EXHIBIT 10.44
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LESSOR: The Xxxxxxx Companies, Inc. a. BSB Leasing LEASE NUMBER
6825 East Tennessee Ave., Suite 500 AA
Xxxxxx, XX 00000
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FULL LEGAL NAME AND ADDRESS OF LESSEE SUPPLIER OF
EQUIPMENT
(COMPLETE ADDRESS)
Interactive Telesis Inc See Exhibit A attached
00000 Xxxx Xxxxx Xxxxx 0xx Xxxxx hereto and made a part
Xxx Xxxxx, XX 00000 hereof
JOINTLY AND SEVERALLY RESPONSIBLE
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QUANTITY DESCRIPTION, MODEL #, CATALOG #, SERIAL # OR OTHER IDENTIFICATION
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EQUIPMENT LEASED See Exhibit A attached hereto and made a part hereof
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EQUIPMENT STREET ADDRESS See Exhibit A attached hereto and made a part
LOCATION IF hereof
DIFFERENT --------------------------------------------
CITY COUNTY STATE ZIP
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TERMS AMOUNT OF EACH MONTHLY XX TERM OF LEASE NO. OF PAYMENTS SECURITY
PAYMENT OTHER/ (NO. OF DEPOSIT
(PLUS SALES TAX SPECIFY XX MONTHS)
IF APPLICABLE)
$2,441.66 First & Last 36 36 $0.00
(tax included)
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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 Acknowledgement 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.
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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 EXPRESSED 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, ITS Y2K COMPLIANCE, 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 OBLIGATION UNDER THIS LEASE.
The parties have specifically negotiated and agreed to the foregoing
paragraph.
D
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Initials
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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 the 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 Acknowledgement 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.
THIS LEASE IS NOT CANCELABLE OR TERMINABLE BY LESSEE.
SEE PAGE TWO 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.
7. CHOICE OF LAW. This Lease shall not be effective until signed by Lessor
at its principal office listed above. This Lease shall be considered to have
been made in the state of Lessor's principal place of business listed above
and shall be interpreted in accordance with the laws and regulations of the
state of Lessor's principal place of business.
Lessee agrees to jurisdiction in the state of Lessor's principal place
of business listed above in any action, suit or proceeding regarding this
Lease, and concedes that it, and each of them, transacted business in the
state of Lessor's principal place of business listed above 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 laid in the County
of Lessor's principal place of business.
LESSEE: Interactive Telesis Inc. LESSOR: The Xxxxxxx Companies, Inc.
d.b.a. BSB Leasing
/s/ Xxx Xxxxxxx DATE 8-11-00 /s/ Xxxxxxxx Xxxxxxxxx DATE 8/22/00
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Xxx Xxxxxxx, CEO
--------------- DATE --------
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 its
obligations [ILLEGIBLE] this Lease, and any extension or renewal 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 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 15 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 [ILLEGIBLE] the
full amount set forth above. On the expiration or earlier termination or
cancellation of this Lease [ILLEGIBLE] any extension 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; PERSONALTY. 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 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 ????????ays 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 as
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 no 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 the 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 cancelled 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 this 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
periodic 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.[ILLEGIBLE] shall keep the Equipment
free and clear of all levies, liens, and encumbrances. Lessee shall pay
[ILLEGIBLE] 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 [ILLEGIBLE] Lessor against any claims, actions,
damages, or liabilities, including all attorney fees, [ILLEGIBLE] 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, devises, 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 8% or the amount due; 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 other 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 the use 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 to 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 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 release 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, reduced to their present value using 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 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 of 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 costs 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. 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 hereof, all
of which shall remain in full force and effect.
LESSEE HAS READ AND AGREES TO ALL ITEMS ON THIS PAGE 2 OF 2 Initials D C
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Form-059
EXHIBIT "A"
THE XXXXXXX COMPANIES, INC. Lease No.
d.b.a. BSB LEASING --------------
VENDOR: MGE UPS Systems
0000 Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
EQUIPMENT Computer Hardware
LOCATION 00000 Xxxx Xxxxx Xxxxx 0xx Xxxxx
Xxx Xxxxx, XX 00000
QUANTITY DESCRIPTION
1 MGE COMET UPS, MODEL COMET 80/22, 66 OUTPUT RATING; 80KVA/64KW
INPUT VOLTAGE: 208VAC, 3 PHASE, 3 WIRES+GND. OUTPUT VOLTAGE:
208V/120 VAC, 3 PHASE, 4 WIRES+GRD.
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, CEO
BSB Schd #169228
Lessee: Interactive Telesis Inc. Page 1
