PORTIONS OF THIS EXHIBIT HAVE BEEN DELETED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER RULE 406 OF THE SECURITIES ACT OF 1933 AND THE
FREEDOM OF INFORMATION ACT
LEASE AGREEMENT
This LEASE AGREEMENT, is effective on January 10, 1990
between GPT FINANCE CORPORATION, a Delaware Corporation
("Lessor") and STARTEC, INC., a Maryland Corporation ("Lessee").
1. Lease.
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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 1 of Exhibit A
hereto. Lessee agrees to execute and deliver to Lessor a
certificate of delivery ad 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 appraiser. If the first two appraisals are within 5%
of each other, then 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.
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"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 Appraiser 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 item 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.
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"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 Cost" shall mean, with respect to any item of
Equipment, 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.
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"Owner's Economics" 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 Manufacturers Hanover Trust Company ("MHT") in New
York, New York from time to time as its reference rate.
The reference rate is not intended to be the lowest rate of
interest charged by MHT 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 Lessors
Cost 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 Section 16(b) and 19(c) 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.
(b) All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles. "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.
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3. Lease Term.
The term of the lease of Equipment hereunder shall commence
on the Commencement Date specified in the Delivery Certificate
("Commencement Date") and, unless earlier terminated pursuant to
the provision hereof, 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
Cost. 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 1 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 Equipment at a rate not to exceed [CT
REQUESTED] of the total Lessors Cost of such items of Equipment,
as set forth in Schedule 1 of Exhibit A dated January 10 ,
19 90 or as from time to time amended, (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.
(b) Lessee shall also pay to Lessor, on demand, interests
at the Late Charge Rate on any installment of rent and on any
other amount owing hereunder which is not paid within 10 days of
its due date, for any period for which the same shall be overdue.
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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 ingringement; (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 part 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 from Lessor for any
reason whatsoever.
6. 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 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.
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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, AND LESSEE ACKNOWLEDGES THAT LESSOR IS
NOT A MANUFACTURER OR VENDOR OF ANY PART OF THE EQUIPMENT.
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.
(b) Lessor hereby 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 hereunder, 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.
7. Disposition of Equipment.
(a) Return.
Lessee shall, upon the expiration 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
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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 hereunder, Lessor shall transfer title to
such items of Equipment 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 Maryland 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
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registration with any court or governmental agency or
instrumentality is necessary in connection with the execution,
delivery, performance, validity and enforceability of this Lease.
(e) Financial Condition of the Lessee.
The financial statements 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 the 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 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
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terms of such policy, and require that the interest of Lessor and
any such Owner be continued insured regardless of any breach of
or violation by Lessee of any warranties, declarations or
conditions contained in such insurance policy. At Lessor's or
such Owner's option, 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 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
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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 19 90 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.
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 his 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. 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
84
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 property of Lessor.
13. Inspection.
Upon prior notice, Lessor or its authorized representative
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 borne 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 promptly pay to Lessor as soon
85
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
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 (ii) 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 occurred 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.
17. General Indemnity.
Lessee assumes liability for, and shall indemnify, protect
save and keep harmless Lessor and its 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 an 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 for strict liability and any claim patent,
trademark or copyright 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
86
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 within 10 days 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 21 and 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 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
87
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
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;
88
(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 to 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.
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.
89
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 to an Owner other than
Lessor and contemporaneously therewith lease the Equipment back
from such Owner, and (ii) may assign this Lease to such Owner.
Lessee hereby consents to each of the above-described
transactions.
22. Status Changes in Lessee.
Lessee will not without thirty (30) days prior written
notice to Lessor, (a) enter into any 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 or dissolve or
similar action of the Lessee's organization, or (b) sell,
transfer or otherwise dispose of all or any substantial part of
Lessee's assets.
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
90
take such further action as Lessor may from time to time 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
filing 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 through the period involved. These reports will not
be disclosed to anyone other than the Lessor and/or 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 following persons may from time to time designate in
writing to the other persons listed below:
Lessor: GPT Finance Corporation
000 Xxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxx 00000
Attention: Treasurer
Lessee: Startec, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 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
91
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 of
business or 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 DCO Software 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. The option to obtain a fully paid up
license as provided in Article 2 of the License Document shall be
exercised by the Lessee and the payment made directly to the
equipment manufacturer named in the License Document and must be
92
exercised in conjunction with the option provided in Section 7(b)
of the Lease to purchase the Equipment. "Buyer" and "Licensee"
as used in the License Document are synonymous with lessee.
27. 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.
93
(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. Lessee hereby irrevocably
consents and agrees that any legal action, suit or proceeding
arising out of or in any way in connection with this contract may
be instituted or brought in the courts of the State of Florida or
the United States court sitting in the State of Florida as Lessor
may elect, and by execution of this lease hereby irrevocably
accepts and submits to, for itself and in respect of its
property, generally and unconditionally, the jurisdiction of any
such court and to all proceedings in such court.
(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 may be instituted or brought in the
courts of the State of Florida, or the United States Courts for
the District of Florida, as Lessor may elect, 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 services 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, but
suit on the judgment, a certified or exemplified copy of which
shall be conclusive evidence of the fact and the amount of the
liability.
94
IN WITNESS WHEREOF, Lessor and Lessee have each caused this
Lease to be duly executed as of the day and year first above
written.
STARTEC, INC. (Lessee)
By:_________/s/___________________
HARI PANI, PRESIDENT
(Name & Title)
Date Signed: March 01, 1990
GPT FINANCE CORPORATION
By:__________/s/________________
X.X. Xxxxx - Vice President
(Name & Title)
Date Signed: March 12, 1990
AMENDMENT TO LEASE AGREEMENT DATED JANUARY 10, 1990 BETWEEN
TELECOMMUNICATIONS FINANCE GROUP AND
STARTEC, INC.
FOR A DCO-CS AND PERIPHERAL EQUIPMENT
LOCATED IN WASHINGTON, D.C.
Effective February 2, 1995, the following sections of said Lease
Agreement are amended as follows:
1. Section 3:
The term of the lease is changed from sixty (60) months
to one hundred twelve (112) months.
2. Section 5(a):
The number of consecutive monthly installments of rent
for the Equipment is changed from sixty (60) to one
hundred twelve (112).
TELECOMMUNICATIONS FINANCE GROUP STARTEC, INC.
By: /s/ XX Xxxxxxxx By: /s/ Ram Xxxxxxx
XX Xxxxxxxx Ram Xxxxxxx
President
AUTHORIZED REPRESENTATIVE OF (NAME & TITLE)
TELECOMMUNICATIONS FINANCE GROUP
95
DATE SIGNED: 23 May 1995 DATE SIGNED: 2/1/95
STARTEC, INC.
SITE: WASHINGTON, D.C.
LEASE PAYMENTS
ADDENDUM TO LEASE AGREEMENT DATED January 10, 1990 BETWEEN
TELECOMMUNICATIONS FINANCE GROUP AND
STARTEC, INC.
EFFECTIVE NOVEMBER 1, 1990 (60 MONTHLY LEASE PAYMENTS)
ORIGINAL VALUE OF EQUIPMENT $[CT REQUESTED]
ADDITION I $[CT REQUESTED]
TOTAL $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ORIGINAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE DECEMBER 1, 1991 (47 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION II $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION II MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE OCTOBER 1, 1994 (13 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION III $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION III MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE FEBRUARY 2, 1995, THE LEASE TERM IS EXTENDED FROM 60
MONTHS TO 112 MONTHS
NEW LEASE PAYMENT THROUGH ADDITION III $[CT REQUESTED]
EFFECTIVE MARCH 1, 1995 (60 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION IV $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION IV MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE DECEMBER 1, 1995 (51 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION V $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION V MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
96
EFFECTIVE APRIL 1, 1996 (47 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION VI $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION VI MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
STARTEC, INC.
SITE: WASHINGTON, D.C.
LEASE PAYMENTS
ADDENDUM TO LEASE AGREEMENT DATED January 10, 1990 BETWEEN
TELECOMMUNICATIONS FINANCE GROUP AND
STARTEC, INC.
EFFECTIVE JUNE 1, 1996 (45 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION VII $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION VII MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE SEPTEMBER 1, 1996 (42 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION VIII $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION VIII MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE JANUARY 1, 1997 (38 MONTHLY LEASE PAYMENTS REMAINING
ADDITION IX $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION IX MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE MAY 1, 1997 (34 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION X $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION X MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
EFFECTIVE JULY 1, 1997 (32 MONTHLY LEASE PAYMENTS REMAINING)
ADDITION XI $[CT REQUESTED]
RATE FACTOR PER $1,000 $[CT REQUESTED]
ADDITION XI MONTHLY
LEASE PAYMENT $[CT REQUESTED]
TOTAL MONTHLY LEASE PAYMENT $[CT REQUESTED]
TOTAL VALUE OF EQUIPMENT $[CT REQUESTED]
97
SUMMARY OF TOTAL LEASE PAYMENTS:
13 @ $ [CT REQUESTED] = $ [CT REQUESTED]
34 @ $ [CT REQUESTED] = $ [CT REQUESTED]
5 @ $ [CT REQUESTED] = $ [CT REQUESTED]
9 @ $ [CT REQUESTED] = $ [CT REQUESTED]
4 @ $ [CT REQUESTED] = $ [CT REQUESTED]
2 @ $ [CT REQUESTED] = $ [CT REQUESTED]
3 @ $ [CT REQUESTED] = $ [CT REQUESTED]
4 @ $ [CT REQUESTED] = $ [CT REQUESTED]
4 @ $ [CT REQUESTED] = $ [CT REQUESTED]
2 @ $ [CT REQUESTED] = $ [CT REQUESTED]
32 @ $ [CT REQUESTED] = $ [CT REQUESTED]
112 $ [CT REQUESTED]
ACCEPTED BY:__________________________
DATE:_________________________________
FORM OF ASSIGNMENT OF PURCHASE ORDER
This Assignment between STARTEC, INC. ("Company") and
TELECOMMUNICATIONS FINANCE GROUP ("Lessor").
WHEREAS, the Company and Lessor have, or will shortly,
execute a Lease Agreement ("Lease"); and
WHEREAS, the Company has executed and delivered a certain
purchase contract covering the property described therein (the
"Equipment"), a copy of which purchase contract is attached
hereto as Attachment A ("Purchase Order"); and
WHEREAS, the Company desires to assign to Lessor all of its
rights and interests under the Purchase Order for that equipment
listed on Schedule I, as amended from time to time, of Exhibit A
of the Lease so that Lessor might purchase and take title to such
equipment in the Company's stead.
NOW, THEREFORE, for valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. This Assignment shall be effective as of the date the
Company executes Exhibit A entitled "Certificate of Delivery and
Acceptance" of the Lease.
2. The Company (a) represents and warrants that the Purchase
Order constitutes the entire understanding of the parties thereto
with respect to the purchase and sale of the Equipment covered
thereby; (b) hereby assigns to Lessor all of its rights under the
Purchase Order as to the equipment listed on Schedule 1, as
amended from time to time, of Exhibit A of the Lease; (c) hereby
assigns to Lessor and Lessor hereby assumes and agrees, so long
98
as a Company complies with the provisions of the Lease and
otherwise performs its obligations under the Purchase Order, to
perform Company's obligations under the Purchase Order to pay the
price of the equipment listed on Schedule 1, as amended from time
to time, of Exhibit A of the Lease; and (d) represents and
warrants that neither notice to nor consent from the respective
vendor is required in connection with the execution, delivery and
performance of this Assignment or for the validity or
enforceability of this Assignment.
3. Pursuant to this Assignment, the Company hereby agrees with
Lessor that the Company shall continue to be responsible for the
performance of all obligations under the Purchase Order, except
for, subject to the condition provided in Paragraph 1 above, the
obligation to pay the price as provided in Paragraph 2 above, and
the Company agrees to hold harmless and indemnify Lessor from all
liability, loss, damage, and expense arising from or directly or
indirectly attributable to such obligations.
IN WITNESS WHEREOF, the parties have duly executed this
Assignment under seal by their authorized representatives as of
the date opposite their respective signatures.
TELECOMMUNICATIONS FINANCE GROUP STARTEC, INC.
By:_____________________________ By:______________________
________________________________ _________________________
Authorized Representative (Name and Title)
Date Signed:____________________ Date Signed:_____________
ATTACHMENT A
EQUIPMENT LIST #TFG-97246 Dated
COMPANY: STARTEC, INC.
SITE LOCATION: WASHINGTON, D.C.
ADDITION: XI
PART NO./DESCRIPTION QUANTITY
AMOUNT
SS-C
DTF-03 1152 PORT ADDITION PER
DCO-782030, ISSUE 1, DATED 03/27/97
(S.O.#071632) AS FOLLOWS:
99
MATERIAL 1 LOT $[CT REQUESTED]
INSTALLATION [CT REQUESTED]
FREIGHT [CT REQUESTED]
REMOVE AMAF-00 AND SHIP TO SS-C,
LAKE MARY, FL 1 LOT [CT REQUESTED]
THIRD PARTY VENDOR - SOTAS
PORTABLE TQMS III DOLCH COMPUTER
S/N DCS2017765 1 LOT [CT REQUESTED]
TOTAL [CT REQUESTED]
FORM OF CERTIFICATE OF DELIVERY AND ACCEPTANCE
Commencement Date:
THIS CERTIFICATE OF DELIVERY AND ACCEPTANCE is executed and
delivered to TELECOMMUNICATIONS FINANCE GROUP ("Lessor") by
STARTEC, INC. ("Lessee") pursuant to and in accordance with the
Lease Agreement dated January 10, 1990 between Lessor and Lessee
(the "Lease", the defined terms therein being used herein with
their defined meanings).
1. The Equipment covered by this Certificate consists of the
items described in Schedule 1 of Exhibit A of the Lease.
2. Lessee confirms that the items of Equipment covered hereby
have been delivered to it in good working order and
condition and have been inspected and accepted by Lessee as
of the Commencement Date set forth above. Lessee hereby
waives any right it may have under Section 2A-517 of the
Uniform Commercial Code or otherwise to revoke this
acceptance for any reason whatsoever, including but not
limited to, (1) any assumption by Lessee that a
nonconformity would be cured, (ii) any inducement of
acceptance by the Lessor's assurances or any difficulty to
disclaim a nonconformity before acceptance, or (iii) any
Lessor default under the Lease. Lessee further hereby
waives its rights under Sections 2A-1401 and 2A-402 of the
Uniform Commercial Code to suspend performances of any of
its obligations under the Lease with respect to the
Equipment hereby accepted.
3. Lessee confirms that such items of Equipment have been
installed at: 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx,
X.X. 00000.
100
4. The Lessor's value of the items of Equipment covered hereby
is set forth in the Schedule 1 of Exhibit A. Lessee
confirms that each installment of rent payable is as defined
by the rental rate factor per thousand dollars as specified
in Section 5 of the Lease.
5. Lessee hereby: (a) confirms that the items of Equipment
covered hereby have been inspected by Lessee, have been
delivered in good working order and condition and are of the
size, design, capacity and manufacture selected by it and
meet the provisions of the purchase order(s) with respect
thereto; and (b) irrevocably accepts said items of Equipment
"as-is, where-is" for all purposes of the Lease as of the
Commencement Date set forth above and shall pursue remedies
to correct deficiencies, if any, in said items of equipment
under the manufacturer's warranty provisions only.
6. Lessee hereby confirms: (i) that no Default or Event of
Default is in existence as of the Commencement Date set
forth above, nor shall any Default or Event of Default occur
as a result of the lease by Lessee of the Equipment
specified herein; and (ii) that all representations and
warranties of Lessee contained in the Lease or in any
document or certificate furnished Lessor in connection
herewith, are true and correct as of the Commencement Date
set forth above with the same force and effect as if made on
such date.
7. Lessee assumes sole responsibility for ensuring that the
billing center can correct read all records. Lessee's
responsibility includes reading daily the automatic
message/ticketing accounting system and/or polling system
tape(s) by the billing system to ensure all ticket
information is present. Risk of loss for any revenue or
profit associated therewith passes to Lessee upon cutover of
any hardware or software.
8. All of the terms, provisions and conditions of the Lease are
hereby incorporated herein and made a part hereof as if said
terms, provisions and conditions were set forth in full in
this Certificate. By their execution and delivery of this
Certificate, the parties hereto reaffirm all of the terms,
provisions and conditions of the Lease.
IN WITNESS WHEREOF, Lessee has caused this Certificate to be
executed by its duly authorized officer as of the Commencement
Date set forth above.
Refer S.O. STARTEC, INC.
By:________________________
___________________________
(Name & Title)
101
Date:______________________
ACCEPTED BY:
TELECOMMUNICATIONS FINANCE GROUP
AS OF THE __ DAY OF ______, 19__
By:_____________________________
________________________________
Authorized Representative
SCHEDULE 1 OF EXHIBIT A
(CERTIFICATE OF DELIVERY AND ACCEPTANCE)
EQUIPMENT DESCRIPTION
The items of personal property to be leased pursuant to this
Lease Agreement, dated January 10, 1990 between
TELECOMMUNICATIONS FINANCE GROUP, as Lessor, and STARTEC, INC.,
as Lessee, are described below and in the attached equipment
list(s):
EQUIPMENT
LIST NUMBER DESCRIPTION AMOUNT
DCO-892280 A SIEMENS XXXXXXXXX-XXXXXXX $[CT REQUESTED]
DIGITAL CENTRAL OFFICE CARRIER
SWITCH
EQUIPPED WITH 216 DIGITAL PORTS
AND WIRED FOR 384 DIGITAL PORTS
INCLUDING INSTALLATION WITH BASIC
RELEASE 10
DCO-892280 AN ADDITION OF BATTERIES AND CHARGERS [CT REQUESTED]
DCO-892280 AN ADDITION OF A USED AMA [CT REQUESTED]
DCO-892280 AN ADDITION OF A USED TONE COMMANDER [CT REQUESTED]
DCO-892280 AN ADDITION OF MISCELLANEOUS
EQUIPMENT [CT REQUESTED]
GPT-90116 ADDITION I [CT REQUESTED]
TFG-91147 ADDITION II [CT REQUESTED]
TFG-94062 ADDITION III [CT REQUESTED]
TFG-95002 ADDITION IV [CT REQUESTED]
TFG-95068 ADDITION V [CT REQUESTED]
TFG-96111 ADDITION VI [CT REQUESTED]
TFG-96124 ADDITION VII [CT REQUESTED]
TFG-96154 ADDITION VIII [CT REQUESTED]
TFG-96183 ADDITION IX [CT REQUESTED]
TFG-97221 ADDITION X [CT REQUESTED]
TFG-97246 ADDITION XI [CT REQUESTED]
TOTAL[CT REQUESTED]
102
The above described equipment installed at:
0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000
ACCEPTED BY:_______________________
DATE:______________________________
Dated: January 10, 1990
Revised: November 8, 1990
Revised: October 10, 1991
Revised: September 6, 1994
Revised: February 1, 1995
Revised: October 10, 1995
Revised: March 7, 1996
Revised: April 18, 1996
Revised: July 24, 1996
Revised: December 3, 1996
Revised: April 3, 1997
Revised: June 2, 1997
EQUIPMENT LIST #TFG-97246 DATED:
COMPANY: STARTEC, INC.
SITE LOCATION: WASHINGTON, D.C.
ADDITION: XI
PART NO./DESCRIPTION QUANTITY AMOUNT
SS-C
DTF-03 1152 PORT ADDITION PER
DCO-782030, ISSUE 1, DATED 03/27/97
(S.O. #071632) AS FOLLOWS:
MATERIAL 1 LOT $[CT REQUESTED]
INSTALLATION [CT REQUESTED]
FREIGHT [CT REQUESTED]
REMOVE AMAF-00 AND SHIP TO SS-C,
LAKE MARY, FL 1 LOT [CT REQUESTED]
THIRD PARTY VENDOR-SOTAS
PORTABLE TQMS III DOLCH COMPUTER
S/N DCS2017765 1 LOT [CT REQUESTED]
TOTAL[CT REQUESTED]
103
SIEMENS
Xxxxxxxxx-Xxxxxxx
Installation Site: Washington, DC
PART NUMBER DESCRIPTION QTY
ITEM 01
CMF-00. CCS-02
822068-812 Diag. Grading Panel 1
822003-595A PWBA, (2W) SI HDI 4
822002-526 PWBA, TSI PGH I/F 4
207800-482 Cable Assembly (TSI/PGH) 4
822005-546A PWBA, (2W) TPPO HDI 2
822006-566A PWBA, TPP1 2
822017-556A PWBA, TPP2 2
DTF-03
817577-900 MG Basic DTF Assembly 1
817577-901 MG, DS1 Host CUA 6
817577-902 MG, Basics PWBAs DS1 CUA 6
207600-225 Frame Weidment 1
000000-000 Xxx Assy Front Door Mtg Hardware 1
000000-000 Xxx Assy Rear Door Mtg Hardware 1
207600-158 Door Assembly, Right I/O 2
207600-159 Door Assembly, Left I/O 2
207600-721 PWBA Guide 6
817560-606 PWBA, T1 Interface 18
817577-917 MG Blower w/Fan Alarm, Base 1
PRT-00
817576-938 Mod Group, Circuit Breaker 2
Miscellaneous
DSX-DR19 Cross Connect Panel 2
DOC-ADD Additions Documentation 1
ITEM 02
NOT USED
104
