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EXHIBIT 10.16
0000 Xxxxxxx Xxx. X., Xxxxxx XX 00000
T&W Funding Company V, L.L.C. X.X. Xxx 0000, Xxxxxxx Xxx XX 00000 Lease Number 1926101
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ADDRESSEE: U.S. ONLINE COMMUNICATIONS. L.L.C.
ADDRESS: 0000 Xxxxx Xxxxx Xxxx. EQUIPMENT: DTI - 000 Xxxxxx Xx.
Xxxxxx, XX 00000 LOCATION: Xxxxxxx XX 00000 (Madison County)
EQUIPMENT & VENDOR(S): SEE SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF
TERMS: 36 Monthly Rentals of $18,738.22 + Applicable TN Tax of 0.00 = 18,738.22 (U.S.) SECURITY DEPOSIT: $18,738.22
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TERMS AND CONDITIONS OF LEASE
LEASE. Lessee hereby leases from Lessor, and Lessor leases to Lessee,
the personal property described above, together with any replacement parts,
additions, repairs or accessories nor or hereafter incorporated in or affixed to
it (hereinafter referred to as the "Equipment").
ACCEPTANCE OF EQUIPMENT. Lessee agrees to inspect the Equipment and to
execute an Acknowledgement and Acceptance of Equipment by Lessee notice as
provided by Lessor, after the equipment has been delivered and after Lessee is
satisfied that the Equipment is satisfactory in every respect Lessee hereby
authorizes Lessor to insert in this Lease serial numbers or other identifying
data with respect to the Equipment.
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DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. THERE ARE
NO WARRANTIES BY OR ON BEHALF OF LESSOR. Lessee acknowledges and agrees by his
signature below as follows:
(a) LESSOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED AS TO THE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS FITNESS OR SUITABILITY FOR
ANY PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY, OR WITH RESPECT
TO ANY CHARACTERISTICS OF THE EQUIPMENT;
(b) Lessee has fully inspected the Equipment which it has requested
Lessor to acquire and lease to Lessee, and the Equipment is in good condition
and to Lessee's complete satisfaction;
(c) Lessee leases the Equipment "as is" and with all faults;
(d) Lessee specifically acknowledges that the Equipment is leased to
Lessee solely for commercial or business purposes and not for personal, family,
household, or agricultural purposes;
(e) If the Equipment is not properly installed, does not operate as
represented or warranted by the supplier or manufacturer, or is unsatisfactory
for any reason, regardless of cause or consequence, Lessee's only remedy, if
any, shall be against the supplier or manufacturer of the Equipment and not
against Lessor;
(f) Provided Lessee is not in default under this Lease, Lessor
assigns to Lessee any warranties made by the supplier or the manufacturer of the
Equipment;
(g) LESSEE SHALL HAVE NO REMEDY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES AGAINST LESSOR; and
(h) NO DEFECT, DAMAGE, OR UNFITNESS OF THE EQUIPMENT FOR ANY PURPOSE
SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR RELIEVE LESSEE OF ANY
OTHER OBLIGATION UNDER THIS LEASE.
CHOICE OF LAW, JURISDICTION AND VENUE. This Lease shall INITIALS:
not be effective until signed by Lessor at its principal place of
business listed above, Tacoma, WA, and shall be considered to ---------
have been made and shall be construed under the laws of the State
of Washington. Lessee agrees that should any legal action, suit,
or proceeding be initiated by any party to this Agreement with
regard to or arising out of this Lease, or the Equipment covered
hereby, such action shall be brought in the Superior Court of the
State of Washington in and for all parties consent to the
jurisdiction of such Court as to all such actions.
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STATUTORY FINANCE LEASE. Lessee agrees and acknowledges that it is the
intent of both parties to this Lease that it qualify as a statutory finance
lease under Article 2A of the Uniform Commercial Code. Lessee acknowledges and
agrees that lessee has selected both: (1) the Equipment; and (2) the supplier
from whom Lessor is to purchase the Equipment. Lessee acknowledges that Lessor
has not participated in any way in Lessee's selection of the Equipment or of the
supplier, and Lessor has not selected, manufactured, or supplied the Equipment.
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LESSEE IS ADVISED THAT IT MAY HAVE RIGHTS UNDER THE CONTRACT EVIDENCING
THE LESSOR'S PURCHASE OF THE EQUIPMENT FROM THE SUPPLIER CHOSEN BY LESSEE AND
THAT LESSEE SHOULD CONTACT THE SUPPLIER OF THE EQUIPMENT FOR A DESCRIPTION OF
ANY SUCH RIGHTS.
ASSIGNMENT BY LESSEE PROHIBITED. Lessee is expressly prohibited from
making any assignment of this Lease, subleasing the Equipment or any interest
therein, pledging or transferring the Lease, or otherwise disposing of the
Equipment covered hereby, in the absence of prior written consent of Lessor.
RENTAL PAYMENTS. Lessee agrees to pay rent in accordance with the terms
herein, the first monthly payment to be due on the 25th day of May, 1997, and a
like amount on the same day of each succeeding calendar month thereafter,
payments to be made at Lessor's address set forth above, or as otherwise
directed by Lessor.
(a) THIS LEASE IS NOT CANCELABLE OR TERMINABLE BY LESSEE.
(b) SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A
PART OF THIS LEASE.
(c) LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER,
NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER IS AN AGENT OF
LESSOR, NO BROKER OR SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER
OR SUPPLIER IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE
AND NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE BROKER OR
SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, SHALL IN
ANY WAY EFFECT LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM LESSEE'S
OBLIGATIONS SET FORTH IN THIS LEASE.
LESSEE ACKNOWLEDGES HAVING READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS LEASE, INCLUDING THE REVERSE SIDE HEREOF, AND AGREES TO BE
BOUND BY ALL OF THE TERMS AND PROVISIONS CONTAINED HEREIN UPON THE EXECUTION OF
THIS LEASE AGREEMENT OR EARLIER ACCEPTANCE OF THE LEASED EQUIPMENT.
LESSOR: T & W Funding Company V, L.L.C. LESSEE: U.S. ONLINE COMMUNICATIONS, L.L.C.
/S/ DATE 4/28/97 /S/ DATE 4-24-97
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J. Xxxxxx Xxxxxx, President
DATE
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