EXHIBIT 10.17
INTERNATIONAL LEASING CONTRACT
made by and between
GLOBAL TELECOMMUNICATIONS OPERATIONS INC. And
SOCIEDAD TELEFONOS DE CARTAGO S.A. E.S.P.
The undersigned XXXXXX XXXXXX XXXXXXXXX, of age, domiciled at Santafe de Bogota,
D.C., bearer of Passport No. 00000000, issued in Santafe de Bogota D.C., who
acts as Attorney-in-fact according to special power of attorney granted by
GLOBAL TELECOMMUNICATIONS OPERATIONS, INC., a corporation domiciled at Xxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxx and organized and existing under the laws of the
British Virgin Islands, United Kingdom, according to registry number 170407,
based on the international business companies decree (hereinafter referred to as
"XXXXXX") -on the one part-, and XXXX XXXXXXXX XXXXXXX XXXXX, of age, domiciled
in Xxxxxxx, identified as it appears next to his signature, acting as Substitute
for the General Manager and legal representative of TELEFONOS DE CARTAGO S.A.
E.S.P., a corporation duly organized and existing according to public deed
number 004, granted at the Notary's Office No. 2 of Cartago, on January 3rd,
1997, domiciled in Cartago, department of Xxxxx del Cauca, Republic of Colombia,
NIT No.000000000-1, verifiable with the existence and representation
certificate, issued by the Chamber of Commerce of Cartago attached hereto
(hereinafter referred to as "LEASEE") on the other part-, have entered into an
International Leasing Contract, governed by the following clauses:
ONE. BACKGROUND. LEASEE, for this Contract's purposes and with the purpose of
acquiring the productive usage of the property herein described, previously
analyzed,
chose the property/equipment which is the subject of this Contract with all
their specifications and characteristics and SIEMENS AKTIENGESELLSCHAFT, of
German nationality, as the supplier.
TWO. In fact, due to the above circumstances, the parties hereto state that
LEASEE has requested XXXXXX the possession of the property herein provided in
order to grant such possession to the LEASEE, with the purpose to exploit it in
Colombia.
THIRD. PROPERTY. XXXXXX hereby declares that it is the owner of the following
property, bearing customs duties position "8517302000" Electrical Devices For
Wire Telephony, Telephone Exchange for seventeen thousand eight (17,008) lines
which basic components are a functional unit according to the terms provided in
Note 4-Section XVI of customs duties and which main function is performed by an
automatic telephone commutation device described in detail on the only annex of
this Contract.
FOUR. SUBJECT. By virtue of this Contract, XXXXXX, who has acquired the
possession of the property outside of the Republic of Colombia, with the purpose
of granting possession to LEASEE (as stated hereinabove), agrees to grant such
possession to LEASEE, which acknowledges it as received to its satisfaction and
as a leasing.
PARAGRAPH. For legal purposes, the parties hereto express their understanding of
any device or part used as an accessory of the leased equipment or that, in the
future, it is added to it.
FIVE. IMPORTATION. All property hereto has been acquired by XXXXXX in the
Federal Republic of Germany and shall be imported by LEASEE to the Republic of
Colombia. LEASEE agrees to comply with all legal and regulatory dispositions
ruling the importation of property to the Republic of Colombia.
LEASEE is expressly obliged to constitute warranties required by law, to file
purchase invoice and the appropriate customs declaration in compliance with all
legal dispositions in effect and upon payment of customs duties (including
importation duties, taxes and all other applicable liens for the leased
property). And, in general, LEASEE is obliged to comply with any customs and
taxing obligation within the terms and conditions agreed on.
If, as a result of legal procedures, authorities make requirements or perform
official dissolution, or make any customs or taxing obligation directly
enforceable to XXXXXX for its condition as owner, LEASEE agrees to directly
assume all costs and expenses, including lawyer fees -if that is the case-,
involved in answering to requirements, actions against official dissolution and,
particularly, to reimburse the value of costs and expenses to XXXXXX, including
-if the case may be-, importation duties, taxes, fines and all other liens paid
by XXXXXX in performing a customs and taxing obligation.
PARAGRAPH ONE. LEASEE acknowledges the entire customs and Colombian tax regime
in force as of the date of subscription and legalization of this Contract and
agrees to comply with it under the terms and conditions provided by the law.
PARAGRAPH TWO. XXXXXX, or a third party designated by XXXXXX, is authorized to
pay the value of the customs duties and fiscal contributions corresponding to
payments of the leasing installments whenever LEASEE does not comply with this
obligation
within a period of fifteen (15) days previous to the date the corresponding
installment is paid.
In any event, LEASEE must notify and prove payment of taxes to XXXXXX, within a
period of twenty-four (24) hours following payment.
Failure to comply with this obligation shall result in application of fines
described in Clause Twenty-seven.
SIX. EXEMPTION OF RESPONSIBILITY AND COMPENSATION. XXXXXX declares that it has
chosen the leased equipment and the supplier or manufacturer of such equipment.
Consequently, XXXXXX shall not be responsible for delayed delivery of the
property which may arise from causes attributable to the supplier or
manufacturer or from any other cause or circumstance, nor shall it be held
responsible for damages, defects, differences with the specificiations, or
failure by the supplier/manufacturer/businessman to correctly assemble or
install the equipment.
In the event the manufacturer does not deliver the property, LEASEE shall
indemnify and hold XXXXXX harmless from any responsibility, and direct or
indirect expenses that may arise out of the acquisition of the equipment under
this Contract including the value of the leased property, losses of any kind,
advanced payments, taxes, duties, commissions, freights, transportation or any
other type of expenses incurred under this Contract.
SEVEN. SURROGATION. LEASEE hereby surrogates XXXXXX'X rights before the
manufacturer or supplier of the purchase and sale contract for the equipment,
and
LEASEE may directly make the above purchase and sale contract enforceable to
that manufacturer or supplier or ask for the contract's resolution, with
compensation for damages and injuries.
In the event there is a resolution of the purchase and sale contract, LEASEE
must indemnify XXXXXX for all expenses according to the above clause.
EIGHT. REPARATION FOR EVICTION. The parties hereto agree that LEASEE expressly
exempts XXXXXX from reparation of the leased property. Therefore XXXXXX shall
not be responsible for any evident or latent defect in the performance,
efficiency or others which may affect such good.
LEASEE shall indemnify XXXXXX according to clause twenty-seven, in case this
contract is terminated due to defects to the leased property.
In the event the manufacturer or supplier substitutes the property by other that
is not imperfect, such property shall be a part of this contract, and any
reference to the leased property herein included shall apply to the new property
given as a substitute, for which LEASEE is obliged to sign an ADDENDUM and add
the property given as a substitute to the legal regime under this Contract.
NINE. In the event of any conflict between LEASEE and manufacturer/supplier by
reason of the above provisions, LEASEE shall continue paying XXXXXX the agreed
fees under this Contract while in force and effect.
TEN. PROTECTION TO THE PROPERTY. LEASEE agrees to disclose to any third party
that the property hereto is the XXXXXX'X exclusive possession. Consequently, in
any event of legal or administrative actions affecting the exercise of the
property's possession, such as attachments, actions, confiscation, retention or
similar circumstances or in case of a call for preventive covenant, bankruptcy
declaration or anyone taking possession of LEASEE'S property, LEASEE agrees to
present this Contract as a proof of ownership of the properties hereto and to
notify XXXXXX of such event within a period of three days following the date in
which such circumstances occurred, so that XXXXXX may take all appropriate
measures. In any case, LEASEE accepts hereafter to pay, on its sole account, all
expenses arising from the defense and exercise of the possession of the property
by XXXXXX, without detriment to all other obligations under this Contract.
ELEVEN. TERM. XXXXXX grants possession of the property hereto to LEASEE during a
period of twelve (12) years from the date of the act that certifies the
performance of the equipment herein stated. LEASEE shall issue the act.
TWELVE. LEASE. LEASEE agrees to pay a specific lease to XXXXXX unconditionally
and without any requirement during the term of this Contract, as follows:
a) XXX XXXXXXX XXXXXX-XXXXX XXXXXXXX XXXXXX XXXXXX AMERICAN DOLLARS
(US$1,036,000.00) upon file of the last notice of importation of the equipment.
b) 20 installments every six months in the amount of THREE HUNDRED NINETY-FOUR
THOUSAND UNITED STATES AMERICAN DOLLARS (US$394,000.00) for 10 years. c) Four
installments every six months in the
amount of XXX XXXXXXX XXXXXX-XXXXX XXXXXXXX XXXXXX XXXXXX AMERICAN DOLLARS
(US$197,000.00) each, for two years following the due date of payment of the
twenty installments as defined hereinabove, which shall be enforceable the first
five (5) days of each expiring semester.
PARAGRAPH ONE. In the event of several notices of importation, the date of
payment for the installments hereby mentioned should be the date the last
document is filed.
PARAGRAPH TWO. This amount shall be proportionally adjusted, if, upon receipt of
the imported property into the national territory, its CIF cost (including cost
of merchandise plus insurance and freight charges) increases or decreases in
relation to CIF cost originally budgeted and that is the base for determining
the initial fee. In this case variation shall be determined by applying the
applicable factor of the cost originally budgeted by the actual CIF cost of
merchandise. Additionally, the fee shall be adjusted every six months according
to the percentage variation of the preferred interest rate of London market
(Libor) between the first and last working day of each quarter previous to the
quarter for which adjustment is performed.
LEASEE agrees to verify that, once the money corresponding to the Colombian
exchange market is acquired in compliance with all legal requirements, the draft
on the amounts required for each period is confirmed by written notification,
telegram, letter or fax, the day in which each leasing fee is due, at the
latest.
THIRTEEN. ARREARS. In case of delays by LEASEE in paying the amounts of money
hereunder agreed on, it must pay to XXXXXX, without any requirement as a fee
for arrears, an interest rate equal to Libor plus two percent (2%) a year,
calculated from the due date of the amount in arrears to the date in which
LEASEE has credited such payment into the banking account of XXXXXX.
In case there are two or more installments in arrears, LEASEE shall pay to
XXXXXX the amount herein indicated for each installment. By paying this fine,
LEASEE shall not construe its main obligation as unenforceable because such fine
is provided only for delay or arrears and does not alter XXXXXX'X right to claim
failure to comply with obligations hereof or application of sanctions provided
in clause twenty-seven.
PARAGRAPH ONE. Acceptance by XXXXXX of delayed payment of fees shall not imply
an extension on the terms provided for performance of LEASEE'S obligations which
may arise from this Contract.
PARAGRAPH TWO. The leasing fee shall not be decreased by reason of wear or
obsolescence of the equipment, which is assumed by LEASEE without detriment of
its obligations with respect to the XXXXXX.
PARAGRAPH THREE. LEASEE'S obligation to pay the fees shall not end because the
leased equipment temporarily or definitely stops its operation, or due to
repairs, transfer, transformation, strike, act of god and in general due to any
cause non attributable to XXXXXX.
PARAGRAPH FOUR. With the purpose of guaranteeing the obligation to pay the fee,
LEASEE shall grant all guarantees required by XXXXXX in favor of XXXXXX.
PARAGRAPH FIVE. LEASEE expressly waives the formal requirements for determining
arrears in case of delays or failure to comply with the obligations under this
Contract and accepts from hereon, as a proof of any failure to comply, a
notification
addressed to LEASEE by XXXXXX, or the XXXXXX'X request before a competent
authority to exercise its rights.
FOURTEEN. MODIFICATIONS TO THE CONTRACT. LEASEE accepts, hereon, any variations
provided by XXXXXX with respect to the installments due every six months or the
purchase option, fines, sanctions and others related to the contract in
compliance with all legal dispositions in effect at the moment of stating such
variation.
FIFTEEN. WARRANTIES. LEASEE agrees to keep the leased equipment insured at all
times and against any and all risks during the term of this Contract in an
insurance company previously accepted by XXXXXX, for an amount equivalent to its
commercial value appointing XXXXXX as the beneficiary of such insurance.
Likewise, LEASEE must insure the equipment against civil responsibility for
physical damages to third parties and their properties resulting from the
equipment's operation for an amount not lower than the value recommended for
that type of equipment. It is understood that LEASEE is and shall keep on being
the sole responsible for damages to any third party resulting from the
equipment's operation. LEASEE agrees to pay premiums within a period of ten (10)
days following the date of the insurance contracts or its renewal.
PARAGRAPH ONE. LEASEE authorizes XXXXXX, without any obligation or
responsibility by XXXXXX, to contract -on LEASEE'S account- all insurance or
renewal and/or pay the respective insurance premiums with the purpose of keeping
all policies which protect the equipment in full force and effect.
In case XXXXXX pays the insurance premiums on account of LEASEE, LEASEE agrees
to pay XXXXXX, within a period of two days following receipt of invoice, the
amount of money paid on its behalf. Failure to comply with any of the
obligations hereby assumed shall be a reason for XXXXXX to terminate this
Contract with all consequences provided in clause twenty-six.
PARAGRAPH TWO. Any damage/loss of god, which is total or partial, shall not
suspend or interrupt the leasing, nor shall it change terms' expiration.
SIXTEEN. LEASEE'S LIABILITY. LEASEE shall be responsible for deterioration
and/or loss of the equipment, for whatever reasons even if it is a force majeure
event. In any event of deterioration or loss LEASEE shall immediately notify
XXXXXX, and, upon LESOR'S choice, it shall do any of the following:
1- Authorize LEASEE to recover the equipment -on its own account- and keep it
in good condition of operation according to XXXXXX'X criteria, within a
period indicated by XXXXXX. It is understood that repairs can only be made
by the manufacturers of the equipment or by its representatives in the
country, unless XXXXXX, for special reasons, authorizes by written
notification its repair in other conditions. The parts shall be technically
adapted and, in any way, its adaptation shall mean an original change to
the leased equipment.
2- Accept that LEASEE, on its own account, replaces the equipment within a
term specified by XXXXXX for another equipment with similar presentation
conditions, keeping its initial operation to its satisfaction. In any case,
the new equipment shall immediately be subject to this new leasing
contract.
3- Enforce payment by LEASEE to XXXXXX of an amount resulting from multiplying
the amount of the installment fee by the number of installments to be paid
from the moment the damage/loss occurred until the expiration date of the
Contract.
SEVENTEEN. PRESERVATION AND MAINTENANCE. The leased equipment shall only be used
by LEASEE and its personnel, which agrees, on its own account and risk, to
assume all expenses required to preserve the leased property and keep it in
perfect conditions, except for the normal wear due to appropriate usage.
The leased equipment shall be used according to its original purpose and kept in
good condition. Supplier/manufacturer shall establish the normal use of the
equipment, and LEASEE accepts to enter into maintenance contracts with such
supplier or manufacturer or person authorized by them, to contribute to the
preservation and proper performance of the equipment.
Additionally, LEASEE agrees to comply with all laws, pacts, decrees,
resolutions, regulations, or any other regulatory disposition, or a disposition
related to the equipment's usage and maintenance, even if these standards are
international, national or municipal, or if they are issued by the country in
which the equipment is located.
EIGHTEEN. INSPECTION RIGHT. XXXXXX reserves the right to inspect the equipment
at any time, to confirm whether performance and maintenance conditions are
satisfactory.
To that end, and with no implied obligation for XXXXXX, XXXXXX may visit
LEASEE'S facilities, or the place where the equipment is located as many times
as it deems necessary, and recommend in writing any steps required or convenient
for its proper operation which LEASEE must put into action immediately.
In case LEASEE does not follow the steps ordered by XXXXXX, XXXXXX may terminate
this Contract, and it shall have the right to demand, besides immediate return
of the equipment, indemnification as defined under clause twenty-seven.
XXXXXX shall not be liable for any cost, expense or ceasing profit arising from
inspection visits or recommendations, unless the leased equipment is directly
damaged by the person authorized by XXXXXX to visit the facilities.
NINETEEN. EQUIPMENT ASSIGNABILITY AND SUBLEASE. LEASEE shall not sublease the
equipment or give it to any third party for its exploitation under any
contractual agreement, or transfer this contract in any way except by means of a
previous, expressed, written authorization by XXXXXX. But even if such
authorization exists, LEASEE shall keep being responsible with the subsidiary or
its substitute with respect to XXXXXX.
TWENTY. CONTRACT ASSIGNABILITY. All rights under this Contract may be assigned
in whole or in part by XXXXXX and/or given as credit guarantee. LEASEE
expressly accepts from now on assignment and/or pledge of this Contract and
binds itself to comply with the assignment and/or pledge terms once the
extrajudicial notification of such assignment and/or pledge is received.
TWENTY-ONE. WAIVER TO WITHHOLD. LEASEE hereby waives withholding of the leased
equipment for any reason whatsoever.
TWENTY-TWO. ADVANCED PAYMENT. Any advance payment, option deposit or
extraordinary disbursement made by XXXXXX before the date of initiation of the
Contract shall be on LEASEE'S account and shall cause interests at Libor of the
week, plus two percent (2%) month expired.
TWENTY-THREE. OPERATION LICENSES AND PERMITS. LEASEE agrees that it shall obtain
all permits and licenses required by the Colombian law for the operation of the
property under this Contract.
TWENTY-FOUR. TAXES AND FINES. All taxes encumbered by the equipment under this
Contract, as well as all fines imposed as a result of its irregular or illegal
operation, shall be exclusively at LEASEE'S expense.
If new taxes are established and they encumber or increase present tributary
costs that XXXXXX hereby bears, LEASEE agrees hereafter to exclusively assume
these major taxes and pay them on behalf of XXXXXX.
TWENTY-FIVE. LOCATION OF PROPERTY. The property being the subject matter of this
Contract shall remain within the territory of the Republic of Colombia. LEASEE
accepts to notify XXXXXX the new location of such property in writing, within a
period of three (3) days following such change of location.
TWENTY-SIX. TERMINATION. This Contract is deemed terminated for the following
reasons:
1- Mutual consent between the parties hereto.
2- Expiration of the agreed term.
3- Unilateral decision by XXXXXX made at any time before expiration, with no
legal declaration and demanding return of the equipment by LEASEE in any of
the defaults in the performance of obligations under this Contract, but
specially in the following:
- Arrears or delays in paying installment fees and custom duties for one
or more periods.
- Misuse of the leased equipment which misleads its original function or
may cause, to XXXXXX'X opinion, deterioration different than that of its
usage technique.
- Failure to notify XXXXXX in case of damages or destruction of the leased
equipment.
- Failure to recognize XXXXXX'X instructions with respect to repairs
needed by the leased equipment during the term of this Contract for any
reason whatsoever.
- Intention to encumber the leased equipment by means of any type of
guarantees or impositions, and whenever it is affected by procedural
actions due to strange facts to XXXXXX.
- Sublease or give to any third party for its exploitation under any
contractual agreement or transfer this Contract without the expressed,
previous and written authorization by XXXXXX.
- Not protecting the property being the subject matter of this Contract
with insurance companies in the terms provided hereunder.
4- All other causes provided by law.
5- Declaration of bankruptcy by LEASEE or because of a suit started against
LEASEE by judicial means involving the property that is the subject matter
of this Contract. In these events XXXXXX may charge the missing installment
fees, except if creditors of LEASEE propose its substitution granting
guarantees to XXXXXX'X satisfaction.
6. Loss of the equipment or damages affecting its normal operation.
7. LEASEE'S dissolution.
TWENTY-SEVEN. SANCTION FOR FAILURE TO COMPLY. Whenever XXXXXX is obliged to
terminate the Contract under the above clause, LEASEE shall pay to XXXXXX as a
fine, besides the amounts owed due to its failure to comply -according to Clause
Thirteen-, an amount equivalent to the leasing installments agreed on that are
not yet covered or caused. By paying this fine, the obligation to return the
leased equipment shall not be construed as unenforceable, nor shall XXXXXX loose
its right to
demand compensation for damages which may arise from failure by LEASEE to comply
with its obligations.
TWENTY-EIGHT. RETURN OF THE EQUIPMENT. Upon termination of this Contract due to
reasons different than expiration, the leased equipment shall be returned to
XXXXXX in the same condition of proper operation in which LEASEE received it,
except for natural wear derived from its proper usage.
LEASEE shall return the leased equipment within a period of five (5) days
following termination. If LEASEE fails to return the equipment within this
period of time, it shall incur in a daily fine in favor of XXXXXX on the amount
provided in this Contract. By paying this fine, the obligation to return the
leased equipment shall not be construed as unenforceable. Return of the
equipment shall be made at the location designated by XXXXXX and at LEASEE'S
expense including disassembling, transfer and installation charges.
TWENTY-NINE. ACQUISITION OPTION. Subject to the terms of this Contract and if it
has been duly performed by LEASEE, XXXXXX grants LEASEE the irrevocable option
to acquire -once the Contract expires-, possession of the property which is the
subject of this Contract, under the following dispositions:
1- PRICE: XXX XXXXXXX XXXXXX-XXXXX XXXXXXXX XXXXXX XXXXXX AMERICAN DOLLARS
(US$197,000.00).
2- TERMS OF PAYMENT: PAYABLE UPON EXPIRATION OF LEASE (12 YEARS).
THIRTY. INTERPRETATION. This Contract shall be ruled, for interpretation
purposes, as follows:
1- In accordance with the clauses herein provided.
2- In accordance with the laws of the United States of America ruling the
Financing Leasing Contract. However, with respect to recovering the leased
property, the Laws of Colombia shall apply.
3- In case there is no special standard ruling a subject, the dispositions of
the UNIDROIT Convention regarding international leasing (Ottawa, Canada,
May 26th, 1988) shall apply, by virtue of article 7 of the Commerce Code of
the Republic of Colombia.
THIRTY-ONE. ARBITRATION. Any disputes arising out of this Contract shall be
finally settled by an Arbitration Court consisting of three (3) arbitrators; one
appointed by each one of the parties hereto and the other appointed by the
International Chamber of Commerce, National Committee of Colombia-New York. This
judgement shall be in law. The place for the Arbitration shall be Santafe de
Bogota. The official language used during the arbitration process shall be
Spanish. The process of appointing arbitrators as well as the arbitration
process itself shall be governed by the provisions of the Settlement and
Arbitration Regulation of the International Chamber of Commerce.
THIRTY-TWO. ACTIONS AND PROCEDURES. This Contract's original document is
executable with respect to its expressed obligations, whenever they are
enforceable under the Contract and in accordance with the Colombian law.
The first copy shall be the base for filing effects, in case it is required,
given the nature and legality of the property that is the subject matter of this
Contract.
The second copy of this Contract shall be used for exercising the actions
started by XXXXXX for the return of the possession of the leased property.
THIRTY-THREE. NOTICE. All notices or notifications required to be given to
XXXXXX hereunder, shall be sent by registered airmail to the address indicated
by XXXXXX.
On the other hand, any notice or notification required to be given to LEASEE
hereunder, shall be sent by registered airmail to: Xxxxx 00. Xx. 0-00 - Xxxxxxx
- Xxxxx xxx Xxxxx - Xxxxxxxx.
Consequently, this Contract is subscribed and legalized in the municipality of
Cartago, on July 28/th/, 1997.
GLOBAL TELECOMMUNICATIONS OPERATIONS, INC.
XXXXXX
Xxxxxx Xxxxxx Xxxxxxxxx
I.D. No. 80.409.281, issued in Usaquen
Attorney-in-fact
(signature)
BUGATEL S.A. E.S.P.
LEASEE
Xxxxx Xxxxxxx Xxxxxxxx O.
I.D. No. 7.506.436, issued in Armenia
General Manager and Legal Representative (Substitute)
(signature)
