NeoMedia Technologies, Inc.
Exhibit 10.44
Sublease Agreement Between NeoMedia Technologies, Inc. and
Lancaster Annuity Services Company Dated November 8, 1996
SUBLEASE AGREEMENT
This Sublease, dated this 8th day of November 1996 is made between NeoMedia
Technologies, Inc. (formerly DevTech Associates, Inc.) ("Sublessor") and
Lancaster Annuity Services Company and Xx. Xxxxx Xxxxx (collectively,
"Sublessee").
R E C I T A L S:
Sublessor is the lessee under a Lease dated August 29, 1995 (the "Master
Lease") which is attached hereto as Exhibit "A" wherein MGI Properties, a
Massachusetts Trust ("Lessor") leased to Sublessor the real property located in
the City of Naperville, County of DuPage, State of Illinois described as 000
Xxxxxx Xxxxxxxxx, Xxxxx 000 ("Master Premises"). The Master Lease has not been
amended by any agreements.
Sublessee desires to sublease a part or all of the Master Premises.
Sublessor desires to sublease a part or all of the Master Premises to Sublessee.
NOW, THEREFORE, on the terms and conditions provided in this Sublease, the
parties agree as follows:
1. PREMISES.
Sublessor hereby subleases to Sublessee and Sublessee hereby subleases from
Sublessor, on the terms and conditions set forth in this Sublease and the Master
Lease the following portions of the Master Premises:
Beginning December 1, 1996 and ending February 28, 1997, Sublessee shall
sublease that portion of the Master Premises which is outlined on Exhibit "B"
and is approximately 5,035 square feet;
Beginning March 1, 1997 and ending June 30, 1997 Sublessee shall sublease
that portion of the Master Premises which is outlined on Exhibit "C" and is
approximately 6,187 square feet;
Beginning July 1, 1997 and ending December 31, 2000 or the sooner
termination of this Sublease, Sublessee shall sublease the entire Master
Premises which is outlined on Exhibit "D".
The part or all of the Master Premises subleased to Sublessor at any time
shall be referred to as the "Premises. " The Premises are subleased to Sublessee
in AS IS condition and Sublessor makes no agreement to alter or improve the
Premises.
2. TERM.
(a) The Term of this Sublease shall commence on December 1, 1996
("Commencement Date"), or when Lessor consents to this Sublease, whichever shall
last occur, and end on December 31, 2000 ("Termination Date"), unless otherwise
sooner terminated in accordance with the provisions of this Sublease. In the
event the Term commences on a date other than the Commencement Date, Sublessor
and Sublessee shall execute a memorandum setting forth the actual date of
commencement of the Term. Possession of the Premises ("Possession") shall be
delivered to Sublessee on the commencement of the Term. If for any reason
Sublessor does not deliver Possession to Sublessee on the commencement of the
Term, Sublessor shall not be subject to any liability for such failure, the
Termination Date shall not be extended by the delay, and the validity of this
Sublease shall not be impaired, but rent shall xxxxx until delivery of
Possession. Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement Date,
then at any time thereafter and before delivery of Possession, Sublessee may
give written notice to Sublessor of Sublessee's intent to cancel this Sublease.
Said notice shall set forth an effective date for such cancellation which shall
be at least ten (10) days after delivery of said notice to Sublessor. If
Sublessor delivers Possession to Sublessee on or before such effective date,
this Sublease shall remain in full force and effect. If Sublessor fails to
deliver Possession to Sublessee on or before such effective date, this Sublease
shall be canceled, in which case all consideration previously paid by Sublessee
to Sublessor on account of this Sublease shall be returned to Sublessee, this
Sublease shall thereafter be of no further force or effect, and Sublessor shall
have no further liability to Sublessee on account of such delay or cancellation.
If Sublessor permits Sublessee to take Possession prior to the commencement of
the Term, such early Possession shall not advance the Termination Date and
shall be subject to the provisions of this Sublease, including without
limitation the payment of rent.
(b) At any time on or after June 30, 1997, Sublessee may elect to terminate
this Sublease upon written notice to Sublessor; provided, however, that a
condition to Sublessee's right to elect to terminate this Sublease is that the
Lessor shall consent to the termination on terms agreeable to Sublessor of the
Master Lease simultaneous with the termination of this Sublease.
3. RENT.
(a) "Base Rent". Sublessee shall pay to Sublessor as Base Rent, without
deduction, set off, notice, or demand, at 0000 Xxxxxxxxxx Xxxxxx, #000, Xx.
Xxxxx, Xxxxxxx 00000 or at such other place as Sublessor shall designate from
time to time by notice to Sublessee, the Base Rent specified below, in advance
on the first day of each month of the Term.
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TIME PERIOD MONTHLY RENT
----------- ------------
12/01/96 TO 02/28/97: $ 7,552.50 per month
03/01/97 to 06/30/97: $ 9,280.50 per month
07/01/97 to 11/30/97: $13,986.00 per month
12/01/97 to 11/30/98: $14,404.58 per month
12/01/98 to 11/30/99: $14,840.70 per month
12/01/99 to 12/31/00: $15,283.29 per month
Sublessee shall pay to Sublessor upon execution of this Sublease the sum of
Seven Thousand Five Hundred Fifty Two and 50/100 Dollars ($7,552.50) as Base
Rent for the month of December.
(b) "Additional Rent". Sublessee and Sublessor agree that the Sublessee
shall not be responsible for the payment to Lessor of the Additional Rent
provided in the Master Lease. Sublessor shall pay any Additional Rent required
by the Master Lease.
4. UTILITIES.
Except as provided herein, Sublessee shall be solely responsible for the
payment of all services to the Premises which are provided in the Master Lease
to be paid by Sublessor and shall be solely responsible for timely payment for
electrical service to the Premises received directly from the utility company.
Prior to July 1, 1997, Sublessee and Sublessor shall prorate all xxxxxxxx for
services and utilities based on the square footage of the Master Premises
occupied by each, except that any party which requests after hour services shall
be solely responsible for payment of the cost of such services.
5. INSURANCE.
During the entire term of this Sublease, Sublessee, at its sole costs and
expense, agrees to purchase and keep in full force and effect during the term
hereof, the insurance coverage required by the Master Lease. Casualty and
extended coverage policies shall contain a clause pursuant to which the
insurance carriers waive all rights of subrogation against the Sublessor and
Lessor, and their agents and employees with respect to losses payable under said
policies. Sublessor and Lessor shall be named as additional co-insureds on all
insurance policies. Evidence of such insurance shall be delivered to Sublessor
upon demand and shall provide that coverage may not be changed or canceled
without thirty (30) days written notice to Sublessor and Lessor. If Sublessee
should fail to secure and maintain such insurance, Sublessor shall have the
right to do so and to add the cost thereof to the rent due hereunder.
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6. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the
sum of Seven Thousand Five Hundred Fifty-Two and 50/100 Dollars ($7,552.50) as
security for Sublessee's faithful performance of Sublessee's obligations
hereunder ("Security Deposit"). The amount of the Security Deposit shall be
increased to Nine Thousand Two Hundred Eighty and 50/100 Dollars ($9,280.50) on
or before March 1, 1997 and shall be further increased to Thirteen Thousand Nine
Hundred Eighty Six and 00/100 Dollars ($13,986.00) on or before July 1, 1997. If
Sublessee fails to pay rent or other charges when due under this Sublease, or
fails to perform any of its other obligations hereunder, Sublessor may use or
apply all or any portion of the Security Deposit for the payment of any rent or
other amount then due hereunder and unpaid, for the payment of any other sum for
which Sublessor may become obligated by reason of Sublessee's default or breach,
or for any loss or damage sustained by Sublessor as a result of Sublessee's
default or breach. If Sublessor so uses any portion of the Security Deposit,
Sublessee shall, with ten (10) days after written demand by Sublessor, restore
the Security Deposit to the full amount originally deposited, and Sublessee's
failure to do so shall constitute a default under this Sublease. Sublessor shall
not be required to keep the Security Deposit separate from its general accounts,
and shall have no obligation or liability for payment of interest on the
Security Deposit. In the event Sublessor assigns its interest in this Sublease,
Sublessor shall deliver to its assignee so much of the Security Deposit as is
then held by Sublessor. Within ten (10) days after the Term has expired, or
Sublessee has vacated the Premises, or any final adjustment pursuant to
Subsection 3(b) hereof has been made, whichever shall last occur, and provided
Sublessee is not then in default of any of its obligations hereunder, the
Security Deposit, or so much thereof as had not theretofore been applied by
Sublessor, shall be returned to Sublessee or to the last assignee, if any, of
Sublessee's interest hereunder.
7. USE OF PREMISES.
The Premises shall be used and occupied only for general business offices
and related purposes and for no other use or purpose.
8. ALTERATIONS.
The Sublessee shall not make any alterations, improvements or additions to
the Premises without the prior written consent of Sublessor and Lessor.
Sublessor hereby consents to Sublessee, at its own expense, (i) installing a
double lock on the rear door of the Premises where indicated on Exhibit B and
(ii) installing a door to the Premises at the location indicated on Exhibit B.
Sublessor shall cooperate with Sublessee in obtaining Lessor's consent to such
construction. All construction drawings shall be subject to Sublessor's
approval. All construction shall be performed in accordance with the provisions
of the Master Lease.
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9. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee as follows:
(a) The Master Lease has not been amended or modified, except as expressly
set forth herein;
(b) Sublessor is not now, and as of the commencement of the Term hereof
will not be, in default or breach of any of the provisions of the Master Lease;
(c) Sublessor has no knowledge of any claim by Lessor that Sublessor is in
default or breach of any of the provisions of the Master Lease; and
SUBLESSOR MAKES NO OTHER REPRESENTATIONS OR WARRANTIES TO SUBLESSEE, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES AS TO
THE CONDITION OR REPAIR OF THE PREMISES.
10. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet any part of the
Premises without the prior written consent of Sublessor and Lessor. Sublessee
shall give notice and all documents required under the Master Lease to Sublessor
at least forty-five (45) days prior to the intended commencement date of any
proposed sublease. Notwithstanding the consent of the Lessor and Sublessor to
sublease a part of the Premises, in no event shall any sublease of the Premises
exceed thirty-three (33%) of the Premises.
11. FURNITURE.
(a) Sublessor agrees to lease the wooden furniture listed on Exhibit "E"
attached hereto (the "Wood Furniture") to Sublessee at no additional rent or
fee for the term of the Lease. Sublessor makes no representations or warranties
with respect to the Wood Furniture, including but not limited to, any
representations or warranties as to the condition or repair of the Wood
Furniture. Upon the expiration of this Sublease without any breach or default on
the part of Sublessee or on termination of this Sublease pursuant to Section
2(b), Sublessee may elect to purchase the Wood Furniture for consideration of
$1.00. Upon payment of $1.00 to Sublessor, Sublessor shall transfer all right,
title and interest in and to the Wood Furniture to Sublessee in AS IS condition
without representation or warranty. At Sublessor's request, Sublessee shall sign
a UCC Financing Statement to be filed by Lessor to record its ownership interest
in the Wood Furniture.
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(b) On or before March 1, 1997, Sublessor and Sublessee shall agree upon
and Sublessor shall sublease to Sublessee certain metal furniture to be
identified by the parties which shall be listed on Exhibit "F" to be attached
hereto (the "Metal Furniture") under the terms and conditions of that certain
Lease dated June 29, 1995 between Sublessor, as lessee, and The First National
Bank of Chicago, as lessor, which is attached hereto as Exhibit "G" (the "Metal
Furniture Lease"). Sublessor hereby consents to and Sublessee shall have a
license to use the metal furniture located in the Premises from December 1, 1996
through February 28, 1997. In consideration for such license, Sublessee shall
pay to Sublessor on or before the first day of each month during which Sublessor
shall use the such metal furniture, an amount equal to (i) the monthly rent due
under the terms of the Metal Furniture Lease multiplied by (ii) a fraction the
numerator of which is the square footage of the Premises during such month and
the denominator of which is the square footage of the Master Premises. The
provisions of this Section 11(b) shall be null and void if The First National
Bank of Chicago agrees to cancel the Metal Furniture Lease and enter into a
lease with Sublessee for the Metal Furniture. In that event, Sublessor shall
consent to termination of the Metal Furniture Lease and the execution of a lease
between The First National Bank of Chicago and Sublessee for the Metal
Furniture. Upon execution of the lease, Sublessor shall have no further
liability or obligation with respect to the Metal Furniture or the Metal
Furniture Lease.
12. DEFAULT.
If Sublessee shall at any time be in default in the payment of rent herein
reserved and Sublessee shall fail to remedy such default within five (5) days or
if Sublessee shall at any time be in default in the performance of any of the
other covenants, terms, conditions, or provisions of this Sublease and Sublessee
shall fail to remedy such default within fifteen (15) days after written notice
thereof from Sublessor or if Sublessee shall make an assignment for the benefit
of creditors or if a receiver of any property of Sublessee in or upon the
Premises be appointed in any action, suit, or proceeding by or against Sublessee
and the decree of order not set aside, vacated, or stayed within sixty (60) days
of entry thereof or if the interest of Sublessee in the Premises shall be sold
under execution or other legal process or if Sublessee shall file a petition in
bankruptcy or a petition shall be filed against Sublessee in bankruptcy and not
set aside, vacated or stayed within thirty (30) days after entry, it shall be
lawful for Sublessor to enter upon the Premises and again have, repossess, and
enjoy Premises as if this Sublease had not been made, and thereupon this
Sublease and everything herein contained on the part of the Sublessor to be done
and performed shall cease and determine, without prejudice, however, to the
right of Sublessor to recover from Sublessee all rent due up to the time of such
entry or any other rights of Sublessor. In the case of any default and re-entry
by Sublessor, Sublessor may relet the Premises for the remainder of the term of
this Sublease thereof for the highest rent obtainable by Sublessor and may
recover from Sublessee any deficiency between the amount so obtained less
Sublessor's costs and expenses including attorneys' fees in connection with such
entry and reletting and the Base Rent and Additional Rent to be paid under this
Sublease. Sublessee shall indemnify and hold harmless Sublessor for all damages,
liabilities, interest,
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penalties, costs and expenses, including attorneys' fees and expenses, incurred
by Sublessor as a result of any default by Sublessee hereunder.
13. INDEMNIFICATION.
Sublessee shall indemnify, defend and hold harmless Sublessor from any and
all suits, actions, proceedings, damages, liabilities, costs and expenses as a
result of or arising out of Sublessee's occupancy of the Premises.
14. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are incorporated
into and made a part of this Sublease as if Sublessor were the lessor
thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises, except that Sublessee shall have no rights under the provisions of
Rider No. 1 to the Master Lease. Sublessee assumes and agrees to perform the
lessee's obligations under the Master Lease during the Tenn to the extent that
such obligations are applicable to the Premises, except that the obligation to
pay rent to Lessor under the Master Lease shall be considered performed by
Sublessee to the extent and in the amount rent is paid to Sublessor in
accordance with Section 3 of the Sublease. Sublessee shall not commit or suffer
any act or omission that will violate any of the provisions of the Master Lease.
Sublessor shall exercise due diligence in attempting to cause Lessor to perform
its obligations under the Master Lease for the benefit of Sublessee. If the
Master Lease terminates, this Sublease shall terminate and the parties shall be
relieved of any further liability or obligation under this Sublease, provided,
however, that if the Master Lease terminates as a result of a default or breach
by Sublessor or Sublessee under this Sublease and/or the Master Lease, then the
defaulting party shall be liable to the nondefaulting party for all damages
suffered as a result of such termination, including, but not limited to,
attorneys' fees and expenses. Notwithstanding the foregoing, if the Master Lease
gives Sublessor any right to terminate the Master Lease in the event of the
partial or total damage, destruction, or condemnation of the Master Premises or
the building or project of which the Master Premises are a part, the exercise of
such right by Sublessor shall not constitute a default or breach hereunder.
15. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Lessor shall commence an action against the
other arising out of or in connection with the Sublease, the prevailing party
shall be entitled to recover its costs of suit and reasonable attorney's fees.
16. INTEREST.
If not paid when due, any installments of Base Rent shall bear interest as
provided in the Master Lease from the date such payment is due to the payment
date.
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17. AGENCY DISCLOSURE.
Sublessor and Sublessee each warrant that they have dealt with no other
real estate broker in connection with this transaction except: SUBURBAN REAL
ESTATE SERVICES, INC., ("Broker") who represents NeoMedia Technologies, Inc. and
Commercial Group, R.E. ("Cooperating Broker") who represents Lancaster Annuity
Services Company.
18. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor, Sublessor
shall pay Broker a real estate brokerage commission in accordance with
Sublessor's contract with Broker for the subleasing of the Premises. Sublessor
shall have no responsibility to pay Cooperating Broker any commission
whatsoever.
19. NOTICES.
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All notices
and demands by the Sublessor to Sublessee shall be sent by United States Mail,
postage prepaid, addressed to the Sublessee at the address hereinbelow, or to
such other place as Sublessee may from time to time designate in a notice to the
Sublessor. All notices and demands by the Sublessee to Sublessor shall be sent
by United States Mail, postage prepaid, addressed to the Sublessor at the
address set forth below, and to such other person or place as the Sublessor may
from time to time designate in a notice to the Sublessee.
To Sublessor: NeoMedia Technologies, Inc.
0000 Xxxxxxxxxx Xxxxxx, #000
Xx. Xxxxx, Xxxxxxx 00000
To Sublessee: 000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
20. SEVERABILITY.
The invalidity of any provision of this Sublease shall not impair or
otherwise adversely affect the validity of any other provision.
21. GOVERNING LAW.
This Sublease shall be governed by, and construed in accordance with the
laws of the State of Illinois applicable to contracts made and performed in that
State.
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22. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR.
Sublessor: Sublessee:
NEOMEDIA TECHNOLOGIES, INC., LANCASTER ANNUITY SERVICES
formerly DevTech Associates, Inc. COMPANY
By /s/ XXXXXXX X. XXXXX By /s/ XXXXX XXXXX
---------------------- -----------------------
Title President Title CEO
---------------------- -----------------------
Date 11/9/96 Date 11/8/96
---------------------- -----------------------
/s/ XXXXX XXXXX
-----------------------------
Xxxxx Xxxxx
Date
------------------------
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Date November 26, 1996
-----------------------
Lessor MGI Properties, a Massachusetts Trust
By /s/ ILLEGIBLE
-----------------------
Title Exec. Vice President
-----------------------
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EXHIBIT "A" Page 1 of 3
SOURCE: EXISTING PROJECT COMPARISION REPORT
PROCUREMENT: FUTURE PRODUCT SUMMARY
QUANTITIES QUANTITIES
CATEGORY PRODUCT NUMBER DESCRIPTION EXISTING FUTURE REQ'D EXTRA
-----------------------------------------------------------------------------------------------------------------------------------
CONNECTORS 801043-P-[7-7]-Q PANEL CONNECTOR, STRAIGHT 43H 43 46 3 0
801069-P-[7-7]-Q PANEL CONNECTOR, STRAIGHT 69H 44 8 0 3
801082-P-[7-7]-Q PANEL CONNECTOR, STRAIGHT 82H 6 6 0 0
801143-P-[7-7]-Q /ILLEGIBLE/4 DEGREE "ELL" CONNECTOR 43H 8 8 0 0
801165-P-[7-7]-Q /ILLEGIBLE/4 DEGREE "ELL" CONNECTOR 69H 5 5 0 0
801182-P-[7-7]-Q /ILLEGIBLE/4 DEGREE "ELL" CONNECTOR 82H 3 2 0 1
801242-P-[7-7]-Q 3-WAY "TEE" CONNECTOR 43H 7 3 0 4
801289-P-[7-7]-Q 3-WAY "TEE" CONNECTOR 69H 1 1 0 0
801282-P-[7-7]-Q 3-WAY "TEE" CONNECTOR 82H 0 1 1 0
801445-P-[7-7]-Q PANEL END COVER 43H 10 14 0 5
801440-P-[7-7]-Q PANEL END COVER 69H 2 2 0 0
801482-P-[7-7]-Q PANEL END COVER 82H 1 0 0 1
801582-Q PANEL MOUNT WALL KIT 32H 1 0 0 1
801602-Q VARIABLE HEIGHT PANEL END COVER, 2 PANELS 5 4 0 1
801603-Q VARIABLE HEIGHT PANEL END COVER, 3 PANELS 1 1 0 0
ELECTRICAL 871601-Q DUPLEX RECEPTACLE CIRCUIT 1 25 24 0 1
871604-Q DUPLEX RECEPTACLE CIRCUIT 4 24 24 0 0
DATA DATA AND COMMUNICATIONS OUTLET 25 24 0 1
PANELS 894324-P-[7-7]-Q ACOUSTICAL PANEL 42H,24W,2D 2 0 0 2
894330-P-[7-7]-Q ACOUSTICAL PANEL 42H,30W,2D 5 4 0 1
894338-P-[7-7]-Q ACOUSTICAL PANEL 42H,36W,2D 29 32 3 0
894342-P-[7-7]-Q ACOUSTICAL PANEL 42H,42W,2D 37 34 0 3
894348-P-[7-7]-Q ACOUSTICAL PANEL 42H,43W,2D 1 0 0 1
896930-P-[7-7]-Q ACOUSTICAL PANEL 69H,30W,2D 2 0 0 2
896936-P-[7-7]-Q ACOUSTICAL PANEL 69H,36W,2D 8 6 0 0
896942-P-[7-7]-Q ACOUSTICAL PANEL 69H,42W,2D 7 5 0 1
858290-P-[7-7]-Q ACOUSTICAL PANEL 82H,30W,2D 1 0 0 1
858236-P-[7-7]-Q ACOUSTICAL PANEL 82H,36W,2D 9 4 1 0
858242-P-[7-7]-Q ACOUSTICAL PANEL 82H,42W,2D 3 4 1 0
894248-P-[7-7]-Q ACOUSTICAL PANEL 82H,46W,2D 3 0 0 3
PEDESTALS 149238-Q PEDESTAL, HANGING, BOX/FILE 19H,22-7/80,15W 26 24 0 1
STORAGE 860130-Q STORAGE CABINET W/DOORS AND LOCK, 30W,14W,14-1/4H,10H 2 0 0 2
860136-Q STORAGE CABINET W/DOORS AND LOCK, 38W,14W,14-1/4H,10H 8 9 0 0
WORK
SURFACES 0000XXX-X-X XXXXXXXXXXX, XXXXXX XXXX, XXXXXX, 00X,00-0/0X,00X 24 24 0 0
822436A-Q-Q WORKSURFACE, RADIAL EDGE 36W,24D,1-1/2H 26 29 0 0
822460A-Q-Q WORKSURFACE, RADIAL EDGE 60W,24D,1-1/2H 3 2 0 1
822472A-Q-Q WORKSURFACE, RADIAL EDGE 72W,24D,1-1/4H 3 9 0 0
WORKSURF
SUPPO 631520-Q SUPPORT LEG 25-1/2H,24D 48 48 0 0
831828-Q FULL END PANEL, LEFT 28-1/2H,24D 15 13 0 2
831928-Q FULL END PANEL, RIGHT 29-1/2H,24D 15 13 0 2
SEATING 0000-XX-00X XXXXXXXXX, XXXXXXXX, X/XXXX 00-0/0X,
0/XXXXXXXXX/-0/0X,00-0/0X 1 0 0 1
8008-AD-84G GUEST CHAIR, SLED BASE W/ARMS 1 1 0 0
8015-AD-84G EXECUTIVE CHAIR, PNEUMATIC, W/ARMS, 25-3/4W,27-1/2D,
36-1/2H 24 24 0 0
8106G-AD-84G EXECUTIVE CHAIR, GLIDES, W/ARMS, 27-1/2H,253/4D,36-1/2 2 0 0 2
6115-AD-84G EXECUTIVE CHAIR, PNEUMATIC, W/ARMS, 27-1/2W,25-3/4D,
36-1/2H 16 14 0 2
CONNECTORS 2WAY45 2 WAY CONNECTOR 46H 0 6 0 0
2WAY68 2 WAY CONNECTOR 68H 1 0 0 1
3WAY45 3 WAY CONNECTOR 45H 3 1 0 2
4WAY45 4 WAY CONNECTOR 45H 2 2 0 0
PAGE 1
EXHIBIT "A" Page 2 of 3
SOURCE: EXISTING PROJECT COMPARISION REPORT
PROCUREMENT: FUTURE PRODUCT SUMMARY
QUANTITIES QUANTITIES
CATEGORY PRODUCT NUMBER DESCRIPTION EXISTING FUTURE REQ'D EXTRA
-----------------------------------------------------------------------------------------------------------------------------------
CONNECTORS END46 END CONNECTOR 2-1/4W,2-1/4D,46H 22 19 0 0
END36 END CONNECTOR 68H 1 0 0 1
ELECTRICAL DUP.EX DUPLEX OUTLET 20 6 0 14
PANELS PAN3044 (WOOD) PANEL, 30W,44H 2 2 0 0
PAN4524 PANEL, 24W,45H,2-1/4D 1 1 0 0
PAN4530 PANEL, 30W,45H,2-1/4D 9 9 0 0
PAN4542 PANEL, 42W,45H,2-1/4D 33 30 0 3
PAN4844 (WOOD) PANEL, 48W,44H 1 1 0 0
PAN8630 PANEL, 30W,66H,2-1/4D 1 0 0 1
PAN8644 (WOOD) PANEL, 66W,44H 1 1 0 0
PAN8648 PANEL, 46W,68H,2-1/4D 1 0 0 1
PEDESTALS BBB (WOOD) PEDESTAL, BOX/BOX/BOX 1 1 0 0
BBBH (WOOD) PEDESTAL, BOX/BOX/BOX MACHINE HEIGHT 1 1 0 0
BBF (WOOD) PEDESTAL, BBF 5 1 0 4
FF PEDESTAL, FF 29 25 0 4
STORAGE TRANS66 (WOOD) TRANSACTION XXXXXXX 00X, 00-0/0X,0-0/0X 0 0 0 0
XXXXXXXX XXXX0000 WORKSURFACE 30W,24D,1-1/2H 16 12 0 4
WORK4224 WORKSURFACE 42W,24D,1-1/2H 17 13 0 4
WORK4242C WORKSURFACE, CORNER 42W,42D,1-1/2H 16 12 0 4
WORK4824 (WOOD) WORKSURFACE 48W,24D,1-1/2H 1 1 0 0
WORK6630 (WOOD) WORKSURFACE 66W,30D,1-1/2H 1 1 0 0
WORK7224 WORKSURFACE 32W,24D,1-1/2H 1 1 0 0
WORK7730R WORKSURFACE, ROUNDED END 72W,30D,1-1/2H 1 1 0 0
WORKSURF ENDP24 END PANEL 24W,28H,2D 28 24 0 4
SUPPO SUPTCOL SUPORT COLUMN 1 1 0 0
SEATING LOUNGE-BURGUNDY LOUNGE CHAIR 33-1/2W,29D,30H 3 3 0 0
LEATHER
SEC-BURGUNDY SECRETARIAL CHAIR 3 0 0 5
TABLES TAB4821 COFFEE TABLE 45W,21D,18H 1 1 0 0
EXHIBIT "A" Page 3 of 3
Cubicle pieces currently stored at Xxxxxxx Storage, Naperville:
8 6 foot workspaces
1 5 foot workspaces
3 middle joining pieces
17 panels that have a #623810 listed on the edge
8 ea. 36x60
7 ea. 42x42
2 ea. 48x60
2 5x5 partitions
1 chair 6015/6115 ?
11 2 drawer files for Xxxxxxx
1 large box of miscellaneous hardware
4 wood pencil drawers - do not know if these go with the Xxxxxxx or Hon
Sublease Agreement
Exhibit B
Exhibit B presents a diagram of the approximate 5,035 square feet to be sublet
and the approximate 4,289 square feet to be retained by NeoMedia.
Sublease Agreement
Exhibit C
Exhibit C presents a diagram of the approximate 6,187 square feet to be sublet
and the approximate 3,137 square feet to be retained by NeoMedia.
Sublease Agreement
Exhibit D
Exhibit D presents a diagram of the approximate 9,324 square feet to be sublet.
Exhibit E
Wood Furniture Leased
ROOM # QUANTITY DESCRIPTION
------ -------- -----------
101 3 Red Leather Chairs
101 1 Glass-Top Table
101 1 Receptionists Wood Desk
101 1 Wood Credenza
102 1 Executive Wood Desk
102 1 Executive Swivel Chair
102 2 Executive Chairs
102 1 Wood Credenza
102 1 Wood File Cabinet
103 1 Wood Desk
103 2 Chairs
103 1 Wood Credenza
103 1 Wood File Cabinet
104 1 Wood Desk
104 2 Chairs
104 1 Wood Credenza
104 1 Wood File Cabinet
106 1 Wood File Cabinet
107 1 Wood Credenza
107 1 Wood File Cabinet
110 1 Wood Desk
110 1 Chairs
110 1 Wood Credenza
110 1 Wood File Cabinet
113 3 Metal Shelves
113 1 Wood Desk
123 1 Conference Table
EXHIBIT "F"
To be agreed by Sublessor and Sublessee.
Exhibit "G"
MASTER LEASE
------------
This Master Lease Agreement("Master Lease")dated June 29, 1995 between NBD Bank
("Lessor"), of 000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and DevTech
Associates, Inc. ('Lessee').
Lessee wants from time to time to lease from Lessor personal property to be
described in one or more Schedules of leased equipment. Lessor is willing to
lease such personal property to Lessee at the rent, for the term and upon the
conditions stated. Any present and future Schedules executed by Lessor and
Lessee which are identified as being a part of this Master Lease, shall be
deemed to incorporate by reference all the terms and conditions of this Master
Lease except as provided in any such Schedule. In the event of a conflict
between this Master Lease and any Schedule, the provisions of such Schedule
shall control.
1. EQUIPMENT LEASED AND TERM. This Master Lease shall cover such
personal property as is described in any Schedule executed by or
pursuant to the authority of Lessee, accepted by Lessor in writing and
identified as a part of this Master Lease (which personal property with
all replacement parts, additions, repairs accessions and accessories
incorporated in and/or affixed to the personal property is referred to
as the "Equipment"). Lessor leases to Lessee and Lessee hires and takes
from Lessor, upon and subject to the covenants and conditions of this
Master Lease, the Equipment described in any Schedule. The term and
rental of the Master Lease with respect to any item of Equipment shall
be for the period as set forth in the Schedule (the "Initial Lease
Term").
2. RENT. The aggregate rent payable with respect to each item of
Equipment shall be in the amount shown with respect to such item on the
Schedule. Lessee shall pay to Lessor the aggregate rental for each item
of Equipment for the full period and term for which the Equipment is
leased, such rental to be payable at such times and in such amounts for
each item of Equipment as shown in the applicable Schedule.
3. PURCHASE AND ACCEPTANCE. Lessee requests Lessor to acquire all
scheduled Equipment pursuant to an assignment of Lessee's purchase
order(s) for the Equipment. Delivery of each item of Equipment shall
be deemed complete upon the acceptance date ("Acceptance Date") stated
in the Schedule for each item of Equipment. Lessor shall not be liable
for loss or damage or for the delay or failure of any supplier of the
Equipment ("Seller") to fill or deliver the order for any item of
Equipment. THE LESSEE REPRESENTS THAT LESSEE HAS SELECTED BOTH THE
EQUIPMENT LISTED IN ANY SCHEDULE AND THE EQUIPMENT SELLER BEFORE
HAVING REQUESTED LESSOR TO ACQUIRE SAME FOR LEASING TO LESSEE.
4. NON-CANCELABLE LEASE. THIS MASTER LEASE IS NON-CANCELABLE. When
Lessee signs and delivers a certificate of Acceptance for the
Equipment, its obligations to pay all rent for the Initial Lease Term
and other amounts when due for the Equipment and otherwise to perform
as required under this Master Lease are unconditional, irrevocable and
independent. These obligations are not subject to cancellation,
termination, modification repudiation, excuse or substitution by
Lessee. Lessee is not entitled to any abatement, reduction, offset,
defense or counterclaim with respect to these obligations for any
reason whatsoever, whether arising out of default or to other claims
against Lessor or the manufacturer or supplier of the Equipment,
defects in or damage to the Equipment, its loss or destruction or
otherwise
5. DISCLAIMER OF WARRANTIES BY LESSOR; RIGHTS OF LESSEE. LESSOR MAKES
NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING
THE CONDITIONS OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR
ANY PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT
"AS-IS". UNDER NO CIRCUMSTANCES SHALL LESSOR BE RESPONSIBLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS MASTER
LEASE AND/OR THE EQUIPMENT. LESSEE MAY COMMUNICATE WITH THE SELLER AND
RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF THOSE RIGHTS, PROMISES
AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF THEM OR
OF REMEDIES.
6. CLAIMS AGAINST SELLER: SELLER NOT AN AGENT OF LESSOR. If the
Equipment is not properly installed, does not operate as represented or
warranted by the Seller or is unsatisfactory for any reason, Lessee
shall make any claim on account thereof solely against the Seller and
shall nevertheless pay Lessor all rent payable under this Master Lease.
Lessor agrees to assign to Lessee, solely for the purpose of making and
prosecuting any such claim, any rights it may have against the Seller
for breach of warranty or representation respecting the Equipment.
Notwithstanding any fees that must be paid to Seller or any agent of
Seller, Lessee understands and agrees that neither the Seller nor any
agent or employee of the Seller is an agent or employee of the Lessor
and that neither the Seller nor its agent or employee is authorized to
waive or alter any term or condition of this Master Lease.
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7. TITLE: LOCATION OF THE EQUIPMENT; EQUIPMENT IS PERSONAL PROPERTY;
TERMINATION. Title to the Equipment is in the Lessor and under no
circumstances shall pass to Lessee. The Equipment shall be kept at
Lessee's address indicated in the applicable Schedule and shall not be
removed without the [prior written consent of Lessor, provided,
however, in no event shall Lessor be required to consent to the removal
of any item of Equipment to a location outside of the continental
United States. Lessee further covenants and agrees that the Equipment
is, and will at all times be and remains, personal property. At each
scheduled termination date, or upon Lessee's default, Lessee, at its
own expense, shall assemble and deliver the Equipment to Lessor at the
location designated by Lessor, in good order and repair, ordinary wear
and tear excepted. Lessee shall give Lessor 90 days written notice
prior to each scheduled termination date, that it is returning the
Equipment.
8. NO ASSIGNMENT BY LESSEE: ASSIGNMENT BY LESSOR. THIS MASTER LEASE
SHALL NOT BE ASSIGNED BY LESSEE, NOR SHALL ANY OF THE EQUIPMENT BE
SUBLEASED BY LESSEE WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
Lessor may at any time sell or assign to any bank, or financial
institution, or any person, firm, or corporation all or part of its
right, title and interest in and to this Master Lease and in and to
each item of Equipment and monies to become due to the Lessor, and
Lessor may grant security interests in the Equipment, subject to the
Lessee's rights as set forth in this Master Lease, and in such events,
all the provisions of this Master Lease for the benefit of Lessor shall
inure to the benefit of and be exercised by or on behalf of such
assignee, but the assignee, shall not be liable for or be required to
perform any of Lessor's obligations to Lessee. All rental payments due
and to become due under this Master Lease and assigned by Lessor shall
be paid directly to assignee, upon written notice of such assignment to
Lessee. The right of the assignee to the payment of assigned rentals
and performance of all Lessee's obligations and to exercise any other
of Lessor's rights rights shall not be subject to any defense,
counterclaim or setoff which the Lessee may have or assert against the
Lessor. Lessee agrees that it will not assert any such defenses,
setoffs, counterclaims and claims against the assignee.
9. CASUALTY AND LIABILITY INSURANCE, RISK OF LOSS, DAMAGE OR
DESTRUCTION. Lessee shall keep all Equipment insured against loss by
fire, theft and all other hazards (comprehensive coverage) in such
amounts as Lessor requires (but not less than the casualty value (the
"Casualty Value") for such item indicated in the Casualty Table
attached to the applicable Schedule). Such insurance shall be with
insurers and in form, amount and coverage satisfactory to Lessor.
Lessee appoints Lessor Lessee's attorney in fact top endorse any loss
payments or returned premium check and to make any claim under such
insurance. Lessee shall also insure the Lesssor and Lessee with respect
to liability for personal injuries, damage to or loss of use of
property resulting from the ownership, use and operation of the
Equipment with insurers satisfactory to Lessor in amounts and against
risks customarily insured against by the Lessee for equipment owned by
it. All policies shall be endorsed with Lessor as a loss payee and
additional insured and shall contain provisions (a) that such insurance
shall not be cancelled except upon thirty days written notice to Lessor
at the address set forth under its name below and (b) that the interest
of Lessor shall not be invalidated by any act of Lessee. The policies
of insurance or any endorsement certificates shall be delivered to
Lessor within 30 days after any scheduled Acceptance Date. In the event
of loss, destruction or theft of, or damage to, any of the Equipment,
Lessee will immediately notify Lessor. Upon Lessor's and any assignee's
written consent, Lessee may act as a self-insurer in amounts acceptable
to Lessor and any assignee.
If Lessee defaults in obtaining any insurance to be provided, Lessor
may, but is not required to place such insurance. Any premiums paid by
Lessor shall be additional rent payable on demand with interest at the
highest legal rate from the date of payment. At Lessor's sole option,
such amounts together with interest may be added to the lease balance
to be paid by Lessee as additional monthly rent. NOTWITHSTANDING THE
PROVISIONS OF THIS PARAGRAPH, LESSEE WILL HOLD LESSOR HARMLESS AGAINST
ANY SUCH CLAIM OR LIABILITY (INCLUDING ATTORNEY'S FEES, COSTS AND
EXPENSES FOR ANY DEFENSE) ARISING OUT OF THE OWNERSHIP, USE OR
OPERATION OF THE EQUIPMENT DURING THE PERIOD OF THIS MASTER LEASE AND
UNTIL THE EQUIPMENT IS RETURNED TO AND ACCEPTED BY THE LESSOR.
Lessee assumes and shall bear all risks of loss of, damage to or
destruction of each item of Equipment, whether partial or complete.
Except as provided in this Section 9, no such event shall relieve the
Lessee of its obligation to pay the full rental payable for such item.
If any item of Equipment is damaged (but not beyond economical repair),
Lessee must promptly notify Lessor and, within 60 days of such damage,
shall repair the item at its own expense and restore it to the same
state and condition as required under this Master Lease. Lessee shall
then be entitled to receive from Lessor or any assignee, any insurance
proceeds received in connection with such damage.
If any item of Equipment is destroyed, damaged beyond economical
repair, lost or stolen, or taken by governmental action for a stated
period extending beyond the Initial Lease Term for such item (an "Event
of Loss"), Lessee must promptly notify Lesssor and any assignee and pay
to Lessor or the assignee, as the case my be, on the next rent payment
date following the Event of Loss the Casualty Value of the item of
Equipment. Upon such payment and provided no Event of Default as
defined in Section 12 has occurred, Lessee's obligation to pay rent for
such item of
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Equipment will cease and Lessee will be entitled to receive any
insurance proceeds or other recovery received by the Lessor or assignee
in connection with the Event of Loss.
10. REPAIRS; USE; ALTERATIONS. Lessee, at its own expense, shall keep
the Equipment maintained in good repair, condition and working order;
shall use the Equipment lawfully and shall not alter the Equipment
without the Lessor's prior written consent. All items which become
attached to or a part of the Equipment become the property of Lessor.
Lessee will at all times during the initial Lease Term of each Schedule
maintain in force a maintenance agreement covering each item of
Equipment with the manufacturer of the Equipment or such other party as
is acceptable to Lessor. Lessor, or Lessor's assignee, shall have the
right but not the obligation to inspect the Equipment during Lessee's
normal business hours.
11. LIENS AND TAXES. Lessee at its expense shall keep the Equipment
free and clear of all levies, liens and encumbrances. Lessee shall
declare and pay all charges and taxes (local, state and federal) which
may now or hereafter be imposed or levied upon the Master Lease,
rental, operation, leasing, sale, ownership, possession or use of the
Equipment excluding all taxes based upon income or gross receipts of
Lessor. Upon the request of Lessor, Lessee shall provide evidence of
such payment.
12. DEFAULT. Any of the following shall constitute an event of default
("Event of Default") by Lessee: (a) Lessee fails to pay when due any
scheduled rent or other amount required by this Master Lease; (b)
Lessee breaches any covenant of this Master Lease or fails to promptly
perform any of its terms or conditions, including but not limited to
return of the leased Equipment at the expiration of any scheduled lease
term, (c) Lessee makes an assignment for the benefit of creditors: (d)
a petition is filed by or against Lessee in bankruptcy or for the
appointment of a receiver; (e) dissolution or suspension of Lessee's
usual business; (f) Lessee makes a bulk transfer or sale of furniture,
furnishing, fixtures, or other equipment or inventory; (g) any
representation, warranty, or signature made by Lessee in this Master
Lease or related document is incorrect, fraudulent or breached; (h)
Lessee defaults under the terms of any agreement or instrument relating
to any lease or debt for borrowed money such that the Lessor
accelerates the rent or the creditor declares the debt due before its
maturity; or (i) Lessee or any guarantor gives Lessor reasonable cause
to be insecure about Lessee's or guarantors willingness or ability to
perform the obligations under this Master Lease. Lessee covenants and
agrees to give Lessor prompt notice upon the occurrence of an event of
default, and the Lessee's failure to give such notice shall constitute
a further event of default.
13. LESSOR'S REMEDIES UPON DEFAULT BY LESSEE. Upon the occurrence of an
event of default, Lessor without further notice may (i) recover from
Lessee the Casualty Value of the Equipment together with any unpaid
rent and (ii) regardless of whether such amounts are paid, take
possession of any item or items or Equipment with or without process of
law and at Lessor's option sell or lease at public auction or by
private sale or otherwise dispose of such item or items of Equipment
free and clear of any rights of Lessee an without any duty to account
to Lessee except as expressly provided in this Section 13.
If Lessee shall have paid the Casualty Value and unpaid rent referred
to above and all other amounts owing under this Master Lease and any
items of Equipment have been taken from Lessee, the proceeds of any
reletting or sale (less all costs and expenses including attorneys'
fees) shall be paid to reimburse the Lessee for the Casualty Value up
to the amount previously paid. Any surplus remaining after such payment
will be retained by the Lessor.
In addition, Lessor may exercise any other right or remedy available to
Lessor at law or in equity including rights of setoff. Regardless of
any sale or lease of the Equipment or any payment of the Casualty
Value, Lessee will remain liable to Lessor for all damages as provided
by law and for all costs and expenses incurred by Lessor including
court costs and attorneys' fees. No remedy under this Master Lease is
intended to be exclusive, but each remedy shall be cumulative and in
addition to any other remedy available at law or in equity.
14. RENEWAL. If the Equipment is not delivered to Lessor at any
scheduled termination date in accordance with paragraph 7, then the
Initial Lease Term shall renew on a month to month basis upon the same
terms and conditions, subject to the right of Lessor or Lessee to
terminate the renewed term on 30 days written notice, in which event,
the Equipment shall immediately be returned to Lessor.
15. LATE CHARGES. Without limiting Lessor's remedies above, if Lessee
shall fail to pay any amount of rental or other payment for a period of
ten days after its due date, Lessee agrees to pay Lessor a late charge
of 5% of each such payment or installment with a minimum late charge
being $10.00. This late charge shall be reassessed in each subsequent
month that the rental or other payment remains unpaid.
16. FINANCING STATEMENTS. The Lessor is authorized to file a financing
statement in accordance with the Uniform Commercial Code signed by
Lessee or by Lessor, as Lessee's attorney in fact.
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17. JURISDICTION; VENUE; SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF ILLINOIS. LESSEE CONSENTS TO THE
JURISDICTION OF THE COURTS OF ILLINOIS. No provision which may be
construed as unenforceable shall in any way invalidate any other
provision, all of which shall remain in full force and effect.
18. WARRANTIES BY LESSEE. Lessee warrants and represents the; (a) the
Equipment is being leased for business purposes; (b) all signatures are
genuine; (c) the person signing the Master Lease is authorized to do
so; (d) if more than one Lessee is named, the liability of each is
agreed to be joint and several; (e) the execution and performance of
this Master Lease, each Schedule and related documents and the
performance of the obligations they impose, do not violate any law and
do not conflict with any agreement by which Lessee is bound, and that
no consent or approval of any governmental authority or any third party
is required in connection with the execution or delivery of this Master
Lease, any Schedule or related documents, and that this Master Lease,
each Schedule and related documents are valid and binding agreements,
enforceable in accordance with their terms and; (f) there are no
actions, suits or proceedings pending, or to the knowledge of the
Lessee threatened, before any court, administrative agency, arbitrator
or governmental body which will, if determined adversely to the Lessee,
materially adversely affect its ability to perform its obligations
under this Master Lease or any related agreement to which it is a
party. If Lessee is other than a natural person, it further represents
that (a) it is duly organized, existing and in good standing pursuant
to the laws under which it is organized; and (b) the execution and
delivery of this Master Lease and the performance of the obligations it
imposes are within its power and have been duly authorized by all
necessay action of its governing body and do not contravene the terms
of its articles of incorporation or organization, its bylaws, or any
partnership, operating or other agreement governing its affairs.
19. IDEMNITY BY LESSEE. Lessee agrees to indemnify and hold Lessor or
any assignee harmless from any and all claims, actions, proceeding,
expenses, damages and liabilities, including attorneys' fees, arising
out of or in any manner pertaining to the Equipment or this Master
Lease including, without limitation, the ownership, selection,
possession, purchase, delivery, installation, leasing, operation, use,
control, maintenance and return of the Equipment and the recovery of
claims under insurance policies.
Lessee acknowledges that the Equipment to be leased by Lessor to Lessee
pursuant to this Agreement is owned by Lessor ("Owner"). It is the
intent of Owner/Lessor and Lessee that this Lease constitute a true
lease for Federal income tax purposes so that, for the purpose of
determining its liability for Federal income taxes, Owner shall be
entitled to the tax benefits as are provided by the Internal Revenue
Code of 1986, as from time to time amended, (the "Code") to an owner of
personal property.
In addition, notwithstanding any other provision of this Master Lease,
if as to any Equipment the modified accelerated cost recovery system or
depreciation deductions allowed under the Internal Revenue Code of
1986, as amended, shall be lost, disallowed, eliminated, reduced,
recaptured or otherwise unavailable to Lessor for any reason, then
Lessee shall pay to Lessor as additional rent within 30 days after such
a loss an amount which shall be equal to the sum of (i) the additional
federal, state, local and foreign income or any other taxes payable as
a result of such loss, disallowance, elimination, reduction. recapture
or unavailability of accelerated cost recovery or depreciation
deductions plus (ii) the amount of any interest, penalties or additions
to tax payable by the Lessor as a result of such additional tax.
The indemnities given and liabilities assumed by the Lessee pursuant to
this Section 19 shall continue in full force and effect notwithstanding
the expiration or other termination of this Master Lease.
20. NOTICES. Notice from one party to another relating to this Master
Lease shall be deemed effective if made in writing (including
telecommunications) and delivered to the recipient's address, telex
number or telecopier number set forth under its name below by any of
the following means: (a) hand delivery, (b) registered or certified
mail, postage prepaid, with return receipt requested, (c) first class
or express mail, postage prepaid, (d) overnight courier service or (e)
telecopy, telex or other facsimile transmission with request for
assurance of receipt in a manner typical with respect to communication
of that type. Notice made in accordance with this section shall be
deemed delivered upon receipt if delivered by hand or wire
transmission, 3 business days after mailing if mailed by first class,
registered or certified mail or one business day after mailing or
deposit with in overnight courier service.
21. LABELS AFFIXED TO EQUIPMENT. Lessor shall have the right, but not
the obligation, to affix or attach ownership identification labels to
the Equipment. Lessee agrees to not remove any such labels.
22. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses,
including reasonable attorneys' fees and the fees of any collection
agencies, incurred by Lessor in enforcing any of the terms, conditions,
or provisions hereof or in protecting lessor's rights herein. These
costs and expenses shall include, without limitation, any costs or
expenses incurred by the Lessor in any bankruptcy, reorganization,
insolvency or other similar proceeding.
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23. PERFORMANCE BY LESSOR. If the Lessee fails to duly and promptly
perform any of its obligations under the Master Lease, Lessor may, at
its option, perform such act or make such payment which the Lessor
deems necessary. All sums so paid or incurred by Lessor including
attorneys' fees shall be immediately due and payable by Lessee, without
demand, and shall bear interest at the lesser of one and one-half
percent (1-1/2%) per month or the highest rate permissible by law. The
performance of any act or payment by Lessor shall not constitute a
waiver or release of any obligation or default on the part of Lessee.
24. ENTIRE AGREEMENT. This Master Lease and subsequent Schedules
constitute the entire agreement of the parties in connection with the
Equipment. Neither party relies on any other statement, understandings,
representations or assurances, the same, if any having been merged into
this agreement. This agreement cannot be modified except by a writing
signed by each party. This agreement inures to the benefit of the
heirs, executors, administrators, successors and assigns of the
parties.
25. WAIVER. No delay on the part of Lessor in the exercise of any right
or remedy shall operate as a waiver. No single or partial exercise by
Lessor of any right or remedy shall preclude any other future exercise
of it or the exercise of any other right or remedy. No waiver or
indulgence by Lessor of any default shall be effective unless in
writing and signed by Lessor, nor shall a waiver on one occasion be
construed as a bar to or waiver of that right on any future occasion.
26. FINANCIAL REPORTS. Upon request by Lessor, Lessee will promptly
furnish to Lessor for the most recent quarterly period, a balance sheet
statement of profit, loss and surplus from the beginning of that fiscal
year to the end of that period certified as correct by an authorized
agent of the Lessee and such other financial information, books and
records the Lessor may deem necessary.
27. WAVER OF JURY TRIAL. Lessor and Lessee, after consulting or having
had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by
jury in any litigation based upon or arising out of this Master Lease
or any related instrument or agreement, or any course of conduct,
dealing, statements (whether oral or written), or actions of either of
them. Neither Lessor nor Lessee shall seek to consolidate, by
counterclaim or otherwise, any such action in which it jury trial has
been waived with any other action in which a jury trial cannot be or
has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by either Lessor or Lessee
except by a written instrument executed by both of them.
THIS MASTER LEASE AGREEMENT SHALL THE UNDERSIGNED (AND IF MORE
NOT BE BINDING ON LESSOR UNTIL IT THAN ONE, JOINTLY AND SEVERALLY)
HAS BEEN EXECUTED BY AGREE TO ALL OF THE TERMS AND
AN OFFICER OR LESSOR. CONDITIONS ABOVE WHICH ARE
PART OF THIS MASTER LEASE
AGREEMENT
Accepted by
NBD BANK DevTech Associates, Inc.
By /s/ XXXXXXX X. GUNAME By /s/ XXXXX X. XXXXXX
---------------------- ----------------------
Title AVP Title Finance Manager
---------------------- ----------------------
Date 7/3/95 By
---------------------- ----------------------
Title
----------------------
Date 6/30/95
----------------------
Address For Notices: Address For Notices:
00000 Xxxxxxx Xxxx Xxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xxxx, Xxxxxxxx 00000 Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
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SCHEDULE 3
This Schedule date June 29, 1995 incorporates the Master Lease dated
June 29, 1995
between NBD BANK as Lessor,
and DEVTECH ASSOCIATES, INC. as Lessee.
LESSEE: DEVTECH ASSOCIATES, INC. Lessor: NBD BANK
000 Xxxxxx Xxxxxxxxx 000 X. Xxxxxxx Xxxxxx
Xxxxx 000 Xxxxxxx, XX 00000
Xxxxxxxxxx, Xx 00000
Tax I.D. No. 00-0000000
Location of Equipment: same as above
MODEL/
QUANTITY FEATURE DESCRIPTION SERIAL NUMBER
-------- ------- ----------- -------------
See Exhibit A
Rent Payment Due Date: The 29th day of each month in advance.
Initial Lease Term: The Lease Term for each leased item commences on the
Acceptance Date and continues for 36 months.
RENT: $1,693.92.
(If at First Rent Payment Due Date is after the Acceptance Date, the
first Rent payment shall be the total of (i) the first installment of
rent as specified above, plus (ii) an amount equal to 1/30th of that
Rent, multiplied by the number of days from and including the
Acceptance Date for a leased item but excluding the First Rent Payment
Due Date.)
Rent is computed by multiplying the Equipment cost x .03189. In the event the
Equipment cost varies from $53.117.50. Rent will be adjusted accordingly.
MASTER LEASE: This Schedule is issued pursuant to the Master Lease identified on
Page 1. All of the terms and conditions of the Master Lease are incorporated
herein and made a part hereof as if such terms and conditions were set forth in
this Schedule. By the execution and delivery of this Schedule, the parties
reaffirm all of the terms and conditions of the Master Lease except as modified.
NBD BANK DEVTECH ASSOCIATES, INC.
By: /s/ XXXXXXX X. GUMANE By: /s/ XXXXX X. XXXXXX
----------------------- ----------------------
Name: Xxxxxxx X. Gumane Name: Xxxxx X. Xxxxxx
----------------------- ----------------------
Title: AVP Title: Finance Manager
----------------------- ----------------------
Date: 12/29/95 Date: 12/22/95
----------------------- ----------------------
THIS SCHEDULE HAS 2 COUNTERPARTS. THIS IS COUNTERPART NO. 2. A SECURITY
INTEREST MAY BE CREATED ONLY IN COUNTERPART NO. 1.
SCHEDULE 3
CERTIFICATE OF ACCEPTANCE
This Schedule dated 12/29/95 incorporates the Master Lease dated June 29, 1995
between NBD BANK, as Lessor,
and DEVTECH ASSOCIATES, INC. as Lessee
1. EQUIPMENT
Lessee certifies that the equipment described in this Schedule, has been
delivered to the location indicated below, inspected by Lessee, found to be
in good order and are accepted on the Acceptance Date as set forth below:
LOCATION OF EQUIPMENT:
DEVTECH ASSOCIATES, INC.
000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
2. Acceptance Date: 12/22,1995.
DEVTECH ASSOCIATES, INC.
By: /s/ XXXXX X. XXXXXX
---------------
Name: Xxxxx X. Xxxxxx
Title: Finance Manager
Date: 12/22/95
THIS SCHEDULE HAS 2 COUNTERPARTS. THIS IS COUNTERPART NO. 2. A SECURITY INTEREST
MAY BE CREATED ONLY IN COUNTERPART NO. 1.
SCHEDULE 3
CASUALTY VALUE TABLE
This Schedule dated 12/29/95 incorporates the Master Lease Dated June 29, 1995
between NBD BANK, as Lessor,
and DEVTECH ASSOCIATES, INC. as Lessee
The Casualty Value of a leased item of Equipment is equal to the original cost
multiplied by the Casualty Value Percentage opposite the monthly rental period
in which the Event of Loss occurs.
MONTHLY RENTAL CASUALTY VALUE MONTHLY RENTAL CASUALTY VALUE
PERIOD PERCENTAGE PERIOD PERCENTAGE
-------------- -------------- -------------- --------------
1 and Prior 100.9 19 53.2
2 96.8 20 50.5
3 94.4 21 47.7
4 92.0 22 44.9
5 89.5 23 42.0
6 87.1 24 39.2
7 84.6 25 36.3
8 82.1 26 33.4
9 79.6 27 30.5
10 77.0 28 27.6
11 74.5 29 24.6
12 71.9 30 21.6
13 69.3 31 18.6
14 66.7 32 15.6
15 64.0 33 12.5
16 61.3 34 9.4
17 58.7 35 6.3
18 55.9 36 3.2
SCHEDULE 3
PURCHASE OPTION RIDER
This Schedule dated 12/29/95 incorporates the Master Lease Dated June 29, 1995
between NBD BANK, as Lessor,
and DEVTECH ASSOCIATES, INC. as Lessee
LESSEE'S OPTIONS UPON EXPIRATION OF THE LEASE TERM:
Provided the Lease has not been earlier terminated and Lessee is not in
default, Lessee shall elect, by written notice delivered to Lessor not less than
one hundred twenty (120) days prior to expiration of the Lease Term, to purchase
all, but not less than all, of the Equipment then subject to the Lease (Check
applicable option):
[ ] A. At a purchase price equal to the Fair Market Value (as defined
below) of said Equipment upon expiration of the Lease Term.
[ ] B. At a purchase price equal to the then Fair Market Value (as
defined below) which purchase price shall not be less than
_____% of the original equipment cost nor more than ____% of the
original equipment cost.
[X] C. At a purchase price of $1.00.
[ ] D. At a purchase price equal to ____% of the cost of the Equipment.
The Fair Market Value of the Equipment shall be determined on the basis
of, and shall be equal in amount to the value which would obtain, assuming the
Equipment had not been installed and was in good repair, condition and working
order, ordinary wear and tear resulting from proper use expected, in an arm's
length transaction between an informed and willing buyer under no compulsion to
buy and an informed and willing seller under no compulsion to sell and, in such
determination, cost of removal from the location of removal from the location of
current use shall not be a deduction from such value. If Lessor and Lessee do
not agree on the Fair Market Value within ten (10) days after receipt by Lessor
of notice that Lessee is exercising its option to purchase the Equipment, such
Fair Market Value shall be determined by an independent source considered
reliable and knowledgeable as to values for such Equipment by Lessor in its
reasonable judgment. The expenses and fees shall be borne by Lessee.
If Lessee elects to purchase the Equipment, the purchase price shall be
payable on or within 10 days of the expiration of the Initial Lease Term. Upon
payment of the purchase price, Lessor shall, upon request of Lessee, execute and
deliver to Lessee, or to Lessee's assignee or nominee, a Xxxx of Sale without
representations or warranties, express or implied, except that such Equipment is
free and clear of all claims, liens, security interests and other encumbrances
by or in favor of a person claiming by, through or under Lessor for such
Equipment, other than liens and claims which Lessee assumed or is obligated to
discharge under the terms of the Lease. Lessee agrees to pay or cause to be paid
all sales and/or use taxes payable in connection with such sales, and any unpaid
property taxes theretofore assessed or levied against said Equipment. Purchase
of the Equipment is on an AS IS, WHERE IS, WITH ALL FAULTS BASIS.
Accepted this 29th day of December, 1995.
NBD BANK DEVTECH ASSOCIATES, INC.
By: /s/ ILLEGIBLE By: /s/ XXXXX X. XXXXXX
------------------ -------------------
Its: AVP Its: Finance Manager
------------------ -------------------
SCHEDULE 3
PURCHASE AGREEMENT ASSIGNMENT RIDER
This Schedule dated 12/29/95 incorporates the Master Lease Dated June 29, 1995
between NBD BANK, as Lessor,
and DEVTECH ASSOCIATES, INC. as Lessee
DEVTECH ASSOCIATES, INC. (the "Assignor") has entered into Purchase
Agreement Number(s) __________ dated _____________, ("Purchase Agreement(s)")
with DATASCAN TECHNOLOGIES (the "Supplier"), relating to the items of equipment
described in this Schedule or Exhibit A (the "Equipment"), the Assignor has
agreed to sell its rights, title and interest in and to the Equipment to the
Lessor and the Lessor shall purchase the Equipment and lease the same to the
Assignor, pursuant to the Master Lease.
NOW, THEREFORE, in consideration of the mutual promises below, and the
execution and delivery of the Master Lease and this Schedule, the parties agree
as follows:
1. The Assignor sells, assigns, transfers and sets over to the Lessor,
its successors and assigns, all of its right, title and interest in and to the
Equipment and in and to the Purchase Agreement(s), including, without
limitation, (a) the right to purchase the Equipment pursuant to the Purchase
Agreement(s), the right to take title to the Equipment or any portion thereof,
and the right, but not the obligation, to be named the purchaser in each xxxx of
sale to be delivered by the Supplier(s) for the Equipment or any portion
thereof, (b) the right to assort all claims for damages arising as a result of
any default by the Supplier(s) under the Purchase Agreement(s), including
without limitation all warranty and indemnity provisions contained in the
Purchase Agreement(s), and (c) any and all rights of the Assignor to compel
performance of the terms of the Purchase Agreement(s).
2. It is agreed that, notwithstanding this assignment: (a) the Assignor
shall at all times remain liable to the Supplier(s) under the Purchase
Agreement(s) to perform all of the duties and obligations of the buyer to the
same extent as if this assignment had not been executed; (b) exercise by the
Lessor of any of the rights assigned shall not release the Assignor from any of
its duties or obligations to the Supplier(s) under the Purchase Agreement(s)
except to the extent that such exercise by the Lessor shall constitute
performance of such duties and obligations; and (c) the Lessor shall not have
any obligation or liability to perform any of the obligations or duties of the
Assignor under the Purchase Agreement(s), to make any payment (other than to pay
the purchase price for the Equipment to the extent and upon the terms and
conditions set forth in the Master Lease), to make any inquiry as to the
sufficiency of any payment, to present or file any claim or to take any other
action to collect or enforce any claim for any payment assigned.
3. The Assignor represents and warrants that the Purchase Agreement(s)
is (are) in full force and effect and is (are) enforceable in accordance with
its (their) terms; that the Assignor is not in default, and that the Assignor
has not assigned or pledged, and covenants that it will not assign or pledge, so
long as this assignment shall remain in effect, the whole or any part of the
rights assigned to anyone other than the Lessor. The Assignor shall not amend,
modify, terminate or waive, nor consent to any amendment, modification,
termination or waiver of any of the provisions of the Purchase Agreement(s).
4. The Assignor agrees to indemnify and hold the Lessor, and its
assigns, directors, officers and agents, harmless from and against any and all
losses, claims, liabilities and expenses (including legal expenses and court
costs) which arise out of or relate to this Assignment, the Purchase
Agreement(s) or the manufacture, purchase, acceptance, rejection, ownership and
delivery and sale of the Equipment (including claims for patent, trademark, or
copyright infringement).
5. In the event that lessor, at the request of Assignor, makes payment
to the Supplier(s) under said purchase order(s) prior to the Acceptance Date of
this Schedule, Assignor shall pay on the first day of each month to the
Acceptance Date rent to Lessor at the rate of (1) 9.75% per annum or (2) a rate
of interest equal to the Prime Rate (as defined below) at such time plus______
percentage points from the date of each prepayment until the Acceptance Date.
The Prime Rate shall be the rate announced from time to time by NBD Bank as
its prime rate, which rate may not necessarily be the lowest rate charged by NBD
Bank to any of its customers. In the event that a Certificate of Acceptance has
not been executed and delivered by the Assignor with respect to any loan of
Equipment on or before OCTOBER 15, 1995, unless the Lessor has otherwise agreed
in writing: (a) this Assignment shall terminate provided, however, that the
Assignor's obligation to indemnify and hold the Lessor harmless shall servive
any such termination and (b) the Assignor shall reimburse the Lessor for any and
all payments made by the Lessor to the Supplier(s) on account of such item of
Equipment, together with interest at the above rate from the date of each such
payment.
SCHEDULE 3
PURCHASE AGREEMENT ASSIGNMENT RIDER
This Schedule dated 12/29/95 incorporates the Master Lease dated June 29, 1995
between NBD BANK as Lessor,
and DEVTECH ASSOCIATES, INC. as Leasee
Page 2
LESSOR ASSIGNOR
NBD BANK DEVTECH ASSOCIATES, INC.
By: /s/ ILLEGIBLE By: /s/ XXXXX X. XXXXXX
----------------- -------------------
Its: AVP Its: Finance Manager
----------------- -------------------
Date: 9/21/95 Date: 9/20/95
--------------- -------------------
XXXX OF SALE
Seller, DataScan Technologies, a Florida general partnership, having
it's principal place of business at 000 Xxxxxx Xxxxxxxxx, Xxxxx 000, xx
Xxxxxxxxxx, Xxxxxxxx ("DataScan"), in consideration of the payment of Forty
Thousand and No/100 Dollars ($40,000) does hereby sell, assign, transfer and set
over to DevTech Associates, Inc., an Illinois corporation, having it's principal
place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, xx Xxxxxxxxxx, Xxxxxxxx
("DevTech") all of the furniture and related personal property set forth on
Exhibit A attached to and made a part of this Xxxx of Sale (the "Furniture").
Any and all applicable taxes attributable to the purchase of the Furniture shall
be paid by and shall remain the sole and complete responsibility of DevTech.
DataScan hereby represents and warrants to DevTech that: DataScan is
the absolute and outright owner of the Furniture; the Furniture is free and
clear of all liens, charges, mortgages, pledges, claims and encumbrances;
DataScan has the full right, power and authority to sell the Furniture and to
make this Xxxx of Sale' and DataScan will indemnify and hold DevTech harmless
from and against any and all claims of any kind or nature which are inconsistent
with these representations and warranties.
In witness whereof, DataScan has caused this xxxx of sale to be signed
and sealed in its name by its duly authorized representative this 21st day of
September, 1995.
DataScan Technologies, a Florida
general partnership
By: /s/ ILLEGIBLE
-------------------------
Its: President/General Partner
-------------------------
