UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF 1934
Date of Report (Date of earliest event reported): August 23, 1996
XATA Corporation
(Name of small business issuer in its charter)
Minnesota 0-27166 41-1641815
(State of other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification Number)
500 East Travelers Trail, Burnsville, MN 55337
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: 612-894-3680
(Former name, former address and former fiscal year, if changed since last
report): N/A
TABLE OF CONTENTS
Item 2. Acquisition or Disposition of Assets..............................1
Item 7. Financial Statements and Exhibits.................................1
INDEX TO EXHIBITS.............................................................1
SIGNATURE.....................................................................2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 23, 1996, XATA Corporation (the "Company") completed the
acquisition of certain assets of a business division known as "Payne &
Associates" from UCG Acquisition Corp. UCG Acquisition Corp. acquired the assets
immediately prior to the closing of the purchase pursuant to a merger of
Computer Petroleum Corporation ("CPC") into UCG Acquisition Corp.
The purchase price for acquisition of the assets of Payne & Associates
was paid in cash in the amount of $2,240,000 on the date of closing. In
addition, the Company assumed a lease and various contracts as more fully
specified in the Asset Purchase Agreement. The payment of the purchase price was
not financed by any third party but was paid from available funds of the
Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The audited balance sheet of Payne & Associates as of January 31, 1996
and the related consolidated statements of operations, retained earnings and
cash flows for the years ended January 31, 1996 and 1995, the interim financial
statements for the 6 months ended July 31, 1996 and 1995, and pro forma
financial information will be filed as soon as practicable under Form 8-K/A but
not later than 60 days after the filing of this report.
EXHIBITS
The following exhibits are filed herewith.
Exhibit No. Description of Exhibit
----------- ----------------------
Asset Purchase Agreement by and between XATA Corporation and
2 UCG Acquisition Corp. dated August 8, 1996 (with schedules)
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: September 6, 1996. XATA CORPORATION
By /s/ Robert M. Featherstone
-----------------------------------
Robert M. Featherstone, Chief
Financial Officer (Principal accounting
and financial officer)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into this 8th day of
August 1996, by and among XATA Corporation, a Minnesota corporation (the
"Buyer"), and UCG Acquisition Corp., a Maryland corporation (the "Seller").
W I T N E S S E T H :
WHEREAS, Seller has entered into an agreement (the "Merger Agreement")
whereby it will acquire from Computer Petroleum Corporation ("CPC") the business
known as Payne & Associates (the "Business"); and
WHEREAS, Buyer desires to buy and assume, and the Seller is willing to
sell and assign the Business, including substantially all of the assets, rights
and certain liabilities of the Business, free and clear of all liens, claims and
encumbrances whatsoever, for the purchase price and on the terms and conditions
set forth herein.
NOW, THEREFORE, in order to consummate the transaction set forth above
and in consideration of the mutual covenants, representations and warranties
herein contained, and subject to the conditions herein contained, the parties
hereto agree as follows:
1. Agreement to Purchase and Sell Assets. On the Closing Date (as
hereinafter defined), Buyer agrees to purchase from Seller and Seller agrees to
sell, assign, transfer, convey and deliver, on the terms and subject to the
conditions set forth in this Agreement, all of the assets (tangible and
intangible), properties, rights, contracts, operations, and "good will" of the
Business (but excluding the assets specifically identified as "Excluded Assets"
in paragraph 2 hereof) as they exist as of the Closing Date. The assets
(tangible and intangible), properties, contracts, rights, operations and good
will to be purchased and sold pursuant to this Agreement (the "Assets") include,
without limitation:
a. All equipment, fixtures, furnishings, personal property,
computer hardware and software, trade fixtures, leasehold improvements,
and other tangible personal property located in Peoria, Illinois, and
owned or leased by Seller and used or useful in the operation of the
Business and identified on Schedule 1(a) hereto (the "Equipment"),
together with any manufacturer, vendor or installer warranties thereon;
b. All of the telephone numbers, advertisements, promotional
materials, industry conference reservations or participations,
responses to RFPs, and other marketing materials used in or developed
for marketing in the Business;
c. All business records relating to the Business, including
but not limited to accounts, customer lists, lists of suppliers,
accounting records (including work papers related thereto),
correspondence, files, research data, advertising data, contracts and
other records and information necessary or desirable for Buyer to carry
on the Business and after the Closing Date;
d. All of Seller's contract rights and benefits in and to all
contracts, licenses, purchase orders, bids or proposals, contracts in
progress, commitments, leases, and other agreements which relate to or
arise from the Business (the "Contracts") described on Schedule 1(d)
hereto;
e. All of Seller's inventory, including raw materials, work in
process and finished goods, products under development (including all
work papers and data related thereto) and other supplies used in the
operation of the Business (the "Inventory");
f. All of Seller's accounts receivable, notes receivable and
other rights to the payment of money arising out of the operation of
the Business which remain uncollected on the Closing Date, whether or
not evidenced by a writing or reflected on any financial statements
delivered by the Seller to the Buyer (the "Receivables") as described
on Schedule 1(f) hereto;
g. All proprietary computer software, source code, object
code, and software program documentation and software designs, in
computer readable and hard copy forms reasonably acceptable to the
Buyer, including but not limited to those described on Schedule 1(g)
hereto; and all copyright, patent, trademark, and tradename rights
associated with such software and related services, as more fully
described on Schedule 1(g) (the "Proprietary Products").
h. All good will of the Business as a going concern, including
without limitation the name "Payne" (including derivatives thereof) and
all rights to the use of the name;
i. Seller's right, title and interest in and to that portion
of the real property and the improvements located thereon at 2404 West
Nebraska, Peoria, Illinois 61604 pursuant to the terms and conditions
of the lease attached hereto as Exhibit 1(i) (the "Lease");
j. Seller's right, title and interest in and to the Employment
Agreement dated October 9, 1995 between CPC and Erik Anderson;
k. Seller's right, title and interest in the representations
and indemnification covenant of Jason Payne in Section 3.3 and 9.1 of
the Asset Purchase Agreement dated October 6, 1995 (the "1995 Asset
Purchase Agreement") between CPC and Jason Payne; and
j. Rights of CPC under Section 1.2(f) of the 1995 Asset
Purchase Agreement concerning the interest of Jason Payne in common
stock of Globitrac, Inc.
2. Excluded Assets. Notwithstanding anything contained in the Agreement
to the contrary, Buyer will not purchase, and Seller will not sell, any of the
following assets (the "Excluded Assets"):
a. All assets listed on Schedule 2(a) hereof.
b. Cash on hand.
c. Tax credits or refunds in respect of the Business.
3. Purchase Price. The total purchase price (the "Purchase Price") for
the Assets is as follows:
a. $2,240,000, by cash or certified check, or by wire
transfer;
b. Assumption of the trade payables of the Business as of the
Closing Date, which have been incurred in the normal course of
business; and
c. Assumption of the debts, liabilities and obligations of
Seller described in paragraph 7(a) hereof.
4. Non-Compete Agreement. There shall be executed and delivered at
Closing a confidentiality and non-competition agreement (the "Non-Compete
Agreement") whereby:
a. William G. Leonard and Gary C. Thomas (the Chief Executive
Officer and Chief Financial Officer, respectively, of CPC) and Jason
Payne agree to not compete with Seller in any business of CPC other
than the Business for a period of one year after the Closing Date;
b. Seller agrees to not compete with Buyer in the Business for
a period of three years after the Closing Date;
c. Jason Payne, William G. Leonard and Gary C. Thomas agree
not to compete with Buyer for a period of one year after termination of
their employment with Buyer; and
d. The above-named parties agree to maintain the
confidentiality of certain information of Seller and Buyer.
Delivery of the Purchase Price, and the purchase of the Assets by
Buyer, is expressly conditioned upon the concurrent delivery at Closing of the
Non-Compete Agreement.
5. Allocation of Purchase Price. The parties shall agree at Closing as
to the content of IRS Form 8594 respecting allocation of the Purchase Price and
Additional Consideration among the Assets.
6. Closing. The closing of the transactions set forth herein (the
"Closing") shall occur at the offices of Moss & Barnett, A Professional
Association, not later than September 30, 1996 (the "Closing Date"), or at such
other time and/or place as the parties hereto may agree.
7. Limitation on Assumption of Liabilities. Seller shall transfer the
Assets to Buyer on the Closing Date free and clear of all liens and
encumbrances, and Buyer shall not, by virtue of its purchase of the Assets,
assume or become responsible for any debts, liabilities or obligations of
Seller, whether fixed, contingent, known, unknown or otherwise, except as
specifically set forth in clause (a) of this paragraph 7.
a. On the Closing Date, Buyer shall assume and agree to
perform and discharge the following debts, liabilities and obligations
of Seller:
(i) All trade debts, liabilities and obligations of
the Business arising in the ordinary course of business and
accrued or existing as of the Closing Date or which accrue and
become performable on and after the Closing Date, all
obligations of Seller under agreements, contracts, leases,
licenses and other arrangements described in paragraph 1
hereof, and other liabilities of Seller to the extent such
liabilities are expressly identified as assumed liabilities on
any schedule to this Agreement;
(ii) All debts, liabilities and obligations of Seller
related to or arising out of the Lease on and after the
Closing Date;
(iii) Obligations of Seller under the Employment
Agreement dated as of October 9, 1995 between CPC and Erik
Anderson; and
(iv) Obligations assumed by CPC pursuant to Section
1.3 of the 1995 Asset Purchase Agreement consisting of (A) an
agreement with Overnight Transportation, (B) an agreement with
J. J. Keller & Associates, and (C) agreements with Rockwell
Transportation Electronics.
b. XATA expressly does not assume any obligations of Seller or
CPC under (i) the Confidentiality and Non-Compete Agreement dated as of
October 11, 1995, between CPC and Jason Payne or (ii) Section 2.1(d) of
the 1995 Asset Purchase Agreement concerning "Deferred Payment"
obligations to Jason Payne.
8. Representations and Warranties of Seller. Seller represents and
warrants as follows, provided that representations and warranties concerning the
Business which relate to events or circumstances at or during a particular time
are limited to the period from October 6, 1995 through the Closing:
a. Seller represents that Seller is a corporation, existing
and in good standing under the laws of the State of Maryland, and has
the requisite power and authority to carry on its business and enter
into this Agreement.
b. Seller represents that at Closing, Seller will own all
right, title and interest in and to the Assets to be delivered
hereunder, free and clear of all liens, encumbrances, equities or
claims.
c. Seller represents that except for completion of the
transactions contemplated by the Merger Agreement and except as
provided otherwise herein, all authorizations, approvals and consents
necessary for the execution and delivery by the Seller of this
Agreement and for the consummation by the Seller of the transaction
contemplated hereby, have been given, and the Seller has full right,
power and authority to execute, deliver and perform this Agreement.
d. Seller represents and warrants to Buyer that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby will not to the best knowledge of the Seller
materially violate any law, rule or regulation or court or
administrative order, or result in a material breach or violation of,
or constitute a material default (or event which with notice or lapse
of time, or both, would constitute a default) under any material
agreement or instrument or any decree, judgment or order to which the
Seller is a party or by which it or its properties may be bound.
e. Seller, to its best knowledge, represents and warrants to
Buyer that the balance sheets of the Business as of December 31, 1995
and April 30, 1996, and the related statements of income and retained
earnings for the one year and four-month period ended April 30, 1996
(the "Financial Statements") heretofore delivered to the Buyer present
fairly the financial position of the Business at such dates and the
results of operations of the Business for such periods in all material
respects. To the best knowledge of Seller, all liabilities of the
Business, actual or contingent, have been reported in the Financial
Statements.
f. Seller, to its best knowledge, represents and warrants to
Buyer that (i) all of the Contracts are valid and binding obligations
of Seller and the other parties thereto (the "Contract Parties") in
accordance with their respective terms and conditions, (ii) Seller and
each of the Contract Parties are current in their performance and there
are no material liabilities or adverse claims arising from any breach
or default of any provisions of any such Contracts, (iii) true and
complete copies of all of the Contracts and any amendments thereto have
been made available to Buyer, and (iv) to the extent that Contracts are
to be assigned to Buyer, all of such Contracts are assignable without
the prior written consent of any Contract Parties, except as set forth
on Schedule 8(f).
g. Seller, to its best knowledge, represents and warrants to
Buyer that (i) as of the Closing Date, the Equipment, normal
wear-and-tear and obsolescence excepted, is in good condition and
working order, (ii) as of the Closing Date, Seller will have good and
marketable title or good and marketable leasehold interest, as the case
may be, free and clear of all claims, liens and encumbrances, to all
such Equipment except as set forth on Schedule 8(g), and except for
Equipment which may be sold or disposed of in the ordinary course of
business, and (iii) all leased property, whether real or personal, used
or useful in the Business is held under a valid and existing lease
whether oral or written, and, to the best knowledge of the Seller,
neither the Seller nor the lessor is in material default under any of
such leases. To the extent that equipment and real property leases are
to be assigned to Buyer, all of such leases are set forth on Schedule
8(g) and are assignable without the prior written consent of the
lessor, except for the Lease and as otherwise noted on Schedule 8(g).
h. Seller, to its best knowledge, represents and warrants to
Buyer that the Business is in compliance in all material respects with
all federal, state and municipal laws, ordinances, rules and
regulations relating to its properties and the operation or conduct of
the Business.
i. Seller, to its best knowledge, represents and warrants to
Buyer that all required federal, state and local tax returns concerning
the Business have been filed and paid, or will be paid on or before the
date that payment is due, and are correct and complete.
j. Seller, to its best knowledge, represents and warrants to
Buyer that there are no material legal actions, suits or administrative
or governmental proceedings existing or pending which affect the
Business.
k. Seller, to its best knowledge, represents and warrants to
Buyer that since April 30, 1996, (i) the Business has been operated in
the normal course with due care to the preservation of the Business and
its prospects, and (ii) the Business has not incurred any debt or
liabilities, paid any obligations or liabilities, made any payments to
Seller other than in the usual and ordinary course of business, and has
not entered into any transactions other than in the usual and ordinary
course of business.
l. Seller, to its best knowledge, represents and warrants to
Buyer that Seller has not knowingly withheld from Buyer any material
facts known to Seller and relating to the Business, including without
limitation, information concerning its operations, financial condition
or prospects and the development, maintenance, or customer satisfaction
record with respect to the Proprietary Products.
m. Seller, to its best knowledge, represents and warrants to
Buyer that there exists no default in the payment of any principal or
interest on any indebtedness which is secured by the Assets of the
Business.
n. Seller, to its best knowledge, represents and warrants to
Buyer that the Receivables arose from bona fide transactions in the
ordinary course of business and are not subject to any claim, defense
or set-off. Except to the extent disclosed to Buyer, and to the best
knowledge of Seller, all of the Receivables are collectable at the
aggregate face amount of such Receivables in the normal course of
business without cost to Buyer in the collection thereof. Seller will
cooperate with and assist Buyer in the collection of such Receivables
after the Closing.
o. Seller, to its best knowledge, represents and warrants to
Buyer that the Assets to be transferred by Seller to Buyer at the
Closing will include all assets, including intangible assets,
properties, franchises, licenses, permits, and contracts that relate
to, arise from, are used or held by or are necessary for the operation
of the Business by the Buyer, except for the Excluded Assets.
p. Seller, to its best knowledge, represents and warrants to
Buyer that no significant customer or account of the Business has
indicated to Seller or that it intends to terminate or diminish its
relationship with the Business or materially alter the volume of
purchases from the Business by reason of the consummation of the
transaction contemplated hereby or otherwise.
q. As of and after the Closing, Seller will cease using the
name "Payne" and will sign any and all documents reasonably necessary
to transfer the rights to the use of such name and derivatives thereof
to Buyer.
r. All loans and/or debts between or among Seller, Jason
Payne, William G. Leonard, Erik Anderson, Gary C. Thomas, and the
Business will be paid off and/or otherwise satisfied as among them
prior to the Closing Date, other than the obligations to Erik Anderson
under the Employment Agreement described in paragraph 1(j) and
obligations to Jason Payne under the agreement described in paragraph
7(b).
s. The Seller is not aware of any claim of infringement or
invalidity relating to the Proprietary Products.
t. Seller, to its best knowledge, represents and warrants to
Buyer that at the Closing Date it will own the Proprietary Products
free and clear of all claims, lien and/or encumbrances, and that at
Closing it will have the legal right to sell the Proprietary Products
to Buyer as contemplated by this Agreement.
9. Representations and Warranties of the Buyer. Buyer represents and
warrants to Seller that:
a. Buyer is a corporation duly organized, existing and in good
standing under the laws of the State of Minnesota, and has the
requisite power and authority to carry on its business and enter into
this Agreement.
b. All authorizations, approvals and consents necessary for
the execution and delivery by the Buyer of this Agreement and for the
consummation by the Buyer of the transaction contemplated hereby, have
been given, and the Buyer has full right, power and authority to
execute, deliver and perform this Agreement
c. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not violate
any law, rule or regulations or court or administrative order, or
result in a breach or violation of, or constitute a default (or event
which with notice or lapse of time, or both, would constitute a
default) under any agreement, instrument, decree, judgment or order to
which the Buyer is a party or by which it may be bound.
10. Indemnification.
a. Seller shall indemnify and hold Buyer harmless against any
loss, costs, expense, deficiency, liability or damage incurred by Buyer
from:
(i) The failure to disclose a material fact or facts
or the material incorrectness of any representation made by
Seller in this Agreement, the material breach of any warranty
of Seller contained in this Agreement, or the nonfulfillment
by Seller of any material agreement or covenant made by Seller
in this Agreement;
(ii) Any material liabilities of Seller for which
Buyer becomes liable, whether accrued, absolute, contingent or
otherwise, and whether due or to become due and not disclosed
to Buyer by Seller, unless Seller had no knowledge of such
liabilities;
(iii) Any material liabilities, debts or obligations
of Seller arising out of or having to do with the operation of
Seller or the Business incurred or arising prior to the
Closing Date, except as specifically assumed by Buyer herein,
unless Seller had no knowledge of such liabilities; and
(iv) Any and all actions, suits, proceedings,
demands, judgments, costs and legal and other expenses
incident to any of the matters referred to in this paragraph,
or any claims with respect thereto.
b. Buyer agrees to indemnify and hold Seller harmless against
any loss, cost, expense, deficiency, liability or damage incurred by
Seller arising from:
(i) Debts, liabilities, claims or causes of action
concerning the Business incurred or arising after the Closing
Date;
(ii) The incorrectness of any representation made by
Buyer in this Agreement, the breach of any warranty of Buyer
contained in this Agreement, or the nonfulfillment by Buyer of
any agreement or covenant made by it in this Agreement; and
(iii) Any and all actions, suits, proceedings,
demands, judgments, costs and legal and other expenses
incident to any of the matters referred to in this paragraph,
or any claims with respect thereto.
c. With respect to matters involving third party claims:
(i) If any third party shall notify any party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against another party (the "Indemnifying
Party") under this paragraph 10, then the Indemnified Party
shall promptly notify the Indemnifying Party thereof in
writing, provided that no delay on the part of the Indemnified
Party in notifying the Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) that the Indemnifying Party thereby
is prejudiced.
(ii) The Indemnifying Party will have the right to
defend the Indemnified Party against the Third Party Claim
with counsel of its choice satisfactory to the Indemnified
Party so long as (a) the Indemnifying Party notifies the
Indemnified Party in writing within ten business days after
the Indemnified Party has given notice of the Third Party
Claim that the Indemnifying Party will indemnify the
Indemnified Party in accordance with this paragraph 10 with
respect to the Third Party Claim, and (b) the Indemnifying
Party conducts the defense of the Third Party Claim actively
and diligently.
(iii) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with
paragraph 10(c)(ii) above, (a) the Indemnified Party may
retain separate co-counsel at its sole cost and expense, (b)
the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably), and (c)
the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably).
(iv) If the Indemnifying Party does not conduct the
defense of the Third Party Claim in accordance with paragraph
10(c)(ii) above, then (a) the Indemnified Party may assume the
defense of the Third Party Claim with counsel which shall be
reasonably satisfactory to the Indemnifying Party, (b) the
Indemnified Party shall act reasonably and in accordance with
its good faith business judgment and shall not effect any
settlement without the consent of the Indemnifying Party,
which consent shall not be withheld or delayed unreasonably,
and (c) the Indemnifying Party shall be entitled to
participate in such defense with its own counsel and at its
own expense.
d. Buyer shall not have a right to indemnification hereunder
or otherwise unless and until Buyer shall have incurred on a cumulative
basis since the Closing Date aggregate claims otherwise entitled to
indemnification under paragraph 10(a) in an amount exceeding $25,000,
in which event the right to be so indemnified shall apply only to the
extent that such losses exceed $25,000. The sum of all losses pursuant
to which indemnification is payable by Seller under paragraph 10(a)
shall not exceed $250,000. For purposes hereof, claims shall be
determined by deducting therefrom the amount of benefits obtained under
federal tax laws, amounts recovered under insurance policies net of
deductibles and incidental expenses and premium increases resulting
therefrom, and recovery by setoffs or counterclaims realized by Buyer
which is measurable in dollars with reasonable certainty (net of all
costs and expenses of recovering such amount) occurring in connection
with such loss.
e. All of the representations, warranties, covenants and
agreements contained in this Agreement and in any certificate,
schedule, document or other writing delivered pursuant to this
Agreement have been relied upon and shall survive the Closing, provided
that any representation and warranty contained in paragraphs 8 and 9
hereof shall be fully effective and enforceable only for a period from
the Closing Date through and until 270 days thereafter and shall
thereafter be of no further force or effect, except as to claims for
indemnification timely made pursuant to this paragraph 8 which shall
survive until resolved or judicially determined.
11. Performance by Seller Pending Closing. Seller shall give Buyer and,
to the best of its ability, shall cause CPC to give Buyer, and Buyer's officers
and agents, upon reasonable notice, full access during reasonable hours to the
Business, the Assets and all of the books, records, contracts, commitments and
agreements of the Business as any of such officers or agents shall reasonably
request. Seller shall immediately advise Buyer if it becomes aware that CPC has
failed to carry on the Business diligently and in the usual and ordinary course
and in substantially the same manner as heretofore conducted, has materially
failed to keep and maintain the Assets in good and safe condition consistent
with past practices, or has sold, transferred, leased, licensed or otherwise
encumbered Assets, except in the ordinary course of business and at regular
prices. Any information obtained by Buyer will be treated as confidential and
Buyer will take all necessary steps to ensure that the information gained by it
is restricted to those of its employees that need to have the information in
order to carry out the transactions contemplated by this Agreement. In the event
that the transaction contemplated by this Agreement is not completed, Buyer will
return to Seller any original documents acquired by it from Seller or from CPC,
together with all copies thereof and notes and memoranda prepared therefrom.
12. Other Conditions of Closing. Closing is contingent upon Seller's
completion of the transactions contemplated by the Merger Agreement and receipt
by Buyer and Seller of the executed documents and other items listed in
paragraphs 14, 15, and 16 hereof.
13. Covenants, Agreements and Acknowledgments Concerning
Representations of Seller. Seller and Buyer hereby covenant, agree and
acknowledge with respect to the representations and warranties of Seller set
forth herein as follows:
a. Notwithstanding anything contained in this Agreement to the
contrary, if Buyer has knowledge prior to Closing that any of the
representations and warranties of Seller set forth herein are untrue or
incorrect in any material respect, Buyer may, at its option (i) invoke
as unsatisfied the conditions to Closing and may terminate this
Agreement, in which event none of the parties shall have any further
rights or obligations hereunder, or (ii) Buyer may waive its right with
respect to such breach and the failure to satisfy such condition and
proceed with the transaction contemplated hereby, in which event Buyer
shall have no claim (whether for indemnification or otherwise) against
Seller.
b. To the extent disclosure made in any one schedule sets
forth the information required to be disclosed on another schedule,
such information shall be deemed to be reported on such other schedule.
c. The representations and warranties of Seller set forth in
paragraph 8 hereof constitute all of the representations and warranties
made by Seller. Buyer specifically acknowledges and agrees that it has
not relied or proceeded upon any other representations or warranties by
Seller and that Seller is not responsible for any representations or
warranties made herein or otherwise by any other persons, including
without limitation, any representations or warranties of Jason Payne,
William Leonard or Gary Thomas or any projection as to the future
profitability of the Business.
d. Whenever a statement herein is qualified by the phrase "to
its best knowledge," "to its knowledge" or by other words to the same
or similar effect, it is intended to signify that no information came
to the attention of Bruce Levenson or Todd Foreman, the persons who
represented Seller in connection with the transactions contemplated by
this Agreement, which would give either of them actual knowledge or
notice of the inaccuracy of such statement, it being understood that
Seller has not undertaken any independent investigation or inquiry to
determine the accuracy or inaccuracy of such statement, but has relied
solely upon its actual knowledge. The parties acknowledge that Seller
has entered into the Merger Agreement with the expectation that the
Business would be sold to Buyer contemporaneously with the acquisition
of the Business by Seller. Seller entered into a letter of intent with
Buyer in respect of the sale of the Business by Seller to Buyer on the
same date as Seller executed the Merger Agreement. Seller and Buyer
expect that Closing of the sale of the Business will occur
contemporaneously with the closing of the Merger Agreement.
14. Documents to be Delivered by Seller and Certain Persons at Closing.
At the Closing, Seller and certain other persons, identified below, shall
execute, where necessary or appropriate, and deliver to Buyer each of the
following:
a. A certificate signed by a duly authorized officer of
Seller, dated as of the Closing Date, to the effect that (i) all of the
representations and warranties made by Seller in this Agreement are to
the best of Seller's knowledge true and correct at and as of the
Closing Date, and (ii) confirming that Seller has approved this
Agreement and authorized the execution and delivery of this Agreement
and any other document or instrument executed in connection herewith;
c. A Bill of Sale (without warranty except as set forth
herein) duly executed by Seller;
d. Evidence of satisfaction of any lien or encumbrance on any
of the Assets not expressly being assumed by Buyer;
e. All consents, releases, assignments and permissions of any
kind or nature which reasonably may be required to effectively sell,
assign and transfer the Assets to the Buyer, consistent with the terms
of this Agreement;
f. The Non-Compete Agreement, duly executed by Payne, Leonard,
Thomas and Seller;
g. An Assignment of Lease with consent of landlord, duly
executed by the Landlord;
h. Assignment of the rights and obligations of Seller under
the Employment Agreement described in paragraph 7(a)(iii);
i. Release and Termination by Jason Payne of the "Deferred
Payment" obligations described in Section 2.1(d) of the 1995 Asset
Purchase Agreement; and
j. Terminations of the Employment Agreement dated October 9,
1995, between CPC and Jason Payne, the Employment Agreement dated March
7, 1996 between CPC and William G. Leonard, and the Employment
Agreement dated March 7, 1996 between CPC and Gary C. Thomas, duly
executed by the parties to such agreements.
15. Documents to be Delivered by Buyer at Closing. At the Closing,
Buyer shall execute and deliver each of the following:
a. A certified or bank cashier's check, or wire transfer, in
the amount provided for in paragraph 3 of this Agreement;
b. A certified copy of resolutions adopted by Buyer's Board of
Directors authorizing the execution and delivery of this Agreement and
the other documents and instruments executed in connection herewith;
and
c. Assumption of Liabilities Agreement.
d. Evidence of dismissal of District Court of Salt Lake
County, State of Utah, Civil No. 950908188CN, provided that this
condition may be unilaterally waived by Buyer, in its discretion;
provided further that if waived by Buyer, Buyer agrees that it shall
make the services of Leonard, Thomas, and Payne available to Seller at
its request, without cost (subject to reasonable time and cost
restraints) to bring such litigation to closure satisfactory to Seller
by settlement, dismissal or otherwise.
16. Documents to Be Delivered to Seller at Closing. At the Closing,
Seller shall receive from each of William G. Leonard, Gary C. Thomas and Jason
Payne a release and waiver in form and substance satisfactory to Seller
releasing Seller from and waiving any right to assert claims and liabilities,
including without limitation claims and liabilities under any employment,
non-competition or other agreements between CPC and such persons and, with
respect to Jason Payne, claims for payment under Section 2.1(d) of the 1995
Asset Purchase Agreement.
17. Notices. All notices and other communications from any of the
parties to the other shall be in writing and shall be considered to have been
duly given or served as sent by reputable overnight carrier or verified
facsimile to the other party at his or their address as provided below, or to
such other address as such party may hereafter designate by written notice to
the other party or parties:
If to Seller: United Communications Group
11300 Rockville Pike
Rockville, MD 20852
Attn: Bruce Levenson
Telephone #: 301-816-8950
Fax #: (301) 816-8945
If to Buyer: XATA Corporation
500 East Travelers Trail
Burnsville, MN 55337
Attn: Dennis R. Johnson
Telephone #: (612) 894-3680
Fax #: (612) 894-2463
18. Amendment. This Agreement may be altered or amended by a writing
signed by all of the parties.
19. Governing Law. This Agreement shall be subject to and governed by
the laws of the State of Minnesota.
20. Parties in Interest. This Agreement shall be binding upon the
parties and their respective heirs, executors, administrators, successors and
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or delegated by any of the parties without the prior
written consent of all the other parties.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
22. Severability. The invalidity or partial invalidity of any portions
of this Agreement shall not invalidate the remainder hereof, and said remainder
shall remain in full force and effect.
23. Entire Agreement. This Agreement and its Exhibits constitute the
entire agreement between the parties on the subject matter hereof and supersedes
any prior agreement or understanding between the parties on the subject matter
hereof.
24. Captions. Captions at the beginning of the paragraphs of this
Agreement are designated for convenience of reference only and are not to be
resorted to for the purpose of interpreting any provisions of this Agreement.
BUYER: XATA CORP.
BY /S/ DENNIS R. JOHNSON
--------------------------------------
ITS PRESIDENT AND CEO
---------------------------------
SELLER: UCG ACQUISITION CORP.
BY /S/ BRUCE LEVENSON
--------------------------------------
ITS PRESIDENT
ASSET PURCHASE AGREEMENT
XATA/UCG
Schedule Description
-------- -----------
l(a) Equipment
l(d) Contracts
l(f) Receivables
l(g) Proprietary Products
l(i) Real Estate Leases
2(a) Excluded Assets
8(f) Consents required for assignment of contracts
8(g) Liens and encumbrances
8(j) Litigation
Schedule l(a)
EQUIPMENT
9 LLBA-TSN6536GS Panel Nonpowered
9 LLBA-TSN6948GS Panel Nonpowered
9 LLBA-TSN6560GS Panel Nonpowered
5 LLBA-TSF654BGS Panel Powered
6 LLBA-TSP6560GS Panel Powered
11 LBB-FL65G Panel End Trim 65"
30 LBB-P65G Panel Connector 65"'
2 LBB-WM65G Wall Mount
9 LBCP- 1 4 Circuit Duplex Outletl
9 LBCP-2 4 C@ Duplex Outlet 2
9 LBCP-3 4-Circuit Duplex Outlet 3
1 LBCP-PIL Power Input Left
1 LBCP-PIR Power Input Right
9 LLA-WTO2436C Worktop
9 LLA-WTO4890 Worktop Corner
16 LFA-CSBLG Support Bracket Left
17 LFA-CSBRG Support Bracket Right
9 LFC-FDSG Pencil Drawer
9 LLG-FC3612GL Flipper Cabinet w/Fabric
9 LFA-RX51 Keyboard Pad Sliding
9 LFR-TL36LG Task Light
6 SLER-2430L Special 30" Wide X 24" Deep Exec-HI Workspace
3 SLER-2430R Special 30 X 24 Exec-HI Workspace/Right
1 Conference Table
5 Desks
9 Workstations
22 Chairs
4 Shelving Units
1 Microwave
1 Small Refrigerator
2 Coffee Posts
1 D-Link Intelligent Hub
1 D-Link Intelligent Hub
1 Keyboard
1 Keyboard
1 Mouse (Logitech)
1 Mouse
1 Printer (Panasonic KX-P4410)
1 Monitor 14"
1 Monitor 14"
1 CPU w/CD-ROM, 1.2 gig HD, 3.5" Floppy Drive, 16 meg RAM
1 CPU w/Internal Modem, 1.2 gig HD, 3.5" Floppy, 16 meg RAM
1 Monitor 14" (Super VGA 1024NI)
1 Monitor 14" (Touch Model #AM4020)
1 Keyboard
1 Keyboard (Fujitsu)
1 External Modem
1 Laptop (Elite Midwest Micro Model #TS304AS)
1 Copier (Sharp SF-7350)
1 Fax (Rapicom 120 by Camadan #EI247)
1 Telephone (Conair Model #PR6230WX)
1 Postage Machine (Ascom Hasler F101)
1 Typewriter (Smith Corona XLI700)
1 Mouse (Dexa)
1 Telephone (Comdial 12-lines)
1 Keyboard (Key Tronic)
1 Monitor 17" (CTX Model #176SCD)
1 Roland CS-10 Stereo Micro Monitor
1 486 DX 4-100 CPU w/850 meg HD, Internal Modem, 8 meg RAM
1 Telephone (Comdial 12-Line)
1 Monitor 17" (CTX-VGA)
1 Mouse (Dexa)
1 Keyboard (Key Tronic)
1 486 DX2 66mghz CPU w/8meg RAK modem, 1 mg Video Card
1 Monitor 21"
1 Keyboard
1 Mouse (Dexa)
1 Telephone (Comdial 12 Line)
1 Speakers (Lab TEC w/Pro Audio CD-ROM & 16 bit Sound Card
1 486 DX 4-100 CPU w/1.44 Floppy, 850 HD 240 HD, Modem
1 Printer (Epson Action Laser II)
1 Telephone (Comdial 12-Line)
1 Mouse (Logitech)
1 Monitor 14" (Sunshine)
1 Power Supply Board under Monitor
1 File Cabinet
1 486 CPU w/500 HD * RAM 3.5" Floppy
1 Color Monitor 14" (Mltac)
1 Keyboard (model #KKR-E99AC)
1 Mouse
1 486 CPU w/160 HD, 8 RAM, 5.25" Floppy, 3.5" Floppy
1 Printer (Epson Stylus Color)
1 Telephone (Comdial 12-Lines)
1 Mouse (Logitech)
1 Keyboard (Microsoft)
1 Color Monitor 17" (CTX)
1 486 CPU 8 Ram, 170 HD, 250 Tape Drive, 3.5" Floppy Drive
1 Color Monitor 17" (CTX)
1 Tape Drive (Colorado 700)
1 Telephone (Comdial 12-Lines)
1 Mouse (Logitech)
1 486 DX4 CPU 100 mghz w/850 HD, Modem, 3.5" Floppy
1 Telephone (Comdial 12-Lines)
1 Mouse (Logitech)
1 Color Monitor 14" (Packard Bell Model #0100625 7
1 Keyboard #9306-017653
1 486 CPU w/3.5" Floppy
1 Telephone (Comdial 12-Line)
1 Mouse (Mouse Systems)
1 Keyboard (ProTouch)
1 Color Monitor 14" #KIO3913
1 486 CPU w/3.5" Floppy
1 File Cabinet
1 Telephone (Comdial 12 Lines)
1 Color Monitor 14"
1 Computer Power Controller
1 Printer (Laser Panasonic KX-P4410)
1 Keyboard (Pro Touch)
1 Mouse (Logitech)
1 486 CPU w/3.5" Floppy
5 Additional Telephones
1 Quantum Hard drive & Memory
2 Dual Scan Notebook PC
1 Desktop PC
1 PC Hard drive
2 17" Monitor
1 PC Upgrade
1 21" Monitor
1 Laser Printer
2 Pentium PC & Accessories
1 Pentium PC w/UPS & Network
1 100MB Intelligent Hub & 1 10/100 Bridge
1 CPU w/P166 4 gig HDD, 4X (1) 32mb, 3.5"Floppy
1 P75 Laptop, 1 GIG HD, 12MB w/Zip DTive
1 17" CT Monitor
1 HP Laserjet Printer
2 DeskJet 320 Printers
Schedule 1. (d)
CONTRACTS
1. Rockwell International Contract
2. J.J. Keller & Associates Contract
3. Ruppman Marketing Technologies Contract
4. Navistar International Transportation Corporation Purchase Order
5. Arbor Freight Services, Incorporated Contract
6. Zar-Tran, Incorporated Contract
7. Whitney & Associates Lease
8. Innovative Technologies Group Contract
9. Western Digital Contract
10. Montgomery Tank Lines Proposal
11. Bandag Tire Proposal
<TABLE>
<CAPTION>
Schedule 1. (f)
Schedule 1 (f)
Payne & Associates
Accounts Receivable Aged Open Items Report
Aging Date: 07/31/96
Summary Report
Outstanding Current 31-60 61-90 Over 90
Cust Customer Name Telephone Balance Amount Amount Amount Amount
<S> <C> <C> <C> <C> <C> <C> <C>
PA00 AIRLAND TRANSPORT 309 263-2889 4,000.00 2,000.00 2,000.00
52 CO.
Contact: Corkey Gray Credit
Limit: Avg. Remit 0
PA00 AIRLAND TRANSPORT 309 263-2889 4,000.00 2,000.00 2,000.00
52 CO.
Contact: Corkey Gray Credit
Limit: Avg. Remit 0
PA00 ARBOR FREIGHT 715 835-1392 22,000.00 6,200.00 15,800.00
51 SERVICE, INC
Contact: Rick Jonas Credit
Limit: Avg. Remit 0
PA00 ARROW TRUCKING, INC 918 445-5708 3,400.00 3,400.00
32
Contact: Don Battle Credit
Limit: Avg. Remit 0
PA00 FLEET CARRIERS, INC 4,750.00 4,750.00
53
Contact: Credit
Limit: Avg. Remit 0
PA00 FLEET 17,775.00 2,225.00 15,550.00
43 COMMUNICATIONS, INC
Contact: Brad Credit
Bartlett Limit: Avg. Remit 0
PA00 FREYMILLER 800 366-8840 1,650.00 33.00 1,617.00
45 TRUCKING, INC
Contact: Erik Smith Credit
Limit: Avg. Remit 0
PA00 GORDON TRUCKING, 206 863-7777 200.00 200.00
37 INC
Contact: Dan Reed Credit
Limit: Avg. Remit 0
PA00 K.J. TRANSPORTATION, 716 924-9951 90.45 90.45 Paid
03 INC 8-2-96
Contact: Kenneth Credit
Johnson Limit: Avg. Remit 0
PA00 LIQUID 502 964-3351 142.75 142.75
04 TRANSPORTERS, INC
Contact: Credit
Limit: Avg. Remit 0
PA00 MONTGOMERY TANK 813 754-4725 181,116.25 42,587.85 56,900.00 57,975.00 23,653.40
12 LINES
Contact: Siamak Credit
Azmoudeh Limit: Avg. Remit 0
PA00 NAVISTAR 219 461-1024 46,691.80 5,336.50 7,426.50 33,928.80 Paid
31 $42,864.00
8-15-96
Contact: Sandy Credit
Hornsby Limit: Avg. Remit 0
PA00 PRIORITY FREIGHT 330 220-6555 650.00 650
48
Contact: Ty Pruitt Credit
Limit: Avg. Remit 0
PA00 ROCKWELL 11,092.52 -14,875.00 4,000.00 21,967.52
08 INTERNATIONAL
Contact: Voin Long Credit
Limit: Avg. Remit 0
PA00 RUPPMAN MARKETING 309 685-5901 61,148.32 1,460.83 8,230.83 -16,876.67 68,333.33
42 TECH
Contact: Darrell Credit
Kuhne Limit: Avg. Remit 0
PA00 SAIA MOTOR FREIGHT 800 315-7242 2,250.00 2,250.00
57 LINE
Contact: Brian Credit
Balius Limit: Avg. Remit 0
PA00 TACE 416 234-2023 5,000.00 5,000.00
58 TRANSPORTATION CO.
Contact: Guy Credit
Griffith Limit: Avg. Remit 0
PA00 VOLVO EM HEAVY 910 393-2167 4,782.50 1,912.50 -380.00 3,230.00 Paid
10 TRUCK $850.00
8-23-96
Contact: Mary Jane
Fanning
PA00 WESTERN DIGITAL 2,000.00 2,000.00 Paid $2,285.00
56 CORP 8-14-96
Contact: Greg Ewing
PA00 ZAR-TRAN 3,000.00 3,000.00
53
Contact: Rusty
Raybun
FINAL TOTAL 371,719.59 56,934.63 73,162.33 72,549.83 169,072.80
August Payments -46,089.45
T&E Due UCG -4,432.80
Total Due XATA 321,197.34
</TABLE>
Schedule 1. (g)
PROPRIETARY PRODUCTS
1. Dispatch 2000 Windows
2. Dealer Locator Windows
3. Internet Dealer Locator Windows
4. Dealer Locator AS/400
5. Breakdown Call Report Windows
6. Breakdown Call Report AS/400
7. Satmap 2000 Windows
8. Satcom 2000 Windows
9. Satmap Ltd. Windows
10. Internet Load Tracker Windows
These are Master Copies. Customer copies are made as needed.
LIST OF INVENTORY
(continued)
PAYNE & ASSOCIATES DATA GROUP LISTING
GROUP #1 GROUP #4
ENGINE REPAIR FACILITIES TRAILER REPAIR & REFRIGERATION
Caterpillar Engine Company Dealerships General Trailer Repair Facilities
Cummins Engine Company Dealerships Tank Cleaning Facilities
Detroit Diesel Company Dealerships Tank Trailer Repair Facilities
Freightliner Service Centers Special Trailer Services
Kenworth Service Centers Fruehauf Service Centers
Volvo/White GMC Service Centers TIP Trailer Rental Facilities
International Service Centers Strick Trailer Rental Facilities
GMC Service Centers Qualawash Facilities
Mack Service Centers Thermo King Repair Facilities
Detroit Series 60 Repair Facilities Carrier Repair Facilities
Ford Heavy Truck Dealerships
Independent Engine Repair Facilities
GROUP #2 GROUP #5
THE REPAIR FACILITIES TRUCK STOPS
Goodyear Commercial Tire Centers Unocol 76 National Auto Truck Stops
Bridgestone Commercial Tire Centers Texaco Truckstops & Fuel Stops
Michelin Commercial Tire Centers Truckstops of America
Independent Engine Repair Locations Major Fuel Locations
Yokahama Tire Repair Locations
Bandag Tire Repair Locations
Dunlop Commercial Tire Centers
GROUP #3 GROUP #6
TOWING FACILITIES SPECIAL SERVICES
Towing Mechanic Facilities DOT Department Drug Testing Facilities
24 Hour Towing Facilities Qualcomm Repair Facilities
Trailer Towing Facilities Safelite Glass Locations
General Towing Facilities Weigh-tronix Scales Locations
Independent Engine Repair Locations Cat Scales Locations
Authorized Through-Way Facilities
Insurance Adjusters
Exhibit 1. (i)
REAL ESTATE LEASES
1. Lease Agreement between Whitney & Associates and Enermet Industries,
Inc. as Lessor and Payne & Associates as Lessee, dated September 1,
1995.
2. Consent to Letter between Enermet Industries, Inc. and Computer
Petroleum Corporation, dated October 11, 1995.
3. Sublease Agreement between Payne & Associates, as Lessor, and
Innovative Technologies Group as Lessee dated August 25, 1995.
<TABLE>
<CAPTION>
=======================================================
<S> <C> <C>
TELEPHONE WHITNEY & ASSOCIATES TELEFAX
309-673-2131 INCORPORATED 309-673-3050
TESTS * INVESTIGATIONS GEOTECHNICAL ENGINEERING
ANALYSIS * DESIGN * EVALUATIONS [LOGO] 2406 West Nebraska Avenue CONSTRUCTION QUALITY CONTROL
CONSULTATION * REPORTS * INSPECTIONS SUBSURFACE EXPLORATIONS
ARBITRATION * EXPERT WITNESS TESTIMONY ENVIRONMENTAL INVESTIGATIONS
* * * * * * * * * * * * * * * PEORIA, ILLINOIS 61604-3193 * * * * * * * * * * * * * *
SOILS * PORTLAND CEMENT CONCRETE MONITORING WELL INSTALLATIONS
BITUMINOUS CONCRETE * STEEL BUILT-UP ROOF INVESTIGATIONS
ASPHALT * AGGREGATES * EMULSIONS WELDER CERTIFICATIONS
POZOLANIC MATERIAL * LIME INSURANCE INVESTIGATIONS
=======================================================
</TABLE>
LEASE AGREEMENT
THIS INDENTURE, made this lst day of September, 1995, between WHITNEY &
ASSOCIATES And ENERMET INDUSTRIES, INC., 2406 West Nebraska Avenue, Peoria,
Illinois 61604, hereinafter referred to as LESSOR, and PAYNE & ASSOCIATES And
JASON E. PAYNE, individually, of Peoria, Illinois, with its principal office at
Peoria, Illinois, hereinafter referred to as LESSEE:
WITNESSETH
For the considerations hereinafter set forth, the LESSOR has granted
and leased, and by these presents does hereby grant and lease unto the said
LESSEE, its subsidiaries, affiliates, successors, and assigns office space in
the premises described as follows: North 2850+ square feet of a single-story
block and brick building in addition to 300+ square feet in the basement area of
the same single-story building whose address is designated as 2404 West Nebraska
Avenue, Peoria, Illinois, 61604, with all the rights, privileges and
appurtenances appertaining and belonging thereto, for the general purpose of
conducting normal and conventional office business operations and practices
therein.
TO HAVE AND TO HOLD, the above described premises for and during the
term of five (5) years, commencing September 1, 1995, and ending August 31,
2000, with two additional option renewal periods of five (5) years on the terms
and conditions outlined in Exhibit "A" provided the said LESSEE gives the said
LESSOR sixty (60) days notice in writing in advance of the expiration of the
respective term hereof of its intention to so renew; and,
The said LESSEE hereby covenants and agrees to pay the said LESSOR, or
assigns, the sum of $3100.00/month rent, payable as follows: $3100.00 due and
payable on or before the date hereof, and $3100.00/month on or before the first
day of each month thereafter, during the continuance of this LEASE; and, The
said LESSEE agrees that it will not sublet or allow any other person, firm or
corporation to occupy the demised premises without first obtaining the written
consent of the said LESSOR; and,
The said LESSEE also covenants and agrees that at the expiration of
this LEASE, it will surrender peaceable possession of demised premises in as
good condition as they were at the commencement of this LEASE, loss by fire from
any cause or other casualty and ordinary wear and tear excepted; and,
Upon the non-payment of the whole or any portion of said rent at the
time same becomes due and payable, as aforesaid, the LESSOR may at their
election either distrain for said rent due or declare this LEASE at an end and
recover possession of the demised premises as if the same were held by forcible
detainer, and the said LESSEE does hereby waive notice of such election, or of
any demand for the possession of said premises; and,
It is further understood and agreed by and between the parties hereto
that the LESSOR will furnish heating, air conditioning, lighting, water and
other utilities and/or facilities for the demised premises at the expense of the
LESSEE; with the exception of water and sewer services; and,
It is further understood and agreed by and between the parties hereto
that if during the term of this LEASE, or any renewal thereof, the building or
the demised premises are so injured or damaged by fire, or otherwise, that the
same are rendered wholly unfit for occupancy and cannot be repaired within
ninety (90) days of the happening of such injury or damage, then this LEASE
shall cease and determine from the date of such injury or damage; and, in such
case, the LESSEE shall pay the rent apportioned to the time of injury or damage
and shall surrender the demised premises to the LESSOR who may thereupon enter
upon and repossess the same, but, if the injury or damage is such that the
demised premises can be repaired within ninety (90) days thereafter, the LESSOR
may enter upon and repair the same with reasonable promptness, and this LEASE
shall not be affected except that the rent shall be suspended while such repairs
are being made; but, in case the injury or damage shall not render the demised
premises unfit for occupancy, this LEASE shall not be affected, and the LESSOR
may enter upon the same and shall repair the demises premises with reasonable
promptness; and,
It is expressly understood and agreed, by and between the parties
hereto, that in case the said premises are destroyed or damaged by fire, so as
to render the same untenable, during the term of this LEASE, no rent shall
accrue from the date of such destruction until the same are again ready for
occupancy.
It is further expressly understood and agreed, by and between the
parties hereto, that if the rent above reserved, or any part thereof, shall be
behind or unpaid on the day of payment whereon the same ought to be paid as
aforesaid, or if default shall be made in any of the covenants and agreements
wherein contained, to be kept by the said LESSEE, his attorney, agent,
executors, administrators, or successors and assigns, it shall and may be lawful
for the said LESSOR, his heirs, executors, administrators, agent, attorney or
assigns, at his election, to declare said term ended, and into the said
premises, or any part thereof, in the name of the whole to re-enter; and the
said LESSEE, or any other person or persons occupying in or upon the same, to
expel, remove and put out using such force as may be necessary in so doing; and
the said premises again repossess and enjoy; as in the first and former estate,
and in such case, or in case of termination of this LEASE in any way, the said
LESSEE, his attorney, agent, executors, administrators or successors and
assigns, do hereby covenant and agree to surrender and deliver up said above
described premises and property, peaceably, to said LESSOR, his heirs,
executors, administrators, agent, attorney and/or assigns, immediately upon the
termination of said term as aforesaid; and if they shall remain in possession of
the same after such default, or after the termination of this LEASE, in any of
the ways above name LESSEE shall be deemed guilty of a forcible detainer of said
premises under the statute, and shall be subject to all the conditions and
provisions above name, and to eviction and removal as above stated.
And the said LESSEE hereby waives his right to any notice from the said
LESSOR of his election to declare this LEASE at an end, under any of its
provisions, or any demand for the payment of rent or the possession of the
premises leased herein; but the simple fact of the non-payment of the rent
reserved, or default in any of the covenants and agreements herein contained,
shall constitute a forcible detainer, as aforesaid.
And it is further covenanted and agreed, by and between the parties,
that the LESSEE shall pay and discharge all costs and collection and attorney's
fees and expenses that shall arise from enforcing the covenants of this
indenture by the LESSOR.
It is further understood and agreed by and between the parties hereto
that if the LESSEE installs furniture, fixtures or other equipment with the
written consent of the said LESSOR, the said furniture, fixtures or other
equipment may be detached and removed by the LESSEE at the expiration of this
LEASE by the lapse of time, or otherwise, provided the rent or other charges
upon the LESSEE are fully paid;
The following additional terms and special conditions and features of
this LEASE AGREEMENT are considered a part of the LESSOR'S obligations.
1. Repairs and maintenance to HVAC system.
2. Repairs and maintenance to roof system and building exterior.
3. Construction and maintenance of landscape areas to be
completed by December 1, 1995.
4. Construction and maintenance of parking lot area (to be
completed by December 1, 1995.)
5. Snow removal.
6. Lawn and planting care.
7. Real estate taxes.
8. Building insurance (Contents to be provided by LESSEE).
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals, in duplicate, on the day, month and year first above wriften.
PAYNE & ASSOCIATES
(By) /s/ Jason E. Payne LESSEE
------------------------------------
JASON E. PAYNE, PRESIDENT
(By) /s/ Jason E. Payne
------------------------------------
JASON E. PAYNE, INDIVIDUALLY
ATTESTED BY:
/s/ Susan D. Coers
- ----------------------------
WHITNEY & ASSOCIATES
(By) /s/ Richard R. Whitney LESSOR
------------------------------------
RICHARD R. WHITNEY, AGENT FOR
WHITNEY & ASSOCI ATES AND
ENERMET INDUSTRIES
ATTESTED BY:
/s/ Ruth M. Arnold
- ---------------------------
<TABLE>
<CAPTION>
=======================================================
<S> <C> <C>
TELEPHONE WHITNEY & ASSOCIATES TELEFAX
309-673-2131 INCORPORATED 309-673-3050
TESTS * INVESTIGATIONS GEOTECHNICAL ENGINEERING
ANALYSIS * DESIGN * EVALUATIONS [LOGO] 2406 West Nebraska Avenue CONSTRUCTION QUALITY CONTROL
CONSULTATION * REPORTS * INSPECTIONS SUBSURFACE EXPLORATIONS
ARBITRATION * EXPERT WITNESS TESTIMONY ENVIRONMENTAL INVESTIGATIONS
* * * * * * * * * * * * * * * PEORIA, ILLINOIS 61604-3193 * * * * * * * * * * * * * *
SOILS * PORTLAND CEMENT CONCRETE MONITORING WELL INSTALLATIONS
BITUMINOUS CONCRETE * STEEL BUILT-UP ROOF INVESTIGATIONS
ASPHALT * AGGREGATES * EMULSIONS WELDER CERTIFICATIONS
POZOLANIC MATERIAL * LIME INSURANCE INVESTIGATIONS
=======================================================
</TABLE>
PAYNE & ASSOCIATES
CORPORATE OFFICE BUILDING COMPLEX
2404 WEST NEBRASKA AVENUE
PEORIA, ILLINOIS 61604
BASE LEASE MONETARY CONSIDERATIONS
RENTAL SPACE (3150 TOTAL SQ. FT.)
OFFICE AREA (2850 SQ. FT.)
STORAGE AREA (300 SQ. FT.)
REAL ESTATE TAXES
ELECTRICITY - BY LESSEE
HEATING/AIR CONDITIONING - BY LESSEE
WATER - FURNISHED
SEWER - FURNISHED
COMMON AREA MAINTENANCE
SNOW REMOVAL
SHRUBS AND LAWN CARE
BUILDING AND PARKING LOT MAINTENANCE
GARBAGE DISPOSAL
FURNISHED BUILD-OUT SCHEDULE
STRUCTURAL WALLS AND DOORS
WALL COVERINGS
FLOOR COVERINGS
CEILINGS
HVAC
PLUMBING
WIRING
TELEPHONES - BY LESSEE
CABLE TV - BY LESSEE
COMPUTER CIRCUITS - BY LESSEE
REST ROOMS
OFFICES
KITCHENETTE AREA
SECURE STORAGE ROOM
TOTAL MONTHLY RENT - $3100.00/MONTH
(FIVE YEAR FIXED RATE)
OPTION NO. 1 - 5 YEARS @ $3600.00/MONTH
OPTION NO. 2 - 5 YEARS @ $4200-OO/MONTH
ENERMET INDUSTRIES
INCORPORATED
TELEPHONE LOGO
309 673-2131 2406 West Nebraska Avenue
PEORIA, ILLINOIS 61604
October 11, 1995
Computer Petroleum Corporation
World Trade Center
Suite 510
30 East Seventh Street
St. Paul, Minnesota 55101-4901
Re: REAL ESTATE LEASE
CONSIGNMENT AGREEMENT
TO WHOM IT MAY CONCERN:
This letter is written to respectfully inform all interested parties
affiliated with the Real Estate Lease Agreement between Payne & Associates and
Jason Payne, individual, that Richard R. Whitney as agent for Enermet
Industries, Inc. and President of Whitney & Associates, Incorporated, is willing
to consent to assign all of the terms, conditions and obligations of this Real
Estate Lease Agreement to Computer Petroleum Corporation whose corporate offices
are located at the above address, namely, St. Paul, Minnesota.
Should there be any questions whatsoever with regard to this Real
Estate Lease Consignment Agreement, or if, any additional information is
desired, please do not hesitate to contact me personally at your convenience
Respectfully submitted,
ENERMET INDUSTRIES, INC.
(By) /s/ Richard R. Whitney
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Richard R. Whitney, Agent
WHITNEY & ASSOCIATES
(By) /s/ Richard R. Whitney
---------------------------------
Richard R. Whitney, P.E.
SUBLEASE AGREEMENT
LESSOR:
Payne & Associates
2404 West Nebraska Avenue
Peoria, Illinois 61614
LESSEE:
Innovative Technologies Group (ITEK)
2404 West Nebraska Avenue
Peoria, Illinois 61604
Innovative Technologies Group, hereinafter referred to as ITEK will sublease
space at 2404 West Nebraska Avenue, Peoria, Illinois 61604 from Payne &
Associates, hereinafter referred to as PAYNE.
ITEK will sublease 295 square feet on the main floor of the premise, and 300
square feet in the lower facilities. The total square footage is 595 square
feet. The rate for the main floor square footage is $10.00 per square foot. The
rate for the lower facilities square footage is $5.00 per square foot. The main
floor will cost ITEK $245.83/month. The lower facility will cost ITEK
$125.00/month. The total rent for ITEK will cost $370.93. This does not include
the cost of utilities or miscellaneous expenses incurred by PAYNE.
The space as mentioned will include those offices as designated in the attached
floor plan (Exhibit A.) The space as listed above has included an incurred cost
for the following items:
15% of the space designated as a break area. (Item 1A on the floor plan)
15% of the space designated as men's and women's restrooms. (Item 1B on the
floor plan)
50% of the space designated as the receptionist area. (Item 1C on the floor
plan)
75% of the space designated as the lower facilities (not shown)
Access to the conference room (pre-arranged) (Item 1D on the floor plan)
Use of Office I (Item 1E on the floor plan)
Use of Office 2 (Item 1F on the floor plan)
ITEK will run 4 telephone lines into PAYNE'S existing digital telephone system
at ITEKS cost. ITEK will also pay its own utilities and telephone expenses as
such bills will indicate.
This lease is valid for a period of five (5) years from the date of issuance,
with the understanding that PAYNE is the lessor and ITEK is the lessee.
By signing below, both parties agree to the terms and conditions as listed
herein, understanding that amendments can be made if approved by both parties in
writing.
For PAYNE & ASSOCIATES For Innovative Technologies Group
/s/ Jason E. Payne /s/ Dave Lawrence
- ---------------------------------- ----------------------------------
By: Jason E. Payne By: Dave Lawrence
Its: President Its: President
Date Date
8/25/95 8/25/95
Witnessed By: Witnessed By:
/s/ Erik J. Anderson /s/ Charles D. Payne
- ---------------------------------- ----------------------------------
Schedule 1 (i)
Lease for 2404 West Nebraska Avenue, Peoria, Il
Description of Floor Plan
The Floor Plan layout shows an L-shaped area that measures approximately 91.5
feet on the long axis and approximately 56 feet on the base. The office has a
total of 3,150 square feet made up as follows:
A front entrance/exit door
A rear entrance/exit door
A lobby area
Six (6) private offices located around the outside perimeter walls
Nine (9) semi private offices located in the center of the space
Two (2) closet areas
A copier/mail/fax room
A reference library
One (1) large conference room
A lady's restroom
A men's restroom
A break/lunch area w/sink & refrigerator
A utility room
A storage area
Schedule 2. (a)
EXCLUDED ASSETS
NONE
Schedule 8. (f)
CONTRACTS THAT REQUIRE WRITTEN CONSENT
FOR ASSIGNMENT
1. Consent from Rockwell International
2. Consent from Whitney & Associates
SCHEDULE 8. (g)
EQUIPMENT AND/OR REAL PROPERTY LEASES
NONE
SCHDULE 8 (j)
LITIGATION
On or about December 8, 1995 Western Dairyman Cooperative, Inc. filed
an action in the District Court of Salt Lake County, State of Utah (Civil No.
950908188CN) against Jason E. Payne d/b/a Payne & Associates, Payne & Associates
and Computer Petroleum Corporation alleging reach of a contract to deliver goods
and damages in the amount of $26,000 plus costs, attorneys fees, interest, and
incidental and consequential damages. The Plaintiff has extended the time for
CPC to file an Answer to the Complaint pending resolution of the dispute with
Jason Payne and Payne & Associates. CPC has been advised by Plaintiff's attorney
that the contract is now substantially performed and that upon satisfactory
completion of the contract CPC will be dismissed out of the case.
