EXHIBIT 10.50
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LESSOR
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Media Capital Associates, LLC
0000 X. Xxxxxxxxx Xx. Xxx. X-000
Xxxxxxxxxx, XX 00000
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FULL LEGAL NAME AND ADDRESS OF LESSEE SUPPLIER OF EQUIPMENT AND ADDRESS
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Interactive Telesis, Inc. Nuance Communications
00000 Xxxx Xxxxx Xxxxx #000, 0000 Xxxxxxxx Xx.,
Xxx Xxxxx, XX 00000 Xxxxx Xxxx, XX 00000
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QUANTITY EQUIPMENT DESCRIPTION AND IDENTIFICATION
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SEE SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF.
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LEASE TERM AMOUNT OF EACH PAYMENT ADVANCE PAYMENT RECEIPTED APPLY TO FIRST SECURITY DEPOSIT
(IN MONTHS) (PLUS APPLICABLE SALES AND LAST _____ PAYMENTS
TAX) (INCLUSIVE OF APPLICABLE TAXES)
36 $2,096.83 $4,193.66 $0.00
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EQUIPMENT LOCATION:
(IF DIFFERENT FROM ABOVE) STREET ADDRESS 00000 Xxxx Xxxxx Xxxxx #000
XXXX Xxx Xxxx XXXXXX XXXXX XX ZIP 92130
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TERMS AND CONDITIONS OF LEASE
1. LEASE. Lessee hereby leases from Lessor, and Lessor leases to Lessee, the
personal property described above, together with any replacement parts,
additions, repairs or accessories now or hereafter incorporated in or
affixed to it hereinafter referred to as the "Equipment").
2. ACCEPTANCE OF EQUIPMENT. Lessee agrees to inspect the Equipment and to
execute an Acknowledgment and Acceptance of Equipment by Lessee notice, as
provided by Lessor, after the Equipment has been delivered and after Lessee is
satisfied that the Equipment is satisfactory in every respect. Lessee hereby
authorizes Lessor to insert in this Lease serial numbers or other
identifying data with respect to the Equipment.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. There are no
warranties by or on behalf of Lessor. Lessee acknowledges and agrees by his
signature below as follows:
(a) Lessor makes no warranties either express or implied as to the
condition of the equipment, its merchantability, its fitness or suitability
for any particular purpose, its design, its capacity, its quality, or with
respect to any characteristics of the equipment;
(b) Lessee has fully inspected the Equipment which it has requested Lessor
to acquire and lease to Lessee, and the Equipment is in good condition and to
Lessee's complete satisfaction;
(c) Lessee leases the Equipment "as is" and with all faults;
(d) Lessee specifically acknowledges that the Equipment is leased to Lessee
solely for commercial or business purposes and not for personal, family,
household, or agricultural purposes;
(e) If the Equipment is not properly installed, does not operate as
represented or warranted by the supplier or manufacturer, or is
unsatisfactory for any reason, regardless of cause or consequence, Lessee's
only remedy, if any, shall be against the supplier or manufacturer of the
Equipment and not against Lessor;
(f) Provided Lessee is not in default under this Lease, Lessor assigns to
Lessee any warranties made by the supplier or the manufacturer of the
Equipment;
(g) Lessee shall have no remedy for consequential or incidental damages
against Lessor; and
(h) No defect, damage or unfitness of the equipment for any purpose shall
relieve Lessee of the obligation to pay rent or relieve Lessee of any other D
obligation under this Lease. THE PARTIES HAVE SPECIFICALLY NEGOTIATED AND --------
AGREED TO THE FOREGOING PARAGRAPH INITIALS
4. 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 supplier of the Equipment
for a description of any such rights.
5. ASSIGNMENT BY LESSEE PROHIBITED. Without Lessor's prior written consent,
Lessee shall not assign this Lease or sublease the Equipment or any interest
therein, or pledge or transfer this Lease, or otherwise dispose of the
Equipment covered hereby.
6. COMMENCEMENT; RENTAL PAYMENTS; INTERIM RENTALS. This Lease shall commence
upon the written acceptance hereof by Lessor and shall and upon full
performance and observance by Lessee of each and every term, condition and
covenant set forth in this Lease, any Schedules hereto and any extensions
hereof. Rental payments shall be in the amounts and frequency as set forth on
the face of this Lease or any Schedules hereto. In addition to regular
rentals, Lessee shall pay to Lessor interim rent for use of the Equipment
prior to the due date of the first payment. Interim rent shall be in an
amount equal to 1/30th of the monthly rental, multiplied by the number of days
elapsing between the date on which the Equipment is accepted by Lessee and
the commencement date of this Lease together with the number of days elapsing
between commencement of the Lease and the due date of the first payment. The
payment of interim rent shall be due and payable upon Lessee's receipt of
invoice from Lessor. The rental period under the Lease shall terminate
following the last day of the terms stated on the face hereof or in any
Schedule hereto unless such Lease or Schedule has been extended or otherwise
modified. Lessor shall have no obligation to Lessee under this Lease if the
Equipment, for whatever reason, is not delivered to Lessee within ninety (90)
days after Lessee signs this Lease. Lessor shall have no obligation to Lessee
under this Lease if Lessee fails to execute and deliver to Lessor an
Acknowledgment and Acceptance of Equipment by Lessee acknowledging its
acceptance of the Equipment within thirty (30) days after it is delivered to
Lessee, with respect to this Lease or any Schedule hereto.
7. CHOICE OF LAW. This Lease shall not be effective until signed by Lessor
at its principal office stated above. This Lease shall be considered to have
been made in the State of Arizona and shall be interpreted in accordance with
the laws and regulations of the State of Arizona. Lessee agrees to
jurisdiction in the State of Arizona in any action, suit or proceeding
regarding this Lease, and concedes that it, and each of them, transacted
business in the State of Arizona by entering into this Lease. In the event of
any legal action with regard to this Lease or the Equipment covered hereby,
Lessee agrees that venue may be held in Maricopa County, State of Arizona.
THIS LEASE IS NOT CANCELABLE OR TERMINABLE BY LESSEE.
SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF THIS
LEASE.
LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER, NOR ANY
SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, IS AN AGENT OF LESSOR.
NO BROKER OR SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR
SUPPLIER, IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE,
AND NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE BROKER
OR SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER,
SHALL IN ANY WAY AFFECT LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM
LESSEE'S OBLIGATIONS SET FORTH IN THIS LEASE.
LESSEE: Interactive Telesis, Inc. LESSOR: MEDIA CAPITAL ASSOCIATES, LLC
By: /s/ Xxxxxx X. Xxxxxxx By:
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Xxxxxx X. Xxxxxxx
Title: President Title:
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Date: 9-29-00 Date:
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8. SECURITY DEPOSIT. As security for the prompt and full payment of the
amounts due under this Lease, and Lessee's complete performance of all of its
obligations under this Lease, or any extension or referral hereof, Lessee has
deposited with Lessor the security amount set forth in the section shown as
"Security Deposit". In the event any default shall be made in the
performance of any of Lessee's obligations due under this Lease, Lessor shall
have the right, but shall not be obligated, to apply the security deposit to
the curing of such default. Within ___ days after Lessor mails notice to
Lessee that Lessor has applied any portion of the security deposit to the
curing of any default. Lessee shall restore said security deposit to the full
amount set forth above. On the expiration or earlier termination or
cancellation of this Lease, or any extension or renewal hereof, provided
Lessee has paid all of the rent called for and fully performed all other
provisions of this Lease, Lessor will return to the Lessee any then remaining
balance of said security deposit, without interest. Said security deposit may
be commingled with Lessor's other funds.
9. LIMITED PREARRANGED AMENDMENTS; SPECIFIC POWER OF ATTORNEY. In the event
it is necessary to amend the terms of this Lease to reflect a change in one
or more of the following conditions: (a) Lessor's actual cost of procuring
the Equipment, or (b) Lessor's actual cost of providing the Equipment to
Lessee, or (c) A change in rental payments as a result of (1) or (2), above,
or (d) Description of the Equipment; Lessee agrees that any such amendment
shall be described in a letter from Lessor to Lessee, and unless within 15
days after the date of such letter Lessee objects in writing to Lessor, this
Lease shall be deemed amended and such amendments shall be incorporated in
this Lease herein as if originally set forth. Lessee grants to Lessor a
specific power of attorney for Lessor to use as follows: (1) Lessor may 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; and (2) Lessor may sign, endorse or negotiate for Lessor's
benefit any instrument representing proceeds from any policy of insurance
covering the Equipment.
10. LOCATION. The Equipment shall be kept at the location specified above
or, if none is specified, at Lessee's address as set forth above and shall
not be removed without Lessor's prior written consent.
11. USE. Lessee shall use the Equipment in a careful manner, make all
necessary repairs at Lessee's expense, shall comply with all laws relating to
its possession, use, or maintenance, and shall not make any alterations,
additions, or improvements to the Equipment without Lessor's prior written
consent. All additions, repairs or improvements made to the Equipment shall
belong to Lessor.
12. OWNERSHIP. The Equipment is, and shall remain, the property of Lessor,
and Lessee shall have no right, title, or interest in the Equipment except as
expressly set forth in this Lease. The Equipment shall remain personal
property even though installed in or attached to real property.
13. SURRENDER. By this Lease, Lessee acquires no ownership rights in the
Equipment, and has no option to purchase same. Upon the expiration, or
earlier termination or cancellation of this Lease, or in the event of a
default under Paragraph 21, hereof, Lessee, at its expense, shall return the
Equipment in good repair, ordinary wear and tear resulting from proper use
thereof alone excepted, by delivering it, packed and ready for shipment, to
such place or carrier as Lessor may specify.
14. RENEWAL. At the expiration of the Lease, Lessee shall return the
Equipment in accordance with Paragraph 13, hereof. At Lessor's option, this
Lease may be continued on a month-to-month basis until 30 days after Lessee
returns the Equipment to Lessor. In the event the Lease is so continued,
Lessee shall pay to Lessor rentals in the same periodic amounts indicated
under "Amount of Each Payment," above.
15. LOSS AND DAMAGE. Lessee shall at all times after signing this Lease bear
the entire risk of loss, theft, damage or destruction of the Equipment from
any cause whatsoever, and the loss, theft, damage or destruction of the
Equipment shall relieve Lessee of the obligation to pay rent or to comply
with any other obligation under this Lease. In the event of damage to any
part of the Equipment, Lessee shall immediately place the same in good repair
at Lessee's expense. If Lessor determines that any part of the Equipment is
lost, stolen, destroyed, or damaged beyond repair, Lessee shall, at Lessee's
option do one of the following: (a) Replace the same with like equipment in
good repair, acceptable to Lessor; or (b) Pay Lessor in cash the following:
(i) all amounts due by Lessee to Lessor under this Lease up to the date of
the loss; (ii) the accelerated balance of the total amounts due for the
remaining term of this Lease attributable to said item, discounted to present
value at a discount rate of 9%, as of the date of loss; and; (iii) the
Lessor's estimate as of the time this Lease was entered into of Lessor's
residual interest in the Equipment discounted to present value at a discount
rate of 9%, as of the date of loss. Upon Lessor's receipt of payment as set
forth above, Lessee shall be entitled to title to the Equipment without any
warranties. If insurance proceeds are used to fully comply with this
subparagraph, the balance of any such proceeds shall go to Lessee to
compensate for loss of use of the Equipment for the remaining term of the
Lease.
16. INSURANCE; LIENS; TAXES. Lessee shall provide and maintain insurance
against loss, theft, damage, or destruction of the Equipment in an amount not
less than the full replacement value of the Equipment, with loss payable to
Lessor. Lessee also shall provide and maintain comprehensive general all-risk
liability insurance including but not limited to product liability coverage,
insuring Lessor and Lessee, with a severability of interest endorsement, or
its equivalent, against any and all loss or liability for all damages, either
to persons or property, or otherwise, which might result from or happen in
connection with the condition use, or operation of the Equipment, with such
limits and with an Insurer satisfactory to Lessor. Each policy shall
expressly provide that said insurance as to Lessor and its assigns shall not
be invalidated by any act, omission, or neglect of Lessee and cannot be
canceled without 30 days' prior written notice to Lessor. As to each policy
Lessee shall furnish to Lessor a certificate of insurance from the Insurer,
which certificate shall evidence the insurance coverage required by the
paragraph. Lessor shall have no obligation to ascertain the existence of or
provide any insurance coverage for the Equipment or for Lessee's benefit. If
Lessee fails to provide such insurance, Lessor will have the right, but no
obligation, to have such insurance protecting Lessor placed at Lessee's
expense. Such placement will result in an increase in Lessee's period
payments, such increase being attributed to Lessor's costs of obtaining such
insurance and any customary charges or fees of Lessor's or its designee
associated with such insurance. Lessee shall keep the Equipment free and
clear of all levies, liens, and encumbrances. Lessee shall report and pay all
charges and taxes (local, state and federal) which may now or hereafter be
imposed upon the ownership, leasing, rental, sale, purchase, possession, or
use of the Equipment, excluding, however, all taxes on or measured by
Lessor's net income. If Lessee fails to pay said charges or taxes, Lessor
shall have the right, but shall not be obligated, to pay such charges or
taxes. In that event, Lessor shall notify Lessee of such payment and Lessee
shall repay to Lessor the cost thereof within 15 days after such notice is
mailed to Lessee.
17. INDEMNITY. Lessee shall indemnify Lessor against any claims, actions,
damages, or liabilities, including all attorney fees, arising out of or
connected with Equipment, without limitation. Such indemnification shall
survive the expiration, cancellation, or termination of this Lease. Lessee
waives any immunity Lessee may have under any industrial insurance act, with
regard to indemnification of Lessor.
18. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all of the
rights but none of the obligations of Lessor under this Lease. Lessee shall
recognize and hereby consents to any assignment of this Lease by Lessor, and
shall not assert against the assignee any defense, counterclaim, or setoff
that Lessee may have against Lessor. Subject to the foregoing, this Lease
inures to the benefit of and is binding upon the heirs, devisees, personal
representatives, survivors, successors in interest, and assigns of the
parties hereto.
19. SERVICE CHARGES; INTEREST. If Lessee shall fail to make any payment
required by this Lease within 10 days of the due date thereof, Lessee shall
pay to Lessor a service charge of 10% of the amount due or $20.00, whichever
is greater; provided, however, that not more than one such service charge
shall be made on any delinquent payment, regardless of the length of the
delinquency. In addition to the foregoing service charge, Lessee shall pay to
Lessor a $100 default fee with respect to any payment which becomes thirty
(30) days past due. In addition, Lessee shall pay to Lessor any actual
additional expenses incurred by Lessor in collection efforts, including but
not limited to long-distance telephone charges and travel expenses. Lessee
shall pay to Lessor interest on any delinquent payment or amount due under
this Lease from the due date thereof until paid, at the lesser of the maximum
rate of interest allowed by law or 18% per annum.
20. TIME OF ESSENCE. Time is of the essence of this Lease, and this
provision shall not be impliedly waived by the acceptance on occasion of
late or defective performance.
21. DEFAULT. Lessee shall be in default if: (a) Lessee shall fail to make
any payment due under the terms of this Lease for a period of 10 days from
the due date thereof; or (b) Lessee shall fail to observe, keep, or perform
any provision of this Lease, and such failure shall continue for a period of
10 days; or (c) Lessee has made any misleading or false statement in
connection with application for or performance of this Lease; or (d) The
Equipment or any part thereof shall be subject to any lien, levy, seizure,
assignment, transfer, bulk transfer, encumbrance, application, attachment,
execution, sublease, or sale without prior written consent of Lessor, or if
Lessee shall abandon the Equipment or permit any other entity or person to
use the Equipment without the prior written consent of Lessor; or (e) Lessee
dies or ceases to exist; or (f) Lessee defaults on any other agreement it has
with Lessor; or (g) Any guarantor of this Lease defaults on any obligation to
Lessor or any of the above listed events of default occur with respect to any
guarantor or any such guarantor files or has filed against it a petition
under the bankruptcy laws.
22. REMEDIES. If Lessee is in default, Lessor, with or without notice to
Lessee, shall have the right to exercise any one or more of the following
remedies, concurrently or separately, and without any election of remedies
being deemed to have been made: (a) Lessor may enter upon Lessee's premises
and without any court order or other process of law may repossess and remove
the Equipment, or render the Equipment unusable without removal, either with
or without notice to Lessee. Lessee hereby waives any trespass or right of
action for damages by reason of such entry, removal, or disabling. Any such
repossession shall not constitute a termination of this Lease unless Lessor
so notifies Lessee in writing; (b) Lessor may require Lessee at its expense,
to return the Equipment in good repair, ordinary wear and tear resulting from
proper use thereof alone excepted, by delivering it, packed and ready for
shipment, to such place or carrier as Lessor may specify; (c) Lessor may
cancel or terminate this Lease and may retain any and all prior payments paid
by Lessee; (d) Lessor may declare all sums due and to become due under this
Lease immediately due and payable, including as to any or all items of
Equipment, without notice or demand to Lessee; (e) Lessor may re-lease the
equipment, without notice to Lessee, to any third party, upon such terms and
conditions as Lessor alone shall determine, or may sell the Equipment,
without notice to Lessee, at private or public sale, at which sale Lessor may
be the purchaser; (f) Lessor may xxx for and recover from Lessee the sum of
all unpaid rents and other payments due under this Lease then accrued, all
accelerated future payments due under this Lease, discounted to their present
value at a discount rate of 9% as of the date of default, plus Lessor's
estimate at the time this Lease was entered into of Lessor's residual
interest in the Equipment reduced to present value at a discount rate of 9%
as of the date of default, less the net proceeds of disposition, if any, of
the Equipment; (g) To pursue any other remedy available at law, by Statute or
in equity. No right or remedy herein conferred upon or reserved to Lessor is
exclusive of any other right or remedy herein, or by law or by equity
provided or permitted, but each shall be cumulative of every other right or
remedy given herein or now or hereafter existing by law or equity or by
statute or otherwise, and may be enforced concurrently therewith or from time
to time. No single or partial exercise by Lessor of any right or remedy
hereunder shall preclude any other or further exercise of any other right or
remedy.
23. MULTIPLE LESSEES. Lessor may, with the consent of any one of the Lessees
hereunder, modify, extend, or change any of the terms hereof without consent
or knowledge of the others, without in any way releasing, waiving, or
impairing any right granted to Lessor against the others. Lessees and each of
them are jointly and severally responsible and liable to Lessor under this
Lease.
24. EXPENSE OF ENFORCEMENT. In the event of any legal action with respect to
this Lease, the prevailing party in any such action shall be entitled to
reasonable attorney fees, including attorney fees incurred at the trial
level, including action in bankruptcy court, on appeal or review, or incurred
without action, suits, or proceedings, together with all cost and expenses
incurred in pursuit thereof.
25. ENTIRE AGREEMENT; NO ORAL MODIFICATIONS; NO WAIVER. This instrument
constitutes the entire agreement between Lessor and Lessee. No provision of
this Lease shall be modified or rescinded unless in writing signed by a
representative of Lessor and Lessee. Waiver by Lessor of any provision hereof
in one instance shall not constitute a waiver as to any other instance.
26. SEVERABILITY. This Lease is intended to constitute a valid and
enforceable legal instrument, and no provision of this Lease that may be
deemed unenforceable shall in any way invalidate any other provision or
provisions hereof, all of which shall remain in full force and effect.
[LOGO]
MEDIA
CAPITAL ASSOCIATES
SCHEDULE "A"
EQUIPMENT SCHEDULE
THIS SCHEDULE is attached hereto and made part of that certain Equipment
Lease Agreement, number , ("LEASE") between Media Capital
Associates, L.L.C., as LESSOR, and Interactive Telesis, Inc., as LESSEE.
66 RECOGNITION PORT-TIER 4-US ENGLISH-VERSION 7.0X
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: Media Capital Associates, LLC
By: /s/ Xxxxxx X. Xxxxxxx By:
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Xxxxxx X. Xxxxxxx
Title: President Title:
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Date: 9/29/00 Date:
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0000 Xxxx Xxxxxxxxx Xx., Xxxxx X-000, Xxxxxxxxxx, XX 00000,
(000) 000-0000, Fax 000-000-0000
