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Exhibit 10.5
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ASCEND CREDIT CORPORATION MILLENNIUM LEASE AGREEMENT # MIL-224
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U.S. Version MIL Lease - 30 Month Term
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Legal Business Name (Lessee): VillageFax.com, Inc.
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D.B.A. (if any):
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Lessee Address: 14471 Chambers Road, Suite 105 Tustin, CA 92780
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Equipment Location (if different from above):
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This Lease Agreement ("Lease") is entered into by and between Ascend Credit
Corporation ("ACC"), a California Corporation, and Lessee. Lessee and ACC may,
from time to time, enter into similar Lease agreements for the Lease of
equipment which collectively with this Lease are Leases ("Leases").
LEASE: ACC agrees to Lease to Lessee, and Lessee agrees to Lease from ACC, the
equipment referenced herein ("Equipment").
LEASE COMMENCEMENT DATE: The Lease Commencement Date shall be the date the
Equipment is shipped by Ascend Communications, Inc. ("Ascend") or
its authorized reseller ("Reseller") as evidenced by a shipping document
provided by Ascend or Reseller related to the Equipment.
LEASE TERM: Lessee will pay Lease payments on a prorated monthly basis for the
period beginning 90 days after the Lease Commencement Date until the next 15th
day of the calendar month and thereafter for each consecutive month of the Lease
Term. After the initial Term, and until Lessee returns the Equipment to ACC, the
Lease shall continue on a month-to-month basis, unless Lessee has notified ACC
of its intent to purchase the equipment by paying the then Fair Market Value
(FMV) of the Equipment. The FMV of the Equipment shall be equal to the value of
the Equipment installed and in use, with consideration given to the age,
condition, utility and replacement costs for the Equipment.
WARRANTIES. ACC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS
FITNESS FOR A PARTICULAR PURPOSE. ACC SHALL NOT BE LIABLE TO LESSEE OR ANY OTHER
PERSON FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING FROM LESSEE'S USE OF THE EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR
ABSOLUTE TORT LIABILITY OR ACC'S PASSIVE NEGLIGENCE. LESSEE HEREBY ACKNOWLEDGES
THAT ANY MANUFACTURER'S OR SUPPLIER'S WARRANTIES WITH RESPECT TO THE EQUIPMENT
ARE FOR THE BENEFIT OF BOTH ACC AND LESSEE. NOTWITHSTANDING THE FOREGOING,
LESSEE'S OBLIGATIONS TO PAY EACH LEASE PAYMENT DUE, OR OTHERWISE PERFORM ITS
OBLIGATIONS, UNDER THIS LEASE ARE ABSOLUTE AND UNCONDITIONAL.
TITLE TO AND LOCATION OF EQUIPMENT. ACC shall retain title to each item of
Equipment. Lessee, at its expense, shall protect ACC's title and keep the
Equipment free from all claims, liens, encumbrances and legal processes. The
Equipment is personal property and is not to be regarded as part of the real
estate on which it may be situated. ACC is authorized to file financing
statements signed only by the ACC in accordance with the Uniform Commercial Code
or financing statements signed by ACC as Lessee's attorney-in-fact. The
Equipment shall not be moved without the written consent of ACC. Lessee shall,
upon ACC's request, affix and maintain plates, tags or other identifying labels,
showing ACC's ownership of the Equipment in a prominent position on the
Equipment.
INDEMNIFICATION. Lessee assumes liability for, and hereby agrees to indemnify,
protect and hold harmless, ACC, and its agents, employees, officers, directors,
partners and successors and assigns, from and against, all liabilities,
obligations, losses, damages, injuries, claims, demands, penalties, actions,
costs and expenses, including, without limitation, reasonable attorneys' fees,
of whatever kind and nature, in contract or in tort, arising out of the use,
condition, operation, ownership, selection, delivery, lease or return of any
item of Equipment, regardless of when, how and by whom operated, or any failure
on the part of Lessee to perform or comply with any of its obligations under
this Lease, excluding, however, any of the foregoing which result from the gross
negligence or willful misconduct of ACC. Such indemnities and assumptions of
liabilities and obligations shall continue in full force and effect,
notwithstanding the expiration or other termination of this Lease. Nothing
contained in this Lease shall authorize Lessee to operate the Equipment so as to
incur or impose any liability on, or obligation for or on behalf of, ACC.
NO OFF-SET. All Leases shall be paid by Lessee irrespective of any off-set,
counterclaim, recoupment, defense or other right which Lessee may have against
ACC, the manufacturer or supplier of the Equipment or any other party. This
includes, but is not limited to, any claim Lessee may have against any supplier
or manufacturer's reseller.
ASSIGNMENT BY LESSEE. Lessee shall not, without ACC's prior written consent, (a)
sell, assign, transfer, pledge, hypothecate, or otherwise dispose of, encumber
or suffer to exist a lien upon or against, any of the Equipment or any Lease or
any interest therein, by operation of law or otherwise, or (b) sublease or lend
any of the Equipment or permit any of the Equipment to be used by anyone other
than Lessee.
ASSIGNMENT BY ACC. ACC may assign, sell or encumber its interest in any of the
Equipment and any Lease. Upon ACC's written consent, Lessee shall pay directly
to the assignee of any such interest all Lease and other sums due under an
assigned Lease. THE RIGHTS OF ANY SUCH ASSIGNEE SHALL NOT BE SUBJECT TO ANY
ABATEMENT, DEDUCTION, OFF-SET, COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT
WHICH LESSEE MAY HAVE AGAINST ACC OR ANY OTHER PERSON OR ENTITY. Notwithstanding
the foregoing, any such assignment (a) shall be subject to Lessee's right to
possess and use the Equipment subject to a Lease so long as Lessee is not in
default thereunder, and (b) shall not release any of ACC's obligations
hereunder.
RETURN OF EQUIPMENT. After the initial Term, upon which time Lessee has
exercised its option to terminate the Lease, Lessee shall, at its expense, cause
such Equipment to be removed, disassembled, and placed in the same condition as
when delivered to Lessee (reasonable wear and tear excepted) and properly crate
such Equipment for shipment and deliver it to a common carrier designated by
ACC. Lessee will ship such Equipment, F.O.B. destination, to any address
specified in writing by ACC within the continental United States. All additions,
attachments, alterations and repairs made or placed upon any of the Equipment
shall become part of such Equipment and shall be the property of ACC.
Page 1 of 4 Millennium Lease Agreement #MIL-224 Lessee Initials:_________
EVENTS OF DEFAULT. The occurrence of any of the following shall be deemed to
constitute an Event of Default hereunder with respect to this Lease or any of
the Leases: (a) Lessee fails to pay Lease payments, any other amount it is
obligated to pay under a Lease, or any other amount it is obligated to pay to
ACC and does not cure such failure within 10 days of such amount becoming due;
(b) Lessee fails to perform or observe any obligation or covenant to be
performed or observed by Lessee hereunder, including, without limitation,
supplying all requested
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documentation, and does not cure such failure within 10 days of receiving
written notice thereof from ACC; (c) any warranty, representation or statement
made or furnished to ACC by or on behalf of Lessee is proven to have been false
in any material respect when made or furnished; (d) the attempted sale or
encumbrance by Lessee of the Equipment, or the making of any levy, seizure or
attachment thereof or thereon; or (e) the dissolution, termination of existence,
discontinuance of business, insolvency, or appointment of a receiver of any part
of the property of Lessee, assignment by Lessee for the benefit of creditors,
the commencement of proceedings under any bankruptcy, reorganization or
arrangement laws by or against Lessee, or any other act of bankruptcy on the
part of Lessee.
REMEDIES OF ACC. At any time after the occurrence of any Event of Default, ACC
may exercise one or more of the following remedies with respect to this Lease or
any of the Leases: (a) ACC may terminate this Lease or any or all of the Leases
with respect to any or all items of Equipment subject thereto; (b) ACC may
recover from Lessee all Lease payments and other amounts then due and to become
due under any or all of the Leases; (c) ACC may take possession of any or all
items of Equipment subject to this Lease or any of the Leases, wherever the same
may be located, without demand or notice, without any court order or other
process of law and without liability to Lessee for any damages occasioned by
such taking of possession, and any such taking of possession shall not
constitute a termination of any Lease; (d) ACC may demand that Lessee return any
or all items of Equipment subject to this Lease or any Leases to ACC in
accordance with the provisions described herein; and (e) ACC may pursue any
other remedy available at law or in equity, including, without limitation,
seeking damages, specific performance or an injunction. Upon repossession or
return of any item of the Equipment, ACC shall sell, Lease or otherwise dispose
of such item in a commercially reasonable manner, with or without notice and on
public or private bid, and apply the net proceeds thereof (after deducting the
estimated fair market value of such item at the expiration of the term of the
applicable Lease, in the case of a sale, or the Lease payments due for any
period beyond the scheduled expiration of such Lease, in the case of any
subsequent Lease of such item, and all expenses, including, without limitation,
reasonable attorneys' fees, incurred in connection therewith) towards the Lease
payments and other amounts due under such Lease, with any excess net proceeds to
be retained by ACC. Each of the remedies under this Lease shall be cumulative,
and not exclusive, and in addition to any other remedy referred to herein or
otherwise available to ACC in law or in equity. Any repossession or subsequent
sale or Lease by ACC of any item of Equipment shall not bar an action for a
deficiency as herein provided, and the bringing of an action or the entry of
judgment against Lessee shall not bar ACC's right to repossess any or all items
of Equipment.
INSURANCE. As of the date that the Equipment is shipped from the manufacturer,
Lessee shall obtain and maintain during the Term of this Lease (as extended), at
its own expense, property damage and personal liability insurance and insurance
against loss or damage to the Equipment, including, without limitation, loss by
fire, theft and other such risks. Lessee shall give ACC prompt notice of any
damage to, or loss of, any of the Equipment, or any part thereof, or any
personal injury or property damage occasioned by the use of any of the
Equipment.
TAXES. Lessee hereby assumes liability for, and shall pay when due, and, on a
net after-tax basis, shall indemnify, protect and hold harmless ACC against all
fees, taxes and governmental charges (including, without limitation, interest
and penalties) of any nature imposed on or in any way relating to ACC, Lessee,
any item of Equipment or any Lease, except state and local taxes on or measured
by ACC's net income (other than any such tax which is in substitution for or
relieves Lessee from the payment of taxes it would otherwise be obligated to pay
or reimburse to ACC as herein provided) and federal taxes on ACC's net income.
Lessee shall, at its expense, file when due with the appropriate authorities any
and all tax and similar returns, and reports required to be filed with respect
thereto, for which it has indemnified ACC hereunder or, if requested by ACC,
notify ACC of all such requirements and furnish ACC with all information
required for ACC to effect such filings. Any fees, taxes or other charges paid
by ACC upon failure of Lessee to make such payments shall, at ACC's option,
become immediately due from Lessee to ACC and shall be subject to the Overdue
Charge from the date paid by ACC until the date reimbursed by Lessee.
NOTICES. All notices hereunder shall be in writing and shall be deemed given
when sent by certified mail, postage prepaid, return receipt requested,
addressed to the party to which it is being sent at its business address set
forth in this document or to such other address as such party may designate in
writing to the other party.
GENERAL. If any provision of any Lease is held to be invalid by a court of
competent jurisdiction, such invalidity shall not affect the other provisions of
such Lease or any provision of any other Lease. This Lease shall be governed by
and construed in accordance with the internal laws, but not the choice of laws
provisions, of the State of California. An overdue charge will be assessed and
Lessee agrees to pay an amount equal to 2% per month of any payment which is
past due under this Lease or ("Overdue Charge"). The titles of the sections of
this Lease Agreement are for convenience only and shall not define or limit any
of the terms or provisions hereof. No provision of any Lease may be changed,
waived, amended or terminated except by a written agreement signed by both ACC
and Lessee, except that ACC may insert missing or corrected information in the
sections entitled "Direct Debit/Payment Information" and "Agreement Details" and
also in the "Millennium Lease Application" form. Time is of the essence in each
of the provisions hereof. This Lease shall be binding upon, and inure to the
benefit of, the permitted assigns, representatives and successors of ACC and
Lessee. If there is more than one Lessee named in this Lease Agreement, the
liability of each shall be joint and several.
AGREEMENT DETAILS.
Equipment Description: See Schedule A.
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<S> <C> <C> <C> <C> <C>
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Equipment Sales Price : $40,440 (exclusive of sales and/or use tax) Down Payment : $2,022 (exclusive of sales
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Monthly Lease Payment : $ 1,763 (exclusive of sales and/or use tax) Lease Term : 30 Months.
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This Down Payment amount will be direct debited from your bank account before
equipment can be shipped. Lessee will pay Lease payments on a prorated monthly
basis for the period beginning 90 days after the Lease Commencement Date until
the next 15 th day of the calendar month and thereafter for each consecutive
month of the Lease. Applicable Sales Taxes will be included on the direct debit
when applicable. The person executing this Agreement on behalf of Lessee hereby
certifies that the Lessee is a duly constituted business entity and that he or
she has read, and is duly authorized to execute, this Lease.
Page 2 of 4 Millennium Lease Agreement #MIL-224 Lessee Initials:_________
Accepted by: Lessee Ascend Credit Corporation
/s/ Fred Barnes
X_________________________________ By:__________________________________
Name:_____________________________ Name:________________________________
CFO
Title:____________________________ Title:_______________________________
3-29-2000
Date: ____________________________ Date:________________________________
DIRECT DEBIT/PAYMENT INFORMATION: This information must be completed and correct
to fill your order.
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Bank Name: Sunwest Bank Bank Address: Tustin
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Bank Contact Name: Bank Phone #: 714-734-4440
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Bank Routing # (9 digits): Account #: 0101187713
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Exact Account Name: General
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Account Category (circle one): I - Individual C - Commercial
Account Type (circle one): C - Checking S - Savings
By completing this information, I hereby authorize Ascend Credit Corporation,
its assignee, and its bank to initiate ACH Debit entries to the financial
institution account indicated above, for payment of all charges concerning this
Lease Agreement. I further authorize the financial institution named above to
debit such entries in the account indicated above. This authorization is to
remain in full force and effect until Ascend Credit Corporation or its assignee
have received written notification from me of termination in such time and in
such manner as to afford a reasonable opportunity to act on it.
Signature: X /s/ Fred Barnes Name: Date: 3-29-00
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Page 3 of 4 Millennium Lease Agreement #MIL-224 Lessee Initials:_________
Schedule A
Location: Schedule # MIL-224A
VillageFax.com, Inc.
14471 Chambers Road, Suite 105
Tustin, CA 92780
Qty Part # Description Extended
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12 MX-SL-16MOD 16 PORT MODEM CARD FOR MAX (56K)$40,440
Total: $40,440
