1
EXHIBIT 10.13
LESSOR: Media Capital, LLC. 16105 2
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LEASE NUMBER
BUSINESS LEASE AGREEMENT
LESSEE NAME: VENDOR NAME:
Interactive Telesis, Inc. See Attached Schedule "A"
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
QUANTITY DESCRIPTION: MODEL NO., SERIAL NO., OR OTHER IDENTIFICATION
See Attached Schedule "A"
LEASE TERMS RENTAL PAYMENT AMOUNT SECURITY DEPOSIT
36 Payments of $1,895.55 (Plus applicable taxes) $______________
36 Months __ Payments of $________ (Plus applicable taxes) ADVANCE PAYMENTS
__ Payments of $________ (Plus applicable taxes) 2 Payments for $3,791.10
__ Variable Payment - See Attached Payment Schedule "B" Documentation Fee $0
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
the personal property described above (herein called the "Equipment"). Upon
Lessor signing below, this Lease shall become NON-CANCELABLE DURING THE TERM
STATED ABOVE by Lessee for any reason whatsoever, and Lessee shall be obligated
to pay Lessor all sums called for in this Business Lease Agreement (herein
called the "Lease").
2. COMMENCEMENT AND TERMINATION. This Lease shall commence on the "Lease Start
Date" to be determined by Lessor and provided Lessee has successfully performed
all its duties and obligations under the Lease, shall terminate upon expiration
of the number of months (following the Lease Start Date) stated as the Lease
Term.
3. RENT AND OTHER PAYMENTS. Lessee shall pay the advance rentals due under this
Lease as stated above upon signing this Lease. All such amounts shall be
non-refundable. Monthly rent payments due after the first month's rent shall be
payable on the "Payment Due Date" to be determined by Lessor or on the first
business day thereafter if a Payment Due Date falls on a non-business day.
Lessee agrees to pay to Lessor a service charge of $10 or 10% of the amount that
is late, whichever is more, not to exceed the maximum amount permitted by law,
on any payment due under this Lease which is not paid within five days of the
Payment Due Date. Lessee shall pay all sales, use, excise, personal property,
stamp, documentary, and ad valorem taxes, licenses and registration fees,
assessments, fines, penalties, and other charges imposed on the ownership,
possession or use of the Equipment during the term of this Lease, and Lessee
shall pay all taxes (except income taxes imposed on Lessor) with respect to the
rental payment hereunder, and shall, with the next scheduled payment reimburse
Lessor for any taxes paid by advanced by Lessor. Lessee's obligation to pay such
taxes, fees, assessments, fines, penalties, and other charges shall survive
termination of the Lease. Lessee agrees that Lessor may adjust the rent payment
proportionally up or down if the actual cost of the Equipment exceeds or is less
than the amount stated in the Lease. All payments under this Lease shall be made
to Lessor at the address set forth above or at any other address Lessor
subsequently gives to Lessee for purposes of making payment. In the event of
default, payments made under the Lease may be applied to Lessee's obligation to
Lessor in any order Lessor chooses.
4. SELECTION OF EQUIPMENT. Lessee acknowledges that Lessor did not participate
in the selection, manufacture or supply of the Equipment and that Lessee has
made the selection of the Equipment and the supplier of such Equipment based
upon its own judgment. Lessee agrees to inspect the Equipment and to execute the
"Certificate of Acceptance," which is attached hereto, only after the Lessee is
satisfied that the Equipment is satisfactory in every respect. Lessee hereby
authorizes Lessor to insert in the Lease any equipment serial numbers and other
identification data relating to the Equipment as needed.
5. DISCLAIMER OF WARRANTIES. BY SIGNING BELOW LESSEE ACKNOWLEDGES THAT LESSOR
IS LEASING THE EQUIPMENT TO LESSEE "AS IS" AND WITH ALL FAULTS. LESSOR MAKES NO
REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR MERCHANTABILITY. LESSEE HEREBY WAIVES ANY CLAIM (INCLUDING
ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT MIGHT HAVE AGAINST
LESSOR FOR ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR
EXPENSE CAUSED BY THE EQUIPMENT. Provided Lessee is not in default of this
Lease, Lessor hereby assigns to Lessee and Lessee shall have the benefit of, any
and all manufacturer's warranties, service agreements and patent indemnities,
if any, with respect to the Equipment; provided, however, that Lessee's sole
remedy for breach of any such warranty, indemnification or service agreement
shall be against the manufacturer of such Equipment and not against the Lessor,
nor shall such breach have any effect whatsoever on the rights and obligations
of Lessor or Lessee hereunder. LESSEE ACKNOWLEDGES THAT NEITHER THE SUPPLIER,
BROKER NOR THEIR AGENTS OR EMPLOYEES ARE AGENTS OF LESSOR NOR ARE THEY
AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE WITHOUT THE
WRITTEN CONSENT OF LESSOR. NO AGREEMENT, EITHER WRITTEN OR VERBAL, BETWEEN
SUPPLIER AND LESSEE OR BROKER AND LESSEE SHALL BIND LESSOR UNLESS LESSOR
SPECIFICALLY CONSENTS TO SUCH AGREEMENT IN WRITING.
6. AMENDMENTS; FACSIMILE COPIES. No term or provision of this Lease may be
amended, altered, waived, discharged or terminated except by written instrument
signed by the parties hereto. Lessee agrees and acknowledges that facsimile
copies of the Lease and all other agreements, instruments and documents executed
by Lessee in connection herewith (collectively, the "Documents") may be admitted
in any litigation or other proceeding concerning this Lease to the same extent
as the original thereof. Lease waives any objection to the admissibility of
facsimile copies of this Lease or Documents.
SEE REVERSE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THIS LEASE.
LESSEE ACKNOWLEDGEMENT
By Signing below, Lessee acknowledges reading and agreeing to all the terms and
conditions set forth on both sides of the lease. This agreement shall not be
effective until executed by the Lessee and accepted an authorized representative
of Lessor or its principal Place of business. THE EQUIPMENT IS FOR BUSINESS USE
ONLY. THIS LEASE IS NON-CANCELLABLE
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DATE: 11-16-98
Print Name and Title: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
BY: DATE:
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Print Name and Title:
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Witness: /s/ [Initials Illegible] DATE: 11-16-98
Print Name: ▇▇▇▇ ▇▇▇▇▇
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CERTIFICATE OF ACCEPTANCE OF LEASED EQUIPMENT
The above named and undersigned Lessee hereby acknowledges complete and
satisfactory delivery, receipt and installation of the Equipment described in
this Lease. Lessee understands and agrees that the lack of failure of the
equipment or any misoperation thereof of any kind shall not be a basis for
nonfulfillment of any of Lessee's obligations under this Lease and that Lessee's
obligations to Lessor and Lessor's assigns as set forth in the Lease are not
subject to any claims, counterclaims, defenses or setoffs.
WE HEREBY AUTHORIZE YOU TO PAY FOR AND PURCHASE THE EQUIPMENT
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DATE: 11-16-98
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
BY: DATE:
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PERSONAL GUARANTY
In consideration of Lessor entering into the above Business Lease Agreement (the
"Lease"), the undersigned ("Undersigned") jointly and severally, personally and
unconditionally guarantee to Lessor the prompt payment in full, when due, of all
of Lessee's obligations under the Lease including without limitation, every
rental payable and the accelerated balance of rentals if demanded by Lessor,
Lessor shall not be required to proceed against Lessee or the Equipment of
enforce any other remedy before proceeding against the Undersigned. The
Undersigned agrees to pay all attorneys fees and other expenses incurred by
Lessor by reason of any default of Lessee or in enforcing the Lease or this
Guaranty. The Undersigned waives notice of acceptance hereof and all other
notices or demands of any kind to which the Undersigned may be entitled and
consents to the granting of extensions of time of payment to Lessee and other
obligors and guarantors and to any other amendments of adjustments in the terms
of the Lease. This Personal Guaranty shall bind the heirs, administrators,
representatives, successors and assigns of guarantor and may be enforced by or
for the benefit of any assignee or successor of Lessor. This Guaranty shall be
governed by the laws of the State of Colorado. The Undersigned acknowledges
that, for purposes of enforcement of this Guaranty, he is conducting business in
the State of Colorado, and agrees that, in the event of any litigation related
to the Lease or this Guaranty, venue and jurisdiction shall be proper in any
State or Federal Court located in the State of Colorado.
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INDIVIDUAL BY: , INDIVIDUAL
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PRINT NAME: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRINT NAME:
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ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇:
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PHONE NO.: PHONE NO.:
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ACCEPTED BY LESSOR: Media Capital, LLC.
Authorized ▇▇▇▇▇▇: /s/ [Signature Illegible] Title: President Date: 11/2
[Illegible
Copy]
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7. FINANCE LEASE STATUS. The parties agree that this Lease is intended to
qualify as a "Finance Lease" under Article 2A of the Uniform Commercial Code
(herein called the "UCC"). Lessee acknowledges that (a) Lessee has received a
copy of the contract by which Lessor acquired the Equipment (herein called the
"Supply Contract"); or (b) Lessee has reviewed and approved the Supply Contract
or (c) Lessor has informed or advised Lessee in writing either previously or by
this Lease (i) of the identity of the supplier; (2) that Lessee may have rights
under the Supply Contract and (iii) that the Lessee should contact the supplier
for a description of any such rights Lessee may have under the Supply Contract.
8. LESSEE INDEMNIFICATION. Lessee hereby agrees to indemnify and hold Lessor and
Lessor's agents and employees harmless from any and all liability, damage, or
loss, including attorney's fees and court costs, arising out of the purchase,
sale, ownership, selection, possession, operation, control, use, maintenance, or
delivery of the Equipment.
9. POWER OF ATTORNEY/FINANCING STATEMENTS. Lessee hereby makes, constitutes and
appoints Lessor and its assigns its true and lawful attorney and agent for it
and in the name, place and stead to execute, deliver and file any UCC financing
statements and other documents that Lessor deems necessary or advisable in order
to protect Lessor's rights in the Equipment. This power being coupled with an
interest shall be irrevocable for the term of this Lease. Lessor and Lessee
agree that a carbon, photographic or other reproduction of this Lease may be
filed as a financing statement under the UCC.
10. LESSOR TERMINATION BEFORE EQUIPMENT ACCEPTANCE. If within 60 days from the
date Lessor orders the Equipment, same has not been delivered, installed and
accepted by Lessee (in form satisfactory to Lessor) Lessor may at Lessor's sole
discretion, on 10 days written notice to Lessee, terminate this Lease and its
obligations to Lessor.
11. LOCATION AND INSPECTION. Equipment shall be delivered and thereafter kept
at the location specified above, or, if none is specified, at Lessee's address
set forth above and Lessee shall not remove or allow to be removed therefrom
without Lessor's prior written consent. Any and all costs incurred by Lessor as
a result of such relocation shall be borne by Lessee. Any charges hereunder
shall not ▇▇▇▇▇ during the period the Equipment is out of service due to any
such relocation requested by Lessee. Lessee shall permit Lessor on its premises
to inspect the equipment and the business records of Lessee relating to it
during normal business hours.
12. USE OF EQUIPMENT. Lessee shall, at its expense, use, maintain and keep the
Equipment in good operating order in the manner for which it was designed and
intended, SOLELY FOR LESSEE'S BUSINESS PURPOSE, in accordance with
manufacturer's recommendations and in compliance with all applicable laws,
regulations and insurance requirements. Lessee shall not make any alterations
or additions to the Equipment without the prior written consent of Lessor. All
additions, attachments, or replacements made to the Equipment, unless otherwise
agreed to in writing by Lessor, shall become part of the Equipment. Lessee, at
its expense, shall maintain the Equipment in good operating order and repair in
accordance with the manufacturer's recommendations. Supplies required for use
of the Equipment are to be provided by Lessee at its expense and are to meet
with the Equipment manufacturer's specifications.
13. LESSEE REPRESENTATIONS. Lessee warrants and represents that (a) all legal
action has been taken to permit Lessee to execute and perform this Lease; (b)
its entering into and performance of this Lease will not violate any law or
regulation applicable to Lessee; (c) this Lease constitutes a legal, valid, and
binding obligations, enforceable against Lessee in accordance with its terms;
(d) all financial or other statements furnished or made to Lessor by Lessee are
true and correct in all material respects; and (e) Lessee is in good standing
in its state of incorporation and is in good standing and is entitled to own
properties and to carry on a business in the state where the Equipment is to be
located. Any person signing this Lease for Lessee warrants that he is duly
authorized and empowered to do so.
14. INSURANCE. Lessee shall at all times prior to return of the Equipment to
Lessor carry and maintain, at its expense, insurance covering (a) theft and all
risks of loss or damage from any cause whatsoever for an amount not less than
the replacement value of the Equipment or the unpaid amount of the Lease,
whichever amount is greater, and which names Lessor and its assigns as loss
payee; and (b) public liability, both personal injury and property damage,
covering the maintenance, use and operation of the Equipment and its use and
which names Lessor and its assigns as an additional insured. All such insurance
coverage shall be in form, amount, and with companies satisfactory to Lessor.
Lessee shall deliver certificates of insurance to Lessor. All such insurance
shall require 30 days written notice to Lessor and its assigns prior to
alteration or cancellation. Lessee hereby appoints Lessor and its assigns as
Lessee's attorney-in-fact with respect to endorsement of all documents, checks,
or drafts for loss or damage recoverable under all such insurance policies.
15. RISK OF LOSS. Upon delivery of the Equipment to Lessee, Lessee shall bear
the entire risk of loss, damage, theft or destruction to the Equipment or any
part thereof, from any and every cause whatsoever, which shall occur prior to
the Lessee's return of the Equipment as set forth in this Lease and no such
loss, damage, theft or destruction shall relieve Lessee of its obligation to
pay rent or to comply with any other obligation under this Lease. In the event
of such loss, damage, theft, or destruction, Lessee shall promptly notify
Lessor and Lessee shall within 30 days repair or replace such Equipment to its
original condition, and shall continue to make Lease payments as called for
under this Lease. Lessee agrees that if Lessee shall fail to procure, carry and
maintain insurance coverage as set forth in this Lease, Lessor shall have the
right, but not the obligation, to obtain such insurance on behalf of and at the
expense of Lessee. In the event Lessor does obtain such insurance, Lessee
agrees to pay all costs thereof with the next rental payment.
16. RETURN OF EQUIPMENT. Upon expiration or earlier termination of the Lease
with respect to the Equipment, or upon demand by Lessor pursuant to this Lease,
Lessee shall immediately, at its expense, return the Equipment in the same
condition as when Lessee received it, excepting only reasonable wear and tear,
to Lessor at a location in the continental United States specified by Lessor.
Lessee shall pay all costs and expenses to crate, insure and return the
Equipment to the designated location. After the expiration of the initial Lease
term and thereafter until Lessor actually receives the Equipment at the return
location, the Lease shall automatically renew from month to month for no more
than 12 (twelve) months after the expiration of the initial term, and Lessee
agrees to continue to make Lease payments at the last effective rate under the
Lease with the Lessor retaining all payments made up to the time the Equipment
is returned to the specific return location.
17. DEFAULT. The following events shall constitute an event of default by Lessee
under this Lease: (a) failing to pay when due any amount required to be paid to
Lessor under this Lease in a timely fashion or to timely perform any covenant,
condition, or obligation to be performed by Lessee under this Lease or under any
other agreement with Lessor; (b) selling, transferring or disposing of the
Equipment or of substantially all of Lessee's assets or merging or reorganizing
without the prior written consent of Lessor; or (c) creating, incurring,
assuming or suffering to exist any mortgage, lien, pledge or other encumbrance
or attachment of any kind whatsoever upon, affecting or with respect to the
Equipment or this Lease or any of Lessor's interests thereunder; or (d)
providing financial statements or making representations to Lessor which are
incorrect or misleading or inaccurate in any respect; (e) becoming unable to pay
debts as they become due or otherwise becoming insolvent or suffering an adverse
change in its financial condition; or (f) Lessor reasonably deeming itself
insecure in its expectations that Lessee will fully perform all of Lessee's
obligations under this Lease.
18. REMEDIES OF LESSOR. Upon the occurrence of a default by Lessee hereunder and
at any time thereafter (subject to any applicable grace provisions), Lessor may
exercise any one or more of the following remedies, as Lessor, in its sole
discretion, shall elect: (a) declare all unpaid rentals under this Lease to be
immediately due and payable, the amount to be due to be computed as hereinafter
set forth; (b) terminate this Lease as to any or all items of Equipment, but no
such termination shall be deemed to occur unless written notice to that express
effect is given by Lessor to Lessee; (c) whether or not this Lease is
terminated, take immediate possession of any or all of the Equipment, without
notice or demand and without court order or process, and for such purpose, enter
upon any premiss without liability for so doing; (d) sell, lease or otherwise
dispose of the Equipment, or any item thereof, at a public or private sale or
lease at such time or times and upon such terms as Lessor may determine, free
and clear of any rights of Lessee; (e) proceed by appropriate action either at
law or in equity to enforce performance by Lessee of the applicable covenants of
this Lease or recover damages for the breach thereof; and (f) exercise any and
all rights accruing to a Lessor or personal property under any applicable law
upon a default by Lessee. In furtherance of the foregoing, Lessor shall be
entitled to recover immediately as liquidated damages and not as a penalty, a
sum equal to the aggregate of the following: (i) all unpaid rentals and other
amounts or other sums which are due and payable for any item of Equipment up to
the date delivered to or repossessed by Lessor; (ii) any expenses paid or
incurred by Lessor in connection with the repossession, holding, repair,
appraisal, transportation and subsequent sale, lease or other disposition of the
Equipment, including attorneys' fees and court costs; and (iii) an amount equal
to the difference between (aa) all unpaid rentals and other amounts, due and to
become due under this Lease, each of which have been permitted or required to
purchase the Equipment at the end of the Lease term hereof, which amount shall
be discounted to present value at an annual rate of 7% ("Purchase Amount") and
(bb) the then fair market value of any Equipment returned to or repossessed by
Lessor ("Return Value"); provided, however, that the Return Value of each such
item of Equipment shall be deemed to be an amount equal to the proceeds, if any,
of any sale or lease thereof by Lessor, less any costs or expenses incurred by
Lessor from such sale or lease. If Lessor is unable, after the exercise of
reasonable efforts to sell or lease any such item of equipment, the Return Value
of such item of equipment shall be deemed to be zero. If the Return Value of the
Equipment exceeds the sum of the Unpaid Rentals plus the Purchase Amount, Lessor
shall be entitled to the excess.
No right or remedy conferred upon or reserved to Lessor by this Lease
shall be exclusive of any other right or remedy herein or by law provided; all
rights and remedies of Lessor conferred on Lessor by this Lease or by law shall
be cumulative and in addition to every other right and remedy available to
Lessor. Lessee shall pay all costs and reasonable attorney's fees incurred by
Lessor in collecting any sums owed under this Lease or in obtaining possession
of leased Equipment, including attorney's fees incurred in seeking relief from
stay in bankruptcy court together with interest at the rate of the lesser of
18% compounded annually, or the maximum amount permitted by law on each of the
foregoing and on all sums not paid when due under any provision of this Lease.
19. LESSEE'S WAIVERS. To the extent permitted by applicable law, Lessee hereby
waives any and all rights and remedies conferred upon a Lessee by Section
2A-508 through Section 2A-522 of the UCC, including, without limitation,
Lessee's rights to: (a) cancel this Lease; (b) repudiate this Lease; (c) reject
the Equipment; (d) revoke acceptance of the Equipment, (e) recover damages from
Lessor; (f) a security interest in the Equipment in Lessee's possession or
control for any reason; (g) deduct all or any part of claimed damages resulting
from Lessor's fault, if any, under this Lease; (h) recover damages from Lessor
for any breaches of warranty or for any other reason; (i) accept partial
delivery of the Equipment; (j) "cover"; (k) recover any general, special,
incidental or consequential damages for any reason whatsoever and (l) specific
performance, replevin, detinue, sequestration, claim or delivery of the like
for the Equipment.
20. ASSIGNMENT BY LESSOR. LESSOR MAY ASSIGN OR TRANSFER THE LEASE OR LESSOR'S
INTEREST IN THE EQUIPMENT WITHOUT NOTICE TO LESSEE. Any assignee of Lessor
shall have all of the rights, but none of the obligations, of Lessor under the
Lease and Lessee agrees that it will not assert against any assignee of Lessor
any defense, counterclaim or offset that Lessee may have against Lessor. Lessee
acknowledges that any assignment or transfer by Lessor shall not materially
change Lessee's duties or obligations under this Lease nor materially increase
the burdens or risk imposed on Lessee. Lessee agrees that Lessor may assign or
transfer this Lease or Lessor's interest in the Equipment even if said
assignment or transfer could be deemed to materially affect the interests of
Lessee.
21. NO LESSEE ASSIGNMENT OR SUBLEASE. LESSEE SHALL NOT ASSIGN, HYPOTHECATE OR
IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS
LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT
THE PRIOR WRITTEN CONSENT OF LESSOR.
22. CONSENT TO COLORADO JURISDICTION AND VENUE AND CHOICE OF LAW. LESSEE AGREES
THAT BY ENTERING INTO THIS LEASE LESSEE HAS TRANSACTED BUSINESS IN THE STATE OF
COLORADO. IN THE EVENT OF LEGAL ACTION TO REFORM, ENFORCE, CONSTRUE OR
INTERPRET THIS LEASE, LESSEE CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF COLORADO, AGREES THAT THE COLORADO COURTS HAVE JURISDICTION OVER
LESSEE, AND THAT VENUE AND JURISDICTION SHALL BE PROPER IN ANY STATE OR FEDERAL
COURT LOCATED IN THE STATE OF COLORADO. THIS LEASE SHALL IN ALL RESPECTS BE
INTERPRETED, AND ALL TRANSACTIONS HEREUNDER AND ALL RIGHTS AND LIABILITIES of
THE PARTIES HERETO SHALL BE GOVERNED AND DETERMINED AS TO VALIDITY,
INTERPRETATION, ENFORCEMENT AND EFFECT IN ACCORDANCE WITH THE LAWS OF THE STATE
OF COLORADO, EXCEPT FOR LOCAL RECORDING STATUTES.
23. OWNERSHIP/PERSONALITY. The Equipment is, and shall remain, the property of
Lessor, and Lessee shall have no right, title or interest therein or thereto
except as expressly set forth in this Lease. The Equipment shall remain
personal property regardless of whether affixed to real property, and Lessee
agrees to execute and obtain the execution of all agreements and documents in
recordable form by all parties having an interest in real property to which the
Equipment may be affixed, as Lessor may request, to protect Lessor's title to
the Equipment.
24. MISCELLANEOUS. (a) Lessor has entered into this Lease in reliance upon
Lessee's representations that this Lease is for commercial, or business
purposes and not for personal, family or household purposes of Lessee; (b) any
action by Lessee against Lessor for any default by Lessor under this Lease,
shall be commenced within one (1) year after any such cause of action accrues;
(c) if for any reason this transaction is deemed not to be a Lease, Lessee
hereby grants Lessor a security interest in the Equipment; (d) all notices,
consents, instructions or requests desired or required to be given under this
Lease shall be in writing and shall become effective when delivered, or if
mailed, when deposited in the U.S. mail postage prepaid for certified or
registered mail return receipt requested, at the address set forth in this
Lease or at such other address as such party shall from time to time designate
by proper notice; (e) no failure on the part of Lessor to exercise, and no
delay in exercising, any rights or remedy under this Lease shall operate as a
waiver or modify the terms of this Lease, nor shall any single or partial
exercise by Lessor of any right or remedy preclude any other or further
exercise of the same or any other right or remedy; (f) Lessee shall promptly
provide such further documents and financial reports as Lessor may reasonably
require in its normal course of business including copies of annual financial
reports, Securities Exchange Commission reports, quarterly reports and any
other information as Lessor may reasonably require; (g) no provision of this
Lease which may be deemed unenforceable shall in any way invalidate any other
provision of this Lease; (h) if any of the provisions of this Lease or
documentation related thereto is declared to be invalid or unenforceable, such
provisions shall be severed from this Lease and the remaining provisions
thereof shall remain in full force and effect; (i) this Lease and all
documentation executed in connection therewith represents the entire agreement
between the parties hereto and automatically cancels and supersedes any and all
prior verbal or written understandings with respect thereto. The Lessor may in
its sole discretion accelerate the full payment of this Lease upon the death of
a natural Lessee or Guarantor.
25. UNIFORM COMMERCIAL CODE FINANCING STATEMENT: 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.
THIS IS A NON-CANCELABLE LEASE
3
SCHEDULE "A"
EQUIPMENT SCHEDULE FOR LEASE NO.
DELL
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▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(6) Dell Dimension XPS R350 Mhz Pentium II Minitower Base with MMX Technology
and 512k Cache to include:
MS Intellimouse
Keyboards
256 MB SDRAM Memory
40X Max Variable CD ROM
Video Ready Option w/o Monitor
STB nVidia 2X 8MB 3D 2X AGP Graphics Card
10GB 5400RPM Ultra ATA Hard Drive
3.5 1.44MB Floppy Drive
Microsoft Windows, NT, Workstation 4.0
3COM 3C905B Fast Ethernet XL 10/100 PCI NIC
SelectCare Service Contract
MS Office Small Business Edition
MS Encarta
PARAGON
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(6) Dialogic D/240SC-T1 Boards
(2) APC Matrix MX 5000 XR
(6) APC Smart Cell XR
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.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date: 11/12/98
Page 1 of 1
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PURCHASE GUARANTEE
Date: ___________
Lease No: 16105-2
WHEREAS, Media Capital, L.L.C. ("Lessor"), and Interactive Telesis, Inc.
("Lessee") have executed an Equipment Lease Agreement ("Lease") dated Nov 16,
1998 covering certain Personal Property ("Equipment");
NOW THEREFORE, the parties hereto now agree that upon the expiration of the
original Lease term, or early termination, whichever occurs first, Lessee shall
purchase from Lessor and Lessor shall sell to Lessee the Equipment therein
described.
The purchase price to be paid by Lessee to Lessor for the Equipment shall be the
sum of Five Thousand Nine Hundred Eight Dollar and Fifty-Nine Cents ($5,908.59),
which represents 10% of the original cost of the Equipment, plus applicable
taxes.
Upon such payment, Lessor will deliver to Lessee a ▇▇▇▇ Of Sale covering said
Equipment, said ▇▇▇▇ Of Sale to warrant Equipment to be free and clear of all
encumbrances except those placed thereon by action or omission of Lessee.
Failure on the part of Lessee to make payment as required herein, and/or if said
failure shall continue for the (10) days after written notice to lessee, shall
constitute a default under the terms and conditions of said Lessee and shall be
subject to the remedies as set forth in the Equipment Lease Agreement.
Should Lessor, as a result of Lessee's default under the terms and conditions of
the Lease, exercise its option and remedy to declare the total amount of the
unpaid Lease Rental Payments due Lessor as provided for under the terms and
conditions of said Lease then Lessor may, at its sole option, declare the above
stated purchase price also due and payable, whereupon the same shall become
immediately due and payable. Title to the above referenced Equipment, therefore
shall be conveyed to the Lessee only after all of the Lessee's defaults under
the Lease have been cured.
LESSOR: Media Capital, L.L.C.
/s/ [Signature Illegible]
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LESSEE: Interactive Telesis, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
5
CORPORATE RESOLUTION AUTHORIZING LEASE
I, ▇▇▇▇▇ ▇▇▇▇▇▇▇ the duly elected Secretary of Interactive Telesis, Inc.
(Lessee), a California corporation, (the "Corporation") do hereby certify that
at a Special Meeting of the Board of Directors of said corporation held on the
16th day of November, 1998, the following resolution was adopted and remains in
full force and effect:
Resolved, that any President, Vice President, Treasurer or Secretary, or if not
such officer then the authorized signatory listed below, be and are hereby
authorized and directed to enter into, execute and deliver on behalf of the
Corporation a Lease Agreement with Media Capital, LLC. whereby the Corporation
will lease certain equipment on such terms and conditions as set forth in said
Lease, a copy of which Lease was exhibited to the Board of Directors, or such
other terms as such officers deem advisable."
Fill in the name of authorized signatory if an officer does not execute Lease:
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IN WITNESS WHEREOF, I have affixed my name as Secretary of the Corporation and
have caused the corporate seal of said Corporation to be hereunto affixed this
16 day of November, 1998.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
If Secretary executes Lease, President or Vice President must execute
Certificate of Resolution.
(Corporate Seal)