NeoMedia Technologies, Inc.
Exhibit 10.46
Master Lease Between Xxxxxxx X. Xxxxx and NeoMedia Technologies, Inc.
Dated November 6, 1996
MASTER LEASE
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This Master Lease Agreement ("Master Lease") dated November 6, 1996 is between
Xxxxxxx X. Xxxxx ("Lessor") and NeoMedia Technologies, Inc. ("Lessee"), a
Delaware corporation.
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 aggegate 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,
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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 other claims against
Lessor or the manufacturer or supplier of the Fquipment, 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
CONDITION 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 RIGTHS, 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.
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 may be removed without the
prior written consent of Lessor. LESSEE FURTHER COVENANTS AND AGREES THAT
THE EQUIPMENT IS, AND WILL AT ALL TIMES BE AND REMAIN, 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
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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 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 Value Table attached to the applicable Schedule).
Lessee appoints Lessor Lessee's attorney in fact to endorse any loss
payment or returned premium check and to make any claim under such
insurance shall not be canceled except upon thirty days written notice
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 is 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 EQUMMIENT
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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 the 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 Lessor and any assignee and pay to Lessor or
the assignee, as the case may 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 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: ALTERATION. 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 keep the Equipment free and clear of all
levies, liens and Lessee's normal business hours.
11. LIENS AND TAXES. Lessee as its expense shall keep 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
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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 furnishings,
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 guarantor's
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 and
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 attorney's 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
attorney's 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.
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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.
17. JURISDICTION: VENUE: SEVERABILITY. THIS AGREEMENT. STATE OF FLORIDA.
LESSEE CONSENTS TO THE JURISDICTION OF THE COURTS OF FLORIDA. 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 that: (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 powers and have been duly authorized by all necessary action of
its governing body and do not contravene the terms of its articles of
incorporation or organization, it bylaws, or any partnership, operating or
other agreement governing its affairs.
19. INDEMNITY BY LESSEE. Lessee agrees to indemnify and hold lessor or any
assignee harmless from any and all claims, actions, proceedings, expenses,
damages and liabilities, including attorney's 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 insumnce policies.
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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 lowed under the Internal Revenue Code of 1986, as amended,
shall ("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 an 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) band
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 an 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 attorney's 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 this 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 attorney's 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 statements, 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,
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 and a
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. WAIVER OF JULY 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 a 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.
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THIS MASTER LEASE THE LESSEE
AGREEMENT SHALL AGREES TO ALL OF THE
NOT BE BINDING ON LESSOR TERMS AND CONDITIONS
UNTIL IT HAS BEEN ACCEPTED ABOVE WHICH ARE PART
AND EXECUTED BY LESSOR OF THIS MASTER LEASE
AGREEMENT
Acceptcd by:
By /s/ XXXXXXX X. XXXXX By /s/ XXXXXXX X. XXXXX
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Title Title PRESIDENT
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Date 11-6-96 Date 11-6-96
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Address For Notices: Address For Notices:
Xxxxxxx X. Xxxxx NeoMedia Technologies, Inc.
000 Xx Xxxxxxxx Xxxxxx 000 X. Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx XX 00000 Xxxxxxxxxx, XX 00000
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SCHEDULE A
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Date: November 6, 1996
Exhibition Booth Cost: $85,434.50
Months: 36
Monthly Payment: $2,858.09
Florida Sales Tax: $171.49
Total Monthly Payment: $3,029.58
First Payment Due December 1, 1996
Lessee may purchase form the Lessor the Exhibition Booth at any time
at fair market value.
