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Home My WebLink About5.683 Original Contract .... 04/28/2004 12:00 4258250323 AGIBART US BANK MPs PAGE 01 s. 1013 .".~ .' Amy Gibart US Bank Merchant Services Phone 425-825-5713 Fax 425-825-0323 **......**....**.......**.......***..***.....****.....***......**....... To: 360-417-4711 Date: 4-28-04 Attention: Kathy Emery Re: Lease agreement Number of Pages: 5 **......*..................*.....***.......**.**.............***.*...*.. Hi, I sent an email as well. Please have Yvonne sign by the arrow. Leave the other areas blank. I only need the first page of this faxed back. Thank you ., ~ S-L(-OLf '* l ~5 e a S v e -e--vY}. <0A -+ ~ for cV'e~ CtLro- i...e-rI'YLliLCC\ fiJ l()m S/tO( ~ f66 I U.S. BANK MERCHANT SERVICES CREDIT CARD PROCESSING PROPOSAL FOR City of Port Angeles Pool April 21,2004 SWIped/Qualified' Keyed/Mid-Qualified *: Non-Qualified: 1.79% + $0.29 Per Transaction 2.66% + $0.39 Per Transaction 3.39% + $0.39 Per Transaction * Address verification required on keyed transaction. The majority of your transactions will be qualified. Processing fees may be adjusted from time to time to reflect and correspond to Increases or decreases in applicable Visa/MasterCard Interchange, Assessments and Debit Network Fees. *US Bank provides next-day funds availability to US Bank checking accounts. *US Bank calculates the fees and deducts them the first business day of the month following the processing month. Terminal Pricing Hypercom T7Plus terminal/printer: Purchase price $645 + tax 36-month lease $29.00/month + tax Schedule of Fees: . Application Fee: . Monthly Minimum Fee: . Chargeback Fee: . ACH Fee: . Additional location Fee: . Supplies: Not applicable $25/ account $15 per occurrence $5.00/month $30 (one time fee) Purchased by merchant Of course, US Bank offers 24-hour customer service, 7 days a week. Amy Gibart Senior Account Executive US Bank 425-825-5713 direct line NOVA [!E;jbank@ INFOKMJ'.rION SYSTEMS Ddle Merchant Application D J\ew Al(.l)Unl Q AJrJ LOldCIOtl [\I:.tlng MID D Rc.[nrollment Rel,UlOnshlp usa .' /^, Legdl or Corpordte !\dme 0/ Bu:.me:.:. City of Port Angeles D/B/A Ndme of BU~ll1e:.:. William Shore Memorial Pool y ear C~tdbil~hed nla ConldU r-:dllle Kathy Emery Mall Statemen~ X Corporate Address D/B/A Bu"ne>, Addr", 225 E. 5th St. Cily Port Angeles BU,lOe>> Telephone 360-457-0411 Store # (10 digIts) BU:'lne:.:. FdX Web:'lte Address ZIp Code 98362 360-417-4711 Counlry USA D&B # Sidle Wa Customer ServIce Contdll Ndllle Kathy Emer~ Corpordte Addre>> PO Box 1150 Corpordle Fax CIty Port Angeles Stdte Wa ZIp Code 98362 Country / n{ p,>~)yit .' <;$t;~v,., Dc Corpord110n - Pmdte Co D Sub S Corp DL,mltcd LIabIlIty Corp DTdX Exempt (Included Fed Tax Id and documen~ to ~upport Exempt Statu:.) , ""lW WGovt (Local/State/Federal) DOther (Tru~b. etc) x Officer (tllle) Fmance Director Flr~1 J\dme Yvonne Ld!ot J\dme ZlOmkowski Home ^ddre~:. [mall Addre:.:. Offit.er(tltle) Home ^ddre~:. Emall Addre:.s City State Zip Code SSN DYe:. DNo DYes DNo DYes DNo Home Telephone Driver':. Lllen!oe ID # State b:.ued DOB Hdve you or dny oflhe Owner~/Pdrtner:./Offker:. 01 the lumpdny ever liled bdnl-.ruptlY fur bu:.me!o:. or per:.unal bankruptcy" Irye:., pled:.e expldll1 Y caT:' e...penenle 1Il tlm mdu:.try Yedr~ Month:. Ha:. thl~ DBA dllOunt ever at.t.epted lredlt or debit ldfd:. prevlUu:.ly' (under current owner:.hlp) Ifye:., n<lll1e of the prevlOU:' ldrd dlt.ept,mt.e prule:.:.or Ifno dnd you hdve been m bu:.me:.:. more thdn 3 month:., pledse explam why you h.\Ve never dlt.epted credit t.drds Have your or <my of the Owner:'/Pdrtner:./OOiler:. of the lompdny ever been tenl1111dted or ~u:.pended by <lny card acceptance compdny? Ifye:., plea:.e expl<llll Do you operdte ~ed:.on<llly) DYe> DI\o DJdn D June 0 July D Aug 0 Sept D au 0 Nov D Dee ~-' Ifmore than 20% ofsdlc~ al.LCpleJ by a retml merLhdnt are Vld Mall, Tdephone or Illtcrnd, plea!oe LompeiLte a Sl.pardtc dpphl.dllOn packagl..(~) for thl. MOrrO doJ/or Internet ~alt:~ I rye:., pled:.e "het.k month:. do:.ed Cdrd Ple:.ent (~wlped) 100 % c..drd Pre~ent (nol :,wlped) M,1110rder % Telephone Order % Internet % (totab must equal 100%) De~t.npl1on ofproduU:. or ...erVl<.e:. olTered Totd! Monthly ~<de:. 01 BU:'llle:.:. ~ swimming classes/ sessions, and ~wimmmg gear 20,000,000.00 Tot<ll Monthly VISMMC ~<lle:. S 500.00 ^verdge Sdle Amount S 35.00 For Curd Present tr.tnsdellOn~ when due:. the lu:.lomel relelve the plOduLI 01 :.el\lle" WSdme Duy D It not 3dme day, # of OdY:' (mdude shlppmg tJmeframe) For MalllTcIephone or Internet TransJtlons' When doe:. the lu:.tomer relelve the product or :.ervlce" # o[DdY~ (llldude :.hlpplllg limefrdme) Do you u:.e a fulfillment house or telemdrketmg compdny" Dyes DNo Ifye:., please provide name ofwmpany, address and telephone For Internet TransactIOns ProdUll Web:'lle Addle:.:. Doc:.lhe web:'lte meet dlllntemel reqUlremen~" DYe:. DNa h thl:' web:'lte :.et.ure? DYes DNo TERMS OF SERVICE VERSJON# 2004 Pdgelur3 GI:NAPPI01103tE Plea:.e 100tlal Here 04/28/2004 12:00 4258250323 AGIBART US BANK MPS PAGE 02 .' 6 u.oc:.o UDCO LM./ng Lease Number Leeee SUlrt Date 555 St Chal1es Drive Suite 200 Thousand Oaks. CA 91360 1-800-67B,8666 NON-CANCELABLE EQUIPMENT FINANCE LEASE (COMMERCIAL) ABOUT YOUR BUSINESS -, Partnership -, Sole Proprietorship n LLC laOlher 6-0\1'1'. e.n.n'+ Years in Busln8ss~ EQUIPMENT SUPPLIER Supplier Name NOVA Inform.lion Iy.a.m. Inc Billing Address One Concours. Parkway Suite 300 City Atlanta State GA Telephone (770) 3t8.1~&6 Zip Code 30328 EQUIPMENT & PAYMENT INFORMATION Dascnption (Manufacturer. Model) ~~~r~ ~\Lb Ouantlty I LEASE TERM MONTHLY PAYMENT $ ~ ~ MONTHS 2 .00 (PLlJS TM~, IF APPt.ICAIllE) Bank Nam. lJ.s 13 a ABOUT YOUR BANK Branch .5 I (Lessee). In the capacity set forth below, hereby authorize LADCO Leasing, or Its designee, successor or esslgn (hereinafter 'LESSOR") to wtthdl'Bw Bny amounts. Including any and all 1a,c8& now due or Imposed. owed by ma In conjunction with the above referenced transactIon, by InItiating debit entries to my account at the flnancialll1l!ltltutlon (hereinafter .BANK') indicated above, or as such other BANK as the Lessee may from "me to time use, In the event of defeult of my obligation hereunder. I authorize debit of my account for the full amount due unCler this Lease Agreement. A rsntal payment (whether paid by debit or other meilne) thatla not honored by my BANI( for any reason will be subject to 8 returned ,lam service fee Imposed by LESSOR, the amount of which may be debited from my account Should It be necessary to switch to statement billing. LESSOR Is authOrized to add a $5 00 per month service charge to my monthly peyment amount as relmbursemant for the added service and processing expenses In the evant that LESSOR withdraws funds erroneously from my account. I authorize LESSOR to credit my account for an amount not to exceed the onglnal Bmount of the debit This authorization is to remain In full force and effect until LESSOR and BANK have received wnUen notice from me of its termination In such time and in such manner a& 10 afford LESSOR and BANK a reesonabla opportunity to ael. I REPRESENT AND WARRANT ON BEHAlF OF LESSEE THAT THIS CHECKING ACCOUNT HAS BEEN ESTABUSHED AS A BUStNESS.PURPOSE CHECKING ACCOUNT. LEASE ACCEPTANCE THIS 15 A NON-CANCELABLE LEASE FOR THE FULL TER"" tNDtCATED HEREIN. The undersigned agrees to all terms and conditions contained in this Equipment F,nence Lease Agreement Lessee acknowledges receipt of a copy of this four page agreement with all terms and conditions filled In Lessee certmes that the Equipment shall be used for bUSIness purposes -) ~ Z lorn The undel'Glgned unconditionally guarantees performance of the Lease by LESSEE and payment of all sums due hereunder in the event of default. hereby waiving any modification, amendment or elClenslon and notice thereof. The undersigned agrees to pay all attorneys' fees and other expen$8S Incurred by Lessor by reason of default by the Lessee. Thit It a continuing guaranty and shall not be discharged or affected by death of the undersIgned. and shell bind the tlelrs, edminietrators, rapraaentatllfes, successors and assigns The undersIgned hereby directs any consumer reporting agency 10 furnistl El consumer credl' report \hat relates personally to the undersIgned upon the request of LADCO Lsat>ll1Q. lIs designee, sucoeseor or eB81 Bnd e rees that the artie& involved are In com lienee with the Fair Credit R!!p9rt1n Act. Ou.r.ntor'. Signature Print Nama Date X , an Indlvldu.1 HOlM Add,.... City. ST, Zip Code Home Telephone ( ) Social Security Number Acceptanca by LADCO L...lng Date 0_1 u......... ",..,1MI P... t ...~ 04/28/2004 12:00 4258250323 AGIBART USBANK MPS PAGE 03 .' EQUIPMENT FINANCE LEASE TERMS ,. LEASE: 11:RM RENT~ Ladco Lea,lng. Its SUcceAOr! and ."Igns (herelnaftsr "LeIlOr") nereby III_s to LII6Me and l.es_ hereby rents II'om Le8&Or tne equlpmllnt descrlbed above (hel1llnafter, wllfl ell replacement parts. repairs, additions and a~ssones Incorpol1llled Ihereln and/or affixed tnerelo. referred to as the "Equipment"). on term. lInd etlndlllone est for1h ebow and below Bnd conllnued on the reve,.., IIlde hereon: for lhe term Indlceled above. commencing on the date (tha 'Commencemenl Date") that the EQuipment IS accepted by the Lessee, and conllnulng thereafter u"lll temMated as proVided for herein. UnlellS othaFWI. proVided herel" , tne monthly plymenlll shall be payable on tne corresponding day of each monlh lheresftsr. In the amount staled above, unlil the total rent and all otner obligation! of l.aslee shall hllve been paid In 11I11. All payments of rent sh.1I be made to the Leasor by ACH transfer from Lassae's deslgt'lllted account 8S provided sbove. All payments muet be avalleble as required by L.essor. THIS IS A NON.cANCE~LE. LEASE FOR THE TERM INDICATED AIIOVE. 2. PURCWASE AND ACCEPTANCE: NO WARRANTIES Lessee requests LB8sor to purchssa thG Equipment II'om lhe Vendor and arrange for delivery to l.eBBl!M!l Lessee shall pay all assassad COSls for delivery end Installatlon of eQuipmsnt Lesaor snail have "0 responsibility for delay or failure of Vendor to flll lhe ordar for the EqUipment THE LESSEE REPRESENTS THAT LESSEE HAS SELECTeD THE EQUIPMeNT LEASED HEREUNDER PRIOR TO HAVING REQUESTeD THE LESSOR TO PURCHASE THE SAME FOR LEASING TO THE LESSEE, AND THAT LESSEE HAS REVIEWED AND APPROVED THE PURCHASE ORDER OF AGREEMENl W1TW RESPECT TO TWE EQUIPMENT. LII!!SSEE AGREES THAT THE LESSOR HAS MADE AND MAKES NO REPRI!SENTATlONS OR WARRANTIES Of ANY KINO OR NATURE, DIRECTLY OR INDIRECTL.Y, EXPRESS OR IMPLIED, AS TO ANY MAlTER WHATSOEVER, INCLUDING THE SUITABILLlTY OF SUCH EQUIPMENT, ITS DURABIl.ITY, ITS FITNESS FOR ANY PARTlCUL.AR PURPOSE, ITS MERCHANTABILITY, ITS CONDITION, ANDIOR ITS QUALITY AND, AS BElWIEEN LESSEE AND LESSOR AND/OR LESSOR'S ASSIGNEE, LESSEE LEASES THE EQUIPMENT "AS 18D. LESSOR AND LESSOR'S ASSIGNEE SHALL NOT BE LIABLE TO LESSI!:E fOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER OR THE USE OR MAINTENANce THEREOF OR THE fAILURE OF OPERATION THEREOF. OR THE REPAIRS, SERVICE OR ADJUSTMENT THERETO, OR BY ANY DELAY OR FAILURE TO PROVIDE AND TWERl:OF. OR BY ANY INTERRUPTION OF SERVICE OR L08S OF USE THEREOF, OR THE USE THEREOF IN VIOLATION OF THE RIGHTS OF ANY PARTY WHOMSOEVER, OR FOR AP4Y LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. NO REPRESENTATION OR WARRANTY AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE: VENDOR SHALL BE BINDING ON THE LESSOR OR LESSOR'S ASSIGNS NOR SHALL THe: BREACH OF SUCH RELIEVE LESSEE, OR IN ANY WAY AFfeCT, ANY OF LESSEE'S OBLIGATIONS TO THE LESSOR OR LESSOR'S ASSIGNS AS SET FORTH HEREIN. LEMOR AND LESSOR'S ASSIGN DISCLAIM AND SHALL NOT BE RESPONSIBLE fOR ANY LOSS. DAMAGE OR INJURY TO PERSONa OR PROPERTY CAUSED BY THE EQUIPMENT WHETHER ARISING THROUGH THE NEGLIGENCE OF THE LESSOR OR IMPOSED BY LAW. Lessee acknoWledges receipt oftne Equipment descnbed In Its Equipment Lease Agreement With LeSSOr llnd aooepls the Equipment after full Inspection thereof au satiSfactOry tor all Purposes of tne Agreement Lease paymenlS Will be due despite dissatisfaction Wllh the Equipment for eny rellson. If Ihe Equipment Is not propel1y Installed. does nOI operate as I1lpresented or warranted by Ihe Ve"oor or IS unsallsfactory for any reeson, Lessee shell meke any claim 0" account Ihereol solely agal"" the Vendor end heret)y WIIlyes and releases any and llll rights to now or hereefter as!l8rt llny dalm against Lessor concemlng tM EqUipment end shall neverthelelll pay Lessor all renl payable under thiS lellse. Lessor agrees to aS3lgn 10 L.essee, solely lor tne purpose of making end prosecuting eny suCh Claims. any rights It may heve against the Vendor for breach or warTlilnly or repre&entatlonc respecting the EqUlpmenl NOTWITHSTANDlNG ANY FEES THAT MAY se PAID TO VENDOR OR ANY AGENT OF TH~ veNDOR, LESSEE UNDERSTANDS AND AGREES THAT NEtTHER THE VENDOR NOR HIS AGENCY IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS lEASE.. LAOCO Gen."'1 U_ Rw 10103 3. LESSOR TERMINATION BEFORE EQUIPMENT ACCEPTANCE If Within sIxty (60) days from the dele L.easor orders the Equlpmenl. same hBs not been delivered, Installed and eocepled by Lessee (In form sal1ufactory to Lessor) Lessor may. on tan (10) days wl1tte" nobce 10 L.essee. lermlnate thiS 'Mse Bnd Ita obllgallon to Lessee 4. TITLE Lessor shell al all times retain tlUe to the Equlpmenl unless olherwlse agreed to In Wtlltng, All document, of btle end eVidences of delivery shell be dallvered to Lessor Lesses shall not change or remove any InSignia Or letlenng which IS on Ihe EqUipment althe time of delivery thereof. or which Is thereafter placed thereon. Indlcatlnll Lessor'. ownership Ihereof. end at any time dUring tne lease term. upo" request of L.essor, Less.. shall affix to the Equlpmenlln a promInent plllce, IBbels, pllltes or other markings eupplled by Lessor stating tnet the EQUipment Is owned by Lenor LeMor IS hereby authotlzed by l..essee, at Lessee's expense, to. cauSe lhls lease. of any SlBtement or om.r Instrument In r"pect of l"ls lease Showing Ihe Interest of Lessor In the EQuipment. Ineludlng Uniform Commercial Code Financing SttrtemenlS. to be filed or recorded and reflled and re-recorded. LesSl!M!l agrees to eXI!lCUl8 and deliver sny slBIsment or InstNmsnt requssted by Lessor for such purpose, and agrees 10 payor reimburse Lessor for any fihng. recording or slamp fees or \8xes anslng from the filing or recording of Bny such It'lstrument or stslemant Lessee shall at Its expense protect and defend l..essor's IItle at BII limes keeping Ihe Equlpmenl free from all hens and claims whatsoever excepl lor thoee creatad by or arising through L.essor. end shall give Lessor Immedllllte wfltlen nollte thereof and shall It'ldamnify Lessor from Bny loss caused Ihereby Lassee shall execute and deliver 10 Lessor, upon Lessor's reQuest. such further Instruments and I\BSurances as Lessor deems necessary or adVisable for the confirmation or perfection of Lessor's rlghlS hereunder a"d Lessee authonles Lessor to file any such Instrument, including. but not limited to any Uniform Commercial COde FinanCing Statement(s), withoul Lessee's slgnalure and, If the slgnalul1l of Lesue Is required Inereon. Lessse Irrevocably appoints Lt!I8sor as Lessee's Bttorney-in"fact to execute and file any such statement or other Instrument In the name and Ot'l behalf of Lessee. Wlthoul modifying or hmltlng the foregOing or oerogatlnll from Ihe Intention of the parbes. that the transectlons herein shell oonslllule II lease and not a finanCing of the Equlpmenl by L.essor If Bny COurt of compelenl,urlsdlctlon shall holOlhet tne transactio" contemplated herein does constllute a finanCing aoo nol e laese of Ihe EQulPmant by Lessor. then LeS60r !'la, a flrel hen securtty Interest In the Equipment as of the date hereof to secure the obhgellons of Lessee, Its successors and assigns, hereunder a"d L.essor shall have all rights and remedies of e secured party under the U"lform Commercial Code as lIdopted In any appliceble JUriSdiction. 5. CARE AND USE OF EQUIPMENT LesBee shall malnlllin the EqUipment In good operBlInll condlllon, repalr and appeeranee ane! protect the same trom detBnorallOn, other than normal wear and lear: shall use the Equipment In the regUlar cour&e of bUSiness only Within liS normal capaCity, without ebuse and In a mennar oontemplaled by tne Vandor. shall comply WIth lawS, ordinances. regulations. requirements end rules WIth I1lspect to the use. maintenance snd operallon of the EqUipment. Shall "0 mBke any modification. alteration, or addition to ths EqUlpmenl (other tniln normal operetlng accessones or controlll which shall when edded to the EqUipment, become Itle property Of Ihe Lessor) wl\hout tne prior written consenl of Lessor, which shall not be unreet;onabiy Wllnheld. shell nOI so affill the Equipment 10 really as to Change Its nature to real propeny or fixture. and agreea that me EQUipment ShBII remain personal property lit all tlmall regardlsss of how attached or Inatalled. shall keep the EqUipment SltM 10<:8llOn shown abOve, and ,hBII nol remOVe the Equipment WIthout tne consent of Lessor, whlCtl shall not be unreasonably withheld Lessor shall have the right durlng normal hours. upon reasonable pnor nobc;e to lhe Leasee and SUbject to applicable IBws and ~ulallona. 10 enter upon tha premIseS Where tne EQUipment IS located tn oraer to Inspect. observe or remove tne EQuipment, or olheFWI,e protect Lessor Interest 6, fIlt:T LEASE; TAXES Lessee Intends the rental paymenls hel1lunder to be net to Lessor, and Lessee shall pay all sales. use, eXOlse, persone' property, slamp, documentary. ad valorem. groSl> receipt, occupallon snd otner lues, license snd reglstrallon lees. assessments. fines. penallles and other Charges imposed on the ownership. possession or UllB of tne EQuipment during tne term of tnls Leese. snail pay all taKeS (excepl Federal and Slate nellncome talles impolled on Lessor) with respect to Ihls LeaSe lInd the P.lle 2 01 4 04/28/2004 12:00 4258250323 AGIBART USBANK MPS PAGE 04 EQUIPMENT FINANCE LEASE TERMS rental Pilymenta hereunder, and shall reimburse LeMDr upon demand fDr eoy taxes paId by or advenClld by LesaDr. Leuee agrees ttlat ltle reimbursement of pl'Openy tlilX calculation Is based on an avarage tax rate Lessee allrees tD pA)' lessor an annual ree In an amount not tD exceed $25.00 lor \he adminIstration, bIlling and track.lng 01 said ~xas and charges- lessee shall file all retums required by law, Dr as requested by Lenor and fumlsh cople. 10 lesllOr, 1. INDEMNITY lessee ehall and doe. hereby agree to Indemnify and save lessor, Its agen~. aervanta, suc;c;esaors. and assigns hermlelS allalnst and from any i18blltty. dama".., or lose, IncludIng reasonable counsel leas. an sing out 01 ,he Dwnershlp, 'liIlectlon. posseas1on, leaSing, renting, operation (regardlaas of wTlere, how and by wnom operated) control, use. condItion (IncludIng but not IImltlild to latent and other eIe'<<ts, whether or not dlscoverabla by lllll"), maintenance, daltvery and return Df the EqUIpment. Tile Indemnltlell and obligallons herein provldecl shall conllnue In full Iorce and effect notw!thstandlnllthe termlnellon 0' thIS Iaase 8- INSURANCE Lessae shell k"p the EqUipment Insured agelnst all rlsk.s Df loss or damage frDm lIVary cause whatsoaver. In amounts determined by L.assDr provided that no lIVent shall such Insurence be less than ltle loss amount set Iortn In Section 9(b) herein below. The amount of such Insurance sllall be sufflclentao that neiltler ltIe Leasor nor Lessee will be cDnllldered a co- Inllurer Less.. liIlso shell carry public lIablltty Insurance, persDnal Injury liInd property damage, QOvering tne EQulpmant All such Insurance shall provlda that 101MI. If any be payable to Leasor. and all such liability Insurance shall Include Lessor as named Insured liInd requIre that the Insurer lI've LeS!lOf al ..alll ten (10) deys wrltten nDtlce prIor to cancellation thereDf All such pollcl,s ahall provide that such insurance shall not be notloed prior to cancellation thereof All such POIlClBB shall prOVide that such Insurance stlall not be Clilncalled or mOdified. as against lassor, due to any act or neglect on the pert of lessee Lessee ahall pay the premIums lor IUch lfIBurence and dellll8r tD Lessor satisfactory eVIdence of the Insurlill1ce covsrage required hereundar, es requested by Leesor. The proceeds of aUCh Insurance payable as a result 0' loss or dllmllga to eny Item of the Equipment shall be applied to sliltiafy Lessee's obligations as Iil8t Iorth In Paragraph 9 below. lassee hereby Irrevocably appoints lessor as LliISIIee's attomey-in-ract to maka claim ror. receive payment Df end execute and endorse all documents, chacks or drafts received In peyment lor loss or dliImage under any such Insurenca pDllcy. t. RISK OF lOSIl lessee heraby assumas the entire risk of IDss, damage or destruction of the Equipment from any and every call" whatsDever during the term Df this leale liInd ltIereafter until redelivery to LessDr In tha event ot loss, damall' or daBtructlDn of any Item or Equipment. Less.. at Its expense (except 10 the e)ltent of any proceeds of Insurance provldtld by lesaee whIch shell hive b8en received by Lessor as 8 result of suCh lOSS. damlilge or daatruction). Ind at Lessor" optiDn, shall either (a) repair auch Ilem. retumlng It to IlS previous condition, unless damaged beyond repair, Dr (b) pay Lessor all accrued and unpaid rental payments and late charges plus liIn amount (lhe "LOllS Amount") equal to (I) the net pressnt value of ell rentel payments. to become due during \he remlil.nlng term Df thIS lease, discounted at II raw of 6% plilr annum plus (II) tne amount 01 any purchasa DptlDn or Obligation wllh respect 10 tha EqUIpment or, II tne'lil IS no such optlDn or Obligation, the fair market value of the Equipment, liIa estimated by Lessor In Its SOle reasonabla dlscretiDn (c) replace such Item With a Ilka Item aecePlable to lasaor. In good condlllon and of eqUivalent value. which shall become proparty of Lessor, Included WIthIn ltIe term "Equipment" liS used hereIn. and 'easad from l.essor hereWIth for the balence of the fullterm of th,s lea6B to. LOSS OR DESTRUCTION WAIVER Lessor mlilY W81118 Les$ll8a responsibility for loss or destrucbon Df the EqUipment and for keeping the EqUipment fully Insul'8Cl durtng the lease term Should LaBBB9 leil to provlda proof of Insurance, LessDr may InvDke the LOllS Dr Destruction Waiver and Charge a monthly 'ee at current ratas. In the avant of loss or destruction of 1M Equipment. L.essor shall prDVlde lor Its replacement WIth equlpmenl 0' comparable vliIlue at ltIal lime proVIded (I) Lessee look reasonaDle care In preventing the loss Dr destructlDn of the Equipment ana (II) Lessee hes peld In B ttmely manner tha reqUIred monthly amount for tile LoIS or DestructlDn Walvar. Lessea shall cooperate wtth LlSsor In mak.lllg liIny claim wiltl reapect to the EqUipment. L40CO G."era, u.e.NlMI Rev 10103 11. PERFORMANCE BY LESSOR OR Ll!88EE'S OBLIGATION In the event that Lellsee !Illls 10 comply WIth any proviSion of \hIS Lease, Lessor shall have the right, but shall no! be obllgatlild, to effect such compllence on bahalf of Lessee upon ten (10) da~ prior written notice 10 Lessee In suc" event. all moneys axpended by, and all expenMs of Lessor In affecting such oomphance shell be deemed to lie llddlllDnal rental, and shall be paid by Lessee at the time of tha next monthly payment of rant. 12. DEFAULT II anyone of the follOWIng events (each en "event or defaull") shall occur, then to t1'l6 extant permll\ecl by liIppllcsble IllW, LassDr IIhall have the ngnt to axerclse eny one Dr more of the remtldles sal Iorltl In Paragraph 13 below (a) Lessee falls to pay any rental or any other payment haraunder whan due, and such failure continues for five (5) days. or (b) Le6&ee or any guarantor bacomas Insohlent or mak86 an 'SSlgnment for tha benefit of credltDrs. or (c) a reoelV1!lr, trustee, conservalor or liqUidator of Lessee or any guarantor or of all or a substanttal pan of .ts aasets IS liIPpolntl!ld With Dr WithOut the application or consant of Lellee or such guarantor. or (d) a pelltton Is flied by Dr against Lassee or any guarantor under the Bankruptcy Code or any amendmant thereto, or under any other Insolvency law or laws prov,dlng for me rellet of debtors. or (e) Le5&88 falls to pay when due any Obligation tD Lessor ariSIng Independently Df tn,s Laase and such failure continues for five (5) days, or (1) Lellllee breeches any Dther covenant, warranty or agraament hereunder, and such braach conltnues for ten (10) days after written notlca thereOr, 13. REMEDIES If an event ot daleult shall occur as described 11'\ Paragraph 12 liIbove. LassDr may, al IIIiI optIon, at any tIme (a) declare Immadlately due and payabla and recover from lassee, as IIQuldatsd damages lor tha loes of a bargain and not as a penalty, an amount equal tD all accrued and unpaId rental PliIyments and late charges plus the Loss Amount es set Iorth 11'I Secllon 9(b) haralnabove; (b) automallcelly ch8rge any Dr all of my cred.t carelS, oltler IInas of Credit or bank accounts lor ell money amounta owed, (c) wlthoul demand or lagal process amer IntD the premIses where ",e EquIpment may be found and take pOSSBBSIDn of and ramove tile EQUipment. without liability for such retaking: (d) LassDr may hold, 11811 or otherwise diapDsa Df any such EQUipment et a private or publiC sale. In tha evant Lessor lakes posseSSIDn of the EQUlpman~ Lessor shlilll g'w Lessse credit lor any sums received by Lessor from the sale or renUlI of the Equipment efter deduction or ltle expenses of sale or rental. Lessee shlilll elso be liable lor liInd shall pay to Leasor (e) atl expenaas Incurred by La6sor In connection WIth the enforcement of any Df Les$or'a remadl8S, Including all coll8ctlon expenseS. mat Includes, but Is not lImited to charges 'or collections latters and collectlDn cells, chatges of collacllon aganCles. shertffs. atc, all expenses of repossessing. SIOI1"", shipping. rapalrlng and selling Iha EqUIpment. and (b) reasonable a\\Omey's fBes and oourt COSIS. Lessor and Lessee ack.nowledge the difficulty In estabhatllng a value 'or the unellPtred lease term and DwmQ to such difficulty agree tllat the proVISions of ltlls paragraph represent 8n egreed measure of damages and are not to be deemed a forfeiture Dr penalty All remedies or Lessor hereunder are cumulative, ere In addition to eny other remedies proVIded tor by law, and may, to the extent perrnttted by law, be exercised concurrently or separliltely. The exercise of any Dne remedy stlall not ba deemed to be an election Df Iluch remedy or tD precluCle the ellerclse of any Dther remedy, No failure on tne part of the Lessor to exercise and no dalay In exercising any rtght tD remedy shall operate 8S a waiver thereof Dr modify tne lerms Df Iha Lean. 14. LATE CHARGES If lessee 'ails to pay any rent or othar amount required hereIn tD be paid to Lessor WIthin five (5) days of when due, Les6Ba agrees to pay Lessor, In addItIon to the payment, a late chlilrge of 15% of ltle amount past due (but at least $5,00) ror each late payment Such amount shall be payable In addition to all amounts payable by Lessae a6 a rasult of eX8ro," of any of the remedies herein prOVIded. 15. ASSIGNMENT: NOTICE OF INTENDED ASSIGNMENT Lessor may, wlthoUI Leasee's consant, assign or tranafer thIS Lease or any Equipment, rent or other sums due or to become due heraunder, and In such ever'll Lessor'a esslgnea or transferee shall hevs ths nghts, powers, priVIleges and remedlBB Df Le6sor hereunder L86l1lle hereby acl<nowIsdg08 nDtlce of LessDr's Intended aS4lgnment Df lellllOr'$ Intere,t in this Lease, and upon such assignment Lessee agrees not to aSlert, 88 ".fl'I3 <714 04/28/2004 12:00 4258250323 AGIBART US BANK MPS PAGE 05 EQUIPMENT FINANCE LEASE TERMS agalntt Lessor', lIMagn.., .ny deMille, semtf, recoupment, claim or counterclaIm, tl'l8t It my l'Ieve egalnat LellOr whetl'ler anall\g under thl!; 1_ transecbOn or otherwiM. LEISEE SHALL NOT ASSIGN THIS LEASE OR THE EQUIPMENT OR ANY INTEREST HEREUNDER AND SHALL NOT ENlER INTO Nf"( SU8LEASE WITH RESPECT TO THE EQUIPMENT COVERED HEREBY WtTHOUT LESSOR'S PRIOR WRITTEN CONSENT AND IF LESSOR SHALL PERMIT ANY SUCH ABSIGNfIIIENY BY LESsee, THE ASSIGNEE SHAlL ASsuMe LESSEE'S 08LIGATlONS HEREUNDER IN WRITING IN FORM AND SUBSTANCE SATISFACTORY TO LESSOR, BUT NO SUCH ASSIGNMENT SHALL ItE~AlE LEISEI: FROM ANY OF LEssee'S OBUGATlON HEREUNDER. 141. END OF LEAte TeRM (II UPON EXPIRATION OF THE LEASE TERM, LESSEE SHALL HAVE THE OPTION TO PURCHASE EQUIPMENT FOR ITS FAIR MARKET VALUE. SAID VALUE NOT TO ExceED :lO% OF THE AGGREGATE LEAlE PAYMENTS ON 12 MONTH LEASES, 15% OF AGGREGATE LEASE PAYMENTS ON 2A MONTH LEASES. 12% OF THE AGGRI:GATE PAYMENTS ON 31 MONTH L.EA5E8, OR 10% OF THE AGGREGATE l.EAI!IE PAYMENTS ON 48 MONTH OR 10 MONTH LEASES. THE EXERCISE OF THIS OPTION MUST Be CO....UNICATED TO LESSOR IN WRmNG AT lEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE LEASE TERM. (b) IN THE .-vENT LEaSEI! DOES NOT EU!CT TO PURCHASI:: THE eQUIPMI:NT IN ACCORDANCE WITH THE TERMS OF THE lEASE AGREEMENT, THENUPON EXPIRATION OR EMUER TERMINATlON OF THIS LEASE, LESSEE SHALL REllJRN THE EQUIPMENT TO LESSOR IN GOOD OPERATING CONDmON AND REPAIR, SHIPPED BY PREPAID AND INSURED FREIGHT TO A LOCATION DeSIGNATED BY LESSOR. IF THE EQUIPMENT II RETURNED DAMAGED. INCOMPLETE. OR SHOWS SIGNS OF EXCESSIVE WEAR, LEsseE AGREES TO PAY THE REPLACE..ENT COST AND/OR THE REPAIR AND REFURBISHING COST (INCLUDING CLEANING), FOR AN AMOUNT DESIGNATED BY LESSOR AND PAYABLE WITHIN TEN (10) DAYS OF LESSOR'S DEMAND. (e) IF UPON EXPIRATION OR TERMINATlON OF THIS lEASE, LESSEE DOES NOT IMMEDIATELY RETURN THE EQUIPMENT TO LESSOR, THE EQUIP..I:NT SHAl.l CONTlNUE TO BE HELD AND LEASED HEREUNDER. AND THIS LEASE SHALL THEREoUPON BE E)(TENDED INDEFINITELY AS TO TeRM AT THE SAME MONTHLY RENTAl, SUBJECT TO THE RIGHT OF EITHER THE LESSEE OR THE LESSOR TO teRMINATE THE LeAlE UPON THIRTY (30) DAYS WRITTEN NOTlCE, WHEREUPOI\I THE LESSEE SHALL FORTHWITH DELIVER THE EQUIP..ENT TO LESSOR AS SET FORTH IN THIS PARAGRAPH. (d) PROVIDED LESSEE HAll FULFILLED ALL OF ITS OBLIGATIONS TO LESSOR HEREUNDER, LESSEE'S SECURITY DEPOSIT, IF ~Y, AS INDICATED HEREIN, (1) SHALL 8E REFUNDED TO LESSEE AT THE EXPIRATION OF THE L.EASE WITHOUT INTEREST; OR (2) AT lESSeE'S DIRECTION, SUCH SECURITY DEPOSIT MAY BE APPLIED TO THE PURCHASE OF THE EQUIPMENT, IN WHICH EVENT THE EQUIPMENT NEED NOT BE RETURNED TO LESSOR. 17. EFFECTIVE DATE Thl9 Lease shall become valid when executed and accepted by Lessor. notice of Lessor's acceptsnal of this Lease being hereby waived by Less... 18. GOVERNING LAW TI'IIS Lease shall bl binding when accepted In writing by the Lessor and shall ba govemll<l by tl'll laws of the State of California, prOVided. however, In the event th.s lease or any provISion hereof Is not enforceable under the laws of the State of Callfomla then the hilW$ of the state """ere the EqUipment IS located aha" govern. 19. CHOICE OF FORUM FOR RESOLUTION OF DISPUTES Lasll8ll conllenla and aubmlts to tl'le Junsdlctlon of the courts of Iha State Of California 10cat8Cl WIthin Ventura County. and expressly agree to SuCh forum for the brlng,ng of any SUit. aclion or olher proceeding ariSing out of lhe lessee's or guarantor's obligations hereunder and expressly waive any Olljectlon to venue In any lludl courts. 20. WAIVER OF JURY TRIAL LESSEE AND ANY GUARANTOR WAIVE, INSOFAR AS PERMITTED BY LAW. TRIAL BY JURY IN ANY ACTlON, PROCEEDING OR I.ADCO General u..Nova Rev 10lOa LITIGATION BETWEEN OR AMONG LESSOR, LESSEE OR "'NY GUARANTOR. :l1. NO SUBROGATlON Lessee. lassor and eny guarantor agree that no guerentor Shall hava Iny right of subrogabon to eny right of Le8&Or In the EqUipment or this LeaBs or against the Lessee, and that any suCl'l rlotll of subrOgetlon that may eXIst. as well as any right of IndemMy egllllnst Lessee lor any obllgallon which mey be performed by guarantor With respecl to thiS L,ease. IS hereby waived ano relaased 22_ SUBORDINATION All Indebtedness, now eXisting or hereafter enslng. between Lessee aM any guarantor IS hereby subordinated to all present and future obllgadons of lessee or any guarantor 10 Lessor, Including, but not IIml~d to, tile Lepe obligations, and no paymenl sl'lell be mada or aCOElpled on any such Indabtedness due LEI8s" or eny guerantor until all such obllgetlons 10 Lessor are paid and satlsfiad In full, 23_ SURVIVAL OF GUARANTY OBL.IGATION8 All obligations of eny guarllntor shall remain enforceable notwltl'lstanding that thiS lease, or any obllgabons performed hereunder. may be void or voidable a5 agalnstl.atll8ll or any of Lessee's credllonl. Including but not limited to, a trustee In banlmJplcy. lly reaeon 01 any fact or circumstance. 24. MISCELLANEOUS THIS LEASE CONTAINS THE ENTIRE AGREEMENT BelWEEN THE PARTIES AND MAY NOT BE AL. TEReD, AMENDED, MODIFIED, TERMINATED OR OTHERWISE CHANGED INCLUDING BY PRIOR, CONTEMPORANEOUS OR SUBSeQUENT ORAL AGREEMENTS. EXCEPT 8Y A WRlllNG SIGNED BY AN EXECUTIVE OFFICER OF T"E LESSOR. LESSEE CERTIFIES THAT NO SUCH ORAL AGREEMENTS I:X18T. LESSOR AND LESSEE INTEND THIS TO BE A VALID AND SUBSISTING LEGAL DOCUMENT, AND AGREE THAT NO PROVISION OF THIS LEASE WHICH MAY BE DEEMED UNENFORCEABLE SHALL IN ANY WAY INVALID"'TE ~Y OTHER PROVISION OR PROVISIONS OF THIS LEP.SE. ALL OF WHICH SHALL REMAIN IN FULL FORCE AND EFFECT. ANY NOTICE INTENDED TO BE SERVED HEREUNDER SHALL BE DEEMED SUFFICIENTLY SENT IF SENT BY REGULAR MAlL, POSTAGE PREPAID. ADDRESSED TO THE PARTY AT THE ADDRESSES CONTAINED HEREON. THIS L.EASE SHALL 81: BINDING UPON THE PARTIES. THEIR SUCCESSORS, LEGAL REPRESENTATlONS AND ASSIGNS. 25. WAIVER; SEVERABILITY No delay lly Lessor In enforcing any rights under thiS Lease shall be Interpreted as a welver of said nghts If any prOVISion of tl'lls L.ease or the application thereof to any person. bUSlnass entily, or CIrcumstance 1$ determlnad to be Invalid, the remainder of thiS Leese. or the application of sucl'l prOVisions to any parson, bUSiness entity or clrcumatanClls other than those to which It IS held Invalid, shall not be affectad thereby. 26. FINANCE LEASE The parties agree that nlls lease IS a "F,nance Lease" as defined by section 10103 (7) of the California Uniform CommerCial Code (Cal U C.) Lessee ack.nowledges either (a) Il'I8t Lossee has l'eVIewed and approved any wrlnen SUpply Contract (as defined by Cal U.C S 10130 (25)] coile ring the Equipment purchased from the 'Supplier" [a5 defined by Cal U C S 10103 (24)) thereof for lease to LaSllee or (b) that LesBor has Informad or adVised Lessee. In writIng, either prevloullly or by thiS L.ealle of the following (1) the Identity of the Supplier: (2) that the Lesa88 may hava rights under the Supply Contact and (3) that the Lessee may contact the Supplier for a descrlpllon of any such nghte Le!lSGe may have under tha Supply Contract 27. SIGNED COUNTERPARTS ThiS Lease may be signed In counterparlll Delivery of an executed counterpart of the signature page to this Lease by fal( shall be effective as delivery of a manually executed counterpan of Ihls Lease, end any failure 10 deliver a manually executed counterpart sent by ta)( shall not affect tha validIty. anforceablllty, or b,ndlng effact of thiS Agreement Notw~hsland,"g any other proviSion of this Leasa to the contrary, the sole anginal of this Lease for all purposes shall be the Lease bearing the manually executed 61gnatura of L.essor. The L.essee, by making a"y payment reQUIred undar this Lease, ratifies all of the terms of this Lease. Pege. of4