IBM CREDIT CORPORATION
TERM LEASE MASTER AGREEMENT
Name and Address of Lessee: STARTEC GLOBAL OPERATING CO Agreement No.: 8414108
00000 XXXXX XXXX XX
XXXXXXXX, XX 00000-0000
Branch Office No.: SNU
Branch Office Address: IBM CORPORATION Customer No.: 8414109
0000 XXXXXXXX XXXX
XXXXXXX, XX 00000
The Lesser under this Term Lease Master Agreement ("Agreement") is a) IBM
Credit Corporation, a subsidiary of International Business Machines
Corporation ("IBM"); b) a partnership in which IBM Credit Corporation is a
partner; or c) a business enterprise for which IBM Credit Corporation is
acting as agent ("Lessor"). The "Lessee" is the business entity indicated on
the signature line below. Any Parent, Subsidiary or Affiliate of Lessee may
enter into a Lease and/or Financing Transaction (each as defined below) under
this Agreement by signing a Term Lease Supplement. ("Supplement") referencing
this Agreement and so will be bound to the terms and conditions of this
Agreement as Lessee. For the purposes of this Agreement, "Parent" shall mean
a business entity that owns or controls a majority interest of Lessee;
"Subsidiary" shall mean a business entry a majority interest of which is
owned or controlled by Lessee; and "Affiliate" shall mean a business entity
under common majority control with Lessee. A Lease or Financing Transaction
under this Agreement shall be effective when a Supplement listing equipment
to be leased ("Equipment") and software program licenses, maintenance,
services, and other one-time charges to be financed ("Financed Items") is
signed by both parties. Equipment includes any internal programming that is
integral to the Equipment's functioning ("Licensed Internal Code"). Lessee
may acquire Equipment and Financed Items from IBM, Lessor, or any other
manufacturer, vendor or provider ("Lessee's Supplier"). The terms of (a) the
Supplement; (b) any applicable attachments; and (c) this Agreement each as
may be amended by addenda, shall constitute the lease for the Equipment
("Lease") and Financing Transaction for the Financed Items ("Financing
Transaction") listed in the applicable Supplement. Some Leases or Financing
Transactions may have additional terms that will be specified in attachments
or addenda. Terms in a Supplement and related attachments or addenda will
apply only to the Lease and/or Financing Transaction represented by that
Supplement. The headings of the Paragraphs are inserted for convenience only.
1. OPTIONS. Each Supplement shall constitute a single Lease and/or
Financing Transaction but for each line item listed there will be a Lease or
Financing Transaction option indicated. The various options are described in
the "Option Codes" table on the Supplement.
2. CREDIT REVIEW. For each Lease or Financing Transaction, Lessee
consents to a reasonable credit review by Lessor.
3. AGREEMENT TERM. This Agreement shall be effective when signed by
both parties and may be terminated by either party upon one (1) month prior
written notice. Each Lease or Financing Transaction then in effect, however,
shall remain subject to the terms and conditions of this Agreement until its
expiration or termination.
4. LESSOR CHANGES. Lessor may, with at least three (3) months prior
written notice to Leasee, change the terms of this Agreement. Such changes
will apply only to Leases and Financing Transactions that begin after the
effective date specified in the notice, and only if Lessee does not notify
Lessor that it does not agree to the changes.
5. SURVIVAL OF OBLIGATIONS. Lessor's and Lessee's obligations under this
Agreement, which by their nature would continue beyond the expiration or
termination of a Lease or Financing Transaction, will survive the expiration
or termination of a Lease or Financing Transaction.
6. SELECTION AND USE OF EQUIPMENT, PROGRAMMING AND LICENSED PROGRAM
MATERIALS. Lessee agree that it did not rely on the Lessor, nor is the Lessor
responsible, for the selection, use of, and results obtained from the
Equipment or Financed items. Nothing in the Agreement is intended to limit
any rights Lessee may have with respect to Lessee's Supplier or the Equipment
manufacturer.
7. ASSIGNMENT TO LESSOR. Lessee assigns to Lessor, effective upon
Lessor signing the Supplement, its right to purchase from and its obligation
to pay its Supplier. All other rights and obligations as defined in the
agreement between Lessee and Lessee's Supplier governing the purchase of the
Equipment ("Purchase Agreement") shall remain with Lessee. Lessee represents
that it has reviewed and approved the Purchase Agreement. Lessor will not
modify or rescind the Purchase Agreement.
8. LEASE NOT CANCELLABLE; LESSEE'S OBLIGATIONS ABSOLUTE. Once the Term
of any Lease or Financing Transaction has begun as described in Paragraphs 13
and 14, Lessee's commitments herunder become irrevocable and independent of
acceptance of the Equipment. Lessee's obligation to pay all Rent and other
amounts required to be paid by Lessee under this Agreement is absolute and
unconditional and shall not be affected by any right of set-off or defense of
any kind whatsoever, including any failure of the Equipment or a Financed
Item to perform, or any representations by Lessee's Supplier. Lessee shall
make any claim solely against Lessee's Supplier, the Equipment manufacturer
or other third party if the Equipment or a Financed Item is unsatisfactory
for any reason.
9. WARRANTIES. Lessor passes through to Lessee, to the extent
permitted, all applicable warranties made available by Lessee's Sup-
THIS AGREEMENT, AND ANY APPLICABLE SUPPLEMENT, ATTACHMENTS OR ADDENDA ARE
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT REGARDING EACH LEASE OR
FINANCING TRANSACTION. THESE DOCUMENTS SUPERSEDE ANY PRIOR ORAL OR WRITTEN
COMMUNICATIONS BETWEEN THE PARTIES. IF THERE IS A CONFLICT OF TERMS AMONG THE
DOCUMENTS, THE ORDER OF PRECEDENCE WILL BE AS FOLLOWS: (A) ATTACHMENTS OR
ADDENDA TO A SUPPLEMENT, (B) SUPPLEMENT, (C) ATTACHMENTS OR ADDENDA TO THIS
AGREEMENT, (D) THIS AGREEMENT. DELIVERY OF AN EXECUTED COPY OF ANY OF THESE
DOCUMENTS BY FACSIMILE OR ANY OTHER RELIABLE MEANS SMALL BE DEEMED TO BE AS
EFFECTIVE FOR ALL PURPOSES AS DELIVERY OF A MANUALLY EXECUTED COPY. LESSEE
ACKNOWLEDGES THAT LESSOR MAY MAINTAIN A COPY OF THE DOCUMENTS IN ELECTRONIC
FORM AND AGREES THAT A COPY REPRODUCED FROM SUCH ELECTRONIC FORM OR ANY OTHER
RELIABLE MEANS (FOR EXAMPLE, PHOTOCOPY, IMAGE OR FACSIMILE) SHALL IN ALL
RESPECTS BE CONSIDERED EQUIVALENT TO AN ORIGINAL. IF INDICATED HERE, THE
FOLLOWING ATTACHMENTS SHALL APPLY TO AND BE INCORPORATED BY REFERENCE IN THIS
AGREEMENT:
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Accepted by:
IBM CREDIT CORPORATION
By:
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Authorized Signature
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Lessee may not modify or change the terms of this agreement without the
Lessor's prior written consent. /_____________/
Lessee Initial
LEASEE: STARTEC GLOBAL OPERATING CO
By:
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Authorized Signature
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Supplier and/or by the Equipment manufacturer in the Purchase Agreement.
Lessor represents and warrants that neither Lessor, nor anyone acting or
claiming through Lessor, by assignment or otherwise, will interfere with
Lessee's quiet enjoyment of the Equipment so long as no event of default by
Lessee or anyone acting or claiming through Lessee shall have occurred and be
continuing. During the Term of the Lease, Lessor assigns to Lessee all the
rights that Lessor may have to be defended by Lessee's Supplier and/or by the
Equipment manufacturer under any patent and copyright provisions in the
Purchase Agreement. EXCEPT AS EXPRESSLY PROVIDED ABOVE, LESSOR MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. AS TO LESSOR, LESSEE LEASES THE EQUIPMENT AND TAKES ANY
FINANCED ITEM "AS IS". IN NO EVENT SHALL LESSOR HAVE ANY LIABILITY FOR, NOR
SHALL LESSEE HAVE ANY REMEDY AGAINST LESSOR FOR, CONSEQUENTIAL DAMAGES, ANY
LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS. This
shall in no way affect Lessee's rights and remedies against Lessee's Supplier
and/or the Equipment manufacturer.
10. LESSEE AUTHORIZATION. Lessee is authorized to act on Lessor's behalf
concerning delivery and installation of the Equipment and any warranty
service for the Equipment, including any programming services. Lessor
represents and warrants that it has the right to grant the authorization and
rights to Lessee referred to in this Paragraph.
11. DELIVERY AND INSTALLATION. Lessee is responsible for the delivery,
installation and acceptance of the Equipment and any Financed Item and shall
pay any delivery and installation charges not paid by Lessee's Supplier.
Lessor shall not be liable for any delay in, or failure of, delivery of the
Equipment or Financed Items unless provided by Lessor.
12. USED EQUIPMENT LEASES. For used Equipment supplied by Lessor, the
following provisions apply. The Equipment is subject to prior disposition at
any time prior to Lessor's acceptance of a signed Supplement. The Equipment is
provided "as is", without any warranty whatsoever by Lessor, in accordance
with Paragraph 9. However, provided that the Equipment is unmodified since
the date of delivery; has been manufactured and assembled by or for IBM; and
has been installed and maintained by IBM, Lessor guarantees Lessee's
satisfaction with the quality of the Equipment for three (3) months following
the "Release Date" indicated on the face of the Supplement. If Lessee is
dissatisfied with the Equipment for any reason, Lessee may notify Lessor
within three (3) months of the Release Date and, at Lessor's option, the
Equipment will either be (a) replaced with equivalent Equipment or (b)
returned to Lessor and the Lease terminated and any Rent payments made to
Lessor refunded to Lessee. If Lessee cancels its commitment to Lease the
Equipment after Lessor signs the applicable Supplement but before the
Equipment is delivered and accepted by Lessee, then Lessee shall be liable to
Lessor for three (3) months Rent as liquidated damages. Lessor shall bear the
risk of loss or damage to the Equipment during transit from the pick-up
location to Lessee's location, provided the Equipment is transported by a
carrier designated by Lessor.
13. RENT COMMENCEMENT DATE. Unless otherwise stated on the applicable
Supplement, the Rent Commencement Date shall be (a) for Equipment supplied by
IBM, the day following the date of installation of the Equipment as provided
for in the Purchase Agreement; (b) for Equipment supplied by Lessor, the
earlier of the date of installation or fourteen (14) days after the Release
Date as specified in the Supplement; (c) for Equipment supplied by Lessee's
Supplier, the date Lessee designates on a certificate of acceptance; or, (d)
for Financed items, the date Lessor makes funds available to Lessee or
Lessee's Supplier.
14. LEASE TERM. The Lease or Financing Transaction shall be effective
when the Supplement is signed by both parties. The initial Term of the Lease
or Financing Transaction shall begin on the Rent Commencement Date and shall
expire at the end of the number of months specified as "Term" in the
Supplement. Except for Equipment supplied by Lessor, if Lessee cancels its
order with Lessee's Supplier prior to installation or discontinues any
Financed Item prior to the date Lessor makes funds available, the Lease or
Financing Transaction with respect to that item shall terminate without
penalty.
15. RATE PROTECTION. The Rates stated on the Supplement are not subject
to change provided the Supplement is signed and returned to Lessor by the
date indicated on the Supplement and the Equipment is installed by the end of
the month of the Estimated Commencement Date stated on the Supplement.
16. RENT. During the initial Term, Lessor shall invoice and Lessee shall
pay Rent for each Payment Period as specified in the Supplement. Lessee's
obligation to pay shall begin on the Rent Commencement Date. When the Rent
Commencement Date is not on the first day of a calendar month and/or when the
initial Term does not expire on the last day of a calendar month, the
applicable Rent for the first and last payment will be prorated on the basis
of 30-day months.
17. RENEWAL. Lessee may, upon at least one (1) month prior written notice
to Lessor, renew the Lease with respect to any one item of Equipment,
provided Lessee is not then in default. Lessor shall offer a renewal Term of
one (1) year but may, if requested, offer different renewal Terms. For
Equipment line items with a fair market value end-of-Lease renewal option,
the renewal Rent shall be the projected fair market rental value of the
Equipment as of the commencement of such renewal Term. For Equipment line
items with a prestated end-of-Lease renewal option, the renewal Rent shall be
one-half of the prestated Purchase Percent multiplied by the Unit Purchase
Price stated in the Supplement and such renewal Rent payments will be annual
and payable in advance.
18. PURCHASE OF EQUIPMENT. Lessee may, upon at least one (1) month prior
written notice to Lessor, purchase any line item of Equipment upon expiration
of the Lease provided Lessee is not then in default. For Equipment line items
with a fair market value end-of-Lease purchase option, the purchase price
shall be the projected fair market sales value of the Equipment as of such
expiration date. For Equipment line items with a prestated purchase option,
the purchase price shall be specified in the Supplement if the Lessee
purchases any Equipment. Lessee shall, on or before the date of purchase, pay
(a) the purchase price, (b) any applicable taxes, (c) all Rent due through
the day preceding the date of purchase, and (d) any other amounts due under
the Lease. Lessor shall, on the date of purchase, transfer to Lessee by xxxx
of sale provided upon Lessee's request, without recourse or warranty of any
kind, express or implied, all of Lessor's right, title and interest in and to
such Equipment on an "AS IS, WHERE IS" basis, except that Lessor shall
warrant title free and clear of all items and encumbrances created by or
through Lessor.
19. OPTIONAL EXTENSION. If, at the expiration of the Term, Lessee has
not elected to renew the Lease, purchase or return the Equipment in
accordance with Paragraph 25, and as long as Lessee is not in default under
the Lease, the Lease will be extended for each unreturned item of Equipment
unless (a) Lessee notifies Lessor in writing, not less than one (1) month
prior to Lease expiration, that Lessee does not want the extension, or (b)
the Equipment is returned to and received by Lessor within fourteen (14)
days after the expiration of the Term. The extension will be under the same
terms and conditions then in effect, including current Rent (but for
Equipment line items with a fair market value purchase option, not less than
fair market rental value as determined by Lessor at the expiration of the
Term) and will continue on a day-to-day basis until the earlier of
termination by either party upon one (1) month prior written notice, or six
(6) years after expiration of the initial Term. For purposes of this
Paragraph, current Rent shall be calculated as the sum of the Lease payments
over the initial Term divided by the initial Term of the Lease.
20. INSPECTION; MARKING; FINANCING STATEMENT. Upon reasonable advance
request, Lessee agrees to allow Lessor to inspect the Equipment and its
maintenance records during Lessee's normal business hours, subject to
Lessee's reasonable security procedures. Lessee will affix to the Equipment
any identifying labels supplied by Lessor indicating ownership. The filing of
any Uniform Commercial Code financing statements in connection with a Lease
or Financing Transaction shall be governed by the terms and conditions of the
applicable Supplement and any Supplement addendum.
21. EQUIPMENT USE. Lessee agrees that Equipment will be used for
business purposes and not primarily for personal, family or household
purposes and that it will be used in accordance with applicable laws and
regulations.
22. MAINTENANCE. Lessee shall, at its expense, on its own or through
third parties, keep the Equipment in a suitable environment as specified by
the Equipment manufacturer, and in good condition and working order, ordinary
wear and tear excepted.
23. ALTERATIONS; MODIFICATIONS; PARTS. For the purposes of this
Agreement, a "Part" is any component or element of the Equipment, a
"Modification" is any upgrade, feature or other change to the Equipment which
is or has been offered for sale by the Equipment manufacturer and which
contains no Part which has been changed or altered since its original
manufacture; an "Alteration" is any change to the Equipment which is not a
Modification. Lessee may modify or alter the Equipment only upon prior
written notice to Lessor. Lessee may obtain new or used Alterations or
Modifications from any supplier and may finance them with sources other than
Lessor provided no security interest is created that encumbers or conflicts
with Lessor's ownership of the Equipment. Any Lessor-owned Parts that Lessee
removes shall remain Lessor's property and Lessee shall not make such Parts
available for sale, transfer, exchange or other disposition without Lessor's
prior written consent.
Before returning the Equipment to Lessor, Lessee agrees to remove any
Alteration and may remove any Modification not owned by Lessor. If removed,
Lessee agrees to, at its expense, restore the Equipment to its original
condition using the removed Parts, normal wear and tear excepted. If Lessor
had previously consented to the disposition of removed Parts, the restoration
must be with Parts Lessor owns or supplies, or those supplied by a source
approved by Lessor. If not removed, such Modifications shall become the
property of Lessor, without charge, free of any items or encumbrances.
Changes or additions made to items of Equipment in connection with
maintenance or warranty services, including engineering changes, utilizing
manufacturer's genuine parts, are exempt from the terms of this Paragraph,
and any Parts installed in connection with such services shall become the
property of Lessor.
24. LEASES FOR MODIFICATIONS. At Lessee's request, and subject to
satisfactory credit review, Lessor will lease or finance new Modifications,
used Modifications from Lessor's inventory, and Financed items associated
with the Modifications. Leases for Modifications will be at then current
terms and conditions and must be coterminous with the underlying Equipment
Lease.
25. RETURN OF EQUIPMENT. Lessee will return the Equipment to Lessor
upon expiration or termination of the Lease. Upon return, the Equipment must
be in good condition and working order, normal wear and tear excepted and
qualified for the manufacturer's maintenance service, if available. Lessee
will return the Equipment to the nearest IBM Credit consolidation and
refurbishment center for that type of Equipment located in the contiguous
United States. Unless otherwise agreed, Lessee is responsible for: a)
deinstallation, packing and return of the Equipment and any associated costs
and b) any cost to qualify the Equipment for the manufacturer's maintenance
service, or, if not available, the cost to return the Equipment to good
working condition. The return of the Equipment shall constitute a full
release by Lessee of any leasehold rights or possessory interest in the
Equipment.
26. CASUALTY INSURANCE; LOSS OR DAMAGE. Lessor will maintain, at its
own expense, insurance covering loss of or damage to the Equipment (excluding
any Modifications or Alterations not subject to a Lease under this Agreement)
with a $5,000 deductible per occurrence. If any item of Equipment shall be
lost, stolen, destroyed or irreparably damaged for any cause whatsoever
("Casualty Loss") before the Rent Commencement Date, the Lease with respect
to that item shall terminate. If any item of Equipment suffers Casualty Loss,
or shall be otherwise damaged, on or after the Rent Commencement Date, Lessee
shall promptly inform Lessor. To claim a Casualty Loss Lessee must file a
police or fire department report or other appropriate documentation
substantiating the Casualty Loss. If Lessor determines that the item can be
economically repaired, Lessee shall place the item in good condition and
working order and Lessor will promptly reimburse Lessee the reasonable cost
of such repair, less the deductible. If not so reparable, Lessee shall pay
Lessor or Lesser of $5,000 or the fair market sales value of the Equipment
immediately prior to the Casualty Loss. Upon Lessor's receipt of payment the
Lease with respect to that item shall terminate and Lessee's obligation to
pay Rent for the Equipment will be deemed to have ceased as of the date of
the Casualty Loss. For purposes of this Paragraph, Lessor will consider the
manufacturer's charge for such repair to be the reasonable cost of repair.
27. TAXES. Lessee shall promptly reimburse Lessor, as additional Rent,
for all taxes, charges, and fees levied by any governmental body or agency
upon or in connection with this Agreement, excluding, however, all taxes on
or measured by the net income of Lessor.
28. LESSOR'S PAYMENT. If Lessee fails to pay taxes as required under
this Agreement, discharge any items or encumbrances on the Equipment (other
than those created by or through Lessor), or otherwise fails to perform any
other provision Lessee is required to perform under this Agreement, Lessor
shall have the right to act in Lessee's stead so as to protect Lessor's
interests, in which case, Lessee shall pay Lessor one cost thereof.
29. TAX INDEMNIFICATION. Solely for Leases entered into on the basis
that Lessor is the owner of the Equipment for tax purposes, Lessor and Lessee
agree that Lessor shall be entitled to certain federal and state tax benefits
available to an owner of Equipment, including, under the Internal Revenue
Code of 1986, as amended (the "Code"), the maximum Modified Accelerated Cost
Recovery System deductions for 5-year property and deductions for interest
expense incurred to finance the purchase of the Equipment ("Tax Benefits").
Lessee represents and warrants that (a) at no time will Lessee take or omit
to take any action which would result in a loss, reduction, disallowance,
recapture or other unavailability ("Loss") to Lessor (or the consolidated
group with which Lessor files tax returns) of the Tax Benefits, and (b)
Lessee will take no position inconsistent with the assumption that Lessor is
the owner of the Equipment for federal income tax purposes. Upon Lessor's
written notice to Lessee that a Loss of Tax Benefits has occurred, Lessee
shall reimburse Lessor an amount that shall make Lessor's after-tax rate of
return and cash flows ("Financial Returns") over the Term of the Lease equal
to the expected Financial Returns that would have been otherwise available.
Lessee shall have no obligation to reimburse Lessor for a Loss of Tax
Benefits resulting from (i) a determination that a Lease does not constitute
a true lease for federal income tax purposes, provided such determination is
not the result of an act of Lessee, or (ii) a change in the tax law after the
applicable Rent Commencement Date.
30. GENERAL INDEMNITY. Each Lease under this Agreement is a net lease.
Lessee indemnifies Lessor against any third party claims whatsoever which
arise in connection with this Agreement or Lessee's possession and use of the
Equipment or a financed term hereunder including all related reasonable costs
and expenses, and legal fees incurred by Lessor. Lessee shall not be liable
for any claim resulting from the sole negligence or willful misconduct of
Lessor. Lessee agrees that upon written notice by Lessor of the assertion of
any claim, Lessee shall assume full responsibility for the defense of such
claim. Lessor shall cooperate as may be reasonably required in such defense.
31. LIABILITY INSURANCE. Lessee shall obtain and maintain commercial
general liability insurance, in the amount of at least $1,000,000 or more for
each occurrence, with an insurer having a "Best Policyholders' rating of B+
or better. The policy shall name Lessor as an additional insured as Lessor's
interests may appear and shall contain a clause requiring the insurer to give
Lessor at least one (1) month prior written notice of the cancellation, or
any material alteration in the terms of the policy. Lessee shall furnish to
Lessor, upon request, evidence that such insurance coverage is in effect.
32. SUBLEASE AND RELOCATION OF EQUIPMENT; ASSIGNMENT BY LESSEE. Upon
one (1) month prior written notice to Lessor, Lessee may relocate the
Equipment to another of its business locations provided that Lessee remains
the end user of the Equipment. Any other relocation requires Lessor's prior
written consent. Upon Lessor's prior written consent, which will not be
unreasonably withheld, Lessee may sublease the Equipment to another end user.
No sublease or relocation shall relieve Lessee of its obligations under the
Lease and Lessee will be responsible for all costs and expenses associated
with any relocation or sublease of the Equipment, including additional taxes
or any Tax Loss incurred by Lessor. In no event shall Lessee remove or allow
the Equipment to be removed from the United States. LESSEE SHALL NOT ASSIGN,
TRANSFER OR OTHERWISE DISPOSE OF ANY LEASE OR FINANCING TRANSACTION, ANY
EQUIPMENT, OR ANY INTEREST THEREIN, OR CREATE OR SUFFER ANY XXXX, XXXX OR
ENCUMBRANCE THEREOF EXCEPT THOSE CREATED BY OR THROUGH LESSOR.
33. ASSIGNMENT BY LESSOR. Lessee acknowledges and understands that the
terms and conditions of the Leases and Financing Transactions have been fixed
to enable Lessor to sell and assign its interest or grant a security interest
or interests in the Leases and Financing Transactions and the Equipment,
individually or together, in whole or in part, for the purpose of securing
loans to Lessor or otherwise. Lessee shall not assert against any such
assignee any setoff, defense or counterclaim that Lessee may have against
Lessor or any other person. Lessor shall not be relieved of its obligations
hereunder as a result of any such assignment unless Lessee expressly consents
thereto, nor shall any rights or obligations of Lessee be changed except as
described herein.
34. FINANCING. Any one-time charge (indicated on the Supplement as the
"Amount Financed") for a Financed item will be paid by Lessor to Lessee's
Supplier or directly to Lessee. Any other charges which may be owned or due
to Lessee's Supplier shall be paid directly to Lessee's Supplier by Lessee.
Lessee's obligation to pay Rent for the Financed item shall not be affected
by any discontinuance, return or destruction of any Financed Item on or after
the date Lessor makes funds available. If Lessee discontinues any of the
Financed Items in accordance with the terms of the applicable agreement with
Lessee's Supplier prior to the date Lessor makes funds available, then the
Financing Transaction with respect to the affected one-time charge shall be
cancelled.
35. FINANCING PREPAYMENT. (DOES NOT APPLY FOR ITEMS OF EQUIPMENT).
Lessee may terminate a Financing Transaction (but not a Lease with respect to
an Item or Equipment) by prepaying its remaining Rent. Lessee shall provide
Lessor with at least one (1) month prior written notice of the intended
prepayment date. Lessor may, depending on market conditions at the time,
reduce the remaining Rent to reflect such prepayment and shall advise the
Lessee of the balance to be paid. If prior to Lease expiration, Lessee
purchases Equipment on Lease or if a Lease is terminated, Lessee shall at the
same time prepay any related line items of Financing Transactions.
36. DELINQUENT PAYMENTS. If any amount to be paid to Lessor is not
paid on or before its due date, Lessee shall pay Lessor two percent (2%) of
the unpaid amount for each month or part thereof from the due date until the
date paid or, if less, the maximum allowed by law.
37. DEFAULT; NO WAIVER. Lessee shall be in default under this
Agreement upon the occurrence of any of the following events: (a) Lessee
fails to pay any amount when due under this Agreement and such failure shall
continue for a period of seven (7) days after the due date; (b) Lessee
subleases, relocates, assigns or makes any transfer in violation of the terms
of this Agreement; (c) Lessee fails to perform any other obligations or
violates any of its covenants or representations under a Lease or Financing
Transaction, or Lessee fails to perform any of its obligations under any
other agreement it may have with Lessor, and such failure or breach shall
continue for a period of fifteen (15) days after written notice is received
by Lessee from Lessor; (d) Lessee or any guarantor at Lessee's obligations
under this Agreement makes a misrepresentation in any application for credit
or other financial data required to be provided by Lessee in connection with
a Lease of financing Transaction; (e) Lessee or a guarantor makes an
assignment for the benefit of creditors, or consents to appointment of a
trustee.
or receiver, or if either shall be appointed for Lessee or a guarantor or for
a substantial part of its property without its consent; (f) any petition or
proceeding is filed by or against Lessee or a guarantor under any Federal or
State bankruptcy or insolvency code or similar law, and if such petition is
involuntary, it is not dismissed within sixty (60) days after filing thereof;
(g) Lessee or a guarantor sells or disposes of all or substantially all of
its assets (and Lessor does not consent to the same) or ceases doing
business; or (h) a guarantor or the provider of any other credit enhancement
under this Agreement breaches, terminates without Lessor's consent or contests
any guaranty or other credit enhancement document of which Lessor is a
beneficiary.
Lessor shall be in default under this Agreement upon the occurrence of any
of the following events: (I) Lessor breaches Lessee's right of quiet
enjoyment (except in an instance where Lessee is in default under the
applicable Lease or Financing Transaction), and Lessor is unable to remedy
such breach within fifteen (15) days of Lessee's written to Lessor thereof;
(ii) Lessor fails to perform any other provisions or violates any of its
covenants or representations under a Lease or Financing Transaction and such
failure or breach shall continue for a period of fifteen (15) days after
written notice is received by Lessor from Lessee; (III) Lessor makes an
assignment for the benefit of creditors or consents to the appointment of a
trustee or receiver, or if either shall be appointed for Lessor or for a
substantial part of its property without its consent; or (iv) any petition or
proceeding is filed by or against Lessor under any Federal or State
bankruptcy or insolvency code or similar law and, if such petition is
involuntary, it is not dismissed within sixty (60) days after filing
thereof.
Any failure of either party to require strict performance by the other
party or any waiver by either party of any provision in a Lease, Financing
Transaction or this Agreement shall not be construed as a consent or waiver
of any other breach of the same or any other provision.
38. REMEDIES. If Lessee is in default under this Agreement, all amounts due
and to decome due under each Lease and Financing Transaction shall be
immediately due and payable, without further notice from Lessor, and Lessor
shall have the right in its sole discretion, to exercise any one or more of
the following remedies in order to protect its interests, reasonably expected
profits and economic benefits under this Agreement. Lessor may (a) declare
any Lease or Financing Transaction entered into pursuant to this Agreement
to be in default; (b) terminate in whole or in part any Lease or Financing
Transaction; (c) recover from Lessee any or all amounts then due and to
become due; (d) take possession of any or all items of Equipment, wherever
located, without demand or notice, without any court order or other process
of law, in accordance with Lessee's reasonable security procedures; and (e)
demand that Lessee return any or all such items of Equipment to Lessor in
accordance with Paragraph 25 and, for each day that Lessee shall fail to
return any item of Equipment, Lessor may demand an amount equal to the
current Rent, prorated on the basis of a 30-day month. Upon repossession or
return of any item of Equipment, Lessor shall sell, lease or
otherwise dispose of such item in a commercially reasonable manner, with or
without notice and on public or private bid, and apply the net proceeds
thereof towards the amounts due under the Lease but only after deducting (I)
in the case of sale, the estimated fair market sales value of such item as
of the schedules expiration of the Lease; or (II) in the case of any
replacement lease, the rent due for any period beyond the scheduled
expiration of the Lease for such item; and (III) in either case, all
reasonable and necessary expenses, including reasonable legal fees, incurred
in connection therewith. Any excess net proceeds are to retained by Lessor.
Lessor may pursue any other remedy available at law or in equity. No right or
remedy is exclusive of any other provided herein or permitted by law or
equity; all such rights and remedies shall be cumulative and may be enforced
concurrently or individually.
If Lessor is in default under this Agreement, Lessee's exclusive and sole
remedy shall be (x) to terminate the applicable Lease or Financing Transaction
and return the applicable items of Equipment to Lessor, and (y) to recover
damages arising out of such default from Lessor, and all reasonable and
necessary expenses, including reasonable legal fees, incurred in connection
therewith.
39. LESSOR'S EXPENSES. Lessee shall pay Lessor all reasonable costs and
expenses, including reasonable legal and collection fees, incurred by Lessor
in enforcing the terms, conditions or provisions of this Agreement.
40. OWNERSHIP; PERSONAL PROPERTY; LICENSED PROGRAM MATERIALS. The
Equipment under Lease is and shall be the property of Lessor. Lessee shall
have no right, title or interest therein except as set forth in the Lease.
The Equipment is, and shall at all times be and remain, personal property and
shall not become a fixture or realty. Licensed programs that Lessee acquires
and finances with Lessor remain the property of their licensor. Ownership of
licensed programs is governed by the license agreement between the licensor
and Lessee, and is not affected by this Agreement.
41. NOTICES; ADMINISTRATION. Service of all motives under the Agreement
shall be sufficient if delivered personally or mailed to Lessee at its
address specified in the Supplement or to IBM Credit Corporation as Lessor
in care of the IBM location specified in the Supplement or invoice. Notices
by mail will be effective on receipt or three (3) days after being deposited
in the United States mail, duly addressed and with postage prepaid, whichever
is earlier. Notices of default will be sent certified mail, or registered
mail, or delivered in person and will be effective when received by the
party. Notices, consents and approvals from or by Lessor will be given by
the party or on its behalf by IBM and all payments will be made to IBM until
Lessor notifies Lessee otherwise.
42. LESSEE REPRESENTATION. Lessee represents and warrants that, as of the
date it enters into any Lease or Financing Transaction under this Agreement;
(a) Lessee is a legal entity, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and in each
jurisdiction where Equipment and Financed items will be located, with full
power to enter into this Agreement and any transactions contemplated herein;
(b) this Agreement and any Lease or Financing Transaction hereunder have been
duly authorized and executed by Lessee and constitute valid, legal, and
binding agreements, enforceable in accordance with their terms; (c) the
execution and performance by Lessee of its obligations under this Agreement
and any Lease or Financing Transaction will not violate any judgment, order,
law or governmental regulation affecting Lessee or any provision of Lessee's
documents of organization, or result in a breach or default of any
instrument or agreement to which Lesee is a party or to which Lessee may be
bound.
43. GENERAL. Lessee agrees to take such further action and to execute
such additional documents, instruments and financing statements as Lessor shall
reasonably request to complete any Lease or Financing Transaction under this
Agreement or to protect Lessor's interest in the Equipment or Financed Items.
This agreement may be executed in any number of counterparts, each of
which shall constitute an original, but all of which together shall constitute
but one and the same document.
44. APPLICABLE LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. If any
provision of this Agreement is held to be invalid or unenforceable, all
other provisions shall remain in effect.
North Castle Drive
IBM CREDIT CORPORATION Xxxxxx, XX 00000-0000
914/765-1900
xxx.xxxxxxxxx.xxx.xxx
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ADDENDUM TO TERM LEASE MASTER AGREEMENT
Enterprise No. 8515451 Term Lease Master Agreement No. 8414109
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Customer No. 8414109 Addendum No. 52250699
Lessor and STARTEC GLOBAL OPERATING CO (Lessee) agree that the Term Lease
Master Agreement between the parties is hereby modified as follows:
A Paragraph 32 - Sublease and Relocation of Equipment; Assignment by
Lessee - at the end of the paragraph add the following:
"Notwithstanding anything to the contrary in this Paragraph, Lessee may
relocate the Equipment without consent from or notice to Lessor provided
such Equipment is specifically designed and designated as portable, any
relocation is the result of temporary trips taken in the ordinary course
of business and the Equipment is returned to the original Equipment
Location."
Prepared by: J CODY
June 16, 1999
Accepted by:
IBM Credit Corporation STARTEC GLOBAL OPERATING CO
For or as Lessor:
by ___________________________ by
-------------------
Authorized Signature Authorized Signature
___________________________
-------------------------
Name (Type or Print) Date Name (Type or Print) Date
S2250699/BP6
This Addendum is valid if accepted by STARTEC GLOBAL OPERATING CO and IBM
Credit Corporation no later that July 28, 1999.
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Addendum No. S2250699
1
