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EXHIBIT 10.32
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THIS EQUIPMENT LEASE AND THE PERSONAL GUARANTY ARE
NON-CANCELABLE CONTRACTS CONTAINING SIGNIFICANT
FINANCIAL OBLIGATIONS. PLEASE READ THE FRONT AND BACK
OF THIS DOCUMENT CAREFULLY BEFORE YOU SIGN EITHER
OBLIGATION. WE HAVE WRITTEN THIS DOCUMENT IN "PLAIN
ENGLISH". WHEN WE USE THE WORDS "YOU" OR "YOUR", WE
MEAN THE LESSEE IN THE LEASE AND THE GUARANTOR(S) IN
THE GUARANTY. WHEN WE USE THE WORDS "WE", "US" OR
"OUR", WE MEAN Media Capital Associates.
EQUIPMENT LEASE
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LESSEE Legal Name Contact Phone No.
Interactive Telesis, Inc. Xxxxxx X. Xxxxxxx 000-000-0000
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Business Street Address/City/State/Zip County Tax Identification No.
535 Encinitas #116 000000000
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SUPPLIER Name Contact Phone No.
Dell Xxxxxxx Xxxxxxxx 000-000-0000
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EQUIPMENT Equipment Location (if the same as Lessee's address,
check here only [x])
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Quantity Make and Model General Description
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.03378
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KEY TERMS Lease Term No. of No. of Advance Security
(months) Payments Advance Payments Payment Xxxxxx Xxxxxxx
00 00 0 $2,991.48 $0.00
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Payment Amount(s) Payment Frequency Purchase Option price
$1,495.74 [X] Monthly [X] Fair Market Value
[ ] Other (see below) [ ] Estimated Fair Market
Value of ___% of the
total Equipment cost
[ ] Nominal Price of
$_________________
[ ] Nominal Price of
___% of the total
Equipment cost
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1. LEASE: You agree to lease from us the equipment described above (the
"Equipment") on the terms contained in this equipment lease (this "Lease"). The
Equipment is described in greater detail on the sales invoice from the supplier
of the Equipment identified above (the "Supplier"). You authorize us to correct
errors in the information contained in this Lease and enter additional omitted
information. We will send you a copy of the final version of this Lease. This
Lease is a complete and exclusive statement of your and our agreement for the
lease of the Equipment, and may be modified in writing only. WE ARE INDEPENDENT
OF THE SUPPLIER, AND NO EMPLOYEE OR AGENT OF THE SUPPLIER IS AUTHORIZED TO
MODIFY THIS LEASE OR MAKE ANY REPRESENTATION OR WARRANTY ON OUR BEHALF.
Interactive Telesis, Inc. Media Capital Associates
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Lessee's Name Lessor's Name
/s/ XXXXXX X. XXXXXXX /s/ XXXXXXXX XXXX
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Lessee's Signature Lessor's Signature
Xxxxxx X. Xxxxxxx, President 5/18/00 Xxxxxxxx Xxxx, Ops Mgr 5/30/00
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Signer's Printed Name and Title Date Signer's Printed Name and Title Date
(if applicable)
PERSONAL GUARANTY
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To induce us to enter into the Equipment Lease (the "Lease"), you irrevocably
and unconditionally guarantee to us, and to our successors and assigns, the
timely performance of all of the Lessee's obligations described in the Lease
(the "Guaranty"). We may require that you perform this Guaranty without us
first attempting to enforce the obligations of the Lessee; and we have no
obligation to liquidate the Equipment or any other asset. Without affecting
your obligations under this Guaranty, and without any notice to you, we may
release the Lessee from all or any part of the Lessee's obligations under the
Lease, we may release, transfer, or otherwise impair our interest in the
Equipment, and we may modify any of the terms of the Lease. This Guaranty will
be enforceable even if the Lease is unenforceable for any reason. Each of you
are separately and completely responsible for performance of this Guaranty. You
waive all suretyship rights that you may have in connection with this Guaranty,
including notice regarding the Lessee's financial condition or performance
under the Lease, or the disposition of the Equipment. You shall reimburse us
for any expense that we incur in enforcing this Guaranty against you,
including attorney's fees. This is a complete and exclusive statement of your
obligations under this Guaranty, and may be modified in a writing signed by us
only. THIS GUARANTY IS GOVERNED BY RHODE ISLAND LAW. YOU CONSENT TO THE
JURISDICTION OF COURTS IN RHODE ISLAND, AND YOU WAIVE YOUR RIGHT TO TRIAL BY
JURY.
/s/ XXXXXX X. XXXXXXX
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Guarantor's Signature
Xxxxxx X. Xxxxxxx 5/18/00
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Printed Name Date
0000 Xxxxxxxx Xxxxx/Xxxxxxxxx, XX 00000
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Home Street Address/City/State/Zip
###-##-#### 000-000-0000
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Social Security No. Home Phone No.
/s/ X.X. XXXXX X.X. Xxxxx 5/18/00
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Witness' Signature Printed Name
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2. TERM: This Lease will start when we sign it, and will continue for the
lease term specified above (the "Term"). The Term may be extended under the
circumstances specified in Section 12 (the "Extended Term"). ONCE WE HAVE
SIGNED THIS LEASE, YOU MAY NOT CANCEL THIS LEASE FOR ANY REASON.
3. RENT: You will pay us rent in the amount(s) and at the frequency
specified on the front of this Lease, without abatement for any reason. Payment
amounts are based upon the total amount ???? to be financed for the purchase
of the Equipment. INCLUDING A FEE FOR PREPARING THIS LEASE. We will adjust the
amount of the payments if the actual amount financed is different. Unless
otherwise specified on the front of this Lease, the first rental payment will
be due upon your acceptance of the Equipment, and subsequent rental payments
will be due on the day of the month specified in your first xxxx. Advance
rental payments will be applied to your first payment and then to your last
payment(s). We will ask you to acknowledge your acceptance of the Equipment by
telephone or in writing. IF ALL OR PART OF A RENTAL PAYMENT IS NOT PAID WHEN
DUE, WE MAY CHARGE YOU THE GREATER OF $25.00 OR 10% OF THE AMOUNT PAST DUE. We
shall determine the order in which your payments are applied to your
outstanding obligations owing to us.
4. TITLE AND SECURITY INTEREST: If you have an option to purchase the
Equipment at the end of the Term for its fair market value or an estimate of
its fair market value, we have title to the Equipment. In all other cases, you
have title to the Equipment, and took title directly from the Supplier. If you
have title to the Equipment, you grant us a security interest in the Equipment
and its accessions to secure all of your present and future obligations owing
to us or our affiliates (the "Obligations"). You will not permit any party other
than us to have an interest in the Equipment. If requested by us, you will
allow us to conspicuously display our ownership or security interest on the
Equipment. YOU GIVE US POWER OF ATTORNEY TO SIGN AND FILE FINANCING STATEMENTS
IN YOUR NAME COVERING THE EQUIPMENT AND ITS ACCESSIONS. YOU WILL REIMBURSE US
FOR OUR ADMINISTRATIVE COSTS AND THE GOVERNMENTAL FEES RELATED TO SUCH
FILINGS. To further secure the Obligations, you grant us a security interest in
any security deposit specified on the front of this Lease. The security deposit
will not earn interest, and will be commingled with our general funds.
5. SELECTION, PURCHASE AND QUALITY OF EQUIPMENT: YOU SELECTED BOTH THE
EQUIPMENT AND THE SUPPLIER. WE ARE LEASING THE EQUIPMENT TO YOU "AS IS", AND
MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE EQUIPMENT
(INCLUDING IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND ABSENCE OF INFRINGEMENT). YOUR OBLIGATIONS UNDER THIS LEASE ARE
ABSOLUTE, AND MAY NOT BE REDUCED OR OFFSET FOR ANY REASON. THOSE OBLIGATIONS
WILL BE UNAFFECTED BY THE LOSS OR DESTRUCTION OF THE EQUIPMENT. ANY DISPUTE WITH
ANY PARTY ABOUT THE PERFORMANCE OR SERVICING OF THE EQUIPMENT, OR THE
OBSOLESCENCE OR DIMINISHED UTILITY OF THE EQUIPMENT. YOU ARE THE BENEFICIARY OF
ANY PROMISES OR WARRANTIES EXTENDED TO ??? THE SUPPLIER, AND YOU MAY CONTACT THE
SUPPLIER FOR A DESCRIPTION OF THOSE RIGHTS.
6. USE, REPAIRS AND SERVICE: You will use the Equipment for commercial
purposes only. You will not alter the Equipment, allow it to be used by anyone
other than you or your employees, or, without our permission, move it to a
location different from the equipment location specified on the front of this
Lease (the "Equipment Location"). You will not permanently integrate the
Equipment with any realty, and it will remain personal property. You will use
the Equipment only in the manner for which it was intended, keep it in good
condition, and service it in accordance with the manufacturer's instructions.
All replacement parts and additions to the Equipment either become our
property or are subject to our security interest.
7. RISK OF LOSS AND INSURANCE: YOU BEAR THE RISK OF LOSS FOR THE EQUIPMENT
FROM THE TIME THAT IT IS SHIPPED TO YOU, UNTIL IT IS RETURNED TO US AT THE
DESTINATION SPECIFIED BY US. You will keep the Equipment insured for its
replacement cost, against all standard risks, and you will name us as Loss
Payee. If we have title to the Equipment, you will also carry public liability
insurance, in an amount specified by us, naming us as an Additional Insured.
YOU GIVE US POWER OF ATTORNEY TO ENDORSE AND NEGOTIATE CHECKS PAID TO YOU AS
PROCEEDS OF INSURANCE REQUIRED BY THIS SECTION. If you fail to provide us with
evidence of such insurance, we may purchase insurance covering the Equipment
that benefits us only. Insurance purchased by us may include coverages beyond
those required by this Section. You shall pay us for the cost of such
insurance, including: (a) premium expense, (b) premium finance charges, and (c)
fees for billing and other administrative services. Our affiliates may act as
insurance carrier, premium finance company and/or insurance administrator, and
may be compensated through premium charges, commissions, premium rebates and
fees. WE ENCOURAGE YOU TO OBTAIN YOUR OWN INSURANCE, SINCE IT IS LIKELY TO COST
YOU LESS AND MORE THOROUGHLY PROTECT YOUR INTEREST IN THE EQUIPMENT. We will
promptly discontinue any insurance that we have purchased protecting our
interest in the Equipment, when you provide us with evidence of your own
insurance meeting the requirements of this Section.
8. TAXES: You are responsible for all taxes and other fees imposed in
connection with the lease ??? or ownership of the Equipment (including sales,
use, and property taxes). If we have title to the Equipment, we will pay the
applicable property taxes. We will either ask you to reimburse us or the amount
that we pay, or we will estimate the annual charge and xxxx you a ratable
portion with each rental payment. TO DEFRAY THE COST OF DECLARING AND PAYING
YOUR PROPERTY TAX, WE MAY CHARGE YOU AN ANNUAL FEE.
9. INDEMNITY: You will ????? us (using counsel approved by us) against all
claims and costs (including fees of counsel) relating to the Equipment or this
Lease, including those arising from the manufacture, installation, maintenance,
use or ownership of the Equipment, and you will promptly pay all such claims
and costs as they arise. If we have title to the Equipment, you will reimburse
us for any economic loss resulting from an adverse change in the depreciation
method(s) or the recovery period(s) available for the Equipment. These
indemnities survive the termination or expiration of this lease.
10. DEFAULT: You will be in default under this Lease if: (a) you fail to make
any payment required by this Lease within ten (10) days of its due date, (b) you
fail to comply with any other term of this Lease or any other agreement with us
or an affiliate of ours, (c) you or any guarantor of your obligations dies,
transfers a significant portion of your assets, or goes out of business, or (d)
you or any guarantor of your obligations becomes insolvent or subject to
bankruptcy, receivership or similar reorganization or liquidation proceedings.
If we waive your performance of any term of this Lease at one or more times, it
will not preclude us from enforcing that term at a later time.
11. REMEDIES AND RECOVERY COSTS: Upon your default under this Lease, you will
promptly compensate us for the loss of our bargain (the "Damages"). The amount
of the Damages will be determined as of the time that you make payment to us for
the Damages, and will be equal to the sum of: (a) all past due amounts owing
under this Lease, (b) an estimate of any property tax which we will owe for the
Equipment, (c) all amounts yet to become due under this Lease, and (d) the
amount of any nominal price or estimated fair market value purchase option or,
in the case of a fair market value purchase option, the residual value which we
expected to realize for the Equipment. When calculating the Damages, all amounts
which would otherwise be payable at some future date will be discounted to
present value at the rate of 7% per year. We may also terminate this Lease and
require you to return the Equipment to us in the manner specified in Section 12.
If you fail to do so, we may go to the Equipment Location and repossess the
Equipment. If we sell or re-lease the Equipment, we will credit you for the
present value of the sale or re-lease proceeds. We will provide you with ten
(10) days advance notice of any sale of the Equipment, which you acknowledge is
reasonable. You will be responsible for all recovery costs that we incur after a
default, including: (A) attorney's fees and all other out-of-pocket costs
associated with enforcing your obligations or in repossessing the Equipment, (B)
$250.00 to cover our internal collection overhead, and (C) $250.00 to cover our
internal repossession and remarketing overhead. In the event that you repudiate
this Lease before we pay the Supplier for the Equipment, we may keep the Advance
Payment Amount and any Security Deposit instead of requiring you to pay us the
Damages.
12. PURCHASE OPTION AND RETURN OF EQUIPMENT: If you have performed all of your
obligations contained in this Lease, you may keep the Equipment at the
expiration of the Term, or any Extended Term, for the purchase option price
specified on the front of this Lease. If the purchase option price is fair
market value, we will specify the fair retail value which you must pay to
purchase the Equipment from us. UNLESS YOU NOTIFY US OTHERWISE, OPTIONS FOR
NOMINAL PRICES NOT EXCEEDING THE AMOUNT OF THE HIGHEST PERIODIC RENTAL PAYMENT
WILL BE DEEMED EXERCISED, AND SUCH PRICE WILL BE ADDED TO YOUR FINAL RENT
PAYMENT. In all other cases, you must notify us of your decision to keep or
return the Equipment at least sixty (60) days prior to the expiration of the
Term, or any Extended Term. Your purchase of the Equipment from us will be
"AS-IS, WHERE-IS." If you decide to return the Equipment, you will promptly
ship the Equipment to a destination specified by us. You will pay us for any
damage to the Equipment in excess of ordinary wear and tear. If you have title
to the Equipment, you will transfer title to us free and clear of the interests
of others. If you do not timely notify us of your decision to keep or return
the Equipment, we may extend this Lease for an additional twelve (12) month
period, at the same periodic rentals required during the initial Term.
13. TRANSFER AND SUBLEASE: YOU MAY NOT ASSIGN YOUR RIGHTS OR DELEGATE YOUR
OBLIGATIONS UNDER THIS LEASE, OR SELL OR SUBLET THE EQUIPMENT. We may transfer
our interest in this Lease or the Equipment at any time. If that happens, the
rights of the new owner of this Lease to receive rents and other amounts under
this Lease will not be subject to any claims or defenses that you may have
against us or any other party.
14. LOUISIANA PROVISIONS: If you have title to Equipment that is located in
Louisiana, you confess judgment in our favor in the amount of the Damages and
other recoverable costs specified in Section 11. In the case of a default, we
may immediately seize that Equipment pursuant to executory process and sell it
to the highest bider. You waive all statutory protections afforded to you in
connection with such seizure and sale, including rights to notice, demand,
delay and appraisement contained in articles 2293, 2331, 2332, 2336, 2639,
2721 through 2724, and 2733 of the Louisiana Code of Civil Procedure.
15. GOVERNING LAW AND PLACE FOR SUIT: THIS LEASE IS GOVERNED BY RHODE ISLAND
LAW. YOU AND WE BOTH: (a) CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF COURTS IN
RHODE ISLAND TO RESOLVE ANY DISPUTE ABOUT THIS LEASE, (b) WAIVE THE RIGHT TO A
JURY TRIAL, AND (c) AGREE THAT LEGAL PROCESS MAY BE SERVED BY CERTIFIED MAIL.
16. MISCELLANEOUS: All notices required by this Lease must be in writing. WE
MAY CHARGE YOU A FEE FOR PREPARING LEASE HISTORIES, SENDING YOU DUPLICATE
COPIES OF DOCUMENTS, AND FOR OTHER REQUESTS THAT YOU MAKE OF US CONCERNING THIS
LEASE. If this Lease is considered a loan of money because you have a purchase
option for a nominal price, we do not intend to charge you interest in excess
of the highest lawful rate. Any interest collected in excess of that limit will
be applied to reduce your loan balance, or will be refunded to you.
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SCHEDULE "A"
EQUIPMENT SCHEDULE
THIS SCHEDULE is attached hereto and made part of that certain Equipment Lease
Agreement, number 0113133-004, ("Lease") between Media Capital Associates,
L.L.C., as Lessor, and Interactive Telesis, Inc., as Lessee;
VENDOR: DELL
XXX XXXX XXX
XXXXX XXXX, XX 00000
1 DELL POWEREDGE 4400 BASE, 866MHZ WITH 256K CACHE, P3 XEON
1 LOGITEC SYSTEM MOUSE W/DRIVER DISKS
1 POWER SUPPLY, REDUNDANT OPTION FOR DELL POWEREDGE 4400
1 RACK RAILS, INSIDE AND OUT FOR DELL POWEREDGE 4X00/6X00
1 QUIETKEY KEYBOARD, 104 KEY, 6 PIN OR 1.0 FOR DELL POWEREDGE 4400/6300
1 1GB RAM, 133MHZ, 8 X 128MB DIMMS, FOR DELL POWEREDGE 4400
1 2ND PROCESSOR, 866MHZ/256, P3, XEON FOR DELL POWEREDGE 4400
1 17/40X, SCSI CD ROM #1 BLACK FOR DELL POWEREDGE 4300/6300
1 1.44MB, 3.5 FLOPPY DRIVE, FOR DELL POWEREDGE SERVERS
1 9GB ULTRA 3 SCSI SMART HARD DRIVE, 1" 10000 RPM FOR DELL POWEREDGE 4400
1 9GB ULTRA 3 SCSI SMART HARD DRIVE 1" 10000 RPM FOR DELL POWEREDGE 4400
1 9GB ULTRA 3 SCSI SMART HARD DRIVE 1" 10000 RPM FOR DELL POWEREDGE 4400
1 PERC3-DI RAID ENABLER KIT WITH 64MB CACHE FOR DELL POWEREDGE 4400
1 CONFIGURATION #3, ROMB 1/NO DRIVES IN CAGE FOR DELL POWEREDGE 4400
1 INTEL PRO 100 PLUS, POWEREDGE
1 INTEL PRO 100 PLUS, POWEREDGE
3 DELL POWEREDGE 2450 BASE, P3, 733MHZ PROCESSOR W/256K CACHE
3 2 EACH, POWER SUPPLIES 330W, 2U, DOMESTIC, REDUNDANT DEL DELL POWEREDGE
2450
0 XXXXXXXX XXXXXXXX 000 XXX, 0XXX
3 RACK CABLE MANAGEMENT ARM, FOR DELL POWEREDGE 2450, 2U, WATT
3 DELL POWEREDGE 2450, 733 MHZ, 256K, SECOND PROCESSOR
1GB SDRAM, 1333MHZ, 4X256MB DIMMS FOR POWEREDGE 2400
3 COMPACT DISK DRIVE, 680, IDE, INTERNAL, NO CONTROLLER/NO CABLES, BLACK,
FOR PE2450
3 MONITOR OPTION-NONE
3 HARD-DRIVE CONFIGURATION #2, MR0/N FOR DELL POWEREDGE 2450
3 1.44, 3.5" FLOPPY DRIVE, FOR DELL POWEREDGE SERVERS
3 9GB U16OM SCSI SMART HARD DRIVE, 1", 10000RPM, FOR DELL POWEREDGE 2450
3 9GB U16OM SCSI SMART HARD DRIVE, 1", 10000RPM, FOR DELL POWEREDGE 2450
3 9GB U16OM SCSI SMART HARD DRIVE, 1", 10000RPM, FOR DELL POWEREDGE 2450
3 9GB U16OM SCSI SMART HARD DRIVE, 1", 10000RPM, FOR DELL POWEREDGE 2450
3 EMBEDDED RAID W/SOFTWARE FOR POWEREDGE 2450
3 2 INTEL POR 100 PLUS NETWORK INTERFACE CARDS FOR DELL POWEREDGE
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: /s/ XXXXXXXX XXXX
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Xxxxxx X. Xxxxxxx
Title: President Title: Operations Mgr.
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Date: 5-18-00 Date: 5-30-00
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0000 Xxxx Xxxxxxxxx Xx., Xxxxx X-000, Xxxxxxxxxx, XX 00000,
(000) 000-0000, FAX 000-000-0000
