MASTER EQUIPMENT EXHIBIT 10.1
LEASE AGREEMENT
MASTER LEASE AGREEMENT NO. P98-24481
Master Lease Agreement ("Lease") made this 17th day of November 1998 between
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Paradyne Credit Corp. ("Lessor") with its principal place of business located at
0000 000xx Xxxxxx X. Xxxxx, XX 00000 and Network Access Solutions (NAS)
("Lessee") having its principal place of business located at 000 Xxxxxxxxx Xxxxx
Xxxxx 000 Xxxxxxxx, Xx. 00000.
1. LEASE AGREEMENT
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor all of
the personal property ("Equipment") described in Equipment Lease
Schedule(s), which are or may from time to time be executed by Lessor and
Lessee and attached hereto or which incorporate this Lease by reference
("Schedules"), upon the terms and conditions set forth in this Lease, as
supplemented by the terms and conditions set forth in the appropriate
Schedule(s) identifying such items of Equipment. All terms and conditions of
this Lease shall govern the rights and obligations of Lessor and Lessee
except as specifically modified In writing and signed by the parties hereto.
Each Schedule shall constitute a separate lease and a distinct and
independent obligation of the Lessee which shall incorporate by reference
the terms and conditions of this Lease. In the event of a conflict between
the terms and conditions of this Lease and the Schedule(s) hereto, those of
the Schedule(s) shall prevail. All Equipment leased hereunder shall be
leased for a term of forty-eight (48) months, with a one dollar ($1)
purchase option at lease expiration.
2. SELECTION OF EQUIPMENT; ACCEPTANCE
Lessee will select the type, quantity, and supplier of each item of
Equipment designated in the appropriate Schedule, and in reliance thereon
such Equipment will then be ordered by Lessor from such supplier or Lessor
will accept an assignment of any existing purchase order therefore. Lessor
will have no liability for any delivery or failure by the supplier to fill
the purchase order or to meet the conditions thereof. Lessee acknowledges
that Lessor has not participated and will not participate in any way in
Lessee's selection of the Equipment or the supplier. Within sixty (60) days
from date of shipment of the Equipment, Lessee agrees to inspect the
Equipment and to execute an Acknowledgment 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. In the event that Lessee fails to execute an Acknowledgment and
Acceptance of Equipment within such sixty (60) day period or fails to notify
Lessor in writing that the Equipment is not acceptable, Lessee shall be
deemed to have irrevocably accepted the Equipment. This Lease and all
Schedules are non-cancelable and Lessee agrees to pay the total rent for the
term indicated in each Schedule, plus any other sums provided for herein.
Lessee hereby authorizes Lessor to insert in this Lease and Schedules serial
numbers or other identifying data with respect to the Equipment.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES LESSOR IS
NEITHER THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT, AND
MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO
THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, THE MERCHANTABILITY OF THE
EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION
OF THE EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP
IN THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENT OF ANY
LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO; PATENT
INFRINGEMENT; OR LATENT DEFECTS. LESSEE LEASES THE EQUIPMENT "AS IS" AND
WITH ALL FAULTS. Lessee accordingly agrees not to assert any claim
whatsoever against Lessor for loss of anticipatory profits or consequential
damages. Lessor shall have no obligation to install, erect, test, service,
or maintain the Equipment. Lessee shall look to the manufacturer and/or
seller for any claims related to the Equipment.
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.
Lessor hereby acknowledges that any manufacturer's and/ or sellers
warranties are for the benefit of both Lessor and Lessee. NOTWITHSTANDING
THE FOREGOING, LESSEE'S OBLIGATIONS TO PAY THE RENTALS OR OTHERWISE UNDER
THIS LEASE SHALL BE AND ARE ABSOLUTE AND UNCONDITIONAL. To the extent
permitted by the manufacturer or seller, provided Lessee is not in default
under this Lease, Lessor shall make available to Lessee all manufacturer
and/or seller warranties with respect to Equipment.
Lessee specifically acknowledges that the Equipment is leased to Lessee
solely for lawful commercial or business purposes.
4. 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 of the Equipment. Lessee acknowledges that Lessor has not
participated in any way in Lessee's selection of the Equipment or the
supplier, and Lessor has not selected, manufactured, or supplied the
Equipment.
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.
5. ASSIGNMENT BY LESSEE PROHIBITED.
LESSEE SHALL NOT ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE, OR OTHERWISE DISPOSE
OF, ENCUMBER OR PERMIT A LIEN UPON OR AGAINST ANY INTERESTS IN THE LEASE,
ANY SCHEDULE OR THE EQUIPMENT OR PERMIT THE EQUIPMENT TO BE USED BY ANYONE
OTHER THAN LESSEE OR LESSEE'S EMPLOYEES OR SUBLEASE THE EQUIPMENT COVERED
HEREBY WITHOUT LESSOR'S PRIOR WRITTEN CONSENT.
6. COMMENCEMENT; RENTAL PAYMENTS; INTERIM RENTALS
This Lease shall commence upon the written acceptance hereof by Lessor and
shall end upon full performance and observance by Lessee of each and every
term, condition, and covenant set forth in this Lease, any Schedules hereto
and any extensions hereof. Rental payments shall be in the amounts and
frequency as set forth on the face of this Lease or any Schedules hereto. In
addition to the rental payments set forth herein and in any Schedules
hereto, and provided that Lessee accepts the Equipment on any day of the
month other than the first day of the month, then, with respect to each
Schedule, Lessee shall pay to Lessor interim rent for the use of the
Equipment from the date on which such acceptance occurs through the last day
of that month. Interim rent shall be in an amount equal to 1/30th of the
monthly rental amount, multiplied by the number of days elapsing between the
date on which the Equipment is accepted by Lessee and the last day of the
month in which acceptance occurs. The payment of interim rent shall be due
and payable upon Lessee's receipt of invoices from Lessor therefor. The
rental period under the Lease shall terminate following the last day of the
term stated on the face hereof or in any Schedule hereto unless such Lease
or Schedule has been extended or otherwise modified. The rental payments for
each and all Schedules hereto shall be calculated and fixed at an interest
rate of two hundred (200) basis points above the prime interest rate as
published in The Wall Street Journal on the first Business Day of the
calendar quarter in which Lessor receives a request from Lessee to prepare a
new Schedule hereto. All rental payments shall be calculated In arrears.
Lessee shall not be required to pay to Lessor a security deposit for any
Schedule hereto. Lessor agrees to provide Lessee with one single monthly
invoice inclusive of all Equipment leased hereunder. Lessor shall have no
obligation to Lessee under this Lease if the Equipment, for whatever reason,
is not delivered to Lessee in form satisfactory to Lessor, within ninety
(90) days from the date Lessee orders the Equipment.
7. LIMITED PREARRANGED AMENDMENTS. SPECIFIC POWER OF ATTORNEY;
In the event it is necessary to amend the terms of this Lease, or the terms of
any Schedule to reflect a change in one or more of the following conditions:
7.1. Lessor's actual cost of procuring the Equipment; or
7.2. Lessor's actual cost of providing Equipment to Lessee; or
7.3. A change in the Lease payments as a result of (1) and/or (2) above; or
7.4. Description of the leased Equipment
Lessee agrees that any such amendment shall be described in a letter from
Lessor to Lessee. Lessee shall respond to such amendment request within ten
(10) business days with its acceptance or rejection of the proposed
amendment. Should Lessee fail to respond, this Lease and any affected
Schedules shall be deemed amended and such amendments shall be incorporated
herein/therein as if originally set forth herein/therein.
Lessee grants to Lessor a specific power of attorney for Lessor to use as
follows: (1) Lessor may sign and file on Lessee's behalf any document Lessor
deems necessary to perfect or protect Lessors Interest in the Equipment or
pursuant to the Uniform Commercial Code; and (2) Lessor may sign, endorse, or
negotiate for Lessor's benefit any instrument representing proceeds from any
policy of insurance covering the Equipment.
8. LOCATION
The equipment shall be kept at the location specified in each Schedule or,
if none is specified, at Lessee's address as set forth above, and shall not
be removed therefrom without Lessor's prior written consent, which shall not
be unreasonably withheld.
9. USE
Lessee shall use the Equipment in a careful manner, shall make all necessary
repairs at Lessee's expense, and shall comply with all laws relating to its
possession, use or maintenance and shall not make any alterations,
additions, or improvements to the Equipment without Lessor's prior written
consent, which shall not be unreasonably withheld. All additions, repairs,
or improvements made to the Equipment shall belong to Lessor.
10. MAINTENANCE SERVICES
At its own expense, Lessee shall maintain the Equipment in the same
condition as when delivered, subject only to ordinary wear and tear. Upon
request, Lessor, or any party designated by Lessor, shall have the right to
inspect the Equipment and Lessee's applicable maintenance records at any
reasonable upon written notification. Should any such inspection reveal that
the Equipment is not being appropriately maintained, The Lessor may, in it's
discretion and at the Lessee's expense, enter into a maintenance agreement
for such Equipment.
If Lessee has specified the inclusion of maintenance services on any
Schedule, Lessor may in it's discretion arrange for the provision of
maintenance service for the products for which the Lessee has ordered
maintenance services. This service will be in accordance with the option
Lessee has selected and with the vendor selected. Lessee acknowledges that
it has read and understands the terms and conditions of the maintenance
service provider's service offerings which Lessee has selected.
11. LESSEE WARRANTIES
11.1. Lessee represents, warrants and covenants to Lessor that:
11.2. Lessee is duly organized, validly existing and in good standing under
the laws of the Jurisdiction in which activities of Lessee require such
qualification.
11.3. Lessee and/or the party that has executed this Lease, Schedules and
Acknowledgment and Acceptance of Equipment has the power and authority to
enter into this Lease and each Schedule.
11.4. This Lease is enforceable against Lessee in accordance with its terms
and conditions and does not create a default under any instrument or
agreement binding on Lessee or its properties.
11.5. There are no pending or threatened actions before any court or
administrative agency that could have a material adverse effect on the
Lessee or this Lease.
11.6. The financial and other information provided to Lessor was and will
be true and correct as of the date made.
11.7. Lessee agrees to deliver to Lessor, at Lessor's request, annual
financial statements, which shall be prepared in accordance with generally
accepted accounting principles, and quarterly unaudited management-prepared
financial statements.
12. OWNERSHIP; PERSONALITY
The Equipment is, and shall remain, the property of Lessor, and Lessee shall
have no right, title or interest therein or thereto except as expressly set
forth In this Lease. The Equipment shall remain personal property even
though installed in or attached to real property. Lessee hereby agrees to
hold Lessor harmless from and indemnify Lessor with regard to any and all
claims, actions, damages, costs and attorneys fees asserted by any landlord
or mortgagee against Lessor or the Equipment herein.
13. SURRENDER
Upon the expiration or termination of any Schedule or this Lease and
provided that Lessee has not exercised its options as per Section 14, or in
the Event of Default pursuant to Section 21 hereof, Lessee at its expense,
shall return all of the Equipment per each Schedule in good repair, ordinary
wear and tear resulting from proper use thereof alone excepted, by
delivering it, packed and ready for shipment, to such place or carrier as
Lessor may specify within the continental United States. If Lessee fails to
return the Equipment as provided herein, Lessee shall pay Lessor, in
addition to all rent and other purchase option amounts due under this Lease
and the Schedules, a sum equal to six (6) months rent for such Equipment as
liquidated damages to compensate Lessor for the economic loss suffered by
Lessor as a result of its inability to realize the residual value of the
Equipment when anticipated. Lessee agrees to pay Lessor a processing fee for
he return of the Equipment, which shall not exceed ten (10) percent of the
Equipment value as of the date the Lessee executed the Acknowledgment and
Acceptance of the Equipment. Nothing contained herein is intended to relieve
Lessee of its obligations to return the Equipment to Lessor as provided
herein or restrict Lessor's right to recover the Equipment in the event of
the failure of Lessee to so return the Equipment or pay the additional rent
at the expiration or termination of the applicable Schedule.
14. PURCHASE CONVERSION
14.1. Lessee shall have the fight at the end of the initial lease
term to purchase the Equipment on each Schedule for One Dollar ($1.00).
Lessee shall be deemed to have elected the One Dollar ($1) buy out option at
the end of lease term unless the Lessee notifies Lessor in writing not less
than ninety (90) days prior to the end of the lease term of its intent not
to purchase such Equipment.
14.2. Prior to the expiration of the lease term set forth in each Schedule,
Lessee shall have the option to terminate the Lease Agreement, with respect
to each Schedule, through the purchase of the leased Equipment. The purchase
price shall be as indicated on the Purchase Conversion/Buyout Table provided
for each Equipment Schedule
14.3. In the event that Lessee does not purchase the Equipment at the end
of the initial lease term as provided herein, this Lease shall continue in
full force and effect on a month-to-month basis, under the same terms,
conditions and pricing, until such time as Lessee purchases or returns the
Equipment.
15. LOSS AND DAMAGE
Lessee shall bear the entire risk of loss, theft, damage or destruction of
the Equipment from any cause whatsoever, and no loss, theft, damage or
destruction of the Equipment shall relieve Lessee of its obligation to pay
rent or to comply with any other obligation under this Lease.
In the event of damage to any item of Equipment, Lessee shall immediately
place the same in good repair at Lessee's expense. If Lessor determines that
any item of Equipment is lost, stolen, destroyed or damaged beyond repair,
Lessee shall at Lessee's option do one of the two following options:
15.1 Replace the same with like Equipment in good repair, acceptable to
Lessor; or
15.2 Pay Lessor in cash the following: (i) all amounts due by Lessee to
Lessor with respect to all affected Schedules up to the date of the loss;
(ii) the unpaid balance of the total rent for the remaining term of the
affected Schedules attributable to said item, reduced to present value at a
discount rate of 5% as of the date of the loss; and (iii) the Lessor's
estimate as of the time this Lease was entered into of Lessors residual
Interest, if any, in the Equipment, discounted to present value at a
discount rate of 5% as of the date of the loss.
Upon Lessor's receipt of payment as set forth above, Lessee shall be
entitled to the affected Equipment, without any warranties from Lessor. If
insurance proceeds are used to fully comply with this subparagraph, any
balance of such proceeds shall go to Lessee as compensation for loss of use
of the Equipment for the remaining term of the Lease.
16. LIENS; TAXES
Lessee shall keep the Equipment free and clear of all levies, liens and
encumbrances. Lessee shall pay all charges and taxes (local, state and
federal) which may now or hereafter be imposed upon the ownership, leasing,
rental, sale, purchase, possession or use of the Equipment excluding,
however, all taxes on or measured by Lessor's net income.
17. INSURANCE
At its own expense, Lessee shall provide and maintain the following
insurance:
17.1.1. Insurance against the loss or theft of or damage to the Equipment
for the full replacement value thereof, naming Lessor and its assigns as a
loss payee.
17.1.2. General liability insurance naming Lessor and its assigns as an
additional insured.
Such insurance shall be in a form amount, and with companies satisfactory to
Lessor and shall include the agreement to give Lessor thirty (30) days prior
written notification of cancellation or material change, and shall be
payable to Lessor regardless of any act, omission, or breach by Lessee.
Lessee shall furnish to Lessor from the insurer a certificate of Insurance,
insurance policies or copies thereof or evidence that Lessee is self-insured
on or before the date the Acknowledgment and Acceptance of the Equipment is
executed.
If Lessee fails to procure or maintain said Insurance or to pay said
charges, or taxes, Lessor shall have the right, but shall not be obligated
to effect such insurance, or pay such charges or taxes. In that event,
Lessor shall notify Lessee of such payment and Lessee shall repay to Lessor
the cost thereof within 15 days after such notice is mailed to Lessee.
18. INDEMNITY
Lessee shall indemnify and hold Lessor, its agents, employees, successors
and assigns, harmless from and against any and all claims, actions, suits,
proceedings, costs, expenses, damages or liabilities, including all attorney
fees, arising out of or connected with, or resulting from the Equipment, a
Schedule or this Lease without limitation, the manufacture, selection,
delivery, possession, use, lease, operation, removal or return of the
Equipment. Such indemnification shall survive the expiration, cancellation
or termination of the Lease. Lessee waives any immunity Lessee may have
under any industrial insurance act with regard to indemnification of Lessor.
19. ASSIGNMENT BY LESSOR
LESSOR MAY, WITHOUT CONSENT OR NOTICE TO LESSEE, ASSIGN OR TRANSFER THIS
LEASE OR ANY SCHEDULE OR GRANT A SECURITY INTEREST IN ANY EQUIPMENT, ANY
RENTAL PAYMENTS, OR ANY OTHER SUMS DUE OR TO BECOME DUE HEREUNDER, AND IN
SUCH EVENT ANY ASSIGNEE OF LESSOR SHALL HAVE ALL OF THE RIGHTS, POWERS,
PRIVILEGES, AND REMEDIES BUT NONE OF THE OBLIGATIONS OF LESSOR UNDER THIS
LEASE. LESSEE SHALL RECOGNIZE AND HEREBY CONSENTS TO ANY ASSIGNMENT OF THIS
LEASE BY LESSOR, AND LESSEE SHALL NOT ASSERT AGAINST THE ASSIGNEE ANY
DEFENSE, COUNTERCLAIM, OR OFFSET TO ANY ACTION THAT LESSEE MAY HAVE AGAINST
LESSOR. Lessee agrees that, following its receipt of notice of any
assignment by Lessor of this Lease, any Schedule or the rental payments
payable hereunder, it will pay the rental payments due hereunder directly to
the assignee (or whomever the assignee shall designate). Upon Lessor's
request, Lessee will execute a consent and acknowledgment of Lessor's
assignment to its assignee. Subject to the foregoing, this Lease inures to
the benefit of and is binding upon the heirs, devisees, personal
representatives, survivors, successors in interest and assigns of the
parties hereto.
20. SERVICE CHARGES; INTEREST
If Lessee shall fail to make any payment required by this Lease within 15
days of the due date thereof, Lessee shall pay to Lessor interest on any
delinquent payment or amount due under this Lease from the due date thereof
until paid, at the lesser of the maximum rate of interest allowed by law or
18% per annum.
21. DEFAULT
Lessee shall be in default (Event of Default) of this Lease if:
21.1. Lessee shall fail to make any rental payment or any other amount when
due under the terms of this Lease for a period of 30 days from the due date
thereof; or
21.2. Lessee shall fail to observe, keep or perform any other provision of
this Lease, and such failure shall continue for a period of 30 days from
notification by Lessor, or
21.3 Lessee has made any misleading or false statement in connection with
Section 11 of this lease; or
21.4. The Equipment or any part thereof shall be subject to any lien, levy,
seizure, assignment, transfer, bulk transfer, encumbrance, application,
attachment, execution, sublease, or sale without prior written consent of
Lessor, or if Lessee shall abandon the Equipment or permit any other entity
or person to use the Equipment other than Equipment utilized at the customer
premise (CPE) without prior written consent of Lessor; or
21.5. Lessee, without the prior written approval of Lessor, which shall not
be unreasonably withheld, sells substantially all of its assets out of the
ordinary course of business, merges or consolidates with any other person,
or sustains a change in the ownership of more than fifty percent (50%) of
its equity to a party that had no ownership interest in Lessee at the
commencement of this Agreement; or if Lessee dies or ceases to exist; or
21.6. Lessee defaults on any other agreement it has with Lessor; or
21.7. Lessee becomes insolvent or makes an assignment for the benefit of
creditors; or a receiver, trustee, conservator or liquidator of Lessee or of
all or a substantial part of its assets is appointed with or without the
application or consent of Lessee; or a petition is filed by or against
Lessee under the Bankruptcy Code or any amendment thereto, or under any
other insolvency law or laws, providing for the relief to debtors, which is
not discharged within thirty (30) days of commencement; or
21.8. Any guarantor of this Lease defaults on any obligation to Lessor, or
any of the above-listed events of default occur with respect to any
guarantor, or any such guarantor files a petition or a petition is filed
against guarantor under the Bankruptcy Code or any amendment thereto, or
under any other insolvency law or laws, providing for the relief to debtors.
22. REMEDIES
If Lessee is in default Lessor, with or without notice to Lessee, shall have
the right to exercise any one or more of the following remedies,
concurrently or separately and without any election of remedies being deemed
to have been made. Lessor may enter upon Lessee's premises and without any
court order or other process of law may repossess and remove the Equipment,
or render the Equipment unusable without removal, either with or without
notice to Lessee. Lessee hereby waives any trespass or right of action for
damages by reason of such entry, removal, or disabling. Any such
repossession shall not constitute a termination of this Lease;
Lessor may require Lessee, at its expense, to return the Equipment in good
repair, ordinary wear and tear resulting from proper use thereof alone
excepted, by delivering it, packed and ready for shipment, to such place or
carrier as Lessor may specify;
Lessor may cancel or terminate this Lease and may retain any and all prior
payments paid by Lessee:
Lessor may declare all sums due and to become due under this Lease
immediately due and payable, including as to any or all items of Equipment,
without notice or demand to Lessee; Lessor may re-lease the Equipment to any
third party, without notice to Lessee, upon such terms and conditions as
Lessor alone shall determine, or may sell the Equipment without notice to
Lessee, at private or public sale, at which sale Lessor may be the
purchaser;
Lessor may xxx for and recover from Lessee the sum of all unpaid rents and
other payments due under this Lease then accrued, plus all accelerated
future payments due under this Lease, reduced to their present value using a
discount rate of 5%, as of the date of default, plus Lessor's estimate at
the time this Lease was entered into of the Lessor's residual Interest in
the Equipment, reduced to present value at a discount rate of 5% as of the
date of default, less the net proceeds of disposition if any, of the
Equipment;
To pursue any other remedy available at law, by statute or in equity.
No fight or remedy conferred upon or reserved to Lessor is exclusive of any
other fight or remedy herein, or by law or by equity provided or permitted,
but each shall be cumulative of every other fight or remedy given herein or
now or hereafter existing by law or equity or by statute or otherwise and
may be enforced concurrently therewith or from time to time. No single or
partial exercise by Lessor of any fight or remedy hereunder shall preclude
any other or further exercise of any other fight or remedy.
23. FORCE MAJEURE
Lessor shall have no liability for its delay or failure in performance or
for damages due to fire, explosion, lightning, pest damage, power surges or
failures, strikes or labor disputes, water, acts of God, the elements, war,
civil disturbances, acts of civil or military authorities or the public
enemy, inability to secure raw materials, transportation facilities, fuel or
energy shortages, acts or omissions of communication carriers, or other
causes beyond Lessor's control whether or not similar to the foregoing.
Nothing herein shall obligate Lessor to settle any strike or labor dispute.
24. SURVIVAL, QUIET ENJOYMENT
All representations, warranties and covenants made by the Lessee hereunder
shall survive the termination of this Lease and shall remain in full force
and effect. All of Lessor's rights and privileges, to the extent that they
are fairly attributable to events or conditions occurring on or prior to the
termination of this Lease, shall survive such termination and be enforceable
by Lessor. So long as no Event of Default exists, Lessor will not interfere
with Lessee's quiet enjoyment of the Equipment.
25. MULTIPLE LESSEES
Lessee and each of them are jointly and severally responsible and liable to
Lessor under the Lease. Lessor may, and with the consent of any one of the
Lessees hereunder, modify, extend or change any of the terms hereof without
consent or knowledge of the others, without in any way releasing, waiving or
impairing any fight granted to Lessor against the others.
26. EXPENSE OF ENFORCEMENT
In the event of any legal action with respect to this Lease, the prevailing
party in any such action shall be entitled to reasonable attorneys fees,
including reasonable attorneys fees incurred at the trial level, including
action in bankruptcy court, on appeal, or review, or incurred without
action, suits or proceedings, together with all reasonable costs and
expenses incurred in pursuit thereof.
27. MISCELLANEOUS
27.1. LESSEE HEREBY ACKNOWLEDGES THAT THIS LEASE IS NONCANCELABLE FOR THE
ORIGINAL RENTAL TERM SET FORTH IN EACH SCHEDULE.
27.2. LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER NOR
ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLER 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 A BROKER OR SUPPLIER OR ANY
SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLIER SHALL IN ANY WAY AFFECT
LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM LESSEE'S OBLIGATIONS SET
FORTH IN THIS LEASE.
27.3. ONLY THE COPY MARKED "ORIGINAL" SHALL CONSTITUTE CHATTEL PAPER FOR
PURPOSES OF PERFECTING A SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL
CODE.
28. SEVERABILITY
This lease is intended to constitute a valid enforceable legal instrument.
In the event any provision hereof is declared invalid, such provision will
be deemed severable from the remaining provisions of this Lease, all of
which will remain in full force and effect.
29. ENTIRE AGREEMENT; WAIVER
This instrument and the Schedules executed by Lessor and Lessee constitute
the entire agreement between Lessor and Lessee with respect to the Equipment
and the subject matter of the Lease. No provision of this Lease shall be
modified unless in writing signed by an authorized representative of Lessor.
Waiver by Lessor of any provision hereof in one instance shall not
constitute a waiver of any other instance.
30. CHOICE OF LAW; JURISDICTION
This Lease shall not be effective until signed by Lessor at its principal
place of business listed above. This Lease shall be considered to have been
made in the state of Lessor's principal place of business and shall be
interpreted in accordance with the laws and regulations of that state.
Lessee agrees to jurisdiction in the state of Lessee's principal place of
business in any action, suit, or proceeding arising out of this Lease, and
concedes that it, and each of them transacted business in the said state may be
entering into this Lease. In the event of legal action to enforce this Lease,
Lessee agrees that venue may be laid in the county of Lessor's principal place
of business.
Lessee initials: /s/ SY
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LESSEE: NETWORK ACCESS SOLUTIONS, INC. PARADYNE CREDIT CORP., LESSOR:
/s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxx Xxxxxx Date: 11/17/98 Date:
-------------------------------- -------------------- -------
printed name printed name
CFO
-------------------------------- --------------------------------
title title
Paradyne
Schedule to Master Lease Agreement No. P98-24481
Dated Nov. 17, 1998
Schedule No. 1211-01
Lessee Name Lessor Name
Network Access Solutions Paradyne Credit Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000 0000 000xx Xxx. X.
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
This Schedule covers the following described property ("equipment"):
***
--------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
Paradyne
Schedule to Master Lease Agreement No. P98-24481
Dated Nov. 23, 1998
Schedule No. 1211-02
Lessee Name Lessor Name
Network Access Solutions Paradyne Credit Corporation
000 Xxxxxxxxx Xxxxx, Xxxxx 000 0000 000xx Xxx. X.
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
This Schedule covers the following described property ("equipment"):
***
----------------------
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
