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EXHIBIT 10.33
COMMERCIAL LEASE AGREEMENT
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LESSOR: LESSEE:
SANTA ▇▇▇▇▇▇▇ BANK & TRUST INTERACTIVE TELESIS, INC.
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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EQUIPMENT LOCATION: (If other than Billing Address of Lessee)
_____________________________________________________________
EQUIPMENT DESCRIPTION: as described on addendum attached hereto and made a
part hereof
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LEASE TERM: RENTAL: SECURITY DEPOSIT: FEES:
36 Months @ $1,438.40 $ Documentation Fee: $0.00
+ Tax $ Filing Fee: $0.00
Total Rental: $1,438.40 _________________________ Other: $0.00
First and Last 2 Rentals -- $2,876.80 (Less amounts already received): $
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TOTAL FEES $0.00
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CHECK IN THE AMOUNT OF $2,876.80 MUST ACCOMPANY COMPLETED LEASE.
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THIS LEASE IS A NON-CANCELABLE FINANCE LEASE
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1. AGREEMENT TO LEASE. Lessor agrees to lease to Lessee, and Lessee agrees
to lease from Lessor, subject to the terms of this Lease Agreement and any
schedules or addenda attached hereto, the personal property identified above or
in the attached schedules or addenda. Lessor may insert in this Lease the serial
numbers, and other identification data, of the leased equipment when determined
by Lessor. The equipment shall be installed at, and shall not be removed from
the equipment location identified above without Lessor's written consent.
Equipment required to be registered under applicable state vehicle laws shall
not be removed from the state of registration without Lessor's written consent.
The lease term shall commence upon the date accepted by the authorized signature
of Lessor, as evidenced below. This Lease shall have no effect prior to such
acceptance. This Lease is not subject to cancellation for any reason other than
Lessor's failure or inability to acquire the leased equipment. In that event
both parties shall be released herefrom, and Lessor shall return any advance
payments received from Lessee, less actual expenses paid to third parties such
as appraisers and title companies, and neither party shall have any liability
for consequential or other damages.
2. STATUS OF PARTIES. WARRANTIES AND DEFENSES. This is a finance lease
[I.C.C. Section 10103(g.7)]. Lessee has selected the leased equipment
manufacturer and supplier. Lessor has not manufactured or supplied the leased
equipment but is acquiring the name or the right to possession and use of the
same solely in connection with this Lease, and the request of Lessee. Lessee
acknowledges that Lessee has received a copy of the contract evidencing Lessor's
purchase of the leased equipment, or a list of the suppliers with notice that
Lessee may have rights thereunder and advice to contact such suppliers for a
description of such rights.
LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASED
EQUIPMENT. LESSOR MAKES NO WARRANTY THAT THE LEASED EQUIPMENT WILL BE FIT FOR A
PARTICULAR PURPOSE. LESSOR MAKES NO WARRANTY OF MERCHANTABILITY.
Lessee's sole remedy in the event of a claimed breach of warranty or other
defect in or failure of the leased equipment shall be in accordance with such
manufacturer's or supplier's warranty. Lessee covenants not to assert any claim
against Lessor on account of any alleged defect or failure of the leased
equipment, and Lessor may not withhold or fail to pay any installments due to
Lessor hereunder.
3. PAYMENT. Lessor acknowledges receipt of the advance payment described
above. Such sum shall be held by Lessor as security for the performance of the
terms of this Lease. Should Lessee commit an anticipatory breach by repudiating
this Lease prior to Lessor's acquisition of the leased equipment, the advanced
deposit shall be applied to reduce Lessor's damages, and if Lessor has not
become legally obligated to complete the acquisition of the leased equipment,
then such sum shall be retained by Lessor as liquidated damages. Lessee promises
and agrees to pay all rental installments on the date designated by Lessor and
to pay such other charges as are herein provided. Payment shall be payable at
the office of Lessor, or such other person and/or at such other place as Lessor
may from time to time designate in writing. Lessor may apply remittances
received to unpaid rental installments and/or charges on due date basis,
remittance received being applied to the oldest unpaid rental installment or
charge.
4. FINANCIAL AND EQUIPMENT CONDITION. Lessor may inspect the equipment at
any time, and Lessee agrees to keep it in good condition and repair at Lessee's
expense and place the same in suitable shelter, and not to sell or otherwise
dispose of the equipment or any accessories attached thereto. Lessee shall cause
the equipment to be maintained and serviced in accordance with the
recommendations of the manufacturer. Lessee agrees to furnish Lessor upon
request current financial statements reflecting the Lessee's financial status
during the term of the Lease.
5. OWNERSHIP. No title or right in said equipment shall pass to Lessee
except the rights herein expressly granted. Plates or other markings may be
affixed to or placed on said equipment by Lessor or at Lessor's request by
Lessee at Lessee's expense, indicating the Lessor is the owner thereof, and
Lessee will not remove the same. Upon the termination of the initial lease
period, Lessee will immediately crate, insure, and ship the equipment and
operating manuals to whatever destination Lessor shall direct, all at Lessee's
expense, in as good condition as received less normal wear and tear, said
destination to be confirmed by Lessee prior to shipment. Lessee agrees to pay
Lessor monthly rent at the rate specified for the initial term for any month or
part thereof from the end of the initial term until the equipment is received by
Lessor. Said equipment shall always remain and be deemed personal property even
though attached to realty. Lessee shall maintain each unit of equipment so that
it may be removed from the building in which it is placed without damage to the
building. All replacements, accessories, or capital improvements made to or
placed in or upon said equipment shall become component parts thereof and title
thereto shall immediately vest in Lessor and shall be included under the terms
hereof. The Lessee agrees that the Lessor is authorized, at its option, to file
financing statements or amendments thereto without the signature of the Lessee
with respect to any or all of the lease property and, if a signature is required
by law, then the Lessee appoints Lessor as Lessee's attorney-in-fact to execute
any such financing statements and further agrees to pay the Lessor a
documentation fee to cover the expense of making such filing(s). Lessee further
agrees to itself execute such documents and take such action, as Lessor may
request to protect Lessor and carry out the intent of this agreement. Upon the
request of Lessor, Lessee shall obtain a waiver of interest from any owner or
encumbrancer of the real property on which the equipment shall be installed or
located, waiving any claim of interest in the leased equipment and consenting to
its removal upon the expiration or sooner termination of this Lease.
6. EXPIRATION OF LEASE. At the expiration of the base term stated herein,
this lease shall continue on a month-to-month basis, and Lessee shall continue
to pay the monthly rent hereunder, until this lease is terminated by (1)
delivery of the leased equipment to Lessor as provided in Paragraph 5 or (2)
Lessee's exercise of any purchase option or purchase agreement and payment of
the purchase price under such option or agreement.
7. ASSIGNMENT. Lessor may assign this Lease, and its assignee may further
assign this Lease, without notice to or consent of the Lessee. Any such assignee
shall succeed in all rights of the Lessor hereunder, and such assignee's rights
shall be free from all defenses, set-offs of counter-claims of any kind which
Lessor may be entitled to assert against Lessor. Lessee hereby waives the right
to assert any such defense, set-off or counter-claim against any such assignee,
it being understood that no such assignee shall assume the obligations of the
Lessor named herein.
LESSEE SHALL NOT ASSIGN, MORTGAGE OR HYPOTHECATE THIS LEASE OR ANY INTEREST
HEREIN, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, AND ANY SUCH TRANSFER OR
ASSIGNMENT WITHOUT SUCH CONSENT WILL BE VOID. TITLE TO THE EQUIPMENT SUBJECT TO
THIS LEASE IS RETAINED BY THE LESSOR, AND LESSEE COVENANTS THAT IT WILL NOT
PLEDGE OR ENCUMBER THE EQUIPMENT IN ANY MANNER WHATSOEVER, NOR PERMIT ANY LIENS,
CHARGES, OR ENCUMBRANCES TO ATTACH THERETO.
8. INSURANCE. Lessee assumes the entire risk of loss or damages to the
equipment, whether or not covered by insurance, and no such loss shall relieve
Lessee of its obligations hereunder. Lessee agrees to keep the equipment insured
and to provide proof of insurance to Lessor; to protect all interests of Lessor,
at Lessee's expense, against all risks of loss or damage from any cause
whatsoever for not less than the unpaid balance of the lease rentals due
hereunder or eighty percent (80%) of the then current value of said equipment,
whichever is higher, and to purchase insurance in the amount set forth in
Lessee's approved equipment Lease application to cover the liability of Lessor
for public liability or property damage. Said insurance policies and the
proceeds therefrom shall be the sole property of Lessor and Lessor shall be
named as an insured in all said policies and as sole loss payee in the policies
insuring the equipment. Each policy shall expressly provide that said insurance
as to Lessor and its assigns shall not be invalidated by any acts, omission or
neglect of Lessee and cannot be canceled without thirty (30) days prior written
notice to Lessor. As to each policy, Lessee shall
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furnish Lessor a Certificate of Insurance and copy of policy from _________
reflecting the coverage required by this paragraph on or before Commencement
date of Lease. The proceeds of such insurance whether resulting from loss or
damage or return of premium or otherwise, shall be applied toward the
replacement or repair of said equipment or the payment of obligations of Lessee
hereunder at the option of Lessor. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact to make claim for, receive payment of and execute or endorse
all documents, checks or drafts for loss or damage or return premium under any
insurance policy XXXXXXXXX said equipment. If Lessee fails to maintain the
insurance required by this paragraph, XXXXX may, but is not obligated to, obtain
insurance in such forms and amounts as it deems reasonable to protect its
interests and Lessee agrees to reimburse Lessor for all such costs, together
with interest as the rate provided herein upon demand.
9. INDEMNITY. Lessee shall, at its sole cost and expense, indemnify, hold
harmless and defend Lessor and its agents, employees, officers and directors
from and against any and all claims, actions, suits, proceedings, costs,
expenses, damages and liabilities, including attorney's fees, arising out of,
connected with, resulting from or relating to the equipment or the condition,
delivery, leasing, location, maintenance, manufacture, operation, ownership,
possession, purchase, repair, repossession, return, sale, selection, service or
use thereof, including without limitation (a) claims involving patent or other
defects (whether or not discoverable by Lessee or Lessor, (b) claims for
trademark patent or copyright infringement, and (c) claims for injury or death
to persons or damage to property or loss of business or anticipatory profits,
whether resulting from acts or omissions of Lessee or Lessor or otherwise.
Lessee shall give Lessor prompt written notice of any claims or liability
covered by this paragraph. The XXXX under this paragraph shall survive the
satisfaction of all other obligations of Lessee herein and the termination of
this Lease.
10. TAXES and FEES. Lessee agrees to use, operate and maintain said
equipment in accordance with all laws; to pay all licensing and registration
fees for said equipment; to keep the same free of levies, liens and
encumbrances; to show the equipment as "released equipment" on Lessee's personal
property tax returns; to pay all personal property taxes assessed against the
equipment, which sum Lessee shall remit to the taxing authority; to pay all
other taxes, assessments, fees and penalties which may be levied or assessed on
or in respect to said equipment or its use or any interest therein, or rental
payments thereon including but not limited to all federal, state and local
taxes, however designated, levied or assessed upon the Lessee and Lessor or
either of them or said equipment, or upon the sale, ownership, use or operation
thereof. Lessor may pay such taxes and other amounts and may file such returns
on behalf of Lessee if Lessee fails to do so as provided herein. Lessee agrees
to reimburse Lessor for reasonable costs incurred in collecting any charged
taxes, assessments or fees for which Lessee is liable hereunder.
11. ADVANCES. All advances made and costs incurred by Lessor to preserve
said equipment or to discharge and pay any taxes, assessments fees, penalties,
liens or encumbrances thereon or to insure the equipment shall be added to the
unpaid balance of rentals due hereunder and shall be repayable by Lessee to
Lessor immediately together with interest thereon at the rate of one and six
tenths (1.6%) percent per month until paid.
12. DEFAULT. Lessee shall be in default hereunder upon the occurrence of
any of the XXXXXXXXXXX events: (a) failure of Lessee to pay any rental payment
or other amount required hereunder when due; (b) failure of Lessee to perform
any other obligation hereunder or observe any other term or provision hereof;
(c) any representation or warranty made to Lessor by Lessee or by any Guarantor
proves to have been false in any material respect when made; (d) levy, seizure
or attachment or other involuntary transfer of the equipment; (e) assignment or
benefit of creditors or bulk transfer of assets by, or insolvency, cessation of
business, termination of existence, death or dissolution of, Lessee or any
Guarantor. As used herein, the term "Guarantor" shall include any guarantor of
this Lease and any owner of any property given as security for Lessee's
obligations hereunder.
Upon the occurrence of a default hereunder, Lessor may exercise any one or
more of the following remedies without demand or notice to Lessee and without
terminating or otherwise XXXXXXXXXX Lessee's obligations hereunder: (i) declare
the entire balance of rent for the remaining term of this Lease to be
immediately XXXXXXXXXXX payable; (ii) require Lessee to assemble the equipment
and make it available to Lessor. XXXXXXX place designated by Lessor which is
reasonably convenient to both parties; (iii) take and hold possession of the
equipment and render the equipment unusable, and for this purpose enter and
remove the equipment from any premises where the same may be located without
liability to Lessee for any damage caused thereby; (iv) sell or lease the
equipment or any part thereof at public or private sale for cash, on credit or
otherwise, with or without representations or warranties, and upon such terms as
shall be acceptable to Lessor; (v) use and occupy the premises of Lessee for the
purpose of taking, holding, reconditioning, displaying, selling or leasing the
equipment, without cost to Lessor or liability to Lessee; (vi) demand, ▇▇▇ for
and recover from Lessee all sums due hereunder.
13. DAMAGES. In the event of any default hereunder, Lessor may elect to
accelerate the obligation of Lessee and, in such event, shall be entitled to
recover the sum of (a) delinquent lease payments with interest thereon at the
legal rate, (b) any unamortized brokerage commission, (c) the anticipated
residual value of the equipment, and (d) the lease payments to become due in the
future discounted to present value as of the date of entry of judgment at a rate
equal to 30% of the New York Prime rate as of that date. Lessee shall be
entitled to a credit for net proceeds received by Lessor upon sale or release of
the equipment. if any, discounted to present value. Lessee shall also be liable
for all costs incurred by Lessor in retaking, protecting and disposing of the
equipment, including reasonable legal fees and costs.
14. LATE CHARGE. In the event a rent payment or personal property tax
payment is not made when due hereunder the Lessee promises to pay (1) a late
charge to the Lessor or his assigns not later than one month thereafter, in an
amount calculated at the rate of five cents per one ($1.00) dollar of each such
delayed payment. The late charge and/or the interest payments set forth in this
contract shall apply only when permitted by law and, if not permitted by law,
the late charges and/or interest payments shall be calculated at the maximum
rate permissible by law, in the event that a check or other instrument tendered
for payment is dishonored, Lessor shall be entitled to a ten dollar ($10.00)
fee.
15. OMISSION. The omission by the Lessor at any time to enforce any
default or right reserved to it, or to require performance of any of the terms,
covenants or provisions hereof by the Lessee at any time designated, shall not
be a waiver of any such default or right to which the Lessor is entitled, nor
shall it in any way affect the right of the Lessor to enforce such provisions
thereafter. The Lessor may exercise all remedies simultaneously, pursuant to the
terms hereof, and any such action shall not operate to release the Lessee until
the full amount of the rentals due and to become due and all other sums to be
paid hereunder have been paid.
16. BINDING AGREEMENT. The provisions of this agreement apply to and bind
the heirs, executors, administrators, successors, and assigns of the respective
parties hereto.
17. GOVERNING LAW, VENUE, JURY WAIVER. This Agreement shall be governed
and interpreted in accordance with the laws of the state of Lessor's principal
office, and any suit hereon shall be brought in the county of such office. To
the extent permitted by law, the parties waive their right to a jury trial.
18. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES HERETO RELATIVE TO THIS LEASE ARE
MERGED IN THIS AGREEMENT, WHICH CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING
OF THE PARTIES HERETO, AND NEITHER PARTY RELIES UPON ANY OTHER STATEMENT OR
REPRESENTATION, EXCEPT FOR THE CREDIT APPLICATION AND FINANCIAL STATEMENTS OF
LESSEE AND ANY GUARANTOR PROVIDED IN CONNECTION HEREWITH. THIS AGREEMENT MAY NOT
BE MODIFIED OR CANCELED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY THE LESSEE
AND A CORPORATE OFFICER OF THE LESSOR.
19. This lease is not effective nor accepted until signed by an officer of
lessor, which is the XXXXXXX necessary for the effectiveness of this lease.
LESSEE: INTERACTIVE TELESIS, INC.
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: PRESIDENT Date: 4-26-00
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Date:
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Witness: /s/ [Signature Illegible]
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Accepted by LESSOR: SANTA ▇▇▇▇▇▇▇ BANK & TRUST
/s/ [Signature Illegible] Title: SVP Date: 5/17/00
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[MEDIA CAPITAL ASSOCIATES LETTERHEAD]
SCHEDULE "A"
EQUIPMENT SCHEDULE
THIS SCHEDULE is attached hereto and made part of that certain Equipment Lease
Agreement, number , ("Lease") between Santa ▇▇▇▇▇▇▇ Bank & Trust., as
Lessor, and Interactive Telesis, Inc., as Lessee.
VENDOR: PARAGON VOICE SYSTEMS
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4 D/240PCI-T1 BOARD
S/N FA005133, S/N FA005134, S/N FA005135, S/N FA005136
2 D/300SC-E1-120
S/N DT114322, S/N DT114323
4 D/240PCI-T1 BOARD
S/N FA004464, S/N FA004465, S/N FA004466, S/N FA004467
Lessee hereby certifies that the description of personal property set forth
above constitutes an accurate account of the Equipment, as such is defined in
the Lease Agreement of which this Schedule is a part.
Lessee: Interactive Telesis, Inc. Lessor: Santa ▇▇▇▇▇▇▇ Bank & Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ [SIGNATURE ILLEGIBLE]
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Title: President Title: SVP
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Date: 4-26-00 Date 5/17/00
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GUARANTEE OF LEASE DATED _______________ BY AND BETWEEN
SANTA ▇▇▇▇▇▇▇ BANK & TRUST, AS LESSOR,
AND
INTERACTIVE TELESIS, INC., AS LESSEE
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To induce LESSOR to enter into the above lease, and any extensions,
renewals, modifications or additions thereto, the undersigned and each of them
if there be more than one, (hereinafter jointly and severally called
"Guarantor") jointly and severally guarantees and promises to pay to Lessor at
the address set out above, or such other place as Lessor shall from time to time
advise in writing, on demand, xx due and punctual payment and performance of any
and all indebtedness of the above named Lessee ("Lessee"). This is a guaranty of
payment and performance and not of collection. The Guarantor's obligations
hereunder shall be unconditional xxx shall not be subject to any defense,
setoff, counterclaim or recoupment (whatsoever) irrespective of the genuineness,
validity, regularity or enforceability of the indebtedness or any conduct of the
Lessee and/or Lessor which might constitute a legal or equitable discharge of a
surety, guarantor or guaranty.
The obligations hereunder are independent of the obligations of Lessee or
the obligations of any other person(s) or guarantor(s) who may be liable to
Lessor in whole or in part for the indebtedness, and a separate action or
actions may be brought and prosecuted against Guarantor or any of them (if
there be more than one) whether action is brought against Lessee alone or
whether Lessee be joined in any such action or actions.
Guarantor authorizes Lessor, without notice or consent and without
affecting, xxxx or discharging in whole or in part its liability hereunder, from
time to time to (a) renew, modify, amend, compromise, extend, accelerate,
discharge or otherwise change the time for payment of, or otherwise change the
terms or provisions of the lease or any part thereof, including increase or
decrease of the xxxx; (b) take and hold security for the payment of this
guaranty or the indebtedness guaranteed, and exchange, enforce, waive and
release any such security; (c) apply such security and direct the order or
manner of sale thereof as ???? discretion may determine; and (d) release or
substitute in whole or in part any one or more of the endorsers, Guarantor or
anyone else who may be partly or wholly liable for any part of the indebtedness.
Lessor may without notice assign this guaranty in whole or in part.
Guarantor waives any right to require Lessor to (a) proceed with or exhaust
xxxxx against Lessee; (b) proceed against or exhaust any security held from ???
or Guarantor; (c) pursue any other remedy in Lessor's power whatsoever, or
proceed against any other person(s) or Guarantor(s) who may be liable to ??? in
whole or in part for the indebtedness. Guarantor waives any defense xxxx by
reason of any disability or other defense of Lessee or by reason of the ??? or
modification from any cause whatsoever of the liability of Lessee.
??? indebtedness of Lessee to Lessor shall have been paid in full,
Guarantor shall have no right to subrogation, and waives any right to enforce
any remedy which Lessor now has or may hereafter have against Lessee, and
waives any benefit of, and any right to participate in any security now or
hereafter held by Lessor. Guarantor waives diligence, all presentments, demands
for performance, notices of non-performance, default, protests, notices of
protest, notices of dishonor, notices of acceptance of this guaranty and of the
existence, creation, or incurring of new, changed, modified increased or
additional indebtedness, all other notices of every and any kind and trial by
jury in any action or proceeding arising out of, under, on or by reason of this
guaranty or any other dispute between Guarantor and Lessor. Guarantor waives
pursuant to Section 1856(a) of the California Civil Code all defenses that
Guarantor may have under Sections 2787 to 2855 of the California Civil Code,
inclusive including without limitation (a) any defenses Guarantor may have to
the guarantee obligation by reason of an election of remedies by Guarantor, and
(b) any rights or defenses guarantor may have by reason of the protection
afforded to the Lessee with respect to its obligations under the foregoing
Lease pursuant to any laws limiting or discharging the Lessee's indebtedness.
Where any one or more of Lessees are corporations or partnerships it is
not necessary for Lessor to inquire into the powers in Lessee or the officers,
directors, partners, or agents acting or purporting to act on their behalf, and
any indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed and be indebtedness hereunder.
Guarantor agrees to pay the attorney's fees and all other costs and
expenses which may be incurred by Lessor in the enforcement of this guaranty
and agrees that all attorney's fees, costs and expenses incurred in pursuing or
enforcing rights and/or any collateral or security shall constitute so much
additional indebtedness hereby guaranteed.
Any married person who signs this guaranty hereby expressly agrees that
recourse may be had against his or her separate property for all obligations
under this guaranty. All lease Guarantors hereby agree to furnish Lessor upon
request current personal financial statements reflecting Guarantor's financial
status during the term of the Lease.
This guaranty cannot be changed, modified or terminated orally; shall be
deemed delivered and shall be construed, interpreted and enforced in accordance
with and under the law of the State of California. The obligations of Guarantor
hereunder shall be binding upon its successors, representatives, estates and
assigns and shall inure to the benefit of Lessor's successors and assigns.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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4-26-00
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WITNESS: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ WITNESS:
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CORPORATE RESOLUTION TO LEASE
RESOLUTION OF THE BOARD OF DIRECTORS OF
INTERACTIVE TELESIS, INC.
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RECITALS
WHEREAS, the Corporation Code empowers stock corporations to lease real and
personal property; and
WHEREAS, the Corporation Code expressly provides that the powers of the
corporation are to be exercised by its Board of Directors subject to
the limitations set forth within said Code; and
WHEREAS, the Board of Directors deems it to be in the best interest of the
corporation to lease, as lessee, the personal property hereinafter
described:
RESOLUTION
NOW, THEREFORE, BE IT RESOLVED that this corporation lease the personal
property hereinafter described from Santa ▇▇▇▇▇▇▇ Bank & Trust, on the terms
and conditions set forth in Lease Agreement Number ________.
BE IT FURTHER RESOLVED that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ who is the President of this
corporation, be authorized and directed to execute and deliver to Santa ▇▇▇▇▇▇▇
Bank & Trust said Lease Agreement and any other documents necessary to be
executed in connection therewith.
Specimen Signature of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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The personal property to be leased under the said Lease Agreement is set forth
therein.
CERTIFICATE
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, hereby certify:
That I am the duly elected and acting (SECRETARY) of Interactive Telesis, Inc.;
a California Corporation and
That the foregoing Resolution of The Board of Directors Authorizing Lease was
duly adopted by the Board of Directors duly and regularly called and held on
4/25/00 (Date) and was in conformity with the Articles of Incorporation and/or
By-Laws of the corporation and that said Resolution has been neither modified
not rescinded and is, as of the date of this Certificate, in full force and
effect.
IN WITNESS WHEREOF, I have set my hand and Seal this 25th day of April, 2000.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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If the Secretary is the authorized
signer of the Lease Agreement, the
President must execute this Certificate
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DELIVERY AND ACCEPTANCE CERTIFICATE
Re: Lease Number
Initial Lease Payment Date:
To: SANTA ▇▇▇▇▇▇▇ BANK & TRUST, Lessor
All of the items referred to in the above referenced lease have been delivered
to and have been received by the undersigned. All installation or other work
necessary prior to the use thereof has been completed. Said equipment has been
examined and/or tested and is in good operating order and condition, and is in
all respects satisfactory to the undersigned and is as represented. Said
equipment has been accepted by the undersigned and complies with all terms of
the Lease.
In the future, even if the equipment fails to perform as expected or
represented, we will continue to honor the above-referenced Lease by continuing
to make our periodic payments in the normal course of business, and we will
look solely to the seller or manufacturer for the performance of all covenants
and warranties. In addition, we agree to indemnify and hold harmless and defend
the Lessor from such nonperformance of all of the aforementioned equipment.
We acknowledge the Lessor is neither the manufacturer, distributor, or seller
of all the equipment and has no control, knowledge, or familiarity with the
conditioning, capacity, functioning, or other characteristics of the equipment.
NOTICE TO THE LESSEE: DO NOT SIGN THIS ACCEPTANCE UNTIL THE EQUIPMENT HAS BEEN
DELIVERED, ASSEMBLED, INSTALLED AND ACCEPTED BY YOU AS SATISFACTORY IN ALL
RESPECTS. PAYMENT TO THE SUPPLIER WILL NOT BE MADE UNTIL THIS NOTICE IS SIGNED
AND RETURNED TO THE LESSOR.
EQUIPMENT: SEE ATTACHED SCHEDULE "A"
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LESSEE: INTERACTIVE TELESIS, INC.
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: PRESIDENT Date: 4-26-00
----------------------- ------------ ------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Date:
----------------------- ------------ ------------
I hereby authorize ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CFO (title) to verbally verify my/our
acceptance of the above referenced equipment in my absence.
7
OPTION TO PURCHASE
LEASE AGREEMENT NUMBER _________________
This Agreement, when executed by the parties hereto, shall modify the terms and
conditions of the referenced lease as follows:
Lessor hereby grants to Lessee the right to purchase all of the equipment set
forth in said Lease at the termination of the initial Lease term for the
equipment's then Fair Market Value; provided, however, that Lessee has
performed all terms and conditions of said Lease and is not, or has not been
in default under the terms of the Lease.
This Option to Purchase cannot be assigned nor transferred by Lessee and any
attempted assignment or transfer hereof shall be void and shall not be binding
upon the Lessor.
This Option to Purchase shall in no way be considered or construed to amend or
alter in any other way than stated herein the terms and conditions of the
Lease, and is subject to all appropriate taxes having been paid by Lessee.
Notwithstanding any of the terms set for herein, it is the intent of the
parties that the Lease transaction was, and still is, a true lease and this
Purchase Option is not intended to re-characterize the lease as anything but a
true lease.
Title to the equipment, including all parts, accessories, accessions,
modifications, and substitutions at anytime added to or affecting such
equipment, shall remain with Lessor until the purchase price has been fully
paid. THIS AGREEMENT IS NOT INTENDED TO, AND DOES NOT, CREATE A SECURITY
INTEREST IN SAID EQUIPMENT.
Lessee: Interactive Telesis, Inc. Lessor: Santa ▇▇▇▇▇▇▇ Bank & Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title:
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Date: 5-16-00 Date:
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