Exhibit 10(ff)
TELEPHONE SERVICE AGREEMENT
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THIS AGREEMENT is made and entered into this 17 day of November 1995 by
and between Equity Telecommunications (EQUITY), having its principal place of
business at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx and Tracer Design, Inc.
(the "Customer"), having its principal place of business at 2231 East Camelback
Road, Phoenix, Arizona ("Anchor Centre Three ").
WITNESSETH:
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WHEREAS, Equity Telecommunication has access to an AT&T G3R SYSTEM
computerized telephone system, associated telephone equipment, all pool trunk
lines and WATS access lines (the "System") located at 2201 East Camelback Rd,
Phoenix, Arizona ("Anchor Centre One") and servicing Anchor Centre Three; and
WHEREAS, Customer is tenant of certain premises located in Anchor
Centre Three (the "Premises") pursuant to that certain office lease ("Lease") by
and between Customer and Anchor Centre Master Limited Partnership, an Arizona
limited partnership ("Landlord") dated November 17th, 1995 with an initial term
("Term") of Three ( 3 ) years commencing on November 17, 1995 and
WHEREAS, Customer desires to subscribe to certain services provided by
Equity and to lease certain equipment upon the terms and conditions hereinafter
set forth,
NOW, THEREFORE, in consideration of the mutual covenants herein
contained the parties hereby agree as follows:
1. Lease of Equipment. Equity hereby leases and agrees to provide to
Customer and Customer hereby leases and accepts from Equity the equipment and
other personal property (the "Equipment") set forth on Exhibit "A" attached
hereto and incorporated by reference herein upon the terms and conditions set
forth in this Agreement. For purposes hereof, the Equipment shall include any
replacement parts, replacements, additions, repairs and accessories incorporated
therein or affixed thereto.
2. Subscription to Services. Customer hereby subscribes to and Equity
hereby agrees to provide certain telecommunications service (the "Service") in
conjunction with the Equipment which services are set forth on Exhibit "A" upon
the terms and conditions set forth in this Agreement.
3. Term. The term of this Agreement shall commence upon the date of
execution hereof, and continue until the expiration of the Term of the lease on
the 17th day of November,
1998 unless sooner terminated in accordance with the terms hereof. In addition,
Customer shall have the option to renew the term hereof to be coextensive with
any renewal options available to Customer under the Lease.
4. Delivery, Installation and Commencement of Service. Equity shall
deliver and install the Equipment and arrange for commencement of the Service at
the Premises. The parties shall attach within thirty (30) days hereof, as
Exhibit "C", drawings which set forth the exact location of where the various
Items of Equipment to be provided by Equity hereunder are to be installed.
Customer shall give Equity at least thirty (30) days prior written notice of the
date upon which they intend to take occupancy of the Premises. Customer's
obligation to pay rent hereunder shall commence upon the date that service
commences.
5. Payments. Base rent for each item of equipment and the Service (in
use form time to time) shall be as provided in Exhibit "A". Additional payments
for long distance usage shall be in accordance with the schedule set forth on
Exhibit "B" attached hereto and incorporated herein by reference. Customer shall
pay all base rent and other sums due hereunder to Equity at the address set
forth below, or to such other person or place as Equity may designate in
writing. Payments for Equipment (including initial installation charges) and for
Service (including long distance charges) shall be paid upon receipt of monthly
xxxxxxxx therefor. Payments shall be delinquent if not paid in full within
fifteen (15) days after receipt of the billing therefor. For purposes hereof,
xxxxxxxx shall be deemed received when personally delivered or three (3) days
after being placed in the United States Mail, postage prepaid. Interest on
delinquent payments may be assessed on a per diem basis at a rate equal at a
rate equal to the prime rate quoted from time to time by Xxxxxx Guaranty Trust
plus five percent (5%). Payments shall be sent to the following address: Equity
Telecommunications, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, Xxxxxxx
00000.
6. Taxes. Customer shall pay as and when due, and indemnify and hold
harmless Equity from and against all present and future taxes and other
governmental charges (including, without limitation, sales, use, leasing, stamp
and personal property taxes and license and registration fees), and all amounts
in lieu of such taxes and charges and any penalties and interest on any of the
foregoing, imposed, levied or based upon, in connection with or as a result of
the purchase, ownership, delivery, leasing, possession or use of the Equipment
or use of the Service (including, but not limited to, sales, use and federal
excise taxes as long distance charges), or based upon or measured by rentals or
receipts with respect to this Agreement, and Customer shall file all returns
required and furnish copies thereof to Equity upon its request; provided,
however, that the foregoing shall not apply to any federal or state income,
profits or franchise taxes of Equity.
7. Maintenance. Customer shall use the Equipment in the ordinary course
of business in a commercially reasonable manner and refrain from any abuse or
misuse of the equipment. Equity shall maintain the equipment and be responsible
for its proper operation except for malfunctions resulting from the misuse,
abuse or negligent acts of Customer, its employees, guests, customers, clients
and invitees. Equity shall maintain the Equipment in a manner at least
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equal to that recommended by the manufacturers of the equipment.
8. Liability, Disclaimer of Warranties: EQUITY IS NEITHER THE
MANUFACTURER NOR SELLER OF THE EQUIPMENT. EQUITY MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT
TO THE EQUIPMENT, EXCEPT THE FOLLOWING: THE EQUIPMENT IS FIT FOR THE PURPOSE OF
GENERAL OFFICE USE, THE EQUIPMENT IS NEW OR REFURBISHED TO AT&T STANDARDS, THE
EQUIPMENT SUFFERS FROM NO PATENT DEFECTS OF WHICH EQUITY IS AWARE, CUSTOMER
SHALL ENJOY THE QUIET ENJOYMENT OF THE EQUIPMENT AND THAT THE EQUIPMENT IS IN
CONFORMITY WITH APPLICABLE LAW. EQUITY EXPRESSLY MAKES NO WARRANTY OR
REPRESENTATION WITH RESPECT TO THE DESIGN OF THE EQUIPMENT OR ANY LATENT DEFECTS
EFFECTING THE EQUIPMENT.
(a) The foregoing is in lieu of all other warranties and of all other
obligations on the part of Equity for damages including, but not limited to
consequential damages.
(b) Neither Equity not its vendors, affiliates or subsidiaries shall
have any liability for any indirect, direct, incidental or consequential damages
sustained or incurred in connection with the installation, maintenance, repair,
operation or interruption of the products and service provided or sold under
this Agreement unless same shall be the result of their willful or negligent
acts or omissions.
9. Installation and Modification. Customer shall not make any
modifications to the Equipment. Equity expressly disclaims any obligation to
customer in the event that Customer modifies any of the Equipment set forth
herein or uses any equipment other than Equity's Equipment in connection with
the operation of the basic telecommunications system, or uses any peripheral or
supplemental equipment such as fax machines or modems which are not compatible
or appropriate for use with the basic telecommunications system.
10. Default by Customer. If Customer shall (a) be in default in the
payment of any sum of money due hereunder beyond the fifteenth (15th) day after
the due date thereof, or (b) be in default in the performance of any of the
other material obligations under this Agreement, and shall not cure such default
within thirty (30) days after written notice thereof, or in the event of a
default which cannot be cured within thirty (30) days, shall have begun to cure
same within such thirty (30) day period and shall diligently pursue same to
completion as expeditiously as possible, Equity may, with notice to customer,
have any one or more of the following remedies:
(a) terminate this Agreement;
(b) terminate telecommunications services under the terms of this
Agreement which shall require Customer to make separate arrangements with the
local telephone company for reconnection of telephone services;
(c) sell, dispose of, hold, use or lease any items of Equipment as
Equity, in its sole discretion, may decide without any responsibility to account
to Customer; declare, with or without repossessing the Equipment, the entire
unpaid rental due and payable immediately; and
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Equity may pursue any other remedy available at law or in equity; and
(d) pursue any other available remedy at law or in equity.
In addition to the foregoing, if for any reason the landlord under the
lease shall have the right to cancel the Lease, Equity shall have the right to
terminate this Agreement.
11. Expenses of Collection. Customer, in addition to its other
obligations under this Agreement, shall pay to Equity, all costs and expenses,
including reasonable attorney's fees, incurred by Equity in enforcing the terms,
conditions or provisions of this Agreement.
12. Remedies Cumulative. No right or remedy of Equity is exclusive of
any right or remedy at law or in equity provided or permitted, but each shall be
cumulative of every other right or remedy or given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise and may be enforced
concurrently from time to time. No failure on the part of Equity to exercise and
no delay in exercising any right or remedy hereunder shall operate as a waiver,
nor shall any single or partial exercise by Equity of any right or remedy
preclude any other or further exercise of the same or any other right or remedy.
13. Assignment. Customer shall not assign, transfer or pledge this
Agreement or any of the leased Equipment or sublet or lend any of the Equipment
to any other party. Equity may assign this Agreement and mortgage, transfer or
otherwise dispose of the leased Equipment, either in whole or in part, without
notice to customer. Notwithstanding the foregoing, before Equity can mortgage
the Equipment or provide Customer with any Equipment subject to a mortgage
Equity shall provide Customer with a nondisturbance agreement in a form and
content reasonably satisfactory to Customer from the proposed or existing
mortgages. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns. In the
event either party assigns it interest hereunder, it shall get an estoppel
certificate from the assignee in form and content satisfactory to the other
party.
14. Title to the Equipment. All items of equipment shall remain the
property of Equity and may be removed by Equity at any time after termination of
or default under this Agreement. All items of Equipment are, and shall at all
times remain, separate items of personal property notwithstanding the attachment
of them to other items of equipment or to real property or buildings.
Notwithstanding the foregoing, it is understood that any elements of the system
which are built or installed as part of the tenant finish of the Premises
pursuant to the terms of the Lease, shall be and remain the property of the
Landlord and shall be controlled by the terms of the Lease.
15. Risk of Loss. Customer hereby assumes and shall bear all risk of
any loss, theft, damage to, or destruction of the Equipment from any cause
whatsoever ("Casualty Occurrence"). No Casualty Occurrence after installation of
the Equipment shall relieve Customer from its obligations under this Agreement;
however, the Customer's obligation to pay rent with respect to any Equipment
that has suffered a Casualty Occurrence may be discharged by compliance with the
terms of this paragraph pertaining to payment of the "Casualty Values" of the
Equipment to Equity. In the event of a Casualty Occurrence to any Equipment,
Customer shall give Equity reasonable notice thereof and thereafter that if
Equity reasonable determines the Equipment to be lost, stolen, destroyed or
damaged beyond repair, then customer, at Customer's option, shall
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either (a) replace the Equipment with like Equipment in the condition required
herein which has a market value at least equal to that of the replaced Equipment
immediately prior to the Casualty Occurrence and continue to pay rent hereunder,
or (b) pay to Equity not later than sixty (60) days after notification by Equity
the "Casualty Value" of the affected equipment as such term is defined herein.
The "Casualty Value" of any item of Equipment shall be equal to a total of (i)
al rent and other amounts, if any, due at the time of such payment, plus (ii)
the total of all unmatured rent and other payments with respect to such
Equipment discounted to present value at the rate of eight percent (8%) per
annum simple interest from the date of each such future payment would have been
made to the~ date of payment of the Casualty Value, plus (iii) the "Reversionary
Value" of said Equipment less the net amount of the recovery, if any, actually
received by Equity from insurance or otherwise for such loss, theft, damage or
destruction. For purposes of this paragraph, Reversionary Value shall be the
estimated fair market value of the Equipment as of the end of the initial lease
term, as though such Casualty Occurrence had not occurred. Upon such payment,
this Agreement shall terminate with, and only with, respect to the Equipment so
paid for and Customer shall become entitled to such paid for Equipment AS-IS,
WHERE-IS. If either party has the right to cancel the Lease pursuant to the
terms thereof pertaining to casualty loss and such party exercises its right to
cancel the Lease, then the party exercising such right shall also have the right
to cancel this Agreement.
16. Insurance. During the lease term of any Equipment, Customer shall,
at its expense, keep in effect all insurance required pursuant to the terms of
the Lease and shall cause Equity to be named as an additional insured under all
such policies of insurance. Each policy shall provide (i) for no less than
thirty (30) days prior written notice of cancellation or non-renewal to Equity;
(ii) that such policy shall not be invalidated as against Equity or its assigns
for any violation of any term of the policy of Customer's application therefor,
and (iii) that such insurance is primary insurance and any other insurance
covering Equity or its assigns shall be secondary and excess of such policy.
Evidence of each insurance policy satisfactory to Equity shall be provided to
Equity upon request. Customer shall promptly notify and appropriate insurer and
Equity of each and every occurrence which may become the basis of a claim or
cause of action against the insureds and provide Equity with all data pertinent
to such occurrence. The proceeds of casualty insurance, at the option of Equity,
shall be applied toward (a) the repair or replacement of the appropriate
Equipment, (b) payment of the Casualty Value thereof, or (c) the payment of any
other accrued obligation of customer hereunder. Any excess of such proceeds
remaining after all required payments shall belong to Customer. Customer hereby
appoints Equity as Customer's attorney-in-fact with full power and authority to
do all things, including, but not limited to, making claims, receiving payments
and endorsing documents, checks or drafts necessary or advisable to secure
payments due under any policy contemplated hereby on account of a Casualty
Occurrence to the Equipment.
17. Miscellaneous. This Agreement shall be governed by the laws of the
State of Arizona and constitutes the entire agreement between Equity and
Customer with respect to the subject matter hereof. The terms and provisions of
this Agreement may not be modified except by a writing signed by each of the
parties hereto.
18. Notices. All notices required hereunder shall be in writing and
shall be deemed to have been given when delivered personally or when mailed with
proper postage for ordinary mail, addressed to Equity or Customer, as the case
may be, at the following addresses or at such other
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address as either shall from time to time designate in writing.
If to Customer: Tracer Design, Incorporated
0000 Xxxx Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
(000) 000-0000
(000) 000-0000 (FAX)
If to Equity: Equity Telecommunications
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Xxxx Duck
(000) 000-0000
(000) 000-0000 (FAX)
19. Additional Documents: Further Assurances. Customer further agrees
to-execute or obtain and deliver to Equity, at Equity's request such additional
documents as Equity may reasonable deem necessary to protect Equity's interest
in the Equipment in this Agreement, including, without limitation, financing
statements, landlord's waivers and mortgagee's waivers. Customer shall pay to
Equity upon demand as supplemental rent any filing fees or expenses incurred in
connection with such additional documents. The execution of financing statements
or the filing of same shall be for information purposes only and shall not be
construed as an intention by the parties that the Equipment is being sold to
Customer under this agreement.
20. Individuals Executing Agreement. Customer and Equity both warrant
that the individuals executing this Agreement on their behalf have been fully
authorized by all appropriate corporate action to do so and that their execution
hereof shall create a valid and binding obligation of each respectively.
IN WITNESS WHEREOF, the undersigned have executed this Agreement the day and
year first above written.
EQUITY TELECOMMUNICATIONS
By: /s/ Xxxxx X. Xxxxxxx
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Title: System Administrator
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By: /s/ Xxxx X. Xxxxxx
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Title: President
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EXHIBIT "A"
SCHEDULE OF EQUIPMENT AND SERVICE
1. The initial Equipment to be installed is as follows:
a. 7434D/w Display (1)
8110 Analog Sets (16)
7101A Analog Set (1)
Analog Lines/Fax-Modem (4)
Audix (15)
House Pairs for TCG (2)
b. The initial charge for each item of Equipment shall be as follows:
$45.00 ($ 45.00)
$25.00 ($ 400.00)
$20.00 ($ 20.00)
$20.00 ($ 80.00)
$10.00 ($ 150.00)
$10.00 ($ 20.00)
c. Based on the foregoing, the monthly lease charge, which includes all local
U.S. West lines, Attendant Console, Station User Equipment, Maintenance and
Common Equipment is:
$715.00
2. The Services are as follows:
Abbreviated Dialing Line Feature Status Indication
Alerting - Distinctive Alerting Loudspeaker Paging
Attendant Call Waiting Loudspeaker Paging -
Attendant Direct Extension Selection Music Option
with Busy Lamp Field Message Waiting -Manual
Attendant Display PC/PBX Connection
Attendant Display - Priority Calling
Calling Extension Number Restriction -
Class of Service Attendant Control of Voice
Incoming Call Identification Terminals
Attendant Release Loop Operation Code Restriction
Bridged Call Inward
Busy Verification of Lines Manual Termination Line
Call Coverage Miscellaneous Trunk
Call Forwarding Restrictions
Call Park, Call Pickup, Call Waiting Outward
Centralized Attendant Service Terminal-to-Terminal
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Code Calling Access Only Calling
Conference - Attendant Six Party Termination
Conference - Three Party Toll Restriction
Dial Access to Attendant Voice Terminal Restrictions
Direct Inward Dialing Origination
Direct Outward Dialing Termination Busy Indication
Display - Voice Terminal Through Dialing
Power Failure Transfer Touch-Tone Calling Senderized
Four (4) Digit Dialing Operating
Hunting Transfer
Intercom Automatic Unattended Console Service
Intercom - Dial Alternate Console Position
Hold Call Answer From Any
Leave Word Calling Voice Terminal
Recurring Charges + 7% tax
Equipment and network charges (telephone lines and access to reach long distance
location)
3. The charge for the installation of the Equipment listed in paragraph 1 (a)
above is $8,803.43.
4. If additional Equipment is added, the charge therefor shall be computed on
the basis of market prices at the time. Nothing contained herein shall be deemed
to indicate the future availability of any specific item of equipment. To the
extent that Customer wishes to add a given piece of equipment in the future and
such item is no longer available, Equity shall use its best efforts to obtain a
comparable substitute.
5. If Customer should elect to extend the term of the Agreement pursuant to any
options contained herein, at the commencement of any such option period, the
base charges set forth in paragraph 1 of the Exhibit "A" and the Long Distance
Rate Schedule set forth in Exhibit "B" shall be adjusted as required to reflect
then market rates, which rates shall be in effect hereunder until the expiration
of the option period in question.
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EXHIBIT "B"
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LONG DISTANCE RATE SCHEDULE
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Cost Per Minute
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$ .17
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