U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-21743
NEOMEDIA TECHNOLOGIES, INC.
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(Exact Name of Small Business Issuer as Specified In Its Charter)
DELAWARE 36-3680347
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2201 SECOND STREET, SUITE 600, FORT MYERS, FLORIDA 33901
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(Address of Principal Executive Offices) (Zip Code)
Issuer's Telephone Number (Including Area Code) 941-337-3434
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
As of April 30, 1997, there were outstanding 5,375,192 shares of the
issuer's Common Stock and 3,130,938 warrants.
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PART I -- FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS
NEOMEDIA TECHNOLOGIES, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED BALANCE SHEETS
MARCH 31, DECEMBER
ASSETS 1997 31, 1996
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(In thousands)
<S> <C> <C>
Current assets:
Cash and cash equivalents ................................. $ 3,740 $ 4,159
Trade accounts receivable, net of allowance for doubtful
accounts of $149 and $216 ............................. 4,784 4,983
Amounts due from related parties .......................... 19 496
Inventories ............................................... 67 105
Prepaid expenses and other ................................ 610 588
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Total current assets .................................. 9,220 10,331
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Property and equipment, net of accumulated depreciation ........ 321 278
Capitalized software costs, net of accumulated amortization .... 805 657
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Total assets .............................................. $ 10,346 $ 11,266
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable .......................................... $ 2,640 $ 3,800
Accrued expenses .......................................... 1,339 1,043
Current portion of long-term debt ......................... 257 262
Other ..................................................... 415 245
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Total current liabilities ............................. 4,651 5,350
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Long-term debt, net of current portion ......................... 1,055 1,589
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Total liabilities ..................................... 5,706 6,939
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Shareholders' equity:
Common stock, $.01 par value, 15,000,000 shares authorized,
5,375,192 and 5,114,316 shares outstanding ............ 54 51
Additional paid-in capital ................................ 10,118 8,801
Accumulated deficit ....................................... (5,532) (4,525)
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Total shareholders' equity ............................ 4,640 4,327
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Total liabilities and shareholders' equity ................ $ 10,346 $ 11,266
======== ========
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The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.
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NEOMEDIA TECHNOLOGIES, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
THREE MONTHS
ENDED MARCH 31,
-------------------------
1997 1996
----------- ----------
(Dollars in thousands,
except per share data)
NET SALES:
License fees ............................... $ 218 $ 159
Software product resales ................... 64 1,290
Technology equipment resales ............... 3,695 2,900
Service fees ............................... 578 747
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Total net sales ........................ 4,555 5,096
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COST OF SALES:
License fees ............................... 62 48
Software product resales ................... 49 847
Technology equipment resales ............... 3,214 2,553
Service fees ............................... 393 464
Amortization of capitalized software costs . 144 139
----------- -----------
Total cost of sales .................... 3,862 4,051
----------- -----------
GROSS PROFIT .................................... 693 1,045
General and administrative expenses ............. 756 384
Sales and marketing expenses .................... 801 469
Research and development costs .................. 177 64
----------- -----------
Income (Loss) from operations ................... (1,041) 128
Interest expense, net ........................... 11 104
----------- -----------
INCOME (LOSS) BEFORE INCOME TAXES ............... (1,052) 24
Benefit for income taxes ........................ (45) (17)
----------- -----------
NET INCOME (LOSS) ............................... $ (1,007) $ 41
=========== ===========
PER SHARE DATA:
Net income (loss) per share ................ $ (0.16) $ .01
=========== ===========
Weighted average number of common and common
equivalent shares outstanding ......... 6,255,305 4,071,373
=========== ===========
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.
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NEOMEDIA TECHNOLOGIES, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS
ENDED MARCH 31,
------------------
1997 1996
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(In thousands)
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CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) ................................................. $(1,007) $ 41
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities:
Provision for doubtful accounts .............................. 30 --
Depreciation and amortization ................................ 168 170
Changes in operating assets and liabilities:
Trade accounts receivable ................................ 169 (829)
Other current assets ..................................... 21 43
Accounts payable and accrued expenses .................... (1,160) (443)
Other current liabilities ................................ 466 1,129
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Net cash provided by (used in) operating activities ...... (1,313) 111
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CASH FLOWS FROM INVESTING ACTIVITIES:
Capitalization of software development costs and purchased software (299) (75)
Acquisition of property and equipment ............................. (60) (67)
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Net cash used in investing activities .................... (359) (142)
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CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of units ............................... 1,315 --
Exercise of stock options ......................................... 5 --
Repayment of advance to shareholder ............................... 472 --
Proceeds from advance to shareholder .............................. -- (472)
Borrowings under notes payable and long-term debt ................. -- 250
Repayments on notes payable and long-term debt .................... (67) (101)
Borrowings from shareholders and related parties .................. -- 550
Repayments to shareholders and related parties .................... (472) --
------- -------
Net cash provided by financing activities ................ 1,253 227
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NET INCREASE (DECREASE) IN CASH ................................... (419) 196
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD .................... 4,159 11
------- -------
CASH AND CASH EQUIVALENTS, END OF PERIOD .......................... $ 3,740 $ 207
======= =======
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid ................................................ $ 42 $ 48
Income taxes paid ............................................ -- 65
</TABLE>
The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.
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NEOMEDIA TECHNOLOGIES, INC. AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
ADDITIONAL ACCUMU- NUMBER
COMMON PAID-IN- LATED OF
STOCK CAPITAL DEFICIT SHARES
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(Dollars in thousands)
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Balance, December 31, 1996 ............. $ 51 $ 8,801 $ (4,525) 5,114,316
Exercise of stock options .............. -- 5 -- 5,876
Proceeds from issuance of 255,000 units,
net of $215 of issuance costs ..... 3 1,312 -- 255,000
Net loss ............................... -- -- (1,007) --
--------- --------- --------- ---------
Balance, March 31, 1997 ................ $ 54 $ 10,118 $ (5,532) 5,375,192
========= ========= ========= =========
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The accompanying unaudited notes are an integral part of these unaudited
consolidated financial statements.
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NEOMEDIA TECHNOLOGIES, INC. AND SUBSIDIARIES
UNAUDITED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION AND NATURE OF BUSINESS OPERATIONS
BASIS OF PRESENTATION
NeoMedia Technologies, Inc. ("Technologies") was incorporated under the
laws of the state of Delaware in July 1996 to acquire by merger Dev-Tech
Associates, Inc. ("Dev-Tech"), an Illinois corporation, which was incorporated
in December 1989. On August 5, 1996, Technologies acquired all of the shares of
Dev-Tech in exchange for the issuance of shares of Technologies' common stock to
the shareholders of Dev-Tech. Dev-Tech Migration, Inc. ("DTM") was incorporated
in June 1994 in Illinois. On November 20, 1996, DTM was merged into NeoMedia
Migration, Inc. ("Migration"), a Delaware corporation and a wholly owned
subsidiary of Technologies (the "Migration Merger"). Technologies and Migration
(collectively, "NeoMedia" or the "Company"), since Migration's inception, have
shared certain management and were controlled by common shareholders. These
transactions have been accounted for in a manner similar to the pooling of
interests method of accounting using historical book values rather than fair
market value as all entities involved were under common control. Distribuidora
Vallarta, S.P.A. is a wholly-owned subsidiary of Migration and was incorporated
in Guatemala in August, 1996, to employ computer software developers and system
integrators. As these transactions were completed as of December 31, 1996, the
financial statements of NeoMedia have been presented on a consolidated basis for
all periods presented. The financial position and results of NeoMedia as of and
for the periods prior to these mergers have been combined in a manner consistent
with NeoMedia's consolidation principles as of December 31, 1996. All
significant intercompany accounts and transactions have been eliminated in
preparation of the consolidated financial statements.
The accompanying unaudited consolidated financial statements have been
prepared in accordance with the instructions to Form 10-QSB and do not include
all of the information and footnotes required by generally accepted accounting
principles for complete consolidated financial statements. In the opinion of
management, the consolidated financial statements reflect all adjustments which
are of a normal recurring nature and which are necessary to present fairly the
consolidated financial position of NeoMedia as of March 31, 1997 and December
31, 1996, and the results of operations for the three months ended March 31,
1997 and 1996, and cash flows for the three months ended March 31, 1997 and
1996. The results of operations for the three months ended March 31, 1997 are
not necessarily indicative of the results which may be expected for the entire
fiscal year.
NATURE OF BUSINESS OPERATIONS
NeoMedia operates in one business segment which is comprised of three
principal applications markets: (i) Intelligent Document Solutions, (ii)
Document Systems Solutions and (iii) Systems Transition Solutions.
The INTELLIGENT DOCUMENT SOLUTIONS UNIT was established to assist clients
in linking printed material to electronic media. NeoMedia has developed its own
technology, and has rights to use the technology of others, to generate printed
documents which can be automatically "read" by machines, such as computers
equipped with scanners and appropriate software. These "machine readable"
documents incorporate printed codes which contain thousands of bytes of
information, including computer programs rendering them functionally equivalent
to a computer floppy disk with a limited capacity to hold information. These
codes are referred to in the industry as "high capacity symbologies" and
"multi-dimensional" or "two-dimensional" bar codes. NeoMedia refers to documents
that incorporate high capacity symbologies as "Intelligent Documents," and
currently provides software and services to support the application of this
technology.
The DOCUMENTS SYSTEMS SOLUTIONS UNIT was established to assist clients in
definition, design, implementation and management of their document system
environments. These services include strategic consulting to define and
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optimize enterprise wide documents strategies, as well as systems integration
and development to implement effective document generation, archive and
management systems. NeoMedia specializes in the technical areas of electronic
forms management, document production systems and intelligent document solutions
incorporating multi-dimensional bar code technologies. The document system
process provided by NeoMedia also includes electronic media alternatives such as
Internet and Intranet channels.
The SYSTEMS TRANSITION SOLUTIONS UNIT was established to enable clients to
migrate applications on closed, proprietary ("legacy") systems to more cost
effective and extendable open systems platforms. NeoMedia has acquired and
developed a line of proprietary products and tools utilized in its migration
services. NeoMedia also provides strategic consulting, systems development,
systems engineering and support services in connection with its systems
transition solutions.
As part of the services provided in connection with system transition
solutions service engagements, NeoMedia acts as a reseller of purchased hardware
in connection with open systems development and migrations. NeoMedia maintains
relationships with a number of major companies under which NeoMedia sells third
party purchased hardware and software products of those companies. NeoMedia has
established several strategic alliances with third party software and hardware
vendors, leading consulting firms and major system integrators. These alliances
are integral to NeoMedia's business operations.
NeoMedia principally markets and distributes its products through
distributors in the United States (although it has distributors in Europe, Asia,
the Middle East, Indonesia and Latin America), and currently has U. S. offices
located in Illinois, California, Minnesota, and Florida.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
COMPUTATION OF EARNINGS PER SHARE
The computation of earnings per share is based on the weighted average
number of common and common equivalent shares outstanding during the period.
Common stock equivalents consist of outstanding stock options which, pursuant to
Staff Accounting Bulletin No. 83 of the Securities and Exchange Commission, are
included in the weighted average shares as if they were outstanding for the
entire period to the extent granted within the twelve months preceding the
contemplated public offering date, using the treasury stock method until such
time as shares are issued. For the three months ended March 31, 1997 and 1996,
the computation of the weighted average number of common shares and common share
equivalents outstanding was as follows:
1997 1996
--------- ---------
Common stock ............................... 5,327,785 3,133,378
Effect of stock options ................... 927,520 937,995
--------- ---------
Total ...................................... 6,255,305 4,071,373
========= =========
For the three months ended March 31, 1997 and 1996, information regarding
earnings per share computed on a historical basis under the provisions of
Accounting Principles Board Opinion No. 15, "Earnings per Share," was as
follows:
1997 1996
---------- ----------
Net income (loss) per share .................. $ (0.19) $ 0.01
========== ==========
Weighted average common shares outstanding .... 5,327,785 3,133,378
========== ==========
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In February, 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 128, "Earnings Per Share" ("FAS
128"), which becomes effective for NeoMedia for the year ended December 31,
1997. FAS 128 replaces the presentation of primary earnings per share with a
presentation of basic earnings per share which excludes dilution and is computed
by dividing income available to common stockholders by the weighted-average
number of common shares outstanding for the period. Diluted earnings per share
reflects the potential dilution that would occur if securities or other
contracts to issue common stock were exercised or converted into common stock or
resulted in the issuance of common stock that then shared in the earnings of the
entity. Diluted earnings per share is computed similarly to fully diluted
earnings per share pursuant to Accounting Principles Board Opinion No. 15,
"Earnings Per Share." FAS 128 also requires dual presentation of basic and
diluted earnings per share on the face of the income statement for all entities
with complex capital structure and requires a reconciliation of the numerator
and denominator of the basic earnings per share computation to the numerator and
denominator of the diluted earnings per share computation. For the three months
ended March 31, 1997, basic and diluted earnings per share would have been
$(.19).
CONCENTRATIONS OF CREDIT RISK
Financial instruments that potentially subject NeoMedia to concentrations
of credit risk consist primarily of trade accounts receivable with customers.
Credit risk is generally minimized as a result of the large number and diverse
nature of NeoMedia's customers which are located throughout the United States.
NeoMedia extends credit to its customers as determined on an individual basis
and has included an allowance for doubtful accounts of $149,000 and $216,000 in
its March 31, 1997 and December 31, 1996 consolidated balance sheets,
respectively. NeoMedia had net sales to one major customer in the
telecommunications industry of $2,058,000 and $828,000 during the three months
ended March 31, 1997 and 1996, respectively, resulting in trade accounts
receivable of $2,385,000 and $2,507,000 as of March 31, 1997 and December 31,
1996, respectively. Revenue generated from the remarketing of computer equipment
has accounted for a significant percentage of NeoMedia's revenue. Such sales
accounted for 81.1% and 56.9% of NeoMedia's revenue for the three months ended
March 31, 1997 and 1996, respectively.
3. FINANCING AGREEMENTS
Technologies entered into an agreement with a commercial finance company
that provides short-term financing for certain computer hardware and software
purchases. Under the agreement, there are generally no financing charges for
amounts paid within 30 or 45 days, depending on the vendor used to source the
product. Borrowings are collateralized by accounts receivable generated from the
sales of merchandise to NeoMedia's customers and are personally guaranteed by
certain shareholders of NeoMedia. As of March 31, 1997 and December 31, 1996,
amounts due under this financing agreement included in accounts payable were
$1,829,000 and $2,275,000, respectively.
4. BENEFIT FOR INCOME TAXES
The benefits for income taxes recorded during the three months ended March
31, 1997 and 1996 represented the recovery of income taxes paid in prior years
from the carryback of operating losses.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
OVERVIEW
Dev-Tech Associates, Inc., NeoMedia's predecessor, was organized in
December, 1989, and through March 31, 1997, a substantial part of NeoMedia's
revenue was derived from software resales and equipment resales. NeoMedia
couples its proprietary software products with independent vendor products it
resells, enabling it to provide a complete "turn-key" service for its customers.
Currently, NeoMedia's revenue consists of software license fees, resales of
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software developed by independent vendors ("software resales"), resales of
computer equipment manufactured by independent vendors ("equipment resales"),
and fees for services, including consulting, education and postcontract software
support. In addition, NeoMedia recently formed its Intelligent Document
Solutions Unit to develop enabling technology and applications for printed
materials containing high-capacity symbologies, which NeoMedia believes to be an
expanding area in the emerging world of electronic commerce.
NeoMedia's strategy is to increase sales of its proprietary software
transition tools and applications as a percentage of total sales. License fees
for the three months ended March 31, 1997 increased 36.8% from the three months
ended March 31, 1996, and, as a percentage of total sales, increased to 4.8% of
total sales during the three months ended March 31, 1997 from 3.1% during the
three months ended March 31, 1996. NeoMedia has built and intends to continue to
build an infrastructure that assumes this strategy will succeed. Therefore, the
failure to achieve this strategy could have a material adverse effect on
NeoMedia's business, financial condition and results of operations.
A substantial portion of NeoMedia's operating expense is related to
personnel, facilities and amortization. Such operating expenses cannot be
adjusted quickly and are therefore fixed in the short term. NeoMedia's expense
levels for these items are based, in significant part, on NeoMedia's
expectations of future sales. If actual sales levels are below management's
expectations, results of operations are likely to be adversely affected by a
similar amount because a relatively small amount of NeoMedia's expense varies
with its sales in the short term.
In general, NeoMedia's sales are difficult to forecast as the market for
client/server equipment and software is rapidly evolving and NeoMedia's sales
cycle, from the initial proposal to the customer through the purchase of product
and related services, varies substantially from customer to customer and from
product to product. Also, NeoMedia's operating results may fluctuate
significantly from period to period as a result of a variety of factors,
including changes in the composition of NeoMedia's revenue, the timing of new
product introductions and NeoMedia's expenditures on research and development
and promotional programs, as well as the general state of the national and
global economies. Demand for the products sold by NeoMedia may increase or
decrease as a result of a number of factors, such as client preferences and
product announcements by competitors.
In the past, NeoMedia has realized a substantial portion of its sales in
the last quarter of the year. It is not uncommon for equipment resellers and
software companies to experience strong fourth quarters followed by weak first
quarters. Such seasonality arises from many factors, such as the timing of
product introductions and business cycles of NeoMedia's customers, and could be
material to NeoMedia's interim results. Such cycles vary from customer to
customer, and the overall impact on NeoMedia's results of operations cannot be
predicted. There can be no assurances that NeoMedia will not display this
pattern in future years. In addition, its business and results of operations
could be affected by the overall seasonality of the industry.
NeoMedia's quarterly operating results have been subject to variation and
will continue to be subject to variation, depending upon factors, such as the
mix of business among NeoMedia's services and products, the cost of material,
labor and technology, particularly in connection with the delivery of business
services, the costs associated with initiating new contracts or opening new
offices, the economic condition of NeoMedia's target markets, and the cost of
acquiring and integrating new businesses.
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1997 AS COMPARED TO
THE THREE MONTHS ENDED MARCH 31, 1996
GENERAL. Net loss for the three months ended March 31, 1997 was $1.0
million as compared to net income of $41,000 during the three months ended March
31, 1996. During the first quarter of 1996, NeoMedia decided to invest in the
infra-structure needed to manage current and expected future growth. During the
three months ended September 30, 1996 and December 31, 1996, net losses were
$1.6 million and $1.2 million, respectively. These losses during each of the
past three quarters resulted primarily from increased general, administration,
sales and
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marketing expenses associated with NeoMedia investing in expanding its
infra-structure by hiring management, sales and other personnel to develop,
market and sell new products. Using a portion of the proceeds from the Initial
Public Offering ("IPO"), NeoMedia intends to continue to expand its development,
sales and marketing positions to increase revenue in each of its three business
units: Document Systems Solutions Unit, Systems Transition Solutions Unit and
Intelligent Document Solutions Unit. In addition, gross margin decreased
$352,000 primarily due to NeoMedia no longer reselling PRS software which
generated $295,000 of gross margin during 1996.
LICENSE FEES. NeoMedia's license fees are derived from licensing NeoMedia's
internally developed and purchased software tools. During 1994, NeoMedia
purchased the intellectual property rights to certain software tools which
support migrations from proprietary computer environments to multiple varieties
of UNIX systems. Additionally, NeoMedia developed its own proprietary software
products for high speed printing and migration services. License fees for the
three months ended March 31, 1997 were $218,000 compared to $159,000 for the
three months ended March 31, 1996, an increase of $59,000 or 36.8%. This
increase resulted primarily from the increase in sales of existing software
transition tools. Cost of sales for license fees consisted primarily of fees
paid to an independent software developer. Cost of sales as a percentage of
related sales was 28.4% during 1997 compared to 30.2% during 1996.
SOFTWARE RESALES. NeoMedia's software resales are derived from NeoMedia's
strategic alliances with independent manufacturers of client/server computer
equipment and independent developers of software applications and tools.
Software resales decreased by $1.2 million, or 95.0%, from $1.3 million for the
three months ended March 31, 1996 to $64,000 for the three months ended March
31, 1997. During 1996, there were $591,000 of PRS software sales which NeoMedia
is no longer reselling and $582,000 of resales of software for micro-mainframe
computers, while there were no resales of this product in 1997. Cost of sales as
a percentage of related sales was 76.7% during 1997 compared to 65.7% during
1996.
EQUIPMENT RESALES. NeoMedia's equipment resales are also derived from
NeoMedia's strategic alliances with independent manufacturers of client/server
computer equipment, including IBM Corporation and Sun Microsystems Computer
Company. These alliances provide marketing support and sales leads in the
client/server marketplace. Equipment resales increased by $795,000, or 27.4%, to
$3.7 million for the three months ended March 31, 1997, as compared to $2.9
million for the three months ended March 31, 1996 primarily as the result of
increased sales to NeoMedia's largest customer. See Note 2 of Unaudited Notes to
Consolidated Financial Statements--Concentrations of Credit Risk. For the three
months ended March 31, 1997 as compared to the same period in the prior year,
equipment resales related to Sun Microsystems workstations and servers increased
$2.1 million. These increases were partially offset with no sales in 1997 of
hardware for micro-mainframe computers which totaled $729,000 in 1996. In
addition, there was a $500,000 one-time shipment of desktop printers to a major
customer in 1996. Cost of sales as a percentage of related sales was 87.0%
during 1997, compared to 88.0% during 1996.
SERVICE FEES. NeoMedia's service fees consisting of sales from consulting,
education and postcontract support services decreased by $169,000, or 22.7%, to
$578,000 for the three months ended March 31, 1997, compared to $747,000 for the
three months ended March 31, 1996. During 1996, there were $161,000 of sales of
PACEport services and none during 1997. Cost of services as a percentage of
related sales increased to 68.0% during 1997 from 62.1% during 1996 primarily
due to an increase in compensation expenses.
AMORTIZATION OF SOFTWARE. Amortization of software for the three months
ended March 31, 1997, as compared to the three months ended March 31, 1996,
increased $5,000 as a result of the amortization of software costs capitalized
during 1996, and, as a percentage of total net sales, increased to 3.2% during
1997 from 2.7% during 1996 due to the decrease in net sales.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
$372,000, or 96.8%, to $756,000 for the three months ended March 31, 1997, from
$384,000 for the three months ended March 31, 1996. This
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increase was due mainly to an increase in the rent expenses, professional fees
and compensation as NeoMedia builds an administration infra-structure to manage
current and expected future growth.
SALES AND MARKETING. A portion of the compensation to the sales and
marketing staff constitutes salary and is fixed in nature, while the rest of
this compensation is directly related to sales volume. Sales and marketing
expenses have increased $332,000, or 70.8%, to $801,000 for the three months
ended March 31, 1997 from $469,000 for the three months ended March 31, 1996, as
a result primarily of hiring managers to direct current and expected future
growth. NeoMedia anticipates that sales and marketing costs will increase as
NeoMedia grows.
RESEARCH AND DEVELOPMENT. During the three months ended March 31, 1997,
NeoMedia charged to expense 3.9% of total net sales in research and development
expenses as compared to 1.3% during the three months ended March 31, 1996. This
percentage increase was due to an increase in the number of software developers
employed by NeoMedia. NeoMedia currently intends to continue to make significant
investments in research and development.
INTEREST EXPENSE, NET. Interest expense consists primarily of interest paid
to creditors as part of financed purchases, capitalized leases and NeoMedia's
asset-based collateralized line of credit. Interest expense decreased by
$93,000, or 88.9%, to $11,000 for the three months ended March 31, 1997 from
$104,000 for the three months ended March 31, 1996, due to the repayment of debt
in 1996's fourth quarter and interest income earned on the proceeds from the
IPO.
BENEFIT FOR INCOME TAXES. The benefits for income taxes recorded during the
three months ended March 31, 1997 and 1996 represented the recovery of income
taxes paid in prior years from the carryback of operating losses.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, NeoMedia has financed its operation through shareholder
loans and borrowings from a commercial bank and under a line of credit. In
December, 1995 and in January, 1996, in several series of transactions between
affiliates, funds were loaned and borrowed pursuant to promissory notes bearing
interest at the rate of 8% per annum. In December, 1996 and February, 1997,
NeoMedia repaid in full all of these related party loans. Also, in January,
1996, NeoMedia borrowed $250,000 from a commercial bank bearing interest at the
bank's prime rate plus 0.5%.
During 1995, NeoMedia had available a line of credit with a commercial bank
that permitted borrowings up to the lesser of $2.0 million or 80% of eligible
accounts receivable, as defined in the financing agreement. The line of credit
had an interest rate equal to the bank's prime rate plus 1.0%. The line of
credit was collateralized by accounts receivable and inventories, and required
NeoMedia to maintain certain financial ratios. NeoMedia used this facility for
funding its operations during 1995 and through the closing of the IPO shortly
after which NeoMedia repaid in full the line of credit with its commercial bank.
In November, 1996, NeoMedia completed its IPO receiving net proceeds of
$5.7 million. In January, 1997, NeoMedia closed the IPO's over-allotment and
received net proceeds of $1.3 million. As of March 31, 1997, NeoMedia's working
capital was $4.6 million which represented a $412,000 decrease from December 31,
1996. In February, 1997, NeoMedia began discussions with a number of financial
institutions for a line of credit to replace the bank line repaid in November,
1996, and enhance the line of credit with a commercial finance company.
Net cash provided by (used in) operating activities for the three months
ended March 31, 1997 and 1996, was $(1.3) million and $111,000, respectively.
During 1997, trade accounts receivable decreased $169,000, while accounts
payable and accrued expenses decreased $1.2 million. During 1996, trade accounts
receivables increased $829,000, while trade payables decreased $443,000 and
other liabilities increased $1.1 million.
10
<PAGE>
NeoMedia's net cash flow used in investing activities for the three months
ended March 31, 1997 and 1996, was $359,000 and $142,000, respectively. Net cash
provided by financing activities for the three months ended March 31, 1997 and
1996, was $1.3 million and $227,000, respectively. During January 1997, NeoMedia
sold the over-allotment of its Initial Public Offering receiving net cash
proceeds of $1.3 million.
PART II -- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
The exhibits required by Item 601 of Regulation S-B to be filed herewith
are as follows:
Articles of Incorporation, By-laws and instruments defining the rights of
holders, including indentures have heretofore been filed with the Securities and
Exchange Commission and are hereby incorporated by reference to NeoMedia's Form
10-KSB for the year ended December 31, 1996.
All material contracts have heretofore been filed with the Securities and
Exchange Commission and are hereby incorporated by reference to NeoMedia's Form
10-KSB for the year ended December 31, 1996.
10.50 Lease By and Between American National Bank and Trust Company of
Chicago and NeoMedia Technologies, Inc. Dated February 25, 1997
27 Financial Data Schedule (for SEC use only)
- --------------------------------------------
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the three months ended March 31,
1997.
11
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934,
the Registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
NEOMEDIA TECHNOLOGIES, INC.
Registrant
Date MAY 7, 1997 By: /s/ CHARLES W. FRITZ
----------- -------------------------------
Charles W. Fritz, President, Chief
Executive Officer and Chairman of the
Board
Date MAY 7, 1997 By: /s/ CHARLES T. JENSEN
----------- -----------------------------
Charles T. Jensen, Vice President, Chief
Financial Officer, Treasurer and Director
12
<PAGE>
EXHIBIT INDEX
SEQUENTIAL EXHIBIT
PAGE NUMBER NUMBER DOCUMENT
- ----------- ------ --------
14 10.50 Lease By and Between American National Bank Trust
Company of Chicago and NeoMedia Technologies, Inc. Dated
February 25, 1997
51 27.1 Article 5 Financial Data Schedule for March 31, 1997
13
NeoMedia Technologies, Inc.
Exhibit 10.50
Lease By and Between American National Bank and Trust Company of
Chicago and NeoMedia Technologies, Inc. Dated February 25, 1997
<PAGE>
LISLE BUSINESS CENTER
LISLE, ILLINOIS
OFFICE/SERVICE CENTER LEASE
LANDLORD: American National Bank and Trust Company of Chicago as
Trustee under Trust Agreement Dated September 6, 1985 and
known as Trust No. 65453
TENANT: NeoMedia Technologies, Inc., a Delaware corporation
PREMISES: 6,050 square feet
BUILDING: Lisle Business Center
2150 Western Court
Lisle, Illinois
60532-1898
DATE OF LEASE: February 25, 1997
GUARANTOR: None
AGENT: Pritchett Development Company,
an Illinois corporation
<PAGE>
LISLE BUSINESS CENTER
LISLE, ILLINOIS
OFFICE/SERVICE CENTER LEASE
TABLE OF CONTENTS
-----------------
ARTICLE NO. PAGE NO.
- ----------- --------
I. GRANT AND TERM .......................................................1
1.0 Grant ............................................................1
1.1 Term .............................................................1
1.2 Agent ............................................................1
1.3 Amount of Security Deposit .......................................1
1.4 Parking Areas ....................................................1
II. RENT .................................................................2
2.0 Base Rent ........................................................2
2.1 Additional Rent ..................................................2
2.2 Payment of Rent ..................................................4
2.3 Interest on Late Payments ........................................4
III. USE ..................................................................4
3.0 Purpose ..........................................................4
IV. POSSESSION ...........................................................4
4.0 Possession .......................................................4
4.1 Physical Condition ...............................................5
V. TAXES ................................................................5
5.0 Taxes ............................................................5
5.1 Payment by Tenant ................................................5
VI. INSURANCE ............................................................6
6.0 Kinds and Amounts ................................................6
6.1 Form of Insurance ................................................7
6.2 Fire Protection ..................................................7
6.3 Mutual Waiver of Claims and Subrogation Rights ...................7
VII. DAMAGE OR DESTRUCTION ................................................8
7.0 Damage or Destruction by Fire or Casualty ........................8
VIII. CONDEMNATION .........................................................8
8.0 Taking of Whole ..................................................8
8.1 Partial Taking ...................................................8
IX. MAINTENANCE AND ALTERATIONS ..........................................8
9.0 Landlord's Maintenance ...........................................8
9.1 Tenant's Maintenance .............................................9
9.2 Alterations ......................................................9
X. ASSIGNMENT AND SUBLETTING ...........................................10
10.0 No Assignment, Subletting or Other Transfer .....................10
10.1 Consent Not a Release ...........................................10
10.2 Notice to Landlord; Right to Terminate ..........................11
10.3 Excess Rent .....................................................11
10.4 Assumption and Attornment .......................................12
XI. LIENS AND ENCUMBRANCES ..............................................12
11.0 Encumbering Title ...............................................12
11.1 Liens ...........................................................12
XII. UTILITIES ...........................................................12
XIII. INDEMNITY AND WAIVER ................................................13
i
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE NO. PAGE NO.
- ----------- --------
13.0 Indemnity .......................................................13
13.1 Waiver of Certain Claims ........................................13
XIV. RIGHTS RESERVED TO LANDLORD .........................................14
14.0 Rights Reserved to Landlord .....................................14
XV. EXPENSES ............................................................15
15.0 Expenses ........................................................15
15.1 Direct Pay Items ................................................15
15.2 Payment by Tenant ...............................................15
XVI. SUBORDINATION OR SUPERIORITY ........................................16
16.0 Subordination or Superiority ....................................16
XVII. SURRENDER ...........................................................16
17.0 Surrender .......................................................16
17.1 Removal of Tenant's Property ....................................17
17.2 Holding Over ....................................................17
XVIII. REMEDIES ............................................................17
18.0 Defaults ........................................................17
18.1 Remedies ........................................................18
18.2 Remedies Cumulative .............................................19
18.3 No Waiver .......................................................19
18.4 Default under Other Leases ......................................19
XIX. SECURITY DEPOSIT ....................................................20
19.0 Security Deposit ................................................20
XX. MISCELLANEOUS .......................................................20
20.0 Tenant's Statement .............................................20
20.1 Estoppel Certificates ..........................................20
20.2 Landlord's Right to Cure .......................................21
20.3 Amendments Must Be in Writing ..................................21
20.4 Notices.........................................................21
20.5 Time of Essence ................................................21
20.6 Relationship of Parties ........................................21
20.7 Captions .......................................................21
20.8 Severability ...................................................21
20.9 Law Applicable .................................................22
20.10 Covenants Binding on Successors ................................22
20.11 Brokerage ......................................................22
20.12 Landlord Means Owner ...........................................22
20.13 Lender's Requirements ..........................................22
20.14 Industrial Revenue Bonds .......................................22
20.15 Signs ..........................................................23
20.16 Use of Loading Dock and Common Area ............................23
20.17 Landlord's Expenses ............................................23
20.18 Execution of Lease by Landlord .................................23
20.19 Landlord Performance ...........................................23
20.20 Mortgagee Protection ...........................................24
20.21 Compliance with Environmental Laws .............................24
20.22 Quiet Enjoyment ................................................25
20.23 Exculpatory Clause .............................................25
ATTACHMENTS
-----------
EXHIBIT A
EXHIBIT B
RIDER #1
ii
<PAGE>
OFFICE/SERVICE CENTER
THIS LEASE is made this 25th day of FEBRUARY 1997, by and between American
National Bank and Trust Company of Chicago, not personally but solely as Trustee
under a Trust Agreement dated September 6, 1985 and known as Trust No. 65453
(the "Landlord") and NEOMEDIA TECHNOLOGIES, INC., A DELAWARE CORPORATION (the
"Tenant"), who hereby mutually covenant and agree as follows:
I. GRANT AND TERM
1.0 GRANT.
Landlord, for and in consideration of the rents herein reserved and of the
covenants and agreements herein contained on the part of the Tenant to be
performed, hereby leases to Tenant, and Tenant hereby lets from Landlord, the
premises outlined on the floor plan attached hereto as Exhibit A (the
"Premises") located in a certain one-story office/service center building at
2150 Western Court, Lisle, Illinois (the "Building") which Building is situated
on the Real Estate legally described below (the "Real Estate"):
Lot 8 in Ogden Industrial Park Associates' Subdivision, being a Subdivision
in the South East 1/4 of Section 4 and the North East 1/4 of Section 9,
Township 38 North, Range 10, East of the Third Principal Meridian,
according to the Plat thereof Recorded January 21, 1970 as Document
R70-1908, in Dupage County, Illinois.
Together With That Certain Leasehold Estate Created by the Lease Executed
by Northern Illinois Gas Company, an Illinois Corporation, Lessor, and
American National Bank and Trust Company of Chicago, as Trustee under Trust
Agreement dated September 6, 1985 and Known as Trust Number 65453, Lessee,
dated January 1, 1986, and a Memorandum of Which was Recorded May 15, 1986
as Document R86-47016, which Lease Demises the Land for a Term of Years
Beginning January 1, 1986 and Ending December 31, 2010, to-wit:
That part of Northern Illinois Gas Company's 82.5 foot wide Troy Grove
right-of-way lying South of the Southerly line of the East-West Tollway and
North of the Northerly line of Lot 8 in Odgen Industrial Park Associates
Subdivision, being a Subdivision in the Southeast Quarter of Section 4 and
the Northeast Quarter of Section 9, Township 38 North, Range 10 East of the
Third Principal Meridian, according to the Plat thereof recorded January
21, 1970 as Document R70-1908, in DuPage County, Illinois.
The Building, together with certain other buildings in the Ogden Industrial Park
Associates Subdivision and/or land adjacent to the Ogden Industrial Park
Associates Subdivision which may be constructed by Landlord or affiliates of the
Landlord ("Other Buildings") (the "Building" and "Other Buildings" herein
collectively called the "Complex") is now and hereinafter commonly known as
Lisle Business Center.
1.1 TERM.
The term ("Term") of this Lease shall commence on MAY 1, 1997 (the
"Commencement Date") and shall end on APRIL 30, 2000, unless sooner terminated
as herein set forth.
1.2 AGENT.
As used in this Lease the term "Agent" shall mean the agent of Landlord
(but if Landlord is an Illinois land trust, the term "Agent" shall mean the
agent of the beneficiary or beneficiaries of Landlord). Until otherwise
designated by notice in writing from Landlord, Agent shall be Pritchett
Development Company. Tenant may rely upon any consent or approval given in
writing by Agent or upon notice from Agent or from the attorneys for Agent or
Landlord.
1
<PAGE>
1.3 AMOUNT OF SECURITY DEPOSIT.
Tenant has deposited the sum of FIVE THOUSAND FIVE HUNDRED FORTY-FIVE AND
83/100s --------------------------------------------------Dollars ($5,545.83)
("Security Deposit") in accordance with the provisions of Section 19.0 hereof.
1.4 PARKING AREAS.
Tenant, its employees and invitees may use, on a non-exclusive, unreserved
basis, together with other occupants or tenants of the Building, all parking
spaces in the parking areas, designated by Landlord which serve the Building.
Landlord shall not be required to enforce any parking limitations or rules with
respect to said parking spaces in parking areas serving the Building.
II. RENT
2.0 BASE RENT.
Beginning with the Commencement Date, Tenant shall pay an annual base rent
of SIXTY-SIX THOUSAND FIVE HUNDRED FIFTY AND 00/100S ---------------------------
Dollars ($66,550.00) ("Base Rent") payable in equal monthly installments of FIVE
THOUSAND FIVE HUNDRED FORTY-FIVE AND 83/100S ---------------------------------
Dollars ($5,545.83) ("Monthly Base Rent") for the first lease year, in advance
on the Commencement Date and on the first day of each calendar month thereafter
during the first lease year, and at the same rate for fractions of a month if
the Commencement Date occurs on any date except the first day of a calendar
month or the first lease year ends on any day except the last day of a calendar
month. See Rider #1 for Base Rent and Monthly Base Rent for the balance of the
Term.
2.1 ADDITIONAL RENT.
In addition to paying Base Rent, Tenant shall also pay as additional rent
the following amounts ("Additional Rent") for each calendar year in which the
Term falls:
(a) Tenant's Pro Rata Share (as hereinafter defined) of Taxes (as defined
in Section 5.0) in excess of $ZERO ("Base Taxes") in accordance with the
provisions of Article V hereof.
(b) Tenant's Pro Rata Share of Expenses (as defined in Section 15.0),
excess of $ZERO ("Base Expenses") in accordance with the provisions of Article
XV hereof.
(c) Direct Pay Items (as defined in Section 15.1) in accordance with the
provisions of Article XV hereof.
As used in this Lease,
(i) the term "Tenant's Pro Rata Share" shall mean ELEVEN AND 81/100
------------ percent (11.81%), which is the Rentable Area of
the Premises divided by the Rentable Area of the Building;
(ii) the term "Rentable Area of the Premises" shall mean usable area
in the Premises plus a share of mechanical space, loading docks
and other common service areas in the Building, and, if the
Premises are less than an entire floor, a share of public areas
(such as corridors, toilets, lobbies and electrical and
telephone closets) on the floor. Rentable Area of the Premises
shall be deemed to be 6.050 square feet.
(iii) the term "Rentable Area of the Building" shall mean the gross
area of the building, including but not
2
<PAGE>
limited to, all tenant areas, mechanical space, loading docks
and other common service areas. Rentable Area of the Building
shall be deemed to be 51,244 square feet.
3
<PAGE>
2.2 PAYMENT OF RENT.
Base Rent, Monthly Base Rent, Additional Rent, estimated payments on
account of Additional Rent, and all other charges due from Tenant to Landlord
hereunder (collectively, "Rent") shall be paid to or upon the order of 2150
WESTERN COURT LIMITED PARTNERSHIP ("Payee") at the Payee's address designated by
Landlord. Landlord may change the Payee or the Payee's address by notice to
Tenant of such change. All Additional Rent, estimated payments on account of
Additional Rent, and and other charges payable by Tenant hereunder shall be
additional rent under this Lease. All payments of Rent shall be made without
deduction, set off, discount or abatement in lawful money of the United States.
The payment of Rent hereunder is independent of each and every other covenant
and agreement contained in this Lease. Concurrently with the execution of this
Lease, Tenant shall pay Monthly Base Rent for the first full calendar month of
the Term.
2.3 INTEREST ON LATE PAYMENTS.
Rent not paid when due shall bear interest from the date when the same is
payable under the terms of this Lease until the same shall be paid at the rate
of twelve percent (12%) per annum, unless a lesser rate shall be the maximum
rate permissible by law, in which event said lesser rate shall be charged.
III. USE
3.0 PURPOSE.
The Premises shall be used and occupied by Tenant only for the purpose of
BUSINESS OFFICE and for no other use or purpose.
3.1 PROHIBITED USES.
Tenant shall not use or permit the Premises to be used in any manner which
would violate any certificate of occupancy affecting the Premises, cause injury
to the improvements, cause the value or usefulness of the Building or Real
Estate or any part thereof to diminish, constitute a public nuisance or waste,
or render the insurance on the Building void or the insurance risk more
hazardous or create any
4
<PAGE>
defense to payment, provided, however, that if Tenant's use of the Premises does
make the insurance risk more hazardous then, without prejudice to any other
remedy of Landlord for such breach, Tenant shall pay to Landlord, on demand, the
amount by which Landlord's insurance premiums are increased as a result of such
use. Tenant shall not use or occupy the Premises contrary to any statute, rule,
order, ordinance, requirement or regulation applicable thereto. Further, in the
event that Tenant's use of the Premises, as a storage facility or otherwise,
results in unsightly conditions visible from the outside of the Premises, Tenant
shall keep all window blinds serving the offending areas of the Premises closed
at all times.
IV. POSSESSION
4.0 POSSESSION.
Except as otherwise expressly provided herein (or by written instrument
signed by Landlord or Agent), Landlord shall deliver possession of the Premises
to Tenant on or before the Commencement Date in their condition as of the
execution and delivery hereof, reasonable wear and tear excepted. If Landlord
permits Tenant to occupy the Premises for conduct of its business prior to the
Commencement Date, then such occupancy shall be subject to all the terms and
conditions of this Lease, including payment of Rent from and after the date of
Tenant's occupancy. If Landlord permits Tenant to enter upon the Premises prior
to the Commencement Date solely to fit the Premises for its use, then such
occupancy shall be subject to all the terms and conditions of this Lease (except
payment of Base Rent, Tenant's Pro Rata Share of Expenses and Tenant's Pro Rata
Share of Taxes). If Landlord shall be unable to deliver possession of the
Premises on the Commencement Date for any reason, Landlord shall not be subject
to any liability for the failure to give possession on said date, nor shall the
validity of this Lease or the obligations of Tenant hereunder be in any way
affected. Under such circumstances, unless the delay is the fault of Tenant,
Rent and other charges hereunder shall not commence until the later of the date
possession of the Premises is given or the Commencement Date. Provided, however,
notwithstanding any other provision herein contained to the contrary, if the
Landlord is unable to deliver possession of the Premises on the Commencement
Date, Landlord shall pay to Tenant its out-of-pocket expenses, not to exceed
$3,000 in the aggregate, incurred as the result of Landlord's failure to deliver
possession of the Premises on the Commencement Date.
4.1 PHYSICAL CONDITION.
The parties agree and acknowledge that the Premises are in an unfinished
condition. for Tenant's use and Tenant improvements shall be constructed in
accordance with the work letter attached hereto as Rider #1. Tenant is fully
familiar with the physical condition of the Premises and agrees that Landlord
has made no representations of any nature in connection with the condition of
the Premises or of improvements, fixtures or equipment in the Premises except as
may be set forth in any workletter executed by Landlord and attached hereto.
Except as specifically provided in the attached Rider #1, Tenant accepts the
Premises "as is".
V. TAXES
5.0 TAXES.
"Taxes" shall mean all taxes and assessments, general and special, water
and sewer rates and all other impositions, ordinary and extraordinary, of every
kind and nature whatsoever, which may be levied, assessed, charged or imposed
upon the Building and Real Estate or any personal property used in connection
with the Building or Real Estate. Taxes shall also include all reasonable fees
and costs incurred by Landlord for the purpose of contesting or protesting
taxes, assessments or rates. If at any time during the Term the method of
taxation prevailing at the commencement of the Term shall be altered so that any
new or additional tax assessment, levy, imposition, or charge, or any part
thereof, shall be imposed in place or partly in place of any Taxes or
contemplated increase therein, or in addition to Taxes, and shall be measured by
or be based in whole or in part upon the Lease, the Premises, the Building or
the Real Estate, or the rent, additional rent or other income therefrom and
shall be imposed upon Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof, to the extent that they are so
measured or based, shall be deemed to be included within the term "Taxes" for
the purpose hereof, to the extent that such taxes would be payable if the
Building and Real Estate were the only property of Landlord subject to such
items of Taxes. There shall be excluded from Taxes all federal income taxes,
federal excess profit taxes, franchise, capital stock and
5
<PAGE>
federal or state estate or inheritance taxes of Landlord, except as provided in
the foregoing sentence. In the event that: (a) the amount or type of Tenant
improvements; (b) the equipment, fixtures or items brought on or affixed to the
Premises; (c) any activity of Tenant in the Premises; or (d) the Tenant's date
of occupancy of the Premises may be deemed by the Tax Assessor to modify or
increase the tax assessment, tax rate or actual taxes imposed against the
Building or Complex, then, if the Tax Assessor indicates in such a manner so
that the increase or modification can be determined absolutely with respect to
the Premises or, in the absence of such an indication, the Landlord may so
allocate and designate the increase or modification in a manner satisfactory to
Landlord, the Tenant shall be responsible for and pay, pursuant to Article 5,
the amount of the increased or modified taxes due to that activity.
5.1 PAYMENT BY TENANT.
For each calendar year in which the Term falls, Tenant shall pay as
Additional Rent an amount ("Tax Adjustment") equal to Tenant's Pro Rata Share
(as defined in Section 2.1(b)(i) hereof) of Taxes for such calendar year in
excess of Base Taxes.
(a) Prior to each such calendar year or from time to time during any
calendar year, Landlord may notify Tenant as to monthly installments on account
of Tax Adjustment payable by Tenant based on Landlord's reasonable estimate of
Taxes and Tax Adjustment (assuming a reasonable adjustment in Taxes from prior
calendar year's Taxes or based on latest assessed valuation, tax rates and other
components of Taxes, whichever is greater). If Landlord fails to notify Tenant
of the amount of any monthly installments for a calendar year, Tenant shall pay
monthly installments on account of Tax Adjustment at the rate last paid until
service of Landlord's notice. The amount of such installments may be increased
by Landlord during any calendar year, and Tenant shall also pay Landlord by a
lump sum payment within thirty (30) days after Landlord's request, an amount
sufficient to bring total payments to date on account of Taxes current, so that
total payments on account of Taxes for the calendar year will approximate
Landlord's estimate of Tenant's Tax Adjustment. Prior to or upon termination or
expiration of this Lease or termination of Tenant's possessory rights hereunder,
or if Tenant vacates or abandons the Premises, Landlord may require Tenant to
pay, or may retain from the Security Deposit, amounts required, in Landlord's
reasonable opinion, to pay the Tax Adjustment for the remaining calendar years
of the Term or in which the Term falls.
(b) Tax Adjustment for the first calendar year in which the Term falls
(if the Commencement Date is other than January 1) and the last calendar year in
which the Term falls (if the Term ends on a date other than December 31) shall
be pro-rated based upon the number of days in the Term falling within the
calendar year in question. Except in the case of taxes or special assessments
payable in installments over more than one year, the installments of which paid
during a calendar year shall be included in Taxes for such calendar year, all
references to Taxes "for" a calendar year shall be deemed to refer to taxes
levied, assessed or otherwise imposed for such year without regard to when such
taxes are payable. Notwithstanding any of the foregoing (including the
definition of Pro Rata Share of Taxes), if the tax Assessor and/or other
governmental official with comparable function, jurisdiction or authority
determines the assessment, tax rate, or actual taxes in such a manner that the
Taxes are or can be allocated to the Tenant's period of occupancy, the Tax
Adjustment will be charged and will be payable based upon such Taxes as
allocated to the Tenant's period of occupancy.
(c) Following the end of each calendar year and after Landlord shall
have ascertained the actual amount of Taxes, Landlord shall notify Tenant as to
the amount of Taxes and Tenant's Tax Adjustment. If the Tax Adjustment exceeds
total payments made by Tenant on account of Tax Adjustment for Tenant shall pay
Landlord any such deficiency within thirty (30) days after Landlord's notice. If
the Tax Adjustment is less than total payments made by Tenant on account of Tax
Adjustment for such calendar year, then Landlord shall credit any such excess to
unpaid Rent or Rent due thereafter, or shall refund such overpayment to Tenant.
(d) Without limitation on other obligations of Tenant which survive the
termination or expiration of the Term, Tenant's obligation to pay Tax Adjustment
shall survive the expiration or termination of this Lease. Tenant shall pay
Landlord any amounts owed on account of Tax Adjustment within thirty (30) days
after notice from Landlord as to amounts owed.
6
<PAGE>
VI. INSURANCE
6.0 KINDS AND AMOUNTS.
Tenant shall procure and maintain the following insurance policies of
insurance, at its own cost and expense:
(a) Comprehensive general liability insurance, including contractual
liability under Tenant's indemnification obligations contained in this Lease,
covering injury to or death of persons and damage to property in an amount of
not less than $1,000,000.00 combined single limit per occurrence;
(b) Deleted
(c) Worker's compensation insurance in not less than statutory amounts;
(d) Deleted
(e) Insurance covering all contents, and Tenant's trade fixtures,
machinery, equipment, furniture and furnishing in the Premises to the extent of
at least ninety percent (90%) of their replacement cost under broad form
standard fire and extended coverage insurance, including, without limitation,
vandalism and malicious mischief and sprinkler leakage endorsements; and
(f) Deleted
6.1 FORM OF INSURANCE.
Insurance to be carried by Tenant shall be in companies and in form,
substance and amount (initially in amounts stated above) satisfactory from time
to time to Landlord and any mortgagee of Landlord. Insurance policies described
in Sections 6.0(a), (b) and (d) shall name Landlord as an additional insured and
shall contain waivers of subrogation against Landlord and expressly permit
waiver of claims prior to a loss as provided in Section 6.3 hereof, both such
waivers to be to the extent permitted by the insurance company. The aforesaid
insurance shall not be subject to cancellation except after at least thirty (30)
days, prior written notice to Landlord and any mortgagee of Landlord. The
original insurance policies (or certificates thereof satisfactory to Landlord),
together with satisfactory evidence of payment of the premiums thereon, shall be
deposited with Landlord at the Commencement Date and renewals thereof not less
than thirty (30) days prior to the end of the term of each such coverage. If
Landlord is an Illinois land trust the insurance referred to in subsections
6.0(a), (b) and (d) hereof shall also name as additional insureds the
beneficiary or beneficiaries thereof, and their agents, including Agent.
6.2 FIRE PROTECTION.
Tenant shall conform with all applicable fire codes of any governmental
authority, and with the rules and regulations of Landlord's fire underwriters
and their fire protection engineers, including, without limitation, the
installation of adequate fire extinguishers. If Landlord is providing a
sprinkler monitoring system with a direct connection to the local fire
department or monitoring service, then the cost thereof shall be an Expense as
set forth in Article XV.
7
<PAGE>
6.3 MUTUAL WAIVER OF CLAIMS AND SUBROGATION RIGHTS.
Notwithstanding any other provision of this Lease to the contrary, whenever
(a) any loss, cost, damage or expense resulting from fire, explosion or any
other casualty or occurrence is incurred by either of the parties to this Lease,
or anyone claiming by, through, or under it in connection with the Premises, and
(b) such party is then covered in whole or in part by insurance with respect to
such loss, cost, damage or expense or is required under this Lease to be so
insured, then the party so insured (or so required) hereby waives any claims
against and releases the other party from any liability said other party may
have on account of such loss, cost, damage or expense to the extent of any
amount recovered by reason of such insurance (or which could have been recovered
had such insurance been carried as so required); provided that such waiver of
claims or release of liability shall not be operative in any case where the
effect thereof is to invalidate such insurance coverage or increase the cost
thereof (except that in the case of increased cost, the other party shall have
the right, within thirty (30) days following written notice, to pay such
increased cost, thereby keeping such release or waiver in full force and
effect). If the party released from liability hereunder is the Landlord, and if
Landlord is an Illinois land trust, the term "Landlord", for the purpose of this
Section 6.4 only, shall include the Trustee, its agents, its beneficiary or
beneficiaries and their agents, including Agent.
VII. DAMAGE OR DESTRUCTION
7.0 DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY.
In the event the Premises are damaged by fire, explosion or other casualty,
Landlord shall commence the repair, restoration or rebuilding thereof within
sixty (60) days after such damage and shall complete such restoration, repair or
rebuilding within one hundred fifty (150) days after the commencement thereof,
subject to delay because of changes, deletions, or additions in construction
requested by Tenant, acts of Tenant, strikes, lockouts, casualties, acts of God,
war, fuel or energy shortages, material or labor shortages, governmental
regulation or control or other causes beyond the control of Landlord. If the
fire or casualty (not caused by any act or neglect of Tenant, its agents,
employees or contractors) or the repair, restoration or rebuilding caused
thereby shall render the Premises untenantable in whole or in part, Base Rent
shall abate from the date when the damage occurred until the date on which the
Premises are again fit for occupancy by Tenant in an amount bearing the same
ratio to the total amount of Base Rent for such period as the portion of the
Premises not ready for occupancy from time to time bears to the entire Premises.
If such a fire, explosion or other casualty damages the Building, Landlord may,
in lieu of repairing, restoring or rebuilding the same, elect to terminate this
Lease by notice to Tenant within sixty (60) days after occurrence of the fire or
other, casualty causing the damage. In such event, Tenant shall be obligated to
pay Rent and other charges hereunder accrued to the date when the damage
occurred. Notwithstanding anything to the contrary herein set forth, Landlord
shall have no obligation pursuant to this Section 7.0, (a) to repair or restore
any Alterations owned or made by Tenant in the Premises or to spend for any
repair or restoration amounts in excess of insurance proceeds paid to Landlord
which are not applied to reduce the balance of any mortgage on the Building or
Real Estate, or (b) to repair or restore the Premises if the damage or
destruction occurs during the last twenty-four (24) months of the Term.
Notwithstanding any other provision herein contained to the contrary, if the
Building is damaged so that Tenant cannot use the Premises for the purposes for
which Tenant had been using it prior to such damage, Tenant may, at any time
within sixty days after the occurrence of the fire or other casualty causing
such damage, elect to terminate this Lease by sending written notice thereof to
Landlord, and if Tenant so elects, from and after the date of such termination,
Tenant shall have no further obligation or liability hereunder; provided,
however, Tenant shall continue to be liable for any liabilities incurred prior
thereto.
VIII. CONDEMNATION
8.0 TAKING OF WHOLE.
If the entire Building or a substantial part thereof, or any part thereof
which includes all or a substantial part of the Premises, shall be taken or
condemned for a public or quasi-public use or purpose by a competent authority,
or if such a portion of the Premises shall be so taken that as a result thereof
the balance cannot be used for the same purpose and with substantially the same
utility to Tenant as immediately prior to such taking, then in either of such
events, the Term shall terminate upon the earlier of delivery of possession to
the condemning authority or the effective date of the taking. Any award,
compensation or damages (the "Award") for a partial or total taking shall be
paid to and be the sole property of Landlord whether the Award shall be make as
compensation for diminution of the value of the leasehold estate or the fee of
the Building and Real Estate or otherwise, and Tenant hereby assigns to Landlord
all of
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Tenant's right, title and interest in and to any and all of the Award. Tenant
shall pay Rent and other charges hereunder accruing to the date of termination.
8.1 PARTIAL TAKING.
If only a part of the Premises shall be so taken or condemned, but the
balance of the Premises can still be used for the same purpose and with
substantially the same utility to Tenant as immediately prior to such taking,
this Lease shall not terminate and Landlord shall repair and restore the
Premises and all improvements thereon, except that Landlord shall not hereby be
required to expend for repair and restoration any sum in excess of the Award.
Any portion of the Award which has not been expended by Landlord for
such, repairing or restoration shall be retained by Landlord as Landlord's sole
property. Base Rent and Tenant's Pro Rata Share shall be equitably abated
following delivery of possession to the condemning authority.
IX. MAINTENANCE AND ALTERATIONS
9.0 LANDLORD'S MAINTENANCE.
(a) Landlord shall keep and maintain the roof and exterior walls of the
Building the parking lot and landscaping on the Real Estate, and all
roof-mounted mechanical equipment, air handler and furnace and equipment
relating to the air handler and furnace used in connection with the Premises in
good working order and repair. Landlord shall perform all exterior painting (at
such intervals as Landlord deems appropriate) and shall remove snow
accumulations, if and when deemed necessary by Landlord, from the roof and from
the parking lot, and shall perform necessary maintenance, repairs and
replacements on portions of the Building and Real Estate used in common by its
tenants. Landlord's obligations under this Section 9.0 are subject to the
provisions of Article VII of this Lease concerning damage or destruction due to
fire or other casualty. Costs and expenses incurred by Landlord under this
Section 9.0(a) shall be costs and expenses includible in Expenses (as defined in
Section 15.0) or Direct Pay Items (as defined in Section 15.1), except as
expressly provided in Section 15.0.
(b) If Landlord shall repair any damage to the Building and Real Estate,
including, without limitation, damage to the roof, landscaping, or exterior of
the Building, and to truck dock doors caused by or resulting from any act or
omission or negligence of Tenant, its agents, employees, contractors, customers
and invitees, and not caused by Landlord, Tenant shall pay Landlord the cost of
such repair within thirty (30) days after Landlord bills Tenant therefor.
9.1 TENANT'S MAINTENANCE.
(a) Tenant shall keep and maintain the entire interior of the Premises and,
except to the extent any of the following are maintained pursuant to a
maintenance contract let by Landlord in accordance with Section 9.1(b) hereof,
heating, ventilating and air conditioning systems, plumbing, fixtures, light
fixtures, bulbs and tubes, and windows on the interior of the Premises clean and
sanitary and in good condition and repair, carpet cleaning at least once each
year, necessary interior painting, and keeping all glass (in windows, doors and
skylights) clean and in good condition; as to any repairs and replacements,
Tenant shall comply with the requirements of Section 9.2 hereof. Tenant shall be
responsible for all custodial services and upkeep within the Premises. Tenant
shall maintain the Premises in such condition so as to fully comply with all
health, safety and police orders and regulations. Tenant shall promptly remove
any debris left by Tenant, its employees, agents, contractors, customers or
invitees in the common areas of the Building and in the parking area or other
areas of the Real Estate. Notwithstanding any other provision herein contained
to the contrary, at all times during the term of this Lease, Landlord shall keep
and maintain a maintenance contract for the heating, ventilating and air
conditioning systems of the Premises.
(b) Landlord shall, at all times during the Term, have the authority to
execute and keep in force a maintenance contract or contracts, providing for
regular inspection of the heating, air conditioning and ventilating equipment,
and providing for necessary repairs thereto and/or a custodial contract
providing for custodial, janitorial and cleaning services. All costs and
expenses incurred by landlord arising out of any maintenance, custodial or
janitorial contracts other than costs and expenses allocable directly to the
Premises, which costs and expenses shall be deemed Direct Pay Items (as defined
in Section 15.1). shall be included in Expenses (as defined in Section 15.0
hereof).
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9.2 ALTERATIONS.
(a) Tenant shall not create any openings in the roof or exterior walls, or
make any repairs, replacements, additions, improvements or alterations
(collectively, "Alterations") to the Premises without Landlord's prior written
consent, which consent Landlord may, in its discretion, withhold; provided,
however, that Landlord agrees not to withhold its consent unreasonably to any
Alterations (i) not affecting the structure of the Building or Building systems,
(ii) not increasing the cost to Landlord of performing its obligations
hereunder, (iii) not affecting any other tenant's premises, and (iv) costing
less than $5,000.00. Tenant shall make all Alterations in and to the Premises
required by any governmental authority or which may be made necessary by the act
or neglect of Tenant, its employees, agents, contractors, invitees and
licensees.
(b) Tenant shall perform any Alterations with new materials, in a
workman-like manner, strictly in accordance with plans and specifications
therefor first approved in writing by Landlord and in accordance with all
applicable governmental restrictions, orders, regulations, laws and ordinances
and in compliance with any insurance policies or insurance underwriting
requirements. At Landlord's option (exercised by notice in writing from Landlord
to Tenant given within ten (10) days after Landlord receives Tenant's plans and
specifications), such work shall be performed by employees of or contractors
employed by Landlord, at Tenant's expense. Upon completion of any such work by
or on behalf of Tenant, Tenant shall provide Landlord with such documents as
Landlord may require (including, without limitation, sworn contractors
statements and supporting lien waivers) evidencing payment in full for such
work, and "as built" working drawings. Tenant shall, upon written notice from
Landlord, immediately remove any work which does not comply with provisions of
this Section 9.2(b) and restore the Premises to their condition immediately
prior to performance of the work. If Tenant fails so to remove such work and
restore the Premises, Landlord may, at its option, and in addition to all other
rights or remedies of Landlord under this Lease, at law or in equity, enter the
Premises and perform said obligation of Tenant, and Tenant shall reimburse
Landlord for the cost to the Landlord thereof, immediately upon being billed
therefor by Landlord. Such entry by Landlord shall not be deemed an eviction or
disturbance of Tenant's use or possession of the Premises nor render Landlord
liable in any manner to Tenant.
(c) Subject to the provisions of Section 4.0 hereof, Landlord, at
Landlord's discretion, may permit Tenant and Tenant's agents, suppliers, union
contractors, subcontractors and workmen (collectively, "Tenant's Contractors"),
who have been approved by Landlord as hereinafter provided, to enter the
Premises prior to the commencement of the Term to enable Tenant to do such
things as may be required by Tenant to make the Premises ready for Tenant's
occupancy. Tenant shall notify Landlord of the identity of Tenant's Contractors
not less than fifteen (15) business days prior to the initial entry into the
Building or the Premises by any such Tenant's Contractors, and Landlord shall
have the right to approve or disapprove any of Tenant's Contractors. Tenant
agrees that if such permission is granted, (i) Tenant and Tenant's Contractors
and their activities in the Premises and Building will not interfere with or
delay the completion of the work to be done by Landlord and will not interfere
with other activities of Landlord or its mechanics or contractors or occupants
of the Building or their contractors, and (ii) Landlord, its contractors,
subcontractors and their agents and employees, shall have priority over Tenant
and Tenant's Contractors in performing work within the Premises or Building.
Landlord shall have the right to withdraw such permission upon twenty-four (24)
hours, written notice to Tenant if Landlord determines that any such
interference or delay has been or may be caused. Tenant agrees that any such
entry into the Premises shall be at Tenant's own risk and Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any of the
Tenant's property or installation made in the Premises. Tenant further agrees to
protect, defend, indemnify and save harmless Landlord and its beneficiaries
and agents from all liabilities, costs, damages, fees and expenses arising out
of or connected with the activities of Tenant or Tenant's Contractors in or
about the Premises or Building, including without limitation, the cost of any
repairs to the Premises or Building necessitated by activities of Tenant's
Contractors. In addition, prior to the initial entry into the Building or the
Premises by Tenant and by each of Tenant's Contractors, Tenant shall furnish
Landlord, at Tenant's sole cost, with policies of insurance covering Landlord,
its beneficiaries and agents as insured parties, with such coverages and in
such amounts as Landlord may then require in order to insure Landlord, its
beneficiaries or agents against loss or liability for injury or death or damage
to property arising out of or connected with any activities of Tenant or
Tenant's Contractors.
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X. ASSIGNMENT AND SUBLETTING
10.0 NO ASSIGNMENT, SUBLETTING OR OTHER TRANSFER.
Tenant shall not, either prior or subsequent to the commencement of the
Term, (i) assign, transfer, mortgage, pledge, hypothecate or encumber or subject
to or permit to exist upon or be subjected to any lien or charge, this Lease or
any interest under it, (ii) allow to exist or occur any transfer of or lien upon
this Lease or the Tenant's interest herein by operation of law, (iii) sublet the
Premises or any part thereof, or (iv) permit the use or occupancy of the
Premises or any part thereof for any purpose not provided for under Section 3.0
of this Lease or by anyone other than the Tenant and Tenant's employees.
Landlord has the absolute right to withhold its consent to any of the above
actions, except as herein expressly provided to the contrary in Section 10.2.
10.1 CONSENT NOT A RELEASE.
Consent by Landlord to any assignment, subletting, use or occupancy, or
transfer shall not operate to relieve the Tenant from any covenant or obligation
hereunder except to the extent, if any, expressly provided for in such consent,
or be deemed to be a consent to or relieve Tenant from obtaining Landlord's
consent to any subsequent assignment, transfer, lien, charge, subletting, use or
occupancy. Tenant shall pay all of Landlord's reasonable costs, charges and
expenses, including reasonable attorney's fees, incurred in connection with any
assignment, transfer, lien, charge, subletting, use or occupancy made or
requested by Tenant.
10.2 NOTICE TO LANDLORD; RIGHT TO TERMINATE.
Tenant shall, by notice in writing, advise Landlord of its intention from,
on and after a stated date (which shall not be less than sixty [60] days after
the date of Tenant's notice) to assign this Lease or sublet any part or all of
the Premises for the balance of any part of the Term, and, in such event,
Landlord shall have the right, to be exercised by giving written notice to
Tenant within thirty (30) days after receipt of Tenant's notice, to recapture
the space described in Tenant's notice and such recapture the space described in
Tenant's notice and such recapture notice shall, if given, terminate this Lease
with respect to the space therein described as of the date stated in Tenant's
notice. In the event that Landlord exercises its aforesaid recapture rights,
Tenant shall have the right to withdraw its notice, in which event this Lease
shall remain in full force and effect. Tenant's notice shall state the name and
address of the proposed subtenant or assignee, and a true and complete copy of
the proposed sublease or assignment and sufficient information to permit
Landlord to determine the financial responsibility and character of the proposed
subtenant or assignee shall be delivered to Landlord with Tenant's notice. If
Tenant's notice shall cover all of the Premises, and if Landlord shall give the
recapture notice, the Term of this Lease shall expire and end on the date stated
in Tenant's notice as if that date had been stated in this Lease for the
expiration of the Term. If, however, this Lease be terminated pursuant to the
foregoing provisions with respect to less than the entire Premises, then Exhibit
A shall be amended to reflect deletion of the portion of the Premises so
recaptured, and the Base Rent, Tenant's Pro Rate Share and Rentable Area of the
Premises shall be adjusted on the basis of the number of rentable square feet
retained by Tenant (i.e., rentable square foot area of deleted portion of the
Premises shall be deducted from Rentable Area of Premises, Base Rent shall be
reduced by a percentage equal to the rentable square foot area of deleted
portion of the Premises divided by the original Rentable Area of the Premises,
and Tenant's Pro Rata Share shall be the number of rentable square feet in the
Premises retained by Tenant divided by the Rentable Area of the Building); this
Lease as so amended shall continue thereafter in full force and effect. If
Landlord, upon receiving Tenant's notice with respect to any such space, shall
not exercise its right to terminate, Landlord will not unreasonably withhold its
consent to Tenant's assignment of this Lease or subletting the space to the
proposed subtenant or assignee named in the notice. Landlord shall not be deemed
to have unreasonably withheld its consent to a sublease of part or all of the
Premises or an assignment of this Lease if its consent is withheld because: (i)
Tenant is then in default hereunder; (ii) any notice of termination of this
Lease or termination of Tenant's possession shall have been given under Section
18.1 hereof; (iii) the portion of the Premises which Tenant proposes to
sublease, including the means of ingress and egress thereto and the proposed
use thereof, and the remaining portion of the Premises will violate any city,
state or federal law, ordinance or regulation; (iv) the proposed use of the
Premises by the subtenant or assignee does not conform with the use set forth in
Section 3.0 hereof; (v) in the reasonable judgment of Landlord, the proposed
subtenant or assignee is of a character or is engaged in a business which would
be deleterious to the reputation of the Building, or the subtenant or assignee
is not sufficiently financially responsible to perform its obligations under the
proposed sublease or assignment;
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provided, however, that the foregoing are merely examples of reasons for
which Landlord may withhold its consent and shall not be deemed exclusive of any
permitted reasons for reasonably withholding consent, whether similar or
dissimilar to the foregoing examples.
10.3 EXCESS RENT.
If Tenant, having first obtained Landlord's consent to any sublease or
assignment, or if Tenant or a trustee in bankruptcy for Tenant pursuant to the
United States Bankruptcy Code, shall assign this Lease or sublet the Premises,
or any part thereof, at a rental or for other consideration in excess of the
Rent or prorata portion thereof due and payable by Tenant under this Lease, then
Tenant shall pay to Landlord as additional rent fifty percent (50%) of any
such excess rent or other monetary consideration immediately upon receipt under
any such assignment or, in the case of a sublease, (x) on the first day of each
month during the term of any sublease fifty percent (50%) of the excess of all
rent and other, consideration due from the subtenant for such month over the
Rent then payable to Landlord pursuant to the provisions of this Lease for said
month (or if only a portion of the Premises is being sublet, fifty percent (50%)
of the excess of all rent and other consideration due from the subtenant for
such month over the portion of the Rent then payable to Landlord pursuant to the
provisions of this Lease for said month which is allocable on a square footage
basis to the space sublet) and (y) immediately upon receipt thereof, fifty
percent (50%) of any other consideration realized by Tenant from such
subletting; it being agreed, however, that Landlord shall not be responsible for
any deficiency if Tenant shall assign this Lease or sublet the Premises or any
part thereof at a rental less than that provided for herein.
10.4 ASSUMPTION AND ATTORNMENT.
If Tenant, having obtained Landlord's consent, shall assign this Lease as
permitted herein, the assignee shall expressly assume all of the obligations of
Tenant hereunder in a written instrument satisfactory to Landlord and furnished
to Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant, having obtained Landlord's consent as aforesaid, shall
sublease the Premises as permitted herein, Tenant shall obtain and furnish to
Landlord, not later than fifteen (15) days prior to the effective date of such
sublease and in form satisfactory to Landlord, the written agreement of such
subtenant to the effect that the subtenant will artorn to the Landlord, at
Landlord's option and written request, in the event this Lease terminates before
the expiration of the sublease.
XI. LIENS AND ENCUMBRANCES
11.0 ENCUMBERING TITLE.
Tenant shall not do any act or suffer or permit any action to be taken
which shall in any way encumber the title of Landlord in and to the Premises,
the Building or Real Estate, nor shall the interest or estate of Landlord in the
Premises, the Building or Real Estate be in any way subject to any claim by way
of lien or encumbrance, whether by operation of law or by virtue of any express
or implied contract by Tenant. Any claim to, or lien upon, the Premises, the
Building or Real Estate arising from any act or omission of Tenant shall accrue
only against the leasehold estate of Tenant and shall be subject and subordinate
to the paramount title and rights of Landlord in and to the Premises, the
Building and Real Estate.
11.1 LIENS.
Tenant shall not permit the Premises, the Building or Real Estate to become
subject to any mechanics', laborers', or materialmen's lien on account of labor
or material furnished to Tenant or claimed to have been furnished to Tenant in
connection with work of any character performed or claimed to have been
performed on the Leased Premises by, or at the direction or sufferance of,
Tenant. In case of any such lien attaching, Tenant shall immediately pay and
remove same or furnish security to or indemnify Landlord in a manner
satisfactory to Landlord in its discretion to protect Landlord against
foreclosure, defense or any expense arising from any such lien. Except during
any period in which Tenant appeals any judgment or obtains a rehearing and
foreclosure of any such lien or judgment is stayed, Tenant shall immediately pay
any judgment rendered against Tenant, with all proper costs and charges, and
shall have the lien released and any judgment satisfied. If Tenant fails to pay
and remove any
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lien, Landlord, at its election, may pay and satisfy same, and all sums so paid
by Landlord, with interest from the date of payment at the rate set forth in
Section 2.4 hereof shall be deemed Additional Rent due and payable at once
without notice or demand.
XII. UTILITIES
12.0 UTILITIES.
(a) Tenant shall purchase all utility services, Including but not limited
to fuel, gas and electricity, but excluding water and sewerage, from the
utility or municipality providing such service, and shall pay for such services
when such payments are due. Costs of water and sewer shall be includible as
Expenses (as defined in Section 15.0).
(b) Tenant shall not waste or permit the wasting of water or use water for
purposes other than drinking, lavatory and toilet purposes through fixtures
installed by the Landlord, or by the Tenant with Landlord's consent. Tenant
shall pay Landlord for domestic water and hot water furnished or used for any
other purpose, as additional rent, at rates fixed by Landlord, and, in
connection therewith, Landlord may require Tenant at Tenant's cost to install a
submeter to measure Tenant's water usage. Tenant shall not introduce into the
sewer system any harmful or dangerous substances and will not overload the sewer
system by abnormal usage.
(c) Tenant agrees that Landlord, Agent, Landlord's beneficiaries and their
agents shall not be liable in damages, by abatement of Rent or otherwise, for
failure to furnish or for a delay in furnishing any service or utility, whether
the responsibility of Landlord or others, when such failure or delay is
occasioned, in whole or in part, by repairs, renewals or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building or Real Estate after reasonable effort so
to do, by any accident or casualty whatsoever, by the act or default of Tenant
or other parties, or by any cause beyond the reasonable control of Landlord; and
such failures or delays shall never be deemed to constitute an eviction or
disturbance of the Tenant's use and possession of the Premises or relieve the
Tenant from paying Rent or performing any of its obligations under this Lease.
(d) Tenant agrees to cooperate fully, at all times, with Landlord in
abiding by all reasonable regulations and requirements which Landlord may
prescribe for the proper functioning and protection of all utilities and
services reasonably necessary for the operation of the Premises and the
Building. Landlord, throughout the Term of this Lease, shall have free access to
any and all mechanical installations, and Tenant agrees that there shall be no
construction or partitions or other obstructions which might interfere with the
moving of the servicing equipment of Landlord to or from the enclosures
containing said installations. Tenant further agrees that neither Tenant nor its
employees, agents, licensees, invitees or contractors shall at any time tamper
with, adjust or otherwise in any manner affect Landlord's mechanical
installations.
XIII. INDEMNITY AND WAIVER
13.0 INDEMNITY.
Tenant will protect, indemnify and save Landlord (if Landlord is an
Illinois land trust, the term "Landlord", for the purpose of this Article XIII
only, shall include the Trustee, its agents, its beneficiary or beneficiaries
and their agents) harmless from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Landlord by reason of (a) any accident, injury
to or, death of persons or loss of or damage to property occurring on or about
the Premises resulting from any act or omission of Tenant or anyone claiming by,
through or under Tenant; (b) any failure on the part of Tenant to perform or
comply with any of the terms of this Lease; or (c) performance of any labor, or
services or the furnishing of any materials or other property in respect of the
Premises or any part thereof by Tenant, its contractors, subcontractors, agents,
employees, guests, invitees and the like and their successors and assigns. In
case any action, suit or proceeding is brought against Landlord by reason of any
such occurrence, Tenant will, at Tenant's expense, by counsel approved by
landlord, resist and defend such action, suit or proceeding, or cause the same
to be resisted and defended.
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Except with respect to matters which result from the negligence of Tenant, its
agents and employees, Landlord agrees to hold Tenant, its agents, servants and
employees harmless and to indemnify each of them from and against claims and
liabilities, including reasonable attorney's fees, for injuries to persons and
damage to or theft or misappropriation or loss of property on the Premises
arising from the negligent conduct of Landlord in the Premises or the breach of
any covenant to be performed by Landlord under this lease in excess of amounts
paid to Tenant or on behalf of Tenant under insurance covering such claims and
liabilities.
13.1 WAIVER OF CERTAIN CLAIMS.
All property belonging to Tenant or any occupant of the Premises that is in
or on any part of the Building or Real Estate shall be there at the risk of
Tenant or of such other person only, and Landlord shall not be liable for any
damage thereto or for the theft or misappropriation thereof. Tenant waives all
claims it may have against Landlord for business, interruption or damage or
injury to property sustained by Tenant or any persons claiming through Tenant or
by any occupant of the Premises, or by any other person, resulting from any part
of the Building or Real Estate becoming out of repair, or resulting from any
accident on or about the Building or Real Estate, or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the
Building or Real Estate or of any other person, including Landlord to the extent
permitted by law. Tenant's waiver shall include, without limitation, damage
caused by water, snow, frost, steam, excessive heat or cold, sewage, gas, odors,
or noise, or caused by bursting or leaking of pipes or plumbing fixtures, and
shall apply equally whether any such damage results from the act or neglect of
Tenant or of other tenants, or occupants of any part of the Building or Real
Estate or of any other person, including Landlord to the extent permitted by
law, and whether such damage be caused by or result from any thing or
circumstance above mentioned or referred to, or to any other thing or
circumstance whether of a like nature or of a wholly different nature.
Notwithstanding any of the foregoing, Tenant does not waive any claims it may
have against Landlord for business interruption or damage or injury to property
if caused by Landlord's gross negligence or willful misconduct.
XIV. RIGHTS RESERVED TO LANDLORD
14.0 RIGHTS RESERVED TO LANDLORD.
Without limiting any other rights reserved or available to Landlord under
this Lease, at law or in equity, Landlord, on behalf of itself and Agent
reserves the following rights to be exercised at Landlord's election, without
liability to Tenant for damage or injury to person, property or business and
without effecting an eviction or disturbance of Tenant's use or possession or
giving rise to any claim for setoff or abatement of rent or affecting any of
Tenant's obligations under this Lease:
(a) To change the street address and name of the Building upon thirty
(30) days' notice;
(b) Upon reasonable notice (no notice to Tenant is required in event of
emergency) to inspect the Premises and to make repairs, additions or alterations
to the Premises, the Building, the Real Estate or the parking areas, or any
parts co thereof, including, without limitation, to make repairs, additions or
alterations within the Premises to mechanical, electrical, and other facilities
serving the Premises or other premises in the Building or other parts of the
Real Estate, to relocate or change corridors or entrances in and to the Real
Estate and Building, to temporarily close entrances, stairways and corridors and
interrupt or temporarily suspend services or facilities;
(c) To show the Premises to prospective purchasers, mortgagees, or
other persons having a legitimate interest in viewing the same, and, at any time
within six (6) months prior to the expiration of the Lease term, to brokers or
persons wishing to rent the Premises; and to place or maintain "For Rent" or
"For Sale" signs on the Real Estate and the exterior of the Building.
(d) During the last ninety (90) days of the Lease term, if during or
prior to that time Tenant vacates the Premises, to decorate, remodel, repair,
alter or otherwise prepare the Premises for new occupancy; and
(e) To designate and approve, prior to installation, all window shades,
blinds, drapes, awnings, window ventilators and similar equipment, and all
internal lighting visible from outside the Building;
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(f) To retain at all times, and to use in appropriate instances,
passkeys to the Premises;
(g) To establish and require Tenant to comply with reasonable security
controls for the Building and to otherwise take such action or preventive
measures for the safety or security of the Building and its occupants; and
(h) To promulgate and establish such rules and regulations governing
the use and operation of the Building, the Real Estate and the Premises as are
reasonably necessary for the orderly operation thereof, and Tenant agrees, for
itself, its employees, agents, clients, customers and invitees to comply with
such rules and regulations.
Landlord may enter upon the Premises for any and all of said purposes and may
exercise any and all of the foregoing rights hereby reserved, during normal
business hours unless an emergency exists, without being deemed guilty of any
eviction or disturbance of Tenant's use or possession of the Premises, and
without being liable in any manner to Tenant.
XV. EXPENSES
15.0 EXPENSES.
"Expenses" shall mean all costs and expenses paid or incurred by or on
behalf of Landlord for owning, operating, maintaining, managing and repairing
the Building and the Real Estate and the personal property used in conjunction
therewith (collectively, the "Project"), including, without limitation, the
costs of heating and lighting, security and security systems, snow and ice and
trash removal, painting, cleaning, landscaping and grounds maintenance,
janitorial and custodial services, window and glass cleaning, repair,
replacement and maintenance, repair and maintenance of roof, roof-mounted
mechanical equipment, air handler, furnace, air handler and furnace equipment,
pipes and conduits, exterior walls and doors, foundation, loading dock, parking
lot and truck clock, fuel, water, sewer, steam, electricity, gas, insurance,
including but not limited to fire, extended coverage, liability, workmen's
compensation, plate glass, business interruption (rent loss) or other insurance
applicable to the Project, management fees, supplies, sales and use taxes, costs
of wages, salaries and fringe benefits of persons engaged in the operation,
maintenance and repair of the Project, ground rent for the Northern Illinois Gas
Company right of way north of Lot 8 of the Ogden Industrial Park Associates',
Subdivision, and any other expense or charge which, in accordance with generally
accepted accounting or management principles, would be considered as an expense
of operating, maintaining and repairing the Project, except to the extent that
the foregoing are Direct Pay Items and except as hereinafter provided.
Expenses shall not include costs or other items included within the meaning of
the term "Taxes" as defined in this Lease, costs of capital improvements to the
Building or Real Estate (except as hereinafter provided), depreciation charges,
interest and principal payments on mortgages, and brokerage and leasing
commissions or costs or other items included within the meaning of "Direct Pay
Items", as defined in this Lease. Landlord has the right to allocate certain
expenses of the Complex to the Building (to the extent that the Building
benefits from such expense) and Other Buildings and include such in Expenses
pursuant to this Section 15.0. Expenses shall include the cost of any capital
improvement made after the date of the commencement of the Term which reduces
some of the costs included within Expenses or which are required under any
governmental laws, regulations or ordinances which were not applicable to the
Building at any time prior to the commencement of the Term, amortized over the
life of such capital improvement (as determined in accordance with generally
accepted accounting principles), together with interest on the unamortized cost
of such improvement at the prevailing construction loan rate available to
Landlord on the date the cost of such capital improvement was incurred.
15.1 DIRECT PAY ITEMS.
"Direct Pay Items" shall mean all costs and expenses paid or incurred by
Landlord, which costs and expenses are directly allocable to the Premises a) for
owning, operating, maintaining, managing and repairing the Premises and the
personal property used in conjunction therewith, including, without limitation,
repair and maintenance of roof mounted mechanical equipment, air handler and
furnance equipment, the cost of janitorial and custodial service for the
Premises, b) for costs and repairs directly attributable to the Premises for
Tenant's use of goods or services consumed or utilized to a
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level in excess of that which is usually and customarily supplied by Landlord,
and c) for any other expense or charge which, in accordance with generally
accepted accounting or management principles, would be considered as an expense
directly allocable to the operation, maintenance and repair of the Premises.
Expenses and Direct Pay Items each shall not include costs listed under the
other category.
Landlord shall, at its option, either (i) cause a statement to be issued to
Tenant itemizing the Direct Pay Items owing (the "Direct Pay Adjustment"); or
(ii) cause Tenant to be billed directly for Direct Pay Items by the provider of
such item.
In the event of (i) above, Tenant shall pay the Direct Pay Adjustment as
Additional Rent. If Landlord so elects (ii) above and Tenant fails to pay any
and all Direct Pay Items, Landlord may, but shall not be required, to pay any
such amounts outstanding and include such amounts in Additional Rent.
15.2 PAYMENT BY TENANT
For each calendar year in which the Term falls, Tenant shall pay as
Additional Rent an amount ("Expense Adjustment") equal to the sum of Tenant's
Pro Rata Share (as defined in Section 2.1(b)(ii) hereof) of Expenses in excess
of Base Expenses for such calendar year plus Direct Pay Items.
(a) Prior to each such calendar year or from time to time during any
calendar year, Landlord may notify Tenant as to monthly installments on account
of Expense Adjustment payable by Tenant based on Landlord's reasonable estimate
of Expenses for such calendar year. If Landlord fails to notify Tenant of the
amount of any monthly installments for a calendar year, Tenant shall pay monthly
installments on account of Expense Adjustment at the rate last paid until
service of Landlord's notice. The amount of such installments may be increased
by Landlord during any calendar year, and Tenant shall also pay Landlord by a
lump sum payment within thirty (30) days after Landlord's request, an amount
sufficient to bring total payments to date on account of Expenses current, so
that total payments on account of Expenses for the calendar year will
approximate Landlord's estimate of Tenant's Expense Adjustment. Prior to or upon
termination or expiration of this Lease or termination of Tenant's possessory
rights hereunder, or if Tenant vacates or abandons the Premises, Landlord may
require Tenant to pay, or may retain from the Security Deposit, amounts
required, in Landlord's reasonable opinion, to pay the Expense Adjustment for
the remaining calendar years of the Term or in which the Term falls.
(b) Expense Adjustment for the first calendar year in which the Term
falls (if the Commencement Date is other than January 1) and the last calendar
year in which the Term falls (if the Term ends on a date other than December 31)
shall be prorated based upon the number of days in the Term falling within the
calendar year in question.
(c) Following the end of each calendar year and after Landlord shall
have ascertained the actual amount of Expenses, Landlord shall notify Tenant as
to the amount of Expenses and Tenant's Expense Adjustment. If the Expense
Adjustment exceeds total payments made by Tenant on account of Expense
Adjustment for such calendar year, then Tenant shall pay Landlord for any such
deficiency within thirty (30) days after Landlord's notice. If the Expense
Adjustment is less than total payments made by Tenant on account of Expense
Adjustment for such calendar year, then Landlord shall credit any such excess to
unpaid Rent or Rent due thereafter or shall refund such overpayment to Tenant.
(d) Without limitation on other obligations of Tenant which survive the
termination or expiration of the Term, Tenant's obligation to pay Expense
Adjustment shall survive the expiration or termination of this Lease. Tenant
shall pay Landlord any amounts owed on account of Expense Adjustment within
thirty (30) days after notice from Landlord as to amounts owed.
XVI. SUBORDINATION OR SUPERIORITY
16.0 SUBORDINATION OR SUPERIORITY.
If the mortgagee or trustee in any first mortgage or first trust deed
hereafter made shall elect to make this Lease subject and subordinate to its
first mortgage or first trust deed, then all or a portion of the rights and
interests of Tenant under this Lease shall be subject and subordinate to such
first mortgage or first trust deed and to
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any and all advances to be made thereunder, and to the interest thereon, and all
renewals, replacements and extensions thereof. Any mortgagee or trustee in any
first mortgage or trust deed may elect that, instead of making this Lease or
permitting this Lease to be subject and subordinate to its first mortgage or
first trust deed, the rights and interest of Tenant under this Lease shall have
priority over the lien of its mortgage or trust deed. Tenant agrees that it
will, within ten (10) days after demand in writing, execute and deliver whatever
instruments may be required, either to make to Lease subject and subordinate to
such mortgage or trust deed, or to give the Lease priority over the lien of the
mortgage or trust deed, whichever alternative may be elected by the mortgagee or
trustee. If Tenant fails to execute and deliver any such instrument, Tenant does
hereby make, constitute and irrevocably appoint Landlord as its attorney in
fact, in its name, place and stead so to do.
XVII.SURRENDER Landlord's Work is not
Alterations.
17.0 SURRENDER.
Upon the termination of this Lease, whether by forfeiture, lapse of time or
otherwise, or upon termination of Tenant's right to possession of the Premises,
Tenant will at once surrender and deliver up the Premises, together with all
improvements thereon, to Landlord, in good condition and repair, reasonable wear
and tear excepted. Said improvements shall include all plumbing, lighting,
electrical, heating, cooling and ventilating fixtures and equipment, and all
Alterations. All Alterations, temporary or permanent, made in or upon the Leased
Premises by Tenant shall become Landlord's property and shall remain upon the
Leased Premises on any such termination without compensation, allowance or
credit to Tenant; provided, however, that Landlord shall have the right to
require Tenant to remove any Alterations and all furniture, machinery, trade
fixtures and other items of movable personal property of every kind and
description (collectively "Trade Fixtures") and to restore the Premises to their
condition prior to the making of such Alterations or placement of Trade
Fixtures, repairing any damage occasioned by such removal and restoration. Said
right shall be exercised by Landlord's giving written notice thereof to Tenant
on or before ten (10) days after any such termination. If Landlord requires
removal of any Alterations or Trade Fixtures, and Tenant does not make such
removal in accordance with this Section 17.0 at the time of such termination, or
within ten (10) days after such request, whichever is later, Landlord may remove
the same (and repair any damage occasioned thereby), and dispose thereof or, at
its election, deliver the same to any other place of business of Tenant or
warehouse the same. Tenant shall pay the costs of such removal, repair, delivery
and warehousing to Landlord on demand.
17.1 REMOVAL OF TENANT'S PROPERTY.
Upon the termination of this Lease by lapse of time, Tenant shall remove
Tenant's personal property incident to Tenant's business in addition to the
Trade Fixtures; provided, however, that Tenant shall repair any injury or damage
to the Premises which may result from such removal, and shall restore the
Premises to the same condition as prior to the installation thereof, ordinary
wear and tear excepted. If Tenant does not remove Tenant's personal property
from the Premises prior to the expiration or earlier termination of the Lease
term, Landlord, may, at its option, remove the same (and repair any damage
occasioned thereby) and dispose thereof or deliver the same to any other place
of business of Tenant or warehouse the same, and Tenant shall pay the cost of
such removal, repair, delivery and warehousing to Landlord on demand, or
Landlord may treat such personal property as having been conveyed to Landlord
with this Lease as a bill of sale, without further payment or credit by Landlord
to Tenant.
17.2 HOLDING OVER.
Tenant shall have no right to occupy the Premises or any portion thereof
after the expiration of the Lease or after termination of the Lease or of
Tenant's right to possession pursuant to Section 18.0 hereof. In the event
Tenant or any party claiming by, through or under Tenant holds over, Landlord
may exercise any and all remedies available to it at law or in equity to recover
possession of the Leased Premises, and for damages. For each and every month or
partial month that Tenant or any party claiming by, through or under Tenant
remains in occupancy of all or any portion of the Leased Premises after
expiration of the Lease or after termination of the Lease or Tenant's right to
possession, Tenant shall pay, as minimum damages and not as a penalty, monthly
rental at a rate equal to double the rate of Rent and other charges
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payable by Tenant hereunder immediately prior to the expiration or other
termination of the Lease or of Tenant's right to possession. The acceptance by
Landlord of any lesser sum shall be construed as a payment on account and not in
satisfaction of damages for such holding over.
XVIII. REMEDIES
18.0 DEFAULTS
Tenant agrees that any one or more of the following events shall be
considered events of default as said term is used herein:
(a) Tenant shall fail to pay any Rent or other charges within five (5)
days after the due date; or
(b) Tenant shall fail to keep, observe or perform any of the other
covenants or agreements herein contained to be kept, observed and performed by
Tenant, and such failure shall continue for thirty (30) days after notice
thereof in writing to Tenant; or
(c) Tenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against Tenant
asking reorganization of Tenant under the Federal bankruptcy laws as now or
hereafter amended, or under the laws of any state, shall be entered, and any
such decree or judgment or order shall not have been vacated or set aside within
sixty (60) days from the date of entry or granting thereof; or
(d) Tenant shall file or admit the jurisdiction of the court and
material allegations contained in any petition in bankruptcy or any petition
pursuant to or purporting to be pursuant to the federal bankruptcy laws as now
or hereafter amended, or Tenant shall institute any proceeding or shall give its
consent to the institution of any proceedings for any relief of Tenant under any
bankruptcy or insolvency laws or any laws relating to the relief or debtors,
readjustment of indebtedness, reorganization, arrangements, composition or
extension; or
(e) Tenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Tenant or any of
the property of Tenant; or
(f) The Premises or Tenant's leasehold interest therein are levied upon
under execution or attached by legal process, or a lien is filed in respect of
the Premises or leasehold interest which is not released or discharged within
ten (10) days after the date of filing, except as provided in Section 11 hereof;
or
(g) A decree or order appointing a receiver of the property of Tenant
shall be made and such decree or order shall not have been vacated or set aside
within sixty (60) days from the date of entry or granting thereof; or
(h) Tenant shall vacate or abandon the Premises during the Term or fail
to take possession of the Premises within thirty (30) days after the Premises
are available for occupancy (the transfer of a substantial part of the
operations, business and personnel of the Tenant previously located at the
Premises to another location without replacement of same with other operations
permitted by the terms of this Lease, being deemed, without limiting the meaning
of the term "vacates or abandons," to be a vacation or abandonment within the
meaning of this subsection (h)), whether or not Tenant thereafter continues to
pay Rent under this Lease; or
(i) Tenant shall repeatedly be late in the payment of rent or other
charges required to be paid hereunder or shall repeatedly fail to keep, observe,
or perform any other covenents or agreements herein contained to be kept,
observed or performed by Tenant (provided notice of such payment or other
defaults shall have been
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given to Tenant, but whether or not Tenant shall have timely cured any such
payment or other defaults of which notice was given); or
(j) Tenant fails to comply with the provisions of Article X concerning
assignment, subletting and other transfer; or
(k) The existence of any event of default defined or provided for else-
where in this Lease.
18.1 REMEDIES.
Upon the occurrence of any one or more of such events of default, Landlord
may at its election terminate this Lease or terminate Tenant's right to
possession only, without terminating the Lease. Upon termination of the Lease,
or upon any termination of Tenant's right to possession without termination of
the Lease, Tenant shall surrender possession thereof to Landlord, and hereby
grants to Landlord the full and free right, without demand or notice of any kind
to Tenant (except as hereinabove expressly provided for), to enter into and upon
the Premises in such event with or without process of law and to repossess the
Premises as Landlord's former estate and to expel or remove Tenant and any
others who may be occupying or within the Premises without being deemed in any
manner guilty of trespass, eviction, or forcible entry or detainer, without
incurring any liability for any damage resulting therefrom and without
relinquishing Landlord's rights to Rent or any other right given to Landlord
hereunder or by operation of law.
(a) Upon termination of the Lease, Landlord shall be entitled to
recover as damages all Rent and other sums due and payable by Tenant on the date
of termination, plus (1) an amount equal to the difference of (y) the value of
the rent and other sums provided herein to be paid by Tenant for the residue of
the stated term hereof, less (z) the fair rental value of the Premises for the
residue of the stated term (taking into account the time and expenses necessary
to obtain a replacement tenant or tenants, including expenses hereinafter
described relating to recovery of the Premises, preparation for reletting and
for reletting itself), provided however that in no event shall the aforesaid
difference be less than zero, and (2) the cost of performing any other covenants
to be performed by Tenant.
(b) If Landlord elects to terminate Tenant's right to possession only
without terminating the Lease, Landlord may, at Landlord's option, enter into
the Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as hereinabove provided, without such entry and
possession terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligations to pay the Rent hereunder for the full term or from any
other of its obligations under this Lease. Landlord may, but shall be under no
obligation so to do, relet all or any part of the Premises for such rent and
upon such terms as shall be satisfactory to Landlord (including the right to
relet the Premises for a term greater or lesser than that remaining under the
Lease term, and the right to relet the Premises as a part of a larger area, and
the right to change the character or use made of the Premises). For the purpose
of such reletting, Landlord may decorate or make any repairs, changes,
alterations or additions in or to the Leased Premises that may be necessary or
convenient. If Landlord does not relet the Premises, Tenant shall pay to
Landlord on demand damages equal to the amount of the Rent, and other sums
provided herein to be paid by Tenant for the remainder of the Term. If the
Premises are relet and a sufficient sum shall not be realized from such
reletting after paying all of the expenses of such reletting and the collection
of the rent accruing therefrom (including, but not by way of limitation,
attorneys' fees and brokers' commissions), to satisfy the Rent and other charges
herein provided to be paid for the remainder of the Term, Tenant shall pay to
Landlord on demand any deficiency and Tenant agrees that Landlord may file suit
to recover any sums falling due under the terms of this Section from time to
time. If the Premises are relet and the sum realized from such reletting after
paying all of the expenses set forth in the prior sublease, including attorney's
fees and brokerage commissions is equal to or greater than the Rent and other
charges herein provided to be paid for the remainder of the Term, Tenant shall
not be obligated to pay to Landlord any further Rent in excess of the loss
incurred by Landlord.
18.2 REMEDIES CUMULATIVE.
No remedy herein or otherwise conferred upon or reserved to Landlord shall
be considered to exclude or suspend any other remedy but the same shall be
cumulative and shall be in addition to every other remedy given hereunder, or
now or hereafter existing at law or in equity or by statute, and every power and
remedy given by this Lease to Landlord may be exercised from time to time and so
often as occasion may arise or as may be deemed expedient.
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18.3 NO WAIVER.
No delay or omission of Landlord to exercise any right or power arising
from any default shall impair any such right or power or be construed to be a
waiver of any such default or any acquiescence therein. No waiver of any breach
of any of the covenants of this Lease shall be construed, taken or held to be a
waiver of any other breach, or as a waiver, acquiescence in or consent to any
further or succeeding breach of the same covenant. The acceptance by Landlord of
any payment of rent or other charges hereunder after the termination by Landlord
of this Lease or of Tenant's right to possession hereunder shall not, in the
absence of agreement in writing to the contrary by Landlord, be deemed to
restore this Lease or Tenant's right to possession hereunder, as the case may
be, but shall be construed as a payment on account, and not in satisfaction of
damages due from Tenant to Landlord.
18.4 DEFAULT UNDER OTHER LEASES.
A default in this Lease, or in any other lease made by Tenant for any
premises in the Building shall, at the option of the Landlord, be deemed a
default under this Lease, the other lease or both leases.
XIX. SECURITY DEPOSIT
19.0 SECURITY DEPOSIT.
To secure the faithful performance by Tenant of all the covenants,
conditions and agreements in this Lease set forth and contained on the part of
the Tenant to be fulfilled, kept, observed and performed, including, but without
limiting the generality of the foregoing, such covenants, conditions and
agreements in this Lease which become applicable upon the expiration or
termination of the same or upon termination of Tenant's right to possession
pursuant to Section 18.1 of the Lease, Tenant has deposited the Security Deposit
with Agent on the understanding: (a) that the Security Deposit or any portion
thereof not previously applied, or from time to time such other portions
thereof, may be applied to the curing of any default that may then exist,
without prejudice to any other remedy or remedies which the Landlord may have on
account thereof, and upon such application Tenant shall pay Agent on demand the
amount so applied which shall be added to the Security Deposit so the same may
be restored to its original amount; (b) that should the Premises be conveyed by
Landlord or should Agent cease to be the agent of the beneficiary or
beneficiaries of Landlord, the Security Deposit or any portion thereof not
previously applied may be turned over to Landlord's grantee or the new agent, as
the case may be, and if the same be turned over as aforesaid, the Tenant hereby
releases Landlord and Agent from any and all liability with respect to the
Security Deposit and its application or return, and the Tenant agrees to look to
such grantee or agent, as the case may be, for such application or return; (c)
that Agent shall have no personal liability with respect to said sum and Tenant
shall look exclusively to Landlord or its successors pursuant to subsection (b)
hereof for return of said sum on the expiration of this Lease; (d) that neither
Landlord nor Agent nor their successors shall be obligated to hold said Security
Deposit as a separate fund, but on the contrary may commingle the same with
other funds; (e) that if Tenant shall faithfully fulfill, keep, perform and
observe all of the covenants, conditions, and agreements in this Lease set forth
and contained on the part of the Tenant to be fulfilled, kept, performed and
observed, the sum deposited or the part or portion thereof not previously
applied shall be returned to the Tenant without interest no later than thirty
(30) days after the expiration of the term of this Lease or any renewal or
extension thereof, provided Tenant has vacated the Premises and, surrendered
possession thereof to the Landlord at the expiration of said term or any
extension or renewal thereof as provided herein; (f) in the event that Landlord
terminates the Lease or Tenant's right to possession pursuant to Section 18.1 of
this Lease, either Landlord or Agent may apply the Security Deposit against all
damages suffered to the date of such termination and may retain the Security
Deposit to apply against such damages as may be suffered or shall accrue
thereafter by reason of Tenant's default; and (g) in the event any bankruptcy,
insolvency, reorganization or other credit-debtor proceedings shall be
instituted by or against Tenant, or its successors or assigns, the Security
Deposit shall be deemed to be applied first to the payment of any rents and
other charges due Landlord for all periods prior to the institution of such
proceedings, and the balance, if any, of the Security Deposit may be retained or
paid to Landlord in partial liquidation of Landlord's damages. Notwithstanding
any other provision herein contained to the contrary, it is specifically agreed
between Landlord and Tenant that Landlord will pay to Tenant interest on its
Security Deposit at the rate of 7% per annum, with such interest being paid
within thirty days of the end of each year of the term of this Lease, with the
last such payment being made no later than thirty days after the expiration of
the term of this Lease.
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XX. MISCELLANEOUS
20.0 TENANT'S STATEMENT.
Tenant shall furnish to Landlord, within thirty (30) days after written
request therefor from Landlord, a copy of Tenant's then most recent audited and
certified financial statements; provided, however, that if Tenant does not
ordinarily have audited and certified financial statements prepared, the
foregoing obligation shall be satisfied by the delivery of its most recent
financial statements, certified as true and correct by a duly authorized
officer, general partner or owner of Tenant. Tenant agrees that Landlord may
deliver a copy of such statements to any mortgagee or prospective mortgagee of
Landlord, or any prospective purchaser of the Building or Real Estate.
20.1 ESTOPPEL CERTIFICATES.
Tenant shall, at any time and from time to time upon not less than ten (10)
days' prior written request from Landlord, execute, acknowledge and deliver to
Landlord, in form reasonably satisfactory to Landlord or Landlord's mortgagee, a
written statement certifying (if true) that Tenant has accepted the Premises,
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), that Landlord is not in default hereunder, the date
to which the rental and other charges have been paid in advance, if any, and
such other accurate certifications as may reasonably be required by Landlord or
Landlord's mortgagee. It is intended that any such statement delivered pursuant
to this subsection may be relied upon by any prospective purchaser or mortgagee
of the Premises, Building or Real Estate and their respective successors and
assigns.
20.2 LANDLORD'S RIGHT TO CURE.
Landlord may, but shall not be obligated to, cure any default by Tenant
(specifically including, but not by way of limitation, Tenant's failure to
obtain insurance, make repairs, or satisfy lien claims); and whenever Landlord
so elects, all costs and expenses paid by Landlord in curing such default,
including without limitation reasonable attorneys' fees, shall be so much
additional rent due on the next rent date after such payment together with
interest (except in the case of said attorneys, fees) at the same rate as for
late payments set forth in Section 2.4, from the date of the advance to the date
of repayment by Tenant to Landlord.
20.3 AMENDMENTS MUST BE IN WRITING.
None of the covenants, terms or conditions of this Lease, to be kept and
performed by either party, shall in any manner be altered, waived, modified,
changed or abandoned except by a written instrument, duly signed and delivered
by the other party.
20.4 NOTICES.
All notices to or demands upon Landlord or Tenant desired or required to be
given under any of the provisions hereof shall be in writing. Any notices or
demands from Landlord to Tenant shall be deemed to have been given if a copy
thereof has been personally delivered or mailed by United States registered or
certified mail in an envelope properly stamped and addressed to Tenant at the
Premises or at such other address as tenant may theretofore have designated by
written notice to Landlord. Any notices or demands from Tenant to Landlord shall
be deemed to have been given if personally delivered or mailed by United States
registered or certified mail in an envelope properly stamped and addressed to
Landlord at the address provided hereinbelow, or at such other address or to
such other agent as Landlord or Agent may theretofore have designated by written
notice to Tenant. The effective date of any such mailed notice shall be two (2)
days after deposit of the same in a United States Postal Service receptacle:
PRITCHETT REALTY CORPORATION
903 COMMERCE DRIVE - SUITE 350
OAK BROOK, ILLINOIS 60521
Attention: Michael F. Prichett, President
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20.5 TIME OF ESSENCE.
Time is of the essence of this Lease, and all provisions herein relating
thereto shall be strictly construed.
20.6 RELATIONSHIP OF PARTIES.
Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of principal and
agent or of partnership, or of joint venture, by the parties hereto, it being
understood and agreed that no provision in this Lease or any acts of the parties
hereto shall be deemed to create any relationship other than the relationship of
landlord and tenant.
20.7 CAPTIONS.
The captions of this Lease are for convenience only and are not to be
construed as part of this Lease and shall not be construed as defining or
limiting in any way the scope or intent of the provisions hereof.
20.8 Severability.
If any term or provision of this Lease shall to any extent be held invalid
or unenforceable, the remaining terms and provisions of this Lease shall not be
affected thereby, but each term and provision of this Lease shall be valid and
be enforced to the fullest extent permitted by law.
20.9 LAW APPLICABLE.
This Lease shall be construed and enforced in accordance with the laws of
the state where the Premises are located.
20.10 COVENANTS BINDING ON SUCCESSORS.
All of the covenants, agreements, conditions and undertakings contained in
this Lease shall extend and inure to and be binding upon the heirs, executors,
administrators, successors and assigns of the respective parties hereto, the
same as if they were in every case specifically named, and wherever in this
Lease reference is made to either of the parties hereto, it shall be held to
include and apply to, wherever applicable, the heirs, executors, administrators,
successors and assigns of such party. Nothing herein contained shall be
construed to grant or confer upon any person or persons, firm, corporation or
governmental authority, other than the parties hereto, their heirs, executors,
administrators, successors and assigns, any right, claim or privilege by virtue
of any covenant, agreement, condition or undertaking in this Lease contained.
20.11 BROKERAGE.
Tenant warrants that it has had no dealings with any broker or agent in
connection with this Lease other than Suburban Real Estate Services and CB
Commercial (whose commission, if any, Landlord covenants and agrees to pay in
accordance with a separate agreement, if any, between Landlord and Landlord's
broker). Tenant covenants to pay, hold harmless and indemnify Landlord from and
against any and all costs, expenses or liability for any compensation,
commissions and charges claimed by any broker, agent or finder other than the
brokers named in this Section 20.11 with respect to this Lease or the
negotiation thereof.
20.12 LANDLORD MEANS OWNER.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the fee of the
Building, and in the event of any transfer or transfers of the title to such
fee, Landlord herein named (and in case of any subsequent transfer or
conveyances, the then grantor) shall be automatically freed and relieved, from
and after the date of such transfer or conveyance, of all liability as respects
the performance of any covenants or obligations on the part of Landlord
contained in the Lease thereafter to be performed.
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20.13 LENDER'S REQIREMENTS.
If any mortgagee or prospective lender of Landlord should require, as a
condition precedent to the closing of any loan or the disbursal of any money
under any loan, that this Lease be amended or supplemented in any manner (other
than the size or location of the Premises, the Term, the purpose set forth in
Section 3.0 or the Rent or in any other regard as will substantially or
materially affect the rights of Tenant under this Lease), Landlord shall give
written notice thereof to Tenant, which notice shall be accompanied by an
agreement ("Lease Supplement") embodying such amendments and supplements. Tenant
shall, within thirty (30) days after the effective date of Landord's notice,
execute the tendered Lease Supplement. If Tenant reasonably believes that the
amendments or supplements fall within the categories set forth in the clause in
parenthesis in the first sentence, then Tenant shall deliver to Landlord a
written statement of its reason or reasons for refusing to execute the Lease
Supplement. Failure of Tenant to respond or execute the Lease Supplement
within said thirty (30) day period shall be an event of default under under this
Lease without further notice and opportunity to cure such default.
20.14 INDUSTRIAL REVENUE BONDS.
Tenant acknowledges that Landlord may use Industrial Revenue Bond financing
in connection with the Building and Tenant covenants and agrees to furnish such
documentation with regard to Tenant's operations as may reasonably be requested
by bond counsel relating thereto.
20.15 SIGNS.
Tenant shall not install any signs on the exterior of the Premises or
Building without Landlord's prior written approval of detailed plans and
specifications therefor. If Landlord has a standard form of identity sign or
directory for tenants in the Building, and if Tenant desires to have an identity
sign on the exterior of the Premises or directory of the Building, Tenant shall
advise Landlord of the name it desires to have on its sign or on the directory.
Landlord shall install any such sign showing such name, which shall be the
standard sign used by Landlord for tenants in the Building. Tenant shall
reimburse Landlord for Landord's costs of fabricating and erecting any such
sign or for including Tenants' name on any sign or directory of tenants of the
Building within thirty (30) days after being billed therefor by Landlord.
20.16 USE OF LOADING DOCK AND COMMON AREA.
Tenant shall use and cause all employees, agents, invitees and licensees to
use the common areas of the Building and Real Estate, including, but without
being limited to, the sidewalks, driveways and parking lot on the Real Estate
and the loading dock and common hallway area in the Building, in such a manner
as to prevent disruption of other tenants and Landlord. The exterior door(s)
serving the common loading dock and Tenant's exterior overhead doors will be
kept open only so long as is necessary to accomplish loading and unloading of
any particular shipment or item. No vehicles or material shall be permitted to
block sidewalks or driveways nor shall any vehicle be parked in the parking lot
for longer than is necessary for the customary business purposes of Tenant. All
vehicles using the loading dock shall unload in an expedient manner and Tenant
shall not store materials in the dock or common hallway nor delay, in the course
of delivery, the removal of material from the dock and common hallway. If, after
notice to Tenant by Landlord, of a violation of this Section, Tenant fails to
promptly cure such violation, or if, after repeated notices to Tenant of
violations of this Section, whether or not promptly cured, Landlord may remove
such vehicles or material as are in violation of this Section and Tenant shall
pay Landlord's expenses in connection therewith, on demand. Landlord shall have
no responsibility for loss or damage to such vehicles or material, it being
understood that the removal is at Tenant's sole risk.
20.17 LANDLORD'S EXPENSES.
Tenant agrees to pay on demand Landlord's expenses, including reasonable
attorneys' fees, expenses and administrative hearing and court costs incurred
either directly or indirectly in enforcing any obligation of Tenant under this
Lease, in curing any default by Tenant as provided in Section 20.2, in
connection with appearing, defending or otherwise participating in any action or
proceeding arising from the filing, imposition, contesting, discharging or
satisfaction of any lien or claim for lien, in defending or
23
<PAGE>
otherwise participating in any legal proceedings initiated by or on behalf of
Tenant wherein Landlord is not adjudicated to be in default under this Lease, or
in connection with any investigation or review of any conditions or documents in
the event Tenant requests Landlord's approval or consent to any action of Tenant
which may be desired by Tenant or required of Tenant hereunder. Landlord shall
pay Tenant's reasonable costs, including reasonable attorney's fees and court
costs, incurred in connection with litigation concerning the Lease or the
Premises if Tenant is the prevailing party.
20.18 EXECUTION OF LEASE BY LANDLORD.
The submission of this document for examination and negotiation does not
constitue an offer to lease, or a reservation of, or option for, the Premises
and this document shall become effective and binding only upon the execution and
delivery hereof by Landlord and by Tenant; provided, however, the execution and
delivery by Tenant of this Lease to Landlord or Agent shall constitute an
irrevocable offer by Tenant to lease the Premises on the terms and contitions
herein contained, which offer may not be revoked for thirty (30) days after such
delivery. All negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein.
20.19 LANDLORD PERFORMANCE.
If Landlord or Tenant (the "First Party") fails to perform timely any of
the terms, covenants and conditions of this Lease to be performed, and such
failure is due in whole or in part to any strike, lockout, labor trouble, civil,
disorder, inability to procure materials or labor, failure of power, restrictive
governmental orders, laws or regulations, riots, insurrections, war, fuel or
energy shortages, accidents, casualties, acts of God, acts caused directly or
indirectly by the other party (or its agents, employoees, contractors, licensees
or invitees) or any other cause beyond the reasonable control of the First
Party, then the First Party shall not be deemed in default under this Lease as a
result of such failure. This Ection 20.19 shall not apply to Tenant's monetary
obligations under this Lease or Tenant's obligation to obtain and maintain
insurance under this Lease.
20.20 MORTGAGEE PROTECTION.
Tenant agrees to give any holder of any mortgage or trustee deed, by
registered or certified mail, a copy of any notice or claim of default served
upon the Landlord by Tenant, provided that prior to such notice Tenant has been
notified in writing of the address of any such holder. Tenant further agrees
that if Landlord shall have failed to cure such default within twently (20) days
after such notice to Landlord (or, if such default cannot be cured within such
time, then such additional time as may be necessary if Landlord has commenced
within such twenty (20) days and is diligently pursuing the steps necessary to
cure such default) then the notified holder shall have the right but not the
obligation to cure or correct such default within such time as may be necessary
to cure or correct such default, including any tiem necessary to obtain
possession if possession is necessary to cure or correct such default, Until the
time allowed, as aforesaid, for the notified holder top cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
20.21 COMPLIANCE WITH ENVIRONMENTAL LAWS.
Tenant, at its sole cost and expense, shall comply with all laws, statutes,
ordinances, rules and regulations (collectively "Environmental Laws") of any
governmental authority ("Agency") having jurisdiction respecting environmental
matters including but not limited to environmental regulations, pollution
control, abatement and remediation and toxic or hazardous materials, products,
substances or wastes of any kind or nature. Tenant shall not introduce or bring
onto or make, produce, handle, store, process or transfer in, on or at the Com
plex, the Building or Premises any type of toxic or hazardous material or
product or any such material or product which could become toxic or hazardous
without Landlord's prior written consent which may be withheld for any reason in
Landord's sole judgement and discretion. Landlord and its employees and
representatives shall have access to the Premises and to the books and records
of the Tenant and any occupant of the Premises claiming under the Tenant for the
purpose of ascertaining the nature of the activities being conducted thereon and
to determine the type, kind and quantity of all products, materials and
substances brought onto the Premises or made, produced, handled, stored,
processed or transferred thereon. Tenant and all occupants of the Premises
claiming under Tenant shall provide to Landlord duplicate counterparts of all
shcedules, correspondence, permits, agreements, notices and other documents of
all types and kinds when filed or proveded to an Agency or otherwise received
from any Ageny. Landlord and its agents, contractors and representatives shall
have the right to: (i) take samples in quantity sufficient for scientific
analysis of all products, materials and substances present on the Premises
including, but not limited to, samples of products, materials or
24
<PAGE>
substances brought onto or made, produced, handled, stored, processed or
transferred on the Premises by the Tenant or an occupant claiming under Tenant
or otherwise present on the Premises; and (ii) enter into and upon the Premises
in the event of any violation of any Environmental Laws for purposes of (a)
assessing the damage caused to the Premises by virtue of such violation, and (b)
repairing or replacing or causing the repair and replacement of those portions
of the Premises damaged as a result of the violation of said Environmental Laws,
all of which costs incurred for subsection (a) and (b) shall be deemed Direct
Pay Items hereunder. And, further, notwithstanding any provision of this Lease,
the Environmental Laws or judicial decisions to the contrary, with reference to
any assignment, subletting, grant of license, concession or any other permission
to use the Premises by any person other than Tenant, Landlord shall have the
right to withhold Landlord's consent thereto if, in Landlord's sole judgment and
discretion, the assignee, subtenant, licensee, concessionaire or such other
person is not capable of performing or is not sufficiently qualified to perform
in accordance with requirements of this paragraph. Any assignment, sublease,
licenses, or other permission to use the Premises from which Landlord withholds
its consent as provided in this paragraph, shall be voidable at the Landlord's
sole option. Tenant shall indemnify, defend and hold Landlord, its
beneficiaries, agents, employees and all parties claiming by, through or under
Landlord harmless from and against any and all claim, loss, costs, damage or
liability arising directly or indirectly from any violation of Environmental
Laws or this provision. Tenant's obligations hereunder shall survive the
termination of this Lease.
20.22 QUIET ENJOYMENT.
So long as Tenant is not in default under the covenants and agreements of
this Lease, Tenant's quiet and peaceful enjoyment of the Premises shall not be
disturbed or interfered with by Landlord or any person claiming by, through or
under Landlord.
20.23 EXCULPATORY CLAUSE.
This Lease is executed by American National Bank and Trust Company of
Chicago, not personally but as Trustee as aforesaid, in the exercise of power
and authority conferred upon and vested in it as such Trustee, and under the
express direction of the beneficiaries of a certain Trust Agreement dated
September 6, 1985, and known as Trust No. 65453 at said Bank. It is expressly
understood and agreed that nothing in this Lease contained shall be construed as
creating any liability whatsoever against said Trustee personally or said
beneficiaries, and in particular, without limiting the generality of the
foregoing, there shall be no personal liability to pay any indebtedness accruing
hereunder or to perform any covenant, either express or implied, herein
contained, to keep, preserve or sequester any property or said Trust, and that
all personal liability of said Trustee (and said beneficiaries, to the extent
permitted by law), of every sort, if any, is hereby expressly waived by Tenant,
and by every person now or hereafter claiming any right or security hereunder;
and that so far as the parties hereto are concerned the owner of the
indebtedness or liability accruing hereunder shall look solely to the trust
estate from time to time subject to the provisions of said Trust Agreement for
the payment thereof. If is further understood and agreed that the said Trustee
has no agents or employees and merely holds naked title to the property herein
described and has no control over the management thereof or the income therefrom
and has no knowledge respecting rentals, leases or other factual matter with
respect to said premises, except as represented to it by the beneficiary or
beneficiaries of said Trust.
25
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
AMERICAN NATIONAL BANK AND
ATTEST: TRUST COMPANY OF CHICAGO, as
Trustee, as aforesaid
By: /s/ ILLEGIBLE By: /s/ ILLEGIBLE
----------------------------- --------------------------------
Assistant Secretary Its:
----------------------------
TENANT:
ATTEST: NEOMEDIA TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
BY: By: /s/ DAN TRAMPEL 3/10/97
---------------------------- --------------------------------
Dan Trampel
Its: Sr. Vice President of Sales
----------------------------
26
<PAGE>
EXHIBIT A
[GRAPHIC REPRESENTS A LAYOUT OF ENTIRE FACILITY SHOWING PREMISES LEASED]
<PAGE>
EXHIBIT B
[GRAPHIC REPRESENTS A DETAILED LAYOUT SHOWING PREMISES LEASED]
<PAGE>
RIDER# 1 TO LEASE DATED FEBRUARY 25,1997,
BETWEEN AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST
NO. 65453, LANDLORD, AND
NEOMEDIA TECHNOLOGIES, INC., TENANT,
OF PREMISES AT 2150 WESTERN COURT,
LISLE, ILLINOIS
21.0 BASE RENT DURING TERM
Commencing on the Commencement Date the Base Rent expressed in annual and
monthly amounts shall be paid pursuant to the terms of this Lease in the amounts
and within the dates set forth as follows:
LEASE ANNUAL MONTHLY
YEAR DATES FOR LEASE YEAR BASE RENT BASE RENT
- ---- -------------------- --------- ---------
1 May 1, 1997 thru April 30, 1998 $66,550.00 $5,545.83
2 May 1, 1998 thru April 30, 1999 $68,546.50 $5,712.21
3 April 1, 1999 thru March 31, 2000 $70,602.90 $5,883.57
21.1 LANDLORD'S WORK
Landlord shall paint and carpet the Premises and perform the work ("Landlord's
Work") provided for in the attached plan labelled Exhibit B, which plan Landlord
may modify to comply with any requirements of local governmental or inspecting
authorities.
Landlord shall proceed diligently to cause Landlord's Work to be substantially
completed on or before the Commencement Date specified in Section 1.1 hereof,
subject to delay because of changes, deletions or additions in construction
requested by Tenant, delays caused by Tenant, strikes, lockouts, casualties,
acts of God, war, material or labor shortages, governmental regulation or
control or other causes beyond the control of Landlord. As used herein,
"substantial completion" shall mean that most of Landlord's Work has been
completed so that Tenant may occupy the Premises for the purposes set forth in
Section 3.0, subject to "punch list" items which do not materially interfere
with Tenant's occupancy for such purposes; provided, however, Landlord's Work
shall be deemed substantially completed at such time as Landlord's Work would
have been substantially completed but for Tenant changes, additions or deletions
in Landlord's Work or other delay caused by Tenant. Landlord shall notify Tenant
as soon as Landlord's Work is substantially completed. Within fifteen (15) days
after Landlord's notice, Landlord and Tenant shall prepare a list of "punch
list" items which remain to be completed. If there is a dispute as to whether or
not the Premises are substantially completed, the dispute shall be resolved by
the architect who prepared the plans and specifications.
Taking of possession of the Premises by Tenant or failure by Tenant to notify
Landlord of any defects in Landlord's Work within thirty (30) days after
Landlord's notice of substantial completion, if Tenant fails to take possession
within such thirty (30) day period, shall be deemed conclusively to establish
that the Premises have been completed in accordance with the plans and
specifications, except for any agreed "punch list" items.
21.2 TENANT IMPROVEMENT ALLOWANCE:
All Landlord's Work and plans and specifications shall be performed at
Landlord's direction and control and at Landlord's cost up to a maximum
allowance ("Allowance") of $30,250.00, which is the product of $5.00 per square
foot multiplied by the Rentable Area of the Premises.
Any and all costs and expenses for Landlord's Work in excess of the amount to be
paid by Landlord as provided herein shall be the responsiblity of Tenant and
Tenant shall reimburse Landlord therefor at such time as Landlord determines
that the cost of the Landlord's Work will exceed the Allowance.
To the extent that the cost of the Landlord's Work is less than the Allowance,
the Landlord will pay the difference to the Tenant within 30 days after Tenant
takes occupancy.
21.3 USE OF PARKING SPACES
The Landlord may prepare a parking plan designating where within the parking
areas on the Real Estate the Tenant's employees, agents, customers, and visitors
shall park. If the Landlord does prepare such a parking plan, the Tenant hereby
agrees to cause its employees, agents, customers and visitors to park in those
spaces designated by the Landlord as the Tenant's parking spaces.
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The Tenant Parking set forth as such parking plan shall be reasonably accessible
to the various entrances to the Premises.
21.4 ALLOCATION OF REAL ESTATE TAXES
Notwithstanding the provisions of Section 2. 1 (a) and the provisions of Article
V, if the assessed valuation of the Real Estate or the tax rate or the real
estate taxes imposed against the Real Estate can be allocated to the Premises
and/or the Tenant's occupancy of the Premises, then the Tax Adjustment will be
based on such allocations.
21.5 INTERPRETATION OF RIDERS
In the event of any inconsistency or language to the contrary between the
provisions of the Riders and the provisions of the printed portions or changes
to the printed portions of the Lease and the conditions and stipulations
thereto, the terms of the Riders shall be controlling. The Lease, the conditions
and stipulations thereto, and the Riders, constitute the entire agreement
between the parties relating to the transaction contemplated hereby and are
collectively referred to herein as the "Lease". No modification or amendment of
this Lease shall be valid unless the same is in writing and is executed by the
party against which enforcement of such modifications or agreement is sought.
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Trustee, as
ATTEST: aforesaid
By:/s/ ILLEGIBLE By: /s/ ILLEGIBLE
------------------------- -----------------------------
Assistant Secretary Its: Vice President
------------------------
TENANT:
NEOMEDIA TECHNOLOGIES, INC., a
ATTEST: Delaware corporation
By: By: /s/ DAN TRUMPEL 3/10/97
------------------------ --------------------------------
Dan Trumpel
Its: Sr. Vice President of Sales
2
<PAGE>
LISLE BUSINESS CENTER
LISLE, ILLINOIS
RULES AND REGULATIONS
1. ACCESS TO BUILDINGS: Landlord may from time to time establish security
controls for the purpose of regulating access to the common areas of the
Buildings. The Tenant shall abide by all such security regulations so
established. Notwithstanding the foregoing, each Tenant shall have access to its
demised premises at all times.
2. PROTECTINIG PREMISES: Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises.
3. LARGE Articles: Furniture, freight and other large or heavy articles may
be brought into the Buildings only at times and in the manner (including the
loading area) designated by Landlord, and always at the Tenant's sole
responsibility. All damage done to the Building by moving or maintaining such
furniture, freight or articles shall be repaired at the expense of Tenant.
Tenant shall be responsible for the location and security of such furniture,
freight or articles.
4. SIGNS: Tenant shall not paint, display, inscribe, maintain or affix any
sign, placard, picture, advertisement, merchandise, name, notice, lettering or
direction on any part of the outside or inside of the Buildings, or on any part
of the inside of the Premises which can be seen from the outside of the
Premises, without the written consent of Landlord, and then only such name or
names or matter and in such color, size, style, character and material as may be
first approved by Landlord in writing and as may be in accordance with any sign
criteria established by Landlord. Landlord reserves the right to remove at
Tenant's expense all matter other than that above provided for without notice to
Tenant.
5. ADVERTISING: Tenant shall not in any manner use the name of the Building
or use any picture or likeness of the Building, or the name "LISLE BUSINESS
CENTER" in any letter heads, envelopes, circulars, notices, advertisements'
containers or wrapping material for any purpose other than identification of the
location of Tenant's business without Landord's express consent in writing.
6. COMPLIANCE WITH LAWS: Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, with respect to
the Premises or the Buildings and the use or occupancy thereof. Tenant shall not
make or permit any use of the Premises or the Buildings which directly or
indirectly is forbidden by law, ordinance, governmental regulation or order or
direction of applicable public authority, or which may be dangerous to person or
property.
7. HAZARDOUS MATERIALS: Tenant shall not use or permit to be brought into
the Premises, the Complex or the Buildings any flammable oils or fluids, or any
explosive or other articles deemed hazardous to persons or property, or do or
permit to be done anything in or upon the Premises, or bring or keep anything
therein, which shall not comply with all rules, orders, regulations or
requirements or any organization, bureau, department or body having jurisdiction
with respect thereto (and Tenant shall at all times comply with all such rules,
orders, regulations or requirements), or which shall invalidate or increase the
rate of insurance on the Complex or Buildings, its appurtenances, contents or
operation.
8. DEFACING PREMISES AND OVERLOADING: Tenant shall not place anything or
allow anything to be placed in the Premises near the glass of any door,
partition, wall or window which may be unsightly from outside the Premises, and
Tenant shall not place or permit to be placed any article of any kind (other
than Tenant's merchandise inside its store) on any window ledge or on the
exterior walls. Blinds, shades, awnings or other forms of inside or outside
window ventilators or similar devices, shall not be placed in or about the
outside windows in the Premises except to the extent, if any, that the
character, shape, color, material and make thereof is approved by the Landlord.
Tenant shall not overload any floor or part thereof in the Premises, or any
facility in the Buildings or any public corridors therein bringing in or
removing any large or heavy articles, and the Landlord may direct and control
the location of safes and all other heavy articles and, if considered necessary
by Landlord, require supplementary
1
<PAGE>
supports at the expense of the Tenant of such material and dimensions as
Landlord may deem necessary to properly distribute the weight.
9. OBSTRUCTION OF PUBLIC AREAS: Tenant shall not take or permit to be taken
in or out of other entrances of the Buildings, any item normally taken in or out
through service doors; and Tenant shall not, whether temporarily, accidentally
or otherwise, allow anything to remain in, place or store anything, in, or
obstruct in any way, any sidewalk, court, passageway, entrance, or shipping
area. Tenant shall lend its full cooperation to keep such areas free from all
obstruction and in a clean and sightly condition, and move all supplies,
furniture and equipment as soon as received directly to the Premises, and shall
move all such items and waste (other than waste customarily removed by Building
employees) that are at any time being taken from the Premises directly to the
areas designated for disposal. All courts, passageways, entrances, exits,
stairways, corridors, halls and roofs are not for the use of the general public
and Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety and security of the Building and its occupants. No
Tenant and no employee, contractor, agent, licensee or invitee of Tenant shall
enter into areas reserved for the exclusive use of Landlord or its agents,
employees, licensees or invitees.
10. KEYS AND ADDITIONAL LOCKS: Tenant shall not attach or permit to be
attached additional locks or similar devices to any door or window, change
existing locks or the mechanism thereof, or make or permit to be made any keys
for any door other than those provided by Landlord. Landlord will provide two
keys for the Premises to Tenant. Additional keys shall be at the expense of
Tenant. Tenant shall notify Landlord of the number of keys so made. Upon
termination of this lease or of the Tenant's possession, the Tenant shall
surrender all keys to the Premises and all keys of offices, rooms and toilet
rooms which have been furnished the Tenant or which the Tenant shall have made,
and in the event of loss of any keys so furnished, Tenant shall pay Landlord
therefor.
11. COMMUNICATION OR UTILITY CONNECTIONS: If Tenant desires signal,
communication, alarm or other utility or similar service connections installed
or changed, Tenant shall not install or change the same without the approval of
Landlord, and then only under direction of Landlord and at Tenant's expense.
Tenant shall not install in the Premises any equipment which requires a
substantial amount of electrical current without the advance written consent of
the Landlord, and the Tenant shall ascertain from the Landlord the maximum
amount of load or demand for or use of electrical current which can safely be
permitted in the Premises, taking into account the capacity of the electric
wiring in the Building and the Premises and the needs of other tenants of the
Buildings, and shall not in any event connect a greater load than such safe
capacity.
12. MANAGEMENT OFFICE: Service requirements of Tenant will be attended to
only upon application at the office of the Management Agent for the Buildings.
Employees of Landlord shall not perform any work or do anything outside of their
duties unless under special instructions from the Landlord.
13. OUTSIDE SERVICES: No person employed by Tenant or its contractors shall
be used to perform janitor work, window washing, cleaning, decorating, repair or
other maintenance work in the Premises, if the same shall create disharmony or
labor unrest in connection with any labor agreements to which Landlord or its
contractors may be subject.
14. TOILET ROOMS: The toilet rooms, urinals, wash bowls and the other
apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
thrown therein and the expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the Tenant who, or whose
employees, contractors, agents, licensees or invitees, shall have caused it.
15. INTOXICATION: Landlord reserves the right to exclude or expel from the
complex or the Buildings any person, who in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs or who shall in any manner
do any act in violation of any of the rules and regulations of the building.
16. NUISANCES AND CERTAIN OTHER PROHIBITED USES: Tenant shall not (i)
conduct itself or permit its employees, licensees, contractors, agents or
invitees to conduct themselves in a manner inconsistent with the comfort or
convenience of other tenants
2
<PAGE>
or the first class character of the Buildings, (ii) install or operate any
internal combustion engine, boiler, machinery, refrigerating, heating or air
conditioning apparatus in or about the Premises except as authorized in writing
by Landlord, (iii) carry on any business in or about the Complex, the Premises
or Building or sell any article, thing or service except those ordinarily
embraced within the permitted use of the Premises specified in Section 3, (iv)
use the Premises for housing, lodging or sleeping purposes, (v) permit
preparation or warming of food brought into the Premises, except that Tenant
shall have the right to install and use a small microwave oven and a small
refrigerator in a portion of the Premises set aside for such use provided that
such equipment and space is at Tenant's sole expense and no nuisance from
refuse, noise, smoke or odor results, (vi) place any radio or television
antennae on the roof or on or in any part of the inside or outside of the
Buildings other than the inside of the Premises, (vii) operate or permit to be
operated any musical or sound producing instrument or device inside or outside
the Premises which may be heard outside the premises, (viii) use any
illumination or power for the operation of any equipment or device other than
electricity, (ix) operate any electrical device from which may emanate
electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Buildings or elsewhere, (x) bring or
permit to be in the Buildings any bicycle or other vehicle, or dog (except in
the company of a blind or deaf person) or other animal or bird, (xi) make or
permit any objectionable noise or odor to emanate from the Premises, (xii)
disturb, solicit or canvass any occupant of the Buildings, (xiii) do anything in
or about the Premises tending to create or maintain a nuisance or do any act
tending to injure the reputation of the Complex or the Buildings, or (xiv) throw
or permit to be thrown or dropped any article from any window or other opening
in the Building.
17. ROOM TO ROOM CANVASS: The Tenant shall not make any room-to-room
canvass to solicit business from other Tenants or occupants of the Complex or
the Buildings and shall not exhibit, sell or offer to sell, use, rent or
exchange any products or services in or from the Premises unless ordinarily
embraced within the Tenant's use of the Premises specified herein.
18. WASTE: The Tenant shall not waste electricity, water, heat or air
conditioning and agrees to cooperate fully with Landlord to assure the most
effective and energy efficient operation of the Complex and the Buildings'
heating and air conditioning.
19. AMENDMENTS: Landlord, from time to time, may promulgate amendments,
modifications and additions to these Rules and Regulations. The Tenant agrees to
comply with such amendments, modifications and additions upon notice of
promulgation of same by or from Landlord.
3
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
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0
0
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