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EXHIBIT 10.276
[TOSHIBA LOGO]
FINANCIAL SERVICES
Agreement # ______________
Individual
Equipment Model & Description Serial Number Accessories Minimum Number of Copies
- ----------------------------- ------------- ------------------- ------------------------
Toshiba estudio 550 _____________ Finishee/Controllor ________________________
Toshiba estudio 35 _____________ ___________________ ________________________
_____________________________ _____________ ___________________ ________________________
- - See attached schedule for additional Equipment / Accessories
Consolidated Minimum Number of Copies 21,000
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(Insert N/A if not applicable)
Equipment Location (if different from Billing Address)__________________________
CB Document Solutions
- -----------------------------
Name
5030 E sunrise Dv
- -----------------------------
Address
Phoenix AZ 85044
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City State Zip
YOU HAVE SELECTED THE EQUIPMENT. THE SUPPLIER AND ITS REPRESENTATIVES ARE NOT
OUR AGENTS AND ARE NOT AUTHORIZED TO MODIFY THE TERMS OF THIS AGREEMENT. YOU
ARE AWARE OF THE NAME OF THE MANUFACTURER OF EACH ITEM OF EQUIPMENT AND YOU WILL
CONTACT EACH MANUFACTURER FOR A DESCRIPTION OF YOUR WARRANTY RIGHTS. WE MAKE NO
WARRANTIES TO YOU, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SUITABILITY OR OTHERWISE. WE PROVIDE THE EQUIPMENT TO YOU
AS-IS. WE SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES.
YOUR PAYMENT OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL AND ARE NOT SUBJECT TO
CANCELLATION, REDUCTION OR SETOFF FOR ANY REASON WHATSOEVER. BOTH PARTIES AGREE
TO WAIVE ALL RIGHTS TO A JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF MISSOURI. YOU CONSENT TO THE JURISDICTION AND VENUE OF FEDERAL AND STATE
COURTS IN MISSOURI.
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE RECEIPT OF PAGE 2 OF THIS AGREEMENT,
AND AGREE TO THE TERMS ON BOTH PAGES 1 AND 2. ORAL AGREEMENTS OR COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT
YOU AND US FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
TOSHIBA AMERICA INFORMATION SYSTEMS, INC.
1961 Hirst Drive, Moberly, MO 65270
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
Minimum
Monthly Payment 1227,00 Term 60 months
(plus applicable taxes)
Per Copy Excess Per
Charge________________ Copy Charge , 0125
Excess Per Copy Billing Preference (monthly if not checked)
( ) Monthly (X) Quarterly ( ) Semi-Annually ( ) Annually
The following additional payments are due on the date this Agreement is signed
by you:
SECURITY DEPOSIT $ 0
ADVANCE PAYMENT * $ 0 * Applied to: (.) first (.) last
(plus applicable taxes)
DOCUMENT FEE $49.50 (included on first invoice)
Meadow Valley, INC
- -------------------------------
Full Legal Name
- -------------------------------
D/B/A
4411 S 40th ST STE D-11
- -------------------------------
Billing Address
Phoenix AZ 85040
- -------------------------------
City State Zip
KEN NELSON
- --------------------------------------------
Contact Name Phone E-mail Address
By: /s/ KENNETH D. NELSON
---------------------------
Signature of Authorized Signer
Name: KENNETH D. NELSON
-------------------------
Please Print
Title: VICE PRESIDENT
------------------------
Date: 6-17-04 Fed Tax ID 88-0171959
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Date of Signature
Unconditional Personal Guaranty
In consideration of Owner entering into the Agreement in reliance on this
guaranty, the undersigned unconditionally and irrevocably guarantees to Owner,
its successors and assigns, the prompt payment and performance of all existing
and future obligations to Owner, including the Agreement. I agree that (a) this
is a guaranty of payment and not of collection, and that Owner can proceed
directly against me personally without resorting to any security or seeking to
collect from Customer, (b) I waive all suretyship defenses including impairment
of collateral, failure to properly perfect a security interest in the
collateral, and all notices, including those of protest, presentment and demand,
(c) Owner may renew, extend or otherwise change the terms of the Agreement
without notice to me and I will be bound by such changes, and (d) I will pay all
of Owner's costs of enforcement and collection, including attorneys' fees. This
guaranty survives the bankruptcy of Customer and binds my administrators,
successors and assigns. My obligations under this guaranty continue even if
Customer becomes insolvent or bankrupt or is discharged from bankruptcy and I
agree not to seek to be repaid by Customer in the event I must pay Owner, until
you have been paid all amounts owed. This guaranty shall be governed by the laws
of Missouri. I consent to the personal jurisdiction and venue of federal and
state courts in Missouri.
Printed Name:__________________________ By:_______________________, Individually
PAGE 1 OF 2 VISIT US AT WWW.TOSHIBA-FINANCIAL.COM
ADDITIONAL TERMS AND CONDITIONS OF AGREEMENT
1. COMMENCEMENT OF AGREEMENT. Commencement of this Agreement and acceptance of
the Equipment shall occur upon delivery of the Equipment to you. You agree to
inspect the Equipment upon delivery and verify by telephone or in writing such
information as we may require. If you signed a purchase order or similar
agreement for the purchase of the Equipment, by signing this Agreement you
assign to us all of your rights, but none of your obligations under it. All
attachments, accessories, replacements, replacement parts, substitutions,
additions and repairs to the Equipment shall form part of the Equipment under
this Agreement.
2. SECURITY DEPOSIT. The Security Deposit will be held by us, without interest,
and may be commingled (unless otherwise required by law), until all obligations
under this Agreement are satisfied, and may be applied at our option against
amounts due under this Agreement. The Security Deposit will be returned to you
upon termination of the Agreement, provided you are not in default, or applied
to the Minimum Monthly Payment due at the end of the Term, or to the amount we
may quote for any purchase or upgrade of the Equipment.
3. COPY CHARGES. You agree to remit to us the Minimum Monthly Payment and all
other sums when due and payable each month at the address we provide to you from
time to time. In return for the Minimum Monthly Payment, you are entitled to
produce the Minimum Number of Copies each month. You also agree to pay us the
Excess Per Copy Charge for each metered copy which exceeds the Minimum Number of
Copies (plus applicable taxes). We may estimate the number of copies produced if
you do not provide us with meter readings within seven (7) days of request. We
will adjust the estimated charge for excess copies upon receipt of actual meter
readings. Notwithstanding any adjustments, you will never pay us less than the
Minimum Monthly Payment. You agree that we may increase the Minimum Monthly
Payment and/or Excess Per Copy Charge each year during the Term of this
Agreement by an amount not to exceed ten percent (10%) of the Minimum Monthly
Payment and/or Excess Per Copy Charge in effect at the end of the prior annual
period, or the maximum percentage permitted by law, whichever is lower. At our
option, you will (a) provide us by telephone or facsimile the actual meter
readings when requested by us, (b) provide us (or our agent) access to the
Equipment to obtain meter readings, or (c) allow us (or our agent) to attach an
automatic meter reading device to the Equipment. We may audit any automatic
meter reading device periodically. Minimum Monthly Payments are due whether or
not you are invoiced. If you have a dispute with the Supplier regarding the
Equipment, you shall continue to pay us all Minimum Monthly Payments and Excess
Per Copy Charges without deduction or withholding any amounts. You authorize us
to adjust the Minimum Monthly Payments by not more than 15% to reflect any
reconfiguration of the Equipment or adjustments to reflect applicable sales
taxes or the cost of the Equipment by the manufacturer/supplier.
4. OTHER CHARGES. You agree to: (a) pay all premiums and other costs of insuring
the Equipment; (b) reimburse us for all costs and expenses (including reasonable
attorneys' fees and court costs) incurred in enforcing this Agreement; and (c)
pay all other costs and expenses for which you are obligated under this
Agreement. You agree, at our discretion, to either (1) reimburse us annually for
all personal property and other similar taxes and governmental charges
associated with the ownership, possession or use of the Equipment, or (2) remit
to us each month our estimate of the pro-rated equivalent of such taxes and
governmental charges. You agree to pay us an administrative fee for the
processing of taxes, assessments or fees which may be due and payable under this
Agreement. We may take on your behalf any action required under this Agreement
which you fail to take, and upon receipt of our invoice you will promptly pay
our costs (including insurance premiums and other payments to affiliates), plus
reasonable processing fees. Restrictive endorsements on checks you send to us
will not reduce your obligations to us. We may charge you a return check or
non-sufficient funds charge of $25.00 for any check which is returned by the
bank for any reason (not to exceed the maximum amount permitted by law).
5. LATE CHARGES. For any payment which is not received by its due date, you
agree to pay a late charge equal to the higher of 10% of the amount due or
$22.00 (not to exceed the maximum amount permitted by law) as reasonable
collection costs.
6. MAINTENANCE AND SERVICE: OWNERSHIP AND USE. The Supplier identified on Page 1
of this Agreement has agreed to provide FULL SERVICE MAINTENANCE DURING NORMAL
BUSINESS HOURS, INCLUDING ALL TONER, DEVELOPER AND PARTS NECESSARY TO PRODUCE
COPIES. YOU MUST PURCHASE COPIER PAPER AND STAPLES SEPARATELY. You acknowledge
that (a) we are not responsible for any service, repair or maintenance of the
Equipment, and (b) we are not a party to any service maintenance agreement. You
agree to pay for service maintenance outside of the Supplier's normal business
hours for service required by your negligence or misuse of the Equipment at
Supplier's customary rates. We reserve a security interest in the Equipment to
secure all of your obligations under this Agreement. We own the Equipment and
you have the right to use the Equipment under the terms of this Agreement. If
this Agreement is deemed to be a secured transaction, you grant us a security
interest in the Equipment to secure all of your obligations under this
Agreement. You hereby assign to us all of your rights, but none of your
obligations, under any purchase agreement for the Equipment. We hereby assign to
you all our rights under any manufacturer or supplier warranties, so long as you
are not in default hereunder. You must keep the Equipment free of liens. You may
not remove the Equipment from the address indicated on the front of this
Agreement without first obtaining our approval. If we grant permission to move
the Equipment, the Minimum Monthly Payments and Excess per Copy Charges may be
increased by us at our sole discretion to cover the additional costs of service,
maintenance and supplies. You agree to: (a) keep the Equipment in your exclusive
control and possession; (b) USE THE EQUIPMENT ONLY IN THE LAWFUL CONDUCT OF YOUR
BUSINESS, AND NOT FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES; (c) use the
Equipment in conformity with all insurance requirements, manufacturer's
instructions and manuals; (d) keep the Equipment repaired and maintained in good
working order and as required by the manufacturer's warranty and specifications;
and (e) give us reasonable access to inspect the Equipment and its maintenance
and other records.
If any Equipment is designated "Service Only", you acknowledge and agree
that (1) we do not own such Equipment; (2) we are not providing such Equipment
to you pursuant to the terms of this Agreement; (3) Supplier has agreed to
provide full service maintenance of such Equipment pursuant to the terms
outlined above; and (4) that portion of the Minimum Monthly Payment attributable
to such Equipment includes only the full service maintenance of such Equipment
and not the use or rental of the Equipment.
7. INDEMNITY. You are responsible for all losses, damage, claims, infringement
claims, injuries and attorneys' fees and costs ("Claims"), incurred or asserted
by any person, in any manner relating to the Equipment, including its use,
condition or possession. You agree to defend and indemnify us against all
Claims, although we reserve the right to control the defense and to select or
approve defense counsel. This indemnity continues beyond the termination of this
Agreement, for acts or omissions which occurred during the Term of this
Agreement. You also agree that this Agreement has been entered into on the
assumption that we will be entitled to certain tax benefits available to the
owner of the Equipment. You agree to indemnify us for the loss of any income tax
benefits caused by your acts or omissions inconsistent with such assumption or
this Agreement. In the event of any such loss, we may increase the Minimum
Monthly Payments and other amounts due to offset any such adverse effect.
8. LOSS OR DAMAGE. If any item of Equipment is lost, stolen or damaged you will,
at your option and cost, either: (a) repair the item or replace the item with a
comparable item reasonably acceptable to us, or (b) pay us the sum of; (i) all
past due and current Minimum Monthly Payments, Excess Per Copy Charges and other
charges, (ii) the present value of all remaining Minimum Monthly Payments and
other charges for the item, discounted at the rate of 6% per annum (or the
lowest rate permitted by law, whichever is higher), and (iii) the Fair Market
Value of the Equipment. We will then transfer to you all our right, title and
interest in the Equipment AS-IS AND WHERE-IS, WITHOUT ANY WARRANTY AS TO
CONDITION, TITLE OR VALUE. Insurance proceeds shall be applied toward repair,
replacement or payment hereunder, as applicable, in this Agreement, "Fair Market
Value" of the Equipment means its fair market value at the end of the Term,
assuming good order and condition (except for ordinary wear and tear from normal
use), as estimated by us.
9. INSURANCE. You agree, at your cost, to: (a) keep the Equipment insured
against all risks of physical loss or damage for its full replacement value,
naming us as loss payee; and (b) maintain public liability insurance, covering
personal injury and Equipment damage for not less than $300,000 per occurrence,
naming us as additional insured. You have a choice in how you satisfy these
insurance requirements. First, you may obtain coverage on your own and provide
us with evidence of insurance coverage. If you elect this option, the policy
must be issued by an insurance carrier rated B+ or better by A.M. Best Company,
must provide us with not less than 15 days' prior written notice of
cancellation, non-renewal or amendment, and must provide deductible amounts
acceptable to us. Second, you may elect to have us directly obtain coverage
protecting our interests. UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE
REQUIRED BY THIS AGREEMENT, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTEREST IN THE EQUIPMENT. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR
INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR
ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE EQUIPMENT. YOU MAY
LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING EVIDENCE
THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF WE PURCHASE
INSURANCE FOR THE EQUIPMENT, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE
MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE
INSURANCE MAY BE ADDED TO OUR TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE COSTS
OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO
OBTAIN ON YOUR OWN. The insurance coverage we obtain may be through an insurance
carrier which may be affiliated with us or our assignee. There will be no
deductible and the coverage will include protection for earthquakes, floods and
employee theft. We will pay the premium, but you must reimburse us. Each month,
you must pay us with your Minimum Monthly Payment an amount equal to the amount
of the insurance premium divided by the total number of months in the Term of
this Agreement. At the end of the Term you must pay us any remaining portion of
the premium.
10. DEFAULT. You will be in default under this Agreement if: (a) you fail to
remit to us any payment within ten (10) days of the due date or breach any other
obligation under this Agreement; (b) a petition is filed by or against you or
any Guarantor under any bankruptcy or insolvency law; or (c) you default under
any other agreement with us.
11. REMEDIES. If you default, we may do one or more of the following: (a)
recover from you, AS LIQUIDATED DAMAGES FOR LOSS OF BARGAIN AND NOT AS A
PENALTY, the sum of: (i) all past due and current Minimum Monthly Payments,
Excess Per Copy Charges and other charges, (ii) the present value of all
remaining Minimum Monthly Payments, Excess Per Copy Charges and other charges,
discounted at the rate of 6% per annum (or the lowest rate permitted by law,
whichever is higher) and (iii) the Fair Market Value of the Equipment; (b)
declare any other agreements between us in default; (c) require you to return
all of the Equipment in the manner outlined in Section 12, or take possession of
the Equipment, in which case we shall not be held responsible for any losses
directly or indirectly arising out of, or by reason of the presence and/ or use
of any and all proprietary information residing on or within the Equipment, and
to lease or sell the Equipment or any portion thereof, and to apply the
proceeds, less reasonable selling and administrative expenses, to the amounts
due hereunder; (d) charge you interest on all amounts due us from the due date
until paid at the rate of 1-1/2% per month, but in no event more than the lawful
maximum rate; (e) charge you for expenses incurred in connection with the
enforcement of our remedies including, without limitation, repossession, repair
and collection costs, attorneys' fees and court costs. These remedies are
cumulative, are in addition to any other remedies provided for by law, and may
be exercised concurrently or separately. Any failure or delay by us to exercise
any right shall not operate as a waiver of any other right or future right.
12. END OF TERM OPTIONS; RETURN OF EQUIPMENT. At the end of the Term and upon 30
days prior written notice to us, you shall return all of the Equipment. This
Agreement shall continue on a month-to-month basis and you shall pay us the same
Minimum Monthly Payments, Excess Per Copy Charges and other charges as applied
during the Term until the Equipment is returned to us. If you are in default,
you shall return all of the Equipment, freight and insurance prepaid at your
cost and risk, to wherever we indicate in the continental United States, with
all manuals and logs, in good order and condition (except for ordinary wear and
tear from normal use), packed per the shipping company's specifications, and pay
an inspection, restocking and handling fee of $100, not to exceed the maximum
permitted by law, as reasonable compensation for our costs in processing
returned equipment. You will pay us for any loss in value resulting from the
failure to maintain the Equipment in accordance with this Agreement or for
damages incurred in shipping and handling.
13. ASSIGNMENT. You may not assign or dispose of any rights or obligations under
this Agreement or sublease the Equipment, without our prior written consent. We
may, without notifying you, (a) assign this Agreement or our interest in the
Equipment; and (b) release information we have about you and this Agreement to
the manufacturer, supplier or any prospective investor, participant or purchaser
of this Agreement. If we do make an assignment under subsection 13(a) above, our
assignee will have all of our rights under Ms Agreement, but none of our
obligations. You agree not to assert against our assignee claims, offsets or
defenses you may have against us.
14. MISCELLANEOUS. Notices must be in writing and will be deemed given 5 days
after mailing to your (or our) business address. You represent that: (a) you
have authority to enter into this Agreement and by so doing you will not violate
any law or agreement; and (b) this Agreement is signed by your authorized
officer or agent. This Agreement is the entire agreement between us, and cannot
be modified except by another document signed by us. This Agreement is binding
on you and your successors and assigns. All financial information you have
provided is true and a reasonable representation of your financial condition.
You authorize us or our agent to: (a) obtain credit reports and make credit
inquiries; (b) furnish payment history to credit reporting agencies; and (c) be
your attorney-in-fact for the sole purpose of signing UCC financing statements.
Any claim you have against us must be made within two (2) years after the event
which caused it. If a court finds any provision of this Agreement to be
unenforceable, all other terms shall remain in effect and enforceable. You
authorize us to insert or correct missing information on this Agreement,
including your proper legal name, serial numbers and any other information
describing the Equipment. If you so request, and we permit the early termination
of this Agreement, you agree to pay a fee for such privilege. THE PARTIES INTEND
THIS TO BE A "FINANCE LEASE" UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE
("UCC"). YOU WAIVE ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A
OF THE UCC.
PAGE 2 of 2 TFS 1802(b) 03/01