EXHIBIT 10.50
[LOGO]
PURCHASE AND LICENSE AGREEMENT
BETWEEN
ASCEND COMMUNICATIONS, INC.
AND
STARTEC GLOBAL OPERATING COMPANY
Ascend Communications, Inc.
One Ascend Plaza
0000 Xxxxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
XXX
EXHIBITS(S):
Exhibit A: Master Lease Agreement and Lease Schedules
Exhibit B: Initial Startec Purchase Order
Exhibit C: Term Sheet
Exhibit D: Advantage Plus Service Agreement
Tel: (000) 000-0000 Fax: (000) 000-0000
1
PURCHASE AND LICENSE AGREEMENT
------------------------------
THIS AGREEMENT is made effective as of the date written below by and between
Ascend Communications, Inc. ("Ascend"), a Delaware corporation having a
principal place of business at One Ascend Plaza, 0000 Xxxxxx Xxx Xxxxxxx,
Xxxxxxx, XX 00000, XXX, and Startec Global Operating Company ("Buyer") a
_________________________ corporation having a principal place of business at
00000 Xxxxx Xxxx Xx. Xxxxxxxx, XX 00000.
Recitals of Fact
----------------
1. Ascend sells and licenses various hardware and software products (the
"Products").
2. Buyer desires to purchase and license Products from Ascend during the
term of this Agreement for its internal use only.
NOW, THEREFORE, in consideration of their mutual promises and obligations
contained in this Agreement, the parties agree as follows:
1. TERM
----
This Agreement shall become effective as of the date written below and
shall continue for a period of twelve (12) months, after which it shall
renew automatically for successive twelve (12) month additional terms,
unless otherwise terminated pursuant to the terms hereof.
2. PURCHASE
--------
2.1 Buyer shall order and lease Products from Ascend pursuant to the terms
and conditions of:
(a) the Master Lease Agreement and each Lease Schedule executed by the
parties pursuant to the Master Lease Agreement (collectively,
the "MLA"), attached as Exhibit A hereto; each such Lease Schedule is
hereby incorporated into and made a part of this Agreement;
(b) Buyer's initial purchase order, attached as Exhibit B hereto, and all
purchase orders subsequently issued by Buyer for Products hereunder;
all such purchase orders are hereby incorporated into and made a part
of this Agreement; and
(c) The term sheet executed by the parties attached hereto as Exhibit C.
2
Upon the exercise by Buyer of its option to purchase such Products, as
provided in the MLA, the terms and conditions of this Agreement shall
supersede the MLA and shall govern the purchase of the Products.
During the term of this Agreement, Ascend shall sell to Buyer and Buyer
shall purchase from Ascend Products at pricing listed in Ascend's
then-current price list applicable to each such Product, as amended from
time to time, less any applicable discounts. Buyer's wholly-owned
divisions and subsidiaries, may order Products under this Agreement when
an order of Buyer's such divisions and subsidiaries references this
Agreement and includes a statement agreeing to be bound by the terms and
conditions contained herein.
2.2 Shipments of the Products shall be made only against written purchase
orders issued by Buyer. At a minimum, each purchase order shall specify
the following items:
a. A complete list of the Products covered by the purchase order,
specifying the quantity, model number and description of each;
b. The price of each Product, any applicable discounts, and any
additional charges and costs;
c. The billing address, the destination to which the Products will be
delivered, and the requested delivery date; and
d. The signature of Buyer's employee or agent who possesses the
authority to place such an order.
2.3 Ascend shall acknowledge Buyer's purchase orders in writing within ten
(10) days after receipt. Ascend's acknowledgment shall note any
exceptions regarding matters such as the items ordered, configuration,
and Product pricing. Ascend shall also confirm the requested delivery
date or offer an alternative delivery date. In no event shall any order
be binding on Ascend until Buyer's order and Ascend's acknowledgment are
in agreement as to the items ordered, configuration, pricing, delivery
dates, and all other material terms.
2.4 No purchase order, acknowledgment form, or other ordering document or
communication from either party shall vary the terms and conditions on
this Agreement unless both parties expressly agree in writing. In the
event of any conflict between the terms and conditions of this Agreement
and those of any purchase order acknowledgment form or other ordering
document or communication, the terms and conditions of this Agreement
shall prevail.
3. DELIVERY
--------
3
3.1 All deliveries of the Products purchased pursuant to this Agreement will
be made F.O.B. Ascend's facility. Unless Buyer has otherwise notified
Ascend in writing, Ascend shall select a freight forwarder to be used for
shipment of the Products to Buyer. All Products will be packaged for
shipment in accordance with standard industry practices. All
transportation, shipping, and insurance costs shall be charged to Buyer's
account.
3.2 Risk of loss and title ( title to software Products) shall pass
to Buyer at the point of delivery to the common carrier at Ascend's
facility.
3.3 Ascend shall use reasonable efforts to ship the Products on the shipment
date requested in Buyer's purchase order. Ascend shall not be liable for
any loss, expense or damage incurred by Buyer if Ascend fails to meet the
specified delivery date. Ascend reserves the right to allocate shipment
of Products among its purchasers and to make partial shipments.
3.4 All shipments with destinations outside of the US shall be subject to
Ascend's determination that such shipments are in compliance with all
applicable export and import regulations. Buyer will be solely
responsible for (i) obtaining any license that may be required to import
the Products into its country, (ii) clearing the Products through local
customs upon their arrival to Buyer's country and (iii) paying all
customs duties, taxes and other charges assessed on such importations in
such country. In no event shall Ascend's delay in shipping or refusal
to ship due to export or import issues be deemed a default hereunder.
4. RESCHEDULING AND CANCELLATION OF ORDERS
4.1 Upon at least thirty (30) days prior written notice to Ascend, Buyer may
reschedule the delivery of any Products scheduled for shipment by up to
ninety (90) days at no charge. Orders may, however, be rescheduled only
once. Buyer's request to reschedule any delivery with less than thirty
(30) days' prior written notice to Ascend shall be at the sole discretion
of Ascend.
4.2 Upon at least sixty (60) days' written notice to Ascend prior to the
originally-scheduled shipment date of Products under this Agreement,
Buyer may cancel any shipment of the Products without charge. The
following cancellation charges shall apply to any cancellations made by
Buyer less than sixty (60) days prior to shipment as liquidated damages
and not as a penalty based on the number of days prior to the scheduled
delivery that written notice of cancellation is received by Ascend:
DAYS NOTICE CHARGE
----------- ------
(% of canceled order)
Greater than 60 days 0%
31-60 days 5%
0-30 days 10%
4
5. PRICES
5.1 During the term of this Agreement, Buyer shall be entitled to purchase
the Products at the prices set forth in Ascend's then-current Price List
applicable to each particular Product, less any applicable discounts
based on annual purchase volume listed in EXHIBIT A. All prices set
forth in Ascend's Price List are exclusive of any applicable value added,
excise, sales, use or consumption taxes, customs duties or other
governmental charges.
5.2 (a) In the event of a Ascend price increase, all Products ordered on or
after the effective date of such price increase shall be filled at the
new higher price. Ascend shall, however, honor all written and accepted
Buyer purchase orders for the Products received by Ascend prior to the
price increase announcement at the prices in effect as of the date the
order was received, but only if Buyer requests Ascend to ship the
Products within ninety (90) days after the effective date of the price
increase.
(b) In the event of a Ascend price decrease, all products ordered on or
after the effective date of such price decrease shall be filled at the
new lower price.
6. PAYMENT
6.1 Ascend shall invoice Buyer upon shipment of the Products. Buyer shall
pay all invoices in US dollars within thirty (30) days of receipt. Unless
otherwise directed by Ascend, all such invoices will be payable by wire
transfer, to the following account, in United States dollars:
Xxxxx Fargo Bank
0 Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Account: 4103 134 193
Routing: 121 000 248
Account Name: Ascend Communications, Inc.
In the event that Buyer fails to make any payment when due, Ascend may
withhold further shipments until such time as the past-due payment is
made, and may require that subsequent orders be paid in full prior to
shipment.
6.2 Ascend reserves the right to impose a late payment charge of one and
one-half percent (1 1/2%) per month, or the maximum allowed by law, for
each month that any payment is late, including the month in which the
payment was due and not paid. Buyer shall also pay Ascend's costs of
collecting any amounts that are overdue including, but not limited to,
reasonable collection and attorneys' fees.
5
6.3 Buyer shall pay all municipal, state, county or federal taxes including,
but not limited to sales, use, excise, value added or other taxes which
may be levied upon the sale, license or transfer, ownership or
installation of the Products.
7. CHANGES/AVAILABILITY OF PRODUCTS
7.1 Ascend shall promptly inform Buyer as soon as is reasonably practicable
after Ascend schedules discontinuance of production or modification of
any hardware Product. Ascend, in its sole discretion, may modify its
price list at any time. Ascend agrees to offer spare parts for any
discontinued product for a period of ninety (90) days following the
announcement of any discontinuance.
7.2 At any time prior to delivery, Ascend may make changes in the Products in
whole or in part to be supplied to the Buyer hereunder to include
electrical or mechanical design refinements that Ascend deems
appropriate, or as required by law or concerns of safety, without
obligation to modify or change any Product previously delivered or to
supply Products in accordance with earlier specifications.
8. LICENSE OF SOFTWARE PRODUCTS AND FIRMWARE
8.1 Subject to the provisions of this Section, Ascend grants to Buyer a
nonexclusive, nontransferable license to use the object code form of the
software Products solely for Buyer's internal business purposes on or in
conjunction with the Product with which it was originally delivered.
8.2 Subject only to the licenses specifically granted herein, Ascend is the
sole owner of all rights, title and interest, including all copyrights,
patents, trademarks, industrial designs, trade names, trade secrets and
other intellectual property rights in he software Products. The software
Products are copyrighted and Buyer is only authorized to reproduce one
copy of the software Products solely for back-up purposes. Buyer is
hereby prohibited from otherwise copying or translating, modifying or
adapting the software Products or, incorporating in whole or any part in
any other product or creating derivative works based on all or any part
of the Products. Buyer is not authorized to license others to reproduce
any copies of the software Products, except as expressly provided in this
Agreement. Buyer agrees to ensure that all copyright, trademark and
other proprietary notices of Ascend affixed to or displayed on the
software Products will not be removed or modified. Buyer shall not
decompile, disassemble or reverse engineer, the software Products or any
component thereof, except as may be permitted by applicable law in which
case Buyer must notify Ascend in writing and Ascend may provide review
and assistance.
6
8.3 The rights and licenses granted to Buyer with respect to any software
Product furnished by Ascend may not be sold, licensed, sublicensed,
rented, assigned or otherwise transferred to another party without the
prior written consent of Ascend.
8.4 Upon the effective date of a termination of this Agreement by Ascend
for Buyer's breach or for any other reason, the license granted to
Buyer under this Agreement shall terminate and Buyer shall immediately
discontinue use of the software and all copies and documentation
thereof and return all copies and documentation to Ascend.
8.5 US Government Restricted Rights. Notice - Distribution and use of
products including computer programs and any related documentation and
derivative works thereof, to and by the United States Government, are
subject to the Restricted Rights provisions of FAR 52227-19, paragraph
(c)(2) as applicable, except for purchases by agencies of the
Department of Defense (DOD). If the Software is acquired under the
terms of a Department of Defense or civilian agency contract, the
Software is "commercial item" as that term is defined at 48 C.F.R.
2.101 (Oct. 1995), consisting of "commercial computer software" and
"commercial computer software documentation" as such terms are used
in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its
successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of
the DoD FAR Supplement and its successors. All U.S. Government end
users acquire the Software with only those rights set forth in this
Agreement. Manufacturer is Ascend Communications, Inc., One Ascend
Plaza, 0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx, XX 00000, XXX. Unpublished -
rights reserved under the copyright laws of the United States.
9. SUPPORT
Buyer may elect to purchase maintenance or support services from
Ascend in connection with the Products pursuant to Ascend's standard
terms and conditions and then-current programs. The provision of all
such maintenance and support services shall be governed by the
applicable agreement entered into between the parties.
10. LIMITED WARRANTY
Product Warranty: Product hardware and media are warranted to be free
from defects in material and workmanship during the Warranty Period
(as defined below). Product hardware and software is warranted to
conform substantially to Ascend's then current (as of the date of
Ascend's product shipment) published user documentation during the
Warranty Period. The Warranty Period is twelve (12) months for
Product hardware ninety (90) days for Product software, and thirty
(30) days for media. Product support beyond these periods may be
available at additional cost.
10.2 Warranty Claims: Ascend shall incur no liability under this warranty
if the end user fails to provide Ascend with notice of the alleged
defect during the applicable Warranty Period and within thirty (30)
days of its discovery. After receiving such notice, Ascend's
7
Technical Assistance Center ("TAC") will notify the purchaser of its
designation of one of the following problem resolution methods:
Return to Factory: The allegedly defective goods must be returned to
Ascend within thirty (30) days of TAC'S notice and in accordance with
Ascend's Return to Factory repair procedures.
Other: TAC will use commercially reasonable efforts to repair,
correct or workaround the problem by means of telephone support,
including patches, corrective software releases or other means
reasonably determined by Ascend.
Ascend shall incur no liability under this warranty if Ascend's tests
disclose that the alleged defect is due to causes not within Ascend's
reasonable control, including alteration or abuse of the goods. Under
the Return to Factory alternative, if a Product is determined not to be
defective or to have a defect due to causes not within Ascend's
reasonable control, Ascend's then current processing charge will apply.
10.3 Ascend's Liability: Ascend's liability, and end user's sole and
exclusive remedy, shall be limited to the express remedies set forth in
this Ascend Product Warranty.
104. Disclaimer of Warranties: ASCEND MAKES NO OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, REGARDING PRODUCTS. ALL OTHER WARRANTIES AS TO
THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
10.5 Limitation of Liability: ASCEND SHALL NOT BE RESPONSIBLE FOR DIRECT
DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID BY THE END USER OR FOR
ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGE, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS OR DAMAGES TO BUSINESS OR BUSINESS
RELATIONS, WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF
SUCH DAMAGES THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE
FAILURE OF ANY EXCLUSIVE REMEDIES.
10.6 Warranty Repair (Return to Factory): If TAC designates Return to Factory
as the appropriate problem resolution method, the following provisions
apply,
(a) During the first ninety (90) days of the warranty period, Ascend
may at its option provide an advance replacement of a defective Product.
Ascend will repair or replace defective Product hardware covered under
warranty within ten (10) business days of receipt of the Product. The
warranty period for the replaced product shall be ninety (90) days or the
remainder of the warranty period of the original unit, whichever is
greater. Ascend will ship surface freight. Expedized freight is at end
user's expense.
8
(b) The end user must return the defective Product to Ascend within
fourteen (14) days after the request for replacement. If the defective
Product is not returned within this time period, Ascend will xxxx the
end user for the Product at list price.
10.7 Out-of-Warranty Repair (Hardware): Ascend will either repair or, at its
option, replace defective Product hardware not covered under warranty
within ten (10) working days of its receipt. Repair charges are
available from the Repair Facility upon request. The warranty on a
serviced Product is thirty (30) days from the date of shipment of the
serviced unit. Out-of-warranty repair charges are based upon the prices
in effect at the time of return.
10.8 Ascend hereby agrees to indemnify, protect and hold Buyer and its
affiliates harmless from and against any claims, losses, damages, costs,
liabilities, obligations and expenses, including reasonable fees and
expenses of counsel, arising from or relating to, directly or indirectly
any breach by Ascend of any of its warranties hereunder; provided,
however, that Ascend's liability under this Section 10.8 shall be
limited to the price actually paid by Buyer for the affected Products.
11. INTELLECTUAL PROPERTY RIGHTS
Except as described in this Agreement, Ascend does not grant and Buyer
acknowledges that it shall have no right, license or interest in any of
the patents, copyrights, trademarks, or trade secrets owned, used or
claimed now or in the future by Ascend. All applicable rights to such
patents, copyrights, trademarks, and trade secrets are and will remain
the exclusive property of Ascend. Subject to the rights expressly granted
to Buyer by this Agreement, title to and ownership of the intellectual
property rights contained in the Products or any part of the Products or
Ascend's confidential information shall remain Ascend's property.
12. PATENT AND COPYRIGHT INDEMNIFICATION
12.1 Ascend agrees to indemnify and hold buyer harmless from and against all
valid claims and judicial or governmental determinations that the
Products as delivered by Ascend under this Agreement infringe or
misappropriate any United States patent rights, copyrights, trade
secrets, or trademarks. Ascend shall assume the defense of any such claim
of infringement or misappropriation brought against Buyer in the United
States by counsel retained at Ascend's own expense, provided that Buyer
promptly notifies Ascend in writing of such claim or the commencement of
any such suit, action, proceeding or threat covered by this Section.
Ascend shall maintain sole and exclusive control of the defense and/or
settlement of any such claim and Buyer shall cooperate in the defense of
such claim.
9
12.2 In the event that the use or sale of all or any portion of the
Products is enjoined, or, in Ascend's judgment, may be enjoined as a
result of a suit based on alleged infringement or misappropriation of
the third party intellectual property rights, Ascend agrees to either
(i) procure for Buyer the right to continue to use the Product, or
(ii) replace or modify the infringing or misappropriating Product so
that it becomes non-infringing. In the event that the foregoing
alternatives cannot be reasonably accomplished by Ascend, Ascend shall
direct Buyer to return the Product to Ascend and upon receipt of the
Product(s), Ascend shall reimburse Buyer for the price originally paid
by Buyer as depreciated by an equal annual amount over the lifetime of
the Product. Upon Ascend's fulfillment of the alternatives set out in
this Section, Ascend shall be relieved of any further obligation or
liability to Buyer as a result of any such infringement or
misappropriation.
12.3 Regardless of any other provisions of this Agreement, this Section
shall not apply (i) to any designs, specifications or modifications
originating with or requested by Buyer, or (ii) to the combination
of any Product with other equipment, software or products not
supplied by Ascend if such infringement or misappropriation would
not have occurred but for such combination, or (iii) Buyer's failure
to install an update provided at no additional charge, where the
update would have avoided the infringement claim. Buyer shall
indemnify and hold Ascend harmless against all claims that Buyer's
designs, specifications, modifications or combinations of Products
with other equipment infringes or misappropriates any third party's
patent rights, copyrights, trade secrets, trademarks or other
intellectual property rights.
12.4 THIS SECTION STATES ASCEND'S ENTIRE LIABILITY TO BUYER AND BUYER'S
SOLE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT
RIGHTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
13. GENERAL INDEMNITY
-----------------
Buyer agrees to indemnify and hold Ascend harmless from and against
any claims, damages and liabilities, including reasonable attorney's
fees, asserted by any person or entity resulting directly or indirectly
from (i) any breach by Buyer of this Agreement, and (ii) from any
negligent act or omission of Buyer, provided, however, that Buyer shall
not be liable for that portion of liabilities which are caused by the
sole negligence of Ascend.
14. LIMITATION OF LIABILITY
-----------------------
EXCEPT AS PROVIDED HEREIN OR IN SECTION 12, ASCEND'S MAXIMUM
LIABILITY UNDER THIS AGREEMENT ARISING OUT OF THE MANUFACTURE,
10
SALE, SUPPLY, SERVICE OR SUPPORT OF PRODUCTS OR THEIR USE, WHETHER
BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PRICE BUYER PAID FOR
THE PRODUCT OR SUPPORT THAT GAVE RISE TO THE LIABILITY. IN NO EVENT
SHALL ASCEND BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY PUNITIVE DAMAGES OR LOST PROFITS, WHETHER
FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING
WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOSS OR DAMAGED
DATA OR SOFTWARE, LOSS OF USE OF THE PRODUCTS, DOWNTIME OR COSTS OF
SUBSTITUTE PRODUCTS OR EQUIPMENT) ARISING FROM ASCEND'S SALE AND
DELIVERY OF THE PRODUCTS OR ANY OTHER ACT OF ASCEND IN CONNECTION
WITH THIS AGREEMENT, EVEN IF ASCEND HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NO LIMITATION AS TO DAMAGES FOR
PERSONAL INJURY IS HEREBY INTENDED. SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND
THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
15. CONFIDENTIALITY
---------------
15.1 For purposes of this Agreement, "Confidential Information" shall
mean all information (i) identified in written or oral format by the
disclosing party as confidential, trade secret or proprietary
information and, if disclosed orally, summarized in written format
within thirty (30) days of disclosure, or (ii) the receiving party
knows or has reason to know is confidential, trade secret or
proprietary information of the Disclosing Party.
15.2 Notwithstanding the foregoing, "Confidential Information" shall NOT
include any information which the receiving party can show: (a) is now
or subsequently becomes legally and publicly available without breach
of this Agreement by the receiving party, (b) was rightfully in the
possession of the receiving party without any obligation of
confidentiality prior to receiving it from the disclosing party,
(c) was rightfully obtained by the receiving party from a source other
than the disclosing party without any obligation of confidentiality,
(d) was developed by or for the receiving party independently and
without reference to any Confidential Information and such independent
development can be shown by documentary evidence, or (e) is disclosed
pursuant to an order of a court or governmental agency as so required
by such order, provided that the receiving party shall first notify
the disclosing party of such order and afford the disclosing party the
opportunity to seek a protective order relating to such disclosure.
15.3 Buyer agrees not to use such Confidential Information except in its
performance under this Agreement. In addition, Buyer shall treat and
protect such information in the same manner as it treats its own
information of like character, but with not less than reasonable
11
care. Buyer agrees to take appropriate measures by instruction and
written agreement prior to disclosure of Confidential Information to
its employees to prevent unauthorized use or disclosure. The
obligations of this Section with regard to Confidential Information
shall continue for a period of five (5) years after termination or
expiration of this Agreement. Confidential Information must be
returned by the receiving party upon termination or expiration of this
Agreement.
15.4 In the event of a breach of any of the foregoing provisions, Buyer
agrees that the harm suffered by Ascend would not be compensable by
monetary damages alone and, accordingly, that Ascend shall, in addition
to other available legal or equitable remedies, be entitled to an
injunction against such breach.
16. TERMINATION
-----------
16.1 Either party may terminate this Agreement at any time, with or
without cause, upon ninety (90) days prior written notice to the other
party.
16.2 If Buyer is in breach of this Agreement, Ascend shall give Buyer
thirty (30) days' prior written notice to cure such breach. If such
breach has not been cured to Ascend's satisfaction within such thirty
(30) day period, then this Agreement shall automatically terminate at
the end of said thirty (30) day period without further notice to Buyer.
If Buyer is in breach of the Section entitled License of Software
Products and Firmware, Ascend shall have the right to immediately
terminate this Agreement.
16.3 This Agreement may be terminated for cause by either party in the
event that the other party: (i) shall become insolvent; (ii) commits
an act of bankruptcy; (iii) seeks an arrangement or compromise with
its creditors under any statute or otherwise; (iv) is subject to a
proceeding in bankruptcy, receivership, liquidation or insolvency
and same is not dismissed within thirty (30) days; (v) makes an
assignment for the benefit of the creditors; (vi) admits in writing
its inability to pay its debts as they mature; or (vii) ceases to
function as a going concern or to conduct its operations in the
normal course of business. In addition, Ascend may immediately
terminate this Agreement if there is a change in the controlling
ownership of Buyer.
16.4 If Buyer defaults under this Agreement, Ascend shall have the right
to take any or all of the following actions: (i) declare this
Agreement to be in default and all amounts payable under this
Agreement shall become immediately due and payable; (ii) suspend
delivery to Buyer until the default is cured by Buyer; (iii) proceed
by court action to enforce performance and/or recover damages and/or
(iv) terminate this Agreement. If Ascend continues to make shipments
after Buyer's default, Ascend's action shall not constitute a waiver
of any rights or remedies, or affect Ascend's legal remedies under
this Agreement.
12
16.5 The termination or expiration of this Agreement shall in no case
relieve either party from its obligation to pay to the other any
sums accrued under this Agreement prior to such termination or
expiration.
17. GENERAL
17.1 ENTIRE AGREEMENT; AMENDMENT; AUTHORIZED PERSONNEL. This Agreement
supersedes all prior and contemporaneous agreements,
representations, warranties and understandings and contains the
entire Agreement between the parties. No amendment, modification,
termination, or waiver of any provision of this Agreement or consent
to any departure from this Agreement shall be effective unless it is
in writing and signed by a duly authorized representative of each
party. No failure or delay on the part of Ascend in exercising any
right or remedy under this Agreement shall operate as a waiver of
such right or remedy.
17.2 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, but
neither party shall have the right to assign or otherwise transfer its
rights under this Agreement without receiving the express prior written
consent of the other party. Ascend may, however, assign this Agreement
in the event of a sale of all or substantially all of Ascend's assets or
stock to which assignment the Buyer consents in advance.
17.3 NOTICES. All notices, requests, demands, and other communications
provided for under this Agreement shall be in writing and in English to
be sent by registered or certified mail, postage prepaid, to the
receiving party at its address as set forth in this Agreement or to any
other address that the receiving party may have provided to the sending
party in writing. When feasible, any such notice, request, demand or
other communication shall also be transmitted by facsimile as follows or
to such other facsimile number as provided by the receiving party in
writing:
- Buyer's Facsimile Number: 000-000-0000
-------------------
- Ascend's Facsimile Number: (000) 000-0000 ATTN: General Counsel
Any notice, request, demand or other communication sent by facsimile
will be deemed to have been received on the day it is sent. Any notice,
request, demand or other communication sent by registered or certified
mail will be deemed to have been received on the seventh (7th) business
day after its date of posting, unless it is sent by facsimile prior to
such seventh (7th) business day.
17.4 GOVERNING LAW. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the
State of California. All actions or proceedings relating to
13
this Agreement shall be maintained in a court located in Alameda County,
State of California, and the parties hereto consent to the jurisdiction
of said court and waive any objection to such venue. The United Nations
Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
17.5 LEGAL ACTION. No action, regardless of form, arising out of the
transactions under this Agreement, except regarding money due to Ascend
from Buyer, may be brought by either party more than two (2) years after
the cause of action accrues.
17.6 COUNTERPARTS; SEVERABILITY; AND HEADINGS. This Agreement may be
executed in any number of counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument. The provisions of
this Agreement are declared to be severable. In the event that any
provision contained in this Agreement shall be held to be unenforceable
or invalid, the remaining provisions shall be given full effect, and the
parties agree to negotiate, in good faith, a substitute valid provision
which most nearly approximates the parties' intent. The failure of
either party in any one or more instances to enforce any of the terms of
this Agreement shall not be construed as a waiver of future enforcement
of that or any other term. Headings in this Agreement are included for
reference only and shall not constitute a part of this Agreement for any
other purpose.
17.7 FORCE MAJEURE. Neither party shall be held responsible for any delays
or failure in performance (except for the payment of money) caused in
whole or in part by fires, strikes, floods, embargoes, labor disputes,
delays or failures of subcontractors, acts of sabotage, riots,
accidents, delays of carriers, voluntary or mandatory compliance with
any governmental act, regulation or request, acts of God or by public
enemy, or any other causes beyond the party's reasonable control. If
such contingency shall occur, the defaulting party may elect to either
(a) suspend this Agreement for the duration of the delaying cause, or
(b) extend the duration of this Agreement by the length of time the
contingency endured.
17.8 SURVIVAL. The parties agree that the provisions of the following
Sections shall survive the expiration or earlier termination of this
Agreement for any reason: License of Software Products and Firmware,
Patent and Copyright Indemnification, Limitation of Liability, and
Confidentiality.
14
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives as of the effective date
written below.
ASCEND COMMUNICATIONS, INC. STARTEC GLOBAL OPERATING COMPANY
By: /s/ Illegible By: /s/ Illegible
--------------------------------- -----------------------------
Name: Xxxxxxx Seveneus Name: Xxxxxxx Xxxxxxx
------------------------------- ---------------------------
Title: Assistant Treasurer Title: Chief Financial Officer
------------------------------ --------------------------
Effective Date: May 5, 1999 Date: May 5, 1999
--------------------- ---------------------------
EXHIBIT(S):
Exhibit A: Master Lease Agreement and Lease Schedules
Exhibit B: Initial Purchase Order
Exhibit C: Term Sheet
Exhibit D: Advantage Plus Service Agreement
16
EXHIBIT A
to
ASCEND PURCHASE AND LICENSE AGREEMENT
MASTER LEASE AGREEMENT AND LEASE SCHEDULES
------------------------------------------
MASTER LEASE AGREEMENT
No. A
------
This Master Lease Agreement (the "MLA") is entered into by and
between Ascend Credit Corporation ("Lessor"), having its principal
place of business at 0000 Xxxxxx Xxx Xxxxxxx, Xxxxxxx, XX 00000
and Startee Global
---------------------------------------------------------
Operating Company ("Lessee"),
---------------------------------------------------
having its principal place of business at 10411
------------------------
Motor City Dr. Xxxxxxxx, XX 00000
-----------------------------------------------------------------
-------.
1. LEASE AGREEMENT. Lessor agrees to lease to Lessee, and Lessee agrees
to lease from Lessor, the equipment (the "Equipment") referenced in each of
the Schedules (the "Schedule" or "Schedules") which incorporate this MLA
therein (the "Lease").
2. TERM. Each Lease shall be effective upon the execution of the MLA and
the related Schedule by the Lessor and the Lessee. The lease term (the "Lease
Term") of the Equipment referenced in each of the Schedules shall commence on
the rent commencement date specified in each Schedule (the "Rent Commencement
Date"). The Rent Commencement Date shall be the date 30 days from the date
that the Equipment is shipped by the lessor or other third-party supplier
("Supplier) as evidenced by a shipping document provided by the Supplier
related to the Equipment (the "Shipping Document"). Lessor will provide
lessee with a copy of the Shipping Document evidencing the Ship Date.
3. RENT. The rent (the "Rent") for the Equipment referenced in any
Schedule shall be as stated in such Schedule and shall be payable according
to the provisions of such Schedule. If any amount payable under a Schedule is
not received by Lessor within 10 days of the due date, Lessee agrees to pay
an Overdue Charge, as defined herein, with respect to such amount.
17
4. SELECTION AND ASSIGNMENT. Lessee will select the type, quantity and
Supplier of each item of Equipment designated in a Schedule, and Lessee
hereby assigns to Lessor all of its right, title and interest in and to the
related equipment purchase order, a copy of which has been provided to Lessor
by Lessee (the "Agreement"). The Agreement may be amended with the consent of
Lessor. Any such assignment with respect to Equipment shall become binding
upon Lessor when Lessor and Lessee have entered into a Lease with respect to
such Equipment and as of the Rent Commencement Date referenced in such Lease.
Upon such an assignment becoming effective, Lessor shall be obligated to
purchase the Equipment from the Supplier in accordance with the provisions of
the Agreement. It is expressly agreed that Lessee shall at all times remain
liable to Supplier under the Agreement to perform all duties and obligations
of Lessee thereunder, except for the obligation to purchase the Equipment to
the extent expressly assumed by the Lessor hereunder, and that the Lessee
shall be entitled to the same rights of the purchaser of the Equipment under
the Agreement, except such right, title and interest in the Equipment
retained exclusively by the Lessor as owner of the Equipment. Lessor shall
have no liability for a Supplier's failure to meet the terms and conditions
of the Agreement.
5. DELIVERY AND INSTALLATION. Lessee shall be responsible for payment of
all transportation, packing, installation, testing and other charges
associated with the delivery, installation or use of any Equipment which are
not included in the Agreement with respect to such Equipment.
6. WARRANTIES. LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT, ITS
MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE. LESSOR SHALL NOT BE
LIABLE TO LESSEE OR ANY OTHER PERSON FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM LESSEE'S USE OF THE
EQUIPMENT, OR FOR DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR
LESSOR'S PASSIVE NEGLIGENCE. LESSEE HEREBY ACKNOWLEDGES THAT ANY
MANUFACTURER'S OR SUPPLIER'S WARRANTIES WITH RESPECT TO THE EQUIPMENT ARE FOR
THE BENEFIT OF BOTH LESSOR AND LESSEE. NOTWITHSTANDING THE FOREGOING,
LESSEE'S OBLIGATIONS TO PAY EACH RENT PAYMENT DUE, OR OTHERWISE PERFORM ITS
OBLIGATIONS, UNDER THIS LEASE ARE ABSOLUTE AND UNCONDITIONAL.
7. TITLE TO AND LOCATION OF EQUIPMENT. Lessor shall retain title to each
item of Equipment. Lessee, at its expense, shall protect Lessor's title and
keep the Equipment free from all claims, liens (other than liens and claims
created by Lessor's own actions and pledges, voluntary or otherwise),
encumbrances and legal processes. The Equipment is personal property and is
not to be regarded as part of the real estate on which it may be situated. If
requested by Lessor, Lessee will, on a best efforts basis and at Lessee's
expense, furnish a landlord or mortgagee waiver with respect to the
Equipment. The Equipment shall not be removed from the location specified in
the Schedule without the written consent of Lessor. Lessee shall, upon
Lessor's request, affix and maintain plates, tags or other identifying
labels, showing Lessor's ownership of the Equipment in a prominent position
on the Equipment.
18
8. USE OF EQUIPMENT, INSPECTION AND REPORTS. The use of the Equipment by
Lessee shall conform with all applicable laws, insurance policies, and
warranties of the manufacturer or Supplier of the Equipment. Lessor shall
have the right to inspect the Equipment at the premises where the Equipment
is located. Lessee shall notify Lessor promptly of any claims, liens,
encumbrances or legal processes with respect to the Equipment.
9. FURTHER ASSURANCES. Lessee shall execute and deliver to Lessor such
instruments as Lessor deems reasonably necessary to enforce Lessor's rights
hereunder. Lessor is authorized to file financing statements signed only by
the Lessor in accordance with the Uniform Commercial Code, or financing
statements signed by Lessor as Lessee's attorney-in-fact.
10. MAINTENANCE AND REPAIRS. Lessee shall, at its expense, maintain each
item of Equipment in good condition, normal wear and tear excepted. Lessee
shall be permitted to make any addition, alteration, or attachment to the
Equipment without Lessor's prior written consent, unless such addition,
alteration, or attachment cannot be removed upon the termination of the Lease.
Lessee shall make no repair, addition, alteration or attachment to the
Equipment which interferes with the normal operation or maintenance thereof
or creates a safety hazard. The creation of a mechanic's or materialman's
lien shall be allowed provided that such mechanic's or materialman's lien is
promptly cleared.
11. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to
perform any of its material obligations under a Lease, Lessor may perform any
act or make any payment which Lessor deems reasonably necessary for the
maintenance and preservation of the Equipment subject thereto and Lessor's
title thereto. All sums so paid by Lessor (together with all related Overdue
Charges), and reasonable attorneys' fees incurred by Lessor in connection
therewith shall be additional rent payable to Lessor on demand. The
performance of any such act or the making of any such payment by Lessor shall
not be deemed a waiver or release of any obligation or default on the part of
Lessee.
12. INDEMNIFICATION. Lessee assumes liability for, and hereby agrees to
indemnify, protect and hold harmless, Lessor, and its agents, employees,
officers, directors, partners and successors and assigns, from and against,
all liabilities, obligations, losses, damages, injuries, claims, demands,
penalties, actions, costs and expenses, including, without limitation,
reasonable attorneys' fees, arising out of the physical injury or damage to
the property arising from the use or operation of any item of Equipment, or
any failure on the part of Lessee to perform or comply with any of its
obligations under a Lease, excluding, however, any of the foregoing which
result from the gross negligence or willful misconduct of Lessor or its
affiliates. Such indemnities and assumptions of liabilities and obligations
shall continue in full force and effect, notwithstanding the expiration or
other termination of such Lease, until the expiration of the applicable
statute of limitations. Nothing contained in any Lease shall authorize Lessee
to operate the Equipment subject thereto so as to incur or impose any
liability on, or obligation for or on behalf of Lessor.
13. NO OFF-SET. All Rents shall be paid by Lessee irrespective of any
off-set, counterclaim, recoupment, defense or other right which Lessee may
have against Lessor, the manufacturer or Supplier of the Equipment or any
other party.
19
14. ASSIGNMENT BY LESSEE. Lessee shall not, without Lessor's prior
written consent, (which shall not be unreasonably withheld) (a) sell, assign,
transfer, pledge, hypothecate, or otherwise dispose of, encumber or suffer to
exist a lien upon or against, any of the Equipment or any Lease or any
interest herein, by operation of law or otherwise, or (b) sublease or lend
any of the Equipment or permit any of the Equipment to be used by anyone
other than Lessee; provided, however, that, notwithstanding the foregoing,
Lessee may assign, upon written notice to Lessor, any of the equipment or any
Lease, or any interest therein, to any person or entity (i) at least 50% of
the outstanding voting capital stock or equity interest of which is owned or
controlled by Lessee, (unless, by operation of a "supermajority" provision in
such entity's governing documents, Lessee does not, in fact, control the
day-to-day management and affairs or such entity) or (ii) with respect to
which the Lessee controls the day-to-day management and affairs by contract,
representation on the board of directors (or similar body), or otherwise.
15. ASSIGNMENT BY LESSOR. Lessor may assign, sell or encumber its
interest in any of the Equipment and any Lease upon not less than 30 days'
notice to Lessee. Upon Lessor's written consent, Lessee shall pay directly
to the assignee of any such interest or Rent and other sums due under an
assigned Lease. THE RIGHTS OF ANY SUCH ASSIGNEE SHALL NOT BE SUBJECT TO ANY
ABATEMENT, DEDUCTION, OFFSET, COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER
RIGHT WHICH LESSEE MAY HAVE AGAINST LESSOR OR ANY OTHER PERSON OR ENTITY.
Notwithstanding the foregoing, any such assignment (a) shall be subject to
Lessee's right to possess and use the Equipment subject to a Lease so long as
Lessee is not in default thereunder, and (b) shall not release any of
Lessor's obligations hereunder.
16. RETURN OF EQUIPMENT. Unless Lessee has exercised its option as
outlined in Section 7 of the Lease Schedule Agreement to renew a lease or
purchase the Equipment subject thereto, upon expiration of the then current
Lease Term of such Lease, Lessee shall, at its expense, cause such Equipment
to be removed, disassembled, and placed in the same condition as when
delivered to Lessee (reasonable wear and tear excepted) and properly crate
such Equipment for shipment and deliver it to a common carrier designated by
Lessor. Lessee will ship such Equipment F.O.B. destination, to any address
specified in writing by Lessor within the continental United States. All
additions, attachments, alterations and repairs made or placed upon any of
the Equipment shall become part of such Equipment and shall be the property
of Lessor.
20
17. EVENTS OF DEFAULT. The occurrence of any of the following shall be
deemed to constitute an Event of Default hereunder. (a) Lessee fails to pay
Rent, any other amount it is obligated to pay under a Lease or any other
amount it is obligated to pay to Lessor and does not cure such failure within
10 days of such amount becoming due; (b) Lessee fails to perform or observe
any obligation or covenant to be performed or observed by Lessee hereunder or
under any Schedule, including, without limitation, supplying all requested
documentation, and does not cure such failure within 10 days of receiving
written notice thereof from Lessor, (c) any representation or warranty made
or furnished by Lessee to Lessor in this MLA is proven to have been false in
any material respect when made; (d) the attempted sale or encumbrance by
Lessee of the Equipment, or the making of any levy, seizure or attachment
thereof or thereon, unless otherwise permitted by this MLA or consented to in
writing by Lessor; or (e) the dissolution, termination of existence,
discontinuance of business, insolvency, or appointment of a receiver of any
part of the property of Lessee, assignment by Lessee for the benefit of
creditors, or the commencement of proceedings under any bankruptcy,
reorganization or arrangement laws by or against Lessee.
18. REMEDIES OF LESSOR. At any time after the occurrence of any Event of
Default, Lessor may exercise one or more of the following remedies: (a)
Lessor may terminate any or all of the Leases with respect to any or all
items of Equipment subject thereto; (b) Lessor may recover from Lessee all
Rent and other amounts then due and to become due under any or all of the
Leases; (c) Lessor may take possession of any or all items of Equipment,
wherever the same may be located, without demand or notice, without any court
order or other process of law and without liability to Lessee for any damages
occasioned by such taking of possession, and any such taking of possession
shall not constitute a termination of any Lease; (d) Lessor may demand that
Lessee return any or all items of Equipment to Lessor in accordance with
Paragraph 16; and (e) Lessor may pursue any other remedy available at law or
in equity, including, without limitation, seeking damages, specific
performance or an injunction.
Upon repossession or return of any item of the 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 (after deducting the estimated fair market value of such
item at the expiration of the term of the applicable Lease, in the case of a
sale, or the rents due for any period beyond the scheduled expiration of such
Lease, in the case of any subsequent lease of such item, and all expenses
including, without limitation, reasonable attorneys' fees, incurred in
connection therewith towards the Rent and other amounts due under such Lease,
with any excess net proceeds to be retained by Lessor.
Each of the remedies under this Lease shall be cumulative, and not
exclusive, and in addition to any other remedy referred to herein or
otherwise available to Lessor in law or in equity. Any repossession or
subsequent sale or lease by Lessor of any item of Equipment shall not bar an
action for a deficiency as herein provided, and the bringing of an action the
entry of judgment against Lessee shall not bar lessor's right to repossess
any or all items of Equipment.
21
19. CREDIT AND FINANCIAL INFORMATION. Lessee shall provide to Lessor
from time to time additional information regarding operating performance or
projected performance, at Lessor's request.
20. INSURANCE. As of the date that risk of loss for the Equipment passes
from the Supplier to the Lessee under the terms of the Agreement, Lessee
shall obtain and maintain through the end of the Lease Term of each Lease
(and any renewal or extension thereof), at its own expense, property damage
and personal liability insurance and insurance against loss or damage to the
Equipment, including, without limitation, loss by fire (with extended
coverage), theft and such other risks of loss as are customarily insured
against with respect to the types of Equipment leased hereunder and by the
types of businesses in which such equipment will be used by Lessee. Such
insurance shall be in such amounts, with such deductibles, in such form and
with such insurers as shall be satisfactory to Lessor; provided, however,
that the amount of the insurance against loss or damage to the Equipment
shall not be less than the greater of the fair market value of such Equipment
on the date of loss or the amount of unpaid Rent payable hereunder. Each
insurance policy shall name Lessee as an insured and Lessor as an additional
insured or loss payee, and shall contain a clause requiring the insurer to
give lessor at least 30 days prior written notice of any alteration in the
terms of such policy or of the cancellation thereof. Lessee shall furnish to
Lessor a certificate of insurance or other evidence satisfactory to Lessor
that such insurance coverage is in effect; provided, however, that Lessor
shall be under no duty either to ascertain the existence of or to examine
such insurance policy or to advise Lessee in the event such insurance
coverage shall not comply with the requirements hereof. Lessee shall give
Lessor prompt notice of any damage to, or loss of, any of the Equipment, or
any part thereof, or any personal injury or property damage occasioned by the
use of any of the Equipment.
21. TAXES. Lessee hereby assumes liability for, and shall pay when due,
and, on a net after-tax basis, shall indemnify, protect and hold harmless
Lessor against all fees, taxes and governmental charges (including, without
limitation, interest and penalties) of any nature imposed on or in any way
relating to Lessor, Lessee, any item of Equipment or any Lease, except state
and local taxes on or measured by Lessor's net income (other than any such
tax which is in substitution for or relieves Lessee from the payment of taxes
it would otherwise be obligated to pay or reimburse to Lessor as herein
provided) and federal taxes on Lessor's net income. Lessee shall, at its
expense, file when due with the appropriate authorities any and all tax and
similar returns, and reports required to be filed with respect thereto, for
which it has indemnified Lessor hereunder or, if requested by Lessor, notify
Lessor of all such requirements and furnish Lessor with all information
required for Lessor to effect such filings. Any fees, taxes or other charges
paid by Lessor upon failure of Lessee to make such payments shall, at
Lessor's option, become immediately due from Lessee to Lessor and shall be
subject to the Overdue Charge from the date paid by Lessor until the date
reimbursed by Lessee.
22. SEVERABILITY. If any provision of any Lease is held to be invalid by
a court of competent jurisdiction, such invalidity shall not affect the other
provisions of such Lease or any provision of any other Lease.
23. NOTICES. All notices hereunder shall be in writing and shall be
deemed given when sent by certified mail; postage prepaid, return receipt
requested, addressed to the
22
party to which it is being sent at its address set forth herein or to such
other address as such party may designate in writing to the other party.
24. AMENDMENTS, WAIVERS AND EXTENSIONS. This MLA and each Schedule
constitute the entire agreement between Lessor and Lessee with respect to the
lease of the Equipment subject to such Schedule, and supersede all previous
communications, understandings, and agreements, whether oral or written,
between the parties with respect to such subject matter. No provision of any
Lease may be changed, waived, amended or terminated except by a written
agreement, specifying such change, waiver, amendment or termination, signed
by both Lessee and Lessor, except that Lessor may insert, on the appropriate
schedule, the serial number of Equipment, after delivery of such Equipment
and the Rent Commencement Date for the Equipment. No waiver by Lessor of any
Event of Default shall be construed as a waiver of any future Event of
Default or any other Event of Default. At the expiration of the Lease Term
with respect to a Lease, upon notice given by Lessee at least ninety (90)
days prior thereto, (a) such Lease shall be renewed or the Equipment subject
thereto shall be purchased under the terms and conditions set forth herein
for a term and rent amount or purchase price, as the case may be, to be
agreed upon, or (b) if no such agreement is reached prior to the expiration
of such Lease Term or such notice specifies that Lessee intends to return the
Equipment, then Lessee shall return the Equipment to Lessor in the manner
prescribed in Paragraph 16 of this MLA. In the absence of Lessor's timely
receipt of the notice contemplated by the preceding sentence, the Lease shall
be automatically extended, on a month-to-month basis, until terminated (upon
notice by either party given at least ninety (90) days prior to the end of
the month on which the termination is to be effective) or until renewed or
the Equipment subject thereto is purchased by agreement of the parties.
Unless otherwise agreed, Lessee shall continue to pay Rent for each month
following such Lease Term until the Equipment subject to such Lease is
returned pursuant to Paragraph 16 of this MLA.
25. CONSTRUCTION. This MLA shall be governed by and construed in
accordance with the internal laws, but not the choice of laws provisions, of
the State of California. The titles of the sections of this MLA are for
convenience only and shall not define or limit any of the terms or provisions
hereof. Time is of the essence in each of the provisions hereof.
26. PARTIES. This MLA shall be binding upon, and inure to the benefit
of, the permitted assigns, representatives and successors of the Lessor and
Lessee. If there is more than one Lessee named in this MLA, the liability of
each shall be joint and several.
27. COUNTERPARTS. Each Lease may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
28. OVERDUE CHARGE. Overdue Charge shall mean an amount equal to 2%
per month of any payment under a Lease which is past due, including without
limitation, any amounts not included in any payment of Rent hereunder, or the
highest charge permitted by law, whichever is lower.
The person executing this MLA on behalf of Lessee hereby certifies that he or
she has read, and is duly authorized to execute, this MLA
23
Accepted by:
Ascend Credit Corporation
LESSEE: Startec Global Operating Company
----------------------------------------------------------
BY: BY:
---------------------------------- -------------------------------------
NAME: Xxxxxxx Seveneus NAME: /s/ Xxxxxxx Xxxxxxx
-------------------------------- -----------------------------------
TITLE: Assistant Treasurer TITLE: Chief Financial Officer
-------------------------------- -----------------------------------
DATE: May 5, 1999 DATE: May 5, 1999
-------------------------------- -----------------------------------
24
LEASE-TO-OWN SCHEDULE No.
--------------
This Schedule and its supplements incorporate by this reference the terms and
conditions of the Master Lease Agreement, Number A , between
-------------------
Ascend Credit Corporation (Lessor) and Startec Global
---------------------------------------
Operating Company (Lessee)
------------------------------------------------------------------------------
1. SUPPLIER:
-----------------------------------------------------------------
Ascend Communications, Inc.
-------------------------------------------------------------------------------
------------------------------------.
2. LOCATION OF EQUIPMENT: TBD
-------------------------------------------------------
--------------------------------------------------------------------------------
------------------------------------.
3. EQUIPMENT VALUE: $ TBD
------------------------------------------------------------
-------------------------------------------------------------(exclusive of sales
and/or use taxes).
4. LEASE TERM: The Lease Term of the Equipment described in this Schedule
shall begin on the Rent Commencement Date referenced below in Paragraph 6 and
its
25
expiration date shall be months after such Rent Commencement
-----------------
Date.
5. RENT: $ TBD per month (exclusive of sales and/or use taxes)
-----------------
due and payable at the Rent Commencement Dates and on the same date of each
succeeding month of the Lease Term. The advance Rent payment shall be $
------
. This amount includes $
----------------------------- --------------------------
for the first month, and $ for the last
---------------------------------
month(s), of the Lease Term.
-------------------------
6. RENT COMMENCEMENT DATE: TBD
---------------------------------------------------
7. PURCHASE OPTION: Lessee shall be required to purchase the Equipment for
one dollar ($1.00). The purchase price shall be payable upon the expiration
date of the Lease Term. Lessee shall be responsible for all applicable sales
and/or use taxes on the Equipment. Upon payment of the purchase price,
Lessor shall execute and deliver to Lessee such documents as Lessee may
reasonably request in order to vest in Lessee all right, title and interest
in the Equipment. Provided Lessee is not in default under the Master Lease
Agreement or any Lease Schedule Agreement (the "Schedule"). Lessee may at
any time upon ninety (90) days written notice (the "Notice") to Lessor,
pre-pay the Schedule with respect to all of the Equipment on the Schedule.
The pre-payment will be effective on the first Rent payment date following
the expiration of the ninety (90) day notice period (the "Pre-payment Date").
Lessee will, on the Pre-payment Date pay to Lessor or Lessor's assignee, as
the case may be, the Pre-Payment Value. The Pre-payment Value shall be equal
to the present value of the remaining unpaid Rent payments, discounted at a
rate equal to the yield to maturity for United States Treasury obligations
(as published in the Wall Street Journal as of the Rent Commencement Date)
with a like-term maturity to the Schedule plus fifty (50) basis points,
together with all other amounts then due and owing. Upon payment of the
Pre-payment Value, Lessee will not be obligated to pay any further Rent, and
all other terms will remain in full force and effect.
8. DESCRIPTION OF EQUIPMENT: See Schedule A which is attached hereto and
made a part hereof by this reference.
26
The person executing this Schedule on behalf of Lessee hereby certifies that
he or she has read, and is duly authorized to execute, this Schedule
Accepted by:
Ascend Credit Corporation
LESSEE: Startec Global Operating Company
-----------------------------------------------------------
------
BY:
-------------------------------------------------------------------------
------------------- BY: DRAFT
-----------------------------------------------------
--------------------------
NAME:
-------------------------------------------------------------------------
NAME:
------------ -----------------------------------------------------------
27
-----------------------------------------
Print
Print
TITLE:
-------------------------------------------------------------------------
TITLE:
----------------------------------- -------------------------------------
DATE:
--------------------------------------------------------------------------
DATE:
-------------------------- ----------------------------------------------
--------------------------------------
28
