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HomeMy WebLinkAbout05-229 Resolution No. 05-229 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH PROLINK SOLUTIONS LLC FOR GLOBAL POSITIONING ASSEMBLY SYSTEMS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Olufemi Folarin, City Manager, be and is hereby authorized and directed to execute an Agreement with Prolink Solutions, LLC on behalf of the City of Elgin for Global Positioning Assembly Systems, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: July 27, 2005 Adopted: July 27, 2005 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk JULY, 2007 IN REVIEWING THIS FILE, IT WAS DETERMINED THAT AN EXECUTED COPY OF THE AGREEMENT LISTED BELOW WAS NEVER RETURNED TO THE CLERK'S OFFICE. ALL THAT IS AVAILABLE IS THE ATTACHED DRAFT COPY OF THE AGREEMENT AND ITS SUPPORTING PAPERWORK. REFERENCE: RESOLUTION NO. 05-229 PASSED: JULY 27, 2005 SUBJECT: AGREEMENT WITH PROLINK SOLUTIONS LLC FOR GLOBAL POSITIONING ASSEMBLY SYSTEMS . t SPEED MESSAGE TO FROM Pil � ,1 //)-\--(2- ‹"C‘,--, / fr SUBJEc°T 't w,r .. /,' _ .- './,..._ _ _ w�a �!�' '. _• ,_ _ f_. »y r►x.• ."..-7 A ..1.;„(7441 .,",-,i. DATE (a.-4-A---'61',,t..4'_� /r ? &i-, 71 , s 4sy "_ . •, / I 0, ',/ 4'7 I /7-0- AL---1,r " ,?x -71,X4 C-4; (--_<6,,j_ SIGNED YI T.` 1 ' i IN WilsonJones® WHITE-ORIGINAL CANARY-DUPLICATE 44-900•Duplicate IF Mary Giff.,rt- Re: Agreement with Prolink Solutions Page 1 From: Michael Lehman To: Giffort, Mary �v Date: 7/18/2005 3:00:53 PM Subject: Re: Agreement with Prolink Solutions Mary: The agreements will be here tomorrow. I will hand deliveryc u in thaafter he a reements will not be signed because it is a three party lease. `/Ve will need to sign first like we did with EZ GO. Thanks ML Mike Lehman Golf Services Manager/Professional 875 Sports Way Elgin II 60123 phone (847)931-6195 fax (847) 931-5951 E-mail lehman_m@cityofelgin.org >>> Mary Giffort 7/15/2005 8:07:38 AM >>> If the contract is acceptable to Prolink, they could sign it and Fax a copy to me (or you) and I could use that one to copy for City Council. Then we can get an originally signed contract from them in the mail. I really need the faxed/signed copy no later than Wedns (July 20th) around 10:00 am in order to get it copied for council packets. Does that help? Lease A•reement NationalCity. a division of National City Commercial Capital For Office Use Only GOLF FINANCE Corporation Lease Number: PL589070005 995 Dalton Avenue • Cincinnati,OH 45203 prounk With Questions call:(800)263-9499 FAX TO:(888)8884696 Rental Commencement Date: Lessee Information Lessee's Full Legal Name City of Elgin,IL DBA: Highlands of Elgin Street Address County City State Zip Code 150 Dexter Ct Elgin IL 60120 Location of Equipment Address County City State Zip Code 875 Sports Way Elgin IL 60123 Equipment See Schedule A for any additional equipment Initial Terms Initial Term of Lease Tax on Rental Payment Payment Schedule Type: End of Term Options: (Months) (See Attached 60 Round Breakdown Fixed Rental X FMV Amount of Each Rental Total Rental Payment X Pay For Play Payment (See Attached Round Other (See Attached Round Breakdown) The attached Payment Schedule Breakdown) is made a part hereof. Payment Period: Monthly Quarterly X Other Seasonal(7 on/5 off) PRORATED RENTS WILL BE DUE FROM THE DATE OF DELIVERY UNTIL THE RENTAL COMMENCEMENT DATE. Advance Payments Personal Guaranty THIS PERSONAL GUARANTY CREATES SPECIFIC LEGAL OBLIGATIONS. In consideration of Lessor entering into the lease agreement identified above("Lease"),the undersigned Personal Guarantor(hereinafter"You")unconditionally and irrevocably guarantees to Lessor,its successors and assigns,the prompt payment and performance of all obligations of the Lessee identified in this Lease.You agree that this is a guaranty of payment and not of collection, and that Lessor can proceed directly against you without first proceeding against the Lessee or against the equipment covered by the Lease. You waive all notices and defenses, based upon suretyship or impairment of collateral,including but not limited to release of collateral or failure to perfect a security interest. You agree that Lessor can renew, extend or otherwise modify the terms of the Lease and you will be bound by such changes. If the Lessee defaults under the Lease,you will immediately perform all obligations of the Lessee under the Lease including, but not limited to, paying all amounts due under the Lease. You will pay to Lessor all expenses INCLUDING ATTORNEYS'FEES incurred in enforcing Lessor's rights against you or the Lessee.This is a continuing guaranty that will not be discharged or affected by your death and will bind your heirs and personal representatives.You waive any rights to seek repayment from the Lessee in the event you must pay Lessor. If more than one guarantor has signed this Personal Guaranty, each of you agree that your liability is joint and several. You authorize Lessor or any of Lessor's agents to obtain credit bureau reports regarding your personal credit and to make other credit inquiries that Lessor determines are necessary. THIS PERSONAL GUARANTY IS GOVERNED BY THE LAWS OF THE STATE OF OHIO. YOU CONSENT(AND THE LESSEE HAS CONSENTED)TO THE EXCLUSIVE JURISDICTION OF ANY COURT LOCATED WITHIN OHIO. YOU EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY. Personal Guarantor#1 Personal Guarantor#2 X N/A X N/A Page 1 of 6 10_24_03 PFG Golf lease Agent Proink only final ver.doc _ THIS LEASE IS NON-CANCELABLE .�. SMS&CONDITIONS 1. By signing this Lease, Lessee acknowledges and agrees that: it has read and understands the TERMS AND CONDITIONS OF THIS LEASE;this Lease becomes effective only upon written acceptance by an authorized employee of Lessor;this is a net lease; it cannot terminate or cancel this Lease; it has an UNCONDITIONAL OBLIGATION to make all payments due under this Lease;it cannot withhold,set off or reduce such payments for any reason;it will use the Equipment only for business purposes; the person signing this Lease has the authority to do so and to grant the POWER OF ATTORNEY set forth in paragraph 14 herein;it entered into this Lease rather than purchase the Equipment.THIS LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OHIO;AND TO THE EXCLUSIVE JURISDICTION OF ANY COURT LOCATED IN THE STATE OF OHIO.YOU EXPRESSLY WAIVE(AS HAS THE LESSEE)ANY RIGHT TO A TRIAL BY JURY. Lessee City of Elgin,IL Lessor NC Golf Finance a division of National City Commercial Capital Corporation X X Authorized Signature Authorized Signature Print Name and title Date Print Name and title Date 2. LEASE. Lessee agrees to Lease from Lessor the 6. TERM AND RENT.The term of this Lease commences Equipment or if separately scheduled,the Equipment identified upon the date on which the Equipment is delivered to Lessee on Schedule A attached and made a part of this Lease. (whether or not accepted)and ends upon the expiration of the 3. NO WARRANTIES: LESSOR IS LEASING THE number of months specified on the front of this Lease under EQUIPMENT TO THE LESSEE "AS-IS". LESSEE "Initial Term of Lease"after the Rental Commencement Date. ACKNOWLEDGES THAT THE LESSOR DOES NOT Lessee authorizes Lessor to insert in this Lease as "Rental MANUFACTURE THE EQUIPMENT, LESSOR DOES NOT Commencement Date" the date when the Equipment is REPRESENT THE MANUFACTURER OR THE SUPPLIER, delivered to Lessee or any later date selected by Lessor. The AND LESSEE HAS SELECTED THE EQUIPMENT AND Lessee shall pay as rent either: i) the Total Rental Payment SUPPLIER BASED UPON LESSEE'S OWN JUDGMENT. indicated on the front of this Lease or ii) if applicable, the LESSOR MAKES NO WARRANTIES, EXPRESS OR amounts as shown on the Payment Schedule, plus applicable IMPLIED, NOR WARRANTIES OF MERCHANTABILITY OR taxes ("Rent"). The first rental payment is due on the Rental FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. Commencement Date, and each remaining periodic rental LESSEE AGREES THAT REGARDLESS OF CAUSE, payment is due on the same day of each payment period LESSOR IS NOT RESPONSIBLE FOR AND LESSEE WILL thereafter for the initial term of lease. Additionally, Lessee NOT MAKE ANY CLAIM AGAINST LESSOR FOR ANY shall, upon demand, pay, as Rent, daily interim rent, on all DAMAGES, WHETHER CONSEQUENTIAL, DIRECT, Equipment subject to this Lease, for the period from the date SPECIAL, OR INDIRECT. LESSEE AGREES THAT NEITHER of delivery of Equipment(or any part thereof)to and including SUPPLIER NOR ANY SALESPERSON, EMPLOYEE OR the day immediately preceding the Rental Commencement AGENT OF SUPPLIER IS LESSOR'S AGENT OR HAS ANY Date. The daily rent will be calculated on a 360 day year. No AUTHORITY TO SPEAK FOR LESSOR OR TO BIND portion of any rental payments shall be deemed to constitute LESSOR IN ANY WAY. LESSOR TRANSFERS TO LESSEE payment for any equity interest in the Equipment. If any FOR THE TERM OF THIS LEASE ANY WARRANTIES MADE payment due under this Lease is not paid within 5 days of its BY THE MANUFACTURER OR SUPPLIER UNDER A due date, Lessee shall pay Lessor a late charge not to exceed SUPPLY CONTRACT. 10% of each late payment (or such lesser rate as is the 4. ORDERING EQUIPMENT, DELIVERY AND maximum rate allowed by applicable law). Lessee authorizes ACCEPTANCE. If Lessee entered into any purchase or Lessor to insert in this Lease as"Tax on Rental Payment"and "Total Rental Payment" the appropriate amounts when same supply contract with any supplier, Lessee assigns to Lessor are determined by Lessor. If the Payment Schedule is Pay For Lessee's rights under the supply contract,but none of Lessee's Play, then Lessor may, upon 30 days prior written notice, obligations,except for the obligation to pay for Equipment if it is terminate this Agreement and remove the Equipment should accepted by Lessee according to the terms of this Lease. If Lessor, in its sole and absolute discretion, determine that the Lessee has not entered into a supply contract, Lessee operation of the Equipment at the Lessee's facility is no longer authorizes Lessor to enter into a supply contract. Lessee shall commercially desirable for Lessor. arrange for the delivery of the Equipment to Lessee. Lessee T. ELECTRICAL POWER AND TELEPHONE LINES" shall inspect the Equipment immediately upon Lessee's receipt Lessee shall, at its sole expense, provide electrical power and of the Equipment to determine if it is in good working condition. power outlets needed for the operation of the Equipment. The Equipment will be deemed irrevocably accepted by Lessee LPgc•ee is also required to provide access from its network to the upon the earlier of(a)the date of delivery to Lessor of a signed intemet through a local intemet service provider(ISP) and will Certificate of Acceptance of Leased Equipment or(b)ten days provide, at Lessee's cost,any additional phone lines necessary after completion of the installation and training of the to complete the installation. Lessee will also open the necessary Equipment. Upon completion of installation and training, the ports on its firewall, if applicable, to allow Lessor access to Lessee must supply Lessor with a written list of system monitor the health of the Equipment. Lessor will not access any deficiencies,if any,within 24 hours. data that is not related to the leased Equipment. Lessee will be 5. TERMINATION BY LESSOR. Lessor shall have the responsible for all costs of the installation of necessary exclusive option to terminate this Lease if within 90 days after telephone lines and the monthly service for such telephone lines Lessee has signed this Lease, the Equipment has not been and any intemet access lines. delivered to Lessee,or Lessee has not accepted the equipment /� as provided in paragraph 4. !�' Lessee has reviewed this page and certifies that each of the provisions set forth is clear and legible. Page 2 of 6 10_24_03 PFG Golf Lease Agnt Prole*only final ver doe Lessee initials X 11" TAXES. Lessee shall promptly reimburse Lessor for, or 8. EQUIPMENT LOCATION; USE AND REPAIR; shall pay directly if so requested by Lessor, as additional Rent, RETURN. Lessee will keep and use the Equipment only at all taxes, charges and fees which may now or hereafter be the Equipment Location shown on the front of this Lease. imposed or levied by any governmental body or agency upon or Lessee may not move the Equipment without Lessor's prior use, location or relocation of the Equipment, or otherwise in written consent. At Lessee's own cost and expense,Lessee connection with the transactions contemplated by the Lease, excluding,however,all taxes on or measured by the net income will keep the Equipment eligible for any manufacturer's of Lessor. Lessee agrees to reimburse Lessor for all personal certification,in compliance with all applicable laws and in not Property taxes immediately upon receipt of Lessors invoice make any alterations, additions or replacement to the including without limitation such taxes assessed or arising during Equipment without Lessor's prior written consent. All the term of this Lease but remitted by Lessor after the alterations, additions and replacements will become part of terminiation of this Lease. At Lessor's option, Lessee agrees to the Equipment and Lessor's property at no cost or expense to remit, along with Lessee's rental payments under this Lease,an amount equal to a percentage of Lessor's Lessor. Lessor may inspect the Equipment at any reasonable reasonable estimate time. Unless Lessee purchases the Equipment at the end of of the personal property taxes that will be assessable against the this Lease, Lessee will immediately deliver the Equipment to Equipment. Any such amounts remitted to Lessor will be Lessor to any place in the United States that Lessor tells credited by Lessor against Lessee's obligations under this Lessee. Additionally,the Lessee agrees that the Equipment paragraph. Lessee will remain obligated in the event that such being returned must meet the Standard Equipment Return amounts are insufficient to fully reimburse Lessor the actual Conditions as set forth below. Lessee will pay all expenses amount of such taxes and any surplus will be either credited to of deinstalling, crating and shipping, and Lessee will insure Lessee's other obligations to Lessor or returned to Lessee. If the Equipment for its full replacement value during shipping. requested,Lessee agrees to file promptly on behalf of Lessor all 9. ADVERTISING. This Agreement shall not confer any requested tax returns and reports concerning the Equipment in form satisfactory to Lessor, with all appropriate governmental rights, financial or otherwise, on Course Owner with respect agencies and to mail a copy to Lessor concurrently with the filing to advertising rights or revenues associated with the thereof. Lessee further agrees to keep or cause to be kept and Equipment. made available to Lessor any and all necessary records relevant 10. STANDARD EQUIPMENT RETURN CONDITIONS. to the use of the Equipment and aforesaid taxes, assessments A. Notwithstanding anything to the contrary contained in and other governmental charges. the Lease, and in addition to the terms and conditions 12. PURCHASE OPTION; AUTOMATIC RENEWAL. If contained herein, Lessee shall, at Lessee's sole cost and no Default exists under this Lease, Lessee will have the option expense,return all,but not less than all,of such Equipment to at the end of the Initial or any renewal term to purchase all(but Lessor immediately upon the expiration of the Initial Term of not less than all)of the Equipment as shown on the front of this Lease or any extensions and with respect to each item of Lease,plus any applicable taxes.Unless the Purchase Option is Equipment,as applicable,the following must be true: $1.00, Lessee must give Lessor at least 120 days written notice • All safety equipment must be in place and meet before the end of the Initial Term that Lessee will purchase the applicable federal,state and other governmental standards. Equipment or that Lessee will deliver the Equipment to Lessor. • All covers and guards must be in place with no sheet If Lessee does not give Lessor such written notice or if Lessee metal,plastic or cowling damage. does not purchase or deliver all but not less than all of the • All parts, pieces, components and optional equipment Equipment in accordance with the terms and conditions of this must be present,installed and operational. Lease, this Lease will automatically renew for an additional 12 • All accessories shall be returned in proper order. month term and thereafter renew for successive one month • All electronic controls shall operate per manufacturer's terms until Lessee delivers the Equipment to Lessor or specifications.Controls which bypass normal operations shall purchases the Equipment. During such renewal(s)the Amount be repaired at Lessee's expense. of Each Rental Payment will remain the same. Lessor may • All electrical systems shall be able to provide electrical cancel an automatic renewal term by sending Lessee written output as specified by the manufacturer. notice 10 days prior to such renewal term. If the Fair Market • All Equipment must have a relatively clean Value("FMV") Purchase Option has been selected, Lessor will appearance. use Lessor's judgment to determine the Equipment's FMV. FMV • All Equipment shall be free from excessive wear shall mean the retail not wholesale FMV determined solely by necessitating major component repair or replacement caused the Lessor. Upon payment of the Purchase Option price to by lack of recommended maintenance as detailed in Lessor plus all applicable taxes,Lessor shall transfer it's interest customer operation/maintenance manuals. in the Equipment to Lessee "AS IS, WHERE IS" without any • All Equipment shall be free from structural damage or representations or warranties whatsoever and this Lease will bent frames. terminate. • Any usage or metering devices must not have been 13. LOSS OR DAMAGE. Lessee shall bear all risk of loss altered in any way. associated with an item of Equipment, including the theft, • All Equipment attachments, if any, must be in good destruction,or damage. No such loss shall relieve Lessee from operating condition. any of its obligations under this Lease. In the event of any loss B. RETURN PERFORMANCE. Each item of Equipment with respect to particular Equipment, Lessee shall either: (a) must be able to complete the following tests: place such Equipment in good repair, condition and working • Have all functions and controls work in normal manner. order, (b) replace such Equipment with like equipment (of the • Perform its designed functions in a satisfactory manner. same year, make, model and accessories) in good repair, C. REQUIRED PURCHASE. If any item of Equipment is condition and working order, or (c) pay to the Lessor the damaged or does not meet the standards set forth above for Stipulated Loss Value of such Equipment.The"Stipulated Loss the return condition of such Equipment or if the Lessee fails to Value"for particular Equipment, under a Fixed Rental Payment discharge Lessee's obligations set forth above with regard to Schedule, any item of Equipment, Lessee shall pay to Lessor, immediately upon demand,the Stipulated Loss Value of such Lessee has reviewed this page and certifies that each of the item of Equipment. provisions set forth is clear and legible. in connection with the purchase,ownership,lease,possession, Lessee initials X Page 3 of 6 10_24_03 PFG Golf Lease Agmt Prank only final ver.doc shall be an amount equal to: (i) the total of all Rent and any other amounts,if any,due with respect to such Equipment as of 16. DEFAULT. Each of the following is a"Default" under the date of payment of the Stipulated Loss Value, plus (ii) all this Lease; (i) Lessee fails to pay any Rental Payment or any future Rent with respect to such Equipment, plus (iii)the then other payment within 5 days of its due date; (ii) Lessee does estimated FMV of such Equipment as of the end of the Initial not perform any of Lessee's other obligations under this Term of Lease for such Equipment (assuming no loss or Lease or in any other agreement with Lessor; (iii) Lessee or damage);the Stipulated Loss Value if the Payment Schedule is guarantor becomes insolvent,dissolves, or assigns its assets Pay For Play and, shall be an amount equal to the average for the benefit of creditors, or enters any bankruptcy or rounds per month as set forth in the Payment Schedule times reorganization proceeding; (iv) any guarantor of this Lease the Usage Fee times the number of months remaining in this dies, does not perform its obligations under the guaranty. In Agreement. If, due to theft, destruction, damage or other loss, addition, the following will also be Default considered a the Equipment is non-operable for more than seven days, "Default' under the Lease, if the Payment Schedule is Pay Lessee shall pay to Lessor an amount, pro-rated for each day For Play; (v) Lessee's failure to use reasonable care with that the Equipment is non-operable, equal to the number of respect to the Equipment and such failure continues for five rounds for each month set forth in the Payment Schedule times or more calendar days after Lessor gives written notice to the Usage Fee. Lessee of Lessee's misuse of the Equipment or any of its 14. INSURANCE. Lessee shall keep in effect an "All Risk" components,(vi) Lessee turns the Equipment off(Lessee has extended coverage property insurance policy covering the 24 hours in which to cure this default); (vii) Lessee fails to Equipment for its full replacement value.Lessee shall also carrY collect the Usage Fee in accordance with the Pay For Play a comprehensive general liability insurance policy or other Payment Schedule(Lessee has 24 hours in which to cure this similar form of third party liability coverage. Such policies shall default); (viii)at any time Lessee changes the structure of the be in form,amount and with insurers acceptable to Lessor.The Usage Fee to Counter Optional(giving the customer a choice property insurance policy shall name Lessor and its assigns as to use the system at point of sale). Loss Payee and the general liability insurance policy shall 17. REMEDIES. If a Default occurs, Lessor may do one or name Lessor and its assigns as an Additional Insured. Each more of the following: (i) Lessor may cancel or terminate this policy shall provide: (a) for no less than thirty (30) days prior Lease or any other agreement that Lessor has entered into written notice of cancellation or non-renewal to Lessor, and(b) with Lessee; (ii) Lessor may require Lessee to immediately that such policy shall not be invalidated as against Lessor or its pay Lessor, as compensation for loss of Lessor's bargain and assigns for the violation of any term of the policy by Lessee. not as a penalty,a sum equal to the Stipulated Loss Value;(iii) Lessee appoints Lessor as Lessee's attorney-in-fact to request Lessor may require Lessee to deliver the Equipment to Lessor required insurance coverages, make claims, receive payments as set forth in paragraph 8; (iv) Lessor or it's agent may and execute and endorse all documents,checks,drafts or other peacefully repossess the Equipment without court order and instruments necessary or advisable to secure payments due Lessee will not make any claims against Lessor for damages under any policy contemplated hereby.The foregoing shall not or trespass or any other reason; and (v) Lessor may exercise relieve Lessee from its obligations to procure the insurance any other right or remedy available at law or in equity. Lessee policies required herein,to make timely insurance claims and agrees to pay all of Lessor's costs of enforcing Lessor's rights to otherwise cooperate with insurance carriers and Lessor in against Lessee,including reasonable attorney's fees.If Lessor seeking insurance coverage and recoveries in connection takes possession of the Equipment, Lessor may sell or with the Equipment. Proceeds from any general liability policy otherwise dispose of it with or without notice, at a public or shall be made payable first on behalf of the Lessor to the private sale, and apply the net proceeds (after deducting all extent of its liability, if any.All policies of insurance carried by costs related to the sale or disposition of the Equipment)to the Lessee, whether primary or excess, shall be primary as to amounts that Lessee owes Lessor. Lessee agrees that if any policies maintained by Lessor. If Lessee does not notice of sale is required by law to be given, 10 days notice provide Lessor with evidence of proper insurance within 10 shall constitute reasonable notice. Lessee will remain days of Lessor's request or Lessor receives notice of policy responsible for any amounts that are due after Lessor has cancellation, Lessor may (but is not obligated to) obtain applied such net proceeds. insurance on Lessors interest in the equipment at Lessee's 18. PERFORMANCE OF LESSEE'S OBLIGATIONS expense. Lessee agrees to pay all insurance premiums and related charges. Because of increased credit risks to Lessor BY LESSOR. If Lessee fails to make any payment or when not insured, Lessee agrees to pay to Lessor each perform any act or obligation required hereunder, Lessor may, month a risk charge stipulated and liquidated at .35% of but need not, make such payment or perform such act or Lessor's original Equipment cost until Lessee provides proof obligation at the expense of Lessee. Any such expense of compliance with insurance requirements. In spite of the incurred by Lessor shall constitute additional Rent due payment of such risk charge, Lessee has no right or claim to hereunder and shall be payable by Lessee to Lessor upon any insurance benefits from Lessor. Lessee is still liable for demand.Such action by Lessor shall not be deemed a cure or all losses,and such risk charge is not in lieu of the insurance waiver of any default by Lessee. requirements of this Lease. 19. FINANCE LEASE STATUS. Lessee agrees that if 15. TITLE. Lessor is the owner of and will hold title to the Article 2A-Leases of the Uniform Commercial Code applies to Equipment. Lessee will keep the Equipment free of all liens this Lease,this Lease will be considered a"finance lease" as and encumbrances. If this transaction is deemed to be a that term is defined in Article 2A. By signing this Lease, lease intended for security, Lessee grants Lessor a purchase Lessee agrees that either(a) Lessee has reviewed, approved, money security interest in the Equipment (including any and received, a copy of the Supply Contract or(b)that Lessor replacements, substitutions, additions, attachments and has informed Lessee of the identity of the Supplier, that proceeds). Lessee may have rights under the Supply Contract, and that Lessee may contact the Supplier for a description of those rights. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. Page 4 of 6 10_24 03 PFG Golf Lease Aynt Proink only final ver.doe Lessee has reviewed this page and certifies that each of the provisions set forth is clear and legible. Lessee initials X 20. ASSIGNMENT. LESSEE MAY NOT ASSIGN, SELL, payment of the Rent,shall result in any breach of, or constitute4111 TRANSFER OR SUBLEASE THE EQUIPMENT OR LESSEE'S a default under, or violation of, Lessee's certificate of INTEREST IN THIS LEASE. Lessor may, without notifying incorporation, by-laws, or any agreement to which Lessee is a Lessee, sell, assign, or transfer this Lease or its rights in the party or by which Lessee is bound; (iii) Lessee is in good Equipment. Lessee agrees that the new owner will have standing in its state of incorporation and in any jurisdiction the same rights and benefits that Lessor has now under this where the Equipment is located, and is entitled to own property Lease but not Lessor's obligations. The rights of the new owner and to carry on business therein; and (iv) all financial will not be subject to any claim, defense or set-off that Lessee information provided by Lessee to Lessor is true, accurate and may have against Lessor. provides a good representation of Lessee's financial condition. 21. INDEMNITY.Lessee assumes the risk of liability arising If requested, Lessee shall provide Lessor a Certified Copy of it's from possession, operation, or use of the Equipment. Lessee Corporate Resolutions and or a Certificate of Incumbency in the shall indemnify, defend and hold harmless the Lessor, its form provided by Lessor or such other form that Lessor deems directors,officers,employees,shareholders,agents,successors acceptable. and permitted assigns (the "Indemnified Party"), from any and 25. MISCELLANEOUS. Lessee agrees that the terms and all claims, costs, taxes, expenses, damages, and liabilities conditions contained in this Lease make up the entire arising from or pertaining to the use,possession,or operation of agreement between Lessee and Lessor regarding the Lease of the Equipment. Equipment. The declaration of invalidity of any provision of this 22. CREDIT INFORMATION. Lessee authorizes Lessor Lease and/or Guaranty shall not affect any part of the remainder and its agents to obtain credit bureau reports,make other credit of the provisions of this Lease and Guaranty. Any change in inquiries that Lessor determines necessary. Upon Lessee's any of the terms and conditions of this Lease must be in writing written request, Lessor will inform Lessee whether Lessor has and signed by Lessor. Lessee agrees however, that Lessor is requested a consumer credit report and the name and address authorized, without notice to Lessee, to insert the Lease of any consumer credit reporting agency that furnished a report. Number,and to supply missing information or to correct obvious Lessee acknowledges that without further notice Lessor may errors in this Lease. If Lessor delays or fails to enforce any of use or request additional credit bureau reports to update Lessor Lessor rights under this Lease, Lessor will still be entitled to information so long as Lessee's obligations to Lessor are enforce those rights at a later time. All notices shall be given in outstanding. Lessee shall at Lessor's request,deliver to Lessor, writing by the party sending the notice and shall be effective the Lessee's future quarterly and annual reports of financial day personally delivered,the day after being sent by nationally condition, which reports Lessee represents and warrants shall recognized overnight delivery service (subject to signature be prepared in accordance with generally accepted Accounting verficiation), and three business days after the deposit in the Principles. U.S. Mail, addressed to the party receiving the notice at its 23. FURTHER ASSURANCES. Lessee agrees to address shown on the front of this Lease (or to any other address specified by that party in writing) sent first class mail, promptly, at Lessee's expense, deliver such other reasonable certified, return receipt requested, or when actually received, if411111) documents and assurances, and take such further action as earlier. All of Lessor's right and remedies, including but not Lessor may request, in order to effectively carry out the intent limited to those set forth in Sections 11,21 and 24 herein,shall and purpose of this Lease. survive and remain in full force and effect and be enforceable 24. REPRESENTATIONS AND WARRANTIES. Lessee after the expiration or termination of the Lease for any reason. represents and warrants to Lessor that: (i) the making of this It is the express intent of the parties not to violate any applicable Lease by Lessee is duly authorized on the part of Lessee and usury laws or to exceed the maximum amount of time price upon execution thereof by Lessee and Lessor they shall differential or interest, as applicable, permitted to be charged or constitute valid obligations binding upon, and enforceable collected by applicable law, and any such excess payment will against,Lessee;(ii)neither the making of this Lease nor the due be applied to Rent in inverse order to maturity, and any performance thereof by Lessee,including the commitment and remaining excess will be refunded to Lessee. If more than one Lessee has signed this Lease each of the Lessees agree that Lessee's liability is joint and several. Lessee has reviewed this page and certifies that each of the Page 5 of 6 10_2403 PFG Ga f Lease Acmt Prof*odd goal ver.doc provisions set forth is clear and legible. 44, Lessee initials X tek National city. Lease Number: PL589070005 GOLF FINANCE A division of National City Commercial Capital Corporation 995 Dalton Avenue • Cincinnati,OH 45203 With Questions call:(800)263-9499 FAX TO:(888)888-3695 SCHEDULE A (EQUIPMENT) Qty Manufacturer Description Serial# Serial# (Year,Model and Accessories) 67 ProLink/ParView,LLC 10"GPS Assemblies • Supplier(s) (Address/County/City/State/Zip/Phone#) ProLink/ParView,LLC Location (Address/County/City/State/Zip/Phone#) _City of Elgin, IL DBA The Highlands of Elgin 875 Sports Way Elgin, IL 60123 Lessee has reviewed this page,and agrees the data on this Schedule A is accurate. Lessee Initials X Page 6 of 6 10 24_03 PFG Golf Lease Apmt Prank only foal ver.doe Amitt GOLF O L`\L7WFINANCE I N A�i CERTIFICATE OF ACCEPTANCE a division of National City Commercial Capital Corporation 995 Dalton Avenue • Cincinnati,OH 45203 With Questions call:(800)263.9499 FAX TO:(888)888.3695 Lease Number: PL589070005 In compliance with the terms,conditions and provisions of the Lease Agreement dated ("Lease")by and between the undersigned("Lessee")and NC Golf Finance Lessee hereby: a) certifies and warrants that all Equipment described in the above-referenced Rental Schedule(the "Equipment")is delivered, inspected and fully installed, and operational as of the Acceptance Date as indicated below, b) accepts all the Equipment for all purposes under the Lease and all attendant documents as of this_day of (month),200 (Acceptance Date"). c) agrees that for this Certificate of Acceptance, and the Equipment relative to the same,the Amount of Each Rental Payment shall be in the amount of$See Attached Rounds Breakdown per period OR As shown on the Payment Schedule attached hereto. d) restates and reaffirms,as of such Acceptance Date,each of the representations,warranties and covenants heretofore given to Lessor in the Lease. e) In the case of a Pay For Play Payment Schedule agrees upon a billing start date of _ x Signature Title Lessor is hereby authorized to insert serial numbers on the Rental Schedule. I National city. GOLF FINANCE PAYMENT SCHEDULE Fixed Rental a derision of National City Commercial Capital Corporation For National City Golf Financing Use Only 995 Dalton Avenue Cincinnati, OH 45203 (800)263-9499 Lease Number PL589070005 Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 20 20 20 20 20 ,,. 20_ This Payment Schedule and its terms and conditions are hereby incorporated by reference into the Lease identified above. Lessee: Lessor: City of Elgin,IL NC Golf Finance a division of National City Commercial Capital Corporation X X Authorized Signature Authorized Signature Print Name and Title Date Print Name and Title Date Ph' Aink NattionM Cit GOLF FINANCE r 'v Ivlilieaear 1 * f=IUy Pay For Play Y a division of Naionaf City Com on:iat Capital Cofpoiaion For National City Golf Financing Use Only 995 Dalton Avenue Cincinnati, OH 45203 Lease Number PL589070005 (800)263-9499 HISTORY OF ACTIVITY AND USAGE FEES AT THE GOLF COURSE Budgeted Golf Rounds by Month: 18 hole Individual 9 hole Individual Tournament or Member Other Discount& Total Car Rounds Car Rounds Outing Rounds Rounds Comp 2% Rounds January 0 0 0 0 0 February 0 0 0 0 0 March 0 0 0 0 0 April 2000 400 250 53 2597 May 2500 450 500 69 3381 June 3000 500 500 80 3920 July 3000 550 250 76 3724 August 3000 550 0 71 3479 September 2500 400 0 58 2842 October 2500 350 0 57 2793 November 0 0 0 0 0 December 0 0 0 0 0 Total Rounds 18,500 3,200 1,500 464 22,736 'di, Round Type $4.00 $2.00 $4.00 N/A Usage Fee Total Budgeted Pay-for-Play remittance (Check One) X Optional PFP PROLINK®will be programmed to allow a Golf Cart the opportunity to reject the continued use of PROLINK®after a two to three hole trial period(the"Trial Period"). After the Trial Period,the course management system will report to Course Owner whether a Golf Cart has requested a refund. Should a Golf Cart request a refund, Course Owner shall refund the applicable Usage Fee(s)to the golfer(s)at the end of. the round of golf Non-Optional Player is not given a refund option: yaA This Payment Schedule and its terms and conditions are hereby incorpocateit by refgrkjtce ittt= L-°.ase identified above. Lessee: �Z City of Elgin, IL • IVC Golf Finance a ilivis`ip • ri of National City Commercial Capital Corporation X X Authorized Signature Authorized Signature AIN Print Name and Title Date Print Name and Title Date Page 1 of 2 10_24_03 PFG Golf Lease Agnd Proink only final ver.doc t'' N1tlona city. GOLF FINANCE PAYMENT SCHEDULE ray for nay (continued) PAY FOR PLAY USAGE FEES 1. Usage Fee. Once Installation is complete, Lessee shall, on behalf of Lessor collect the Equipment usage fees plus applicable taxes(collectively the"Usage Fee") in accordance with the Payment Schedule from each and every golfer at the time the green fee and cart fee are collected by Lessee. The amount of the Usage Fee to be collected may be changed by Lessor from time to time should Lessor reasonably determine that the actual number of rounds of golf played at the Golf Course are less than the budgeted rounds shown in the Payment Schedule. Lessor shall give Lessee written notice of a change in the Usage Fee at least seven days prior to the effective date of such change. A billable round is one in which the Equipment provides the basic functionality of the system including yardage and time clock for ahead or behind pace of play,whether or not that functionality has been disabled at the base. 2. Payment of Usage Fees. Lessee agrees to submit its weekly rounds played to ProLink,Inc.using the weekly pay-for-play form below,via facsimile, email or a web site interface. The weekly round data will be due by the close of business on Tuesday of each week, for the prior week. Lessee agrees to allow Lessor to automatically withdraw funds from its bank account via the Automatic Clearing House program once a month. The Attached Invoice Customization is an authorization for Lessor to automatically withdraw funds from Lessee's bank account. The amount of funds debited will be based upon the number dollar amount reported by the Lessee for the prior month. Each week, Lessee agrees to use its reasonable efforts to cooperate with Lessor in reconciling the Lessee's weekly round data for the previous week with that recorded by the Equipment. 3. Penalties and Interest. If Lessee's bank account does not have sufficient funds to cover the amounts due, Lessee will pay a $100 service charge for each unsuccessful payment. In addition,any amounts not paid within 10 days of the due date of the payment will incur interest at the rate of 1.5%per month,from the date the payment was due. 4. Lessee as a Fiduciary. Lessee acknowledges that it is acting as a fiduciary of Lessor when collecting and remitting Usage Fees and has no right,title or interest in the Usage Fees. Lessee understands that any funds collected from Lessee's customer for the Equipment will be remitted to Lessor,whether the Equipment is considered to be fully functional or not. 5. Right to Audit. Lessor may from time to time audit Lessee for the sole purpose of determining round counts and Usage Fees. If the audit reflects more than a 5%shortage in usage fees remitted to Lessor, Lessee shall pay the cost of the audit and pay the shortage of Usage Fees paid to Lessor plus a penalty of 20%of the shortage. Lessee will provide for reasonable access to auditors to perform such audit. WEEKLY PROLINK PAY FOR PLAY COLLECTIONS FORM Course Name: City of Elgin,IL Week Ending: Number of Rounds per course POS Weekly Round Rate per Round Type Mon Tues Wed Thum Fri Sat Sun Total Round Total Dollars 18-Hole 0 $ - 9-Hole 0 $ - Member 0 $ - Complimentary Total 0 0 0 0 0 0 0 0 $ - Total Amount Due $ - #0.4` Reporter's Signature Date Reporter's Printed Name • Page 2 of 2 10_24 03 PFG Golf Lease Aynt Prank only final ver.doc • National City. ANN GOLF FINANCE Instructions to Insurance Agent a division of National City Commercial Capital Corporation 995 Dalton Avenue Lease Number PL589070005 Cincinnati, OH 45203 (800)263-9499 The City of Elgin, IL ("Customer") has leased or will be leasing equipment from NC Golf Finance. The Customer is required to provide NC GOLF FINANCE with the following insurance coverage: A. "All Risk" Property insurance covering the equipment (as shown in the lease) owned by or in which NC GOLF FINANCE has a security interest, in an amount not less than the full replacement cost of the equipment,with NC GOLF FINANCE named as loss payee. B. Public Liability Insurance naming NC GOLF FINANCE as an additional insured with the proceeds to be payable first on the behalf of NC GOLF FINANCE to the extent of its liability, if any. The amount of the Public Liability Insurance shall not be less than $1,000,000.00, immih combined single limit C. Each policy shall provide that (i) NC GOLF FINANCE will be given not less than thirty (30) days prior written notice of cancellation or non-renewal, (ii) it is primary insurance and any other insurance covering NC GOLF FINANCE shall be secondary or excess of the policy and (iii) in no event shall the policy be invalidated as against NC GOLF FINANCE or its assigns for any violation of any term of the policy of the Customer's application therefore. A certificate evidencing such coverage should be mailed to NC GOLF FINANCE at the following address: NC Golf Finance a division of National City Commercial Capital Corporation 995 Dalton Avenue •Cincinnati,OH 45203 •(800)263-9499 Anik 3 r National Cft Please Retain for Future Reference GOLF FINANCE aIi6 of Mime,CAy n h..ponWon 995 Dalton Avenue • Cincinnati,OH 45203 Page No. 1 With Questions call:(800)263-9499 FAX TO:(888)888-3695 INVOICE# Customer# INVOICE DATE Bill To: City of Elgin, IL Remit To: NC Golf Finance a Division of National City Commercial Capital Corporation 995 Dalton Avenue Cincinnati, OH 45203 (800) 263-9499 INVOICE Lease No. PL589070005 Initial Charges: Monthly Rent- 1st Payment in Advance Sales Tax Initiation Fees: Origination Fee Security Deposit- 1 payment in Advance PAY THIS AMOUNT $0.00 EXHIBIT D ADDENDUM TO LEASE AGREEMENT AiN THIS ADDENDUM TO LEASE AGREEMENT (hereinafter referred to as "Addendum"), is made and entered into as of the day of , 2005, by and between National City Golf Finance a division of National City Commercial Capital Corporation ("NC Golf Finance") and City of Elgin, IL DBA: Highlands of Elgin ("Course Owner"): WHEREAS,the-parties entered into a Lease Agreement (the "Agreement") dates as of the day of , 2005; and WHEREAS, the parties desire a modification of the terms of the Lease Agreement; NOW THEREFORE, in consideration of the mutual covenants and benefits accruing to the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree that the Agreement shall be amended as follows: 1. Paragraph 1: Terms: The second sentence of the section shall be deleted and the following language shall be inserted in its place: "This Lease shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights shall be in the Circuit Court of Kane County, Illinois." 2. Paragraph 5: Termination by Lessor: The first sentence of the section shall be deleted and the following language shall be inserted in its place: "Either party hereto shall have the option to terminate this Lease is within 90 days after Lessee has executed this Lease, the Equipment has not been delivered to Lessee, or Lessee has not accepted the Equipment as provided in Paragraph 4 herein." 3. Paragraph 10: Standard Equipment Return Conditions: The second sentence in sub-section B. the word "satisfactory" shall be stricken and the word "reasonable" shall be inserted in its place. 4. Paragraph 12: Purchase Option; Automatic Renewal: The third sentence of the section the following language shall be stricken: "this Lease will automatically renew for an additional 12 month term" and the following shall be inserted in its place: "this Lease will automatically renew for an additional 1 month term". 5. Paragraph 14: Insurance: 41144 a. The following sentence shall be added at the beginning of the paragraph "Lessee represents and warrants that it is self insured, and that the Equipment referenced herein is covered through Lessee's self insurance." b. The first sentence shall be deleted and the following language inserted in its place: "In the event that Lessee is no longer self insured, lessee shall carry a comprehensive general liability insurance policy or other similar form of third party liability coverage". 6. Paragraph 13 of the Pay for Play Payment Schedule: The second sentence shall be amended to read "9.0% per annum" from 1.5% per annum".. All other terms and conditions of this Lease Agreement remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused the Addendum to be duly executed as of the date set forth above. LESSOR LESSEE: National City Golf Finance a division of City of Elgin, IL National City Commercial Capital Corporation DBA: Highlands of Elgin By: BY: Title: Title: Date: Date: r 4 MASTER CERTIFICATE OF INCUMBENCY The undersigned being duly elected and acting as of City of Elgin, IL DBA:Highlands of Elgin (the "Lessee") does hereby certify that the person or persons listed below are authorized representatives of the Lessee in the capacity set forth opposite their names and that their signatures are true and correct and, as of the date hereof, have proper corporate power and authority to execute and deliver any Lease Agreement between Lessee and National City Golf Finance a division of National City Commercial Capital Corporation, any Lease Schedules pursuant thereto and the documents.required thereunder. Name (print) Title Sample Signature I hereby attest that this information is true and correct as of this day of , 2005. , City of Elgin, IL DBA:Highlands of Elgin Signature Title National City Golf Finance a division of National City Commercial Capital Corporation ("Lessor") 995 Dalton Avenue Cincinnati, Ohio 45203 The undersigned hereby certifies that City of Elgin DBA: Highlands of Elgin ("Lessee") has leased equipment described below for purposes of rental (resale) in the normal course of business. Lessee further understands that any leased equipment obtained under this certificate but used or consumed by the lessee in a manner other than for rental under this certificate is subject to taxes, interest, and penalties as imposed by state law. Lessee Address Lessee Sales Tax Registration#011.** Description of Equipment Leased (70) 10" ProLink/ParView GPS Assemlbies Lessee's Type of Business Operation of Golf Course Lease Number PL589070005 Signature of Lessee Date Printed Name Title e"" Service Agreement . This Service Agreement (this "Agreement") is made this ProLink® System components and operations. Course Owner shall day of ,2005(the"Effective Date"),by and between cooperate with PSL in obtaining such permits and licenses. Course ProLink Solutions,LLC,a Delaware limited liability company("PSL"), Owner shall retain at the Golf Course, the Federal Communications and the City of Elgin. Illinois, a municipal corporation ("Course Commission license(s) and/or certificate(s)required by law and present, '°' ' Owner"). them on demand when requested by federal, state or local authorities with appropriate jurisdiction. RECITALS 4.3. Assistance. Course Owner, its agents, employees "THIS AGREEMENT IS SUBJECT TO MANDATORY and contractors, shall cooperate with PSL in the Installation and make ARBITRATION PURSUANT TO PARAGRAPH 11." Golf Course professional(s) and other personnel available to provide any and all assistance reasonably required to perform the Installation, A. Course Owner owns and/or operates a golf course including but not limited to, assistance in: (a) determining appropriate known as Highlands of Elgin(the"Golf Course")located at 875 Sports and desirable locations at the Golf Course for the ProLink® System Way, Elgin, IL 60123. The Golf Course utilizes Seventy (70) EZGO components; (b) developing data specific to the Golf Course; (c) Electric golf carts(the"Golf Carts"). obtaining access to electrical power for the Base Station; (d) obtaining required easements/permission letters for the Base Station antenna installation; (e) obtaining authorization to affix individual modular B. Course Owner has entered into a Lease Agreement, System units to the Golf Carts,if such authorization is required;and(f) dated as of , 2005 (the "Lease Agreement") with any other assistance which might be reasonably required by PSL to National City Golf Finance, a division of National City Commercial perform the Installation. Credit, an Ohio corporation ("NCGF"), pursuant to which Course Owner agreed to use on the Golf Course an electronic yardage and 4.4. Acceptance. Upon delivery of the ProLink® course management system that provides distance measurements and System, Course Owner shall give PSL written notice of acceptance in course information to golfer via a golf cart display unit, remote asset the form attached hereto as Exhibit A("Notice of Acceptance"). management,and use statistics to the course manager via a base station (the "Base Station") manufactured by ProLink Solutions, LLC (collectively,the"ProLink®System"). 4.5. Reconfiguration/Replacement. Course Owner shall provide PSL at least 90 days' prior written notice if during the Term C. Course Owner and PSL to enter into this Course Owner reconfigures the Golf Course in a manner that requires Agreement to provide for service to the ProLink®desire System during the significant alterations to the ProLink® System database or if Course Owner replaces substantially all of the Golf Carts (collectively, a term of the Lease Agreement. "Reconfiguration"). PSL shall perform all necessary reinstallation work within 30 days after a Reconfiguration to render the ProLink® System PSL and Course Owner agree as follows: operable and Course Owner shall reimburse PSL for all costs incurred by PSL,its agents,employees and contractors,during the reinstallation. 1. PROLINK SYSTEM. Course Owner agrees to Nothing in this Agreement shall restrict Course Owner's right to change permit PSL to install,operate and service the ProLink®System on the manufacturer or model of golf cart. If, however, the Course Owner Golf Course. changes to a different manufacturer of golf cart,then Course Owner will be responsible for the costs associated with the additional hardware and 2. DELIVERY DATE. PSL shall use reasonable labor required to accommodate such Reconfiguration. efforts to deliver and install the ProLink® System by 2005 (the "Delivery Date"). PSL will notify Course Owner of any 4.6 Service and Access. Course Owner will grant to anticipated changes to the Delivery Date. PFG and its agents and contractors, which includes PSL, the right to enter onto the Golf Course during business hours for maintenance and 3. TERM. This Agreement shall commence as of the service to the ProLink® System. PSL shall maintain and repair the Effective Date and shall continue during the term of the Lease ProLink® System in accordance with the terms of the PROPLEDGE Agreement. Maintenance Agreement attached hereto as Exhibit B. 4. INSTALLATION,SERVICE AND REMOVAL. 4.7. Removal. Upon expiration or termination of this Agreement, Course Owner shall make the ProLink® System available 4.1. Responsibility. PSL is responsible for installation, to PSL for removal;provided,however,that in the event Course Owner set-up and configuration of the ProLink® System at the Golf Course purchases the ProLink System, Course Owner shall retain such system. (collectively, the "Installation"). PSL shall be responsible for all costs So long as Course Owner has not caused an Event of Default,PSL shall and expenses of Installation, except that Course Owner shall be incur all expenses required to remove the ProLink® System from the responsible for providing access to their network and access from their Golf Course and the Golf Carts. network to the intemet through a local internet service provider (ISP). Course Owner shall also be responsible for providing, at Course 5. REPRESENTATIONS AND WARRANTIES. Owner's cost, any additional phone lines necessary to complete the Each party represents and warrants to the other party that: (a)it has the installation. The Course Owner also agrees that they will open the full right and authority to enter into and perform this Agreement;(b)the necessary ports on its firewall to allow PSL access to monitor the health person signing this Agreement on behalf of that party has been duly of the ProLink System. authorized to do so; (c) entry into and performance of this Agreement does not require any consents or approvals not obtained, nor does it 4.2. Permits and Licenses. PSL shall obtain, at its sole violate any agreements to which such party is a party; and (d) this expense, all governmental permits and licenses necessary for the Agreement constitutes a valid, binding and enforceable obligation of such party. • ProLik Solutions,LLC Service Agreement • 6. ADDITIONAL OBLIGATIONS. 9.2. Enforcement of Remedies. The remedies described in this Section 9 are cumulative and may be exercised partially, telu' 6.1 Duty of'Care. Course Owner (a) shall exercise concurrently or separately. The exercise or partial exercise of one reasonable care with respect to its possession and use of the ProLink® remedy shall not be deemed to preclude the exercise of any other System; (b) shall not repair or alter the ProLink®System; and(c) shall remedy. No failure or forbearance to exercise any remedy and no delay use its best efforts to avoid damaging any and all of the ProLink® in the exercise of any remedy shall constitute a waiver of that remedy. System components. 9.3. Course Owner's Remedies. Should either party fail 6.2. Indemnifications. Each party shall indemnify, to perform its obligations pursuant to this Agreement, the non- defaulting party shall give written notice to the defaulting party setting defend, protect and hold harmless the other party, their respective directors, officers, employees, shareholders, agents, successors and forth in reasonable detail the nature of the breach(the"Notice"). If the permitted assigns (an "Indemnified Party"), from and against all breaching party does not cure the breach within thirty (30) calendar liabilities,damages and costs,excluding attorneys' fees,incurred by the days after receipt of the Notice, the non breaching party shall have the Indemnified Party arising from or relating to any misrepresentation or right to terminate this Agreement and the breaching party's rights default by Indemnifying Party under this Agreement. herein;provided,however,that if the breaching party cannot reasonably remedy the breach within thirty (30) calendar days, the thirty (30) day 6.3. Nondisclosure. Course Owner hereby period shall be extended for as long as the breaching party diligently pursues such corrective action in a prompt and reasonable manner. The acknowledges agrees that the terms of this Agreement are strictly confidential. Course Owner shall not disclose to any person or entity parties hereto hereby waive any right to claim special or consequential (other than PFG)the contents of this Agreement. damages due to a default by pursuant to this Agreement. 7. ADVERTISING. This Agreement shall not confer 10. NOTICES. Notices shall be in writing and shall be any rights, financial or otherwise,on the Course Owner with respect to deemed properly served when personally delivered, transmitted by advertising rights or revenues associated with the ProLink® System. facsimile with receipt verification, deposited in the United States mail, postage prepaid and registered or certified with return receipt requested, "No advertising of any kind can be transmitted through the ProLink or when sent by overnight express carrier with receipt verification. System, without the written consent of Course Owner, which may Either party may change its address for notice by giving written notice withhold said consent in its absolute and sole discretion." Any to the other party of such change in accordance with this Section 10. agreement or understanding related to advertising on the ProLink® Initially the address for notice shall be: System shall be set forth in a separate written agreement or contract between the parties. Course Owner: AOlk 8. DEFAULTS. The occurrence of any one or more of the following events shall constitute a material default and breach of Attn: this Agreement by Course Owner("Event of Default"): Facsimile No.( ) Telephone No.(_) 8.1. Misuse. Course Owner's failure to use reasonable care with respect to the ProLink®System and such failure continues for ProLink Solutions,LLC: five or more calendar days after PSL or PFG gives written notice to Course Owner of Course Owner's misuse of the ProLink® System or 7970 South Kyrene Rd. any of its components. Tempe,AZ 85284 Attn: President 8.2. Other Failures. Course Owner's failure to observe Facsimile No.(480)961-8537 or perform any other obligation under this Agreement and (unless no Telephone No.(480)961-8800 cure period is allowed or a shorter cure period is provided for elsewhere in this Agreement)such failure continues for 15 calendar days after PSL Notice shall be deemed given and effective the day personally delivered gives written notice thereof to Course Owner. or the day facsimiled(subject to receipt verification),the day after being sent by overnight courier (subject to signature verification), and three 8.3 Turning the ProLink® System Off or not Offering business days after the deposit in the U.S.mail and sent first class mail, to Customers. Course Owner is considered in default at any time if certified,return receipt requested,or when actually received,if earlier. Course Owner turns the ProLink® System off or fails to activate the ProLink® System. If Course Owner fails to turn on the ProLink® 11. DISPUTES. This Agreement shall be subject to System or activate it within 48 hours of written notice from PFG or it and governed by the laws of the State of Illinois. Venue for the agents or contractors (including PSL), the ProLink® System will be resolution of any disputes or the enforcement of any rights shall be in turned off until such time as Course Owner complies with this the Circuit Court of Kane County,Illinois. Agreement. 9. REMEDIES. 12. GENERAL PROVISIONS. 9.1. PSL's Remedies. In addition to any other legal or 12.1. No Sale or Security Interest. This Agreement is an equitable remedy permitted by law,upon an Event of Default,PSL shall agreement for the use of personal property and not a conditional or have the right to terminate this Agreement and Course Owner's rights installment sales contract,security agreement or similar instrument. herein Page 2 of 3 ProLink Solutions,LLC • Service Agreement { 12.2. Entire Agreement: Amendments. This Agreement 12.10. Further Assurances. Course Owner agrees to and the Exhibits hereto are intended by PSL and Course Owner to be promptly, at Course Owner's expense, deliver such other reasonably the final, complete and exclusive statement and expression of their necessary documents and assurances, and take such further action as Agit agreement with respect to the subject matter of this Agreement,and any PSL may request,in order to effectively carry out the intent and purpose prior or contemporaneous agreements or understandings,oral or written, of the Agreement. which may contradict, explain or supplement these terms shall not be admissible or effective for any purpose. This Agreement may not be 12.11 Relationship of Parties. Nothing contained in this amended or modified except by a writing signed by Course Owner and Agreement shall be construed as creating a relationship of agency,joint PSL. venture or partnership between Course Owner and PSL. 12.3. No Removal. Course Owner shall not remove or 12.12. Survival. Unless expressly provided to the contrary attempt to remove the ProLink®System(or any part thereof) from the herein, the indemnifications, representations and warranties contained Golf Course or Golf Carts without the prior written consent of PSL. in this Agreement shall survive the expiration or termination of this Agreement. 12.4. Assignment. PSL may assign any or all of its right, title, interest, or duties, in whole or in part, under this Agreement IN WITNESS WHEREOF,the parties have caused this Agreement to without the prior written consent of Course Owner,including its duties be executed this day of ,2005: to perform any obligation hereunder. Course Owner shall not assign, transfer, whether voluntarily or involuntarily (a"Transfer") its interest ProLink Solutions,LLC: under this Agreement without first obtaining PSL's prior written consent in each instance, which consent may be granted or withheld in PSL's sole discretion. Any attempted Transfer without PSL's prior By: written consent shall confer no rights upon any third party. No Transfer shall relieve Course Owner of any duty to perform its obligations under Name: this Agreement. Title: 12.5. Attorneys' Fees. The prevailing party shall be entitled to recover from the other party, all reasonable costs and expenses(whether or not allowable as"cost"items by law)incurred at, COURSE OWNER: before and after trial and on appeal, including attorneys' and witness (expert and otherwise)fees and expenses. the City of Elgin,Illinois,a municipal corporation 12.6. No Waiver. A waiver of performance under this By: Agreement is effective only if it is in writing and signed by Course Owner and PSL,and such waiver shall not be construed as a waiver of Name: any other performance or provision under this Agreement. 12.7. Severability. If any provision of this Agreement is Title: deemed invalid or unenforceable to any extent by a court of competent jurisdiction, then the remainder of this Agreement and the affected provision, to the extent it is not held invalid, shall be valid and enforceable to the fullest extent permitted by law. 12.8. Captions, Exhibits, Counterparts. The captions in this Agreement are for reference only and shall not limit the meaning of the provisions of this Agreement. The exhibits referred to herein and attached to this Agreement are incorporated into this Agreement by reference and made a part hereof. This Agreement may be executed in counterparts,all of which shall constitute one instrument. 12.9. Force Majeure. Except for payment of sums due, neither PSL nor Course Owner shall have any liability whatsoever to the other on account of inability to perform any of their obligations under this Agreement because of strikes or other labor trouble, earthquake or other natural calamities, riots, public disturbances, war, inability to obtain labor or materials or reasonable substitutes, or governmental regulations or controls, inclement weather or other matters or causes reasonably beyond the control of PSL or Course Owner("Force Majeure"). A party declaring Force Majeure shall give the other party notice with reasonable detail of the event of Force Majeure. If the event of Force Majeure continues for a period of 180 001144 days, the party unaffected by the Force Majeure may terminate this Agreement by written notice to the other party. Page 3 of 3 ProLink Solutions,LLC Service Agreement EXHIBIT A ACCEPTANCE OF DELIVERY AND INSTALLATION OF PROLINK®SYSTEM Golf Course: Highlands of Elgin Installation Supervisor: Trainer: Installation Date: Training Date: Outstanding Issues: • Sc=.� ProLink Solutions,LLC • • Service Agreement EXHIBIT B The PROPLEDGE®Maintenance Agreement 1. Description of PROPLEDGE. Subject to the terms of this PROPLEDGE Maintenance Agreement and for the Term of the Service Agreement, and any extensions thereof, PSL is responsible for maintaining the ProLink® System at the same level of performance demonstrated at the date of acceptance. For the term of this Agreement, PSL shall undertake all repairs and maintenance of the ProLink® System, except for repairs and maintenance caused by the negligence of Course Owner. Course Owner shall reimburse PSL for all reasonable expenses incurred by PSL for repairs and/or maintenance needed to restore PROLINK system to the same level of performance demonstrated at the date of acceptance occasioned by the willful or negligent acts or omissions of Course Owner. 2. PROLINK Upgrades. As part of this PROPLEDGE Maintenance Agreement, PSL shall furnish Course Owner any and all operational software upgrades for the ProLink®System at no additional cost to Course Owner. PSL also agrees to grant Course Owner preferential availability for any and all hardware upgrades at the market price of such hardware upgrades. 3. Routine Maintenance Program. PSL shall establish a repair and maintenance program as follows: a. Routine Service Visit: PSL service personnel will visit the course on a monthly basis to maintain the integrity of the ProLink®System. PSL personnel will contact the course to schedule this monthly visit. b. Emergency System Visit: Performed by PSL service personnel in response to a major system issue when the ProLink® System is inoperable. This visit will occur within 48 hours after proper notification for the course via fax, e-mail or telephone. c. Preventative Service Visit: PSL service personnel will schedule a preventative service visit to the course once every six months to maintain the integrity and cosmetic appearance of the ProLink®System. d. Re-programming Service Visit: A re-programming visit will be scheduled by PSL service personnel not more than once every quarter to re-program the ProLink®System with system changes. Notwithstanding any other provision contained in the Service Agreement or this PROPLEDGE Maintenance Agreement, PSL shall have no obligation to incur costs needed to repair any damage caused to the ProLink®System due to the willful or negligent conduct of Course Owner. 4. Access. Course Owner shall make the ProLink® System available to PSL, its agents, assigns, successors, employees and contractors and provide access to PSL,its agents,assigns,successors,employees and contractors,to all components of the ProLink®System during normal business hours for testing, inspection, maintenance and repair by PSL, its agents, assigns successors, employees and contractors. Course Owner hereby acknowledges that PSL,its agents,assigns,successors,employees and contractors,have the ability to access certain components of the ProLink®System remotely via modem connection,and agrees that such access is permitted at any time. 5. PROLINK Will Not Materially Effect Golf Cart Operation. PSL hereby warrants and represents that the installation of the ProLink®System on the Golf Carts will not materially,adversely effect the electrical and/or mechanical operation of Course Owner's golf carts.