Master Equipment Lease Agreement - Synchronous Network Solutions Inc. and Ixia Communications
MASTER EQUIPMENT LEASE AGREEMENT
This MASTER EQUIPMENT LEASE AGREEMENT (this "Lease") is entered into as
of October 1, 1997 by and between Synchronous Network Solutions, Inc., a
Delaware corporation ("Lessor"), and Ixia Communications, a California
corporation ("Lessee").
1. LEASE. Subject to the terms and conditions of this Lease, Lessor
hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Lessor,
the items of equipment, machinery, tools and other tangible personal property
owned by Lessor and identified in any Equipment Schedule made a part of this
Lease (the "Equipment"). For purposes of this Lease, an "Equipment Schedule" is
a document signed by Lessor and Lessee (in substantially the form attached
hereto as Exhibit 1) that identifies Equipment that is to be leased by Lessor to
Lessee pursuant to the terms and conditions of this Lease and such additional
terms and conditions as are contained in the applicable Equipment Schedule. Each
Equipment Schedule, upon execution thereof, shall become an integral part of
this Lease.
2. ACQUISITION AGREEMENTS. Lessee has selected the Equipment and may
have entered into with the vendor and/or manufacturer thereof (any such person,
a "Vendor" or "Manufacturer") certain purchase, licensing or maintenance
agreements with respect thereto (each, an "Acquisition Agreement"). Lessee shall
transfer and assign to Lessor all of its rights (other than with respect to
warranties), but none of its obligations (except for Lessee's obligation to pay
for the Equipment, subject to Lessee's delivery to Lessor of a Certificate of
Acceptance in accordance with Paragraph 7), in and to any Acquisition Agreement
to which it is a party, including the right to take title to the Equipment.
3. NO WARRANTIES BY LESSOR. LESSOR MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT,
ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND, AS TO
LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS." LESSOR SHALL HAVE NO LIABILITY FOR
ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND WHATSOEVER RELATING THERETO, INCLUDING
WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY CHARACTER.
4. CLAIMS AGAINST VENDOR AND/OR MANUFACTURER; ASSIGNMENT OF WARRANTIES.
If the Equipment is not properly installed, does not operate as represented or
warranted by Vendor and/or Manufacturer, or is unsatisfactory for any reason,
Lessee shall make any claim on account thereof solely against Vendor and/or
Manufacturer, and shall, in all events, continue to pay to Lessor all rent and
other amounts, if any, payable under this Lease. Lessor hereby assigns (to the
extent assignable) to Lessee for the term of the Lease or until an Event of
Default occurs hereunder, all of Lessor's rights under any and all warranties
obtained by Lessor from any Vendor or Manufacturer of the Equipment.
5. NON-CANCELLABLE LEASE. This Lease and any Equipment Schedule hereto
cannot be canceled or terminated except as expressly provided herein. Lessee
agrees that
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its obligation to pay all rent and other sums payable hereunder and the rights
of Lessor in and to such rent are absolute and unconditional and are not subject
to any abatement, reduction, setoff, defense, counterclaim or recoupment due or
alleged to be due to, or by reason of, any past, present or future claims which
Lessee may have against Lessor, any assignee, any Manufacturer or Vendor, or
against any person for any reason whatsoever.
6. ORDERING EQUIPMENT. Lessee shall arrange for delivery of the
Equipment so that it can be accepted in accordance with Paragraph 7 hereof
within 60 days after the date of the applicable Equipment Schedule or by such
other date as may be set forth therein. Unless otherwise specified on the
Equipment Schedule, Lessee shall be responsible for all transportation, packing,
installation, testing and other charges in connection with the delivery,
installation and use of the Equipment. Lessee hereby authorizes Lessor to insert
in any Equipment Schedule hereunder the serial numbers and other identification
data of Equipment when determined by Lessor.
7. ACCEPTANCE. Lessee acknowledges that for purposes of receiving or
accepting the Equipment from a Vendor or Manufacturer, Lessee is acting on
Lessor's behalf. Upon delivery of the Equipment to Lessee and Lessee's
inspection and acceptance thereof, Lessee shall furnish Lessor a written
statement acknowledging receipt of the Equipment in good condition and repair
and accepting it as satisfactory in all respects for the purposes of this Lease
(the "Certificate of Acceptance").
8. TERM. The term of this Lease shall commence as of the date hereof
and, unless earlier terminated in accordance with Section 22 hereof, shall
terminate on the later to occur of (i) the fifth anniversary of the date hereof
or (ii) the expiration or termination of the last Equipment Schedule hereunder.
The term of each Equipment Schedule shall be set forth therein.
9. RENTAL. Unless otherwise set forth in the applicable Equipment
Schedule, rent shall be payable commencing on the first day of the month
following receipt and acceptance of the Equipment covered by an Equipment
Schedule. The rental amount payable to Lessor by Lessee for the Equipment shall
be as set forth in the Equipment Schedule(s). All rent payments shall be paid to
Lessor at its address set forth on the Equipment Schedule or as otherwise
directed by Lessor in writing.
10. RENEWAL. If no Event of Default by Lessee shall have occurred and be
continuing, Lessee, upon 30 days' prior written notice, shall be entitled to
renew an Equipment Schedule with respect to all, but not less than all, of the
Equipment thereunder for a minimum of 12 months. The renewal rent payable by
Lessee shall be in an amount equal to the fair market rental value of the
covered Equipment, as mutually agreed by Lessor and Lessee. Unless otherwise
agreed by Lessor and Lessee, any such renewal rent shall be payable on the same
dates and in the same manner as the rent payable under the applicable Equipment
Schedule prior to the expiration thereof.
11. LOCATION; INSPECTION; LABELS. The Equipment shall be delivered to
and shall not be removed without Lessor's prior written consent from the
"Equipment Location" shown on the related Equipment Schedule. Lessor shall have
the right to inspect the Equipment
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at any reasonable time upon reasonable notice. Upon request by Lessor, Lessee
shall conspicuously mark or affix labels to the Equipment stating that the
Equipment is owned by Lessor.
12. REPAIRS; USE; ALTERATIONS. Lessee, at its own cost and expense,
shall keep the Equipment in good repair and working order, in the same condition
as when delivered to Lessee, ordinary wear, tear, depreciation and obsolescence
excepted, and in accordance with the Manufacturer's recommended specifications;
shall use the Equipment lawfully; shall not alter the Equipment without Lessor's
prior written consent, shall use the Equipment in compliance with any existing
Manufacturer's service and warranty requirements and any insurance policies
applicable to the Equipment and shall furnish all parts and servicing required
therefor. All parts, repairs, additions, alterations and attachments placed on
or incorporated into the Equipment which cannot be removed without damage to the
Equipment shall immediately become part of the Equipment and shall be the
property of the Lessor. Lessee will obtain and maintain all permits, licenses
and registrations necessary to lawfully operate the facility where the Equipment
is located. Lessee shall comply with all applicable environmental and industrial
safety and hygiene laws, rules and regulations (including but not limited to
federal, state and local environmental protection, occupational, health and
safety or similar laws, ordinances and restrictions).
13. RETURN OF EQUIPMENT. Provided that Lessee does not exercise its
Purchase Option as set forth in this Lease, following the termination of this
Lease for any reason, Lessee shall return the Equipment to Lessor in the same
condition in which it was received by Lessee, except for ordinary wear, tear,
depreciation and obsolescence. Following any such termination, Lessee shall,
during regular business hours, make the Equipment available at the premises on
which the Equipment is then located for pick-up and removal by Lessor, and
Lessor shall pay all expenses for pick-up and removal of the Equipment.
14. LOSS OR DAMAGE. Lessee shall bear the entire risk of loss, theft,
destruction of or damage to the Equipment or any item thereof (herein, "Loss or
Damage") from any cause whatsoever. No Loss or Damage shall relieve Lessee of
the obligation to pay rent or of any other obligation under this Lease. In the
event of Loss or Damage, Lessee, at its option, shall either (i) place the same
in good condition and repair or (ii) replace the same with like equipment
acceptable to Lessor in good condition and repair with clear title thereto in
Lessor. Notwithstanding the foregoing, Lessor and Lessee may terminate the
Equipment Schedule or portion thereof applicable to the affected Equipment upon
payment of such amount in respect of the remaining rent and fair market value of
the Equipment as Lessor and Lessee may agree.
15. INSURANCE. Lessee shall provide, maintain and pay for (i) all risk
property insurance against the loss or theft of or damage to the Equipment, for
the full replacement value thereof, and (ii) commercial general liability
insurance. All such policies shall name Lessor as an additional insured and
shall have combined single limits in amounts acceptable to Lessor. All such
insurance policies shall be endorsed to be primary and non-contributory to any
policies maintained by Lessor. All insurance shall be placed with companies
satisfactory to Lessor and
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shall contain the insurer's agreement to give 30 days' written notice to Lessor
before cancellation or any material change of any policy of insurance.
16. TAXES. Lessee shall reimburse to Lessor (or pay directly if, but
only if, instructed by Lessor) all charges and taxes (local, state and federal)
which may now or hereafter be imposed or levied upon the sale, purchase,
ownership, leasing, possession or use of the Equipment; excluding, however, all
income taxes levied on (i) any rental payments made to Lessor hereunder, (ii)
any payment made to Lessor in connection with Loss or Damage to the Equipment
under Paragraph 14 hereof or (iii) any payment made to Lessor in connection with
Lessee's exercise of its Purchase Option.
17. ENCUMBRANCES OR LIENS.
17.1 Lessee shall not, without the prior written consent of Lessor,
pledge, encumber, create a security interest in or permit any lien to become
effective on any item of the Equipment, and Lessee shall promptly notify Lessor
of any liens, charges or other encumbrances affecting the Equipment of which
Lessee has knowledge. Lessee shall keep the Equipment and all right, title and
interest therein free and clear of all liens, charges and encumbrances other
than the interest of Lessor.
17.2 Lessor shall not pledge, encumber, create a security interest
in or permit any lien to become effective on any item of the Equipment, and
Lessor shall promptly notify Lessee of any liens, charges or other encumbrances
affecting the Equipment of which Lessor has knowledge. Lessor shall keep the
Equipment and all right, title and interest therein free and clear of all liens,
charges and encumbrances other than the interest of Lessee.
18. INDEMNITY. Lessee shall indemnify Lessor against and hold Lessor
harmless from any and all claims, actions, damages, costs, expenses (including
reasonable attorneys' fees), obligations, liabilities and liens (including any
of the foregoing arising or imposed under the doctrines of "strict liability" or
"product liability" and including, without limitation, the cost of any fines,
remedial action, damage to the environment and cleanup and the fees and costs of
consultants and experts), arising out of the manufacture, purchase, lease,
ownership, possession, operation, condition, return or use of the Equipment, or
by operation of law, excluding, however, any of the foregoing resulting from the
sole negligence or willful misconduct of Lessor. Lessee agrees that upon written
notice by Lessor of the assertion of such a claim, action, damage, obligation,
liability or lien, Lessee shall assume full responsibility for the defense
thereof. Lessee's choice of counsel shall be mutually acceptable to both Lessee
and Lessor.
19. ASSIGNMENT.
19.1 Lessee shall not assign this Lease or any interest in this
Lease or the Equipment, or sublet any of the Equipment, without the express
prior written consent of Lessor, which consent shall not be unreasonably
withheld; provided, however, that Lessee may assign its rights under this Lease
to an affiliate of Lessee or to the surviving corporation in the event of a
merger, reorganization or consolidation as a result of which Lessee is not the
surviving
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corporation. In the event of any such assignment by Lessee, Lessee's assignee
shall have all the rights, powers, privileges, remedies and obligations of
Lessee set forth in this Lease.
19.2 Lessor shall not assign this Lease or any of its rights herein
without the express prior written consent of Lessee, which consent shall not be
unreasonably withheld. In the event of any such assignment by Lessor, Lessor's
assignee shall have all of the rights, powers, privileges, remedies and
obligations of Lessor set forth in this Lease.
19.3 This Lease shall be binding upon and inure to the benefit of
Lessee and Lessor and their respective permitted successors and assigns.
20. REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the other party that: (i) all action on the part of such party
necessary for the execution, delivery and performance of this Lease by such
party has been taken, (ii) this Lease is a legal, valid and binding obligation
of such party enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies and (iii) the execution and delivery of, and the performance
of the obligations under, this Lease by such party does not and will not
contravene or result in any breach of any law or of any regulation, order, writ,
injunction or decree of any court, tribunal, governmental body, authority,
agency or instrumentality, nor do or will such execution, delivery or
performance violate, conflict with or result in (or with notice or lapse of time
or both result in) a breach of or a default under any term or provision of any
agreement, oral or written, to which such party is a party or is bound.
21. DEFAULT.
21.1 The occurrence of any of the following events shall constitute
an "Event of Default by Lessee" under this Lease:
(i) The failure by Lessee to pay any rent payment payable to
Lessor hereunder within 30 days after its due date;
(ii) The failure by Lessee to perform any of its obligations
hereunder, which failure continues uncured for a period of
30 days following Lessor's written notice to Lessee
thereof; or
(iii) The institution by or against Lessee of any proceeding
under any bankruptcy, insolvency or debtor's relief law,
which proceeding is not dismissed within 60 days, the
appointment of a receiver for Lessee or its property or
any assignment by Lessee for the benefit of its creditors.
21.2 The failure by Lessor to perform any of its obligations
hereunder, which failure continues uncured for a period of 30 days following
Lessee's written notice to Lessor thereof, shall constitute an "Event of Default
by Lessor" under this Lease.
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22. REMEDIES UPON EVENT OF DEFAULT.
22.1 Upon the occurrence of any Event of Default by Lessee, and at
any time as long as such Event of Default by Lessee continues, Lessor may, at
its option, declare this Lease to be in default and exercise any one or more of
the following remedies:
(i) Terminate this Lease by written notice to Lessee, which
termination shall be effective upon delivery of such
notice to Lessee;
(ii) Demand that Lessee return the Equipment to Lessor
immediately in accordance with Section 13 hereof;
(iii) Proceed to recover damages for breach of this Lease; and
(iv) Exercise all rights and remedies available to Lessor at
law or in equity, including, without limitation, those
under the California Commercial Code.
22.2 After any Event of Default by Lessee, Lessee shall reimburse
Lessor for all reasonable costs and expenses (including attorneys' fees) of
enforcement of Lessor's rights and remedies under this Section 22.
22.3 Upon the occurrence of any Event of Default by Lessor, and at
any time as long as such Event of Default by Lessor continues, Lessee may, at
its option, declare this Lease to be in default and exercise any one or more of
the following remedies:
(i) Terminate this Lease by written notice to Lessor, which
termination shall be effective upon delivery of such
notice to Lessor; and
(ii) Exercise all rights and remedies available to Lessee at
law or in equity, including, without limitation, those
under the California Commercial Code.
22.4 After any Event of Default by Lessor, Lessor shall reimburse
Lessee for all reasonable costs and expenses (including attorneys' fees) of
enforcement of Lessee's rights and remedies under this Section 22.
23. FURTHER ASSURANCES. Lessee shall promptly execute and deliver to
Lessor such documents, including without limitation Uniform Commercial Code
financing statements, and take such actions as Lessor may from time to time
reasonably request to protect its interests in the Equipment and under this
Lease. Lessor shall take such actions as are reasonably requested by Lessee to
vest in Lessee the benefits of this Lease.
24. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall at all times
remain the property of Lessor and Lessee shall have no right, title or interest
therein or thereto,
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except as expressly set forth in this Lease, and the Equipment shall at all
times be and remain personal property notwithstanding that the Equipment or any
part thereof may now be, or hereafter become, in any manner, affixed or attached
to real property or any improvements thereon.
25. PURCHASE OPTION. If no Event of Default by Lessee shall have
occurred and be continuing, Lessee shall be entitled, at its option upon written
notice to Lessor, which notice must be received by Lessor at least 90 days prior
to the end of the term or any renewal term of any Equipment Schedule, to
purchase all, but not less than all, of the Equipment covered by such Equipment
Schedule from Lessor at the end of the term or any renewal term for such
Equipment Schedule at a purchase price equal to the then fair market value of
the Equipment, as mutually agreed by Lessor and Lessee (the "Purchase Option").
On a date which is no later than the expiration date of the term or any renewal
term, as applicable, of an Equipment Schedule, Lessee shall pay to Lessor the
purchase price for the Equipment covered by such Equipment Schedule (plus any
taxes levied thereon) and Lessor shall sell the Equipment "as-is, where-is"
without any warranties expressed or implied.
26. LESSOR'S PAYMENT. If Lessee fails to provide or maintain the
insurance required pursuant to Paragraph 15 hereof, to pay any taxes, charges
and fees as required by this Lease, or to discharge any levies, liens and
encumbrances created by Lessee, Lessor shall have the right, but shall not be
obligated, to obtain such insurance, pay such taxes, charges and fees, or effect
such discharge. In that event, Lessee shall remit to Lessor the cost thereof
with the next rental payment.
27. MISCELLANEOUS.
27.1 Survival. The obligations set forth in Sections 16, 18, 22 and
23 hereof and this Section 27 shall survive any termination of this Agreement
for any reason.
27.2 Notices. Any notice, request, demand, statement, authorization,
approval or consent required or permitted under this Lease shall be in writing
and shall be made by, and deemed duly given upon, (a) deposit in the mail,
postage prepaid, registered or certified, return receipt requested, (b) personal
delivery, (c) delivery to an overnight courier of recognized reputation, or (d)
facsimile transmission (with confirmation by mail), as follows, or to such other
address and/or such additional parties as either party may specify by notice
given in accordance with this Section 20.2:
If to Lessor: Synchronous Network Solutions, Inc.
c/o Rager Bell Doskocil & Meyer CPAs
1411 West 190th Street, Suite 500
Gardena, CA 90248-4326
Attention: Jon F. Rager
Facsimile: (310) 323-4301
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If to Lessee: Ixia Communications
4505 Las Virgenes Road
Suite 209
Calabasas, CA 91302
Attention: President
Facsimile: (818) 871-1805
All such notices and communications hereunder shall be deemed given upon
personal delivery, seven business days after deposit in the mail, two business
days following deposit with any international courier service of recognized
reputation or one business day after transmission by telecopier.
27.3 Entire Agreement. This Lease constitutes the entire contract
between the parties with respect to the subject matter covered by this Lease and
supersedes all previous discussions, negotiations, oral or written,
representations, statements, arrangements, agreements and understandings, if
any, by and between the parties with respect to the subject matter covered by
this Lease other than those herein, and any such discussions, negotiations, oral
or written, representations, statements, arrangements, agreements and
understandings are hereby canceled and terminated in all respects. This Lease
may not be amended, changed or modified except by a writing duly executed by the
parties hereto or their duly authorized representatives. The parties have made
no representations or warranties not expressly set forth in this Lease.
27.4 Severability. In the event any provision of this Lease or the
application thereof to any circumstance shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, it shall be construed to
be limited or reduced so as to be enforceable to the maximum extent allowed by
applicable law as it shall then be in force, and if such construction shall not
be feasible, then such provision shall be deemed to be deleted herefrom in any
action before that court, and all other provisions of this Lease shall remain in
full force and effect.
27.5 Remedies. All rights and remedies of the parties are separate
and cumulative, and no one of them, whether exercised or not, shall be deemed to
be to the exclusion of or to limit or prejudice any other legal or equitable
rights or remedies which the parties may have. The parties shall not be deemed
to waive any of their rights or remedies under this Lease unless such waiver is
in writing and signed by the party to be bound. No delay or omission on the part
of either party in exercising any right or remedy shall operate as a waiver of
such right or remedy or any other right or remedy. A waiver on any one occasion
shall not be construed as a bar to or waiver of any right or remedy on any
future occasion.
27.6 Headings. The headings contained in this Lease are for
convenience only and are not a part of this Lease, and do not in any way
interpret, limit or amplify the scope, extent or intent of this Lease, or any of
the provisions of this Lease.
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27.7 Counterparts. This Lease and any Equipment Schedule hereto may
be executed in counterparts, each of which shall constitute an original, but
which together shall constitute one and the same agreement.
27.8 Attorneys' Fees. In the event of any legal action under this
Lease, then the prevailing party in such action shall be entitled to have and
recover from the other party all costs and expenses (including attorneys' fees)
incurred in such action and any appeal therefrom.
27.9 Expenses. Except as otherwise expressly provided for in this
Lease, each of the parties shall pay its own expenses in connection with the
negotiation, preparation and execution of this Lease and any Equipment Schedules
or other related documents and the consummation of the transactions consummated
herein and therein.
27.10 Choice of Law and Forum. The rights and obligations of the
parties hereto shall be construed and enforced in accordance with and governed
by the internal laws (and not the conflict of laws principles) of California.
Any action or proceeding arising out of, relating to or concerning this Lease,
including, without limitation, any claim of breach of contract, shall be filed
in the Superior Court of the State of California for the County of Los Angeles
or in the United States District Court for the Central District of California
and in no other location. The parties hereby waive the right to object to such
location on the basis of venue or forum non conveniens.
27.11 No Third Party Beneficiaries. Neither this Lease nor any
provision hereof, nor any document or instrument executed or delivered pursuant
hereto, shall be deemed to create any right in favor of or impose any obligation
upon any person or entity other than the parties hereto and their respective
permitted successors and assigns.
27.12 Legal Advice and Construction of Agreement. Each party
represents that it has received independent legal advice with respect to the
preparation of, and the advisability of entering into, this Lease and neither
has been entitled to rely upon nor has in fact relied upon the legal or other
advice of the other party or such other party's counsel in entering into this
Lease. Each party has participated in the drafting and preparation of this
Lease, and, accordingly, in any construction or interpretation of this Lease,
the same shall not be construed against either party by reason of the source of
drafting.
27.13 Parties' Understanding. Each party represents that it has
carefully read this Lease, that this Lease has been fully explained to it by its
attorney, that it fully understands the final and binding effect of this Lease,
that the only promises made to it to sign this Lease are those stated above, and
that it is signing this Lease voluntarily.
27.14 Force Majeure. No party hereto shall be deemed in default if
its performance of obligations hereunder is delayed or becomes impossible or
impractical by reason of any act of God, war, fire, earthquake, strike, civil
commotion, epidemic or any other cause beyond such party's reasonable control.
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27.15 Limitation of Damages. Except as expressly set forth herein,
in any action or proceeding arising out of, relating to or concerning this
Lease, including, without limitation, any claim of breach of contract, liability
shall be limited to compensatory damages proximately caused by such breach and
no party shall, under any circumstances, be liable to the other party for
consequential, incidental, indirect or special damages, including but not
limited to lost profits or income, even if such party has been apprised of the
likelihood of such damages occurring.
IN WITNESS WHEREOF, the parties have executed this Master Lease
Agreement effective as of the date first set forth above.
Lessor: SYNCHRONOUS NETWORK SOLUTIONS, INC.
By: /s/ Jon F. Rager
----------------------------------------
Jon F. Rager, Chief Financial Officer
and Treasurer
Lessee: IXIA COMMUNICATIONS
By: /s/ Errol Ginsberg
----------------------------------------
Errol Ginsberg, President
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EXHIBIT 1 TO MASTER EQUIPMENT LEASE AGREEMENT
EQUIPMENT SCHEDULE NO. ______
Lessee: IXIA COMMUNICATIONS
Address: 4505 Las Virgenes Road,
Suite 209
Calabasas, CA 91302
1. LEASE OF SPECIFIED EQUIPMENT. This Equipment Schedule No. _______
dated as of ______________ is entered into pursuant to and incorporates by this
reference all of the terms and provisions of that certain Master Equipment Lease
Agreement (the "Master Lease") dated as of October 1, 1997 between Synchronous
Network Solutions, Inc. ("Lessor") and Ixia Communications ("Lessee"), for the
lease of the equipment described in Schedule A attached hereto (the
"Equipment"). This Equipment Schedule shall constitute a separate, distinct and
independent lease of the Equipment and an independent contractual obligation of
Lessee. References to the "the Lease" or "this Lease" shall mean and refer to
this Equipment Schedule, together with the Master Lease and all exhibits,
addenda, schedules, certificates, riders and other documents and instruments
executed and delivered in connection with this Equipment Schedule, all as the
same may be amended or modified from time to time. All capitalized terms used
herein without definition shall have the meanings set forth or referred to in
the Master Lease. By its execution and delivery of this Equipment Schedule,
Lessee hereby reaffirms all of the representations, warranties and covenants
contained in the Master Lease, as of the date hereof, and further represents and
warrants to Lessor that no Event of Default by Lessee, and no event or condition
which with notice or the passage of time or both would constitute an Event of
Default by Lessee, has occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The acquisition cost of the Equipment is
$_____________.
3. (a) LEASE TERM. The term of this Equipment Schedule shall commence on
the date hereof and shall continue for a period of ____ months thereafter, plus
any renewal or extended term applicable in accordance with the terms of the
Master Lease.
(b) RENTAL PAYMENTS. Lessee shall pay to Lessor ___consecutive
rental payments of $_____ each, commencing ____________ and continuing
[MONTHLY][QUARTERLY] thereafter for the remaining term of this Equipment
Schedule. Rental payments shall be payable to Lessor at its offices at 1411 West
190th Street, Suite 500, Gardena, California 90248.
4. EQUIPMENT LOCATION(s). The Equipment will be located at the following
location(s):
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5. TAXES. Lessor will invoice Lessee for all sales, use and/or personal
property taxes as and when due and payable in accordance with applicable law,
unless Lessee delivers to Lessor a valid exemption certificate with respect to
such taxes. Delivery of such certificate shall constitute Lessee's
representation and warranty that no such taxes shall become due and payable with
respect to the Equipment, and Lessee shall indemnify and hold harmless Lessor
from and against any and all liability or damages, including late charges and
interest which Lessor may incur by reason of the assessment of such taxes.
Dated as of _______________________________.
SYNCHRONOUS NETWORK SOLUTIONS, INC. IXIA COMMUNICATIONS
By:_______________________________ By:__________________________________
Name:_____________________________ Name:________________________________
Title:____________________________ Title:_______________________________
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EQUIPMENT SCHEDULE NO. 1
Lessee: IXIA COMMUNICATIONS
Address: 4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
1. LEASE OF SPECIFIED EQUIPMENT. This Equipment Schedule No. 1 dated as
of October 1, 1997 is entered into pursuant to and incorporates by this
reference all of the terms and provisions of that certain Master Equipment Lease
Agreement (the "Master Lease") dated as of October 1, 1997 between Synchronous
Network Solutions, Inc. ("Lessor") and Ixia Communications ("Lessee"), for the
lease of the equipment described in Schedule A attached hereto (the
"Equipment"). This Equipment Schedule shall constitute a separate, distinct and
independent lease of the Equipment and an independent contractual obligation of
Lessee. References to the "the Lease" or "this Lease" shall mean and refer to
this Equipment Schedule, together with the Master Lease and all exhibits,
addenda, schedules, certificates, riders and other documents and instruments
executed and delivered in connection with this Equipment Schedule, all as the
same may be amended or modified from time to time. All capitalized terms used
herein without definition shall have the meanings set forth or referred to in
the Master Lease. By its execution and delivery of this Equipment Schedule,
Lessee hereby reaffirms all of the representations, warranties and covenants
contained in the Master Lease, as of the date hereof, and further represents and
warrants to Lessor that no Event of Default by Lessee, and no event or condition
which with notice or the passage of time or both would constitute an Event of
Default by Lessee, has occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The acquisition cost of the Equipment is
$47,500.46.
3. (a) LEASE TERM. The term of this Equipment Schedule shall commence on
the date hereof and shall continue for a period of 36 months thereafter until
October 1, 2000, plus any renewal or extended term applicable in accordance with
the terms of the Master Lease.
(b) RENTAL PAYMENTS. Lessee shall pay to Lessor 12 consecutive
rental payments of $4,372.84 each, commencing November 1, 1997 and continuing
thereafter on or before each February 1, May 1, August 1 and November 1 during
the term of this Equipment Schedule, with the last such payment being due and
payable on August 1, 2000. Rental payments shall be payable to Lessor at its
offices at 1411 West 190th Street, Suite 500, Gardena, California 90248.
4. EQUIPMENT LOCATION(s). The Equipment will be located at the following
location(s):
4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
5. TAXES. Lessor will invoice Lessee for all sales, use and/or personal
property taxes as and when due and payable in accordance with applicable law,
unless Lessee delivers to Lessor a valid exemption certificate with respect to
such taxes. Delivery of such certificate shall constitute Lessee's
representation and warranty that no such taxes shall become due and payable
<PAGE> 14
with respect to the Equipment, and Lessee shall indemnify and hold harmless
Lessor from and against any and all liability or damages, including late charges
and interest which Lessor may incur by reason of the assessment of such taxes.
Dated as of October 1, 1997.
Synchronous Network Solutions Inc. Ixia Communications
By: /s/ Jon F. Rager By: /s/ Errol Ginsberg
------------------------------------------ ----------------------------------------
Name: Jon F. Rager Name: Errol Ginsberg
--------------------------------------- -------------------------------------
Title: Chief Financial Officer and Treasurer Title: President
------------------------------------- ------------------------------------
-2-
<PAGE> 15
SCHEDULE A
TO
EQUIPMENT SCHEDULE NO. 1
Please see the attached.
<PAGE> 16
MASTER EQUIPMENT LEASE AGREEMENT
BETWEEN
SYNCHRONOUS NETWORK SOLUTIONS, INC.
AND
IXIA COMMUNICATIONS
ATTACHMENT TO
SCHEDULE A
TO EQUIPMENT SCHEDULE NO. 1
One - Hewlett Packard HP 16500C Logic Analyzer equipment
(S/N US37130156)
Two - Hewlett Packard HP 16555A Timing Card
(S/N US34471658 & US3447144)
Four - TEK P6243 - TEK Active Probe
One - Tektronix TDS 754A equipment (Ref PO# 121860)
<PAGE> 17
AMENDED AND RESTATED
EQUIPMENT SCHEDULE NO. 2
Lessee: IXIA COMMUNICATIONS
Address: 4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
1. LEASE OF SPECIFIED EQUIPMENT. This Amended and Restated Equipment
Schedule No. 2 (this "Equipment Schedule") dated as of March 20, 1998 is entered
into pursuant to and incorporates by this reference all of the terms and
provisions of that certain Master Equipment Lease Agreement (the "Master Lease")
dated as of October 1, 1997 between Synchronous Network Solutions, Inc.
("Lessor") and Ixia Communications ("Lessee"), for the lease of the equipment
described in Schedule A attached hereto (the "Equipment"). This Equipment
Schedule supersedes and replaces in its entirety Equipment Schedule No. 2 as
previously executed by Lessor and Lessee. This Equipment Schedule shall
constitute a separate, distinct and independent lease of the Equipment and an
independent contractual obligation of Lessee. References to the "the Lease" or
"this Lease" shall mean and refer to this Equipment Schedule, together with the
Master Lease and all exhibits, addenda, schedules, certificates, riders and
other documents and instruments executed and delivered in connection with this
Equipment Schedule, all as the same may be amended or modified from time to
time. All capitalized terms used herein without definition shall have the
meanings set forth or referred to in the Master Lease. By its execution and
delivery of this Equipment Schedule, Lessee hereby reaffirms all of the
representations, warranties and covenants contained in the Master Lease, as of
the date hereof, and further represents and warrants to Lessor that no Event of
Default by Lessee, and no event or condition which with notice or the passage of
time or both would constitute an Event of Default by Lessee, has occurred and is
continuing as of the date hereof.
2. ACQUISITION COST. The acquisition cost of the Equipment is $6,175.90.
3. (a) LEASE TERM. The term of this Equipment Schedule shall commence on
the date hereof and shall continue until October 1, 2000, plus any renewal or
extended term applicable in accordance with the terms of the Master Lease.
(b) RENTAL PAYMENTS. Lessee shall pay to Lessor 10 consecutive
rental payments of $672.28 each, commencing May 1, 1998 and continuing
thereafter on or before each August 1, November 1, February 1 and May 1 during
the term of this Equipment Schedule, with the last such payment being due and
payable on August 1, 2000. Rental payments shall be payable to Lessor at its
offices at 1411 West 190th Street, Suite 500, Gardena, California 90248.
4. EQUIPMENT LOCATION(s). The Equipment will be located at the following
location(s):
4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
<PAGE> 18
5. TAXES. Lessor will invoice Lessee for all sales, use and/or personal
property taxes as and when due and payable in accordance with applicable law,
unless Lessee delivers to Lessor a valid exemption certificate with respect to
such taxes. Delivery of such certificate shall constitute Lessee's
representation and warranty that no such taxes shall become due and payable with
respect to the Equipment, and Lessee shall indemnify and hold harmless Lessor
from and against any and all liability or damages, including late charges and
interest which Lessor may incur by reason of the assessment of such taxes.
Dated as of March 20, 1998.
Synchronous Network Solutions Inc. Ixia Communications
By: /s/ Jon F. Rager By: /s/ Errol Ginsberg
----------------------------------------- --------------------------------------
Name: Jon F. Rager Name: Errol Ginsberg
--------------------------------------- ------------------------------------
Title: Chief Financial Officer and Treasurer Title: President
-------------------------------------- ------------------------------------
-2-
<PAGE> 19
SCHEDULE A
TO
EQUIPMENT SCHEDULE NO. 2
Two WinBook Notebook Computers, XL P266 4.0 T13.3 20X/MSB 4.0, Serial Nos.
RCN406W2118N51 and RCN406W2118N49
Two WinBook XL64MBW/4MX16 144PED03.3V 60
Two WinBook Canvas Notecases
<PAGE> 20
EQUIPMENT SCHEDULE NO. 3
Lessee: IXIA COMMUNICATIONS
Address: 4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
1. LEASE OF SPECIFIED EQUIPMENT. This Equipment Schedule No. 3 dated as
of May 20, 1998 is entered into pursuant to and incorporates by this reference
all of the terms and provisions of that certain Master Equipment Lease Agreement
(the "Master Lease") dated as of October 1, 1997 between Synchronous Network
Solutions, Inc. ("Lessor") and Ixia Communications ("Lessee"), for the lease of
the equipment described in Schedule A attached hereto (the "Equipment"). This
Equipment Schedule shall constitute a separate, distinct and independent lease
of the Equipment and an independent contractual obligation of Lessee. References
to the "the Lease" or "this Lease" shall mean and refer to this Equipment
Schedule, together with the Master Lease and all exhibits, addenda, schedules,
certificates, riders and other documents and instruments executed and delivered
in connection with this Equipment Schedule, all as the same may be amended or
modified from time to time. All capitalized terms used herein without definition
shall have the meanings set forth or referred to in the Master Lease. By its
execution and delivery of this Equipment Schedule, Lessee hereby reaffirms all
of the representations, warranties and covenants contained in the Master Lease,
as of the date hereof, and further represents and warrants to Lessor that no
Event of Default by Lessee, and no event or condition which with notice or the
passage of time or both would constitute an Event of Default by Lessee, has
occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The acquisition cost of the Equipment is $4,551.46.
3. (a) LEASE TERM. The term of this Equipment Schedule shall commence on
the date hereof and shall continue until October 1, 2000, plus any renewal or
extended term applicable in accordance with the terms of the Master Lease.
(b) RENTAL PAYMENTS. Lessee shall pay to Lessor 9 consecutive rental
payments of $549.10 each, commencing August 1, 1998 and continuing thereafter on
or before each November 1, February 1, May 1 and August 1 during the term of
this Equipment Schedule, with the last such payment being due and payable on
August 1, 2000. Rental payments shall be payable to Lessor at its offices at
1411 West 190th Street, Suite 500, Gardena, California 90248.
4. EQUIPMENT LOCATION(s). The Equipment will be located at the following
location(s):
4505 Las Virgenes Road, Suite 209
Calabasas, CA 91302
5. TAXES. Lessor will invoice Lessee for all sales, use and/or personal
property taxes as and when due and payable in accordance with applicable law,
unless Lessee delivers to Lessor a valid exemption certificate with respect to
such taxes. Delivery of such certificate shall constitute Lessee's
representation and warranty that no such taxes shall become due and payable
<PAGE> 21
with respect to the Equipment, and Lessee shall indemnify and hold harmless
Lessor from and against any and all liability or damages, including late charges
and interest which Lessor may incur by reason of the assessment of such taxes.
Dated as of May 20, 1998.
Synchronous Network Solutions Inc. Ixia Communications
By: /s/ Jon F. Rager By: /s/ Errol Ginsberg
------------------------------------- ---------------------------------------
Name: Jon F. Rager Name: Errol Ginsberg
------------------------------------- -------------------------------------
Title: Chief Financial Officer and Treasurer Title: President
------------------------------------- ------------------------------------
-2-
<PAGE> 22
SCHEDULE A
TO
EQUIPMENT SCHEDULE NO. 3
Dell Dimension XPS R400MHz Pentium II Minitower Base with MMX Technology and
512K Cache
MICROSOFT PS2 Intellimouse
Silitek Quiet Key, 104 Key Keyboard
245MB 100MHz SDRAM Memory
14/32X EIDE CD ROM
Dell 1000LS 17" Color Monitor, with 15.9" Viewable Image Size, Model #D1028L
STB nViDIA 4MB AGP Video Card
3.5 1.44 MB Floppy Drive
8.4 GB EIDE Ultra ATA Hard Drive
Microsoft IE4.0
McAfee VirusScan 3.1 CD, Online Documentation
W98 Upgrade Eligibility
WINDOWS '95 CD
MS BookShelf `98, CD & Manual
MS OFFICE 97 Small Business Edition, CD
Microsoft Windows NT Server 4.0 5 CAL NT CD (including MS WIN NT SERVER V4.0
Client Access Licenses)