMENT (as amended, modified or supplemented from time to time in accordance with the terms hereof, this “Agreement”), dated as of , is by and between Philips Medical Capital, LLC, a Delaware limited liability company, with offices located at 1111 Old Eagle School Road, Wayne, Pennsylvania, 19087-1453, (together with its successors and assigns, “Lessor”), and , @ _municipality organ- ized under the laws of the State/Commonwealth of __Florida (together with its successors and permitted assigns, “Lessee”). The parties hereto for good and valuable consideration and intending to be legally bound hereby agree as follows: 1. LEASE OF SYSTEM: This Agreement establishes the general terms and conditions under which Lessor may, from time to time lease a System (as hereinafter defined) to Lessee as spec- ified in a lease schedule to be entered into from time to time (each a “Lease”). Each Lease shall incorporate the terms and conditions of the Agreement and shall constitute a separate lease agreement as to a System. In the event of a conflict between the provisions of any Lease and the provisions of this Agreement, the provisions of the Lease shall prevail. As used in this Agreement, the terms “Software”, “Equipment” and “Maintenance” shall mean all items of software, equip- ment and maintenance, respectively, specified on a Lease and all of the foregoing and all periph- erals and items related thereto provided by Lessor shall be collectively referred to as a “System.” IF THIS LEASE HAS BEEN PROVIDED ELECTRONICALLY AND LESSEE WISHES TO ENTER INTO THIS AGREEMENT AND/OR ANY LEASES ELECTRONICALLY, LESSEE'S ELECTRONIC SIG- NATURE WILL CONSTITUTE ITS ACKNOWLEDGEMENT AND AGREEMENT TO DO BUSINESS AND RECEIVE ALL RELATED RECORDS ELECTRONICALLY, INCLUDING, WITHOUT LIMITA- TION, ELECTRONIC FORMS OF DELIVERY AND ACCEPTANCE CERTIFICATES, IF REQUIRED BY LESSOR. At Lessor’s option, Lessor may require an ink signature. 2. TERM AND PAYMENTS: The lease term for each System shall be for the time period spec- ified in the Lease (as it may be extended pursuant to the terms hereof or the Lease, the “Lease Term”), and such Lease Term shall commence on the date provided in the Lease (the “Commencement Date”). For the Lease Term, Lessee shall pay to Lessor the payments in the amount, number and in the manner specified in a Lease (each a “Payment” and collectively, “Payments”). If not specified in a Lease, the first Payment is due the first day of the first full month after the Commencement Date and the remaining Payments are due on the same day of each consecutive payment period thereafter for the duration of the Lease Term. A Lease may not be terminated or canceled for any reason whatsoever, except as expressly provided in the Lease. Whenever any sum due hereunder is not paid when due, Lessee agrees to pay to Lessor, on the next due date, a late charge equal to five percent (5%) of the amount of any late payment (but not less than $10.00), but only to the extent permitted by law. If any sum paid by Lessee shall be refused or rejected by the related obligor, Lessor may charge Lessee a returned-check or non- sufficient funds charge in the amount of $25.00 per check or electronics funds transfer to reim- burse Lessor for the time and expense incurred with respect thereto. All sums paid by, or on behalf of, Lessee hereunder shall be non-refundable. All sums shall be delivered to Lessor at its address specified above (or such other place as Lessor, in writing, directs) without notice or demand therefore. If and to the extent the Payments include amounts due to Philips Healthcare for service or maintenance, then in the event Lessor quotes a buyout or enters into any settle- ment agreements arising from a defaulted Agreement, then such buyout amounts and such set- tlements shall not affect the rights or obligations of Philips Healthcare pursuant to any separate service or maintenance agreements between Lessee and Philips Healthcare. LESSEE'S OBLIGA- TION TO MAKE THE PAYMENTS SHALL BE ABSOLUTE AND UNCONDITIONAL AND IS NOT SUBJECT TO ANY ABATEMENT, SET-OFF, DEFENSE OR COUNTERCLAIM FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE CLAIMS AGAINST THE LESSOR OR THE PROVIDER OF A SYSTEM. IN THE EVENT THE PAYMENTS INCLUDE THE COST OF MAINTENANCE AND/OR SERVICE BEING PROVIDED BY A MANUFAC- TURER OR SUPPLIER OF ALL OR A PART OF A SYSTEM AND/OR VENDOR OR PROVIDER OF ALL OR PART OF THE SYSTEM (EACH AND COLLECTIVELY, “PROVIDER"), LESSEE ACKNOWL- EDGES THAT LESSOR IS MERELY COLLECTING SUCH AMOUNTS ON BEHALF OF A PROVIDER AND THAT LESSOR IS NOT RESPONSIBLE FOR PROVIDING ANY REQUIRED MAINTENANCE AND/OR SERVICE FOR THE SYSTEM AND LESSEE'S OBLIGATION TO MAKE ALL PAYMENTS SHALL REMAIN UNCONDITIONAL. 3. INSTALLATION AND DELIVERY: The Lessee shall at its own expense provide a suitable environment for the System as specified or required by a Provider. Delivery and installation arrangements and costs, unless included in the cost of the System to Lessor, are the sole responsibility of Lessee. Lessee agrees to accept the System when Available for First Use (as defined in the Lease) and to immediately execute the Delivery and Acceptance Certificate sup- plied by Lessor as evidence thereof. If Lessee has entered into any purchase, licensing or main- tenance agreements with a Provider (each an “Acquisition Agreement”) covering the System or any portion thereof, Lessee transfers and assigns to Lessor all of Lessee’s rights, but none of its obligations (except for Lessee’s obligation to pay for the System upon Lessor’s accept- ance of the Lease) in and to any Acquisition Agreement and Lessee shall execute any docu- ments, instruments or agreements reasonably necessary to effectuate such transfer or assign- ment. All proceeds of any warranty recovery by Lessee from a Provider shall first be used to repair, maintain, replace or upgrade the affected System and Lessee shall promptly notify Lessor of any such warranty recovery. 4. USE, MAINTENANCE AND MODIFICATIONS: Lessee represents, warrants and covenants that the System will be used for solely business purposes and not for personal or household purposes. Lessee will not modify the System in any way without the prior written con- sent of Lessor except as required by a Provider or in any Acquisition Agreement. Lessee shall not attach or incorporate any portion of the System in such a manner that it becomes or may be deemed to have become an accession to or a part of any other item of equipment or software. At its own expense, Lessee will cause the System to be used and maintained in: (a) a manner rec- Page 1 of 3 ommended by the Provider and/or in any Acquisition Agreement; (b) accordance with all laws, rules and regulations of all applicable governmental or quasi-governmental authorities; and (c) as good operating condition as when delivered to Lessee hereunder, ordinary wear and tear result- ing from proper use alone excepted. All equipment, software, upgrades, parts and replacements for or which are added to or become attached to or a part of a System shall be deemed incorpo- rated into the System and become the property of Lessor without further action on its part. Upon reasonable notice, Lessor shall have the right to inspect the System and all maintenance and busi- ness records related thereto during Lessee’ normal business hours. 5. DISCLAIMER OF WARRANTY: LESSEE ACKNOWLEDGES THAT LESSOR HAS NO EXPERTISE OR SPECIAL FAMILIARITY ABOUT OR WITH RESPECT TO THE SYSTEM. LESSEE AGREES THAT THE SYSTEM LEASED HEREUNDER IS LEASED “AS-IS” AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND IS SUITABLE FOR LESSEE'S PURPOS- ES AND THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LESSOR FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR INJURY TO LESSEE OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE SYSTEM WHETHER ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, LESSEE HEREBY WAIVES ANY WARRANTIES CONTAINED IN SECTIONS 2A-210, 2A-211, 2A- 212 AND 2A-213 OF THE APPLICABLE UNIFORM COMMERCIAL CODE (“UCC”) AND ANY RIGHT TO DEEM LESSOR IN DEFAULT PURSUANT THERETO. LESSEE ALSO AGREES TO WAIVE SUCH WARRANTIES, RIGHTS AND REMEDIES OR OTHER APPLICABLE LAW WITH RESPECT TO THE SYSTEM, INCLUDING ITS FREEDOM FROM PATENT OR COPYRIGHT INFRINGEMENT, FREEDOM FROM LATENT DEFECTS (WHETHER OR NOT DISCOVERABLE), OR COMPLIANCE WITH APPLICABLE LAW. If the System is not properly installed, maintained, does not operate as represented or warranted by any Provider, or is unsatisfactory for any rea- son, Lessee shall make any claim on account thereof solely against the relevant Provider. So long as Lessee is not in breach or default of this Agreement or any Lease hereunder, Lessor hereby assigns to Lessee, solely for the purpose of making and prosecuting any such claim, any rights which Lessor may have against the Provider for breach of warranty or other repre- sentation respecting any item of the System and Lessee shall hold any proceeds of such claim in trust for application as required by this Agreement. 6. TITLE, PERSONAL PROPERTY, LOCATION AND LIENS: The System is, and shall at all times be and remain the sole and exclusive property of Lessor, and Lessee, notwithstanding any trade-in or down payment made by Lessee or on its behalf with respect to the System, shall have no right, title or interest therein or thereto, except as to the use thereof subject to the terms and conditions of this Agreement and the related Lease. Notwithstanding the preceding sentence, for Leases with a $1.00 purchase option or where Lessee is required to purchase the System at the end of the Lease Term (a “Put Option”), Lessee shall be deemed to be the owner thereof. Lessee will not directly or indirectly create, incur, assume or allow to exist any lien, claim or encumbrance (each, a “Lien”) on or with respect to the System, except such Liens as may arise through the acts or omissions of the Lessor. Lessee, at its own expense, will prompt- ly pay, satisfy or otherwise take such actions as may be necessary to keep the System free and clear of any and all such Liens. The System is and shall at all times shall remain personal prop- erty notwithstanding how it or any item thereof may now be or hereafter become affixed, attached, imbedded in resting upon real property or any improvement thereof. If requested by Lessor, Lessee will promptly obtain and deliver to Lessor waivers of interest or Liens in form satisfactory to Lessor from all persons or entities claiming any interest in the real property or improvements where a System is installed or located. The System shall at all times during the Lease Term be kept at the address designated in each Lease and shall not be removed there- from or released from the possession of the Lessee (except for maintenance by a Provider) without Lessor’s prior written consent. Lessor may, at Lessee’s expense, attach plates or mark- ings to the System indicating the Lessor’s ownership thereof. 7. ASSIGNMENT: LESSEE MAY NOT ASSIGN THIS AGREEMENT, ANY LEASE OR THE RIGHTS HEREUNDER, OR SUBLEASE OR LEND ANY SYSTEM OR ALLOW IT TO BE USED BY ANYONE OTHER THAN LESSEE'S EMPLOYEES WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. No assignment or sublease shall relieve Lessee of its obligations hereunder or under any Lease and Lessee shall remain primarily liable for such obligations. Any sale, assignment, transfer, encumbrance, delegation or