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EXHIBIT 10.38
[LANDMARK FINANCIAL CORPORATION LETTERHEAD]
BUSINESS LEASE AGREEMENT
LEASE NUMBER 2850901
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LESSEE NAME ADDRESS CITY STATE ZIP
INTERACTIVE TELESIS, INC. 000 XXXXXXXXX, XXXXX 000 XXXXXXXXX XX 00000
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VENDOR NAME ADDRESS CITY STATE ZIP
SEE ATTACHED EXHIBIT "A"
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EQUIPMENT DESCRIPTION: Model No. Serial No., or other identification
Quantity Description Serial Number
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Computer Equipment as described in the attached Exhibit "A"
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EQUIPMENT LOCATION STREET CITY COUNTY STATE ZIP
000 XXXXXXXXX, XXXXX 000 XXXXXXXXX XXX XXXXX XX 00000
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RENT PAYMENTS SALES/USE TAX TOTAL PAYMENT INITIAL LEASE TERM
36 PAYMENTS OF $1,654.59 PER MONTH PLUS INCLUDED EQUALS $1,654.59 36 MONTHS
Advance Payment of $3,309.18 which equals the first and last payment(s), a
$0.00 documentation fee, and $0.00 security deposit MUST ACCOMPANY LEASE
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EQUIPMENT LEASE TERMS AND CONDITIONS
1. LEASE. Lessee hereby leases from Lessor and Lessor leases to Lessee the
equipment, machinery and other property described above (collectively
"Equipment"). This Lease shall become effective only upon Lessor's execution
hereof whereupon Lessee's obligations hereunder shall become NONCANCELLABLE by
Lessee for any reason.
2. TERM. The term of the lease for each unit of Equipment shall be the number
of months described above as the Initial Lease Term commencing on the Lease
Start Date appearing below Lessor's signature.
3. RENT AND OTHER PAYMENTS. Lessee shall pay Lessor the advance payments and
security deposit stated above upon its execution of this Lease. The advance
payments and security deposit shall be non-refundable and applied against the
amounts owing by Lessee hereunder. All monthly rental payments are payable in
advance and, besides the first month's payment which is due as set forth above,
shall be payable on the Payment Due Date indicated above or the first business
day following any Payment Due Date that falls on a non-business day. Lessee also
shall pay all sales, use, excise, personal property, stamp, documentary, ad
valorem, registration and other taxes (except income taxes payable by Lessor),
licenses, fees, assessments, fines, penalties and other charges imposed on the
ownership, possession, use or lease of the Equipment during the term of this
Lease. All amounts payable to Lessor under this Lease shall be paid to Lessor in
currency of the United States of America at Lessor's address set forth above or
nay other address which Lessor may provide Lessor with notice from time to time.
4. SELECTION OF EQUIPMENT; SUPPLIER'S WARRANTIES; FINANCE LEASE. LESSEE
ACKNOWLEDGES THAT: (a) LESSEE HAS SELECTED BOTH THE EQUIPMENT AND THE SUPPLIER
THEREOF; (b) LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT AND HAS
ACQUIRED THE EQUIPMENT SPECIFICALLY FOR LEASING SUCH EQUIPMENT TO LESSEE AT
LESSEE'S REQUEST IN CONNECTION WITH THIS LEASE; (c) LESSEE HAS BEEN PROVIDED
WITH A COPY OF THE PURCHASE CONTRACT FOR THE EQUIPMENT BEFORE EXECUTING THIS
LEASE; (d) LESSEE HAS BEEN ADVISED BY LESSOR THAT LESSEE IS ENTITLED TO ANY
PROMISES AND WARRANTIES PROVIDED TO THE LESSOR IN CONNECTION WITH THE EQUIPMENT
BY THE SUPPLIER THEREOF AND IS ENTITLED TO CONTACT THE SUPPLIER TO RECEIVE AN
ACCURATE AND COMPLETE STATEMENT OF THOSE PROMISES AND WARRANTIES INCLUDING ANY
DISCLAIMERS AND LIMITATIONS OF SUCH PROMISES AND WARRANTIES OR ANY REMEDIES IN
CONNECTION THEREWITH; and (e) THIS LEASE QUALIFIES AS A STATUTORY "FINANCE
LEASE" UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. /s/ D INITIAL
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5. DELIVERY AND ACCEPTANCE. Lessee agrees to accept the Equipment when
delivered to Lessee by Lessor or the supplier thereof. Upon its receipt of the
Equipment, Lessee shall execute and provide Lessor with a delivery and
acceptance certificate in a form acceptable to Lessor which acknowledges the
delivery and Lessee's acceptance of the Equipment without any reservations of
any kind. Lessee agrees to hold Lessor harmless from specific performance or
damages if the supplier fails to deliver, or causes a delays in the delivery of,
the Equipment or if the Equipment is defective, nonconforming or otherwise
unsatisfactory for any reason. The occurrence of any of the foregoing factors
shall not affect the validity of this Lease or the payment and performance of
lessee's obligations hereunder.
6. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. Lessee hereby
acknowledges that:
(a) Lessor is leasing to Lessee and Lessee is leasing from Lessor the
Equipment "AS IS" and "WITH ALL FAULTS" and Lessor makes not express or implied
representations or warranties with respect to the Equipment including, but not
limited to, those pertaining to title, condition, design, capacity,
MERCHANTABILITY, or FITNESS FOR ANY PARTICULAR PURPOSE;
(b) Lessee has been provided with the opportunity to inspect the Equipment
but has refused to do so or has inspected the Equipment and determined that it
is in good condition and acceptable in all respects;
(c) 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; Lessee's only recourse shall be against the supplier or
manufacturer of the Equipment and not against Lessor. Lessor hereby assigns to
Lessee any warranties made by the supplier or the manufacturer of the Equipment
so long as Lessee is not in default upon its obligations under this Lease;
(d) REGARDLESS OF ANY PROBLEMS WITH RESPECT TO THE EQUIPMENT, LESSEE SHALL
PAY THE VARIOUS AMOUNTS OWING AND PERFORM ITS OTHER OBLIGATIONS UNDER THIS LEASE
WITHOUT SETOFF OR ABATEMENT OF ANY KIND AND LESSEE SHALL HAVE NO REMEDY AGAINST
LESSOR FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CONNECTION THEREWITH; and
(e) The Equipment is being leased to Lessee solely for commercial or
business (and not for personal, family, household, or agricultural) purposes.
7. TITLE; ABSENCE OF LIENS, SECURITY INTERESTS, ENCUMBRANCES AND CLAIMS;
FILINGS. Lessor shall remain the sole owner of the Equipment under all
conditions. Lessee acknowledges that the Equipment is and shall remain personal
property at all times despite its affixation to any real property. Lessee shall
keep the Equipment and this Lease free and clear of all encumbrances, liens,
levies, encumbrances and claims of any kind (besides those belonging to or
created by Lessor) and shall defend Lessor's rights, title and interests in and
to the Equipment and this Lease against any unauthorized encumbrances, liens,
levies, encumbrances or claims (collectively "Unauthorized Claims") at Lessee's
expense. Lessee shall immediately provide Lessor with written notice of any
actual or threatened Unauthorized Claims. Lessee, at its expense, shall take all
actions and execute, file and record all financing statements and other
documents that may be necessary to establish, maintain, and preserve Lessor's
right, title and interests in the Equipment and provide any third parties with
notice thereof.
8. DISPOSITION OF EQUIPMENT. Lessee shall not assign, convey, lease, sell or
transfer any of the Equipment to any third party without the prior written
consent of Lessor which may be withheld in its sole discretion.
9. LOCATION; USE; INSPECTION. The Equipment shall be located and used solely by
Lessee at Lessee's address described in this Lease or at any other location for
which Lessee has obtained Lessor's prior written consent. Lessee, at its
expense, shall take all necessary actions to maintain and keep the Equipment in
good repair and working order and preserve the full value thereof. Lessee shall
use the Equipment only in its business operations and in accordance with all
applicable statutes, ordinances, regulations, orders, decrees, rulings,
manufacturer's recommendations, and insurance policies. Any supplies required
for the use of the Equipment also shall meet the manufacturer's specifications.
Lessee shall permit and cause any third party to permit Lessor to enter Lessee's
or such third party's premises and inspect the Equipment and any books or
records pertaining thereto during normal business hours. Lessee shall provide
and cause any third party to provide any assistance required by lessor for these
purposes. All of the signatures and information contained in the foregoing books
and records shall be genuine, true, accurate and complete in all respects.
10. ADDITIONS, ALTERATIONS AND OTHER CHANGES. Lessee shall not make any
additional, alterations or other changes to the Equipment without Lessor's prior
written consent. Notwithstanding the foregoing and without curing any resulting
event of default under this lease, all additions, attachments, modifications,
replacements or substitutions to the Equipment shall become part of the
Equipment and belong to Lessor.
11. FINANCIAL REPORTS. Lessee shall report, in a form satisfactory to lessor,
such information as Lessor may request regarding Lessee's business operations
and financial condition or the Equipment. The information shall be for such
periods, shall reflect Lessee's records at such time, and shall be rendered with
such frequency as Lessor may designate. All information furnished by Lessee to
Lessor shall be true, accurate and complete in all respects.
12. REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants to Lessor
that: (a) Lessee's federal tax identification or social security number is:
00-0000000; (b) Lessee is a Corporation duly organized and validly existing
under the laws of the State of California and the nation of Canada and
authorized to own property and transact business in each location where its
business is conducted; (c) Lessee's chief executive office, chief place of
business, office where its business records are located, or residence is the
address described in this Lease. Lessee's other executive offices, places of
business and locations of its business records are N/A. Lessee shall immediately
advise Lessor in writing of any change in or addition to the foregoing
addresses; (d) Lessee shall not become a party to any restructuring of its form
of business or participate in any consolidation, merger, liquidation or
dissolution without obtaining Lessor's prior written consent; (e) Lessee shall
provide Lessor with thirty (30) or more days' prior written notice of any
intended change of Lessee's name or the use of any tradename; (f) No action or
proceeding is or shall be pending or threatened against Lessee which might
result in any material and adverse change in its business operations or
financial condition or materially affect the Equipment; (g) this Lease has been
duly authorized, executed and delivered by Lessee and constitutes the legal,
valid and binding obligations of Lessee in accordance with the terms and
conditions set forth herein; and (h) Lessee's execution, delivery and
performance of its obligations under this Lease does not and shall not violate
any statute, ordinance, regulation, order, decree, ruling, regulation, or
agreement binding upon or otherwise applicable to Lessee. Any person executing
this Lease for Lessee represents and warrants to Lessor that he is duly
authorized and empowered to bind Lessee to the terms and conditions set forth
herein.
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13. LOSS, THEFT, DAMAGE, DESTRUCTION. Lessee shall bear the entire risk of any
loss, theft, damage or destruction (collectively "Loss or Damage") of the
Equipment from any cause whatsoever and acknowledges that no Loss or Damage,
whether XXXX on delivery or thereafter, shall relieve Lessee from the payment
and performance of its obligations under this Lease. In the event of any Loss or
Damage of the Equipment or any part XXXXXXX, Lessee shall immediately provide
Lessor with written notice XXXXXX and, at the option of Lessor and Lessee's sole
expense shall:
a) make all necessary repairs to place the Equipment in the condition that
existed prior to such Loss or Damage;
b) replace the lost, stolen, damaged or destroyed Equipment with the same
or similar goods that are acceptable to Lessor in all respects (title to the
replacement goods shall immediately be vested in Lessor free and clear of all
liens, security interests, encumbrances or claims of any kind and the
replacement goods shall become subject to all of the terms and conditions
affecting the Equipment under this Lease); or
c) pay to Lessor the total of the following amounts: i) all accrued but
unpaid amounts owing under this Lease at the time of payment; and (ii) all
unaccrued amounts payable to Lessor from XXXXXX of payment to the end of the
term of this Lease together with Lessor's estimated residual value for the
Equipment discounted at the time of payment to its present value by a factor of
six percent (6%) per annum.
Upon such payment, Lessor shall assign to Lessee all of its rights, title and
interest in and to the Equipment "AS IS" and "WITH ALL FAULTS" and without any
express or implied representations or warranties of any kind including but not
limited to those pertaining to MERCHANTABILITY or FITNESS FOR A PARTICULAR
PURPOSE.
14. INSURANCE. Lessee, at its expense, shall obtain and maintain insurance
against any Loss or Damage to the Equipment for the greater of: (a) the
replacement value of the Equipment; or (b) the sum of the rental payments and
other amounts remaining to be paid under this Lease. Such insurance policies
shall name Lessor as loss payee. In addition, Lessee, at its expense, shall have
public liability and property damage insurance with respect to its business
operations and premises. Such insurance policies shall name Lessor and its
assigns as additional insureds. All of the foregoing insurance policies shall be
in forms, amounts, and with companies satisfactory to Lessor in its discretion.
Without limiting the foregoing, all of the insurance policies shall provide that
no act or omission of Lessee or any other person shall affect the right of
Lessor or its assigns to be paid any insurance proceeds and require the
insurance company to provide Lessor with at least 30 days' written notice prior
to any alteration or cancellation of such policies. Lessee shall deliver
certificates of insurance and copies of the insurance policies to Lessor upon
the request of the latter party.
15. RETURN OF EQUIPMENT. Upon the expiration or prior cancellation of this
Lease, Lessee shall, at Lessee's own expense and risk, promptly return the
Equipment to Lessor by delivering such Equipment, packed and ready for shipment,
to such place or carrier as Lessor may specify, in the same condition as
originally provided to Lessee except for reasonable wear and tear. In the event
Lessee does not return the Equipment as specified in the foregoing sentence,
Lessee shall pay Lessor 150% of the rental payments and other amounts payable
under this Lease for the continued use of Equipment on a prorated basis. Such
payments shall be due and payable on the same day of each month as the Payment
Due Dates unless Lessee is required to pay such amounts on an earlier date
pursuant to the terms and conditions set forth in this Lease. The acceptance of
such payments shall not waive Lessee's default or Lessor's other rights under
this Lease and shall not constitute an extension of the term of this Lease under
any circumstances.
16. DEFAULT AND REMEDIES. Lessee shall be in default under this Lease in the
event that Lessee, any guarantor, or any other party liable for or securing the
payment and performance of some or all or the obligations described herein: (i)
fails to pay any rental payment or other amount or perform any obligation as
required by this Lease or any other present or future written agreement between
Lessor and such part; (ii) breaches any covenant, representation or warranty to
Lessor contained in this Lease or any other agreement between Lessor and such
party, (iii) provides or causes any false or misleading signature or
representation to be provided to Lessor; (iv) defaults upon any material
agreement with a third party; (v) allows the Equipment to be lost, stolen,
damaged or destroyed in any material respect (and does not repair or replace the
Equipment or pay Lessor the various amounts as set forth in this Lease; (vi)
permits the entry or service of any garnishment, judgement, tax levy, attachment
or lien against it or any of its property; (vii) becomes the subject of any
bankruptcy, reorganization or insolvency proceeding; or (viii) causes Lessor to
deem itself insecure in good faith for any reason.
If there is a default under this Lease, Lessor shall be entitled to exercise one
or more of the following remedies without presentment, dishonor, notice or
demand of any kind (all of which are hereby waived by Lessee):
a) to cancel the Lease;
b) to collect the following amounts with or without resorting to judicial
process; i) all accrued but unpaid amounts payable under this Lease through the
earlier of the date on which those amounts are paid to Lessor or judgment is
entered in Lessor's favor therefor; (ii) all unaccrued amounts payable under
this Lease as of the earlier of the date on which those amounts are paid to
Lessor or judgment is entered in Lessor's favor therefor and, if the Equipment
has not been returned to Lessor, Lessor's estimated residual value for the
Equipment both discounted to their present value as of the earlier of the date
on which those amounts are repaid to Lessor or judgment is entered in Lessor's
favor therefor by a factor of six percent (6%) per annum, (iii) interest on any
delinquent amounts payable to Lessor under this Lease at the rate set forth
herein; (iv) all of Lessor's incidental damages and other amounts expended in
the repossession, repair, preparation and advertising for sale or lease, resale,
release, or other disposition of the Equipment or the enforcement of Lessor's
rights hereunder; and (v) all other amounts recoverable by Lessor under this
Lease or applicable law.
c) to enter Lessee or any third party's premises and take possession of the
Equipment;
d) to require Lessee to deliver and make available to Lessor the Equipment
at the location described in Section 15 of this Lease;
e) at Lessor's option, to sell, release or otherwise dispose of the
Equipment under such terms and conditions as may be acceptable to Lessor in its
discretion. In the event that Lessor elects to sell or release the Equipment,
Lessor shall provide Lessee with a setoff against Lessee's outstanding
obligations to Lessor under this Lease for the net sale proceeds actually
received by Lessor or the net rental payments payable to Lessor under the
replacement lease during the mandatory term of this Lease discounted to their
present value as of the commencement date of the replacement lease by a factor
of six percent (6%) per annum, provided, however, that Lessor shall not be
accountable to Lessee or any third party for any profits made upon the sale,
release or XXXXXX disposition of the Equipment under any circumstances;
f) to setoff the amounts payable to Lessor against any amount due to
Lessee; and
g) to exercise all other rights available to Lessor under this Lease, any
other written agreement, or applicable law. Lessor's rights are cumulative and
may be exercised together, separately, and in any order. In the event that
Lessor institutes an action to recover the Equipment or seeks the recovery of
the Equipment by way of a prejudgment remedy in an action against Lessee, Lessee
waives the posting of any bond which might otherwise be required.
17. ESSENCE OF TIME. Lessee and Lessor agree that time is of the essence.
18. INDEMNITY. Lessor shall not assume or be responsible for the performance of
any of Lessee's obligations with respect to the Equipment under any
circumstances. Lessee shall immediately provide Lessor with written notice of
and indemnify and hold Lessor and its shareholders, directors, officers,
employees, and agents (collectively "Indemnified Parties") harmless from all
claims, damages, liabilities (including attorneys' fees and legal expenses),
causes of action, actions, suits and other legal proceedings (collectively
"Claims") pertaining to its business operations or the ownership, lease,
possession, or use of the Equipment including, but not limited to, Lessor's
performance of Lessee's obligations with respect to the Equipment. Lessee, upon
the request of Lessor, shall hire legal counsel to defend the Indemnified
Parties from such Claims, and pay the attorneys fees, legal expenses and other
costs incurred in connection therewith. In the alternative, the Indemnified
Parties shall be entitled to employ their own legal counsel to defend such
Claims at Lessee's cost.
19. FURTHER ASSURANCES. Lessee shall execute all additional documents and take
all additional actions as Lessor may deem necessary or advisable to establish,
maintain, protect or preserve Lessor's rights, title and interest in the
Equipment or otherwise carry out the intent and purposes of this Lease.
20. POWER OF ATTORNEY. Lessee hereby appoints Lessor as its attorney-in-fact
to: a) take any actions necessary to complete, or correct any mistake contained
in, this Lease or any related financing statements or other documents including,
but not limited to, completing the quantity, serial numbers or other description
of the Equipment, filling in any blank spaces, inserting any missing dates or
other information, or correcting any erroneous words or phrases; b) endorse
Lessee's name on all instruments and other remittances payable to Lessee with
respect to the Equipment or any insurance coverage therefor; and c) take any
action or execute any document required to be taken or executed by Lessee under
this Agreement Lessor's performance of such actions or execution of such
documents shall be taken or not taken in its sole discretion and shall not
relieve Lessee from any obligation or cure any default under this Agreement. The
powers of attorney described in this paragraph are coupled with an interest and
irrevocable.
21. LATE CHARGES AND INTEREST. Lessee shall pay Lessor a late charge at the
lower of 5% of the delinquent amounts or the highest rate permitted by law on
any amount payable to Lessor under this Lease that is not paid when due. In
addition, Lessee shall pay Lessor interest on any amounts payable to Lessor that
are more than thirty (30) days delinquent at the lower of 24% per annum or the
highest rate permitted by law.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LESSOR. Upon demand, Lessee shall
reimburse Lessor for all amounts (including attorneys' fees, legal expenses and
court costs) expended by Lessor in the performance of any action required to be
taken by Lessee or the exercise of any right or remedy belonging to Lessor under
this Lease, together with interest thereon at the lower of 24% per annum or the
highest rate allowed by law from the date of payment until the date of
reimbursement.
23. SURVIVAL. All of the representations, warranties, indemnification and hold
harmless and other obligations described in this Lease shall survive the
expiration or cancellation of this Lease.
24. ASSIGNMENT. Lessee shall not be entitled to assign any of its rights,
remedies or obligations described in this Lease without the prior written
consent of Lessor which may be withheld by Lessor in its sole discretion. Lessor
shall be entitled to assign some or all of its rights and remedies described in
this Lease without notice to or the prior consent of Lessee in any manner.
Lessee hereby waives and shall not assert against such assignee any claims,
defenses, setoffs or counterclaims that Lessee possesses against Lessor with
respect to this Lease or otherwise. Lessor shall be entitled to provide any
regulatory agency or prospective or actual assignee, lender, or participant with
any information provided to or generated by Lessor in connection with Lessee or
this Lease.
25. MODIFICATION AND WAIVER. The modification or waiver of any of Lessee's
obligations or Lessor's rights under this Lease must be contained in a writing
signed by Lessor. Lessor may perform any of Lessee's obligations or delay or
fail to exercise any of its rights under this Lease without causing a waiver of
those obligations or rights. A waiver on one occasion shall not XXXXXXXX a
waiver on any other-occasion. Lessee's obligations under this Lease shall not be
affected if Lessor amends, compromises, exchanges, fails to exercise, impairs or
releases any of the obligations belonging to any Lessee or third party or any of
its rights against any Lessee, third party or property. D INITIAL
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26. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure to the
benefit of Lessee and Lessor and their respective successors, assigns, trustees,
receivers, administrators, personal representatives, legatees, and devises.
27. NOTICES. Any notice or other communication to be provided under this Lease
shall be in writing and shall be deemed given when sent via telecopy, or
overnight, certified, registered or regular mail to the parties at the addresses
described in this Lease or such other address as the parties may designate in
writing from time to time.
28. SEVERABILITY. If any provision of this Lease violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
29. APPLICABLE LAW. This Lease shall be governed by the laws of the State of
Colorado. Lessee consents to the jurisdiction and venue of and agrees that
Lessor may remove any existing litigation to any court located in the City and
County of Denver, State of Colorado. In the event of any legal proceeding
pertaining to the negotiation, execution or delivery of this Lease or any
related document, the payment and performance of any indebtedness, liability or
obligation or the enforcement of any right or remedy described therein or any
claim, defense, setoff or counterclaim arising or asserted in connection
therewith.
30. COLLECTION COSTS. If Lessor hires an attorney to assist in collecting any
amount due or enforcing any right or remedy under this Lease, Lessee agrees to
pay Lessor's attorneys' fees, legal expenses and court costs (before trial, at
trial and on appeal).
31. MISCELLANEOUS. All references to Lessee in this Lease shall include all
persons signing below. If there is more than one Lessee, their obligations shall
be joint and several and their joint and/or several property shall be included
in the Equipment. This Lease and any related documents represent the complete
and integrated understanding between Lessee and Lessor pertaining to the terms
and conditions described herein. In the event that this Lease is interpreted to
constitute a security agreement by a court of competent jurisdiction, Lessee
shall be deemed to have granted Lessor a security interest in the Equipment and
the proceeds and products thereof to secure all of Lessee's indebtedness and
obligations to Lessor under the Lease as well as any other present or future
Lease.
32. WAIVER OF JURY TRIAL. LESSEE AND LESSOR EACH WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO THE NEGOTIATION, XXXXXXXXXX OR
DELIVERY OF THIS LEASE OR ANY RELATED DOCUMENT, THE PAYMENT AND PERFORMANCE OF
ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OR THE ENFORCEMENT OF ANY RIGHT OR
REMEDY DESCRIBED THEREIN, OR ANY CLAIM, DEFENSE, SETOFF OR COUNTERCLAIM ARISING
OR ASSERTED IN CONNECTION THEREWITH.
ACCEPTED IN COLORADO
LFC, INC. (LESSOR)
BY: /s/ [Signature Illegible]
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DATE: 7/21/00 7/10/00
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(LEASE START DATE)
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY THE LESSEE AND ACCEPTED
BY AN AUTHORIZED REPRESENTATIVE OF LESSOR AT ITS PRINCIPAL PLACE OF BUSINESS.
LESSEE: INTERACTIVE TELESIS, INC.
BY: /s/ [Signature Illegible] 7-7-00
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SIGNATURE/TITLE DATE
BY:
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SIGNATURE/TITLE DATE
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SCHEDULE "A"
EQUIPMENT SCHEDULE
THIS SCHEDULE is attached hereto and made part of that certain Equipment Lease
Agreement, number 2850901, ("Lease") between Media Capital Associates, L.L.C.,
as Lessor, and Interactive Telesis, Inc., as Lessee;
VENDOR: DELL DIRECT
Dept 0680 XX Xxx 000000
XXXXXX, XX 00000
2 INSPIRON 7500, 700MHZ, PENTIUM III WITH SPEEDSTEP, 15" + SXGA (220-4936)
2 SOFTWARE, WINDOWS 2000 PRO, INSPIRON, ENGLISH
2 XIRCOM, REALPORT 10/100 + 56K COMBO PC CARD, TYPE III
2 8X DVD FLOPPY DRIVE COMBO, INSPIRON
2 DECODING, SOFTWARE FOR DIGITAL VIDEO/VERSATILE DISK, INSPIRON
2 NORTON ANTIVIRUS 2000, VERSION 5.0 WITH CD & DOCUMENTATION, ENGLISH
2 NYLON CASE 15.4, INSPIRON 7500/5000
2 512MB, SDRAM, 2DIMM, INSPIRON 7500
2 PASS THROUGH PORT REPLICATOR, INSPIRON 7500
2 MS OFFICE SBE 2000, CD WITH DOCUMENTATION, US ENGLISH
2 MS OFFICE INTERNET EXPLORER 5.0 FOR OFFICE 2K APPS ONLY US ENGLISH
2 MS BOOKSHELF 2000, CD & DOCS, ENGLISH FACTORY
2 2X AGP 8MB ATI RAGE MOBILITY
2 30GB HARD DRIVE INSPIRON 7500
2 DELL SINGLE PENTIUM III 800 GX300/T (133MHZ FSB) W/4X AGP VID SLOT, INT
10/100 NIC W/RWU INT AUDIO, 256K CACHE
2 3.5, 1.44 MG FLOPPY DRIVE, GX200/300 MINI TOWER
2 WINDOWS 2000 NTFS, COMPACT DISK, ENGLISH, OPTIPLEX
2 MICROSOFT INTELLIMOUSE (PS/2) WINDOWS 2000, GX200/300
2 INTEGRATED 10/100 3COM REMOTE WAKE-UP NIC OPTIPLEX, GX200/300
2 12X IDE DVD-ROM DATA ONLY, GX200/300 WITH INTEGRATED SOUND, MINI TOWER
2 INTEGRATED SOUND BLASTER, COMPATIBLE WITH AC97 AUDIO
2 XXXXXX/KARDON SPEAKERS
1 256MB XXX, XX 000, 0-000 XXXX, 16 DEVICES, GX200/300
2 QUIET KEY SPACESAVER 104-KEY
2 RESOURCES CD CONTAINS DIAGNOSTICS AND DRIVER FOR DELL OPTIPLEX SYSTEMS
2 FLOPPY DISK DIAGNOSTICS
2 DELL PLUS, INFORMATION, PRINT, LABEL, MEDIUM
2 DELL PLUS, ASSET TAG CONFIGURATION
2 DELL PLUS, ROUTING SKU
2 DELL P991 FLAT DISPLAY, TRINITRON, 17.9 VIEWABLE IMAGE SIZE, OPTIPLEX,
GX200/300
2 NVIDIA TNT2 M64 32MB 4XAGP VIDEO CARD FOR GX300
2 20GB, 7200, RPM, XXXX GX200/300 MINI TOWER
1 DELL SINGLE PENTIUM III 800 GS300/T (133MHZ FSB) W/4X AGP VID SLOT, INT
10/100 NIC W/RWU INT AUDIO, 256K CACHE
1 3.5, 1.44 MB FLOPPY DRIVE, GX200/300 MINI TOWER
1 WINDOWS 2000 NTFS, COMPACT DISK, ENGLISH, OPTIPLEX
1 INTEGRATED 10/100 3COM REMOTE WAKE-UP NIC OPTIPLEX, GX200/300
1 12X IDE DVD-ROM DATA ONLY, GX200/300 WITH INTEGRATED SOUND, MINI TOWER
1 INTEGRATED SOUND BLASTER, COMPATIBLE WITH AC97 AUDIO
1 XXXXXX/KARDON SPEAKERS
1 8/4/32X CD-RW FOR WIN98, WIN NT, AND WIN 2000 AND PAIRED WITH CD OR DIVD,
NO AUDIO, GX 200/300 MIDSIZE DESKTOP AND MINI TOWER
1 256MB XXX, XX 000, 0-000 XXXX, 16 DEVICES, GX200/300
1 QUIET KEY SPACESAVER 104-KEY
1 RESOURCES CD CONTAINS DIAGNOSTICS AND DRIVER FOR DELL OPTIPLEX SYSTEMS
1 FLOPPY DISK DIAGNOSTICS
PAGE 1 of 2
4
1 DELL PLUS, INFORMATION, PRINT, LABEL, MEDIUM
1 DELL PLUS, ASSET TAG CONFIGURATION
1 DELL PLUS, ROUTING SKU
1 DELL P991 FLAT DISPLAY, TRINITRON, 17.9 VIEWABLE IMAGE SIZE, OPTIPLEX, GX200/300
1 NVIDIA TNT2 M64 32MB 4XAGP VIDEO CARD FOR GX300
1 20GB, 7200, RPM, XXXX GX200/300, MINITOWER
4 256MB, 1 DIMM, SDRAM, INSPIRON, 7500
VENDOR: ALLIANCE SYSTEMS INC
0000 XXXXXX XXXXXX XXX 000
XXXXX, XX 00000
2 D/240PCI-T1
2 ANTARES 3000X60
1 CTBUS CABLE ASSY, 4 DROP
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: Landmark Financial
By: /s/ XXXXXX X. XXXXXXX By: /s/ [Signature Illegible]
------------------------- -------------------------
Title: President Title: Pres
------------------------- -------------------------
Date: 7-7-00 Date: 7/21/00
------------------------- -------------------------
PAGE 2 OF 2
5
[LANDMARK FINANCIAL CORPORATION LETTERHEAD]
CONTINUING GUARANTY
LESSEE: INTERACTIVE TELESIS, INC. GUARANTOR: XXXXXX X. XXXXXXX
000 XXXXXXXXX, XXXXX 000
XXXXXXXXX, XX 00000
LESSOR: LFC, INC.
0000 X. XXXXXXXXX XXX., XX. 000
XXXXXXXXX, XX. 00000
1. CONSIDERATION. This Continuing Guaranty ("Guaranty") is executed and
delivered to Lessor to induce Lessor to lease certain equipment and provide
other financial accommodations to Lessee including, but not limited to, those
leasing arrangements described in Equipment Lease No. 28509 between the Lessee
and Lessor dated as of 7/21, 00 ("Equipment Lease").
2. GUARANTY. Guarantor hereby jointly and severally, absolutely and
unconditionally, guaranties the prompt and full payment and performance of
Lessee's present and future, joint and/or several, direct and indirect, absolute
and contingent, express and implied, indebtedness, liabilities, obligations and
covenants (collectively "Obligations") to Lessor of any kind including, but not
limited to, those described in the Equipment Lease and any amendments,
modifications, replacements or substitutions thereto. The foregoing guaranty
shall not be limited in any way.
3. ABSOLUTE AND CONTINUING NATURE OF GUARANTY. Guarantor's obligations under
this Guaranty are absolute and continuing and shall not be affected or impaired
if Lessor amends, compromises, exchanges, fails to exercise, impairs or releases
any of the obligations belonging to any Lessee, Guarantor or any third party or
any of Lessor's rights against any Lessee, Guarantor, third party, or any
property. In addition, Guarantor's obligations under this Guaranty shall not be
affected or impaired by the death, incompetency, termination, dissolution,
insolvency, business cessation, or other financial deterioration of any Lessee,
Guarantor, or any third party. To the greatest extent permitted by law.
Guarantor hereby waives its right to assert any defense belonging to Lessee.
4. DIRECT AND UNCONDITIONAL NATURE OF GUARANTY. Guarantor's obligations under
this Guaranty are direct and unconditional and may be enforced without requiring
Lessor to exercise, enforce, or exhaust any right or remedy against any Lessee,
Guarantor, third party, or property.
5. WAIVER OF NOTICE. Guarantor hereby waives notice of the acceptance of this
Guaranty; notice of present and future loans or other financial accommodations
by Lessor to any Lessee; notice of presentment for payment, demand, protest,
dishonor, default, and nonpayment pertaining to the Obligations and this
Guaranty; and all other notices and demands to the maximum extent permitted by
law.
6. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to Lessor of
this Guaranty is based solely upon Guarantor's independent investigation of
Lessee's financial condition and not upon any written or oral representation of
Lessor in any manner. Guarantor assumes full responsibility for obtaining any
additional information regarding lessee's financial condition and Lessor shall
not be required to furnish Guarantor with any information regarding Lessee's
financial condition.
7. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and continuing
nature of this Guaranty and voluntarily accepts the full range of risks
associated herewith including, but not limited to, the risk that Lessee's
financial condition may deteriorate or, if this Guaranty is unlimited, the risk
that Lessee may incur additional obligations to Lessor in the future.
8. WAIVER OF SUBROGATION. Guarantor hereby waives any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other
claim which it may now or hereafter have against Lessee or any other person
directly or contingently liable for the Obligations guarantied hereunder or
against or with respect to Lessee's property (including, but not limited to, any
collateral securing the payment and performance of the Obligations) arising from
the existence or performance of this Guaranty.
9. APPLICATION OF PAYMENTS. Lessor shall be entitled to apply any payments or
other monies received from Lessee, any third party, or any property against the
Obligations in any order. Without limiting the foregoing, Lessor shall be
entitled to apply such payments or other monies to the Obligations not
guarantied by this Guaranty prior to the Obligations guarantied hereby.
10. ESSENCE OF TIME. Guarantor and Lessor agree that time is of the essence.
11. TERMINATION. This Guaranty shall remain in full force and effect until
Lessor executes and delivers to Guarantor a written release thereof.
Notwithstanding the foregoing, Guarantor shall be entitled to terminate any
guaranty of Lessee's future Obligations to Lessor upon any anniversary of this
Guaranty by providing Lessor with 60 or more days' prior written notice thereof.
Notice shall be deemed given when received by Lessor.
12. ASSIGNMENT. Guarantor shall not assign any of its rights or obligations
described in this Guaranty without Lessor's prior written consent which may be
withheld by Lessor in its sole discretion. Lessor shall be entitled to assign
some or all of its rights and remedies described in this Guaranty without notice
to or the prior consent of Guarantor in any manner. Guarantor hereby waives and
shall not assert against such assignee any claims, defenses, setoffs or
counterclaims that Guarantor possesses against Lessor under this Guaranty or
otherwise. Lessor shall be entitled to provide any regulatory agency or
prospective or actual assignee, lender, or participant with any information
provided to or generated by Lessor in connection with Guarantor or this
Guaranty.
13. MODIFICATION AND WAIVER. The modification or waiver of any of Guarantor's
obligations or Lessor's rights under this Guaranty must be contained in a
writing signed by Lessor. Lessor may delay in exercising or fail to exercise any
of its rights without causing a waiver of those rights. A waiver on one occasion
shall not constitute a waiver on any other occasion.
14. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure to
the benefit of Guarantor and Lessor and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
15. NOTICES. Any notice or other communication to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in this Guaranty or such other addresses as the parties may designate in writing
from time to time.
16. SEVERABILITY. If any provision of this Guaranty violates the law or is
unenforceable, the rest of the Guaranty shall remain valid.
17. APPLICABLE LAW. This Guaranty shall be governed by the laws of the State
of Colorado. Guarantor consents to the jurisdiction and venue of any court
located in the City and County of Denver, State of Colorado, in the event of any
legal proceeding pertaining to negotiation, execution or delivery of this
Guaranty or any related document, the payment and performance of any
indebtedness, liability or obligation or the enforcement of any right or remedy
described herein, or any claim, defense, setoff or counterclaim arising or
asserted in connection therewith.
18. COLLECTION COSTS. Lessor shall be entitled to collect from Guarantor its
attorneys' fees, and other costs and expenses incurred before trial, at trial
and on appeal in the collection of this Guaranty or in any litigation pertaining
to the negotiation, execution or delivery of this Guaranty or any related
document, the payment and performance of any indebtedness, liability or
obligation or the enforcement of any right or remedy described herein, or any
claim, defense, setoff or counterclaim arising or asserted in connection
therewith.
19. MISCELLANEOUS. This Guaranty is executed for commercial purposes. All
references to Guarantor in this Guaranty shall include all persons signing
below. If there is more than one Guarantor, their obligations shall be joint and
several. This Guaranty represents the complete and integrated understanding
between Guarantor and Lessor pertaining to the terms and conditions described
herein.
20. WAIVER OF JURY TRIAL. GUARANTOR AND LESSOR EACH WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THE NEGOTIATION, EXECUTION OR
DELIVERY OF THIS GUARANTY OR ANY RELATED DOCUMENT, THE PAYMENT AND PERFORMANCE
OF ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OR THE ENFORCEMENT OF ANY RIGHT OR
REMEDY DESCRIBED THEREIN, OR ANY CLAIM, DEFENSE, SETOFF OR COUNTERCLAIM ARISING
OR ASSERTED IN CONNECTION THEREWITH.
Dated as of this 7 day of July, 00.
GUARANTOR: XXXXXX X. XXXXXXX GUARANTOR:
By: /s/ XXXXXX X. XXXXXXX By:
------------------------------- -------------------------------
6
SECRETARY'S CERTIFICATE OF DIRECTORS' RESOLUTIONS
AND INCUMBENCY FOR CORPORATE LESSEE
WHEREAS, INTERACTIVE TELESIS, INC. ("Lessee") desires to enter into
certain equipment leases and/or other financing arrangements with LFC, Inc.
("Lessor") pursuant to which it is contemplated that Lessor may lease certain
equipment and/or extend other financing arrangements to Lessee; and
WHEREAS, Lessee deems the foregoing leases and other financing
arrangements with Lessor to be in its best interests;
NOW, THEREFORE, it is hereby:
RESOLVED, that any of the officers of Lessee, and each of them, are hereby
authorized, directed and empowered, either jointly or severally, for and on
behalf of and in the name of Lessee to enter into such leases and other
financing arrangements with Lessor and any other party at this time or at any
other time, as they, or any of them, may see fit; and it is further
RESOLVED, that said officers, and each of them, are hereby authorized,
directed and empowered, either jointly or severally, for and on behalf of and in
the name of Lessee, to lease any equipment from Lessor and grant security
interests in, mortgage or pledge any or all of the property and assets of
Lessee, real, personal, or mixed, tangible or intangible, to Lessor or any third
party as security; and it is further
RESOLVED, that said officers, and each of them, are hereby authorized,
directed and empowered to make, execute and deliver to Lessor or any third
party, either jointly or severally, for and on behalf of and in the name of
Lessee, any and all leases, instruments, agreements, financing statements, and
other documents with or in favor of Lessor and any and all amendments,
supplements, modifications, extensions, restatements, renewals or replacements
thereof; and it is further
RESOLVED, that all action heretofore taken and all documentation
heretofore delivered by any of said officers, or by any individual who
currently holds or has held any of said offices, in furtherance of the
foregoing is hereby ratified, adopted, approved and confirmed and declared to
be binding and enforceable obligations of Lessee in accordance with the
respective terms and provisions thereof; and it is further
RESOLVED, that the authorizations herein set forth shall remain in full
force and effect until written notice of their modification or discontinuance
shall be given to and actually received by Lessor at its address designated in
the documents mentioned above, but no such modification or discontinuance shall
affect the validity of the acts of any person authorized to so act by these
resolutions performed prior to the receipt of such notice by Lessor.
I, _______________ do hereby certify that I am the Secretary of Lessee
which is duly organized and validly existing under the laws of the Nation of
Canada and licensed to conduct business in each applicable jurisdiction; that I
am the keeper of the corporate records and the seal of Lessee; that the
foregoing is a true and correct copy of resolutions duly adopted and ratified
at a special meeting of the Board of Directors of Lessee, duly convened and
held in accordance with its Bylaws and the laws of said State on the _____ day
of __________, _____, as taken and transcribed by me from the minutes of said
meeting and compared by me with the original of said resolutions recorded in
said minutes; that the same have not in any way been modified, repealed or
rescinded but are in full force and effect; and that the foregoing resolutions
are not inconsistent with the Certificate of Incorporation and Bylaws of Lessee.
I further certify that the following are all of the officers of Lessee and
that the signatures placed next to their names are genuine and authentic in all
respects:
PRINTED NAMES OFFICERS (2 SIGNATURES PER COVER LETTER)
PRESIDENT _______________________________ _______________________________
VICE PRESIDENT _______________________________ _______________________________
SECRETARY _______________________________ _______________________________
TREASURER _______________________________ _______________________________
WITNESS, my hand and the seal of Lessee on this _____ day of __________, _____.
/s/ [Signature Illegible]
-------------------------
Secretary
Corporate Seal
I, _______________, the President of Lessee do hereby certify that
______________________________ is the duly appointed and incumbent Secretary of
Lessee .
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Title: President
