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EXHIBIT 10.5
[LOGO] BALBOA CAPITAL CORPORATION
LEASE AGREEMENT
LA-NO. _____________
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LESSEE SUPPLIER OF
EQUIPMENT
INTERACTIVE TELESIS, INC. PARAGON VOICE SYSTEMS
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 619-632-1700 ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 619-591-9070
JOINTLY AND SEVERALLY RESPONSIBLE
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EQUIPMENT STREET ADDRESS___________________________________________________
LOCATION
IF DIFFERENT CITY ____________________COUNTY San Diego STATE_______ZIP_______
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ITEM QUANTITY DESCRIPTION
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"AS DELINEATED ON EXHIBIT 'A', ATTACHED HERETO AND MADE A PART HEREOF."
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TERMS MONTHLY RENT BASE TERM IN MONTHS DEPOSIT DEPOSIT APPLIED TO
(plus sales/use tax, if applicable)
$1,798.48 48 STARTS 10/1/96 $3,596.96 FIRST AND LAST MONTHLY RENTALS
DOCUMENTATION FEE: $195.00
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SECTION 1. LEASE: Lessee hereby leases from Lessor, and Lessor leases to
Lessee, the personal property described above, together with any replacement
parts, additions, repairs or accessories now or hereafter incorporated in or
affixed to it (hereafter referred to as "Equipment").
SECTION 2. ACCEPTANCE OF EQUIPMENT: Lessee agrees to inspect the Equipment and
to execute a Delivery and Acceptance Certificate, in form and substance
satisfactory to Lessor, after the Equipment has been delivered and after Lessee
is satisfied that the Equipment is satisfactory in every respect. With respect
to this Lease, if for any reason the Equipment has not been delivered,
installed and accepted by Lessee within sixty (60) days after it is ordered by
Lessor, or if Lessee fails to accept the Equipment and execute a Delivery and
Acceptance Certificate within ten (10) days following delivery of the
Equipment, Lessor may at Lessor's option, terminate Lessor's obligations under
this Lease and Lessee shall, on demand of Lessor, pay Lessor all amounts paid
or owing by Lessor with respect to the purchase of such Equipment and indemnify
and hold Lessor harmless from any and all liabilities, claims, costs and
expenses to the manufacturer or supplier/vendor of the Equipment or any other
party, arising out of or relating to the Equipment or the Lease. Upon payment of
such amounts, Lessor shall release, remise, and quit claim such Equipment to
Lessee, AS-IS, WHERE-IS, AND WITHOUT WARRANTY EXPRESSED OR IMPLIED BY LESSOR AS
TO ANY MATTER WHATSOEVER. Lessee shall upon such payment be subrogated to
Lessor's claim, if any, against the manufacturer or supplier/vendor of such
Equipment.
SECTION 3. TERM: This Lease shall become effective upon acceptance by Lessor by
signing and dating this Lease and the term for this Lease shall commence on the
day that the leased property has been delivered to and is usable by Lessee
("Commencement Date") 9/10/96 Lease Commencement Date. The base term of this
Lease shall commence on the first day of the month following the Commencement
Date and terminate upon the expiration of the number months specified in "Terms"
above. This Lease may be terminated by Lessee at the end of the base term if one
hundred eighty (180) days prior to the end of the base term, written notice of
such termination is delivered to Lessor (by certified mail). This Lease may be
terminated by Lessor at the end of the base term if at least thirty (30) days
prior to the end of the base term, written notice of such termination is
delivered to Lessee (by certified mail). Otherwise the term of this Lease
automatically shall be extended for a successive one-year period following the
end of the initial base term at the monthly rent stated in "Terms" above. During
this extension period, Lessor, at its sole option, may terminate this Lease upon
sixty (60) days prior written notice to Lessee (by certified mail). After the
extension period, this Lease may be terminated by either Lessor or Lessee at the
end of any calendar month, provided one hundred twenty (120) days prior written
notice of such termination is delivered to the other party (by certified mail).
Lessor and Lessee agree that the Lessee has no option to purchase the Equipment
at the end of the base term unless a purchase option agreement has been duly
executed by both parties.
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SECTION 4. DISCLAIMER OF WARRANTIES AND CLAIMS: LIMITATION OF REMEDIES. THERE
ARE NO WARRANTIES BY OR ON BEHALF OF LESSOR: Lessee acknowledges and agrees by
his signature below as follows:
A. LESSOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED AS TO THE CONDITION OF
THE EQUIPMENT, ITS MERCHANTABILITY, ITS FITNESS OR SUITABILITY FOR ANY
PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY, OR WITH RESPECT TO
ANY CHARACTERISTICS OF THE EQUIPMENT;
B. Lessee has fully inspected the Equipment which it has requested Lessor to
acquire and Lease to Lessee, and the Equipment is in good condition and to
Lessee's complete satisfaction;
C. Lessee leases the Equipment "as is" and with all faults;
D. Lessee specifically acknowledges that the Equipment is leased to Lessee
solely for commercial or business purposes and is not for personal, family,
household, or agricultural purposes;
E. If the Equipment is not properly installed, does not operate as represented
or warranted by the supplier, vendor or manufacturer, or is unsatisfactory for
any reason, regardless of cause or consequence, Lessee's only remedy, if any,
shall be against the supplier/vendor or manufacturer of the Equipment and not
against Lessor;
F. Provided Lessee is not in default under this Lease, Lessor assigns to Lessee
any warranties made by the supplier/vendor or manufacturer of the Equipment;
G. LESSEE SHALL HAVE NO REMEDY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AGAINST
LESSOR; and H. NO DEFECT, DAMAGE OR UNFITNESS OF THE EQUIPMENT FOR ANY PURPOSE
SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR RELIEVE LESSEE OF ANY
OTHER OBLIGATION UNDER THIS LEASE.
The parties have specifically negotiated and agreed to the foregoing paragraph
INITIALS /s/ [initial illegible]
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SECTION 5. STATUTORY FINANCE LEASE: Lessee agrees and acknowledges that it is
the intent of both parties to this Lease that it qualify as a statutory finance
lease under Article 2A of the Uniform Commercial Code. Lessee acknowledges and
agrees that Lessee has selected both: (1) the Equipment; and (2) the
supplier/vendor or manufacturer from whom Lessor is to purchase the Equipment.
Lessee acknowledges that Lessor has not participated in any way in Lessee's
selection of the Equipment or of the supplier/vendor or manufacturer, and Lessor
has not selected, manufactured, or supplied the Equipment. LESSEE IS ADVISED
THAT IT MAY HAVE RIGHTS UNDER THE CONTRACT EVIDENCING THE LESSOR'S PURCHASE OF
THE EQUIPMENT FROM THE SUPPLIER/VENDOR OR MANUFACTURER CHOSEN BY LESSEE AND THAT
LESSEE SHOULD CONTACT THE SUPPLIER/VENDOR OR MANUFACTURER OF THE EQUIPMENT FOR A
DESCRIPTION OF ANY SUCH RIGHTS.
SECTION 6. ASSIGNMENT BY LESSEE PROHIBITED: WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT, LESSEE SHALL NOT ASSIGN THIS LEASE OR SUBLEASE THE EQUIPMENT OR ANY
INTEREST THEREIN, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF THE
EQUIPMENT COVERED HEREBY.
SECTION 7. RENT: The monthly rent payable with respect to this lease shall be
the amount shown on this Lease in "Terms" above. Lessee shall pay to Lessor the
monthly rent, in advance, for each month or any part thereof the Lease is in
effect. The first such payment, with respect to this Lease shall be made on the
first day of the month following the Commencement Date. A prorata portion of the
rental charges based on a daily rental of one-thirtieth (1/30) of the monthly
rental calculated from the Commencement Date to the end of the month shall be
due and payable at the Commencement Date. Installments of rent or personal
property tax which are not paid within ten (10) days of their due date shall be
subject to a late charge equal to five percent (5%) of each delayed payment. The
late charge set forth in this contract shall apply only when permitted by law
and, if not permitted by law, the late charges shall be calculated at the
maximum rate permissible by such law. In the event that a check or other
instrument tendered for payment is dishonored, Lessor shall be entitled to a
fifteen dollar ($15.00) fee. All rent shall be paid at the place of business of
Lessor shown above or such other place as Lessor may designate by written notice
to Lessee. Lessee agrees to pay taxes and reasonable fees, including but not
limited to documentation fees, filing fees, credit fees, equipment inspection
fees, title fees, property taxes, sales taxes, use taxes, business taxes and
further agrees to pay twenty dollars ($20.00) per collection call and one
hundred dollars ($100.00) per collection visit. Lessor may apply remittances
received to unpaid rental installments and/or other charges on a due date basis,
remittance received being applied to the oldest unpaid rental or charge.
SECTION 8. NET LEASE: NO OFFSET: THIS IS A NET LEASE, AND ALL RENT AND ALL OTHER
SUMS PAYABLE BY LESSEE HEREUNDER SHALL BE PAID UNCONDITIONALLY WHEN DUE, WITHOUT
ABATEMENT, DEDUCTION, COUNTERCLAIM OR SETOFF OF ANY NATURE, INCLUDING WITHOUT
LIMITATION ANY COUNTERCLAIM OR SETOFF ARISING OUT OF ANY PRESENT OR FUTURE CLAIM
LESSEE MAY HAVE AGAINST LESSOR, OR ANY ASSIGNEE OF LESSOR OR THE MANUFACTURER OR
SUPPLIER OF THE EQUIPMENT, OR ANY OTHER PARTY. In no event, except as otherwise
expressly provided herein, shall this Lease terminate or shall any of the
Lessee's obligations be affected by reason of any defect in or damage to or loss
or destruction of all or any part of the Equipment, from any cause whatsoever,
or any interference with Lessee's use of the Equipment by any person or for any
other cause whatsoever.
SECTION 9. NO AGENCY: LESSEE ACKNOWLEDGES THAT NEITHER THE SUPPLIER NOR ANY
SALESPERSON, EMPLOYEE, REPRESENTATIVE OR AGENT OF THE SUPPLIER OR ANY FINDER,
BROKER, OR EMPLOYEE OR AGENT OF ANY FINDER OR BROKER IS AN AGENT OR
REPRESENTATIVE OF LESSOR, AND THAT NONE OF THE ABOVE IS AUTHORIZED TO WAIVE,
ALTER OR ADD TO ANY TERM, PROVISION OR CONDITION OF THIS LEASE, OR MAKE ANY
REPRESENTATION WITH RESPECT TO THIS LEASE. Lessee further acknowledges that
Lessee, in executing this Lease, has relied solely upon the terms, provisions
and conditions contained herein, and any other statements, warranties, or
representations, if any, by the supplier, or salesperson, employee,
representative or agent of the supplier or any finder, broker, or employee or
agent of any finder or broker have not been relied upon by Lessee and shall not
effect the Lessee's obligation to pay the rent and otherwise perform as set
forth in this Lease.
SECTION 10. CHOICE OF LAW: THIS LEASE IS SUBJECT TO APPROVAL AND ACCEPTANCE OF
BALBOA CAPITAL CORPORATION'S FINANCE COMMITTEE, AND SHALL NOT BECOME BINDING
UPON LESSOR UNTIL EXECUTED BY AN OFFICER OF LESSOR. Such officer shall be the
C.E.O., President, C.O.O., or Vice President. No other officer, employee or
agent of Lessor has the authority to waive, alter, or add to any term,
provision, or condition of this lease. Any action, proceeding, or appeal on any
matter related to or arising out of this Lease, Lessor, Lessee and any guarantor
or subscriber (i) SHALL BE SUBJECT TO THE JURISDICTION OF THE STATE OF
CALIFORNIA, AND CONCEDES THAT IT, AND EACH OF THEM, TRANSACTED BUSINESS IN THE
STATE OF CALIFORNIA BY ENTERING INTO THIS LEASE; (ii) SHALL ACCEPT VENUE IN THE
COUNTY OF ORANGE. LESSEE HEREBY WAIVES TRIAL BY JURY AND THE RIGHT TO INTERPOSE
ANY COUNTERCLAIM OR OFFSET OF ANY NATURE OR DESCRIPTION IN ANY LITIGATION
BETWEEN LESSEE AND LESSOR WITH RESPECT TO THIS LEASE, THE EQUIPMENT OR THE
REPOSSESSION THEREOF. SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS
WHICH ARE PART OF THIS LEASE.
LESSEE: INTERACTIVE TELESIS, INC. ACCEPTED BY:
LESSOR: BALBOA CAPITAL CORPORATION
BY: /s/ [signature illegible] BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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TITLE: PRESIDENT DATE: 8-29-96 TITLE: Vice President DATE: 09/09/96
ADDRESS FOR NOTICE: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EXHIBIT 'A'
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ITEM QUANTITY DESCRIPTION
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1. 01 IVR DEVELOPER SYST GXPRO 200/48
2. 01 IVR RUNTIME SYSTEM GXPRO 200/48
3. 01 FAX PROCESSING SYSTEM
4. 03 APC SMART UPS 420-V/S
5. 01 3COM OFFICE CONNECT HUB 8/TPO
6. 03 LEVEL 5 RJ45 PATCH CABLE 25 A
7. 02 CSU - D/240SC-T1 CABLE
LESSEE: INTERACTIVE TELESIS, INC.
BY : /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: PRESIDENT