LEASE AGREEMENT
This LEASE AGREEMENT, is effective on June 27, 1997 between
TELECOMMUNICATIONS FINANCE GROUP (hereinafter "Lessor"), and PICK COMMUNICATIONS
CORP., a Nevada corporation with its principal office located at 000 Xxxxx 00
X., 0xx xxxxx, Xxxxx, XX 00000, (hereinafter "Lessee").
1. Lease.
Lessor, subject to the conditions set forth in Section 25 hereof,
agrees to lease to Lessee and Lessee agrees to lease from Lessor hereunder,
those items of personal property (the "equipment") which are described on
Schedule I of Exhibit A hereto and amendments to Schedule 1. Lessee agrees to
execute and deliver to Lessor a certificate of delivery and acceptance in
substantively the form of Exhibit A hereto (a "Delivery Certificate")
immediately after Turnover of the equipment, and such execution shall constitute
Lessee's irrevocable acceptance of such items of equipment for all purposes of
this Lease. The Delivery Certificate shall constitute a part of this Lease to
the same extent as if the provisions thereof were set forth herein.
2. Definitions.
"Amortization Deductions" as defined in Section 11(b)(i) hereof.
"Appraisal Procedure" shall mean the following procedure for
determining the Fair Market Sale Value of any item of equipment. If
either Lessor or Lessee shall request by notice (the "Appraisal
Request") to the other that such value be determined by the Appraisal
Procedure, (i) Lessor and Lessee shall, within 15 days after the
Appraisal Request, appoint an independent appraiser mutually
satisfactory to them, or (ii) if the parties are unable to agree on a
mutually acceptable appraiser within such time, Lessor and Lessee shall
each appoint one independent appraiser (provided that if either party
hereto fails to notify the other party hereto of the identity of the
independent appraiser chosen by it within 30 days after the Appraisal
Request, the determination of such value shall be made by the
independent appraiser chosen by such other party), and (iii) if such
appraisers cannot agree on such value within 20 days after their
appointment and if one appraisal is not within 5% of the other
appraisal, Lessor and Lessee shall choose a third independent appraiser
mutually satisfactory to them (or, if they fail to agree upon a third
appraiser within 25 days after the appointment of the first two
appraisers, such third independent appraiser shall within 20 days
thereafter be appointed by the American Arbitration Association), and
such value shall be determined by such third independent appraiser
within 20 days after his appointment, after consultation with the other
two independent appraisers. If the first two appraisals are within 5%
of each other, than the average of the two appraisals shall be the Fair
Market Sale Value. The fees and expenses of all appraisers shall be
paid by Lessee.
"Business Day" shall mean a day other than a Saturday, Sunday or legal
holiday under the laws of the State of Florida.
"Code" shall mean the Internal Revenue Code of 1954, as amended, or any
comparable successor law.
"Commencement Date" as defined in Section 3 hereof.
"Default" shall mean any event or condition which after the giving of
notice or lapse of time or both would become an Event of Default.
"Delivery Certificate" as defined in Section 1 hereof.
"Equipment" as defined in Section 1 hereof.
"Event of Default" as defined in Section 18 hereof.
"Event of Loss" shall mean, with respect to any item of equipment, the
actual or constructive total loss of such item of equipment or the use
thereof, due to theft, destruction, damage beyond repair or rendition
thereof permanently unfit for normal use from any reason whatsoever, or
the condemnation, confiscation or seizure of, or requisition of title
to or use of, such item of equipment.
"Fair Market Sale Value" shall, at any time with respect to any item of
equipment, be equal to the sale value of such item of equipment which
would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and
willing buyer-user (other than a lessee currently in possession or a
used equipment or scrap dealer). For purposes of Section 7(b) hereof
Fair Market Sale Value shall be determined by (i) an independent
appraiser (at Lessee's expense) selected by Lessor or (ii) by the
Appraisal Procedure if the Appraisal Request is made at least 90 days
(but not more than 360 days) prior to the termination or expiration of
the Lease Term, as the case may be, which determination shall be made
(a) without deduction for any costs or expenses of dismantling or
removal; and (b) on the assumption that such item of equipment is free
and clear of all Liens and is in the condition and repair in which it
is required to be returned pursuant to Section 7(a) hereof. For
purposes of Section 19(c) hereof Fair Market sale Value shall be
determined (at Lessee's expense) by an independent appraiser selected
by Lessor, on an "as-is, where-is" basis, without regard to the
provisions of clauses (a) and (b) above; provided that if Lessor shall
have sold any items of equipment pursuant to Section 19(b) hereof prior
to giving the notice referred to in Section 19(c) hereof, Fair Market
Sale Value of such item of equipment shall be the net proceeds of such
sale after deduction of all costs and expenses incurred by Lessor in
connection therewith; provided further, that if for any reason Lessor
is not able to obtain possession of any item of equipment pursuant to
Section 19(a) hereof, the Fair Market Sale Value of such item of
equipment shall be zero.
"Imposition" as defined in Section 11(a) hereof.
-1-
"Indemnitee" as defined in Section 17 hereof.
"Late Charge Rate" shall mean an interest rate per annum equal to the
higher of two percent (2%) over the Reference Rate or eighteen percent
(18%), but not to exceed the highest rate permitted by applicable law.
"Lease" and the terms "hereof", "herein", "hereto" and "hereunder",
when used in this Lease Agreement, shall mean and include this Lease
Agreement, Exhibits and the Delivery Certificate hereto as the same may
from time to time be amended, modified or supplemented.
"Lease Term" shall mean, with respect to any item of equipment, the
term of the lease of such item of equipment hereunder specified in
Section 3 hereof.
"Lessee" as defined in the introductory paragraph to this Lease.
"Lessor" as defined in the introductory paragraph of this Lease.
"Lessor's Value" shall mean, with respect to any item of equipment and
installation if applicable, the total amount set forth in Schedule 1 of
Exhibit A hereto.
"Lessor's Liens" shall mean (i) any mortgage, pledge, lien, security
interest, charge, encumbrance, financing statement, title retention or
any other right or claim of any person claiming through or under
Lessor, not based upon or relating to ownership of the equipment or the
lease thereof hereunder and (ii) any mortgage, pledge, lien, security
interest, charge, encumbrance, financing statement, title retention or
any other right or claim of Owner (other than Lessor) claiming through
or under Lessor in connection with the transactions described in
Section 21(b) hereof.
"Liens" shall mean any mortgage, pledge, lien, security interest,
charge, encumbrance, financing statement, title retention or any other
right or claim of any person, other than any Lessor's Lien.
"Loss Payment Date" shall mean with respect to any item of equipment
the date on which payment, as described in Section 16 (b) hereof, is
made to the Lessor by the Lessee as the result of an Event of Loss with
respect to such item. The Loss Payment Date shall be within ninety (90)
days of the said Event of Loss.
"Owner" shall mean the entity or person having ownership interest to
the equipment as contemplated by the provisions of Section 21(b) hereof
and may be a person other than Lessor.
"Owner's Economies" shall mean the after-tax yield and periodic
after-tax cash flow anticipated by Owner as of the date of this Lease,
in connection with the transactions contemplated by this Lease as
determined by Owner unless Lessor shall have transferred its interest
in the equipment to another person as contemplated by the provisions of
Section 21(b) hereof in which case "Owner's Economics" shall mean the
after-tax yield and periodic after-tax cash flow anticipated by such
person as of the date of the lease between such person and Lessor
contemplated by said provisions, in connection with the transactions
contemplated by such lease as determined by such person.
"Recovery Deductions" as defined in Section 11(b)(i) hereof.
"Reference Rate" shall mean the rate of interest publicly announced by
Citibank, NA. in New York, New York from time to time as its prime
rate.
The reference rate is not intended to be the lowest rate of interest
charged by Citibank, N.A. in connection with extensions of credit to
debtors. The Reference Rate shall be determined at the close of
business on the 15th day of each calendar month (if the 15th day is not
a Business Day, then on the first preceding Business Day) and shall
become effective as of the first day of the calendar month succeeding
such determination and shall continue in effect to, and including, the
last day of said calendar month.
"Rent Payment Date" shall mean each date on which an installment of
rent is due and payable pursuant to Section 5(a) hereof.
"Stipulated Loss Value" shall mean, with respect to any item of
equipment, the amount determined by multiplying the Lessor's Value of
such item of equipment by the percentage set forth in Schedule A hereto
opposite the applicable Rent Payment Date; provided that for purposes
of Sections 16 (b) and 19 (e) hereof any determination of Stipulated
Loss Value as of a date occurring after the final Rent Payment Date
with respect to such item of equipment, shall be made as of such final
Rent Payment Date.
"Tax Benefits" shall mean the right to claim such deductions, credits,
and other benefits as are provided by the Code to an owner of property,
including the Recovery Deductions and Amortization Deductions.
"Turnover" shall mean that point in time when the equipment
installation personnel complete testing of the equipment, or when the
equipment is placed into service, whichever first occurs.
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles.
-2-
3. Lease Term.
The term of the lease of the equipment hereunder shall commence on the
Commencement Date specified in the Delivery Certificate ("Commencement Date")
and, unless earlier terminated pursuant to the provisions hereof or at law or
equity shall continue for a term of sixty (60) months from such Commencement
Date. The Commencement Date specified in the Delivery Certificate shall be the
date on which Turnover Occurs at a site provided by Lessee in accordance with
the provisions of Section 4 hereof.
4. Installation.
Lessor shall arrange for installation of the equipment, the cost of
which installation shall be deemed to be part of Lessor's Value. Exhibit A
hereto shall indicate whether such cost is included or excluded from the monthly
rent payments due in accordance with Section 5(a) hereof. If excluded from such
monthly rent payments, Lessor shall separately invoice Lessee for such
installation upon completion thereof and Lessee shall pay such invoice within
thirty (30) days from the date thereof. Lessee shall be obligated to timely
provide a suitable site for the installation of the equipment in accordance with
the equipment manufacturer's practices attached hereto as Exhibit C. Lessee
shall be responsible for compliance with environmental requirements and central
office grounding procedures specified in Exhibit C hereto and for providing
adequate space, lighting heating, air-conditioning and A/C power at the
installation site. Unavailability of Lessee furnished facilities shall be cause
for adjustments to the installation price set forth in Schedule I of Exhibit A
hereto.
5. Rent: Unconditional Obligations.
(a) Lessee agrees to pay to Lessor, at the address specified in Section
24 hereof or at such other address as Lessor may specify, rent for the initial
equipment at a rate not to exceed $22.244 per $1,000 of the total Lessor's Value
of such items of equipment, as set forth in Schedule 1 of Exhibit A dated June
27, 1997, (plus applicable sales or use taxes) per month, in sixty (60)
consecutive monthly installments, with the first installment of rent being due
on the Commencement Date unless the Commencement Date is other than the first
day of a calendar month, in which event the first installment of rent shall be
due on the first day of the month following the Commencement Date, and
succeeding installments being due on the same date of each month thereafter. In
the event of any additions to the initially leased equipment, the rental rate on
any additional equipment will be the rate as shown on the Amendment to Schedule
1 of Exhibit A adding the equipment to the lease.
(b) Lessee shall also pay to Lessor, on demand, interest at the Late
Charge Rate on any installment of rent and on any other amount owing hereunder
which is not paid on its due date, for any period for which the same shall be
overdue. Each payment made under this Lease shall be applied first to the
payment of interest then owing and then to rent or other amounts owing
hereunder, interest shall be computed on the basis of a 360-day year and actual
days elapsed.
(c) This Lease is a net lease, and Lessee's obligation to pay all rent
and all other amounts payable hereunder is ABSOLUTE AND UNCONDITIONAL under any
and all circumstances and shall not be affected by any circumstances of any
character whatsoever, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense, abatement or reduction or any right which
Lessee may have against Lessor, the manufacturer or supplier of any of the
equipment or anyone else for any reason whatsoever; (ii) any defect in the
title, condition, design, or operation of, or lack of fitness for use of, or any
damage to, or loss of all or any part of the equipment from any cause
whatsoever; (iii) the existence of any Liens with respect to the equipment; (iv)
the invalidity, unenforceability or disaffirmance of this Lease or any other
document related hereto; or (v) the prohibition of or interference with the use
or possession by Lessee of all or any part of the equipment, for any reason
whatsoever, including without limitation, by reason of (1) claims for patent,
trademark or copyright infringement; (2) present or future governmental laws,
rules or orders; (3) the insolvency, bankruptcy or reorganization of any person;
and (4) any other cause whether similar or dissimilar to the foregoing, any
present or future law to the contrary notwithstanding. Lessee hereby waives, to
the extent permitted by applicable law, any and all rights which it may now have
or which may at any time hereafter be conferred upon it, by statute or
otherwise, to terminate, cancel, quit or surrender the lease of any equipment.
If for any reason whatsoever this Lease or any Supplement, other than pursuant
to Section 16 (b) hereof, shall be terminated in whole or in full by operation
of law or otherwise, Lessee will nonetheless pay to Lessor an amount equal to
each installment of rent at the time such installment would have become due and
payable in accordance with the terms hereof. Each payment of rent or other
amount paid by Lessee hereunder shall be final and Lessee will not seek to
recover all or any part of such payment for Lessor for any reason whatsoever.
6. WARRANTY DISCLAIMER; ASSIGNMENT OF WARRANTIES.
(a) LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE AND LESSEE
HEREBY EXPRESSLY WAIVES ANY WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED
AS TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, FREEDOM
FROM INTERFERENCE OR INFRINGEMENT OR THE LIKE OR AS TO THE TITLE TO OR LESSOR'S
OR LESSEE'S INTEREST IN THE EQUIPMENT OR AS TO ANY OTHER MATTER RELATING TO THE
EQUIPMENT OR ANY PART THEREOF.
LESSEE CONFIRMS THAT IT HAS SELECTED THE EQUIPMENT AND EACH PART
THEREOF ON THE BASIS OF ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON
ANY STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY LESSOR.
LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY AS TO THE ACCOUNTING TREATMENT TO BE ACCORDED TO THE
TRANSACTIONS CONTEMPLATED BY THIS LEASE OR AS TO ANY TAX CONSEQUENCES AND/OR TAX
TREATMENT THEREOF.
-3-
(b) LESSOR HERE BY ASSIGNS TO LESSEE SUCH RIGHTS AS LESSOR MAY HAVE TO
EXTENT LESSOR MAY VALIDLY ASSIGN SUCH RIGHTS UNDER ALL MANUFACTURERS' AND
SUPPLIERS' WARRANTIES WITH RESPECT TO THE EQUIPMENT PROVIDED, HOWEVER, THAT THE
FOREGOING RIGHTS SHALL AUTOMATICALLY REVERT TO LESSOR UPON THE OCCURRENCE AND
DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT THEREUNDER OR UPON THE RETURN OF
THE EQUIPMENT TO LESSOR. LESSEE AGREES TO SETTLE ALL CLAIMS WITH RESPECT TO THE
EQUIPMENT DIRECTLY WITH THE MANUFACTURERS OR SUPPLIERS THEREOF AND TO GIVE
LESSOR PROMPT NOTICE OF ANY SUCH SETTLEMENT AND THE DETAILS OF SUCH SETTLEMENT.
HOWEVER IN THE EVENT ANY WARRANTIES ARE NOT ASSIGNABLE THE LESSOR AGREES TO ACT
ON BEHALF OF THE LESSEE IN SETTLING CLAIMS ARISING UNDER THE WARRANTY WITH THE
MANUFACTURER OR SUPPLIER.
(c) IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS OF REVENUE OR PROFITS,
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR FROM ANY
CAUSE EVEN IF LESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Disposition of Equipment.
(a) Return.
Lessee shall, upon the expiration or earlier termination of the Lease
Term of each item of equipment, subject to paragraph (b) below, return such item
of equipment to lessor at such place within the continental United States of
America as Lessor shall designate in writing to Lessee. Until such item of
equipment is returned to Lessor pursuant to the provisions of this Section, all
of the provisions of this lease with respect thereto shall continue in full
force and effect. Lessee shall pay all the costs and expenses in connection with
or incidental to the return of the equipment including, without limitation, the
cost of removing, assembling, packing, insuring and transporting the equipment.
At the time of such return, the equipment shall be in the condition and repair
required to be maintained by Section 12 hereof and free and clear of all Liens.
(b) Purchase Option.
So long as no Default or Event of Default shall have occurred and be
continuing Lessee may, by written notice given to Lessor at least 120 days (but
not more than 360 days) prior to the expiration date of the lease Term of any
item of equipment (which notice shall be irrevocable), elect to purchase such
item of equipment on such expiration date for a cash purchase price equal to the
Fair Market Sale Value of such item of equipment determined as of such
expiration date, plus an amount equal to all taxes (other than income taxes on
any gain on such sale), costs and expenses (including legal fees and expenses)
incurred or paid by lessor in connection with such sale. Upon payment by Lessee
of such purchase price, and of all other amounts then due and payable by Lessee,
Lessor shall transfer title, if any, to such items of equipment except computer
software to Lessee on an "as-is, where-is" basis, without recourse and without
representation or warranty of any kind, express or implied, other than a
representation and warranty that such item of equipment is free and clear of any
Lessor's Liens.
8. Representation and Warranties.
In order to induce Lessor to enter into this Lease and to lease the
equipment to Lessee hereunder, Lessee represents and warrants that:
(a) Organization.
Lessee is duly organized, validly existing and in good standing under
the laws of the State of Nevada and is duly qualified to do business and is in
good standing in the State in which the equipment will be located.
(b) Power and Authority.
Lessee has full power, authority and legal right to execute, deliver
and perform this Lease, and the execution, delivery and performance hereof has
been duly authorized by Lessee's governing body or officer(s).
(c) Enforceability.
This Lease has been duly executed and delivered by Lessee and
constitutes a legal, valid and binding obligation of Lessee enforceable in
accordance with its terms.
(d) Consents and Permits.
The execution, delivery and performance of this lease does not require
any approval or consent of any trustee, shareholder, partner, sole proprietor,
or holders of any indebtedness or obligations of Lessee, and will not contravene
any law, regulation, judgment or decree applicable to Lessee, or the certificate
of partnership or incorporation or by-laws of lessee, or contravene the
provisions of, or constitute a default under, or result in the creation of any
Lien upon any property of lessee under any mortgage, instrument or other
agreement to which lessee is a party or by which Lessee or its assets may be
bound or affected; and no authorization, approval, license, filing or
registration with any court or governmental agency or instrumentality is
necessary in connection with the execution, delivery, performance, validity and
enforceability of this Lease,
-4-
(e) Financial Condition of the Lessee.
The financial statements and any other financial information of Lessee
heretofore furnished to Lessor are complete and correct and fairly present the
financial condition of Lessee and the results of its operations for the
respective periods covered thereby, there are no known contingent liabilities or
liabilities for taxes of Lessee which are not reflected in said financial
statements and since the date thereof, there has been no material adverse change
in such financial condition or operations.
(f) No Litigation.
There is no action, suit, investigation or proceeding by or before any
court, arbitrator, administrative agency or other governmental authority pending
or threatened against or affecting Lessee (A) which involves thc transactions
contemplated by this Lease or the equipment: or (B) which, if adversely
determined, could have a material adverse effect on the financial condition,
business or operations of Lessee.
(g) United States Source Income.
No items of equipment shall be used in a way that results in the
creation of an item of income to Lessor, the source of which for Federal Income
Tax purposes is without the United States.
9. Liens.
Lessee will not directly or indirectly create, incur, assume, suffer,
or permit to exist any Lien on or with respect to the equipment.
10. Insurance.
Lessee shall maintain at all times on the equipment, at its expense,
property damage, direct damage and liability insurance in such amounts, against
such risks in such form and with such insurers as shall be reasonably
satisfactory to Lessor and any other Owner; provided, that the amount of direct
damage insurance shall not on any date be less than the greater of the full
replacement value or the Stipulated Loss Value of the equipment as of such date.
Each insurance policy will, among other things, name Lessor and any other Owner
as an additional insured or as loss payee (as the case may be) as their
interests may appear, require that the insurer give Lessor and any such Owner at
least thirty (30) days prior written notice of any alteration in or cancellation
of the terms of such policy, and require that the interest of Lessor and any
such Owner continue to be insured regardless of any breach of or violation by
Lessee of any warranties, declarations or conditions contained in such insurance
policy, Lessee shall furnish to Lessor and such Owner a certificate or other
evidence satisfactory to Lessor that such insurance coverage is in effect
provided, however, that Lessor and such Owner shall be under no duty to
ascertain the existence or adequacy of such insurance.
11. Taxes.
(a) General Tax Provisions.
Lessee shall timely pay, and shall indemnify and hold Lessor harmless
from and against, all fees, taxes (whether sales, use, excise, personal property
or other taxes), imposts, duties, withholdings, assessments and other
governmental charges of whatever kind or character, however designated (together
with any penalties, fines or interest thereon), all of the foregoing being
herein collectively called "Impositions", which are at any time levied or
imposed against Lessor, Lessee, this Lease, the equipment or any part thereof by
any Federal, State, or Local Government or taxing authority in the United States
or by any foreign government or any subdivision or taxing authority thereof
upon, with respect to, as a result of or measured by (i) the equipment (or any
part thereof), or this Lease or the interests of the Lessor therein; or (ii) the
purchase, ownership, delivery, leasing, possession, maintenance, use, operation,
return, sale or other disposition of the equipment or any part thereof; or (iii)
the rentals, receipts or earnings payable under this Lease or otherwise arising
from the equipment or any part thereof; excluding, however, taxes based on or
measured by the net income of Lessor that are imposed by (1) the United States
of America, or (2) the State of Florida or any political subdivision of the
State of Florida, or (3) any other State of the United States of America or any
political subdivision of any such State in which Lessor is subject to
Impositions as the result (whether solely or in part) of business or
transactions unrelated to this Lease. In case any report or return is required
to be filed with respect to any obligation of Lessee under this Section or
arising out of this Section, Lessee will notify Lessor of such requirement and
make such report or return in such manner as shall be satisfactory to Lessor;
provided, that the payment of any use taxes shall be made in such manner as
specified by Lessor in writing to Lessee; or (iv) the provisions of this Section
shall survive the expiration or earlier termination of this Lease.
(b) Special Tax Provisions.
(i) The Owner of the items of equipment, shall be entitled to
take into account in computing its Federal income tax liability, Current Tax
Rate and such deductions, credits, and other benefits as are provided by the
Code to an owner of property, including without limitation:
(A) Recovery deductions ("Recovery Deductions") under Section
168 (a) of the Code for each item of equipment in an amount determined,
commencing with the 1997 taxable year, by multiplying the Owner's Cost of such
item of equipment by the percentages applicable under Section 168 (b) of the
Code with respect to "(5)-year property" within the meaning of Section 168 (c)
(2) of the Code:
(B) Amortization of expenses ("Amortization Deductions") paid
or to be paid by Owner in connection with this lease at a rate no less rapid
than straight line over the Lease Term.
(ii) For the purposes of this Subsection 11 (b) only, the term
"Owner" shall include the "common parent" and all other corporations included in
the affiliated group, within the meaning of Section 1504 of the Code (or any
other successor section thereto), of which Owner is or becomes a member.
-5-
12. Compliance with Laws; Operation and Maintenance.
(a) Lessee will use the equipment in a careful and proper manner, will
comply with and conform to all governmental laws, rules and regulations relating
thereto, and will cause the equipment to be operated in accordance with the
manufacturer's or supplier's instructions or manuals.
(b) Lessee will, at its own expense, keep and maintain the equipment in
good repair, condition and working order and furnish all parts, replacements,
mechanisms, devices and servicing required therefor so that the value, condition
and operating efficiency therefor will at all times be maintained and preserved,
reasonable wear and tear excepted. Lessee will, at its own expense, perform all
required acts necessary to maintain any manufacturer's warranties and guarantees
respecting the equipment. All such repairs, parts, mechanisms, devices and
replacements shall immediately. without further act, become the property of
Lessor and part of the equipment.
(c) Lessee will not make or authorize any improvement, change, addition
or alteration to the equipment (i) if such improvement, change, addition or
alteration will impair the originally intended function or use of the equipment
or impair the value of the equipment as it existed immediately prior to such
improvement, change, addition or alteration; or (ii) if any parts installed in
or attached to or otherwise becoming a part of the equipment as a result of any
such improvement, change, addition or alteration shall not be readily removable
without damage to the equipment. Any part which is added to the equipment
without violating the provisions of the immediately preceding sentence and which
is not a replacement or substitution for any property which was a part of the
equipment, shall remain the property of Lessee and may be removed by Lessee at
any time prior to the expiration or earlier termination of the Lease Term. All
such parts shall be and remain free and clear of any Liens. Any such part which
is not so removed prior to the expiration or earlier termination of the Lease
Term shall, without further act, become the property of Lessor.
13. Inspection.
Upon prior notice, Lessor or its authorized representatives may at any
reasonable time or times inspect the equipment when it deems it necessary to
protect its interest therein.
14. Identification.
Lessee shall, at its expense, attach to each item of equipment a notice
satisfactory to Lessor disclosing Owner's ownership of such item of equipment.
15. Personal Property.
Lessee represents that the equipment shall be and at all times remain
separately identifiable personal property. Lessee shall, at its expense, take
such action (including the obtaining and recording of waivers) as may be
necessary to prevent any third party from acquiring any right to or interest in
the equipment by virtue of the equipment being deemed to be real property or a
part of real property or a part of other personal property. and if at any time
any person shall claim any such right or interest, Lessee shall, at its expense,
cause such claim to be waived in writing or otherwise eliminated to Lessor's
satisfaction within 30 days after such claim shall have first become known to
Lessee.
16. Loss or Damage.
(a) All risk of loss, theft, damage or destruction to the equipment or
any part thereof, however incurred or occasioned, shall be done by Lessee and,
unless such occurrence constitutes an Event of Loss pursuant to paragraph (b) of
this Section, Lessee shall promptly give Lessor written notice hereof and shall
promptly cause the affected part or parts of the equipment to be replaced or
restored to the condition and repair required to be maintained by Section 12
hereof.
(b) If an Event of Loss with respect to any item of equipment shall
occur Lessee shall promptly give Lessor written notice thereof, and Lessee shall
pay to Lessor as soon as it receives insurance proceeds with respect to said
Event of Loss but in any event no later than 90 days after the occurrence of
said Event of Loss an amount equal to the sum of (i) the Stipulated Loss Value
of such item of equipment computed as of the Rent Payment Date with respect to
such item of equipment on or immediately preceding the date of the occurrence of
such Event of Loss; and (ii) all rent and other amounts due and owing hereunder
for such item of equipment on or prior to the Loss Payment Date. Upon payment of
such amount to Lessor, the lease of such item of equipment hereunder shall
terminate, and Lessor will transfer within forty days to Lessee, Lessor's right,
title, if any, and interest in and to such item of equipment, on an "as-is,
where-is" basis, without recourse and without representation or warranty,
express or implied, other than a representation and warranty that such item of
equipment is free and clear of any Lessor's Liens.
(c) Any payments received at any time by Lessor or Lessee from any
insurer with respect to loss or damage to the equipment shall be applied as
follows: (i) if such payments are received with respect to an Event of Loss they
shall be paid to Lessor, but to the extent received by Lessor, they shall reduce
or discharge, as the case may be, Lessee's obligation to pay the amounts due to
Lessor under Section 16 (b) hereof with respect to such Event of Loss; or (fl)
if such payments are received with respect to any loss of or damage to the
equipment other than an Event of Loss, such payments shall. unless a Default or
Event of Default shall have occurred and be continuing, be paid over to Lessee
to reimburse Lessee for its payment of the costs and expenses incurred by Lessee
in replacing or restoring pursuant to Section 16 (a) hereof the part or parts of
the equipment which suffered such loss or damage.
-6-
17. General Indemnity.
Lessee assumes liability for, and shall indemnify, protect save and
keep harmless Lessor, the partners comprising Lessor, its and their directors,
officers, employees, agents, servants, successors and assigns (an "Indemnitee")
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses including reasonable legal
expenses, of whatsoever kind and nature, imposed on, incurred by or asserted
against any Indemnitee, in any way relating to or arising out of this Lease or
the enforcement hereof, or the manufacture, purchase, acceptance, rejection,
ownership, possession, use, selection, delivery lease, operation, condition,
sale, return or other disposition of the equipment or any part thereof
(including without limitation, latent or other defects, whether or not
discoverable by Lessee or any other person, any claim in tort whether or not for
strict liability and any claim for patent, trademark, copyright or other
intellectual property infringement); provided, however, that Lessee shall not be
required to indemnify any Indemnitee for loss or liability arising from acts or
events which occur after the equipment has been returned to Lessor in accordance
with the Lease, or for loss or liability resulting solely from the willful
misconduct or gross negligence of such Indemnitee. The provisions of this
Section shall survive the expiration or earlier termination of this Lease.
18. Events of Default.
The following events shall each constitute an event of default (herein
called "Event of Default") under this Lease:
(i) Lessee shall fail to execute and deliver to Lessor (or Lessor's
agent) the "Delivery Certificate" within twenty-four (24) hours of Turnover of
the equipment to Lessee.
(ii) Lessee shall fail to commence lease payments on the first day of
the month following the Commencement Date, or such other initiation of lease
payments as specified in Section 5 of this Lease.
(iii) Lessee shall fail to make any payment of rent or other amount
owing hereunder or otherwise after notice has been given that payment is past
due; or
(iv) Lessee shall fail to maintain the insurance required by Section 10
hereof or to perform or observe any of the covenants contained in Sections 2l or
22 hereof; or
(v) Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it with respect to this
Lease or any other agreement between Lessor and Lessee and such failure shall
continue unremedied for 30 days after the earlier of (a) the date on which
Lessee obtains, or should have obtained knowledge of such failure; or (b) the
date on which notice thereof shall be given by Lessor to Lessee; or
(vi) Any representation or warranty made by Lessee herein or in any
document, certificate or financial or other statement now or hereafter furnished
Lessor in connection with this lease shall prove at any time to have been
untrue, incomplete or misleading in any material respect as of the time when
made; or
(vii) The entry of a decree or order for relief by a court having
jurisdiction in respect of Lessee, adjudging Lessee a bankrupt or insolvent, or
approving as properly filed a petition seeking a reorganization, arrangement,
adjustment or composition of or in respect of Lessee in an involuntary
proceeding or case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of Lessee or of any substantial
part of its property, or ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 30 days; or
(viii) The institution by Lessee of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the commencement by Lessee of a voluntary
proceeding or case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the filing of any such petition or to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or other similar official) of Lessee or of
any substantial part of its property, or the making by it of any assignment for
the benefit of creditors or the admission by it of its inability to pay its
debts generally as they become due or its willingness to be adjudicated a
bankrupt or the failure of Lessee generally to pay its debts as they become due
or the taking of corporate action by Lessee in furtherance of any of the
foregoing.
19. Remedies.
If an Event of Default specified in Subsection 18(vii) or (viii) above
shall occur, then, and in any such event, Lessor shall not be obligated to
purchase or lease any of the equipment and this Lease shall, without any
declaration or other action by Lessor, be in default. If an Event of Default,
other than an Event of Default specified in Subsection 18(vii) or (viii) above,
shall occur, Lessor may, at its option, declare this Lease to be in default. At
any time after this Lease is in default under the first sentence of this Section
19, Lessor has declared this Lease to be in default under the second sentence of
this Section 19, Lessor and/or its representative may do any one or more of the
following with respect to all of the equipment or any part thereof as Lessor in
its sole discretion shall elect, to the extent permitted by applicable law then
in effect:
(a) demand that Lessee, and Lessee shall at its expense upon such
demand, return the equipment promptly to Lessor at such place in the continental
United States of America as Lessor shall specify, or lessor and/or its agents,
at its option, may with or without entry upon the premises where the equipment
is located and disable the equipment, or make the equipment inoperable
permanently or temporarily in lessor's sole discretion, and/or take immediate
possession of the equipment and remove the same by summary proceedings or
otherwise, all without liability for or by reason of such entry or taking of
possession, whether for the restoration of damage to property caused by such
taking or for disabling or otherwise;
-7-
(b) sell the equipment at public or private sale, with or without
notice, advertisement or publication, as Lessor may determine, or otherwise
dispose of, hold, use, operate, lease to others or keep idle the equipment as
Lessor in its sole discretion may determine, all free and clear of any rights of
Lessee and without any duty to account to Lessee with respect to such action or
inaction or for any proceeds with respect thereto;
(c) by written notice to Lessee specifying a payment date which shall
be not earlier than 20 days after the date of such notice, demand that Lessee
pay to Lessor, and Lessee shall pay to Lessor, on the payment date specified in
such notice, as liquidated damages for loss of a bargain and not as a penalty,
all accrued and unpaid rent for the equipment due on all Rent Payment Dates up
to and including the payment date specified in such notice plus an amount
(together with interest on such amount at the Late Charge Rate, from the payment
date specified in such notice to the date of actual payment) equal to the
excess, if any, of the Stipulated Loss Value of the equipment as of the payment
date specified in such notice over the Fair Market Sale Value of the equipment
as of such date,
(d) Lessor may exercise any other right or remedy which may be
available to it under applicable law or proceed by appropriate court action to
enforce the terms hereof or to recover damages for the breach hereof or to
rescind this Lease. Lessor is entitled to recover any amount that fully
compensates the Lessor for any damage to or loss of the Lessor's residual
interest in the equipment caused by the Lessee's default.
In the event any present value discounting is applied, the discount
rate used shall be the Federal Reserve Board Discount Rate.
In addition, Lessee shall be liable for any and all unpaid rent and
other amounts due hereunder before or during the exercise of any of the
foregoing remedies and for all reasonable legal fees and other costs and
expenses incurred by reason of the occurrence of any Event of Default or the
exercise of Lessor's remedies with respect thereto, including all reasonable
costs and expenses incurred in connection with the placing of the equipment in
the condition required by Section 12 hereof.
No remedy referred to in this Section 19 is intended to be exclusive,
but each shall be cumulative and in addition to any other remedy referred to
herein or otherwise available to Lessor at law or in equity; and the exercise or
beginning of exercise by Lessor of any one or more of such remedies shall not
preclude the simultaneous or later exercise by Lessor of any or all such other
remedies. No express or implied waiver by Lessor of an Event of Default shall in
any way be, or be construed to be, a waiver of any future or subsequent Event of
Default. To the extent permitted by applicable law, Lessee hereby waives any
rights now or hereafter conferred by statute or otherwise which may require
Lessor to sell or lease or otherwise use the equipment in mitigation of Lessor's
damages or losses or which may otherwise limit or modify any of lessor's rights
or remedies under this Lease.
20. Lessor's Right to Perform.
If Lessee fails to make any payment required to be made by it hereunder
or fails to perform or comply with any of its other agreements contained herein,
lessor may itself make such payment or perform or comply with such agreement,
and the amount of such payment and the amount of the reasonable expenses of
Lessor incurred in connection with such payment or the performance of or
compliance with such agreement, as the case may be, together with interest
thereon at the Late Charge Rate, shall be deemed to be additional rent, payable
by Lessee within 30 days of notice.
21. LOCATION; ASSIGNMENT OR SUBLEASE; TITLE TRANSFER.
(a) LESSEE WILL NOT REMOVE THE EQUIPMENT FROM THE LOCATION SPECIFIED IN
SCHEDULE 1 OF EXHIBIT A WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, SUCH
CONSENT NOT TO BE UNREASONABLY WITHHELD, EXCEPT REMOVAL OUTSIDE THE CONTINENTAL
U.S. IS NOT PERMITTED. THE EQUIPMENT SHALL AT ALL TIMES BE IN THE SOLE
POSSESSION AND CONTROL OF LESSEE AND LESSEE WILL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR, ASSIGN THIS LEASE OR ANY INTEREST HEREIN OR SUBLEASE OR
OTHERWISE TRANSFER ITS INTEREST IN ANY OF THE EQUIPMENT, AND ANY ATTEMPTED
ASSIGNMENT, SUBLEASE OR OTHER TRANSFER BY LESSEE IN VIOLATION OF THESE
PROVISIONS SHALL BE VOID.
(b) LESSOR AND LESSEE ACKNOWLEDGE THAT LESSOR (i) MAY TRANSFER ITS
INTEREST IN THE EQUIPMENT AN OWNER OTHER THAN LESSOR. LESSOR MAY
CONTEMPORANEOUSLY THEREWITH LEASE THE EQUIPMENT BACK FROM SUCH OWNER AND(i) MAY
ASSIGN THIS LEASE LESSEE HEREBY CONSENTS TO EACH OF THE ABOVE-DESCRIBED
TRANSACTIONS. FURTHER LESSEE DOES HEREBY ACKNOWLEDGE (i) THAT ANY SUCH TRANSFER
AND/OR ASSIGNMENT BY LESSOR DOES NOT MATERIALLY CHANGE LESSEE'S DUTIES AND
OBLIGATIONS HEREUNDER, (ii) THAT SUCH TRANSFER AND/OR ASSIGNMENT DOES NOT
MATERIALLY INCREASE THE BURDENS OR RIGHTS IMPOSED ON THE LESSEE, AND (iii)THAT
THE ASSIGNMENT IS PERMITTED EVEN IF THE ASSlGNMENT COULD BE DEEMED TO MATERIALLY
AFFECT THE INTEREST OF THE LESSEE.
22. Status Changes in Lessee.
Lessee will not without thirty (30) days prior written notice to
Lessor, (a) enter into arty transaction of merger or consolidation unless it is
the surviving corporation or after giving effect to such merger or consolidation
its net worth equals or exceeds that which existed prior to such merger or
consolidation; or (b) change the form of organization of its business; or (c)
change its name or its chief place of business. Lessee must obtain Lessor's
prior written concurrence before Lessee may undertake any actions to (a)
liquidate, dissolve or any such similar action of the Lessee's organization, or
(b) sell, transfer or otherwise dispose of all or any substantial part of
Lessee's assets.
-8-
23. Further Assurances; Financial Information.
(a) Lessee will, at its expense, promptly and duly execute and deliver
to Lessor such further documents and assurances and take such further action as
Lessor may from time to time reasonably request in order to establish and
protect the rights, interests and remedies created or intended to be created in
favor of Lessor hereunder, including without limitation, the execution and
ruling of Uniform Commercial Code financing statements covering the equipment
and proceeds therefrom in the jurisdictions in which the equipment is located
from time to time. To the extent permitted by applicable law, Lessee hereby
authorizes Lessor to file any such financing statements without the signature of
Lessee.
(b) Lessee will qualify to do business and remain qualified in good
standing in each jurisdiction in which the equipment is from time to time
located.
(c) Lessee will furnish to Lessor as soon as available, but in any
event not later than 90 days after the end of each fiscal year of Lessee, a
consolidated balance sheet of Lessee as at the end of such fiscal year, and
consolidated statements of income and changes in financial position of Lessee
for such fiscal year all in reasonable detail, prepared in accordance with
generally accepted accounting principles applied on a basis consistently
maintained throughout the period involved. These reports will not be disclosed
to anyone other than the Lessor and/or the Owner as provided in Section 21(b).
24. Notices.
All notices, demands and other communications hereunder shall be in
writing, and shall be deemed to have been given or made when deposited in the
United States mail, first class postage prepaid, addressed as follows or to such
other address as any of the authorized representatives of the following entities
may from time to time designate in writing to the other listed below;
Lessor: TELECOMMUNICATIONS FINANCE GROUP
000 Xxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
Lessee: PICK COMMUNICATIONS CORP.
000 Xxxxx 00 X., 0xx xxxxx
Xxxxx, XX 00000
25. Conditions Precedent:
(a) Lessor shall not be obligated to lease the items of equipment
described herein to Lessee hereunder unless;
(i) Such Uniform Commercial Code financing statements covering
equipment and proceeds therefrom and landlord and/or mortgagee waivers or
disclaimers and/or severance agreements with respect to the items of equipment
covered by this Lease as Lessor shall deem necessary or desirable in order to
perfect and protect its interests therein shall have been duly executed and
filed, at Lessee's expense, in such public offices as Lessor shall direct;
(ii) All representations and warranties of Lessee contained
herein or in any document or certificate furnished Lessor in connection herewith
shall be true and correct on and as of the date of this Lease with the same
force and effect as if made on and as of such date; no Event of Default or
Default shall be in existence on such date or shall occur as a result of the
lease by Lessee of the equipment specified in Schedule 1 of Exhibit A;
(iii) In the sole judgment of Lessor, there shall have been no
material adverse change in the financial condition or business of Lessee;
(iv) All proceedings to be taken in connection with the
transactions contemplated by this Lease, and all documents incidental thereto,
shall be satisfactory in form and substance to Lessor and its counsel;
(v) Lessor shall have received from Lessee, in form and
substance satisfactory to it, such other documents and information as lessor
shall reasonably request;
(vi) All legal matters in connection with the transactions
contemplated by this Lease shall be satisfactory to Lessor's counsel; and
(vii) No Change in Tax Law, which in the sole judgment of
Lessor would adversely affect Lessor's Economics, shall have occurred or shall
appear, in Lessor's good faith judgment. to be imminent.
26. Software License.
Reference is made to the form of Software Product License Agreement
attached hereto as Exhibit B (the "License Document'). Lessor has arranged for
the equipment manufacturer to grant Lessee a license to use the Software as
defined in the License Document in conjunction with the equipment leased
hereunder in accordance with the terms of the License Document. The original
license fee is contained in the lease rate. To avail itself of the license
grant, Lessee must execute the License Document, upon Commencement of the Lease.
"Buyer" and "Licensee" as used in the License Document are synonymous with
Lessee.
-9-
27. LIMITATION OF LIABILITY.
LESSOR SHALL NOT BE LIABLE FOR LOST PROFITS OR REVENUE, SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE OR FROM
ANY CAUSE WHETHER BASED IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR OTHER
LEGAL THEORY EVEN IF LESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LESSEE HEREBY AGREES THAT LESSOR WILL NOT BE LIABLE FOR ANY LOST PROFITS OR
REVENUE OR FOR ANY CLAIM OR DEMAND AGAINST LESSEE BY ANY OTHER PARTY.
28. Miscellaneous.
(a) Any provision of this Lease which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction. To the extent permitted by applicable law, Lessee hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
(b) No terms or provisions of this Lease may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which the enforcement of the change, waiver, discharge or
termination is sought. No delay or failure on the part of Lessor to exercise any
power or right hereunder shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise of any
power or right preclude any other or further exercise thereof, or the exercise
of any other power or right. After the occurrence of any Default or Event of
Default, the acceptance by Lessor of any payment of rent or other sum owed by
Lessee pursuant hereto shall not constitute a waiver by Lessor of such Default
or Event of Default, regardless of Lessor's knowledge or lack of knowledge
thereof at the time of acceptance of any such payment, and shall not constitute
a reinstatement of this Lease, if this Lease shall have been declared in default
by Lessor pursuant to Section 18 hereof or otherwise, unless Lessor shall have
agreed in writing to reinstate the lease and to waive the Default or Event of
Default.
In the event Lessee tenders payment to Lessor by check or draft containing a
qualified endorsement purporting to limit or modify Lessee's liability or
obligations under this Lease, such qualified endorsement shall be of no force
and effect even if Lessor processes the check or draft for payment.
(c) This Lease with exhibits contains the full, final and exclusive
statement of the agreement between Lessor and Lessee relating to the lease of
the equipment.
(d) This Lease shall constitute an agreement of an operating lease,
and nothing herein shall be construed as conveying to Lessee any right, title or
interest in the equipment except as Lessee only.
(e) This Lease and the covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, Lessor and its successors
and assigns and Lessee and, to the extent permitted by Section 21 hereof, its
successors and assigns.
(f) The headings of the Sections are for convenience of reference
only, are not a part of this Lease and shall not be deemed to affect the meaning
or construction of any of the provisions hereof.
(g) This Lease may be executed by the parties hereto on any number of
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
(h) This Lease is deemed made and entered into in the State of
Florida and shall be governed by and construed under and in accordance with the
laws of the State of Florida as if both parties were residents of Florida.
(i) Lessee hereby irrevocably consents and agrees that any legal
action, suit, or proceeding arising out of or in any way in connection with this
lease shall be instituted or brought in the courts of the State of Florida, or
the United States Courts for the District of Florida, and by execution and
delivery of this Lease, Lessee hereby irrevocably accepts and submits to, for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of any such court, and to all proceedings in such
courts. Lessee irrevocably consents to service of any summons and/or legal
process by registered or certified United States mail, postage prepaid, to
Lessee at the address set forth in Section 24 hereof, such method of service to
constitute, in every respect, sufficient and effective service of process in any
legal action or proceeding. Nothing in this Lease shall affect the right to
service of process in any other manner permitted by law or limit the right of
Lessor to bring actions, suits or proceedings in the court of any other
jurisdiction. Lessee further agrees that final judgment against it in any such
legal action, suit or proceeding shall be conclusive and may be enforced in any
other jurisdiction, within or outside the United States of America, by suit on
the judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and the amount of the liability.
-10-
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Lease to be duly
executed as of the day and year first above written and by its signature below
Lessee expressly acknowledges that this Lease may not be modified unless done so
in a writing signed by each of the parties hereto or their successors in
interest.
PICK COMMUNICATIONS CORP. (Lessee)
By: ______________________________
(Name & Title)
Date Signed: ________, ____
TELECOMMUNICATIONS FINANCE GROUP (Lessor)
By: ______________________________
Authorized Representative
Date Signed:________, ____
-11-
