1
EXHIBIT 10.22
ASSIGNMENT OF PURCHASE ORDER
AND SECURITY INTEREST
This ASSIGNMENT AGREEMENT is made and entered into as of the 1st day of
January, 1996, between STAR VENDING, INC. d.b.a. Star Telecommunications Inc.
("Customer") and DSC Finance Corporation ("Assignee").
WITNESSETH:
WHEREAS, Customer has entered into a Supply Agreement dated the 14th day of
September, 1995 (hereafter referred to as the "Supply Agreement"), with DSC
Marketing Services, Inc. (hereafter referred to as the "Vendor"), whereby the
Customer and Vendor have agreed to, among other things, the terms and conditions
upon which the Customer is allowed to place orders to purchase certain
telecommunications hardware and/or license certain telecommunications software
from Vendor; and,
WHEREAS, pursuant to the terms and conditions of the Supply Agreement, the
Customer has placed with Vendor those orders which may be attached to this
Agreement as Exhibits, which are hereby incorporated by reference. (The order or
orders attached as Exhibits will hereinafter be collectively referred to as the
"Order". The hardware and software so described in the Order shall hereinafter
be collectively referred to as the "Equipment";) and,
WHEREAS, assignee and Customer have entered into or propose to enter into
an Equipment Lease (the "Lease"), pursuant to which Assignee proposes, subject
to the terms and conditions of the Lease, to acquire the Equipment and lease
and/or license it to Customer; and as a condition to entering into the Lease and
in order to enable Assignee to acquire the equipment, it is necessary that this
Assignment be executed;
NOW THEREFORE, in consideration of the foregoing, Customer hereby sells,
assigns and transfers to Assignee all of Customer's right, title, and interest
in and to the Order including, without limitation, the right to take title to
the Equipment and to be named as purchaser in any bills of sale or invoices to
be delivered by Vendor, this Assignment being subject, however, to the following
conditions;
1. This Assignment shall not become effective with respect to the Equipment
prior to the date upon which Customer executes and delivers to Assignee and
Assignee accepts a Certificate of Acceptance of Equipment relating to any such
item of Equipment in form satisfactory to Assignee.
2. By accepting delivery of a signed copy of this Assignment, Assignee
agrees that, notwithstanding this Assignment, at all times prior to the
acceptance by Assignee of a Certificate of Acceptance of Equipment relating to
the Equipment, Customer may continue to exercise, with respect to such item, all
rights of the buyer under the Supply Agreement, and Vendor may continue to deal,
with respect to such item of Equipment, solely with Customer for all of the
purposes of the Supply Agreement in all respects as if this Assignment had not
been executed.
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3. The rights and obligations of Vendor and Customer under the Supply
Agreement, except for the obligation of Customer to pay the purchase price of
the Equipment to Vendor, shall remain in effect. Without limiting the generality
of the foregoing, Vendor's warranty and support obligations under the Supply
Agreement shall continue in full force and effect and Customer, as Lessee of the
Equipment, shall be entitled to enforce such obligations directly against Vendor
all in accordance with the provisions of the Supply Agreement. Customer agrees
that Assignee has not and does not by virtue of this Assignment assume any of
Customer's obligations or liabilities (other than to pay the purchase price of
the Equipment to Vendor), and that Assignee shall not have any obligation or
liability under the Supply Agreement (or to the Equipment) or be obligated to
perform any of the obligations or duties of Customer thereunder or thereto,
whether arising prior to or on or after the date of this Assignment, and
Customer shall at all times remain obligated and liable to Vendor under the
Supply Agreement as if this Assignment had not been executed.
4. Customer agrees that at any time and from time to time, upon the written
request of Assignee, Customer shall promptly and duly execute and deliver any
and all such further instruments and documents, and take such further action as
Assignee may request in order to obtain the full benefits of this Assignment.
5. Customer represents and warrants that the Supply Agreement is in full
force and effect and is enforceable in accordance with its terms, and that
Customer is not in default thereunder. Customer further represents and warrants
that it will not assign or pledge, so long as this Assignment remains in effect,
the whole or any part of the rights hereby assigned, to anyone other than
Assignee.
6. Notwithstanding the foregoing, it is understood and agreed, that until a
default shall have occurred under the Lease, all rights and claims under any
guaranty or warranty, express or implied, with respect to the Equipment or any
item of Equipment, shall be enforced by Customer, subject to the terms of the
Lease, for its account and benefit and at its sole cost and expense either in
its own name or in the name of Assignee provided, however, that no action shall
be brought in Assignee's name without Assignee's written consent, and in any
event Customer agrees to indemnify Assignee against and save it harmless from
all costs and expenses arising out of any action or proceedings which Customer
may bring against Vendor. Customer agrees to preserve and protect the Assignee's
rights under any warranty, covenant or representation made by the Vendor with
respect to the Equipment, and Customer warrants that Customer will not take any
action which will impair such rights of the Assignee, and covenants to act
solely in compliance with any restrictions and requirements prerequisite to the
continued existence, enforcement, validity and maintenance of any warranty,
covenant or representation.
7. Customer agrees that it will not modify or amend the Supply Agreement
without the prior written consent of Assignee.
8. The execution of this Assignment by Customer and the acceptance thereof
by Assignee shall not constitute a commitment by Assignee to enter into the
Lease or to lease the Equipment or any item of Equipment to Customer unless and
until a duly authorized officer of Assignee shall have executed and accepted the
Lease and returned an executed copy thereof to Customer. Assignee's obligation
to lease the Equipment or any item of Equipment to Customer is subject to the
further conditions that Customer
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shall not be in default under any of the terms of conditions of the Lease; that
there shall have been no material adverse change in the business or financial
condition of Customer; and that all matters incident to the transactions
contemplated by the Lease are satisfactory to Assignee's counsel.
Notwithstanding any execution and acceptance of the Lease by Assignee, Assignee
shall not be responsible for Vendor's failure to honor this Assignment or to
accept the Supply Agreement or to deliver the Equipment or any item of Equipment
in accordance with the terms thereof.
9. Nothing contained herein shall: (a) subject the Vendor to any liability
to which it would not otherwise be subject under the Supply Agreement; (b)
modify in any respect the contract rights of the Vendor under the Supply
Agreement, except as provided in the Consent Agreement hereto; or (c) require
the Vendor to divest itself of title to or possession of the Equipment until
delivery thereof and payment therefor as provided therein.
10. Assignee hereby accepts the assignment herein contained. Assignee
agrees, solely for the benefit of Customer, to purchase the Equipment from the
Vendor and to take that title to the Equipment and this Assignment, provided,
however, that Assignee shall not be obligated to pay for any item of Equipment
until Assignee accepts a Certificate of Acceptance of Equipment from Customer,
as provided for herein.
11. Vendor hereby assigns, transfers, and conveys to Assignee the security
interest in the Equipment granted to Vendor pursuant to the Supply Agreement.
Vendor, Assignee, and Customer agree to take all reasonable actions necessary
to memorialize such assignment, transfer, or conveyance. All fees, charges, or
taxes required to be paid by Assignee to record the security interest assigned
herein shall be paid by Customer upon invoice.
12. THIS ASSIGNMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS,
and may be modified only by a written amendment signed by all parties. Any
action or claim to enforce the provisions of this Assignment may be brought in
the appropriate state or federal district court in the State of Texas. The
Lessee irrevocably consents to service of process in accordance with the
provisions of the laws of the State of Texas.
ASSIGNEE: CUSTOMER:
DSC FINANCE CORPORATION STAR VENDING INC. d.b.a.
STAR TELECOMMUNICATIONS INC.
X X /s/ XXXX XXXXX
-------------------------------- --------------------------------
By: By: Xxxx Xxxxx 4-29-96
------------------------------- -------------------------------
Title: Title: President
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Attachment--Consent and Agreement of DSC Marketing Services, Inc.
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CONSENT AND AGREEMENT ATTACHED TO
ASSIGNMENT OF PURCHASE ORDER AND SECURITY INTEREST
The undersigned, DSC Marketing Services, Inc. (the "Vendor"), hereby
acknowledged notice of and consents to all of the terms of the attached
Assignment of Purchase Order and Security Interest (the "Assignment") and hereby
confirms to the Assignee that:
(1) the Assignee shall not be liable for any of the obligations or duties
of the Customer to Vendor under the Supply Agreement or Order, nor shall the
Assignment give rise to any duties or obligations whatsoever on the part of the
Assignee owing to Vendor except for the obligations of the Assignee to pay for
the Items of Equipment in accordance with the terms of the Supply Agreement, the
Order and the Assignment in the event that the undersigned acknowledges that
payment for any such item of Equipment shall be due on the date set forth in the
Assignment;
(2) Vendor hereby represents and warrants that the Supply Agreement, the
Order and this Consent and Agreement, constitute binding obligations of Vendor,
in each case enforceable against Vendor in accordance with its terms; and
(3) by consenting to the terms of the Assignment, Vendor does not intend to
modify its rights and obligations under the Supply Agreement or Order.
DSC MARKETING SERVICES, INC.
X
-------------------------------
By:
-------------------------------
Title:
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EQUIPMENT LEASE
EQUIPMENT LEASE (this "Lease"), made as of the 1st day of January, 1996 by
and between DSC FINANCE CORPORATION, a Delaware corporation, with offices at
0000 Xxxx Xxxx, Xxxxx, Xxxxxx Xxxxxx, Xxxxx, 00000 (the "Lessor") and STAR
VENDING INC. d.b.a. STAR TELECOMMUNICATIONS INC., a Nevada corporation with a
principal place of business at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxx, XX
00000 (the "Lessee"). In consideration of the mutual promises herein contained,
the parties hereto agree as follows:
ARTICLE 1 - LEASE
1.01 The Lessor hereby leases and lets to the Lessee and the Lessee hereby
leases and hires from the Lessor, property (collectively, the "Equipment" and,
individually, an "Item of Equipment") described in the schedules now or
hereafter executed and delivered by the parties and made a part hereof
(collectively, the "Schedules" and, individually, a "Schedule"). The Items of
Equipment now subject to this Lease are described in Schedules A and A-1
attached hereto and made a part hereof and shall be further described in
Schedules B and B-1 or further consecutive alphabetic identification.
ARTICLE 2 - TERM
2.01 The lease term for each Item of Equipment ("Lease Term") is defined
and shall commence upon the First Periodic Rent Payment Date as set forth in the
applicable Schedule and shall expire on the Lease Expiration Date as set forth
in the applicable Schedule unless earlier terminated, renewed, or extended and
such Items of Equipment returned, all according to the terms of this Lease and
the applicable Schedule. The Lessee will signify its receipt of the applicable
Item of Equipment by the execution and delivery to the Lessor of a Certificate
of Acceptance in the form of Schedule A-1 attached to Schedule A made a part
hereof. The Lessee's execution and delivery to the Lessor of the Certificate of
Acceptance with respect to each Item of Equipment shall conclusively establish
as between the Lessor and the Lessee that such Item of Equipment has been
shipped to and received by the Lessee under the Lease, notwithstanding any
defect with respect to design, manufacture, condition or in any other respect.
Lessee shall not unreasonably delay acceptance of the Equipment.
ARTICLE 3 - RENT
3.01 AMOUNT. The rent of any and every Item of Equipment shall be the
amount designated in the applicable Schedule. The Lessee shall pay said rent
monthly, in the amounts and at the time set forth in the applicable Schedule, to
the Lessor at the address indicated above, or to such other person or at such
other place as the Lessor may from time to time designate.
3.02 DEFAULT. If the Lessee with regard to any Item or Items of Equipment
fails to pay any rent or other amount herein provided within five (5) days after
the same is due and payable, or if any
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execution or any other writ of process shall be issued in any action or
proceeding against the Lessee whereby any Item of Equipment may be seized,
taken, or distrained or if a proceeding in bankruptcy, receivership, or
insolvency shall be instituted by or against the Lessee, any guarantor of
Lessee's obligations hereunder ("Guarantor") or their respective property, or if
the Lessee or any Guarantor shall enter into any arrangement or composition with
their respective creditors, or if Lessee, with regard to any Item or Items of
Equipment, fails to observe, keep, or perform any other provisions of this Lease
required to be observed, kept, or performed by the Lessee, or if any Guarantor
fails to observe, keep, or perform any provision of its Guaranty required to be
observed, kept, or performed by said Guarantor, the Lessor shall, if such
default shall continue for five (5) days after written notice thereof, have the
right to exercise any one or more of the following remedies:
(1) To declare the entire amount of rent hereunder immediately due and
payable as to any or all Items of Equipment shipped to and received by
Lessee, without notice or demand to the Lessee;
(2) To xxx for and recover all rents and other payments then accrued or
thereafter accruing, with respect to any or all Items of Equipment;
(3) To take possession of any or all Items of Equipment, after notice to
Lessee, wherever the same may be located, without any court order or
other process of law. After having taken possession of any such Item
of Equipment, the Lessor, at its option, shall have the right to, and
may retain, sell, lease, or otherwise dispose of any such Item of
Equipment. The Lessee hereby waives any and all damages occasioned by
such taking of possession or other actions which the Lessor is allowed
hereunder. Any said taking of possession shall not constitute a
termination of this Lease as to any or all Items of Equipment unless
the Lessor expressly so notifies the Lessee in writing;
(4) To terminate this Lease as to any or all items of Equipment; or
(5) To pursue any other remedy at law or in equity.
Notwithstanding any said repossession, or any other action which the Lessor
may take, the Lessee shall be and remain liable for the full performance of all
obligations to be performed by the Lessee under this Lease.
All such remedies are cumulative, and may be exercised concurrently or
separately.
3.03 INTEREST. If the Lessee fails to pay any part of the rent herein
reserved or any other sum required by the Lessee to be paid to the Lessor within
five (5) days after the due date thereof, the Lessee shall pay to the Lessor
interest on such delinquent payment from the due date thereof until paid at the
rate of eighteen percent (18%) per annum or the highest rate allowed by
applicable law, whichever is less.
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3.04 OFFSET. This Lease is a net lease. The Lessee's obligations to pay
rent and all other amounts payable by it hereunder, as well as its obligations
to perform or observe, as the case may be, its other agreements hereunder are
absolute and unconditional and are not and shall not be subject to any
abatement, reduction, offset, setoff, counterclaim, recoupment, defense,
deferment, or interruption for any reason whatsoever. Except as expressly
provided herein, this Lease shall not terminate, nor shall the Lessee's
obligations hereunder be affected, by reason of any defect in, damage to, or
loss of any Item of Equipment, the failure of the manufacturer of any Item of
Equipment to perform on its warranties or any one of them, the prohibition of or
interference with the Lessee's use thereof by any person, corporation, or
governmental authority, the invalidity or unenforceability or lack of due
authorization of this Lease, or for any other cause whether similar or
dissimilar to the foregoing, it being the express intention of the Lessor and
the Lessee that all rent payable by the Lessee hereunder shall be, and continue
to be payable in all events unless the obligation to pay the same shall be
terminated pursuant to the express provisions of this Lease.
ARTICLE 4 - USE
4.01 MANNER OF USE. The Lessee shall at all times use the Equipment in a
careful and proper manner in conformity with the manufacturer's specifications
thereof and shall comply with all laws, ordinances, and regulations and all
conditions of insurance required hereby which relate in any way to the
possession, use, or maintenance of the Equipment. Nothing herein contained shall
be construed to deny the fact that the Equipment is, and shall at all times be
and remain the sole and exclusive property of the Lessor as agreed in Article
11.01 hereof.
4.02 MARKINGS. If at any time during the term of this Lease, the Lessor
supplies the Lessee with labels, plates, or other markings stating that the
Equipment is owned by the Lessor, the Lessee shall affix and keep the same in a
prominent place on the Equipment.
ARTICLE 5 - INSPECTION
5.01 The Lessor shall, at any and all times during business hours, have the
right to enter into and on the premises where the Item of Equipment may be
located for the purpose of inspecting the same; observing its use or for any
other purpose including the enforcement of Lessor's rights hereunder in the
event of a default by Lessee or any Guarantor. The Lessee shall give the Lessor
immediate notice of any attachment or other judicial process affecting any Item
of Equipment and shall, whenever requested by the Lessor, advise the Lessor of
the exact location of each Item of Equipment. Notwithstanding the foregoing,
Lessee shall not remove any Item of Equipment from its original installation
site without the prior written approval of Lessor, which may be withheld or
granted by Lessor in its sole discretion.
ARTICLE 6 - ALTERATIONS AND REPAIRS
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6.01 ALTERATIONS. Without the prior written consent of the Lessor, the
Lessee shall not make any alterations, additions, or improvements to the
Equipment. All additions and improvements of whatsoever kind of nature made to
the Equipment shall belong to and become the property of the Lessor on the
termination of the Lease.
6.02 REPAIRS. Lessee, at its own cost and expense, shall keep the Item of
Equipment in good repair, condition, and working order and shall furnish any and
all parts, mechanisms and devices and services required to keep the Item of
Equipment in good repair, condition, and working order.
ARTICLE 7 - LOSS AND DAMAGE
7.01 RISK OF LOSS AND DAMAGE. The Lessee hereby assumes and shall bear the
entire risk of loss and damage, and destruction to each Item of Equipment from
any and every cause from and after date of shipment of the Equipment to its
final location and thereafter until such Item of Equipment has been returned to
Lessor, as herein provided. No loss, damage, or destruction to any Item of
Equipment or any part thereof shall impair any obligation of the Lessee under
this lease which shall continue in full force and effect, including, but not
limited to, the obligation to pay the monthly rental hereunder.
7.02 DUTIES OF LESSEE. In the event of loss or damage of any kind (but not
beyond economical repair) to any Item of Equipment during the Lease Term and
thereafter until such Item of Equipment has been returned to Lessor, as herein
provided, the Lessee, at the option of the Lessor but at the sole cost and
expense of Lessee, shall:
(1) Place the same in good repair, condition, and working order; or,
(2) Replace the same with like Item of Equipment in good repair,
condition, and working order.
7.03 STIPULATED LOSS VALUE. If any Item of Equipment is lost, stolen,
destroyed, requisitioned by any governmental authority, or damaged beyond
repair, the Lessee shall pay the Lessor therefor in cash the Stipulated Loss
Value for such Item of Equipment as set forth in the applicable Schedule hereto.
On such payment, this Lease shall terminate with respect to such Item of
Equipment so paid for and the Lessee thereupon shall receive title to such Item
of Equipment "as-is", "where-is", and "with all faults" without warranty,
express or implied, with respect to any matter whatsoever.
ARTICLE 8 - INSURANCE AND TAXES
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8.01 INSURANCE. The Lessee shall keep each Item of Equipment insured
against all risk of loss or damage from every cause whatsoever by public
liability and property damage insurance policies covering each Item of Equipment
in form and amount and with companies approved by the Lessor and shall name
Lessor, Lessee, and Lessor's assignees as loss payees, as their interests may
appear. The Lessee shall pay the premiums therefor, at its sole cost and
expense, and shall deliver to the Lessor evidence of such policies satisfactory
to the Lessor. Each insurer shall agree, by endorsement on the policy issued by
it or by independent instrument furnished to the Lessor, that it will give the
Lessor thirty (30) days notice before the policy in question shall be altered or
canceled. The proceeds of such insurance, at the option of the Lessor, shall be
applied:
(1) Toward the replacement, restoration, or repair of such Item of
Equipment; or
(2) Toward payment of the Lessee's obligations hereunder.
The Lessee hereby appoints the Lessor as the Lessee's attorney in fact to
make claim for, receive payment of, and execute and endorse all documents,
checks, or drafts for loss or damage under any said insurance policy. At the
Lessor's request, the Lessee shall furnish the Lessor with evidence reasonably
satisfactory to the Lessor that the insurance coverage required hereby is in
effect.
8.02 TAXES. The Lessee shall keep the Equipment free and clear of all
levies, liens, and encumbrances and shall pay all license fees, registration
fees, assessments, charges, and taxes which may now or hereafter be imposed on
the ownership, leasing, renting, sale, possession, or use of the Equipment,
excluding, however, all taxes on or measured by the Lessor's income. When
requested by Lessor, Lessee shall provide to Lessor evidence of any payment
required to be made by Lessee hereunder.
8.03 LESSOR'S PAYMENT. In case of failure of the Lessee to procure or
maintain said insurance or to pay said fees, assessments, charges and taxes, as
herein before specified, the Lessor shall have the right, but shall not be
obligated, to effect such insurance, or pay said fees, assessments, charges, and
taxes, as the case may be. In that event, the cost thereof shall be repayable to
the Lessor with the next installation of rent, and failure to repay the same
shall carry with it the same consequences, including interest at eighteen
percent (18%) per annum (or the highest rate allowed by applicable law,
whichever is less) as failure to pay any installment of rent.
ARTICLE 9 - WARRANTIES
9.01 LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS, OR
DAMAGE (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR LOST PROFITS) CAUSED OR
ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY, OR CONSEQUENTLY BY THE
EQUIPMENT OR ANY ITEM OF EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR
DEFECT THEREIN, OR BY ANY INCIDENT, WHATSOEVER IN CONNECTION THEREWITH, ARISING
IN STRICT LIABILITY,
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NEGLIGENCE OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING OUT OF THIS LEASE.
THE LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING THOSE
OF MERCHANTABILITY, DURABILITY, CONDITION, AND FITNESS FOR A PARTICULAR PURPOSE
OR USE WITH RESPECT TO THE EQUIPMENT AND EXPRESSLY DISCLAIMS THE SAME. FURTHER,
THE LESSEE CONFIRMS THAT IT DECIDED TO LEASE THE EQUIPMENT ON THE BASIS OF ITS
OWN JUDGMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY STATEMENTS,
REPRESENTATIVES, OR WARRANTIES MADE BY THE LESSOR, AND THE LESSEE ACKNOWLEDGES
THAT THE LESSOR IS NOT A MANUFACTURER OR VENDOR OF ANY PART OF THE EQUIPMENT. As
to each Item of Equipment, Lessor hereby assigns to Lessee, without recourse,
during the term hereof all applicable manufacturer's warranties which by their
terms are so assignable. The Lessee shall take all reasonable action to enforce
such warranties to the extent so assigned. All claims or actions on any warranty
so assigned shall be made and prosecuted by the Lessee at its sole expense, and
the Lessor shall have no obligation to claim any warranty. The Lessee shall keep
the Lessor informed of any such claim or action by the Lessee, and any recovery
under such warranty shall be payable jointly to the Lessor and the Lessee, as
their interests may appear. All proceeds of such recovery shall be used to
repair or replace the Equipment.
ARTICLE 10 - PERSONAL PROPERTY
10.01 The Equipment is, and shall at all times be and remain, personal
property, notwithstanding that the Equipment or any part thereof may be, or
hereafter become, in any manner affixed or attached to, or embedded in, or
permanently resting on, real property or any building thereon, or attached in
any manner to that which is permanent as by means of cement, plaster, nails,
screws, or otherwise. If requested by the Lessor, the Lessee shall obtain, prior
to delivery of any Item of Equipment, a certificate in form satisfactory to the
Lessor from each party having an interest in the real property where any Item of
Equipment may be located, waiving any claim with respect to such Item of
Equipment. Lessee agrees to execute and file Uniform Commercial Code financing
statements and any and all other instruments necessary to perfect the Lessor's
or such other person's interest in any or all of this Lease, any Schedule, the
payments due hereunder and the Equipment. Lessor may file a copy of this Lease,
as well as any Schedule, as a financing statement.
ARTICLE 11 - OWNERSHIP AND ASSIGNMENT
11.01 OWNERSHIP. The Equipment is, and shall at all times be and remain,
the sole and exclusive property of the Lessor. The Lessee shall have no right,
title, or interest therein, except as expressly set forth in this Lease. Lessee
will execute and deliver to Lessor documentation reasonably requested by Lessor
confirming Lessor's ownership interest in the Equipment
11.02 ASSIGNMENT. Without the prior written consent of the Lessor, the
Lessee shall not:
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(1) Assign, transfer, pledge, or hypothecate this Lease, the Equipment or
any Item of Equipment, or any interest in it; or,
(2) Sublet or lend the Equipment or any Item of Equipment, or permit the
Equipment or any item of Equipment to be used by anyone other than the
Lessee or the Lessee's employees.
11.03 LESSOR'S ASSIGNMENT. It is understood that the Lessor contemplates
assigning this Lease or mortgaging the Equipment or any Item of Equipment, and
that any assignee of Lessor may assign it. All rights of the Lessor under this
Lease may be assigned, pledged, mortgaged, transferred, or otherwise disposed
of, either in whole or in part, with written notice to the Lessee. If the Lessor
assigns this Lease or the rentals due or to become due hereunder or any other
interest herein, whether as security for any of its indebtedness or otherwise,
no breach or default by the Lessor hereunder or pursuant to any other agreement
between the Lessor or Lessee, should there be one, shall excuse performance by
the Lessee of any provision hereunder. No such assignee shall be obligated to
perform any duty, covenant, or condition required to be performed by the Lessor
under the terms of this Lease; provided, however, that no such assignment shall
impair or diminish Lessor's obligations hereunder. The Lessee hereby consents to
any such documentation as the Lessor or any such assignee may require and to
furnish to any such assignee copies of any notices given by the Lessee under
this Lease or any Schedule.
ARTICLE 12 - INDEMNITY
12.01 The Lessee shall indemnify the Lessor against, and shall hold the
Lessor harmless from, any and all claims, actions, suits, proceeding, costs,
expenses, damages, and liabilities, including attorney's fees, arising out of,
connected with, or resulting from the Equipment, any Item of Equipment, or this
Lease, including without limitation, the selection, delivery, possession, use,
operation, or return of the Equipment and any Item of Equipment. The indemnities
and assumptions of liability provided in this Lease, including this Article 12,
shall continue in full force and effect notwithstanding the termination of this
Lease or any Schedule, whether by expiration of time, by operation of law, or
otherwise. If Lessor advised Lessee in good faith that an important general
interest of Lessor is involved in any claim, Lessor may control any defense or
settlement without diminution of Lessee's obligations hereunder.
ARTICLE 13 - PURCHASE OPTION
13.01 On the Lease Expiration Date as to each and every Item of Equipment,
all rents theretofore due and payable having been paid in full and Lessee having
performed all of its other obligations hereunder, the Lessee shall have the
option to purchase such Item of the Equipment on "AS-IS", "WHERE-IS" and "WITH
ALL FAULTS" basis without warranty by Lessor, for ONE DOLLAR ($1.00). In
connection with any sale of any such Item of Equipment and the xxxx of sale
corresponding thereto shall expressly state, that such Item of Equipment is sold
"as-is", "where-is" and "with all faults", and Lessor shall make no express or
implied warranties of any kind, including those
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of merchantability, durability, condition, and fitness for a particular purpose
or use and the xxxx of sale shall expressly disclaim the same. Upon this
purchase, the Lessor will duly execute and deliver to the Lessee all documents
necessary and proper to effect transfer of ownership of such Item of Equipment
to the Lessee, free and clear of all encumbrances, security interest, and liens
(other than encumbrances, security interests, or liens suffered or permitted by
the Lessee to become effective thereon), upon payment by the Lessee of the
purchase price and thereupon this Lease shall terminate as to such Equipment and
no further rents shall become due in respect to such Item of Equipment so
purchased by Lessee.
ARTICLE 14 - RETURN OF EQUIPMENT
14.01 Upon termination of this Lease with respect to any Item of Equipment,
the Lessee shall return such Item of Equipment to such location in the
continental United States as the Lessor shall specify, unless the Lessee shall
have purchased such Item of Equipment and shall have paid all amounts due in
connection therewith as provided herein. Upon such return, such Item of
Equipment shall be in good order and condition, ordinary wear and tear expected,
shall be certified for manufacturer's maintenance and shall be free and clear of
all liens and encumbrances. Notwithstanding any other provision contained
herein, until such Item of Equipment is placed on board the carrier destined for
the location specified by the Lessor all of the provisions of this Lease with
respect thereto shall continue in full force and effect. The Lessee shall pay
all costs and expenses in connection with or incidental to the return of each
Item of Equipment, including, without limitation, the cost of removing,
assembling, packing, insuring, and transporting the same.
ARTICLE 15 - LESSEE'S REPRESENTATIONS AND WARRANTIES
15.01 The Lessee represents and warrants to and agrees with Lessor that:
(1) the Lessee is and (except as expressly permitted here in below) shall
continue to be a corporation duly organized and validly existing in good
standing under the laws of the state of its incorporation, is duly organized and
validly existing in good standing under the laws of the state of its
incorporation, is duly qualified and in good standing in all other jurisdictions
in which Equipment may be located, and is not exempt from United States income
taxation; (2) the Lessee's execution, delivery, and performance of this Lease,
each Schedule, and the other documents herein contemplated have been (or if the
same should be not yet executed and delivered, at the time of such execution and
delivery, will have been) duly authorized by all necessary corporation action,
will not result in any breach, default or violation of or under the Lessee's
certificate of incorporation or bylaws or any agreement, order, or law by which
the Lessee is or may be bound or its property is or may be affected; (3) this
Lease as well as each Schedule and the other documents contemplated herein
constitute or if the same should be not yet executed and delivered, at the time
of such execution and delivery, will constitute) the legal valid, and binding
obligations of the Lessee enforceable against the Lessee in accordance with
their respective terms; (4) all financial statements and other information
heretofore furnished by the Lessee to the Lessor were when so furnished (or if
the same shall be furnished hereafter, when so furnished shall be) true and
complete; and (5) upon any consolidation or merger of the Lessee with or into
any other corporation(s) or upon any sale or conveyance of substantially all of
the property of the Lessee to any other person or
14
STI Equipment Lease
Page 9 of 11
entity, the Lessee will cause the due and punctual performance and observance of
all covenants and obligations of the Lessee hereunder to be assumed by the
surviving corporation or by the person or entity which shall have acquired such
property . The foregoing representations, warranties, and agreements shall
remain in effect throughout the term of this Lease.
ARTICLE 16 - GENERAL PROVISIONS
16.01 LESSOR'S EXPENSES. In the event of litigation by either party against
the other to enforce its rights hereunder, the prevailing party shall be
entitled to all reasonable costs and expenses including reasonable attorney's
fees.
16.02 INFORMATION. Lessee agrees to furnish to the Lessor: (i) copies of
annual financial statements, including a copy of the balance sheet and profit
and loss statement of the Lessee certified to by an authorized financial officer
of the Lessee; and (ii) such additional information as the Lessor or any
assignee may reasonably request concerning the Lease in order to enable the
Lessor or assignee to determine whether the covenants, terms, and provisions of
the Lease have been complied with by the Lessee.
16.03 CONCURRENT REMEDIES. No right or remedy herein conferred on or
reserved to the Lessor is exclusive of any right or remedy herein or by law or
equity provided or permitted; but each shall be cumulative of every other right
or remedy given hereunder or now or hereafter existing at law or in equity or by
statue or otherwise, any may be enforced concurrently therewith or from time to
time.
16.04 NONWAIVER. No covenant or condition of this Lease may be waived
except by the written consent of the Lessor. Forbearance or indulgence by the
Lessor in any regard whatsoever shall not constitute a waiver of the covenant or
condition to be performed by the Lessee to which the same may apply, and, until
complete performance by the Lessee of any covenant or condition , the Lessor
shall be entitled to invoke any remedy available to the Lessor under this Lease
or by law or in equity despite any forbearance or indulgence.
16.05 ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the Lessor and the Lessee and supersedes any prior understanding or written or
oral agreements between the parties respecting the within subject matter. It
shall not be amended, altered, or changed except by a written agreement signed
by the parties hereto.
16.06 NOTICES. Service of all notices under this Lease shall be sufficient
if given personally or mailed to the party involved at its respective address
hereinabove set forth, or at such address as such party may provide in writing
from time to time. Any such notice mailed to such address shall be effective
when deposited in the United States mail, duly addressed, and with postage
prepaid.
16.07 TIME. Time is of the essence with reference to payment in this Lease,
and in each and all of its provisions.
15
STI Equipment Lease
Page 10 of 11
16.08 PARTIES BOUND. This Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns where permitted
by this Lease. As used herein, the term "Lessor" shall include all assignees of
the Lessor.
16.09 LEGAL CONSTRUCTION. If any one or more of the provisions contained in
this Lease shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions hereof and this Lease shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained
herein. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS. Lessee hereby expressly and irrevocably agrees that
Lessor may bring any action or claim to enforce the provisions of this Lease in
the State of Texas, and the Lessee hereby irrevocably consents to personal
jurisdiction in the appropriate State of Texas or Federal District Court
therein. Lease hereby further irrevocably consents to service of process in
accordance with the provisions of the laws of the State of Texas.
16.10 POWER OF ATTORNEY. The Lease hereby irrevocably constitutes and
appoints Lessor and any officer or agent thereof, with full power of
substitution and resubstitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the Lessee and in
the name of Lessee or in its own name, from time to time in the Lessor's
discretion, for the purpose of carrying out the terms of this Lease, to take any
and all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this Lease.
The powers conferred on the Lessor under this paragraph are solely to protect
its interest in the Equipment or any Item of Equipment and shall not impose any
duty upon Lessor to exercise any such powers. The Lessor shall be accountable
only for its acts and for amounts that it actually receives as a result of the
exercise of such powers and neither it nor any of its officers, directors,
employees, or agents shall be responsible to the Lease for any act or failure to
act.
16.11 FURTHER ASSURANCES. The Lessee will, at its own expense, promptly and
duly execute and deliver to the Lessor such further documents and assurances and
take such further action as the Lessor may from time to time request in order to
more effectively carry out the intent and purpose of this Lease and to establish
and protect the rights, interests, and remedies created or intended to be
created in favor of the Lessor hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
LESSEE: LESSOR:
STAR VENDING INC. d.b.a.
STAR TELECOMMUNICATIONS INC. DSC FINANCE CORPORATION
16
STI Equipment Lease
Page 11 of 11
x /s/ Xxxx Xxxxx x
--------------------------------------- ------------------------------
By: Xxxx Xxxxx By:
--------------------------------------- ------------------------------
Its: President Its:
-------------------------------------- ----------------------------
17
SCHEDULE B
This Schedule B is attached to and made a part of the Equipment Lease (the
"Lease") dated the 1st day of January, 1996, between DSC FINANCE CORPORATION, as
Lessor, and STAR TELECOMMUNICATIONS INC., as Lessee.
1. Equipment. The Lessor hereby leases and lets to the Lessee, and Lessee
hereby leases and hires from Lessor, the Items of Equipment described below:
Items of Equipment
ACS 4/3/1 equipment plus peripheral equipment and software licenses as
listed on Lessee's Purchase Order Number 0341 dated March 1, 1996.
2. Lease Payments. The Lessee agrees to pay the Lessor monthly rent, in
advance and otherwise in accordance with the Lease and this schedule, for the
Items of Equipment described above, an amount equal to the Periodic Lease Rate
Factor, as set forth below, multiplied by the Net Manufacturer's Invoice Cost of
such equipment, as set forth below, the first of which monthly rent payments
shall be due and payable on the First Periodic Rent Payment Date, as set forth
below, and continuously thereafter such monthly rent payments shall be due and
payable on each Periodic Rent Payment Date, as set forth below, until the Last
Periodic Rent Payment Date, as set forth below. The Lease Expiration Date shall
be as set forth below.
Lease Rate Factor and Related Information
Periodic Lease Rate Factor: 0.02202421
Implicit Interest Rate: 12.0%
Manufacturer's Invoice Cost: $ 228,164.00
Less: 10% Down Payment: 22,816.40
-------------
Net Manufacturer's Invoice Cost: $ 205,347.60
Periodic Lease Payment (Monthly Rent): $ 4,522.62
Relevant Dates
First Periodic Rent Payment Date: September 1, 1996, in advance.
Periodic Rent Payment Date: The first day of each month consecutively
following the First Periodic Rent Payment
Date.
Last Periodic Rent Payment Date: August 1, 2001.
18
Lease Expiration Date: The Lease Expiration Date shall be August 31, 2001.
3. Stipulated Loss Value. At any date, the Stipulated Loss Value of each
Item of Equipment shall be defined as one hundred percent (100%) of the present
value (as the term is used in financial calculations) of the remaining monthly
lease rental payments as to such Item of Equipment on the last Periodic Lease
Payment Date on which rent was paid, calculated at a rate of twelve percent
(12.0%) per annum. Any dispute over mechanics of calculation of present value
shall be resolved by use of the present value functions of a Hewlett Packard
17BII business calculator.
4. Acceptance. The Lessee will signify its acceptance of the Equipment by
the execution and delivery to the Lessor of a Certificate of Acceptance in the
form of Schedule B-1 hereto.
IN WITNESS WHEREOF, the Lessor and the Lessee have caused this instrument
to be duly executed, on this ____ day of _____________, 199 ______.
LESSEE: LESSOR:
STAR TELECOMMUNICATIONS INC. DSC FINANCE CORPORATION
X X
-------------------------------- ----------------------------------
By: By:
-------------------------------- ----------------------------------
Its: Its:
-------------------------------- ----------------------------------
19
PV = $203,347,60 PMT = $4,922.62 9 1 1996 START DATE
DNT = 12.0%
N = 40
DATE DATE
PMT ---------------- PMT ----------------
NO MO DA YR INTEREST PRINCIPAL BALANCE NO MO DA YR INTEREST PRINCIPAL BALANCE
--- -- -- ---- ---------- ---------- ----------- -- -- -- ---- ---------- ------------ ----------
1 9 1 1996 $8.00 $4,322.02 $700,824.01 37 9 1 1999 $960.74 $3,541.86 $92,213.84
2 10 1 1996 $2,008.25 $2,514.37 $193,000.61 38 18 1 1999 $925.14 $3,597.48 $88,816.41
3 11 1 1996 $7,983.11 $2,339.51 $193,771.10 37 11 1 1999 $889.17 $5,635.45 $85,282.95
4 12 1 1996 $1,957.71 $2,864.93 $193,206.20 40 12 1 1999 $852.83 $3,449.79 $81,613.16
5 1 1 1997 $1,982.07 $9,590.55 $190,615.64 41 1 1 2000 $814.13 $3,706.49 $77,906.48
6 2 1 1997 $1,906.16 $2,616.66 $187,999.18 42 2 1 2000 $779.07 $3,743.33 $74,863.13
7 3 1 1997 $1,880.00 $2,842.62 $185,554.54 43 3 1 2000 $741.63 $3,780.99 $70,862.14
8 4 1 1997 $1,855.57 $2,669.05 $182,687.51 44 4 1 2000 $701.47 $3,818.80 $60,345.34
9 5 1 1997 $1,826.88 $2,095.74 $139,901.77 45 5 1 2000 $665.63 $3,854.99 $47,700.30
10 6 1 1997 $1,789.82 $2,722.70 $137,289.97 46 6 1 2000 $627.06 $3,947.54 $58,810.34
11 7 1 1997 $1,772.69 $2,749.93 $174,519.14 47 7 1 2000 $588.11 $3,934.31 $54,876.29
12 8 1 1997 $1,745.19 $2,737.43 $171,741.72 48 8 1 2000 $548.74 $9,973.80 $50,902.48
---------- ---------- ---------- -----------
$20,605.30 $19,619.88 $9,098.13 $45,173.31
13 9 1 1997 $1,717.43 $2,895.20 $165,536.52 49 9 1 2000 $309.03 $4,013.59 $46,888.84
14 10 1 1997 $1,689.37 $2,823.24 $144,103.27 50 10 1 2000 $468.89 $4,053.75 $47,835.11
15 11 1 1997 $1,601.06 $2,863.54 $163,241.68 51 11 1 2000 $428.35 $4,094.27 $38,740.84
16 12 1 1997 $1,632.42 $2,390.70 $160,351.48 52 12 1 2000 $387.41 $4,135.21 $34,605.63
17 1 1 1998 $1,603.52 $2,919.10 $157,432.38 53 1 1 2001 $344.85 $4,176.54 $30,429.07
18 2 1 1998 $1,574.33 $2,948.29 $154,484.00 54 2 1 2001 $304.29 $4,218.33 $26,210.94
19 3 1 1998 $1,564.83 $2,977.78 $151,506.51 55 3 1 2001 $242.11 $4,260.11 $21,950.22
20 4 1 1998 $1,515.07 $3,007.55 $148,498.74 56 4 1 2001 $219.50 $4,303.12 $17,647.11
21 5 1 1998 $1,484.99 $3,037.43 $145,461.13 57 5 1 2001 $176.47 $4,346.15 $15,300.95
22 6 1 1998 $1,450.01 $3,068.01 $142,273.12 58 6 1 2001 $133.01 $4,389.01 $8,911.35
23 7 1 1998 $1,423.93 $3,004.49 $139,284.43 59 7 1 2001 $59.17 $4,478.81 $4,477.84
24 8 1 1998 $1,392.93 $3,129.07 $114,164.76 60 8 1 2001 $44.78 $4,477.84 $0.00
---------- ---------- ---------- -----------
$18,494.48 $35,370.90 $3,309.01 $50,902.43
25 9 1 1998 $1,363.85 $3,160.97 $235,003.79 0 0 0 0 $0.00 $0.00 $0.00
26 10 1 1998 $1,339.04 $4,192.58 $129,811.21 0 0 0 0 $0.00 $0.00 $0.00
27 11 1 1998 $1,298.11 $3,324.51 $124,586.71 0 0 0 0 $0.00 $0.00 $0.00
28 12 1 1998 $1,265.87 $3,234.73 $133,379.04 0 0 0 0 $0.00 $0.00 $0.00
29 1 1 1999 $1,233.30 $3,289.12 $120,040.64 0 0 0 0 $0.00 $0.00 $0.00
30 2 1 1999 $1,200.41 $3,322.21 $116,718.01 0 0 0 0 $0.00 $0.00 $0.00
31 3 1 1999 $1,187.10 $3,355.43 $113,302.99 0 0 0 0 $0.00 $0.00 $0.00
32 4 1 1999 $1,179.65 $3,300.99 $109,974.00 0 0 0 0 $0.00 $0.00 $0.00
33 5 1 1999 $1,079.74 $3,423.88 $106,551.13 0 0 0 0 $0.00 $0.00 $0.00
34 6 1 1999 $1,045.51 $3,491.66 $99,102.34 0 0 0 0 $0.00 $0.00 $0.00
35 7 1 1999 $1,030.94 $3,491.68 $90,479.73 0 0 0 0 $0.00 $0.00 $0.00
---------- ---------- ---------- -----------
$14,182.43 $40,089.01 $0.00 $0.00
GRAND TOTALS $66,009.60 $205,347.60
========== ===========
20
SCHEDULE C
This Schedule C is attached to and made a part of the Equipment Lease
(the "Lease") dated the 1st day of January, 1996, between DSC FINANCE
CORPORATION, as Lessor, and STAR TELECOMMUNICATIONS INC., as Lessee.
1. Equipment. The Lessor hereby leases and lets to the Lessee, and
Lessee hereby leases and hires from Lessor, the Items of Equipment
described below:
Items of Equipment
One (1) DS-3 PAMX Shelf, Four (4) DS-3 Plugs, One (1) Interface Bay,
One DS-1 Shelf, One hundred twelve (112) DS-1 Plugs, plus peripheral
equipment and software rights as detailed in Lessee's Purchase Order Number
563 dated June 6, 1996; One (1) DSC DEX CSIS system wired for 84 DS-1s and
equipped with 30 DS-1s, plus peripheral equipment and software rights as
detailed in Lessee's Purchase Order Number 612 dated June 28, 1996; One (1)
DS-3 HAMX Shelf, Two (2) DS-3 Plugs, Eight (8) E-1 Plugs, plus peripheral
equipment and software rights as detailed in Lessee's Purchase Order Number
615 dated July 8, 1996.
2. Lease Payments. The Lessee agrees to pay the Lessor monthly
rent, in advance and otherwise in accordance with the Lease and this
schedule, for the Items of Equipment described above, an amount equal to
the Periodic Lease Rate Factor, as set forth below, multiplied by the Net
Manufacturer's Invoice Cost of such equipment, as set forth below; the
first of which monthly rent payments shall be due and payable on the First
Periodic Rent Payment Date, as set forth below, and continuously thereafter
such monthly rent payments shall be due and payable on each Periodic Rent
Payment Date, as set forth below, until the Last Periodic Rent Payment
Date, as set forth below. The Lease Expiration Date shall be as set forth
below.
Lease Rate Factor and Related Information
Periodic Lease Rate Factor: 0.02202421
Implicit Interest Rate: 12.0%
Manufacturer's Invoice Cost: $ 143,436.25
Less: 10% Down Payment 14,343.63
------------
Net Manufacturer's Invoice Cost: $ 129,092.62
Periodic Lease Payment (Monthly Rent): $ 2,843.16
Relevant Dates
First Periodic Rent Payment Date: November 1, 1996, in advance
21
Periodic Rent Payment Date: The first day of each month consecutively
following the First Periodic
Rent Payment Date.
Last Periodic Rent Payment Date: October 1, 2001.
Lease Expiration Date: The Lease Expiration Date shall be October 31,
2001.
3. Stipulated Loss Value. At any date, the Stipulated Loss Value of
each Item of Equipment shall be defined as one hundred percent (100%) of
the present value (as the term is used in financial calculations) of the
remaining monthly lease rental payments as to such Item of Equipment on the
last Periodic Lease Payment Date on which rent was paid, calculated at a
rate of twelve percent (12.0%) per annum. Any dispute over mechanics of
calculation of present value shall be resolved by use of the present value
functions of a Hewlett Packard 17BII business calculator.
4. Acceptance. The Lessee will signify its acceptance of the Equipment
by the execution and delivery to the Lessor of a Certificate of Acceptance
in the form of Schedule C-1 hereto.
IN WITNESS WHEREOF, the Lessor and the Lessee have caused this
instrument to be duly executed, on this 11 day of September, 1996
LESSEE: LESSOR:
STAR TELECOMMUNICATIONS INC. DSC FINANCE CORPORATION
X /s/ Xxxx Xxxxx X /s/ Xxxxxxxx X. Xxxxx
--------------------------------- ---------------------------------
By: Xxxx Xxxxx By: Xxxxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Its: President Its: Director - Finance
--------------------------------- ---------------------------------
22
SCHEDULE C-1
CERTIFICATE OF ACCEPTANCE OF EQUIPMENT UNDER SCHEDULE C
To: DSC Finance Corporation (the "Lessor")
0000 Xxxx Xxxx
Xxxxx, Xxxxx 00000
I,____________________________a duly authorized inspector and authorized
representative of Star Telecommunications Inc. (the "Lessee"), do hereby certify
that I have accepted delivery on behalf of the Lessee pursuant to the Equipment
Lease dated as of January 1, 1996, between Lessor and Lessee, the Equipment
described in Schedule C attached to such Equipment Lease. Such Equipment is
described as follows:
Items of Equipment
One (1) DS-3 PAMX Shelf, Four (4) DS-3 Plugs, One (1) Interface Bay, One DS-1
Shelf, One hundred twelve (112) DS-1 Plugs, plus peripheral equipment and
software rights as detailed in Lessee's Purchase Order Number 563 dated June 6,
1996; One (1) DSC DEX CS1S system wired for 84 DS-1s and equipped with 30 DS-1s,
plus peripheral equipment and software rights as detailed in Lessee's Purchase
Order Number 612 dated June 28, 1996; One (1) DS-3 HAMX Shelf, Two (2) DS-3
Plugs, Eight (8) E-1 Plugs, plus peripheral equipment and software rights as
detailed in Lessee's Purchase Order Number 615 dated July 8, 1996.
- INSTALLATION SITE (Address): Suite 1111
000 X. Xxxxx
Xxx Xxxxxxx, XX 00000
- PLACE ACCEPTED (Address) Same
- DATE ACCEPTED: 9 - 11 - 96
The execution of this Certificate will in no way relieve or decrease the
responsibility of the manufacturer of the Equipment for any warranties it has
made with respect to the Equipment. The undersigned understands that you are
relying on the foregoing certification in your purchase of such Equipment, and
to induce you to purchase such Equipment, the undersigned agrees to settle all
claims, defenses, setoffs, and counterclaims it may have with the manufacturer,
distributor, or seller of such Equipment directly therewith and will not set up
any thereof against you, that its obligation to you is absolute, and that you
are neither the manufacturer, distributor, nor seller of such Equipment and have
no knowledge or familiarity with it.
9 - 11 - 96 /s/
---------------------- ----------------------------------
Date Inspector and Authorized
Representative of Lessee
23
SCHEDULE D
This Schedule D is attached to and made a part of the Equipment Lease
(the "Lease") dated the 1st day of January, 1996, between DSC FINANCE
CORPORATION, as Lessor, and STAR TELECOMMUNICATIONS INC., as Lessee.
1. Equipment. The Lessor hereby leases and lets to the Lessee, and
Lessee hereby leases and hires from Lessor, the Items of Equipment
described below:
Items of Equipment
One hundred twelve (112) DS-1 Plugs and Four (4) DS-3 Plugs, plus
peripheral equipment and software rights as detailed in Lessee's Purchase
Order Number 584 dated June 12, 1996; One (1) DS-3 HAMX Shelf, One (1) DS-3
Plug, Four (4) E-1 Plugs, plus peripheral equipment and software rights as
detailed in Lessee's Purchase Order Number 615 dated July 8, 1996.
2. Lease Payments. The Lessee agrees to pay the Lessor monthly rent, in
advance and otherwise in accordance with the Lease and this schedule, for
the Items of Equipment described above, an amount equal to the Periodic
Lease Rate Factor, as set forth below, multiplied by the Net Manufacturer's
Invoice Cost of such equipment, as set forth below; the first of which
monthly rent payments shall be due and payable on the First Periodic Rent
Payment Date, as set forth below, and continuously thereafter such monthly
rent payments shall be due and payable on each Periodic Rent Payment Date,
as set forth below, until the Last Periodic Rent Payment Date, as set forth
below. The Lease Expiration Date shall be as set forth below.
Lease Rate Factor and Related Information
Periodic Lease Rate Factor: 0.02202421
Implicit Interest Rate: 12.0%
Manufacturer's Invoice Cost: $ 54,920.00
Less: 10% Down Payment 5,492.00
------------
Net Manufacturer's Invoice Cost: $ 49,428.00
Periodic Lease Payment (Monthly Rent): $ 1,088.61
Relevant Dates
First Periodic Rent Payment Date: November 1, 1996, in advance.
Periodic Rent Payment Date: The first day of each month consecutively
following the First Periodic Rent Payment Date.
24
Last Periodic Rent Payment Date: October 1, 2001.
Lease Expiration Date: The Lease Expiration Date shall be October 31,
2001.
3. Stipulated Loss Value. At any date, the Stipulated Loss Value of
each Item of Equipment shall be defined as one hundred percent (100%) of
the present value (as the term is used in financial calculations) of the
remaining monthly lease rental payments as to such Item of Equipment on the
last Periodic Lease Payment Date on which rent was paid, calculated at a
rate of twelve percent (12.0%) per annum. Any dispute over mechanics of
calculation of present value shall be resolved by use of the present value
functions of a Hewlett Packard 17BII business calculator.
4. Acceptance. The Lessee will signify its acceptance of the Equipment
by the execution and delivery to the Lessor of a Certificate of Acceptance
in the form of Schedule C-1 hereto.
IN WITNESS WHEREOF, the Lessor and the Lessee have caused this
instrument to be duly executed, on this 11 day of September, 1996
LESSEE: LESSOR:
STAR TELECOMMUNICATIONS INC. DSC FINANCE CORPORATION
X /s/ Xxxx Xxxxx X /s/ Xxxxxxxx X. Xxxxx
---------------------------- -------------------------------
By: Xxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
---------------------------- -------------------------------
Its: President Its: Director - Finance
---------------------------- -------------------------------
25
SCHEDULE D-1
CERTIFICATE OF ACCEPTANCE OF EQUIPMENT UNDER SCHEDULE D
To: DSC Finance Corporation (the "Lessor")
0000 Xxxx Xxxx
Xxxxx, Xxxxx 00000
I,____________________________a duly authorized inspector and authorized
representative of Star Telecommunications Inc. (the "Lessee"), do hereby certify
that I have accepted delivery on behalf of the Lessee pursuant to the Equipment
Lease dated as of January 1, 1996, between Lessor and Lessee, the Equipment
described in Schedule D attached to such Equipment Lease. Such Equipment is
described as follows:
Items of Equipment
One hundred twelve (112) DS-1 Plugs and Four (4) DS-3 Plugs, plus peripheral
equipment and software rights as detailed in Lessee's Purchase Order Number 584
dated June 12, 1996; One (1) DS-3 HAMX Shelf, One (1) DS-3 Plugs, Four (4) E-1
Plugs, plus peripheral equipment and software rights as detailed in Lessee's
Purchase Order Numer 615 dated July 8, 1996.
- INSTALLATION SITE (Address): 12th Floor
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
- PLACE ACCEPTED (Address) Same
- DATE ACCEPTED: 9 - 11 - 96
The execution of this Certificate will in no way relieve or decrease the
responsibility of the manufacturer of the Equipment for any warranties it has
made with respect to the Equipment. The undersigned understands that you are
relying on the foregoing certification in your purchase of such Equipment, and
to induce you to purchase such Equipment, the undersigned agrees to settle all
claims, defenses, setoffs, and counterclaims it may have with the manufacturer,
distributor, or seller of such Equipment directly therewith and will not set up
any thereof against you, that its obligation to you is absolute, and that you
are neither the manufacturer, distributor, nor seller of such Equipment and have
no knowledge or familiarity with it.
9 - 11 - 96 /s/
--------------- --------------------------------
Date Inspector and Authorized
Representative of Lessee
