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Home My WebLink AboutUpLink Corporation; 2007-06-22;UpLink System Agreement UPLINK positioning you for success This Agreement is hereby made between UpLink Corporation ("UpLink"), a Texas Corporation with offices at 6500 River Place Blvd., Suite IV-201, Austin, Texas 78730 and the Carlsbad Public Financing Authority ("Customer"), with offices at 1200 Carlsbad Village Drive, Carlsbad, CA 92008. LOCATION OF EQUIPMENT: The Crossings at Carlsbad, 5800 The Crossings Drive, Carlsbad, CA 92008. Introduction: UpLink agrees to install its distance measurement, tracking and communications system and hardware components (the "UpLink System") as provided by this Agreement in consideration for which Customer agrees to abide by and fulfill the terms, conditions, and obligations contained within this Agreement. This Agreement is intended to clearly identify the responsibilities and rights of each party and is comprised of the basic sections as outlined below: 1. System Acquisition 2. System Installation 3. System Usage 4. General Terms Exhibit A. Payment Terms Exhibit B. UpLink System Configuration Exhibit C. Warranty Terms Exhibit D. Delivery and Acceptance Certificate By signing below each party acknowledges and agrees to the terms of this Agreement: UPLINK CORPORATION: Name (L hour Title 6 - Date Tel. #Fax# Authorized Signature TT Name V. Title Date Tel. #Fax# UpLink System Agreement Ver.120106 Iofl2 1. System Acquisition 1.1. Acquisition Method. UpLink agrees to sell to Customer the UpLink System as described in the attached Exhibit B pursuant to this Agreement, in consideration for Customer's payment as defined on the attached Exhibit A. 1.2. Title and Risk of Loss. Title to the UpLink Products purchased hereunder shall pass to Customer upon Customer's execution of the Delivery and Acceptance Certificate attached as Exhibit D, except that title to all software licensed by UpLink or by a third party in connection with the UpLink Products shall be retained by UpLink or the third party, as appropriate. UpLink reserves a purchase money security interest in UpLink Products shipped. Such interest shall be satisfied by payment in full of the invoice for the UpLink System. Customer will execute, upon request, financing statements deemed necessary or desirable by UpLink to perfect a security interest in the UpLink Products. Customer authorizes UpLink to file a copy of this Agreement as a financial statement. Customer assumes responsibility for all risk of loss to the UpLink System and all of its components from the time the Delivery and Acceptance Certificate is executed by Customer as to any of the components while they are on Customer's golf course premises. Customer agrees to procure and maintain in-force, property and casualty all-risk insurance coverage, for the UpLink System in the amount equal to its purchase price from UpLink while Uplink has a security interest in the Uplink Products provided. Customer will pay any costs related to this insurance coverage. Customer agrees to provide UpLink with a Certificate of Insurance as evidence of insurance coverage upon request. Customer shall provide adequate and secure storage for the UpLink Products upon delivery to the golf course site. 1.3. Third-party-productg. Products and associated computer peripherals, if any, from third parties, such as Vision Perfect Software or GroundLinkx, that are acquired under this Agreement are done so as an accommodation for Customer. Customer understands that performance, support, installation and warranty of third-party-products are separate from the UpLink System and shall be defined through a separate arrangement between Customer and the third party. Customer agrees that installation acceptance for third-party-products will be separate and will not be a cause for Customer's delay in acceptance of UpLink System installation. 1.4. Software License. Customer understands that UpLink does not sell its software. UpLink grants Customer and the City of Carlsbad a nontransferable, non-exclusive license to use Software only in conjunction with the UpLink System and only as expressly authorized in this Agreement. "UpLink Software" means Standard UpLink System Software included with or in any UpLink System equipment purchased by or provided to Customer hereunder and any Software upgrades and Software support and maintenance services to be provided for five (5) years as set forth in section 3.3. Customer shall have the right to purchase any Software upgrades and extend the Software license and support and maintenance services beyond five (5) years with the payment of additional charges at the expiration of the initial license and support term. Customer and the City of Carlsbad shall (i) hold Software in confidence and not disclose it to anyone other than its employees, agents, and consultants who require disclosure in connection with Customer's use of the UpLink System and who are subject to confidentiality obligations in substance at least as strict as these, (ii) not print, copy, modify, translate, alter, reverse compile, decompile or reverse engineer Software, (iii) not remove any UpLink copyright, trademark or other proprietary notice from Software and shall reproduce all such notices on copies made by Customer, and (iv) not transfer Software or assign any license or rights regarding Software, except as provided below, and any other attempted transfer or assignment shall be void and of no force or effect. These obligations shall survive UpLink System Agreement 2 of 12 Ver.120106 notwithstanding any termination or expiration of this Agreement or of licenses granted hereunder. 1.5. Shipment. UpLink shall not be liable for any delay in the delivery of any UpLink Products resulting from any cause beyond its reasonable control or caused by acts of God, such as fires, floods, and epidemics. 2. System Installation 2.1. UpLink System Components. The UpLink System shall be comprised of the components as described on Exhibit B attached hereto. UpLink will manufacture, assemble and install the UpLink System with parts and components that are new. Additional components requested by Customer will be made part of this Agreement and may be purchased at then-applicable retail prices. To facilitate installation, Customer agrees, as required by UpLink, to provide the following: a. Access to all areas of the golf course site where equipment is to be installed. b. Certificates of Occupancy for buildings that will house Uplink equipment and vehicles intended for Uplink display unit installation. c. Any physical, mechanical, and electrical modifications reasonably requested for equipment installation. d. A broadband internet connection for the primary Course Management Computer ("CM Computer"). This data connection must be installed and operational prior to UpLink beginning hardware installation, and must be maintained throughout the term of this Agreement. e. Customer agrees to not install any non-UpLink software on UpLink hardware without UpLink's prior written authorization. 2.2. UpLink System Training. The Customer agrees to make its best effort to have available during installation, its staff members for training on the use and operation of the UpLink System as requested by Uplink. In general, the following personnel should be available for training: pro shop mangers and staff, course superintendent, starters, marshals, food service managers and staff responsible for management and maintenance of the golf car fleet. 2.3. Fleet Installation. The Customer agrees to provide at least two (2) staff members full time for three (3) days for the installation of the UpLink display units per 18 holes. The Customer's personnel will be trained on the installation, maintenance and replacement of UpLink display units. Uplink will provide its labor for the fleet installation at no cost to Customer. 2.4. Completion. When all of the steps referenced above have been substantially completed, UpLink shall so notify Customer. Within three (3) days of UpLink's notice of substantial completion, Customer shall give a detailed listing to UpLink of further items required for completion under the terms of this Agreement (the "Punch List"). UpLink shall have thirty (30) days to complete items on the Punch List that are required by this Agreement. When UpLink has completed the Punch List Items required by this Agreement, UpLink will so notify Customer and the date of that notice shall be the "Date of Completion" for purposes of this Agreement. Upon the Date of UpLink System Agreement 3 of 12 Ver.120106 Completion, Customer agrees to execute and deliver to UpLink, through fax copy, the UpLink Delivery and Acceptance Certificate attached hereto. 2.5. Fleet Change Out. UpLink shall make services available to assist Customer with a Fleet Change Out ("FCO") upon request. A FCO involves the removal and reinstallation of the UpLink display units to accommodate Customer's acquisition of a new golf car fleet. Customer understands that installation of the golf car display units is limited to vehicle make and models supported by UpLink. This Agreement provides for two fleet change outs when requested by Customer at no additional charge, including mounting hardware, if any, and on-site assistance. Mounting hardware means that UpLink shall provide new mounting trays, power cables and miscellaneous hardware as required to reinstall the UpLink display units on new golf cars. On- site assistance means that UpLink shall provide one field service technician to assist and oversee Customer's staff in carrying out the FCO process. The FCO entitlement remains valid after expiration of the original 5 year warranty period. UpLink warrants that the UpLink System will operate as it did prior to any FCO conducted by UpLink. Customer must provide UpLink with at least ninety (90) days prior notice of the new fleet's scheduled delivery date. Customer understands that additional charges shall apply for new mounting hardware and on-site assistance for additional fleet change outs. 2.6. Additional Services. This Agreement provides for installation of the UpLink System based on the golf course and golf course facilities as currently configured. Customer understands that modification to the UpLink System requested by Customer beyond the Date of Completion (after installation sign-off) may result in additional charges unless otherwise provided for in this Agreement or covered under the warranty provisions provided in section 3.3. Additional Services include such services as mapping (including aerial photography), hardware installation, hardware relocation, software configuration and graphics production 3. System Usage 3.1. Advertising Program & Proceeds. Customer retains all rights to the advertising space on the UpLink System. UpLink shall assist Customer with implementation of UpLink's Ad Smart program. Customer shall be entitled to 100 % of revenues from advertising contracted for by Customer or its agent. Customer or Customer's agent shall carry out placement of all ads contracted by Customer or Customer's agent including but not limited to selling, media coordination, downloading and billing. Customer will use EventLink software to place ads on the UpLink System. UpLink may sell ads for placement on the UpLink System at Customer's golf course with Customer's prior written approval in Customer's sole discretion. Customer shall have final approval of all advertising proposed to be displayed at Customer's golf course. Customer will receive 50% of net revenues, if any, for ads placed by UpLink. Net advertising revenue, if any, is defined as gross advertising revenues less reasonable and customary sales expenses and administration fees. 3.2. Taxes. Customer shall pay all taxes and similar charges related to the UpLink System or its use, including but not limited to property, sales, use or other taxes. 3.3. Limited Warranty and Maintenance Service. UpLink's warranty is that, for a period of five (5) years from the Date of Completion (the "Warranty Term"), the UpLink System shall be substantially free of defects in materials and workmanship and shall conform to UpLink's published applicable product specifications at the time of purchase. If the UpLink System, or any part or component thereof, is not in conformance with this warranty, UpLink shall provide warranty service, at its expense, to repair, modify or replace, as necessary, such part or UpLink System Agreement 4 of 12 Ver.120106 component. Warranty service shall be provided in accordance with the applicable maintenance service program as set forth on Exhibit C. UpLink does not warrant that the operation of the UpLink System shall be completely uninterrupted or error-free. This warranty extends to Customer and the City of Carlsbad. Out-of-warranty maintenance and support services are not provided for by this Agreement except as to the two additional fleet change outs provided for and in section 2.5 of this Agreement. Out-of-warranty maintenance and support services may be purchased by Customer under a separate ServiceLink maintenance agreement subject to UpLink's prices and policies in effect from time to time. 3.4. Dispute Resolution. In the event that Customer or Customer's agent is dissatisfied with the service or maintenance provided by Uplink pursuant to this Agreement, including the timeliness of response or repairs to hardware or software problems, the problem shall be documented in writing and forwarded to the Uplink Customer Support representative involved along with recommended methods of resolution. Uplink shall reply in writing within three (3) business days. If UpLink's proposed resolution is unsatisfactory to Customer, Customer shall forward a letter outlining the dispute to the VP of Customer Operations and the Chief Executive Officer of Uplink for resolution before resorting to the provisions of section 4.3 Events of Default and Remedies. 3.5. Travel Areas and IQLink Limitations. Subject to the warranties in section 3.3, Customer understands that Travel Areas and IQLink features, if available and activated, such as cart path only and restricted areas are limited by certain technical constraints and may not perform exactly as expected. Such limitations include items such as: (i) GPS position quality - due to the inherent nature of GPS technology at this time, which in certain areas or at certain times may not be of sufficient accuracy to take a position-related action, (ii) defined areas must be of sufficient size for the UpLink System to recognize a violation, and (iii) network communication intervals, which at certain times may not be of sufficient frequency to notify golf cars that are moving quickly of a defined area violation. The uplink system user manual should be read completely by authorized course personnel before using travel areas and IQLink features. Failure to follow the instructions in the uplink system user manual could result in property damage, serious injury or death. Among other concerns, travel areas and IQLink features configured improperly may result in GPS equipped vehicles stopping in dangerous areas such as roadways or other motor vehicle areas. 3.6. Advertising Display Limitations. Customer understands that the EventLink product and display of advertising on the UpLink display units is limited by certain technical constraints which may result in ads not displaying as expected. Such limitations included items such as: (i) GPS position quality - due to the inherent nature of GPS technology at this time, which in certain areas or at certain times may not be of sufficient accuracy to take a position-related action, and (ii) network communication interference or Customer's failure to perform on-site system configuration actions, which may cause errors in the ad download process Subject to these limitations, Uplink warrants that the EventLink product shall be substantially free of defects in materials and workmanship and shall conform to Uplink's published applicable product specifications at the time of purchase for a period of five years from the Date of Completion. Customer agrees that Uplink will not be liable for any claims of recoupment or any other monetary loss arising out of the use of the EventLink product or the failure of advertising to display as expected. 3.7. UpLink Unit Power Source. UpLink warrants that the UpLink System will not damage or adversely affect battery performance of vehicles to which UpLink units are installed so long as those units remain installed and maintained as specified by UpLink. Customer understands t! UpLink System Agreement 5 of 12 Ver.120106 UpLink provides a manual on/off switch ("Power Switch") to control the electrical power to all UpLink units installed on gasoline powered vehicles. The Power Switch provides a convenient means of disconnecting the UpLink unit from the vehicle power source in order to prevent unnecessary power use when the vehicle is not in use. Customer understands and agrees that it holds sole responsibility of managing Power Switches to avoid potential battery damage. Customer agrees that Uplink shall have no liability whatsoever for battery damage resulting from Customer's improper management of the power switches, customer's failure to maintain power connections as specified by uplink, or Customer's failure to maintain vehicle batteries according to the battery manufacture's maintenance instructions. 4. General Terms 4.1. Term. This Agreement shall be for a term beginning on the date of this Agreement and continuing so long as the UpLink System remains at the Customer's site, unless sooner terminated as provided by this Agreement. 4.2. Assignment. Uplink and Customer may assign to a successor all or any part of their right, title and interest in this Agreement provided that assignee assumes all obligations under this Agreement. 4.3. Events of Default and Remedies. In the event that UpLink or Customer violates any provision of this Agreement arid such violation continues for a period of at least ten (10) days after notice in writing of such default from the other party, the notified party shall be deemed to be in default and the non-defaulting party may then pursue such remedies as it may have in law or in equity. 4.4. Notice. All notices shall be given in writing and shall be deemed given when (i) received via Federal Express or other recognized overnight courier for next day delivery or (ii) on the fifth day after mailing if sent via United States Postal Service by certified mail with return receipt requested in either case addressed to the offices listed in the first paragraph of this Agreement or such other address as either party may designate for itself by notice as specified in this section. 4.5. WARRANTIES CONTAINED IN THE PRECEDING PARAGRAPHS ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THOSE GOVERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING LIMITED WARRANTY PROVISIONS SHALL BE UPLINK'S SOLE LIABILITY WITH REGARD TO UPLINK PRODUCTS. UPLINK SHALL, IN NO EVENT, BE LIABLE FOR DAMAGES, FOR LOSS OF PROFIT, GOODWILL, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE SUFFERED BY CUSTOMER OR ITS CUSTOMERS AS A RESULT OF THE USE OF UPLINK PRODUCTS PURCHASED UNDER THIS AGREEMENT, EVEN IF DAMAGES COULD HAVE BEEN FORESEEN AND WHETHER OR NOT UPLINK HAS BEEN APPRISED BY CUSTOMER OR ITS CUSTOMERS FOR THE POSSIBILITY OF SUCH DAMAGES. 4.6. Indemnification. UpLink shall indemnify and hold Customer harmless from and against any and all losses, damages, expenses (including reasonable attorney's fees), claims, liabilities, suits or actions for personal injury or property damage ("Claims") arising from defects of the Uplink System and/or pertaining to gross negligence or intentional acts as to repairs and maintenance of the Uplink System, provided that: (i) Customer promptly notifies UpLink in writing of the Claim, (ii) UpLink has sole control of the defense and all related settlement negotiations, and UpLink System Agreement 6 of 12 Ver.120106 (iii) such indemnification and hold harmless obligation shall be limited in the case of real or tangible property to the replacement cost of such property from Uplink or an equivalent product. Customer shall indemnify, defend and hold harmless UpLink from and against any and all claims, costs, losses, injuries, suits, judgments, expenses (including reasonable attorney's fees), damages, causes of action, and liabilities arising from or pertaining to gross negligence, or intentional acts as to repairs and maintenance of the Uplink System and the City of Carlsbad, their agents, servants and employees in the performance of this Agreement. 4.7. General. This Agreement may not be varied, modified, or amended except in writing signed by the parties hereto. This Agreement supersedes any prior understandings or oral or written Agreements between the parties respecting the within subject matter. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators, legal representatives, successors and assigns. The headings used in this Agreement are used for administrative purposes only and do not constitute subject matter to be considered and construed as the terms of this Agreement. Waiver by either party of any breach or violation or default of any provision of this Agreement will not operate as a waiver of such provision or of any subsequent breach or violation thereof or any default thereunder. The failure or refusal of any party to exercise any right or remedy shall not be deemed to be a waiver or abandonment of any right or remedy. This Agreement shall be governed by and construed in accordance with the procedural and substantive laws of the State of California and is performable in San Diego County, California. In the event that any disputes shall arise hereunder necessitating the resolution by any administrative or judicial body, the party prevailing in such dispute shall be entitled to receive from the other party or parties to the dispute any and all costs of resolving said dispute except attorneys' fees. Provided that to so construe this Agreement is consistent with its intent, when considered as a whole, if any provision of this Agreement is held to be illegal, invalid, or unenforceable by any court of competent jurisdiction, that provision will be deemed deleted from this Agreement and the remainder of this Agreement will not be affected by such invalidity or unenforceability. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THIS AGREEMENT. This Agreement may be executed in any number of counterparts each of which shall be considered an original copy of this Agreement but all of which shall be considered one and the same Agreement. UpLink System Agreement 7 of 12 Ver.120106 EXHIBIT A Customer agrees to the purchase price and payment terms for the products and services listed in attached Exhibits B & C as follows: Purchase Price; $241,539.00 (Two Hundred Forty-One Thousand Five Hundred Thirty-Nine and 00/100 dollars). Payment Terms; Customer shall finance the UpLink System through a Municipal Tax Exempt Lease/Purchase agreement provided by a third-party lease financing source mutually acceptable to Customer and UpLink (the "Lessor"). To schedule installation, UpLink requires written confirmation of financing approval from the Lessor no later than six weeks before Customer's required installation date. Upon The Date of Completion and execution of the Delivery and Acceptance Certificate after satisfactory installation, Customer shall deliver to Lessor all documentation as required by the Lease to release the purchase price funds to UpLink. UpLink System Agreement 8 of 12 Ver.120106 EXHIBIT B The UpLink System to be installed at THE CROSSINGS AT CARLSBAD shall be comprised of the following components: Course Information Number of Holes 18 Golf Car Brand EZ-GO Power Type Electric Year 2007 UpLink System Configuration: Quantity 1 80 3 2 1 1 1 1 Description Base System including: Course Management Computer with Keyboard and Mouse - 17" Color LCD Monitor UpLink Standard System Software License Communications Controller Wireless Communication Network 1 Food & Beverage Printer System Five (5) Years of Factory Warranty Service and Support UpLink Inova (Roof View) Display Unit for UpLink Inova (Roof View) Display Unit for UpLink Inova (Roof View) Display Unit for Golf Car Marshal Car Beverage Car Additional Products, Features and Upgrades EventLink™ VP Pro Software - Customer provides computer as specified by VP VP Leaderboard Software - Customer provides hardware as specified by VP VP Software Support (5-years) UpLink System Agreement Ver.120106 9 of 12 EXHIBIT C Factory Warranty - Maintenance Service Terms and Conditions UpLink agrees to provide maintenance services during the Warranty Term as provided below. The parties understand and agree that performance of each party's obligations is essential to maximize system performance. 1. Scope of Services 1.1. To Contact Customer Support. Customer shall have access to UpLink Customer Support twenty-four (24) hours a day, seven (7) days a week. UpLink response time shall be no more than eight (8) hours from Customer's time contact with customer support center. UpLink Customer Support provides user support, troubleshooting, and diagnostic assistance and is Customer's point of contact for reporting system problems or requesting UpLink service. a. For all routine requests and status inquiries, contact Customer Support through email at support@uplinkgolf.com. b. To report emergency or critical system issues contact Customer Support by calling UpLink's toll free Customer Support hotline at 877-7UPLINK (877-787-5464). 1.2. Hardware Repair or Replacement. UpLink shall provide a return to factory service for defective components. The return to factory service provides that UpLink will repair or replace the defective components within ten (10) business days from receipt at UpLink's repair facility. Components returned to UpLink must be labeled with an approved Return Material Authorization ("RMA") number. Any request for special handling such as expedited repair, overnight return delivery, or non-business day delivery may be subject to additional charges which will be billed to Customer. The ten (10) day repair period excludes time for return shipment to Customer. UpLink will pay for return shipment to Customer, which will be standard ground delivery through services such as UPS or Federal Express. Please send all RMA shipments to the following address: UpLink Repair Center RMA# 9705 Burnet Road, Suite 404 Austin, TX 78758 1.3. Spares. UpLink shall provide two (2) spare UpLink display units to be kept on-site. 1.4. On-Site Support. If UpLink determines that a problem cannot be resolved through telephone technical support or by shipping a replacement component, UpLink will dispatch a technician to Customer's site to resolve the problem. UpLink will not charge Customer for site visits that UpLink determines are the result of UpLink System defects. UpLink will bill Customer the applicable time and materials rates for site visits that result from conditions not covered by this Agreement, as described in Paragraph 1.7. 1.5. Software Maintenance. UpLink shall provide software maintenance for the UpLink System software delivered with the original installation, including any optional UpLink software UpLink System Agreement 10 of 12 Ver.120106 products acquired such as IQLink and EventLink. Software maintenance provides for bug fixes, patches, or corrections to software as required. 1.6. Upgrades. This warranty excludes upgrades to UpLink System hardware or software. Hardware or software upgrades are considered new product offerings that can be acquired for the then-applicable prices. 1.7. Warranty Exclusions. This warranty does not cover damage due to external causes, including: accident, abuse, misuse, theft, vandalism, acts of God, defects or failure of electrical power^ and intentional destruction of hardware or software. 1.8. Additional UpLink Services. UpLink Services requested by Customer that are not within the coverage of this Agreement shall be provided for the applicable time and materials rates. Additional UpLink services are services such as hardware installation, hardware relocation, software configuration, aerial photography, mapping and graphics production. 1.9. Data Access. UpLink reserves the right to access information contained in the golf car onboard computer and UpLink System in conjunction with providing maintenance services. 2. Customer Responsibilities 2.1. Problem Notification. Customer agrees to promptly notify UpLink Customer Support in the event of any UpLink System or component failure. 2.2. Diagnostic Assistance. Customer agrees to provide diagnostic assistance as directed by Uplink to facilitate telephone support UpLink maintenance service efforts. 2.3. Component Replacement. Customer agrees to perform simple change out tasks of replacement components provided by UpLink with instruction from Uplink. 2.4. Shipment of Return Components. Customer agrees to obtain an RMA number from UpLink Customer Support prior to returning any UpLink System components to UpLink. All components returned to UpLink must be labeled with an RMA number and shipped to the UpLink Repair Center as noted above or UpLink may refuse delivery. Customer shall pay for shipment of components returned to UpLink. 2.5. Damaged Components. Customer shall pay UpLink for repair or replacement of returned components that have been damaged due to causes not covered by this warranty, as described in Paragraph 1.7. 2.6. Site Access. Customer agrees to provide UpLink with sufficient, free and safe access to its golf course facilities for UpLink to fulfill its obligations. UpLink System Agreement 11 of 12 Ver.120106 UPLINK positioning you for success EXHIBIT D DELIVERY AND ACCEPTANCE CERTIFICATE Customer Certification Please provide the information requested, sign and return promptly to UpLink. I hereby certify that I, on behalf of the Customer, personally inspected the equipment described below and that said equipment was delivered in proper working order on this /^J "^=- day of ; and that I, on behalf of the Customer, accept delivery of said Description of Equipment: equipent. UpLink System Configuration: Quantity 1 80 3 2 1 1 1 1 Description Base System including: Course Management Computer with Keyboard and Mouse - 1 7" Color LCD Monitor UpLink Standard System Software License Communications Controller Wireless Communication Network 1 Food & Beverage Printer System One (5) Years of Factory Warranty Service and Support UpLink Inova (Roof View) Display Unit for Golf Car UpLink Inova (Roof View) Display Unit for Marshal Car UpLink Inova (Roof View) Display Unit for Beverage Car Additional Products, Features and Upgrades EventLink™ VP Pro Software (1st year support incld.) - Customer provides computer as specified by VP VP Leaderboard Software - Customer provides hardware as specified by VP VP Software Support (5-years) / j CARO^XD PU^I^INANJPING Title: (jn ffjis*7\f * — ' f 5 This Delivery and Acceptance Certificate should be faxed, after execution, to UpLink at 512-637-4851. 12 of 12 Letter of Authorization I, Rodney S. Bond, certify as follows: I am the duly elected and qualified Secretary of UpLink Corporation (UpLink), a Texas corporation located at 6500 Riverplace Blvd., Suite 201, Austin, Texas, 78730. The persons set forth below have been authorized by the President and Secretary to act on behalf of UpLink and have authority to execute agreements between UpLink and its customers, specifically the "UpLink System Agreements". The signatures appearing opposite their names (including facsimile, if any) are their genuine signatures. Name Title Signature r Scott Bradford V.P. Business Operations *''' <zzr i.'"* "' WITNESS WHEREOF, I have signed this Letter of Authorization this I ( tf* day of .- <<: Rodney S. Bond NOTARY: Date: MUNICIPAL CERTIFICATE MUNICIPAL LEASE AND OPTION AGREEMENT NO. 15729 GOVERNMENT LEASING COMPANY ("LESSOR") CARLSBAD PUBLIC FINANCING AUTHORITY ("LESSEE") DATED: I, the undersigned, the duly appointed, qualifying and acting Clerk or Secretary of the aforementioned Lessee, do hereby certify: 1. Lessee did at a regular or special meeting of the governing body of the Lessee held on June 19,2007 by motion duly made seconded and carried, in accordance with all requirements of law, approve and authorize the execution and delivery of the above-referenced Municipal Lease and Option Agreement (the "Agreement") on its behalf by the following named representative of the Lessee: Raymond R. Patchett Executive Director (signature) 2. A true, correct and complete copy of the minutes of the governing body is attached hereto. 3. The above-named representative of the Lessee held at the time of such authorization and holds at the present time the office set forth above. 4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the date hereof. 5. All insurance required by the Agreement is currently maintained by the Lessee. 6. Lessee has in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Lease Payments scheduled to come due during the Original Term and to meet its other obligations for the Original Term (as such terms are defined in the Agreement) and such funds have not been expended for other purposes. IN WITNESS WHEREOF, I hereunto set my hand and the seal of the governing body of the Lessee the day and year above written. Lorraine M. Wood, Secretary £- JiOOl ^& Date ORIGINAL (78007.doc - 5/7/02 - 15729) MUNICIPAL LEASE AND OPTION AGREEMENT VENDOR: ORIGINAL xZ^ UpLink Corporation 6500 River Place Blvd Build IV, Suite 201 Austin, TX 78730 Attention: (512)697-4800 Fax: (512)637-4851 Agreement No.: 15LESSOR: Government Leasing Company 830 Tenderfoot Hill Road Suite 301 Colorado Springs, CO 80906 (800)822-8070 (719)576-8800 LESSEE: Carlsbad Public Financing Authority Carlsbad Municipal Golf Course (The Crossings of Carlsbad) 1635 Faraday Avenue Carlsbad, CA 92008 Attention: Ms. Lisa Irvine (760)602-2430 Fax: (760)602-8553 NOTE: This is an interest income tax-exempt transaction. No TIN/SSN must be provided because none of the payments are I.R.S reportable (such as Form 1099) (See Sections 103,149, and 6041 of the Internal Revenue Code of 1986, as amended, and the Instructions for Forms 1099, 8038-G and 8038-GC.) 29 EQUIPMENT DESCRIPTION (make, model, serial no. and attachments - Equipment is new unless noted) Uplink Corporation GPS Golf Car Management System more thoroughly described in Exhibit "A" to the Agreement Any additional equipment will be described in any Detailed Equipment Description Amendment that is executed and which refers to this Agreement. Lessor assumes and shall have no responsibility for performance or maintenance of Equipment. Equipment is to be insured by Lessee. VENDOR IS NOT AN AGENT OF LESSOR and no representative of Vendor is authorized to waive, supplement or otherwise alter any provision hereof. Maintenance and/or supplies ARE NOT included in this Agreement unless specified in the Equipment Description. Lessor or assignee has a security interest in Equipment and must be notified in writing of any removal or trade-in of Equipment before full payment is made to Lessor or assignee. EQUIPMENT COST - TERM - PAYMENTS LEASE TERM PAYMENTS TOTAL AMOUNT FINANCED PURCHASE OPTION AMOUNT 60 Monthly payments (includes interest, see Section 5.02). Sixty (60) monthly payments, each in the amount of $4,980.12, with the first such payment due upon acceptance of the Equipment and monthly thereafter as provided in the Payment Schedule. $260,330.27 - Includes sales tax in the amount of $1 8,71 9.27, any and all additional taxes and/or fees will be the sole responsibility of Lessee. Purchase Option is $1 .00 after timely making all payments. THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THE FOLLOWING PAGE, WHICH TERMS ARE MADE A PART HEREOF. TERMS AND CONDITIONS Lessor hereby leases the Equipment to Lessee for the following purposes and upon the following terms and conditions: ARTICLE I: COVENANTS OF LESSEE. Lessee represents, covenants and warrants, for the benefit of Lessor and Us assignee(s), as follows: A. Lessee is a public body, corporate and politic, duly organized and existing under the Constitution and laws of the State as set forth above ("State") and will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. B. Lessee has been duly authorized to execute, deliver and perform this Agreement under the Constitution and laws of the State and under the terms and provisions of the resolution of its governing body, or by other appropriate official approval. Lessee further represents, covenants and warrants that all requirements have been met, and procedures have occurred in order to ensure the enforceability of this Agreement, and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the Equipment hereunder. If requested, Lessee shall deliver to Lessor an opinion of Lessee's counsel in form acceptable to Lessor. C. During the term of this Agreement, the Equipment will be used by Lessee only for the purpose of performing one or more governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority and will not be used in a trade or business of any person or entity other than the Lessee. D. During the period this Agreement is in force, Lessee will annually provide Lessor or its assignee(s) with current financial statements, budgets, proof of appropriation for the ensuing fiscal year and E. The Equipment will have a useful life in the hands of the Lessee that is substantially in excess of the Original Term plus any Renewal Terms. F. The Equipment is, and shall remain during the period this Agreement is in force, personal property and when subject to use by Lessee under this Agreement, will not be or become a fixture under applicable law. G. This Agreement, as written, including all of its Amendments and Addendums, supercedes and replaces any and all representations made by Vendor. H. The Equipment described above is NOT BEING LEASED ON ANY TYPE OR FORM OF A TRIAL OR RENTAL BASIS. I. Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986 (the "Code"), including without limitation Sections 103 and 148 thereof, and the applicable regulations of the U.S. Treasury Department in order to maintain the exclusion of the interest components of Lease Purchase Payments from grass income for the purposes of U.S. federal income taxation. J. Lessee will use the proceeds of this Agreement as soon as practicable, and with all reasonable dispatch, for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement shall be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of the Agreement to be or become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code, as amended, and the applicable regulations of the U.S. Treasury Department. K. Lessee hereby designates the Agreement as a "qualified tax-exempt obligation" as defined in Section 265(b)(3) (B) of the Code. The aggregate face amount of all tax-exempt obligations (excluding private activity bonds other than qualified 501 (C)(3) bonds) issued, or to be issued, by Lessee and all subordinate entities thereof during the calendar year of commencement of this Agreement (the "Issuance Year") is not reasonably expected to exceed $10,000,000.00 Lessee and all subordinate entities thereof will not issue in excess of $10,000,000.00 of qualified tax-exempt obligations (including this Agreement, but excluding private activity bonds other than qualified 501 (c)(3) during the Issuance Year without first obtaining an opinion of nationally recognized counsel in the area of tax- exempt obligations acceptable to Lessor that the designation of this Agreement as a "qualified tax-exempt obligation" will not be adversely affected. [Omit and initial this paragraph if it is not applicable.] L Lessee represents and warrants that it is a governmental unit, under the laws of the State with general taxing powers, this Agreement is not a private activity bond as defined in Section 141 of the Code, as amended, 95% or more of the net proceeds of this Agreement will be used for local governmental activities of Lessee and the aggregate face amount of all tax-exempt obligations (other than private activity bonds) issued, or to be issued, by the Lessee and all subordinate entities thereof during the Issuance Year is not reasonably expected to exceed $5,000,000.00 Lessee and all subordinate entities thereof will not issue in excess of $5,000,000.00 of tax-exempt bonds (including this Agreement, but excluding private activity bonds) during the Issuance Year without first obtaining an opinion of be adversely affected. [Omit and initial this paragraph if it is not applicable.] ARTICLE II: DEFINITIONS. The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Agreement" means this Municipal Lease and Option Agreement. "Lease Term" means the Original Term defined in Article III hereof and a sufficient number of automatic renewal Terms as will equal the Lease Term set forth on the face of this Agreement. "Lessor" means (i) the entity designated on the face of this Agreement as Lessor hereunder, (ii) any surviving, resulting or transferee corporation, and (iii) except where the context requires otherwise, any assignee(s) of Lessor. "Buy-out After Payment Amount" means the amount of the payments for the balance of the entire Lease Term (assuming no early termination) plus the Purchase Option Amount shown above, if any, discounted to the date of payment at'five percent (5%) per annum, plus payment of any amounts due hereunder but not yet paid, together with interest on such overdue amounts at ten percent (10%) per annum through the date of payment. "Renewal Term(s)" means the automatic renewal periods of this Agreement, each having a duration of one (1) year co-terminus with Lessee's fiscal year except the last of such periods which shall end on the anniversary of the Commencement Date. The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that the Lease Purchase (77986.doc - 6/21/07 -15729)Page 1 of 4 1-16-OJ Payments shall be as provided in the attached Payment Schedule. "Vendor" means the manufacturer of the Equipment as well as the agents or dealers of the manufacturer from whom Lessor purchased or is purchasing the Equipment. ARTICLE IK: COMMENCEMENT OF LEASE TERM. The Original Term of this Agreement shall commence on the date the Equipment is accepted by Lessee as indicated on the Certificate of Acceptance ("Commencement Date") and shall terminate the last day of Lessee's current fiscal year. For the duration of the Lease Term, this Agreement will be automatically renewed at the end of the Original Term and any Renewal Term unless the Lessee gives written notice Lessee fails to accept or reject the Equipment within a reasonable time after its delivery (not to exceed fifteen (15) days notice after written notice from Lessor), then at the option of Lessor, the obligations of related to the Equipment in lieu of its obligation to make Lease Purchase.Payments. Further, in such case, Lessee agrees to indemnify and hold Lessor harmless from any claims, including demand for payment of the purchase price of the Equipment. ARTICLE IV: INSPECTION. Lessee for the purpose of Inspecting the Equipment ARTICLE V: LEASE PURCHASE PAYMENTS. Section 5.01. Lease Purchase Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Purchase Payments hereunder shall constitute a current expense Of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. Section 5.02 Payment of Lease Purchase Payments. Lessee shall pay Lease Purchase Payments, exclusively from legally available funds, in lawful money of the United States of America to Lessor or, in the event of assignment by Lessor, to its assignee, in the amounts and on the dates set forth in the Payment Schedule attached to this Agreement. A portion of each Lease Purchase Payment is paid as, and represents payment of, Merest and principal, respectively. The Payment Schedule sets forth the interest component and principal component of each Payment during the Lease Term. Section 5.03 Lease Purchase Payments to be Unconditional. Subject to Section 5.05, the obligation of Lessee to make payment of Lease Purchase Payments and other payments required under this Agreement shaB be absolute and unconditional in all events and are intended by the parties to be "net" of taxes and insurance Lessee shall make all such payments when due and shall not withhold any such payments as a result of any disputes arising between or among Lessee and Lessor, any Vendor or any other person, nor shall Lessee have the right to assert any set-off, reduction or deduction, defense, or counterclaim against its obligation to make such payments or be entitled to any abatement of such payments as a result of accident or unforeseen circumstances or any other reason. Section 5.04 Continuation of Lease Term by Lessee. Lessee intends to renew this Agreement through all of the Renewal Terms and to pay all the Lease Purchase Payments hereunder. Lessee reasonably believes that legally available funds of an amount sufficient to make all Lease Purchase Payments during the Original Term and each Renewal Term can be obtained. Lessee further intends to do all things lawfully within its power and to exercise its best efforts to obtain and maintain funds from which Lease Purchase Payments may be made, including making provision for such payments to the extent necessary in each bi-annual, annual, or otherwise periodic budget submitted and adopted in accordance with applicable provisions of state and local law. Section 5.05 Non-appropriation. In the event sufficient funds shall not be appropriated for the payment of the Lease Purchase Payments required to be paid in the next occurring Renewal Term, then Lessee may terminate this Agreement at the end of the Original Term or then current Renewal Term, and Lessee shall not be obligated to make payment of the Lease Purchase Payments provided for in this Agreement beyond the Original Term or the then current Renewal Term. Lessee agrees to deliver proof of non-appropriation and notice to Lessor of such termination at least thirty (30) days prior to the end of the Original Term or the then current Renewal Term. However, failure to deliver such proof of non-appropriation and notice to Lessor shall not extend the term of this Agreement beyond the end of the Original Term or the then current Renewal Term. If this Agreement is terminated under this Section 5.05, Lessee agrees, at Lessee's cost and expense, to peaceably surrender and deliver the Equipment to Lessor at the location specified by Lessor that is a reasonable distance from the initial location of the leased Equipment. ARTICLE VI: TITLE TO EQUIPMENT; SECURITY INTEREST. Section 6.01 Title to the Equipment. During the term of this Agreement, risk of loss and title to the Equipment and any and all additional, repairs, replacements or modifications shall vest in Lessee, subject to the rights of Lessor under this Agreement. In the event of default as set forth in Section 12.01 or non-appropriation as set forth in Section 5.05, title to the Equipment shall immediately vest in Lessor, and Lessee will, upon Lessor's request, surrender possession of the Equipment to Lessor. Section 6.02 Security Interest. To secure the payment of all Lessee's obligations under this Agreement, Lessee grants to Lessor a first priority purchase money security interest in the Equipment and on all additions, attachments, accessions and substitutions thereto, and on any proceeds therefrom. Lessee agrees to execute and authorizes Lessor to file such additional documents, including a UCC-1 financing statement in the form required for filing, and such other financing statements, certificates of title, affidavits, notices and similar instruments, satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest, and upon assignment, the security interest of any assignee of Lessor, in the Equipment. ARTICLE VII: MAINTENANCE; MODIFICATION; TAXES; AND INSURANCE. Section 7.01 Maintenance of Equipment by Lessee. Lessee agrees that at all times during the Lease Term, Lessee will, at Lessee's own cost and expense, maintain, preserve and keep the Equipment in good repair, working order and condition, and will from time to time make or cause to be made all necessary and proper repairs, replacements and modifications. If appropriate, Lessee will enter into a maintenance contract for the Equipment with Vendor or such other firm as Lessee may choose. Section 7.02 Taxes. Other Governmental Charges and Utility Charges. The parties to this Agreement contemplate that the Equipment will be used for governmental or proprietary purpose of Lessee and, therefore, the Equipment will be exempt from all taxes presently assessed and levied with respect to personal property. In the event the ownership, use, possession or acquisition of the Equipment is found to be subject to taxation in any form (except for income taxes payable by Lessor) Lessee will pay, as the same respectively come due, all taxes and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Equipment. If such tax is imposed directly on Lessor or its assigns, Lessee shall reimburse the person paying such tax on demand. If Lessee causes or allows events to happen that changes the interest income tax-exempt status of this Agreement, as outlined in Sections 103,149, and 6041 of the Internal Revenue Code of 1986, as amended, or, assuming the Lessee has designated this Agreement as a "qualified tax-exempt obligation", if the Lessee exceeds ten million dollars ($10,000,000.00) in "qualified tax-exempt obligations", as specified in Section 265 (b) (3) (B) of the Internal Revenue Code of 1986, as amended, during the calendar year of commencement of this Agreement so that Lessee does not qualify as a "qualified small issuer" thereunder it will pay the "taxable interest rate" on this Agreement retroactive to its Commencement Date. The "taxable interest rate" is hereby defined as that rate that results in the same after tax yield to the Lessor or to its Assigns, as the tax-exempt rate on this Agreement or the highest rate permitted by law, whichever is less. In all events, Lessee shall pay all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Equipment. Section 7.03 Insurance. At its own expense Lessee shall cause casually, PUBLIC LIABILITY AND PROPERTY DAMAGE insurance to be carried and maintained, or shall demonstrate to Lessor's satisfaction that adequate self-insurance is provided with respect to the Equipment, sufficient to protect the full replacement value (new) of the Equipment or the then applicable Buy-Out After Payment Amount, whichever is greater), and to protect Lessor from any liability related to the Equipment in all events. All insurance proceeds from casualty losses shall be payable as provided in Article VIII hereof. Lessee shall pay all deductibles and shall furnish to Lessor, or to its Assigns, Certificates evidencing such coverage throughout the Lease Term. Alternatively, Lessee may insure the Equipment under a blanket insurance policy or policies, which cover not only the Equipment but also other properties. If Lessee shall insure similar properties by self-insurance, Lessee will insure the Equipment by means of an adequate insurance fund. All insurance shall name Lessee and Lessor as insureds and loss payees as their respective interests may appear and shall provide for at least ten (10) days prior written notice by the underwriter or insurance company to the Lessor and its assigns in the event of cancellation or expiration. ARTICLE VIII: DAMAGE; DESTRUCTION AND CONDEMNATION; PROCEEDS. Section 8.01 Damage. Destruction and Condemnation. Lessee is responsible for any theft or destruction of, or damage to, the Equipment, whether insured or not ("Loss"). Lessee shall continue to satisfy all its obligations hereunder (including, but not limited to the payment of Lease Purchase Payments), even if there has been a Loss, if prior to the termination of the Lease Term (a) the Equipment or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casuarty or (b) title to, or the temporary use of, the Equipment or any part thereof or the estate of Lessee or Lessor in the Equipment or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, Lessee and Lessor will cause the proceeds of any insurance claim or condemnation award, after deducting all expenses (including attorney's fees) incurred in the collection of such claim or award ("Net Proceeds"), to be applied to Lessee's obligations pursuant to Section 8,02 hereof. Section 8.02 Application of Net Proceeds. Provided the Equipment is not deemed to be a total loss, Lessee shall, if Lessee is not in default hereunder, cause the repair, replacement or restoration of the Equipment and pay the cost thereof, and, if Lessee is in default hereunder, cause the net proceeds to be applied as if total destruction or damage had occurred. In the event of total destruction or damage to the Equipment, whether or not Lessee is in default, at Lessor's option, Lessee shall pay to Lessor on the Lease Purchase Payment due date next succeeding the date of such loss the amount of the Buy-Out after Payment Amount applicable to such date, plus the Lease Purchase Payment due on such date, plus any other amounts payable by Lessee hereunder, and, upon payment in full of such amounts, the Lease Term shall terminate and Lessor's security interest in the Equipment shall terminate. Lessee shall retain Net Proceeds in excess of the then applicable Buy-Out after Payment Amount, if any. Lessee agrees that if the Net Proceeds are insufficient to pay in full Lessee's obligations hereunder, Lessee shall make such payments to the extent of any deficiency. ARTICLE IX: DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES; USE. Section 9.01 Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR ANY OTHER WARRANTY WITH RESPECT THERETO. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR LESSEE'S USE OF THE EQUIPMENT OR ANY ITEM THEREOF OR SERVICES PROVIDED FOR IN THIS AGREEMENT, OR ANY SERVICES PROVIDED BY VENDOR. Any transfer of the Equipment to the Lessee shall be made disclaiming all express and implied warranties from Lessor and its assigns. Section 9.02 Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and attomey-in-fact during the Lease Term, so long as Lessee shall not be in default hereunder, to assert from time to time whatever claims and rights, including warranties of the Equipment, which Lessor may have against the Vendor of the Equipment. Lessee's sole remedy for the breach of any such warranty, indemnification or representation shall be against the Vendor and/or manufacturer of the Equipment. Lessee expressly acknowledges that Lessor makes, and has made, no representation or warranties (77986.doc - 6/21/07 -15729)Page 2 of 4 whatsoever as to the existence or availability or enforceability of such warranties of the Vendor or manufacturer. Section 9.03 Use of the Equipment Lessee will not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Lessee shall obtain all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects (including, without limitation, with respect to the use, maintenance and operation of each Hem of the Equipment) with all laws of the jurisdictions in which its operations involving any item of Equipment may extend and any legislative, executive, administrative or judicial body exercising any power or jurisdiction over the items of the Equipment provided, however, that Lessee may contest in good faith the validity or application of any such law or rule in any reasonable manner. Lessee agrees that no more than 10% of the use of the Equipment in any month will be by persons or entities other than the Lessee or its employees on matters relating to such employment, and no more than 5% of the use of the Equipment in any month will be unrelated to use by or for the Lessee. Lessee further agrees that no management contracts will be entered into with respect to the use of the Equipment unless: (a) at least half of the compensation is on a periodic, fixed fee basis; (b) no compensation is based on a share of net profits; (c) the Lessee is able to terminate the contract without penalties at the end of any three years; and (d) the total term of such contract, including any renewals does not exceed five years. ARTICLE X: EARLY OPTION TO PURCHASE, Provided Lessee is not m default hereunder, Lessee may, upon givftig Lessor not less than thirty (30) days prior written notice, elect to purchase all, but not less than all, of the Equipment at the end of each month, or Payment due date as established by the Commencement Date, for the Buy-Out After Payment Amount. Upon exercise of this early option to purchase, Lessee shall pay these amounts to Lessor or its assigns, on demand. As a condition precedent to exercising this early option to purchase, Lessee shall deliver to Lessor and its assigns a termination of any maintenance funding or disbursing obligations related to this Agreement. ARTICLE XI: ASSIGNMENT; SUBLEASING; AND ADDITIONAL COVENANTS. Section 11.01 Assignment by Lessor. This Agreement, and the right to receive the payments to be made hereunder, may be assigned by Lessor and reassigned in whole or in part to one or more assignees at any ftne subsequent to the execution of this Agreement, without obtaining the consent of Lessee. Lessor agrees to give notice of assignment and upon receipt of such notice Lessee agrees to make all payments to the assignee designated in the notice of assignment, notwithstanding any claim, defense, set-off or counterclaim whatsoever (whether arising from a breach of this Agreement or otherwise) that Lessee may from time to time have against Lessor, or the assignee. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements that may be reasonably requested and provided by Lessor or its assignee to order to protect their interests in the Equipment and in this Agreement. The Lessor's interest in this Agreement may not be assigned or reassigned in whole or in part unless (i) the document by which such assignment or reassignment is made discloses the name and address of the assignee and (ii) the Lessee receives written notification of the name and address of the assignee. Section 11.02 No Sate. Assignment or Subleasing by Lessee. This Agreement and the interest of Lessee in the Equipment may not be sold, assigned or encumbered by Lessee without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Section 11.03 Additional Covenants. To the extent permitted by the laws and Constitution of the State, Lessee shall protect and hold harmless Lessor from and against any and all liability, obligations, losses, claims and damages whatsoever, regardless of cause thereof (except for such liability, obligation, loss, claim or damage caused by Lessor or its Assigns), and expenses in connection therewith, includhg, without limitation, counsel fees and expenses, penalties and interest arising out of or as the result of the entering into of this Agreement, the ownership of any Hem of the Equipment, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Equipment or any accident in connection with the operation, use, condition, possession, storage or return of any Hern of the Equipment resulting in damage to property or injury to or death to any person. Lessor shall protect and hold harmless Lessee from and against any and all liabilities, obligations, losses, claims and damages whatsoever, and expenses in connection therewith, including, without limitation, counsel fees and expenses, penalties and interest arising out of or as the result of the entering into of this Agreement, the ownership of any item of the Equipment, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Equipment or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, provided, however that the foregoing indemnification by the Lessor shall only apply to the extent such liabilities, obligations, losses, claims and damages were caused by Lessor or its Assigns. The indemnification arising under this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the Lease Term for any reason, subject to applicable statutes of limitations. ARTICLE XII: EVENTS OF DEFAULT AND REMEDIES. Section 12.01 Events of Default Defined. The following shall constitute an "event of default" hereunder: A. Failure by Lessee to pay any Lease Purchase Payment or other payment required to be paid hereunder at the time specified herein; or B. Failure by Lessee to observe and perform any other covenant, condition or agreement on its part to be observed or performed, other than for a period of thirty (30) days after written notice to Lessee, specifying such failure and requesting that it be remedied unless Lessor shall agree in writing to an extension of such time prior to its expiration provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; or C. Breach of any material representation or warranty by Lessee under this Agreement; or D. Commencement by Lessee of a case or proceeding under the Federal bankruptcy laws or filing by Lessee of any petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any existing or future bankruptcy, insolvency or other similar law or an answer admitting or not contesting the material allegations of a petition filed against Lessee in any such proceeding; or E. A petition against Lessee in a proceeding under any existing or future bankruptcy, insolvency or other similar law shall be filed and not withdrawn or dismissed within thirty (30) days thereafter. Section 12.02 Remedies on Default. Upon the occurrence of an event of default, Lessor shall have the right, at its sole option, to exercise any one or more of the following remedies: A. By written notice to Lessee, Lessor may declare all payments and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be due; B. With or without terminating this Agreement, retake possession of the Equipment and sell, lease or sublease the Equipment with the net proceeds thereof to be applied as provided herein; C. Require Lessee at Lessee's risk and expense to promptly return the Equipment in the manner and in the condition set forth in Section 13.10 hereof; D. If Lessee refuses to return the Equipment for any reason, the Equipment shall be deemed a total loss and Lessee shall pay to Lessor the Buy-Out after Payment Amount, E. Take whatever other action at law or in equity that may appear necessary or desirable to enforce its rights as the owner of the Equipment; and, F. The proceeds of such sale, lease or sublease of the Equipment pursuant to Section 12.02 B shall be applied in the following order: 1) to all reasonable expenses of Lessor in exercising its remedies under this Agreement, including without limitation all expenses of taking possession, storing, reconditions and selling, leasing or subleasing of the Equipment and all brokerage, auctioneers' and attorneys' fees 2) all unpaid Lease Purchase Payments and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term and 3) the balance to the Lessee. If the proceeds of such sale, lease or sublease shall be insufficient to pay all of items 1), and 2), Lessee shall remain liable for any deficiency as to 'rtem 2), but will not remain liable for any deficiency as to items 1) in this section F. remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. ARTICLE XIII: MISCELLANEOUS. Section 13.01 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, to the parties at their respective addresses. Section 13.02 Binding Effect. Subject to the limitations on assignment, this Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.03 Severabilitv; Interest Limitations. In the event any court of competent jurisdiction shall hold any provision of this Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision hereof. Lessee will not be required to pay and Lessor will not be permitted to collect any amount in excess of the maximum amount of interest permitted by law ("Excess Interest"). If any Excess Interest is provided for or determined to have been provided for under this Agreement, then: (A) this subsection shall govern and control; (B) Lessee will not be obligated to pay any Excess Interest; (C) any Excess Interest that Lessor may have received hereunder shall be, at Lessor's option (1) applied as a credit against the outstanding lease payment obligations (not to exceed the maximum amount permitted by law), (2) refunded to Lessee, or (3) any combination of the foregoing; (D) any interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed under applicable law, and this Agreement shall be deemed to have been, and shall be, reformed and modified to reflect such reduction; and (E) Lessee will not have any action against Lessor for any damages arising out of the payment or collection of any Excess Interest. Section 13.04 Advances. In the event Lessee fails to pay any amounts due hereunder or to perform any of its obligations under this Agreement after ten (10) days written notice, Lessee shall pay Lessor its damages together with interest at the rate of fifteen percent (15%) per annum or the highest rate permitted by law, whichever is less. Section 13.05 Execution in Counterparts. This Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument. The counterpart bearing Lessor's signature shall constitute the sole chattel paper original of this Agreement. Section 13.06 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of the California, venue to be North San Diego County. Section 13.07 Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. Section 13.08 Entire Agreement. This Agreement constitutes the entire agreement between Lessor and Lessee and may not be amended, altered or modified except by written instrument signed by Lessor and Lessee. The execution of such writing by Lessor's assignee shall be sufficient for such purposes if Lessor has assigned this Agreement. There are no understandings, agreements, representations or warranties, express or implied, not specified herein regarding this Agreement or the Equipment leased hereunder. Any terms and conditions of any purchase order or other document (with the exception of Section 13.09 Finance Lease. The parties intend that the Lessor shall have all benefits of a lessor under a finance lease under the uniform commercial code. Lessor did not select, manufacture, or supply the leased property and only acquired it (or the right to use such leased property) in connection with this Agreement. Further, Lessee acknowledges, prior to signing this Agreement, Lessee was told that the uniform commercial code - leases, governs this transaction and that Lessee may communicate directly with the vendor concerning the matters described in subsection (c) of this sentence. Lessee waives any and all rights and remedies Lessee may have under the UCC 2A-508 through 2A-522, including any right to: (a) cancel this Agreement; (b) reject tender of the Equipment; (c) revoke acceptance of the (77986.doc - 6/21/07 -15729) Page 3 of 4 Equipment; (d) recover damages for any breach of warranty; and (e) make deductions or set-offs, for any reason, from amounts due us under this Agreement. If any part of this Agreement is inconsistent with UCC 2A, the terms of this Agreement win govern. Section 13.10. Return of Equipment Upon termination of the Agreement for any reason (except purchase by the Lessee), at the option of Lessor, (i) at its sole cost and expense, Lessee will immediately return the Equipment to Lessor in accordance with the provisions of this section, or (ii) Lessor shall transfer ownership of the Equipment to Lessee. If shipped, the Equipment shall be packed in accordance with the Vendor's specifications and returned to Lessor at the location specified by Lessor in the Continental United States reasonably close to where it was originally delivered, in the same condition as when accepted, ordinary wear and tear excepted. Such shipment shall be f.o.b. destination. Lessee shall bear all costs associated with such packing and shipping and the risk of loss shall not pass to Lessor until the Equipment has been received by it. In accordance with Section 7.03 of this Agreement either 1. We have Instructed the following Insurance agent INSURANCE COVERAGE REQUIREMENTS Aon Risk Services, Inc. of Illinois (insert name, address and telephone number) to Issue to you: a, All Risk Physical Damage Insurance on the leased Equipment properly reflected by an Evidence of Insurance and Long Form Loss Payable Clause (Acord Form 27 or its equivalent) naming Lessor designated abov; and/or its Assigns as an additional insured and loss payee, and b. Public Liability Insurance reflected by an Evidence of Insurance (Acord Form 27 or its equivalent) naming Lessor and/or its assigns as an additional insured and loss payee; or 2. We are self-insured for all risk, physical damage, and public liability and will provide proof of such self-insurance in letter form together with a copy of the statute authorizing this form of insurance. Proof of insurance coverage will be provided to you prior to the time that the Equipment is delivered to us. Date: Carl:lie Financing Anhority _ (Authorized Official) ESSENTIAL USE/SOURCE OF FUNDS LETTER Ladies/Gentlemen: This confirms and affirms that the Equipment described in this Agreement is essential to the function of the undersigned or to the service we provide to our citizens. Further, we have an immediate need for, and expect to make immediate use of, substantially all such Equipment which need Is not temporary or expected to diminish in the foreseeable future. Such Equipment will be used by us only for the purpose ol performing one or more of ou governmental or proprietary functions consistent with the permissible scope of our authority. Specifically, such Equipment was selected by us to be used as follows: nplf Caff GPS The estimated useful life of such Equipment based upon manufacturer's representations and our projected needs is: 3 y Qd 1C S . Our source of funds for payments of the rent due under the Agreement for the current fiscal year is: Current/proposed budget. _ We expect and anticipate adequate funds to be available for all future Lease Purchase Payments due after the current fiscal year for the following reasons: Carlsbtd PoBfjJ Financing Aythority By^Vn^K?Date:_(Authorized Official ACCEPTED BY: LESSOR: Government Leasing Company Bv: Name: Thomas Wittwer Title: President Lessee acknowledges reading and receiving a copy of this Agreement. The undersigned affirms that she/he has been duly authorized to execute this Agreement on behalf of the above-named Lessee. Depending on the jurisdiction, this may be the highest elected official. LESSEE: Carlsbad Public Financing Authority Name^Raymond R. Patchett Title: Executive Dire^tTDate: , Attest:Oo^U^-v £L*^' /LORR^NE M^/OODV^C I T^ ' ^.iiiui/, £$*$&*'''', ORIGINAL ' Q •'• d•t":^"f £-.-,•••." "".••"v"V~ Ov \J p ,"• (77986.doc - 6/21/07 -15729)Page 4 of 4 EXHIBIT "A" DETAILED EQUIPMENT DESCRIPTION AMENDMENT MUNICIPAL LEASE AND OPTION AGREEMENT NO. 15729 GOVERNMENT LEASING COMPANY ("LESSOR") CARLSBAD PUBLIC FINANCING AUTHORITY ("LESSEE") The parties to the Agreement identified above have agreed to the following additions, deletions and/or modifications. To the extent that the provisions of this Amendment conflict with, modify, or supplement the terms of the Agreement, the provisions contained in this Amendment shall prevail and control. The other terms and provisions of the Agreement shall continue to be effective. This Amendment shall be a part of the Agreement and is hereby incorporated therein. The description of the Equipment in the Agreement is amended and restated to include the following specifically described equipment: UPLINK GPS Golf Car Management system composed of: Qty Description 1 Base System, consisting of i. Delivery & Installation i. Course Management Computer (Dell) with 17 inch LCD Monitor ii. UpLink Standard System Software License (resident on hardware) iii. Communications Controller iv. Wireless Communication Network v. 1 Food & Beverage Printer System 80 Inova Roofview GPS Display Units & related equipment (for standard EZ-Go Golf Car) 3 Inova GPS Display Units & related equipment (for Marshal Cars) 2 Inova GPS Display Units & related equipment (for Beverage Cars) System includes: 1 EventLink Advertising Manager Software License i. TracLink Superintendent Manager ii. Remote CM Computer & License iii. Remote CM Software License only 1 VP Professional Software License (with 1 year support) 1 VP Leaderboard Software License (with 1 year support) i. VP Eventboard ii. VP Web Manager iii. WP Club Handicaps iv. Includes VP Support for term v. Scorecard/Report Printer (HP LJ 3550) vi. Scoresheet Plotter (HP DJ 500 24inch) vii. Scoresheet plotter stand viii. Upgrade all CMC Monitors to 19inch LCD ix. Groundlinkx - GIS LESSOR: Government Leasing Company By: Date: Thomas Wittwer, President LESSEE: Carlsbad Public Financing Authority (for): Carlsbad Municipal Golf Course (The Crossings of Carlsbad) By: I ^} ^-^-( •> Date: (jt '3*1' 0 . Authorized Signature•G?" Printed Name: Raymond R. Patcbett Title: Executive Director (Form LetterslO - 0/0/00 - «Contract_Number») GOVERNMENT LEASING COMPANY 1-800-822-8070 Municipal Lease Program ORIGINAL Number: 15729 Lessee: Carlsbad Public Financing Authority Vendor: UpLink Corporation Equipment: Uplink Corporation GPS Golf Car Management System more thoroughly described in Exhibit "A" to the Agreement * If an early buy-out is desired .^please contact Government Leasing Company at 1-800-822-8070. Accepted by: Printed Name: Title: Date Accepted: Raymond R. Patcbett Executive Director Lt' This is a preliminary schedule that will require revision upon delivery and acceptance. Payment # 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Date 15-Jul-07 15-Jul-07 15-Aug-07 15-Sep-07 15-Oct-07 15-Nov-07 15-Dec-07 15-Jan-08 15-Feb-08 15-Mar-08 15-Apr-08 15-May-08 15-Jun-08 15-Jul-08 15-Aug-08 15-Sep-08 15-Oct-08 15-Nov-08 15-Dec-08 15-Jan-09 15-Feb-09 15-Mar-09 15-Apr-09 15-May-09 15-Jun-09 15-Jul-09 15-Aug-09 15-Sep-09 15-Oct-09 15-Nov-09 Loan 260,330.27 Payment Schedule Payment Interest 4,980.12 4,980.12 1,225.89 4,980.12 1,207.86 4,980.12 1,189.75 4,980.12 1,171.56 4,980.12 1,153.27 4,980.12 1,134.90 4,980.12 1,116.44 4,980.12 1,097.89 4,980.12 1,079.25 4,980.12 1,060.53 4,980.12 1,041.71 4,980.12 1,022.80 4,980.12 1,003.80 4,980.12 984.71 4,980.12 965.53 4,980.12 946.26 4,980.12 926.89 4,980.12 907.43 4,980.12 887.88 4,980.12 868.24 4,980.12 848.50 4,980.12 828.66 4,980.12 808.73 4,980.12 788.70 4,980.12 768.58 4,980.12 748.36 4,980.12 728.05 4,980.12 707.63 Principal 4,980.12 3,754.23 3,772.26 3,790.37 3,808.56 3,826.85 3,845.22 3,863.68 3,882.23 3,900.87 3,919.59 3,938.41 3,957.32 3,976.32 3,995.41 4,014.59 4,033.86 4,053.23 4,072.69 4,092.24 4,111.88 4,131.62 4,151.46 4,171.39 4,191.42 4,211.54 4,231.76 4,252.07 4,272.49 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 1 5-Dec-09 15-Jan-10 '15-Feb-10 15-Mar-10 15-Apr-10 15-May-10 15-Jun-10 15-Jul-10 15-Aug-10 15-Sep-10 15-Oct-10 15-Nov-IO 15-Dec-10 15-Jan-11 15-Feb-11 15-Mar-11 15-Apr-11 15-May-11 15-Jun-11 15-Jul-11 15-Aug-11 15-Sep-11 15-0ct-11 15-Nov-11 15-Dec-11 15-Jan-12 15-Feb-12 15-Mar-12 15-Apr-12 15-May-12 15-Jun-12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 4,980.12 687.12 666.51 645.80 625.00 604.09 583.08 561.97 540.76 519.45 498.03 476.51 454.89 433.17 411.34 389.41 367.37 345.22 322.97 300.61 278.15 255.57 232.89 210.10 187.20 164.19 141.07 117.84 94.50 71.04 47.47 23.79 4,293.00 4,313.61 4,334.32 4,355.12 4,376.03 4,397.04 4,418.15 4,439.36 4,460.67 4,482.09 4,503.61 4,525.23 4,546.95 4,568.78 4,590.71 4,612.75 4,634.90 4,657.15 4,679.51 4,701.97 4,724.55 4,747.23 4,770.02 4,792.92 4,815.93 4,839.05 4,862.28 4,885.62 4,909.08 4,932.65 4,956.33 ORIGINAL