EXHIBIT 10.16
EQUIPMENT LEASE
This Equipment Lease, dated as of March 18, 1998, is made by and
between Preferred Voice, Inc., a Delaware corporation (hereinafter referred to
as "Lessee") and Capital Growth Fund Ltd. (hereinafter referred to as "Lessor")
.
In consideration of the mutual agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I
LEASE OF EQUIPMENT
Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, a VIP System consisting of the items identified on Attachment "A" (the
"Equipment") .
ARTICLE II
TERM
This Lease will commence on March 18, 1998, and will continue in effect
for 36 months.
ARTICLE III
RENTAL PAYMENTS
3.1. Rentals. Lessee shall pay to Lessor $3,581.08 on the 1st day of
each month during the term of this Lease as rental for the Equipment (the
"Monthly Rental Payment") . Provided Lessee is not then in default, Lessee has
the option to purchase the Equipment at any time during the term of this Lease
for a price determined in accordance with Attachment
3. 2. Past Due Interest. In the event Lessee fails to pay any Monthly
Rental Payment when due (or any other sum to be paid by Lessee under this
Lease), Lessee shall pay to Lessor interest on such monthly Rental Payment (or
other sum) from the due date thereof and after any grace period to the date of
payment, at the rate of eighteen percent (18%) per annum.
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ARTICLE IV
USE OF EQUIPMENT
4. 1. Rights of Lessee. Lessee has the right to the use, operation,
possession and control of the Equipment while the Lease is in effect. Lessee
will have absolute control, supervision and responsibility over the operators or
users of the Equipment, subject to the restrictions set forth below.
4.2. Duties of Lessee. Lessee must use the Equipment in a careful and
proper manner, and will not permit any Equipment to be operated or used in
violation of any applicable federal, state or local statute, law, ordinance,
rule or regulation relating to the possession, use or maintenance of the
Equipment. Lessee shall use the Equipment in accordance with any applicable
vendor's or manufacturer's manuals or instructions, by competent and fully
qualified personnel only. Lessee shall reimburse Lessor in full for all damage
to the Equipment arising from any misuse or negligent act by Lessee, its
employees, and its agents. Lessee shall indemnify and hold Lessor harmless from
all liabilities, fines, forfeitures or penalties for violations of any statute,
law, ordinance, rule or regulation of any duly constituted public authority.
4.3. Location of Equipment. The Equipment will be located in the
offices of American Communications Services, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxx 00000-0000 and may not be moved from that location without
the prior written consent of Lessor, which may not be unreasonably withheld.
4.4 Commercial Use Limitation. Lessee represents and warrants that the
Equipment will be used for commercial or business purposes only.
ARTICLE V
MAINTENANCE, REPAIRS AND ALTERATIONS
PERFORMED BY LESSEE
5.1. Maintenance and Repairs. Lessee shall assume all obligations and
liability concerning possession of the Equipment, and for its use, operation,
condition and storage while this Lease is in effect. Lessee shall, at Lessee's
expense, maintain the Equipment in good mechanical condition and running order,
excepting reasonable wear and tear resulting from the ordinary use of the
Equipment. Lessee shall, at its own expense, provide all parts, mechani3ms and
devices recuired to keep the Equipment in good repair, condition and running
order. Lessor is under no liability or obligation to provide service,
maintenance, repairs or parts for the Equipment.
5.2. Alterations and Additions. Without the prior written consent of
Lessor, which consent may not be unreasonably withheld, Lessee will not make any
alterations, additions or improvements to the Equipment, other than those
required to keep the Equipment in good condition and running order, as described
in Section 5.1.
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ARTICLE VI
PASS THROUGH OF WARRANTIES
Lessor hereby assigns to Lessee (to the extent assignable) any and all
rights Lessor may have to enforce any warranty in respect of the Equipment and
agrees to enforce for the benefit of Lessee (but at Lessee's sole expense) every
such warranty that is not assigned hereby.
ARTICLE VII
OPERATING EXPENSES
Lessee shall pay for ail expenses of operating the Equipment and all
other charges in connection with the operation of the Equipment.
ARTICLE VIII
TAXES
Lessee is liable for, and required to pay on or before their due dates,
all sales, use, or personal property taxes imposed on the Equipment.
ARTICLE IX
OWNERSHIP
9.1. Warranty of Title. Lessor warrants that it has clear title to the
Equipment, free and clear of any liens, encumbrances or claims of third parties,
and Lessee is entitled to quiet possession of the Equipment. Lesscr shall
indemnify and hold Lessee harmless from any damages, cost or expense Lessee may
suffer arising out of Lessor's breach of its warranty of title.
9.2. No Sale or Security Interest intended. This agreement constitutes
a lease of the Equipment and not a sale or the creation of a security interest.
Unless and until Lessee exercises its purchase option, Lessor retains sole
ownership and title of the Equipment subject to any liens it has granted, and
Lessee will not have any right, title, equity or other interest in the
Equipment, except the right to possession and use as provided for in this Lease.
9.3. Identification Markings. Lessor has the right to require Lessee to
place and maintain on the exterior or interior of each piece of Equipment a
reasonable label reflecting Lessor's ownership. Lessee may not remove, obscure,
deface or obliterate the inscription or permit any other person to do so.
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9.4. No Liens. Lessee shall at all times keep the Equipment free and
clear from any liens or encumbrances of Lessee's creditors or other persons
having claims against (or otherwise claiming through) Lessee.
9.5. Personal Property. Lessor and Lessee hereby agree that the
Equipment will always remain and be deemed personal or moveable property, and
Lessee covenants not to enter into any agreement with any third party or take
any action inconsistent with the foregoing.
9.6. Sublease. Lessee may not sublease any item of Equipment or assign
this Lease to any other party without the prior written consent of Lessor,
provided Lessor does not unreasonably withhold such consent. No such sublease or
assignment will in any way relieve Lessee of its obligations hereunder. If
Lessee subleases any item of Equipment or assigns this Lease in accordance with
the provisions of this Section 9.6, Lessor may accept rental and other payments
directly from such sublessee or assignee, but no such acceptance will in any way
constitute a release of Lessee from its obligations under the Lease except to
the extent that any such sublessee or assignee actually makes such payment.
ARTICLE X
INSURANCE
10.1. Lessee's Obligation to Insure. Lessee shall provide fire, theft
and comprehensive insurance coverage for all Equipment at Lessee's expense, in a
commercially reasonable amount.
10.2. Excess Liability Indemnity. Lessee agrees to indemnify and hold
Lessor harmless from all loss, liability and expense, including reasonable
attorneys' fees, in excess of the limits of liability insurance for bodily
injury, death or property damage caused by or arising out of the ownership,
maintenance, use or operation of the Equipment, as provided for in this Article.
Lessee further agrees to indemnify and hold harmless Lessor from and against
loss, liability and expense; including reasonable attorneys' fees, because of
Lessee's failure to comply with any terms, provisions and conditions of any
insurance policy insuring Lessor and Lessee or because of Lessee's failure to
comply with the terms and provisions of this Article.
ARTICLE XI
INDEMNIFICATION AND LIABILITY
11.1. Risk of Liability Assumed by Lessee. Lessee assumes all risk and
liability for the loss of or damage to the Equipment, for the death of or injury
to any person or property of another and for all other risks and liabilities
arising from the use, operation, condition, possession or storage of the
Equipment. Nothing in this Lease authorizes Lessee or any other person to
operate any of the Equipment so as to impose any liability or other obligation
on Lessor.
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11.2. Lessee's Duty to Indemnify. Lessee agrees to indemnify, defend
and hold harmless Lessor from all claims, loss or damage Lessor may sustain for
any of the following reasons:
(a) Loss of, or damage to, any Equipment by any cause;
(b) Injury to, or death of, any person, including but not
limited to agents or employees of Lessee arising from the use,
possession, selection, delivery, return, condition or operation of any
of the Equipment;
(c) Damage to any property arising from the use, possession,
selection, delivery, return, condition or operation of any of the
Equipment.
Lessee shall reimburse Lessor for all expenses, losses, liabilities,
fines, penalties and claims of every type, including reasonable attorneys' fees,
imposed on or incurred by Lessor due to Lessee's use or operazion of any
Equipment, or because of the failure by Lessee to perform any of the Lease
terms. Lessee shall also pay interest at the highest legal rate from the day any
such payment is made by Lessor until the date Lessor is reimbursed by Lessee.
ARTICLE XII
ACCIDENT, LOSS OF, OR DAMAGE TO EQUIPMENT
12.1. Notification to Lessor. If any Equipment is damaged, lost, stolen
or destroyed as a result of its operation, use, maintenance or possession,
Lessee shall promptly notify Lessor of the occurrence and shall file all
necessary accident reports, including those required by law and those required
by interested insurance companies.
12.2. Cooperation in Defense of Claims. Lessee and its employees and
agents shall cooperate fully with Lessor and all insurers providing insurance
under this Lease in the investigation and defense of all claims or suits. Lessee
shall promptly deliver to Lessor all papers, notices and documents served on, or
delivered to, Lessee or its employees and agents in connection with any claim,
suit, action or proceeding at law or in equity commenced or threatened against
Lessee or Lessor concerning the Equipment.
12.3. Options of Lessor. In the event of loss or damage of any kind to
any item of Equipment, Lessee, at its option, shall:
(a) Place such Equipment in good repair, condition and working
order; or
(b) Replace such Equipment with like Equipment in good repair,
condition and working order.
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ARTICLE XIII
EVENT OF DEFAULT
The failure of Lessee to pay, within ten (10) days following
receipt of written notice from Lessee of non-payment on the due date, any rent
or other amount required to be paid to Lessor under this Lease or any other
agreement between Lessee and Lessor or to perform, within thirty (30) days after
written notice by Lessor specifying the default, any covenant, condition or
obligation required to be performed by Lessee under this Lease or any other
agreement between Lessee or Lessor will constitute an Event of Default.
ARTICLE XIV
RIGHTS, REMEDIES AND OBLIGATIONS ON DEFAULT
14.1. Lessor's Rights and Remedies. In case of an Event of Default by
Lessee under the Lease, Lessor will have the right to exercise any one or more
of the following remedies:
(a) To terminate the Lease of the Equipment and Lessee's
rights thereunder as to any or ail items of such Equipment;
(b) To repossess the Equipment without legal process. Lessee
agrees that, upon default, Lessor or Lessor's agent may enter upon any
premises where the Equipment is located and repossess and remove it.
Lessee specifically waives any right of action Lessee might otherwise
have arising out of the entry and repossession, and releases Lessor of
any claim for trespass or damage caused by reason of the entry,
repossession, or removal. Any repossession of a particular item of
Equipment will not constitute a termination of this Lease as to any
other items of Equipment, unless Lessor expressly so notifies Lessee in
writing;
(c) To exercise any other remedy permitted at law or in
equity.
14.2. Lessee's Obligation for Lessor's Costs and Attorneys' Fees. Upon
default, Lessee shall reimburse Lessor for all reasonable expenses of
repossession and enforcement of Lessor's rights and remedies, together with
interest at the rate of eighteen percent (18%) per annum, until the date of
payment. Notwithstanding any other provisions of this Lease, if Lessor places
all or any part of Lessor's claim against Lessee in the hands of an attorney for
collection, Lessee shall pay Lessor's reasonable attorneys' fees.
14.3. Remedies Cumulative. The remedies of Lessor set forth in this
Article are cumulative to the extent permitted by law and may be exercised
partially, concurrently, or separately. The exercise of one remedy may not be
deemed to preclude the exercise of any other remedy.
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14.4. Failure to Enforce Not Waiver. Any failure or delay on the part
of Lessor to exercise any remedy or right under this Lease will not operate as a
waiver. The failure of Lessor to require performance of any of the terms,
covenants, or provisions of this Lease by Lessee will not constitute a waiver of
any of the rights under the Lease. No forbearance by Lessor to exercise any
rights or privileges under this Lease will be construed as a waiver, but all
rights and privileges shall continue in effect as if no forbearance had
occurred. No covenant or condition of this Lease may be waived except by the
written consent of this Lessor. Any such written waiver of any term of this
Lease will be effective only in the specific instance and for the specific
purpose given.
ARTICLE XV
PAYMENT BY LESSOR
In the event Lessee fails to procure, maintain or pay for any insurance
required to be procured, maintained and paid for by Lessee hereunder, or to make
any payment required to be made by Lessee hereunder (including, but not limited
to, the payment of any fees, assessments, charges or taxes), Lessor has the
right, but is not obligated, to obtain such insurance, or make such payment, on
behalf of Lessee. In the event Lessor does so, Lessee shall reimburse Lessor for
the cost thereof upon demand and the failure to make such reimbursement within
ten (10) days after demand will constitute an Event of Default hereunder as
defined in Article 13 hereof.
ARTICLE XVI
DISCLAIMER AND WARRANTIES
Lessor warrants that it owns the Equipment free and clear of any liens
or other encumbrances and is hereby transferring the Equipment with clear title.
LESSOR OTHERWISE LEASES THE EQUIPMENT AS IS WITHOUT WARRANTY OF ANY KIND
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE XVII
RETURN OF EQUIPMENT
In the event Lessee does not exercise its purchase option after written
notice from Lessor upon the termination of this Lease, Lessee shall return to
Lessor the Eaulipment free and clear of all liens or encumbrances of Lessee's
creditors or other persons having claims against or otherwise claiming through
Lessee; and in such condition, repair and working order as the Equipment was in
on the date of this Lease, ordinary wear and tear resulting from the proper use
thereof excepted.
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ARTICLE XVII
NOTICES
All notices required or permitted to be given hereunder shall be in
writing and will be valid and sufficient if dispatched by (i) hand delivery,
(ii) by telex, cable or facsimile transceiver, with confirming letter mailed
promptly thereafter in accordance with clause (iv) hereof, (iii) by reputable
overnight express courier or (iv) by certified mail, postage prepaid, return
receipt requested, deposited in any post offices in the United States, as the
case may be, addressed to the addresses set forth on the signature page of this
Agreement, or such other addresses as may be provided, from time to time. Either
party may change its address by notices given to the other party in the manner
set forth above. When sent by cable or facsimile as aforesaid, notices given as
herein provided are considered to have been received when sent; otherwise,
notices are considered to have been received only upon delivery or attempted
delivery during normal business hours.
ARTICLE XVIII
AMENDMENT AND MODIFICATION
This Lease may not be amended, modified or altered in any manner except
in a writing signed by both parties.
ARTICLE XIX
ENTIRE AGREEMENT
This Lease constitutes the entire agreement between the parties
respecting the subject matter. No agreements, representations or warranties
other than those specifically set forth in this Lease are binding on any of the
parties unless set forth in writing and signed by both parties.
ARTICLE XX
GOVERNING LAW
This Lease has been executed and delivered in the State of Texas and
shall be interpreted under, and construed in accordance with, the of law of
Texas, without regard to choice of law principles that may apply a different
state's substantive law. It is agreed that Texas law controls the validity of,
and the obligations created by, this Lease.
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ARTICLE XXI
EFFECT OF PARTIAL INVALIDITY
Should any part of this Agreement for any reason be declared invalid,
such decision will not affect of any remaining portions, which shall remain in
force and effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this Agreement
without including therein any such part or portion which may for any reason be
hereafter declared invalid.
ARTICLE XXII
HEADINGS
Headings used in this Agreement are to facilitate reference only, do
not form a part of this Agreement, and may not in any way affect the
interpretation hereof.
ARTICLE XXIII
NO WAIVER
No failure on the part of any party to exercise, and no delay in
exercising, any right or remedy hereunder will operate as a waiver thereof. Nor
will any single or partial exercise of any right or remedy hereunder exclude any
other or further exercise thereof or the exercise of any other right hereunder.
ARTICLE XXIV
ATTORNEYS' FEES
The prevailing party in any litigation, arbitration or other
proceedings arising out of this Agreement shall be reimbursed by the other party
for all costs and expenses incurred in such proceedings, including reasonable
attorneys' fees.
ARTICLE XXV
FORCE MAJEURE
No party hereto will be liable for delay or default in performing
hereunder if such performance is delayed or prevented by conditions or events
beyond such party's control. If a Force Majeure condition occurs, the party
delayed or unable to perform shall give immediate notice of such occurrence to
the other party. The party affected by the other party's inability to
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perform may, after sixty (60) days, elect to either terminate this Agreement or
continue performance with the option of extending the terms of the Agreement up
to the length of time the Force Majeure conditions endure. The party
experiencing the Force Majeure condition must inform the other party in writing
when such a condition ceases to exist.
LESSEE: LESSOR:
PREFERRED VOICE, INC. CAPITAL GROWTH FUND LTD.
By:/s/ G. Xxx Xxxxxx By:
-------------------------
Its: G. Xxx Xxxxxx Its:
-------------------------
0000 Xxxxxxxxxx Xxxxxx P.O. Box 3444
Suite 570 Road Town, Tortola
Xxxxxx, Xxxxx 00000 British Virgin Islands
(000) 000-0000
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Equipment Lease
Attachment "A"
19' rack mountable chassis
Trenton Pentium 200 # 3579
64 MB ram # ASI0003715 - ASI0003716
Seagate Hawk 2.1 GB HDD # JBV47393
32 Ports w/ 4 ports VCS continuos
4 ports VCS phonetics
Modem/Fax 33.6 Class 2 Internal # 24420
Dialogic Cards:
2 Antares 2000 x 50 MHS
2 160 SLC 16 port card
14' Monitor
Microsoft serial mouse
Keyboard
I copy Preferred VIP cellular/SOHO software (object code only)
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Equipment Lease
Attachment "B"
After Purchase
Payment Price
-------------------------------- --------------------------------
1 98,085.59
2 96,139.27
3 94,160.51
4 92,148.77
5 90,103.50
6 88,024.15
7 85,910.14
8 83,760.89
9 81,575.83
10 79,354.34
11 77,095.84
12 74,799.69
13 72,465.27
14 70,091.94
15 67,679.06
16 65,225.97
17 62,731.99
18 60,196.44
19 57,618.63
20 54,997.86
21 52,333.41
22 49,624.56
23 46,870.55
24 44,070.65
25 41,224.08
26 38,330.07
27 35,387.82
28 32,396.54
29 29,355.40
30 26,263.58
31 23,120.23
32 19,924.48
33 16,675.48
34 13,372.32
35 10,014.11
36 6,600.00
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AMENDMENT NO. 1 TO LEASE AGREEMENT
The Lease Agreement dated March 18, 1998, between Preferred Voice, Inc and
Capital Growth Fund Ltd. is hereby amended to include Article XXVI in its
entirely as follows:
ARTICLE XXVI
Lessor has the option at any time to convert its unpaid lease payments,
in this instance to be defined as Purchase Price in Attachment "B", into shares
of common stock, $.001 par value per share, of Lessee (the "Stock"), derived
from dividing the Purchase Price by the conversion rate where the conversion
rate is the smaller of :
(a) $1.00 or,
(b) One-half of the average closing price of the Stock on
the exchange on which it is traded for the 10 day
period prior to conversion or if the Stock is not
then traded on an exchange, one-half of the average
of the last bid price for the 10 day period prior to
the conversion.
Except as amended hereby, the Lease Agreement remains in full force and
effect in accordance with its terms.
Date: 10/15/98
-------------------------------
Preferred Voice, Inc.
By: /s/ G. Xxx Xxxxxx
--------------------------------
G. Xxx Xxxxxx
President
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