1
EXHIBIT 10.31
LEASE AGREEMENT LEASE #: 194478.02
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LESSEE
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INTERACTIVE TELESIS, INC.
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???ing Address - ▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ County:
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VENDOR/SUPPLIER
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INTERACTIVE TELESIS, INC. ▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EQUIPMENT DESCRIPTION. ATTACH SEPARATE ADDENDUM IF NEEDED.
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Quantity Type, Make, Model & Serial Number "This lease and the property
herein are subject to a pre-
SEE ATTACHED EQUIPMENT LIST existing Security Agreement
in favor of US Bank National
Association.
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EQUIPMENT LOCATION. COMPLETE ONLY IF EQUIPMENT WILL NOT BE LOCATED AT LESSEE'S
ADDRESS ABOVE.
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Address SAME County:
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SCHEDULE OF LEASE PAYMENTS
--------------------------------------------------------------- ---------- -------------- -------- ----------
Amount of Each Lease Payment
Lease Term Number of --------------------------------- x Number of + Administrative + Security = Initial
(Months) Payments Rental Tax Total Payment Prepayment Fee Deposit Amount Due
---------- --------- --------- ----- ------------- ---------- -------------- -------- ----------
36 36 $1,328.01 $0.00 $1,328.01 2 $0.00 $0.00 $2,656.02
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Payment Due Date Interim Rent will be billed and calculated as follows: (Monthly Rental Payment divided by 30 days = Daily Rate)
x (# of Days Between Acceptance Date And First Payment
[X] 1st [ ] 15th 6-1-00 Date) = Total Interim Rental
THIS LEASE IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED HEREON AND ON THE
FOLLOWING PAGES, ALL OF WHICH ARE MADE A PART HEREOF AND WHICH LESSEE
ACKNOWLEDGES HAVING READ. PLEASE READ CAREFULLY BEFORE SIGNING.
THIS LEASE AGREEMENT, WHICH CONSISTS OF 4 PAGES, IS NOT BINDING UNTIL ACCEPTED
BY LESSOR
LESSEE: INTERACTIVE TELESIS, INC. LESSOR: MEDIA CAPITAL ASSOCIATES, LLC
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Signature Only)
President & Individually
5-10-00 Operations Mgr
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(Date) (Title)
THIS IS A NON-CANCELABLE LEASE FOR THE TERM INDICATED
Lessor, hereby Leases to the Lessee, and Lessee hereby hires and takes from
Lessor all property described in this agreement or hereafter and made a part
hereof.
1. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
Lessor and Lessee. No oral agreement, guaranty, promise, condition,
representation or warranty shall be binding on Lessor. All prior conversations,
agreements or representations related hereto and/or to said equipment are
integrated herein. No modification hereof shall be binding unless in writing and
signed by Lessor.
2. REPRESENTATIONS. Lessee acknowledges that no salesman or agent of the
supplier of the equipment is authorized to waive or alter any term or condition
of this Lease and no representation as to the equipment or any matter by the
supplier shall in any way effect the Lessee's duty to pay the Lease payments and
perform its other obligations as set forth in this Lease.
3. 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
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, 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 CHOSEN BY LESSEE AND
THAT LESSEE SHOULD CONTACT THE EQUIPMENT SUPPLIER FOR A DESCRIPTION OF ANY
SUCH RIGHTS.
4. ASSIGNMENT BY LESSEE PROHIBITED WITHOUT LESSOR'S PRIOR WRITTEN CONSENT.
LESSEE SHALL NOT ASSIGN THIS LEASE OR ANY INTEREST THEREIN, OR SUBLEASE THE
EQUIPMENT, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF THE
EQUIPMENT COVERED HEREBY.
5. APPLICABLE LAW AND VENUE. ALL MATTERS INVOLVING THE CONSTRUCTION, VALIDITY,
PERFORMANCE, OR ENFORCEMENT OF THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF WASHINGTON. LESSEE CONSENTS TO THE PERSONAL JURISDICTION OF THE COURTS
OF THE STATE OF WASHINGTON AND AGREES THAT AT LESSOR'S SOLE OPTION, JURISDICTION
AND VENUE (LOCATION) FOR ANY DISPUTE, SUIT OR ACTION, ARISING UNDER OR IN
RELATION TO THE LEASE, AND ALL DOCUMENTS EXECUTED IN CONNECTION THEREWITH, SHALL
BE IN __________ COUNTY, STATE OF WASHINGTON. LESSOR SHALL HAVE THE OPTION OF
COMMENCING AN ACTION IN ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER
AND PARTIES TO THE TRANSACTION.
CONTINUED ON FOLLOWING PAGES PAGE 1 OF 4 PAGE LEASE AGREEMENT
2
6. NO WARRANTY. Lessee has selected both shipment and the supplier thereof.
Lessor, not being the manufacturer of the equipment, nor manufacturer's
agent, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
FITNESS FOR A PARTICULAR USE OR OTHERWISE, QUALITY, DESIGN, CONDITION, CAPACITY,
SUITABILITY, MERCHANTABILITY OR PERFORMANCE OF THE EQUIPMENT OR OF THE MATERIAL
OR WORKMANSHIP THEREOF, IT BEING AGREED THAT THE EQUIPMENT IS LEASED "AS IS" AND
THAT ALL SUCH RISKS, AS BETWEEN THE LESSOR AND THE LESSEE, ARE TO BE BORNE BY
THE LESSEE AT ITS SOLE RISK AND EXPENSE. Lessee accordingly agrees not to assert
any claim whatsoever against the Lessor based thereon. In addition, Lessee
waives any and all rights and remedies conferred by ▇▇▇ ▇▇-▇▇▇ through 2A-522,
including, but not agreed to, the Lessee's right to (a) cancel or repudiate the
lease; (b) reject or revoke acceptance of the Leased property; (c) deduct from
rental payments all or any part of any claimed damages resulting from the
Lessor's default under the Lease; (d) recover from the Lessor any general,
special, incidental, or consequential damages, for any reason whatsoever. Lessee
further waives any and all rights, now or hereafter conferred by statute or
otherwise, that may require the Lessor to sell, re-lease, or otherwise use or
dispose of the Leased property in mitigation of the Lessor's damages or that may
otherwise limit or modify any of the Lessor's rights or remedies hereunder.
7. TERM. The initial term of this lease is set forth on the first page of
this lease agreement. The term begins upon which of the following dates is
earlier: (a) the date Lessee requests Lessor to make payment to the Supplier;
or (b) the Acceptance Date as indicated on the Inspection/Verification
Certificate.
8. LEASE PAYMENT-SECURITY DEPOSIT. The lease payments for the equipment
leased shall be in the amount designated in the schedule of payments and shall
commence on the indicated payment due date immediately following the equipment
acceptance date. Lessee shall pay Lessor said lease payments on or before the
due date and at the office of Lessor or to such other person or place as Lessor
may designate in writing Lessee agrees to pay pro rata rental (based on the
monthly lease payments) for the period from the Acceptance Date, indicated on
the Inspection/Verification Certificate, to the due date of the first payment.
Said pro rate rental shall be in addition to the first payment and shall be
made simultaneously with the first payment. Prepayments are credited with one
payment being applied to the first month's rental and any other prepayment(s)
are applied to the last month('s) rental(s). The security deposit as designated
in the Lease shall remain as security for performance of the terms and
conditions of the Lease and shall remain with the Lessor until termination of
the Lease, absent breach of any terms of the Lease by Lessee unless otherwise
agreed to in writing by both parties.
9. LATE CHARGES AND COLLECTION CHARGES. A late charge of 10% of the total
monthly lease payment, or $10, whichever is greater, will be assessed when a
payment is not received within 10 days of the due date. An additional late
charge will be assessed for each month a payment remains unpaid. If Lessee's
delinquency requires additional collection efforts, a charge will be assessed
in accordance with Lessor's collection charge schedule.
10. LOCATION AND USE OF EQUIPMENT. Lessee shall keep the equipment at the
location designated in the Lease, unless lessor in writing permits its removal.
Said equipment shall be used solely in the conduct of Lessee's business and
Lessee warrants that property leased is for commercial or business purposes and
not for consumer, personal, home or family purposes.
11. ARBITRATION. Any controversy or claim arising out of this lease or the
breach thereof may at the option of the Lessor be settled by arbitration in
accordance with the LAWS OF THE STATE OF WASHINGTON and judgment upon the award
rendered by the arbiter(s) may be entered in any court having jurisdiction
thereof. Arbitration shall be held in the City of Tacoma, State of Washington.
12. SURRENDER OF EQUIPMENT. At the expiration of this lease, or upon demand
by Lessor pursuant to Paragraph 19 of this lease, Lessee at its expense shall
return the equipment in proper working order, condition and repair by
delivering it packed and ready for shipment to such place or on board such
carrier as Lessor may specify. WARNING: FAILURE TO PROMPTLY RETURN THE LEASED
PROPERTY MAY RESULT IN CRIMINAL PROSECUTION AND/OR ADDITIONAL RENTAL CHARGES ON
A MONTH TO MONTH BASIS UNTIL THE EQUIPMENT IS RECOVERED BY THE LESSOR.
13. NOTICES. Services of all notices under this agreement shall be
sufficient if given personally or mailed to Lessor at 3901 Plaza, 3901 ▇. ▇▇▇▇
St., P.O. Box 11309, Tacoma, Washington, 98411-0309, or to Lessee at Lessee's
last known address or at such other address as a party may provide in writing
from time to time. Any such notice mailed to such address shall be effective
when deposited in the United States mail duly addressed and postage prepaid.
14. LIABILITY AND INDEMNITY-LOSS AND DAMAGE. Lessee shall indemnify and hold
Lessor harmless from any and all injury to or loss of the equipment from
whatever cause, and from all liability arising out of the manufacture,
selection, operation, use, maintenance, or deliver thereof, including
attorney's fees. In the event of loss or damage of any kind whatsoever to the
equipment, or to any part thereof, Lessee, at the option of the Lessor, shall
(a) Replace the same in good condition, repair and working order; or (b)
Replace the same, with like property of the same or greater value: provided,
however, at Lessee's option, the remaining obligation of the lease can be
satisfied by the payment of the remaining unpaid lease payments and the
estimated value of the equipment at the expiration of the lease, and other
amounts due under the lease, less the net amount of the recovery, if any,
actually received by the Lessor from insurance or otherwise for such loss or
damage. Lessor shall not be obligated to undertake by litigation or otherwise
the collection of any claim against any person for loss or damage of the
equipment. Except at expressly provided in this paragraph, total or partial
destruction of any equipment or total or partial loss of use or possession
thereof to Lessee shall not release or relieve Lessee from the duty to pay the
lease payments herein provided.
15. INSURANCE. Lessee, at its own expense, shall keep said equipment insured
for the full term of this lease and any renewals or extensions thereof, for the
full insurable value thereof against all risks of loss or damage, and against
such other risks in such amounts as Lessor may specify, including liability
insurance, with limits not less than $500,000 (bodily injury and property
damage) combined single limit. Provided, however, in those instances where
Lessee is leasing equipment defined by Lessor as "mobile equipment," Lessee
shall procure and maintain, for the full lease term, all risk physical damage
insurance as opposed to insurance against fire and theft, with extended or
combined coverage. All insurance policies must provide that no cancellation
shall be effective without thirty (30) days' prior written notice to Lessor.
Lessee shall deliver to Lessor the policies or evidence of insurance with a
standard form of endorsement attached thereto showing Lessor to be named as an
additional insured, together with receipts for the premiums thereunder, Lessee
shall, at the request of Lessor, name as Loss Payee such party who may have a
security interest in the equipment.
16. LESSEE'S FAILURE TO PAY TAXES, INSURANCE, ETC. Should Lessee fail to make
any payment or do any act as herein provided, then Lessor shall have the right,
but not the obligation, without notice to or demand upon Lessee, and without
releasing Lessee from any obligation hereunder, to make or do the same and to
pay, purchase, contest, or compromise any encumbrance, charge or lien which in
the judgment of Lessor appears to affect the equipment, and in exercising such
rights, incur any liability and expend whatever amounts in its absolute
discretion it may deem necessary therefore. Should Lessee fail to provide Lessor
the policies or evidence of insurance described herein, Lessee shall be assessed
as to Lessor's purchase of insurance and also agrees that a charge therefore
will be paid by the Lessee. All sums so incurred or expended by Lessor shall be
without demand immediately due and payable by Lessee and shall bear interest at
eighteen Percent (18%) per annum if not prohibited by law, otherwise at the
highest lawful contract rate.
17. OWNERSHIP. The equipment is and shall be at all times the sole and
exclusive property of Lessor. This lease and the equipment described herein may
be subject to a preexisting security agreement in favor of a bank or another
financial institution.
18. AUTHORITY TO SIGN. If Lessee is a partnership or corporation, the person
signing the Lease on behalf of such partnership or corporation hereby warrants
that (s)he has full authority from the partnership or corporation to sign this
lease and obligate the partnership or corporation.
CONTINUED ON FOLLOWING PAGES
PAGE 2 OF 4 PAGE LEASE AGREEMENT
3
19. DEFAULT-REMEDIES.
a) An event of default shall occur if:
(1) Lessee fails to pay any Lease installment and such failure continues for
a period of ten (10) days;
(2) Lessee shall fail to perform or observe any covenant, condition or
obligation to be performed or observed by it hereunder and such failure
continues uncured for fifteen (15) days;
(3) Lessee becomes insolvent or makes an assignment for the benefit of
creditors;
(4) Lessee applies for or consents to the appointment of a receiver, trustee
or liquidator of Lessee, or of all or a substantial part of the assets of
Lessee, or if such receiver, trustee or liquidator is appointed without the
application or consent of Lessee, or to the extent permitted by law, if a
petition is filed by or against the Lessee under the bankruptcy act, or any
amendment thereto (including without limitation a petition for reorganization,
arrangement or extension) or under any other insolvency law or law providing for
relief of debtors;
(5) Lessee attempts to remove, sell, transfer, encumber, part with possession
or sublet the equipment or any item thereof. Lessee agrees it will not replace
or substitute the equipment described herein for any reason whatsoever without
first obtaining Lessor's consent. Failure to obtain Lessor's consent will
constitute a default on part of the Lessee. Further, the term "equipment" shall
include any and all replacement or substituted equipment, whether or not such
replacement or substitution occurred with Lessor's consent.
b) Upon the occurrence of an event of default, Lessor shall have the right to
exercise any one or more of the following remedies:
(1) To declare the entire unpaid lease payments and other sums payable by
Lessee hereunder to be immediately due and payable;
(2) Cause Lessee, at Lessee's expense, promptly to return any or all of the
equipment to Lessor, all without demand or legal process, and to allow Lessor
to enter into the premises where the equipment may be found and take possession
of or remove the same, whereupon all rights of the Lessee in the equipment shall
terminate absolutely; and
(i) Retain the equipment and all lease payments made hereunder; or
(ii) Retain all prior lease payments and sell the equipment at public or
private sale, with or without notice to Lessee. The sale price, less 10% for
selling costs, will be credited against the remaining unpaid lease payments,
unpaid late charges, estimated value of equipment at the expiration of the
lease, charges for retaking, storage, repairing and reselling the equipment,
reasonable attorney's fees incurred by the Lessor and other amounts due under
the lease. The Lessee shall remain liable for the deficiency and any surplus
remaining after such application of proceeds of sale shall be paid to the
Lessee, or to whosoever may be lawfully entitled to receive the same; or
(iii) Retain the equipment and all prior payments, with the Lessee
remaining liable for the unpaid lease payments, unpaid late charges, charges
for retaking and restoring equipment to proper order and working condition,
reasonable attorney's fees incurred by Lessor, together with other amounts due
under the Lease; or
(iv) Lease the equipment, or any portion thereof, for such period,
rental, and to such persons as Lessor shall select, and credit Lessee with an
amount equal to Lessor's capital cost of this new lease, less ten percent (10%)
after declaring all costs and expenses incurred in connection with the
recovery, repair, storage and leasing of the equipment in payment of the lease
and other obligations due from Lessee to Lessor hereunder, Lessee remaining
responsible for any deficiency. It is agreed that the amounts to be retained by
the Lessor and the balance to be paid by the Lessee under this paragraph (2)
shall not be a penalty but shall be as and for liquidated damages for the breach
of this lease and as reasonable return for the use of the equipment and for the
depreciation thereof.
(3) Lessor may pursue any other remedy at law or in equity.
(4) No remedy hereon conferred upon or reserved to Lessor is intended to be
exclusive of any other remedy herein or by law provided, but shall be
cumulative and in addition to every other remedy available to Lessor.
20. ATTORNEY'S FEES AND EXPENSE. In the event the Lessor is required to retain
an attorney to assist in the enforcement of its rights under this lease
agreement, it shall be entitled to a reasonable attorney's fee, in addition to
costs and necessary disbursements, whether or not suit becomes necessary.
21. MAINTENANCE AND REPAIR. Lessor shall not be obligated to install, erect,
test, adjust, service or make repairs or replacements to the equipment. Lessee
shall not incur for Lessor's account or liability any expense therefore without
Lessor's prior written consent. Lessee shall bear the expense of all necessary
repairs, maintenance, operation, and replacements required to be made to
maintain the equipment in proper working condition, reasonable wear and tear
excepted.
22. OPERATION OF EQUIPMENT. Lessee shall cause the equipment to be operated by
competent employees only, and shall pay all expenses of operation. Lessee shall
comply with all laws and regulations relating to ownership, possession,
operation, use and maintenance of the equipment. Lessee shall hold Lessor
harmless from any and all actual or asserted violations of the aforesaid
covenant.
23. TAXES. Lessee shall pay and discharge all sales, use, property and other
tax or taxes now or hereafter imposed by any state, federal or local government
upon the equipment based upon the ownership, leasing, renting, sale, possession
or use thereof, whether the same be assessed to Lessor or Lessee, together with
any penalties or interest in connection therewith, and will, from time to time,
on request of Lessor, submit written evidence of the payment of all the
governmental obligations mentioned in this paragraph. The Lessor will, on any
property tax returns required to be filed by it, include the property covered
by this lease or any substitution or additions thereto as property in the
possession of Lessee for purposes of tax assessments.
24. LESSOR'S ASSIGNMENT. Lessor may assign the lease payments reserved herein or
all or any of Lessor's other rights hereunder. After such assignment, Lessee
waives any right Lessee may have to claim or assert any defenses, setoffs or
counterclaims against assignee of the Lessor. Lessee will settle all claims
arising out of alleged breach of warranties, defenses, setoffs and counterclaims
it may have against Lessor directly with Lessor and not set up any such against
Lessor's assignee. An assignee of Lessor shall not be obligated to perform any
of Lessor's obligations under this lease. Lessee, on receiving notice of any
such assignment, shall abide thereby and make payment as may therein be
directed. Following such assignment, solely for the purpose of determining
assignee's rights hereunder, the term Lessor shall be deemed to include or refer
to Lessor's assignee. Lessee acknowledges that the equipment may be subject to a
security interest which is prior to Lessee's interest in the equipment.
25. PERSONAL PROPERTY. The equipment is, and shall at all times be and remain,
personal property notwithstanding that the equipment or any part thereof may
now be, or hereafter become, in any manner affixed or attached to, or imbedded
in, or permanently resting upon, real property or any building thereon, or
attached in any manner to what is permanent as by means of cement, plaster,
nails, bolts, screws or otherwise. Lessee shall obtain the necessary permission
from the owner of any real property where the equipment is to be affixed to the
realty or be deemed a fixture in order that said leased property shall at all
times be severable and removable therefrom by the Lessor, free of any right,
title, claim or interest of the property owner and of the Lessee except as
herein provided. The equipment shall at all times remain the property of Lessor.
26. LESSOR'S ENCUMBRANCE. In the event Lessor defaults in the payment of any
sum to be paid to any conditional sales contract, chattel mortgage or purchase
money security agreement, Lessee may pay the lease payment to the holder of
said encumbrance after notice of default, and to the extent thereof such
payment shall constitute payment of the lease payment to Lessor.
27. FINANCIAL STATEMENTS. The Lessor may require from time to time, and Lessee
agrees to furnish, statements setting forth the current financial condition and
operations of Lessee.
28. MISCELLANEOUS. Lessee will not change or remove any insignia or lettering on
the equipment and shall conspicuously identify each item of the leased equipment
by suitable lettering thereto to indicate Lessor's ownership. All transportation
charges shall be borne by Lessee. Lessee waives all rights under all exemption
laws. Lessee admits the receipt of a true copy of this lease. This lease is
irrevocable for the full term hereof and for the aggregate lease payments herein
reserved, and the lease payments shall not ▇▇▇▇▇ by reason of termination of
Lessee's right of possession and/or the taking of possession by Lessor or for
any other reason. Delinquent lease installments and other sums due under this
lease shall bear interest at eighteen percent (18%) per annum if not prohibited
by law, otherwise at the highest lawful contract rate. Lessee gives Lessor
permission to give credit reporting agencies, creditors and potential creditors
information relating to any credit Lessor may grant Lessee. Lessor, at its
option may utilize this lease as a UCC financing statement for filing purposes.
Lessee grants to Lessor a specific power of attorney for Lessor to use to sign
and file on Lessee's behalf any document Lessor deems necessary to perfect or
protect Lessor's interest in the equipment or pursuant to the Uniform Commercial
Code. If Lessor is required by law to discount any unpaid lease payment or other
sums payable by Lessee hereunder, then the parties hereto agree that the
discount rate used shall be five percent (5%) annually. If any provision of this
Lease is held to be contrary to law, such provision shall be disregarded and the
remainder of this agreement shall be enforceable according to its terms.
CONTINUED ON FOLLOWING PAGES PAGE 3 of 4 PAGE LEASE AGREEMENT
4
GUARANTEE
To induce Lessor to enter into a Lease with Interactive Telesis, Inc.
("Lessee"), the undersigned Guarantor unconditionally guarantees to Lessor the
prompt payment when due of all Lessee's obligations to Lessor under the lease.
Lessor shall not be required to proceed against the Lessee or the equipment or
enforce any other remedy before proceeding against the undersigned. The
undersigned waives notice of acceptance hereof and all other notices or demand
of any kind to which the undersigned may be entitled. The undersigned consents
to any extensions or modifications granted to Lessee and the release and/or
compromise of any obligations of Lessee or any other obligors and guarantors
without notice and without in any way releasing the undersigned from his or her
obligations hereunder. Guarantor waives any right to require Lessor to apply
payments in a certain manner and acknowledges that Lessor may apply payments
received in the fashion most advantageous to the Lessor. Furthermore, Guarantor
waives any and all claims against the Lessee, by subrogation or otherwise,
until such time as Lessee's obligations to Lessor are fully and finally
satisfied. This is a continuing guarantee and shall not be discharged, impaired
or affected by death of the undersigned or the existence or nonexistence of the
Lessee as a legal entity. This continuing Guarantee shall bind the heirs,
administrators, representatives, successors and assigns of undersigned and may
be enforced by or for the benefit of any assignee or successor of Lessor.
The provisions of this Lease Guarantee shall extend to and apply to all the
obligations of the Lessee under all lease agreements executed by Lessee for the
benefit of Lessor, whether executed before or after the date of this guarantee,
and whether set forth in separate lease agreements, schedules, applications,
orders or collateral documents (all of which shall be referred to herein, both
individually and collectively, as the "Lease Agreement"). The execution of this
Lease Guarantee shall not extinguish, release or waive any obligations,
promises, or guarantees contained in any Lease Guarantees previously executed
by Guarantor for the benefit of the Lessor. The undersigned agrees to pay a
reasonable attorney's fee, and all other costs and expenses incurred by the
Lessor or its successors or assigns in the enforcement of the Guarantee,
whether or not a lawsuit is started.
If Guarantor resides in a Community Property state, any married person signing
this Lease Guarantee warrants that he or she has the authority to bind and
obligate his or her marital community and that by signing, his or her marital
community is obligated hereunder. Further, by signing this Guarantee it is
agreed that recourse may be against both his or her separate property and the
property of his or her marital community on account of all of his or her
obligations hereunder.
LAW WHICH APPLIES
THIS AGREEMENT IS GOVERNED BY WASHINGTON LAW. GUARANTOR CONSENTS TO THE
PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF WASHINGTON AND AGREES NOT
TO CLAIM THAT ▇▇▇▇▇▇ COUNTY, WASHINGTON IS AN INCONVENIENT PLACE FOR TRIAL. AT
LESSOR'S SOLE OPTION, JURISDICTION AND VENUE (LOCATION) FOR ANY DISPUTE, SUIT
OR ACTION ARISING UNDER OR IN RELATION TO THIS AGREEMENT, AND ALL DOCUMENTS
EXECUTED IN CONNECTION THEREWITH, SHALL BE IN ▇▇▇▇▇▇ COUNTY, STATE OF
WASHINGTON. GUARANTOR WAIVES THE RIGHT OF JURY TRIAL. LESSOR SHALL HAVE THE
OPTION OF COMMENCING AN ACTION IN ANY COURT HAVING JURISDICTION OVER THE
SUBJECT MATTER AND PARTIES TO THE TRANSACTION.
WHOLE AGREEMENT
This Guarantee contains the entire understanding between Lessor and Guarantor.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (No Title) (No Title)
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Date 5-10-00 Date
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Home Phone # X ▇▇▇ ▇▇▇-▇▇▇▇ Home Phone #
----------------------------------- --------------------------------------
(No Title) (No Title)
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Date Date
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Home Phone # Home Phone #
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DELIVERY AND ACCEPTANCE AUTHORIZATION
Lessee's signature authorizes Lessor to verify by phone with a representative
of Lessee the date the Equipment was accepted by the Lessee; the Equipment
description, including the serial numbers; the schedule of lease payments; that
all necessary installation has been completed; that the Equipment has been
examined by Lessee and is in good operating order and condition and is in all
respects satisfactory to Lessee and that Equipment is accepted by Lessee for
all purposes under this Lease. This information will be recorded on an
Inspection/Verification Certificate, a copy of which will be forwarded to
Lessee upon completion by Lessor. Lessee hereby authorizes Lessor to either
insert or correct the Lessor and/or Vendor name(s), Equipment description,
Equipment location and schedule of Lease payments. Lessee hereby authorizes
Lessor to make payment to the Vendor upon completion of the
Inspection/Verification Certificate.
LESSEE INTERACTIVE TELESIS, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ President & Individually Date 5-10-00
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title
PAGE 4 OF 4 PAGE LEASE AGREEMENT
5
EQUIPMENT LIST
LEASE NO.: 194478.02
LEASE DATE: 5-23-00
QUANTITY DESCRIPTION
-----------------------------------------------------------------------------
6 DELL DIMENSION XPS T600MHZ PENTIUM III MINITOWER BASE W/MMX
TECHNOLOGY & 256K CACHE
6 MS INTELLIMOUSE
6 256MB, SDRAM MEMORY, 1 DIMM
6 48X MAX VARIABLE, CD ROM
6 VIDEO READY OPTION W/O MONITOR
6 8MB ATI XPERT 98DD 3D AGP GRAPHICS CARD
6 3.5, FLOPPY DRIVE
6 10 GB ULTRA ATA HARD DRIVE, 7200RPM
6 INTERNET EXPLORER, 5.0., CD WITH DOCUMENTATION US ENGLISH, OEM
6 STO-ONLINE, OEM, ENGLISH
6 NORTON ANTIVIRUS 2000, VERSION 5.0 WITH CD & DOCUMENTATION
ENGLISH
6 3COM US ROBOTICS 3C905C-TXM 10/100 REMOTE WAKEUP NIC
6 MS OFFICE SBE 2000, CD WITH DOCUMENTATION, US ENGLISH, OEM
PACKAGE
6 MS BOOKSHELF 2000, CD & DOCS, ENGLISH,
SYSTEM TAGS ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
1 25GB, 2ND HARD DRIVE WITH CARRIER, MEGA BAY, INSPIRON 7500
Lessor: Lessee:
MEDIA CAPITAL ASSOCIATES, LLC INTERACTIVE TELESIS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Operations Mgr. Its: President & Individually
------------------------ -------------------------
Date: 5-19-00 Date: 5-10-00
------------------------ -------------------------
Page 1 of 3
6
EQUIPMENT LIST
LEASE NO.: 194478.02
LEASE DATE: 5-23-00
QUANTITY DESCRIPTION
-----------------------------------------------------------------------------
4 INSPIRION 7500, 600MHZ, PENTIUM III W/SPEED STEP, 15.4 SUPER XGA
4 NYLON CASE, 15.4, INSPIRION 7500 5000
4 PASS THROUGH PORT REPLICATOR, INSPIRON 7500
4 128MB SDRAM, 1 DIMM, INSPIRON 3700/3800
4 XIRCOM REALPORT 10/100 + 56K COMBO PC CARD, TYPE III
4 32X CD ROM/FLOPPY COMBO, INSPIRON 7500
4 2X AGP 8MB ATI RAGE MOBILITY (TM TRADEMARK) P 3D VIDEO
4 12GB HARD DRIVE, 9.5MM, INSPIRON 7500
4 STO-ONLINE VIDEO, OEM ENGLISH, NO MEDIA FOR WINDOWS 98/NT 4.0
4 INTERNET EXPLORER, 4.01, SP2, US ENGLISH, NO KIT, ORIGINAL
EQUIPMENT MANUFACTURER
4 NORTON ANTIVIRUS 2000, VERSION 5.0 WITH CD & DOCUMENTATION,
ENGLISH
4 WINDOWS NT, SERVICE PACK 5, SOFTWARE, INSPIRON 7500, CD
ENGLISH
4 MS OFFICE SBE 2000, CD WITH DOCUMENTATION, US ENGLISH, OEM
PACKAGE
4 MS OFFICE INTERNET EXPLORER 5.0 FOR OFFICE 2K APPS ONLY, US
ENGLISH
4 MS BOOKSHELF 2000, CD & DOCS, ENGLISH
SYSTEM TAGS Y64Q9, ▇▇▇▇▇, ▇▇▇▇▇, Y61K7
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇▇ PROCESSOR W/256K CACHE,
1 DELUXE WINDOWS KEYBOARD FOR DELL POWEREDGE SERVERS
Lessor: Lessee:
MEDIA CAPITAL ASSOCIATED, LLC INTERACTIVE TELESIS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Operations Mgr. Its: President & Individually
------------------------ -------------------------
Date: 5-19-00 Date: 5-10-00
------------------------ -------------------------
Page 2 of 3
7
EQUIPMENT LIST
LEASE NO.: 194478.02
LEASE DATE: 5-23-00
QUANTITY DESCRIPTION
-----------------------------------------------------------------------------
1 2 EACH POWER SUPPLIES, 330W, 2U, DOMESTIC, REDUNDANT, FOR DELL
POWEREDGE 2450
1 RACK CABLE MANAGEMENT ARM, FOR DELL POWEREDGE 2450, 2U, WATT
1 TERMINATOR CARD FOR DELL POWEREDGE 2400
1 256MB, SDRAM, 133 MHZ, 2X128MB, DIMMS FOR DELL POWER EDGE 2400 EA
1 COMPACT DISK DRIVE 680M, IDE, INTERNAL, NO CONTROLLER/NO CABLES,
BLACK, FOR DELL PE2450
1 HARD DRIVE CONFIGURATION #3, MR1/N FOR DELL POWEREDGE 2450
1 1.44MB, 3.5 FLPPY DRIVE, FOR DELL POWEREDGE SERVERS
1 9GB U160M SCSI SMART HARD DRIVE, 1" 100000RPM FOR DELL POWEREDGE
2450
1 9GB U160M SCSU SMART HARD DRIVE, 1" 100000RPM FOR DELL POWEREDGE
2450
1 EMBEDDED RAID W/SOFTWARE FOR POWEREDGE 2450
1 MICROSOFT NTS. 4.0 ON CD, 10 CLIENT ACCESS LICENSES OEM
PACKAGING, US VERSION
1 2 EADH INTEL PRO 100 PLUS ETHERNET NETWORK CARDS, V3, 1 FOR DELL
POWEREDGE 4300/6300
Lessor: Lessee:
MEDIA CAPITAL ASSOCIATES, LLC INTERACTIVE TELESIS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Operations Mgr. Its: President & Individually
------------------------- -------------------------
Date: 5-19-00 Date: 5-10-00
------------------------- -------------------------
Page 3 of 3
8
EQUIPMENT LIST
LEASE NO.: 194478.02
-----------------------
LEASE DATE: 5-23-00
-----------------------
Quantity Description
DISCLAIMER AS TO USED EQUIPMENT
DISCLAIMER. (a) Lessee leases the Equipment as descried in the above lease "as
is" and expressly acknowledges that some or all of the equipment is used and
not new. Lessor, NOT BEING THE VENDOR OF THE EQUIPMENT, NOR THE VENDOR'S AGENT,
MAKES TO LESSEE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OF
MERCHANTABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE CONDITION,
SAFENESS, USABILITY, REPAIR OR DESIGN OF THE EQUIPMENT OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP
IN THE EQUIPMENT; THAT THE EQUIPMENT WILL SATISFY THE REQUIREMENTS OF ANY LAW,
RULE SPECIFICATION OR CONTRACT PERTAINING THERETO; AND ANY GUARANTY OR WARRANTY
AGAINST PATENT INFRINGEMENT OR LATENT DEFECTS. (b) Lessor is not responsible or
liable for any direct, indirect, incidental or consequential damages or losses
resulting from any cause whatsoever, including but not limited to, breach of
warranty; the installation, operation or use of the equipment or any products
manufactured thereby; or delay or failure to deliver any item of Equipment.
Lessee agrees to settle all such claims directly with Vendor and will not set
up against (Lessee's obligations to Lessor any such claims as defense,
counterclaim, setoff, or otherwise. A FACSIMILE OF THIS AGREEMENT WITH
SIGNATURE SHALL BE CONSIDERED TO BE AN ORIGINAL.
LESSOR: LESSEE:
Media Capital Associates Interactive Telesis, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ -----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Operations Mgr Its: President & Individually
----------------------------- ----------------------------
Date: 5/19/00 Date: 5/10/00
---------------------------- ---------------------------
Page 4 of 4
9
From: Interactive Telesis, Inc. Date: 5-23-00
▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇ Lease Number: 194478.02
To: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Ext. 118
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Greetings:
We have entered into a lease agreement with _____________________________
with a value of $36,574.30.
Equipment:
--------------------------------------------------------------------------------
Quantity Type, Make, Model & Serial Number
SEE ATTACHED EQUIPMENT LIST
Equipment Location:
This is a Lease Agreement and we are responsible for the insurance cost. Please
see that we have immediate coverage and notify ________________________________
at once in the form of a copy of the insurance policy or a Certificate of
Insurance. If the latter is sent, please include therein the standard 10 day
notice of cancellation clause.
[XX] PHYSICAL DAMAGE: Insurance is to be provided for fire, theft, extended
coverage, vandalism and malicious mischief for the full value of the
equipment. _________________________ is to be named as Loss Payee, as its
interests may appear.
[XX] LIABILITY: Coverage should be written with minimum limits of $500,000
(bodily injury and property damage) combined single limit.
____________________ is to be named as Additional Insured and
Loss Payee.
[ ] TITLED VEHICLE LIMITS: The minimum limits for each vehicle lease
shall be:
POWER UNIT TRAILER
----------- -----------
Bodily injury liability per individual $500,000.00 $300,000.00
Bodily injury liability per accident $500,000.00 $300,000.00
Property Damage liability $250,000.00 $250,000.00
Fire, Theft, and Comprehensive Full Full
Thank you,
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
10
CORPORATE RESOLUTION FOR LEASING
AND OTHERWISE DEALING WITH
MEDIA CAPITAL ASSOCIATES, LLC
Resolution of Interactive Telesis, Inc.
RESOLVED that any 1 of the officers, employees,
--------------------------------
(number of signatures required)
and agents listed below are authorized to take the following actions in the
name of and on behalf of this corporation.
1. To lease from Media Capital Associates, LLC (Lessor) such equipment or other
personal property for such sum or sums said partner(s), employee(s), or agent(s)
deem necessary;
2. To sign and deliver all leases and related documents, including any notes or
other evidences of indebtedness as may be requested by the Lessor.
"RESOLVED further that, except as indicated above, each one of the partners,
employees, and agents of this corporation listed below is conferred with a
general authority to deal on behalf of and in the name of this corporation with
the Lessor, without specifically enumerating them herein."
"RESOLVED further that the following are the true and correct signatures and
designations of the officers, employees and agents referred to above".
NAMES SIGNATURES TITLES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ President
------------------- ------------------- -------------------
------------------- ------------------- -------------------
------------------- ------------------- -------------------
------------------- ------------------- -------------------
"RESOLVED further that this resolution shall continue in force until notice in
writing of its revocation shall be given to and received by the Lessor at the
address indicated above."
We, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , the President,
--------------------- ---------------------
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ , the Secretary,
--------------------- ---------------------
of the above named corporation do hereby certify that the foregoing is a full,
true, and correct copy of a resolution adopted by the Board of Directors of said
corporation.
(1) At a meeting duly and regularly called at which a quorum was present and
voted held on 5-9-00,
------
or
(2) By the undersigned Directors, constituting the entire Board of Directors of
the corporation, who by their signatures hereto adopt and consent to such
resolution and that if adopted without a meeting of the Board of Directors that
the Articles and Bylaws of the corporation do not prevent action by the Board
of Directors without a meeting; and that said resolution has not been altered,
amended or revoked.
5-10-00 ,
------------------------- ------
Date
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Secretary
Sign only if action is by director's consent.
Signed and sealed (if necessary) with seal of the corporation.
(Seal of Corporation not necessary for Washington Corporations.)
