EQUIPMENT LEASE AGREEMENT
LEASE NUMBER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LESSEE SELLER
- --------------------------------------------------------------------------------
NAME NAME
Image Guided Technologies, Inc. Machinery Systems, Inc.
- --------------------------------------------------------------------------------
ADDRESS ADDRESS
5860-B Central Ave. 614 East State Parkway
- --------------------------------------------------------------------------------
CITY STATE ZIP CITY STATE ZIP
Boulder CO 20301 Schaumburg IL 60173
- --------------------------------------------------------------------------------
TAXPAYER I.D. NO. CONTACT PHONE CONTACT PHONE
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT (GIVE MANUFACTURER,
MODEL NO., SERIAL NO. ETC.)
- --------------------------------------------------------------------------------
1 Refurbished Zeiss DB 900 4860-36 Coordinate Measuring
Machine
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LOCATION OF EQUIPMENT IF DIFFERENT THAN ABOVE
- --------------------------------------------------------------------------------
TERM OF LEASE COMMENCEMENT DATE ADVANCE PAYMENTS TO BE APPLIED TO
58 MONTHS OF LEASE 3600.00 First Payment
- --------------------------------------------------------------------------------
LEASE PAYMENT SCHEDULE
See Below PAYMENTS OF $ See Below PLUS TAX $ TOTAL $ See Below
- --------------- --------------- ------ ----------------
- --------------------------------------------------------------------------------
FOLLOWED BY (WHEN APPLICABLE)
PAYMENTS OF $ PLUS TAX TOTAL $
- --------------- --------------- ------ ----------------
- --------------------------------------------------------------------------------
A $3,830.00 FOLLOWED BY: 9 @ $1,277.00 FOLLOWED BY: 12 @ $2,340.00 FOLLOWED
BY: 36 @ $3,830.00
TERMS AND CONDITIONS OF LEASE AGREEMENT
1. TERM AND RENT. Lessor agrees to lease the above described equipment (the
"Equipment") to the Lessee for the term and rental as set forth, payment of the
rental installments to begin on the date of delivery to Lessee. As long as no
event of default exists, Lessor will not interfere with Lessee's possession, use
and quiet enjoyment of the Equipment.
2. PURCHASE AND ACCEPTANCE. Lessee requests Lessor to purchase the Equipment
from the Seller and arrange for delivery to Lessee, at Lessee's expense.
Delivery shall be deemed complete upon the Commencement Date. LESSOR SHALL
NOT BE LIABLE FOR LOSS OR DAMAGE OR FOR THE DELAY OR FAILURE OF SELLER TO
FILL OR DELIVER THE ORDER FOR THE EQUIPMENT. THE LESSEE REPRESENTS THAT
LESSEE HAS SELECTED THE EQUIPMENT DESCRIBED ABOVE BEFORE HAVING REQUESTED
LESSOR TO PURCHASE SAME FOR LEASING TO LESSEE.
3. NON-CANCELLABLE LEASE. THIS IS A NON-CANCELLABLE LEASE. When Lessee signs
and delivers a certificate of acceptance for the Equipment, its obligations
to pay all rent and other amounts when due for the Equipment and otherwise to
perform as required under the lease are unconditional, irrevocable and
independent. These obligations are not subject to cancellation, termination,
modification, repudiation, excuse or substitution by Lessee. Lessee is not
entitled to any abatement, reduction, offset, defense or counterclaim with
respect to these obligations for any reason whatsoever, whether arising out
of default or other claims against Lessor or the manufacturer or supplier of
the Equipment, defects in or damage to the Equipment, its loss or destruction
or otherwise.
4. DISCLAIMER OF WARRANTIES BY LESSOR; RIGHTS OF LESSEE. LESSOR MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS-IS."
UNDER NO CIRCUMSTANCES SHALL LESSOR BE RESPONSIBLE FOR ANY INCIDENTAL, OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS LEASE AND/OR THE EQUIPMENT
THEREUNDER, LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING
THOSE OF ANY THIRD PARTY, PROVIDED TO LESSOR BY THE SELLER IN CONNECTION WITH
OR AS PART OF THE CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT OR THE
RIGHT TO POSSESSION AND USE OF THE EQUIPMENT, LESSEE MAY COMMUNICATE WITH THE
SELLER AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF THOSE RIGHTS,
PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF THEM OR
OF REMEDIES.
5. CLAIMS AGAINST SELLER; SELLER NOT AN AGENT OF LESSOR. If the Equipment is
not properly installed, does not operate as represented or warranted by the
Seller or is unsatisfactory for any reason, Lessee shall make any claim on
account thereof solely against the Seller and shall nevertheless pay Lessor all
rent payable under this Lease. Lessor agrees to assign to Lessee, solely for
the purpose of making and prosecuting any such claim, any rights it may have
against the Seller for breach of warranty or representation respecting the
Equipment. Notwithstanding any fees that must be paid to Seller or any agent of
Seller, Lessee understands and agrees that neither the Seller nor any agent or
employee of the Seller is an agent or employee of the Lessor and that neither
the Seller nor its agent or employee is authorized to waive or alter any term or
condition of this Lease.
6. PAYMENTS. Lessee agrees to pay all Lease payments on the date designated
by Lessor and to pay such other payments and charges as provided herein.
These payments shall be increased by any cost or expense Lessor incurs to
preserve the Equipment or to pay taxes, assessments, fees, penalties, liens
or encumbrances. IF THE ACTUAL TOTAL COST OF THE EQUIPMENT VARIES FROM THE
ESTIMATE UPON WHICH THIS LEASE IS BASED, LESSEE AUTHORIZES LESSOR TO ADJUST
THE LEASE PAYMENTS PROPORTIONATELY, UPWARD OR DOWNWARD, NOT TO EXCEED TEN
PERCENT (10%), TO COMPENSATE FOR SUCH VARIATION. Each payment received will
be applied first, at the Lessor's discretion, to the oldest charge due under
the Lease. Without Lessor's prior written consent, the acceptance by Lessor
of a smaller sum than due at any time under this Lease shall not constitute a
release or an accord and satisfaction of any greater sum due or to become due
regardless of any endorsement restriction.
7. TITLE; LOCATION OF THE EQUIPMENT; TERMINATION. Title to the Equipment is in
the Lessor and under no circumstances shall pass to Lessee. The Equipment shall
be kept at Lessee's address indicated on this Lease and shall not be removed
without the written consent of Lessor. At the termination of this Lease or upon
Lessee's default, Lessee, its own expense, shall assemble and deliver the
Equipment to Lessor at such place Lessor may designate in writing, in good order
and repair, ordinary wear and tear excepted. Lessee shall give Lessor 90 days
written notice prior to termination that it is returning the Equipment.
8. NO ASSIGNMENT BY LESSEE; ASSIGNMENT BY LESSOR. NEITHER THIS LEASE NOR
THE RIGHTS HEREUNDER SHALL BE ASSIGNED BY THE LESSEE, NOR SHALL ANY OF THE
EQUIPMENT BE SUBLEASED BY THE LESSEE WITHOUT THE WRITTEN CONSENT OF THE
LESSOR. Lessor may at any time sell or assign to any bank, or other
financial institution, or any person, firm, or corporation all or part of its
right, title and interest in and to this Lease and in and to each item of
Equipment and monies to become due to the Lessor hereunder, and Lessor may
grant security interest in the Equipment, subject to the Lessee's rights
therein as set forth in this Lease, and in such events, all the provision of
this Lease for the benefit of Lessor shall inure to the benefit of and be
exercised by or on behalf of such assignee, but the assignee, shall not be
liable for or be required to perform any of Lessor's obligations to Lessee.
All rental payments due and to become due under this Lease and assigned by
Lessor shall be paid directly to assignee, upon written notice of such
assignment to Lessee and the right of the assignee to the payment of assigned
rentals and performance of all Lessee's obligations and to exercise any other
of Lessor's rights hereunder shall not be subject to any defense,
counterclaim or setoff which the Lessee may have or assert against the Lessor
and the Lessee hereby agrees that it will not assert any such defenses,
setoffs, counterclaims and claims against the assignee.
9. INSURANCE; HOLD HARMLESS BY LESSEE. Lessee shall keep the Equipment
insured against loss by fire, theft and all other hazards (comprehensive
coverage) at replacement cost by insurers and in form, amount and coverage
satisfactory to Lessor. Lessee appoints Lessor as Lessee's attorney in fact
to endorse any loss payment or returned premium check and to make any claim
under such insurance. Said policies shall be endorsed with Lessor as a loss
payee and additional insured and shall contain provisions (a) that such
insurance shall not be cancelled except upon ten days notice to Lessor and
(b) that the interest of Lessor shall not be invalidated by any act of
Lessee. The policies of insurance or endorsement certificates shall be
delivered to Lessor within 30 days of the Commencement Date. In the event of
loss, destruction or theft of, or damage to, any of the Equipment, Lessee
will immediately notify Lessor.
The loss, destruction, theft of or damage to the Equipment shall not relieve
the Lessee from its obligation to pay the full rentals payable hereunder and
Lessor's remaining residual interest. Any sums collected from insurance for
the total loss of any of the Equipment shall be credited to the final
installments of rent payable hereunder and Lessor's remaining residual
interest. If any of the Equipment is partially damaged, Lessee shall repair
such damage at its own cost and expense and any sums collected on insurance
on account of such damage shall be applied to the cost thereof, but on
default of the Lessee in repairing such damage within 30 days of the
occurrence thereof, the sums collected therefor shall be applied to the last
maturing installments of rent payable hereunder or to the repair of the
Equipment at Lessor's sole option.
Lessee shall insure the Lessor and Lessee with respect to liability for
personal injuries, damage to or loss of use of property resulting from the
ownership, use and operation of the Equipment with insurers satisfactory to
Lessor in amounts of at least $500,000 per individual and $1,000,000 per
occurrence for personal injuries and $100,000 for property damage and deliver
the policies or certificates thereof to Lessor.
If Lessee shall default in obtaining any insurance described above, Lessor may
place such insurance. Any premiums paid by Lessor shall be additional rent
payable on demand with interest at the highest legal rate from the date of
payment.
Lessor's sole option, such amounts together with interest may be added to the
lease balance to be paid by Lessee as additional monthly rental.
NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH, LESSEE WILL SAVE AND HOLD
LESSOR HARMLESS AGAINST ANY CLAIM OR LIABILITY (INCLUDING ATTORNEYS' FEES AND
COSTS AND EXPENSES FOR THE DEFENSE THEREOF) ARISING OUT OF THE OWNERSHIP, USE
OR OPERATION OF THE EQUIPMENT DURING THE PERIOD OF THIS LEASE AND UNTIL THE
EQUIPMENT IS RETURNED TO AND ACCEPTED BY THE LESSOR.
10. REPAIRS; USE; ALTERATIONS. Lessee, at its own expense, shall keep the
Equipment maintained in good repair, condition and working order; shall use
the Equipment lawfully and shall not alter the Equipment without the Lessor's
prior written consent. All items which become attached to or a part of the
Equipment become the property of Lessor.
11. TAXES. Lessee shall reimburse the Lessor (or pay directly if, but only if
instructed by Lessor) for all charges and taxes (local, state and federal)
which may now or hereafter be proposed or levied upon the Lease, rental,
operation, leasing, sale, ownership, possession or use of the Equipment
excluding all taxes based upon income or gross receipts of Lessor.
12. DEFAULT. Any of the following shall constitute an event of default by
Lessee: a) Lessee is to pay when due, any rent or other amount required by
this Lease; b) Lessee breaches any covenant of this Lease or fails to
promptly perform any of its terms or conditions, including but not limited to
return of the Equipment oat the expiration of the lease term; c) Lessee makes
an assignment for the benefit of creditors; d) a petition is filed by or
against Lessee in bankruptcy or for the appointment of a receiver; e)
dissolution or suspension of Lessee's usual business; f) Lessee makes a bulk
transfer or sale of furniture, furnishings, fixtures or other equipment or
inventory; g) any representation, warranty, or signature made by Lessee in
this Lease or related document is incorrect, fraudulent or breached; or h)
Lessee or any guarantor gives Lessor reasonable cause to be insecure about
Lessee's or guarantor's willingness or ability to perform the obligations
under this Lease.
13. LESSOR'S REMEDIES UPON DEFAULT BY LESSEE. If an event of default occurs,
Lessee's right to continue in possession of the Equipment shall immediately
cease, and Lessor shall have the right to execute any one or more of the
following remedies in order to protect its interests and reasonably expected
profits and benefits of bargains with the Lessee: a) cancel this Lease;
b)take possession of the Equipment without liability to Lessee for any
damages occasioned by such taking; c) recover from Lessee, with or without
repossessing the equipment, the sum of (1) accrued and unpaid rent and other
amounts payable as of the date of default, (2) the present value (as of the
date of payment) of the rent for the remaining term of this Lease agreement
at 5% per annum; and (3) the residual value of the equipment as measured by
its anticipated fair market value as of the expiration of the lease term;
provided, however that upon repossession or surrender of the Equipment,
Lessor shall either sell, lease or otherwise dispose of the Equipment in a
commercially reasonable manner, with or without notice and on public or
private bid, and apply the net proceeds (after deducting all expenses,
including attorneys' fees incurred in connection therewith), the sum of (2)
and (3) above, or Lessor may retain any repossessed Equipment and credit its
fair market value to the sums of (2) and (3) above; or d) exercise any other
right or remedy available to Lessor at law or in equity.
In the event Lessor assigns its right to receive rentals under this agreement
(but not its individual interest) and in the further event of default by
Lessee, Lessee remains liable to Lessor for Lessor's remaining residual
interest in the Equipment as measured above. This liability of Lessee is
unconditional and is not affected by Lessor's assignee repossessing and/or
selling the Equipment to wholly or partially satisfy assignee's right to
receive the assigned rentals.
14. RENEWAL. If the Equipment is not delivered to Lessor at the termination
hereof in accordance with paragraph 7, then this Lease shall renew from month
to month upon the same terms and conditions, subject to the right of Lessor
or Lessee to terminate the renewed Lease on 30 days written notice, in which
event, the Equipment shall immediately be returned to Lessor. No other
renewal shall exist except and unless a separate written agreement is entered
into between Lessor and Lessee.
15. LATE CHARGES. Without limiting Lessor's remedies above, if Lessee shall
fail to pay any amount of rental or other payment for a period of ten days
after its due date, Lessee agrees to pay Lessor a late charge of 5% of each
such payment or installment.
16. FINANCING STATEMENTS. The Lessor is authorized to file a financing
statement signed by the Lessor in accordance with the Uniform Commercial Code
or one signed by Lessor, as Lessee's attorney in fact.
17. FINANCIAL REPORTS. Upon request by Lessor, Lessee will promptly furnish
to Lessor for the most recent quarterly period, a balance sheet and a
statement of profit, loss and surplus from the beginning of that fiscal year
to the end of that period certified as correct by an authorized agent of the
Lessee and such other financial information, books and records the Lessor
may deem necessary.
18. JURISDICTION; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS. LESSEE CONSENTS TO THE JURISDICTION OF THE COURTS OF
ILLINOIS. NO PROVISION WHICH MAY BE CONSTRUED AS UNENFORCEABLE SHALL IN ANY
WAY INVALIDATE ANY OTHER PROVISION, ALL OF WHICH SHALL REMAIN IN FULL FORCE
AND EFFECT.
19. WARRANTIES BY LESSEE. Lessee warrants and represent that: (a) the
Equipment is being leased for business purposes; (b) all signatures are genuine;
(c) the person signing the Lease is authorized to do so: (d) if more than one
Lessee is named, the liability of each is agreed to be joint and several.
20. INDEMNITY BY LESSEE. Lessee agrees to indemnify and hold Lessor or any
assignee harmless from any and all claims, actions, proceedings, expenses,
damages, and liabilities, including attorneys' fees, arising out of or in any
manner pertaining to the Equipment or this Lease including, without
limitation, the ownership, selection, possession, purchase, delivery,
installation, leasing, operation, use, control, maintenance and return of the
Equipment and the recovery of claims under insurance policies.
In addition, notwithstanding any other provision of this Lease, if as to any
Equipment the modified accelerated cost recovery system or depreciation
deductions allowed under the Internal Revenue Code of 1986, as amended, ("The
Code") shall be lost, disallowed, eliminated, reduced, recaptured or
otherwise unavailable to Lessor for any reason, then Lessee shall pay to
Lessor as additional rent within 30 days after such a loss an amount which
shall be equal to the sum of (i) the additional federal, state, local and
foreign income or any other taxes payable as a result of such loss,
disallowance, elimination, reduction, recapture or unavailability of
accelerated cost recovery or depreciation deductions plus (ii) the amount of
any interest, penalties or additions to tax payable by the Lessor as a result
of such additional tax.
Lessee acknowledges that the Equipment to be leased by Lessor to Lessee
pursuant to this agreement is owned by Lessor ("Owner"). It is the intent of
Owner/Lessor and Lessee that this Lease constitute a true lease for Federal
income tax purposes so that, for the purpose of determining its liability for
Federal income taxes, Owner shall be entitled to the tax benefits as are
provided by the Code to an owner of personal property.
The indemnities given and liabilities assumed by the Lessee pursuant to this
Section 20 shall continue in full force and effect notwithstanding the
expiration or other termination of this Lease.
21. NOTICES. Any notice to a party hereunder shall be sufficiently given if
mailed to said party by certified mail, return receipt requested, at its
address set forth herein or such other address as either may designate for
itself in such written notice to the other.
22. LABELS AFFIXED TO EQUIPMENT. Lessor shall have the right, but not the
obligation, to affix or attach ownership identification labels to the Equipment.
Lessee agrees to not remove any such labels.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses,
including reasonable attorneys' fees and the fees of any collection agencies,
incurred by Lessor in enforcing any of the terms, conditions, or provisions
hereof or in protecting Lessor's rights herein. These costs and expenses shall
include, without limitation, any costs or expenses incurred by the Lessor in any
bankruptcy, reorganization, insolvency or other similar proceeding.
24. ENTIRE AGREEMENT. This Lease constitutes the entire agreement of the parties
in connection with the Equipment. Neither party relies on any other statements,
understandings, representations or assurances, the same, if any, having been
merged into this agreement. This agreement cannot be modified except by a
writing signed by each party. This agreement inures to the benefit of the
heirs, executors, administrators, successors and assigns of the parties.
25. WAIVER OF JURY TRIAL. Lessor and Lessee, after consulting or having had
the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in
any litigation based upon or arising out of this Lease or any related
instrument or agreement or any of the transactions contemplated by this Lease
or any related instrument or agreement, or any course of conduct, dealing,
statements (whether oral or written), or actions of either of them. Neither
Lessor nor Lessee shall seek to consolidate, by counterclaim or otherwise,
any such action in which a jury trial has been waived with any other action
in which a jury trial cannot be or has not been waived. These provisions
shall not be deemed to have been modified in any respect or relinquished by
either Lessor or Lessee except by a written instrument executed by both of
them.
THIS LEASE AGREEMENT SHALL NOT BE BINDING ON LESSOR UNTIL IT HAS BEEN ACCEPTED
AND EXECUTED BY AN OFFICER OF LESSOR AT ITS OFFICE. THE UNDERSIGNED AGREE TO
ALL OF THE TERMS AND CONDITIONS ABOVE WHICH ARE PART OF THIS LEASE AGREEMENT.
LESSEE IMAGE GUIDED TECHNOLOGIES, INC.
---------------------------------
ACCEPTED BY
LESSOR MACHINERY SYSTEMS, INC. BY /S/Jeffery Hiller TITLE V.P.
------------------------ ----------------------- --------
BY TITLE BY Jeffery Hiller, V.P. TITLE
------------------ ----- ----------------------- --------
LEASE DATE DATE
-------------------- ----------------------------------
- --------------------------------------------------------------------------------
GUARANTY
In consideration of the Lessor leasing to the Lessee and other good and
valuable consideration, the receipt of which is acknowledged, the undersigned
guarantee performance of all the covenants, conditions, and payments when due,
whether by acceleration or otherwise, of the above Lease by the Lessee. In the
event of default, the undersigned waive notice of any modification, amendment or
extension of the lease.
The undersigned agree that, if this guaranty is executed by two or more
guarantors, the obligation shall be joint and several.
- ----------------------An Individual -----------------------An Individual
(Signature) (Signature)
Home Address Home Address
------------------------- --------------------------
- ----------------------------------- ------------------------------------
Dated: Dated
------------------------------ -------------------------------
CERTIFICATE OF ACCEPTANCE
Lease Number
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
LESSEE SELLER
- --------------------------------------------------------------------------------
Name Name
Image Guided Technologies, Inc. Machinery Systems, Inc.
- --------------------------------------------------------------------------------
Address Address
5680-B Central Ave. 614 East State Parkway
- --------------------------------------------------------------------------------
City State Zip Code City State Zip Code
Boulder CO 80301 Schaumburg IL 60173
- --------------------------------------------------------------------------------
Taxpayer I.D. No. Contact Phone Contact Phone
- --------------------------------------------------------------------------------
QUANTITY DESCRIPTION OF EQUIPMENT (GIVE MANUFACTURER, MODEL NO.,
SERIAL NO. ETC.)
- --------------------------------------------------------------------------------
1 Refurbished Zeiss DB 900 4860-36 Coordinate Measuring
Machine
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Location of Equipment if different than above
- --------------------------------------------------------------------------------
Term of Lease Commencement Date of Lease Advance Payments To be applied to
58 months 3600.00 First Payment
- --------------------------------------------------------------------------------
Lease Payment Schedule
See Below Payments of $ See Below Plus Tax $ Total $ See Below
-------------- ----------- ------ ----------
- -------------------------------------------------------------------------------
Followed By (When applicable)
Payments of $ Plus Tax $ Total $
-------------- ----------- ------ ----------
- --------------------------------------------------------------------------------
1 @ $3,830.00 Followed By: 9 @ $1,277.00 Followed By: 12 @ $2,340.00
Followed By: 36 @ $3,830.00
LESSEE'S ACKNOWLEDGEMENT & DELIVERY RECEIPT
The undersigned (also referred to as "Lessee") acknowledges receipt in good
condition of all the above listed property (the "Equipment") and accepts
Equipment in accordance with all the terms and conditions of the lease
agreement dated ________________ between Lessor and the undersigned (the
"Lease"). Lessee agrees that the Lessor has fully and satisfactorily
performed all covenants and conditions to be performed under the Lease.
Lessee acknowledges Lessor's right to sell or assign its interests under the
Lease, consents to any such sale or assignments and in consideration of the
assignee having advanced funds to the Lessor to finance the Equipment
described in the Lease, agrees as follows: (a) that its obligation to pay
directly the assignee the amounts (whether designated as rentals or
otherwise) which become due from the Lessee as set forth in the Lease so
assigned shall be absolutely unconditional and shall be payable whether or
not the Lease is terminated by operation of law, any act of the parties, or
otherwise, and it promises to pay such sums notwithstanding any defense,
set-off or counterclaim whatsoever, whether by reason of breach of the Lease
or otherwise, which it may or might now or hereafter have against the Lessor
(the Lessee reserving its right to have recourse directly against the Lessor
on account of any such defense, set-off or counterclaim), and (b) that,
subject to and without impairment of the Lessee's leasehold rights in and to
the Equipment described in the Lease, Lessee holds the Equipment for the
assignee to the extent of the assignee's rights in the Equipment.
Dated: 2-22-96 Lessee: Image Guided Technologies, Inc
------------------ -------------------------------------------
By: /s/ J.H.
-------------------------------------------
Title: JEFFREY HILLER, V.P.
-------------------------------------------
Image Guide Technologies, Inc.
5680-B Central Ave
Boulder, CO 80301
January 11, 1996
Dear ___________:
Machinery Systems, Inc. (also referred to as "Lessor") grants to you Image
Guide Technologies, Inc. (also referred to as "Lessee") whose address is
5680-B Central Ave Boulder CO 80301 the option to purchase the machinery,
equipment and other personal property (the "Equipment") described in Lease
dated 1-11, 1996, or in any amendment to the lease (the "Lease") for a
purchase price equal to ONE-AND 00/100 DOLLAR ($1.00) plus any applicable
sales or use taxes payable in connection with such titles and any unpaid
property taxes assessed or levied against the Equipment.
This option is expressly conditioned upon all the following:
1. You have made all payments in full to Lessor or its assignee due under
the Lease;
2. No event of default under the Lease has occurred or is continuing under
the Lease;
3. You purchase all the Equipment described in the Lease;
4. You exercise your option to purchase on the day immediately following the
date of expiration of the Lease or the expiration date of any applicable
renewal period, by delivery to Lessor of payment of the purchase price by
cash, cashier's check or certified check plus any applicable sales or use
taxes payable in connection with such sales and any unpaid property taxes
assessed or levied against the Equipment.
Upon payment of the purchase price, Lessor shall execute and deliver to
Lessee a Bill of Sale for the Equipment, Purchase of the Equipment under this
option is on an AS IS, WITH ALL FAULTS BASIS.
Upon exercise of this option, Lessor will transfer title to Lessee. Lessor
warrants title to be free of any and all liens, encumbrances and claims
arising by, through and under Lessor and not otherwise.
THE LESSEE REPRESENTS THAT LESSEE HAS SELECTED THE EQUIPMENT PRIOR TO HAVING
REQUESTED THE LESSOR TO PURCHASE THE SAME FOR LEASING TO THE LESSEE, AND
LESSEE AGREES THAT THE LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED,
AS TO ANY MATTER WHATSOEVER INCLUDING THE SUITABILITY OF SUCH EQUIPMENT, ITS
DURABILITY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS MERCHANTABILITY, ITS
CONDITION, AND/OR ITS QUALITY.
Lessee may not assign this option nor any of its rights under this option.
This option shall be governed by Illinois law. Accepted and agreed on 1/16/95
--------
LESSOR: LESSEE:
Machinery Systems, Inc. Image Guide Technologies
- ----------------------------- -----------------------------------
By: By: /s/ J.H.
-------------------------- -------------------------------
- ----------------------------- -----------------------------------
Its: Its: V.P.
------------------------- ------------------------------
Private Label Form
DESIGNATION OF AUTHORITY
Pursuant to the Resolutions adopted by the Board of Directors of Image Guide
Technologies, Inc. (the Corporation) on December 8, 1995, I, being the
President of the Corporation, do hereby designate the following employee(s)
of the Corporation, whose name(s), title(s) (if any) and specimen
signature(s) (is/are) set forth below, to execute and deliver for and on
behalf of the Corporation (lessee) and any rental schedules, certificate of
inspection and acceptance, and other agreements, documents and instrument, in
connection with the lease and any future leases.
NAME OF DESIGNEE TITLE OF DESIGNEE SIGNATURE OF DESIGNEE
JEFFREY J. HILLER V.P. /s/ J.H.
- ---------------- ---------------- ----------------
________________ ________________ ________________
________________ ________________ ________________
________________ ________________ ________________
IN WITNESS WHEREOF, I have hereunto set my hand this 17 day of JANUARY, 1996.
NAME OF OFFICER /s/ ROBERT E. SILLIGMAN
--------------------------------
SIGNATURE /s/ Robert E. Silligman
--------------------------------
TITLE President SEAL
--------------------------------