EXHIBIT 10.47
MTI TECHNOLOGY CORPORATION
MASTER LEASE AGREEMENT NO. 20011
THIS MASTER LEASE AGREEMENT NO. 20011 (the "Master Lease") is made as of
September 28, 2001 between MTI TECHNOLOGY CORPORATION, a Delaware corporation
with its principal office at 0000 Xxxx Xx Xxxxx Xxxxxx, Xxxxxxx, XX 00000
("Lessor"), and WEBUSENET CORPORATION, a Nevada corporation with its principal
office at 00 00xx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 ("Lessee").
1. DEFINITIONS: (a) The "Equipment" means the equipment, machines, devices,
features, manufacturer's application software, and other items listed in each
Schedule hereto attached and hereby made a part hereof.
(b) The "Manufacturer" means the manufacturer or vendor of the Equipment
as shown in a Schedule.
(c) The "Commencement Date" means with respect to each Schedule, where
the beginning date for Basic Rental (as defined in paragraph 4 hereof) is the
first day of a month, that date, and in any other case, the first day of the
month following the beginning date for Basic Rental.
(d) The "Installation Date" means, for the Equipment being installed,
the date that (i) the Equipment is installed as specified by Manufacturer, or
(ii) the Equipment is delivered to Lessee if Lessee fails to provide a suitable
installation environment or elects to delay installation. At Lessor's request,
Lessee shall execute a Certificate of Installation and Acceptance verifying
Lessee's acceptance of the Equipment as of the Installation Date. Lessee hereby
authorizes Lessor to complete the Equipment serial numbers and the Installation
and Acceptance Date on Lessee's behalf on any Schedule or Acceptance Certificate
that is returned without such information.
2. LEASE: Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor in accordance with the terms and conditions of this Master Lease, the
Equipment identified in the Schedules which are or may from time to time be
executed pursuant to this Master Lease. Each Schedule shall incorporate by
reference all terms and conditions of this Master Lease together with such other
terms or amendments which may be specified in the Schedule. Together with this
Master Lease, each Schedule shall individually constitute a lease agreement
between Lessor and Lessee ("Lease") with respect to the Equipment specified in
the Schedule. A Lease shall not become effective until the Schedule is executed
by Lessee and Lessor.
3. TERM OF LEASE: (a) The term of this Master Lease shall commence on the date
set forth above and shall continue in effect thereafter so long as any Lease
entered into pursuant to this Master Lease remains in effect. The initial term
for each Lease shall commence on the Commencement Date and shall continue for
the number of full months set forth in the Schedule ("Initial Term"). Notice of
Lessee's termination of each Lease shall be provided to Lessor in writing at
least three (3) months prior to the expiration of the Initial Term of the Lease.
Lessee or Lessor may terminate a Lease only at the expiration of the Initial
Term by giving the other party not more than six (6) months and not less than
three (3) months written notice prior to such expiration. In the event that
Lessee's or Lessor's written notice is not received or given (as applicable) as
prescribed herein, the term of the Lease shall be extended for continuous and
consecutive three (3) month periods at the then existing Basic Rental, with
receipt of notice of termination required at least three (3) months prior to
termination.
(b) Any notice of termination given by Lessee may not be revoked without
the written consent of Lessor.
4. RENTAL: (a) The minimum monthly rental (herein called the "Basic Rental")
payable by Lessee to Lessor or its assigns for each Lease is set forth in each
Schedule. Basic Rental shall begin on the Installation Date and shall be due and
payable by Lessee to Lessor in advance on or before the first day of each month.
If the beginning date for Basic Rental does not fall on the first day of a
month, the first payment for the partial month will be prorated on the basis of
a 30-day month and will be due and payable on the beginning date for rent. In
the event Lessee does not timely make any payment of Basic Rental or other
monies due hereunder, Lessee shall be liable to Lessor for a stipulated damage
amount equal to 18% per annum of the amount of said payment and shall pay said
amount immediately to Lessor.
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
(b) In addition to the Basic Rental, Lessee shall pay to Lessor an
amount equal to all taxes, if any, paid, payable or required to be collected by
Lessor, however designated, which are levied or based on this transaction, the
Basic Rental, a Lease, and/or the Equipment or its use, lease, sale, operation,
control or value, including, without limitation, state and local sales,
privilege, business license or excise taxes based on gross revenue, or amounts
in lieu thereof paid or payable by Lessor in respect of the foregoing, but
excluding only federal and state income taxes. Personal property taxes, if any,
on the Equipment shall be filed with the appropriate authorities by Lessee and
paid by Lessee. Lessee shall give Lessor written evidence of payment of personal
property taxes within ten days of the due date. Except for personal property
taxes, all taxes shall be invoiced by Lessor to Lessee unless such taxes are
invoiced directly to Lessee by the appropriate taxing authorities. If Lessee
makes timely payment to Lessor or directly to any taxing authority within the
time provided by the authority for the payment of such taxes, then Lessee shall
not be liable for any penalties or interest in respect of the taxes. If Lessee
does not make timely payments to Lessor or directly to the taxing authority
within the time provided by the authority for the payment of such taxes, then
Lessee shall be liable for any penalties, interest or other charges in respect
of the taxes. Notwithstanding anything hereinabove to the contrary, so long as
Lessee is not in default hereunder, Lessee shall not be obligated by a Lease to
pay any tax, levy or assessment in respect of a Lease or the Equipment so long
as Lessee, in good faith, shall contest actively the validity thereof by
appropriate legal proceedings. Lessee agrees that if such a proceeding is
instituted, upon the final decision therein, or upon the discontinuance thereof,
Lessee will forthwith pay such taxes, levies or assessments as are determined to
be owing, together with all costs, interest and penalties and all damages and
costs, including all attorneys' fees reasonably incurred, which Lessor may
sustain in consequence of the non-payment of the taxes, levies or assessments
when due. Subject to the foregoing, Lessee may contest any such taxes in
Lessor's name, and Lessor agrees, upon written request and at the sole expense
of Lessee, to cooperate with Lessee in the prosecution of any such contest.
5. USE OF EQUIPMENT: (a) Lessee warrants and represents that all use of the
Equipment and all components and any other equipment used in any manner in
connection with the operation and use of the Equipment shall meet the
specifications of Manufacturer. Specifications shall include but not be limited
to Manufacturer's warranty and required or recommended maintenance program.
(b) Lessee shall be entitled to full time use of the Equipment without
extra charge by Lessor.
(c) Lessee shall keep the Equipment at all times in its sole possession
and control. The Equipment shall not be moved from the location stated in each
Schedule attached hereto without the prior written consent of Lessor.
(d) Without the prior written consent of Lessor, Lessee shall not make
or permit to be made any alteration, attachment or addition to the Equipment,
except for the installation of such standard engineering changes as are
customarily made without charge by Manufacturer under its basic maintenance
program, and Lessee shall cooperate so that such standard engineering changes,
as part of Manufacturer's maintenance program, may be promptly installed.
(e) Lessee agrees that other than replacements and repairs any
alteration, attachment or addition to the Equipment shall be capable of being
removed without material damage to or reduction in the value or impairment of
the capability or efficiency of, the Equipment, and that no alteration,
attachment or addition shall reduce the value or impair the capabilities or
efficiency of the Equipment. Other than replacements or repairs, any alteration,
attachment or addition shall be made at Lessee's expense and absent a default by
Lessee hereunder, shall be the property of Lessee. Any item of the Equipment
replaced or substituted in connection with the alteration, attachment or
addition shall remain the property of Lessor and shall be restored to the
Equipment in proper working order upon the termination of a Lease at Lessee's
expense.
6. MAINTENANCE AND REPAIRS: (a) At all times during the continuance of a Lease,
Lessee, at its expense, shall maintain and keep the Equipment in good working
order, repair and condition and make all necessary adjustments, repairs, and
replacements and shall use and require the Equipment to be used in a manner
consistent with the Manufacturer's warranty and maintenance program.
(b) Without limiting the generality of the foregoing, effective upon
expiration of the Manufacturer's warranty on the Equipment, Lessee, at its own
expense, shall enter into and maintain in force a maintenance agreement with
Manufacturer or, with prior written consent of Lessor and Secured Party (as
defined in Section 12 hereof), such other vendor, covering the maintenance of
the Equipment (hereinafter referred to as the "Maintenance Program"). Lessee
shall pay the specified monthly maintenance charge and other costs required in
the Maintenance Program. Lessee shall furnish Lessor an executed copy of the
Maintenance Program. Lessor shall have no responsibilities or obligations
whatsoever with respect to the condition, operation, maintenance or repair of
the Equipment.
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
7. REDELIVERY OF EQUIPMENT TO LESSOR: At the termination of a Lease, Lessee
shall deliver possession of the Equipment to Lessor in accordance with the
following procedures:
(a) At the termination of a Lease, Lessee, at its sole expense, shall
return the Equipment to Lessor in the same operating order, repair, condition
and appearance as on the date of the commencement of such Lease, reasonable wear
and tear excepted, and Lessee shall arrange and pay for such repairs and
replacements required by Manufacturer to accept the Equipment under its
maintenance program at its then standard rates. In addition, Lessee, at its sole
expense, shall return all Equipment with the latest version of the operating
system then available, either installed or on separate media, if the operating
system is considered transferable as a part of the hardware by the Manufacturer.
Upon Lessor's request, Lessee shall provide to Lessor no later than ten (10)
days after deinstallation of the Equipment a written letter from the
Manufacturer certifying that the Equipment is eligible for Manufacturer's
maintenance program. In the event the letter is not provided, Lessor, at the
sole expense of Lessee, may have the Equipment tested and certified by the
Manufacturer.
(b) At the end of the last business day of a Lease, and at its sole
expense, Lessee shall tender the Equipment packed and crated by Manufacturer or
by a carrier acceptable to Manufacturer in a manner suitable for truck
transportation and at a loading dock for trucks of the manner normally used for
transportation of the Equipment at the then present location of the Equipment.
If the Equipment is not ready for such removal by the end of the first business
day following the termination of a Lease, then Lessee shall be liable to Lessor
for two (2) days' rent for each day during which the Equipment is not so
tendered for removal.
(c) Lessee shall be solely responsible and shall pay directly all
transportation, insurance, rigging, drayage, packing, deinstallation,
disconnection charges and other items of alike nature incurred in connection
with a Lease, including without limitation any costs and expenses incurred in
respect of delivering the Equipment to Lessor's designated destination, and
insurance on the Equipment in route, upon termination of any Lease or this
Master Lease.
8. OWNERSHIP AND INSPECTION: (a) The Equipment shall at all times remain the
property of Lessor and be and remain personal property notwithstanding the
manner in which it may be attached or affixed to realty. Lessee acknowledges and
agrees that it has not, and by the execution of this Master Lease and any Lease,
it does not have or obtain, and by payments and performance hereunder, it does
not and will not have or obtain any title to the Equipment. Lessee will affix
tags, decals or plates to the Equipment showing Lessor's ownership, which type
of tag, decal or plate and location may be specified by Lessor, and Lessee shall
not permit their removal or concealment.
(b) Lessor or its agent shall have free access to the Equipment at all
reasonable times for the purpose of inspection and for any other purpose
contemplated in this Lease.
(c) Lessee shall immediately notify Lessor of all details concerning any
claim of damage or loss arising out of the use, manufacturer, functioning or
operation of the Equipment.
(d) Lessee shall keep the Equipment free and clear of all liens,
encumbrances and claims of any kind and nature.
9. INSURANCE: The risk of loss for or any damage to or destruction of the
Equipment shall be on Lessee. Lessee shall obtain and maintain for the entire
term of any Lease, at its own expense, property damage and liability insurance
and insurance against loss or damage to the Equipment without deductible or
co-insurance borne by Lessee including, without limitation, loss by fire and
hazard (including so-called all risks and extended coverage), theft, and such
other risks of loss as are customarily insured against on the type of Equipment
leased hereunder and/or by businesses in which Lessee is engaged, in such
amounts, in such form and with such insurers as shall be satisfactory to Lessor;
provided, however, that the amount of insurance against loss or damage to the
Equipment shall not be less than the greater of the full replacement value of
the Equipment or the total of the installments of rent then remaining unpaid
hereunder. In the event that the Equipment shall be or become lost, stolen,
destroyed, worn out, irreparably damaged, or shall be requisitioned or taken
over by any governmental authority under the power of eminent domain or
otherwise during the term of a Lease (any such occurrence being herein called a
"Casualty Occurrence"), Lessee shall terminate such Lease by paying Lessor, on
the payment date for Basic Rental next succeeding the Casualty Occurrence, an
amount equal to the full replacement value of the Equipment plus the total of
the installments of rent then remaining unpaid hereunder (the "Casualty Value").
In any settlement under this paragraph 9 Lessee shall be entitled to credit for
the amount of any proceeds of any insurance or award actually received by Lessor
or the Secured Party on account of the Casualty Value with all excess amounts
being the sole property of Lessor; and if at the time of any settlement under
this paragraph 9 any rents or other sums are due or accrued and unpaid
hereunder, all such rents and other sums shall also be paid at the time of such
settlement. Each insurance policy will name Lessee as an insured and Lessor and
any Secured Party as additional insureds and loss payees thereof as Lessor's and
any Secured Party's interest may appear, and shall contain a clause requiring
the insurer to give Lessor and any Secured Party at least ten (10) days prior
written notice of any alteration in the
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
terms of such policy or of the cancellation thereof. Lessee shall furnish to
Lessor and any Secured Party a certificate of insurance or other evidence
satisfactory to Lessor and Secured Party that such insurance coverage is in
effect. Lessor and any Secured Party shall be under no duty either to ascertain
the existence of or to examine any such insurance policy or to advise Lessee in
the event such insurance coverage shall not comply with the requirements hereof.
10. WARRANTIES: (a) Lessor hereby assigns to Lessee, at Lessee's expense, any
warranty rights which Lessor shall be entitled to enforce against Manufacturer
in respect of the Equipment. Lessee shall take all reasonable action to enforce
such warranties. Lessor, at the sole expense of Lessee, shall provide reasonable
assistance to Lessee in enforcing such warranty rights.
(b) LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE WITH RESPECT TO THE CONDITION OR
PERFORMANCE OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE. LESSOR IS NOT
RESPONSIBLE FOR ANY REPAIRS, SERVICE OR DEFECTS IN THE EQUIPMENT OR THE
OPERATION THEREOF. Lessor shall have no liability to Lessee for any claim, loss
or damage of any kind or nature whatsoever and there shall not be any abatement
of rent for any reason, including without limitation any claim, loss or damage
arising out of or in connection with (i) the deficiency or inadequacy of the
Equipment for any purpose, (ii) any deficiency or defect in the Equipment, (iii)
the use or performance of the Equipment, (iv) any interruption or loss of
service or use of the Equipment or (v) any loss of business or other loss or
damage, direct, consequential or otherwise, whether or not resulting from any of
the foregoing. Lessee will defend, protect, indemnify and hold Lessor and any
Secured Party harmless against any and all losses, damages, injuries, claims,
demands, liabilities, costs, and expenses including reasonable attorney's fees,
arising out of or in connection with the design, manufacture, installation, use,
condition, possession or operation of the Equipment. The foregoing
indemnification shall not apply in the event such claims, demands, liabilities
or costs are the direct cause of the willful fault or gross negligence of
Lessor. The indemnities and assumptions of liabilities contained in this
paragraph 10 (b) shall continue in full force and effect after the termination
of any Lease, whether by time or otherwise. At its own expense, Lessee will
maintain adequate and complete public liability insurance to cover its liability
with respect to the design, manufacture, possession or operation of the
Equipment and the premises at which the Equipment is located, and shall name
Lessor and any Secured Party as additional insureds under such public liability
policy or policies.
11. UPGRADES: Provided Lessee is not in default under this Master Lease or any
Lease, Lessee shall notify Lessor in writing that Lessee desires to add upgrades
to the Equipment not less than forty-five (45) days before the desired date of
installation stating when and what upgrades Lessee intends to obtain. Within ten
(10) business days after Lessor receives Lessee's notice Lessor may offer to
lease and supply such upgrades (the "Offer") to Lessee. Lessee may accept this
offer or seek other bona fide offers from third parties, the credit of which
shall have been approved by Lessor in its sole discretion ("Third Party Offer").
Lessee shall notify Lessor of any more favorable Third Party Offer. Lessee shall
obtain the upgrade from Lessor if Lessor at least matches the Third Party Offer
within five (5) business days after Lessor's receipt of Lessee's notice. If
Lessee leases upgrades from Lessor, the lease shall be subject to a Schedule the
terms of which, other than the Initial Term, Acceptance Date and Basic Rent,
shall be the same as those applicable to the Equipment to which the upgrades
relate.
12. SECURITY INTEREST AND/OR ASSIGNABILITY: At any time and from time to time,
Lessor may assign the rents and other sums at any time due or to become due or
at any time owing or payable by Lessee to Lessor under any Lease or this Master
Lease. Any assignment shall be in respect of any Lease or this Master Lease
and/or the rents and other sums due and to become due in respect of the
Equipment, and may be either absolute or as collateral security for any
obligation of Lessor. Any assignment shall not be binding on Lessee until
written notice has been given to Lessee by Lessor and the assignee ("Secured
Party"). From and after the receipt by Lessee of written notice Secured Party
shall not be obligated to perform any duty, covenant or condition required to be
performed by Lessor under any Lease or this Master Lease, but on the contrary,
Lessee, by its execution hereof, acknowledges and agrees that notwithstanding
any such assignment, all such duties, covenants or conditions required to be
performed by Lessor shall survive any such assignment and shall be and remain
the sole liability of Lessor and of every person, firm or corporation succeeding
(by merger, consolidation, purchase of assets or otherwise) to all or
substantially all of the business assets or goodwill of Lessor. Without limiting
the foregoing, Lessee further acknowledges and agrees that the rights of Secured
Party in and to the sums payable by Lessee under any Lease or this Master Lease
(including, without limitation, Basic Rental and Casualty Value) shall not be
subject to any abatement whatsoever, and shall not be subject to any defense,
set-offs, counterclaim or recoupment whatsoever whether by reason of failure of
or defect in Lessor's title or any failure of Lessor to perform any of its
obligations hereunder or any interruption
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
from whatsoever cause in the use, operation or possession of the Equipment or
any part thereof or any damage to or loss or destruction of the Equipment or any
part thereof or by reason of any other indebtedness or liability, howsoever and
whenever arising, of Lessor to Lessee or to any other person, firm or
corporation or to any governmental authority or for any cause whatsoever. It is
the intent hereof that Lessee shall be unconditionally and absolutely obligated
to pay Secured Party all of the rents, Casualty Value and other sums which are
the subject matter of the assignment and that Secured Party shall have the sole
right to exercise all rights, privileges and remedies (either in its own name or
in the name of Lessor for the use and benefit of Secured Party) which by the
terms of any Lease or this Master Lease or by applicable law are permitted or
provided to be exercised by Lessor.
13. RIGHT TO QUIET ENJOYMENT: So long as the Lessee shall not be in default
hereunder, Lessee shall have the right to quiet enjoyment and use of the
Equipment.
14. REMEDIES: The Lessee shall be in default hereunder ("Default") if: (i) it
fails to make a timely payment of any rent or other monies herein reserved; (ii)
it fails to timely perform any of the terms or provisions of any Lease, this
Master Lease, or any other agreement by and between Lessor and Lessee, including
any other master lease, and fails to cure such default within five (5) days
after receipt from Lessor and/or Secured Party of written notice to Lessee of
the default; (iii) any representation or warranty made by Lessee herein or in
any document or certificate furnished Lessor or Secured Party in connection
herewith or pursuant hereto shall prove to be incorrect at any time in any
material respect, so long as Lessee has been given five (5) days notice of said
incorrect representation or warranty; (iv) a temporary receiver is appointed for
Lessee or Lessee's property and the receiver is not removed within thirty (30)
days after appointment, or if a permanent receiver is appointed for Lessee or
Lessee's property; if, whether voluntarily or involuntarily, Lessee takes
advantage of or seeks to take advantage of any debtor relief or bankruptcy
proceedings under any present or future law; if Lessee makes an assignment for
benefit of creditors; or if Lessee shall be declared bankrupt, whether
voluntarily or involuntarily; (v) an order, judgment or decree of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets or liabilities or similar proceedings
of or relating to Lessee or of or relating to all or any substantial part of its
property, or the winding up or liquidation of its affairs, shall have been
entered against Lessee, and such decree or order shall have remained in force
undischarged or unstayed for a period of thirty (30) days from the date of entry
thereof; (vi) the rights, privileges or franchises of Lessee to do business
shall be declared forfeited by any governmental authority or any court of
competent jurisdiction and not restored or the order, decree or judgment related
thereto effectively stayed by appropriate proceedings within 30 days thereafter.
Upon occurrence of any such Default, Lessor may at its option declare any Lease
and/or this Master Lease to be in default and may do one or more of the
following with respect to any or all Equipment as Lessor in its sole discretion
shall elect: (a) cause Lessee to (and Lessee agrees that it will), upon written
demand of Lessor and at Lessee's expense, promptly return the Equipment to
Lessor in accordance with all of the terms of paragraph 7 hereof, or Lessor, at
its option, may enter upon the premises where Equipment is located and take
immediate possession of and remove the same, all without liability to Lessor for
damage to property or otherwise; (b) sell or lease any or all of the Equipment
at public or private sale, with or without notice to Lessee or advertisement, or
otherwise dispose of, hold, use, operate or keep idle the Equipment, all as
Lessor in its sole discretion may determine and all free and clear of any rights
of Lessee and without any duty to account to Lessee for such action or inaction
or for any proceeds with respect thereto; (c) by written notice to Lessee, cause
Lessee to (and Lessee agrees that it will) pay to Lessor (as liquidated damages
for loss of a bargain and not as a penalty) on the date specified in such notice
the greater of the following amounts: (x) an amount equal to the present worth
of all unpaid Basic Rentals, such present worth to be computed on the basis of a
four percent (4%) per annum discount from the respective dates of such rental
payment, which absent a default, would have been payable hereunder for the full
term hereof (plus interest accrued thereon at the rate of 18% per annum from
said date to the date of actual payment), plus any other monies due or accrued
hereunder up to date of actual payment, or (y) the then Fair Market Value,
determined by an independent appraiser selected by Lessor with the appraisal to
be binding upon both Lessor and Lessee; and/or (d) Lessor may exercise any other
rights or remedies which may be available to it under the Uniform Commercial
Code or any other applicable law or proceed by appropriate court action to
enforce the terms hereof or to recover damages for the breach hereof or to
rescind any Lease and/or this Master Lease as to any or all Equipment. In
addition, Lessee shall continue to be liable for all indemnities under this
Master Lease, and for all legal fees and other costs and expenses resulting from
the foregoing defaults or the exercise of Lessor's remedies, including without
limitation placing any Equipment in the condition required by paragraph 7
hereof. No right or remedy referred to in this paragraph is intended to be
exclusive, but each shall be cumulative and in addition to any other right or
remedy referred to above or otherwise available to Lessor at law or in equity.
No express or implied waiver by Lessor of any default shall constitute a waiver
of any other default by Lessee or a waiver of any Lessor's rights or remedies.
To the extent permitted by applicable law, Lessee hereby waives any rights
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
now or hereafter conferred by statute or otherwise which may require Lessor to
sell, lease or otherwise use or deal with any Equipment in mitigation of
Lessor's damages as set forth in this paragraph or which may otherwise limit or
modify any of the Lessor's rights or remedies under this paragraph.
15. SUBLEASE AND ASSIGNMENT: Lessee may sublease the Equipment or assign its
rights under any Lease or this Master Lease, in whole or in part, only with the
prior written consent of Lessor and any Secured Party. In any such case, Lessee
shall nevertheless remain fully liable hereunder and, in requesting the prior
written consent, shall provide copies of any sublease or assignment, together
with all related documents, to Lessor and Secured Party.
16. RENEWAL OPTION: Provided Lessee is not in default under this Master Lease or
any Lease, Lessee may elect to renew the Initial Term of a Lease for a period
not less than twelve (12) months (a "Renewal Term"). (However, no Lease Term
shall exceed seventy-two (72) months.) Lessee's renewal option is subject to the
following terms and conditions:
(a) Lessee must notify Lessor of its exercise of the option at least
three (3) months before the expiration of the Lease Term.
(b) All of the terms of the Lease other than the length of the Renewal
Term and the Rent shall remain the same. The Rent shall be the Fair Rental
Value, as hereinafter defined, of the Equipment as of commencement of the
Renewal term.
"Fair Rental Value" is defined as the value upon which a willing Lessor
and a willing Lessee would agree, for the term involved, each respectively under
no compulsion to lease. Fair Rental Value as of the end of the Initial Lease
Term shall be determined by agreement of Lessor and Lessee or, if they cannot
agree, then by an independent appraiser selected by Lessor and satisfactory to
Lessee. The cost of such appraisal shall be paid equally by Lessor and Lessee.
(c) Upon notice, Lessor may substitute equipment of the same model and
type for the Equipment, at Lessor's expense and in its sole discretion.
17. PURCHASE OPTION: Provided Lessee is not in default under this Master Lease
and any Lease, Lessee may notify Lessor that it desires to purchase all or part
of the Equipment on a Lease. The notice shall be given at least three (3) months
before the expiration of a Lease Term. Lessor agrees to sell to Lessee, at the
end of the Lease Term and upon terms and conditions as are acceptable to Lessor
and Lessee, the Equipment or, at Lessor's sole option, equipment of the same
model, type and condition which shall be installed at Lessor's expense at the
same location as the Equipment. The purchase price for such Equipment shall be
its Fair Market Value, as hereinafter defined. "Fair Market Value" is defined as
that purchase price that would be obtained in an arm's length transaction as of
the end of the Lease Term between informed and willing parties under no
compulsion to buy or sell. If Lessor and Lessee cannot agree upon the purchase
price, such amount shall be determined by an independent appraiser selected by
Lessor and satisfactory to Lessee. The cost of such appraisal shall be paid
equally by Lessor and Lessee.
18. GENERAL: (a) In any case where the consent or approval of Lessor, Lessee,
and/or Secured Party is required to be obtained under this Master Lease, such
consent or approval will not be unreasonably withheld. No such consent or
approval shall be valid unless it shall be in writing.
(b) This Master Lease shall become binding when executed by Lessee and
delivered to Lessor in Orange County, California. This Master Lease shall be
governed in all respects by the laws of Commonwealth of Virginia. Lessee and
Lessor agree that this Master Lease and the rights and remedies of Lessee,
Lessor and any Secured Party shall be governed and enforced in accordance with
the laws of the State of California.
(c) All notices, instructions or consents which should or may be given
hereunder shall be in writing and shall be deemed given and received upon the
sooner of (i) the day on which delivered to such party, (ii) within two days
after deposit in the United States Mail, postage prepaid, if sent by registered
or certified mail, return receipt requested, or (iii) if sent by Federal Express
or comparable overnight delivery service on the day after the day on which
deposited with such carrier, addressed to the respective party at its respective
address as set forth herein or to such other addresses as such party shall have
designated by notice given pursuant to this subparagraph. To be effective, all
such notices to Lessor shall be given at the same time and in the same manner to
MTI Technology Corporation, 0000 Xxxx Xx Xxxxx Xxx., Xxxxxxx, XX 00000, and to
any Secured Party.
(d) This Master Lease sets forth in full the agreement between Lessor
and Lessee. Any titles or captions contained herein are for convenience only,
and shall not be deemed to be part of the context. This Master Lease may not be
changed, or in any manner modified, except by further written agreement executed
by Lessor and Lessee, and Secured Party where necessary. This Master Lease
supersedes any and all prior understandings and agreements relating to the
subject matter herein.
MTI TECHNOLOGY CORPORATION MASTER LEASE NO. 20011
(e) Any provision of this Master Lease that is prohibited or
unenforceable in any jurisdiction shall be as to such jurisdiction ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or enforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
(f) No omission or delay by Lessor or Secured Party at any time to
enforce any right or remedy reserved on it or to require performance of any of
the terms, covenants or provisions hereof by Lessee at any time designated,
shall be a waiver of any such right or remedy to which Lessor or Secured Party
is entitled, nor shall it in any way affect the right of Lessor or Secured Party
to enforce such provisions thereafter.
(g) Lessee, upon execution of this Master Lease and thereafter upon
execution of each Schedule, shall provide Lessor with certified resolutions and
an opinion from Lessee's counsel addressed to Lessor or any Secured Party with
respect to the representations and warranties set forth herein, and shall also
supply executed financing statements and such other documents as Lessor may
reasonably request. Lessee hereby appoints Lessor as Lessee's attorney-in-fact
for the purpose of executing on behalf of the Lessee such financing statements
as Lessor determines necessary or appropriate in connection with the Master
Lease and any Lease executed in connection therewith.
(h) During the term of this Master Lease, Lessee agrees to deliver to
Lessor a copy of Lessee's annual audited financial statements and quarterly
interim financial statements within a reasonable time after said statements are
available.
(i) Lessee acknowledges that Lessor has appointed MTI Technology
Corporation, with its principal office at 0000 Xxxx Xx Xxxxx Xxx., Xxxxxxx, XX
00000, as its exclusive collection and servicing agent with respect to the
collection of amounts due under this Agreement and to the performance of the
obligations of Lessor hereunder. Amounts payable by Lessee to Lessor shall be
made payable to "MTI Technology Corporation" and delivered to MTI Technology
Corporation at 0000 Xxxx Xx Xxxxx Xxx. Xxxxxxx, XX 00000 unless otherwise
directed by Secured Party.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Lease to be
executed in their respective names and behalves and attested by their respective
proper officers thereunto duly authorized.
Lessor: MTI TECHNOLOGY CORPORATION
By:
---------------------------------------------
Name: XXXX XXXXX
Title: CHIEF OPERATING OFFICER
Lessee: WEBUSENET CORPORATION
By:
---------------------------------------------
Title:
---------------------------------------------
MTI TECHNOLOGY CORPORATION
Equipment Schedule No. 01
To
Master Lease Agreement
between
WEBUSENET CORPORATION
(Lessee)
and
MTI TECHNOLOGY CORPORATION
(Lessor)
This Equipment Schedule, dated as of September 28, 2001, is issued pursuant to
the Master Lease No. 20011, dated as of September 28, 2001, between MTI
TECHNOLOGY CORPORATION and WEBUSENET CORPORATION (the "Master Lease"). Any term
not otherwise defined herein shall have the meaning ascribed to it in the Master
Lease.
1. EQUIPMENT SUBJECT TO THIS EQUIPMENT SCHEDULE
Manufacturer Location
MTI Technology Corp. WebUseNet Corporation
00 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Description of Equipment
See Annex I to this Equipment Schedule
2. MONTHLY RENTAL PAYMENTS
Payment Periods Basic Rental
18 Months $72,595. per month
Payments due in arrears
First Payment due on
October 30, 2001
Commencement Date for
this schedule will be
September 30, 2001.
Accepted and Agreed to by:
-------------------------- ----------------------------
MTI TECHNOLOGY CORPORATION WEBUSENET CORPORATION
Name: Xxxx Xxxxx By:
-------------------------
Title: Chief Operating Officer Title:
----------------------
MTI TECHNOLOGY CORPORATION
Annex I
Description of Equipment
MTI TECHNOLOGY CORPORATION
(Lessor)
and
WEBUSENET CORPORATION
(Lessee)
Equipment Schedule No. 01, dated as of September 28, 2001, to Master Lease No.
20011
I. EQUIPMENT:
1 XXX000-XXX- XXXXXX X000
X0X
-0 XXXXXXXXX HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACKMOUNT CAPABLE
8 VT0000-PCA- 73GB DRIVE PACK WITHOUT COMPONENTS (12
880-GFA DRIVES)
1 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
1 MTIC-SVC-INST MTI S270 QuickStart Installation and Training On-
Site
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT DAY
CROSS SHIP
1 VERITAS Veritas Volume Manager w/MTI Support
3 VTS270-BXX-X7B VIVANT S270
-8 REDUNDANT HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST
CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACK MOUNT CAPABLE
MTI TECHNOLOGY CORPORATION
48 VT1000-PCA-437- 73GB DRIVE PACK WITHOUT COMPONENTS (6
GFA DRIVES)
3 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
14 ADPE-SGL-KFPC MTI HOST ATTACH KIT FOR PCI SUN SOLARIS
1 SL-FSTI-1500 VERITAS FOUNDATION SUITE FOR SUN 4500
-FILE SYSTEM AND VOLUME MANAGER
1 DS-FST1-1500 MTICARE FOR VERITAS SOFTWARE SUPPORT
5X13
1 MTIC-SVC-INST MTI S270 QUICKSTART INSTALLATION AND
TRAINING ON-SITE
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT
DAY CROSS SHIP
LESSOR'S INITIALS: LESSEE'S INITIALS:
------------- ------------
MTI TECHNOLOGY CORPORATION
MASTER LEASE NO. 20011 SCHEDULE NO. 01
ACCEPTANCE CERTIFICATE
Reference is made to the Master Lease Agreement dated as of September 28, 2001,
between MTI TECHNOLOGY CORPORATION as Lessor and WEBUSENET CORPORATION as
Lessee. The terms used herein shall have the same meaning as such terms have in
such Lease Agreement.
The undersigned certifies that (a) the following Equipment has been (i)
inspected by authorized representatives of Lessee, (ii) installed and placed in
good working order, and (iii) accepted by Lessee for leasing under all
provisions of the Lease; and (b) that Lessee is obligated to pay the rentals and
all other sums provided for in the Lease with respect to the Equipment listed
below:
1 XXX000-XXX- XXXXXX X000
X0X
-0 XXXXXXXXX HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION
PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACKMOUNT CAPABLE
8 VT0000-PCA- 73GB DRIVE PACK WITHOUT COMPONENTS (12
880-GFA DRIVES)
1 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
1 MTIC-SVC-INST MTI S270 QuickStart Installation and Training On-
Site
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT DAY
CROSS SHIP
1 VERITAS Veritas Volume Manager w/MTI Support
3 VTS270-BXX-X7B VIVANT S270
-8 REDUNDANT HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST
CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACK MOUNT CAPABLE
48 VT1000-PCA-437- 73GB DRIVE PACK WITHOUT COMPONENTS (6
GFA DRIVES)
3 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
MTI TECHNOLOGY CORPORATION
DSHA
14 ADPE-SGL-KFPC MTI HOST ATTACH KIT FOR PCI SUN SOLARIS
1 SL-FST1-1500 VERITAS FOUNDATION SUITE FOR SUN 4500
-FILE SYSTEM AND VOLUME MANAGER
1 DS-FST1-1500 MTICARE FOR VERITAS SOFTWARE SUPPORT
5X13
1 MTIC-SVC-INST MTI S270 QUICKSTART INSTALLATION AND
TRAINING ON-SITE
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT
DAY CROSS SHIP
The Installation and Acceptance Date for the above equipment is April 19, 2001
Lessee: WebUseNet Corporation
By:
-----------------------------------
Title:
-----------------------------------
MTI TECHNOLOGY CORPORATION
CERTIFICATE OF INCUMBENCY
I, ________________________________ Secretary/Assistant Secretary of WebUseNet
Corporation, a Nevada corporation (the "Corporation"), do hereby certify that
the following was duly elected to the office set forth opposite his/her name, is
incumbent in such office as of the date hereof, is authorized to execute on
behalf of the Corporation, lease agreements and other contractual agreements
with MTI Technology Corporation, and that the signature appearing opposite
his/her name is the genuine signature of such person.
Name Title Signature
---- ----- ---------
--------------------------- ------------------------ ------------------------
--------------------------- ------------------------ ------------------------
--------------------------- ------------------------ ------------------------
--------------------------- ------------------------ ------------------------
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand and
affixed the seal of the aforesaid corporation as of the _______ day of
_______________________, 2001.
(SEAL)
------------------------------------
Secretary/Assistant Secretary
MTI TECHNOLOGY CORPORATION
INSURANCE CERTIFICATE
REQUEST FORM
Xx. Xxxxxx Xxxxxxxx
WebUseNet Corporation
00 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Re: Lease Agreement No. 20011-01
Dear Xx. Xxxxxxxx:
Per your Master Lease Agreement referenced above, WebUseNet Corporation is
responsible for providing General Liability and Property insurance coverage for
all equipment leased through MTI Technology Corporation. This form authorizes
the addition of the equipment shown below to the existing coverage as well as
the interests of MTI Technology Corporation, as Additional Insured and Loss
Payee. Please forward this document to your insurance agent after you have
signed and dated where indicated. Your insurance agent should then forward the
certificate to 0000 XXXX XX XXXXX XXX., XXXXXXX, XX 00000. The certificate
should indicate the Master Lease and Schedule Number it applies to.
INSURANCE AMOUNT: $1,313,629
See attached.
Thank you for your assistance. Should you have any questions regarding this
request, please call Xxxxx Xxxxxx at (000) 000-0000.
Sincerely,
Xxxxx Xxxxxx
WebUseNet Corporation
Sign: Date:
--------------------------------------------- ---------------------
MTI TECHNOLOGY CORPORATION
Annex I
Description of Equipment
Equipment Schedule No. 01, dated as of September 28, 2001, to Master Lease No.
20011
I. EQUIPMENT:
1 XXX000-XXX- XXXXXX X000
X0X
-0 XXXXXXXXX HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACKMOUNT CAPABLE
8 VT0000-PCA- 73GB DRIVE PACK WITHOUT COMPONENTS (12
880-GFA DRIVES)
1 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
1 MTIC-SVC-INST MTI S270 QuickStart Installation and Training
On Site
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT DAY
CROSS SHIP
1 VERITAS Veritas Volume Manager w/MTI Support
3 VTS270-BXX-X7B VIVANT S270
-8 REDUNDANT HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACK MOUNT CAPABLE
48 VT1000-PCA-437- 73GB DRIVE PACK WITHOUT COMPONENTS (6
GFA DRIVES)
3 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
14 ADPE-SGL-KFPC MTI HOST ATTACH KIT FOR PCI SUN SOLARIS
1 SL-FST1-1500 VERITAS FOUNDATION SUITE FOR SUN 4500
-FILE SYSTEM AND VOLUME MANAGER
MTI TECHNOLOGY CORPORATION
1 DS-FST1-1500 MTICARE FOR VERITAS SOFTWARE SUPPORT
5X13
1 MTIC-SVC-INST MTI S270 QUICKSTART INSTALLATION AND
TRAINING ON-SITE
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT
DAY CROSS SHIP
LESSOR'S INITIALS: LESSEE'S INITIALS:
------------- ------------
MTI TECHNOLOGY CORPORATION
ATTACHMENT FOR UCC 20011/01
I. Equipment:
1 XXX000-XXX- XXXXXX X000
X0X
-0 XXXXXXXXX HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACKMOUNT CAPABLE
8 VT0000-PCA- 73GB DRIVE PACK WITHOUT COMPONENTS (12
880-GFA DRIVES)
1 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
1 MTIC-SVC-INST MTI S270 QuickStart Installation and Training On
Site
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT DAY
CROSS SHIP
1 VERITAS Veritas Volume Manager w/MTI Support
3 VTS270-BXX-X7B VIVANT S270
-8 REDUNDANT HARDWARE RAID CONTROLLERS
-2GB CACHE
-24 SWITCHED FIBRE CHANNEL HOST CONNECTION PORT
-96 DRIVE SLOTS
-GUI SAN TOOLS MANAGEMENT SOFTWARE
-70" CABINET WITH DUAL POWER SEQUENCERS
-RACK MOUNT CAPABLE
48 VT1000-PCA-437- 73GB DRIVE PACK WITHOUT COMPONENTS (6
GFA DRIVES)
3 VTS270-SWR- -DATASHIELD SOFTWARE FOR S270
DSHA
14 ADPE-SGL-KFPC MTI HOST ATTACH KIT FOR PCI SUN SOLARIS
1 SL-FST1-1500 VERITAS FOUNDATION SUITE FOR SUN 4500
-FILE SYSTEM AND VOLUME MANAGER
MTI TECHNOLOGY CORPORATION
1 DS-FST1-1500 MTICARE FOR VERITAS SOFTWARE SUPPORT
5X13
1 MTIC-SVC-INST MTI S270 QUICKSTART INSTALLATION AND
TRAINING ON-SITE
***SERVICE IS STANDARD WARRANTY- 8X5, NEXT
DAY CROSS SHIP
EQUIPMENT LOCATION: 00 00XX XXXXXX, XXXXX 0000
XXXXXXX, XX 00000
00 XXXXX XXXX XXXX.
XXXXXXX XXXXXXXX
XXX XXXX, XX 00000
