Exhibit 10.70
AMENDMENT NO. 1
TO OPERATING AGREEMENT
THIS AMENDMENT NO. 1, (this "Amendment"), dated as of October , 2002 (the
"Effective Date"), by and between MTI Technology Corporation, a Delaware
corporation (the "MTI"), and Information Leasing Corporation, an Ohio
corporation ("ILC" and together with MTI, the "Parties"), amends that certain
Operating Agreement, dated June 9, 1997 (the "Original Agreement"), by and
between the Parties.
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and mutual agreements set
forth herein, and for other good and valuable consideration, the adequacy of
which is hereby acknowledged, the Parties hereby agree as follows:
1. EXTENSION OF TERM OF SCHEDULES. Notwithstanding anything to the
contrary in the operative agreements, the term of each of the GE Schedules in
the First GE Schedule set (SOD 1 through SOD 64) shall be extended to expire on
June 30, 2003 unless earlier terminated in accordance with the Original
Agreement, as amended by this Amendment.
The term of each of the GE Schedules in the Second GE Schedule Set (SOD 65
through SOD 179) shall be extended to terminate one year after the original term
date unless earlier terminated in accordance with the Original Agreement, as
amended by this Amendment.
2. DECOMMISSIONING OF PRODUCTS. For purposes of this Amendment, the date
of decommissioning of a Product by GE shall be the earlier of (i) the date ILC
provides MTI written notice that a Product has been taken out of service by or
on behalf of GE or (ii) the shipping date reflected on the Xxxx of Lading (or
similar instrument) for the shipment of the Product to or at the direction of
MTI.
3. TERMINATION OF GE SCHEDULES IN FIRST GE SCHEDULE SET DUE TO
DECOMMISSIONING. Notwithstanding anything to the contrary in the Operative
Agreements, in the event the Decommission Date for Products under the First GE
Schedule Set occurs prior to June 30, 2003:(i) such GE Schedule shall terminate,
(ii) MTI shall not be obligated to provide any further Maintenance Services or
other services in connection with such GE Schedule and (iii) MTI shall not be
required to refund or reallocate any funds related to the unexpired portion of
such GE schedule.
4. TERMINATION OF GE SCHEDULES IN SECOND SCHEDULE SET DUE TO
DECOMMISSIONING. Notwithstanding anything to the contrary in the Operative
Agreements or otherwise, in the event the Decommission Date for all Products
under the Second GE Schedule Set occurs prior to the amended expiration date,
then on and as of
1
the Decommission Date (i) such GE Schedule shall terminate, (ii) MTI shall not
be obligated to provide any further Maintenance Services or other services in
connection with such GE Schedule and (iii) MTI shall not be required to refund
or reallocate any funds related to the unexpired portion of such GE Schedule.
5. REMARKETING OF DECOMMISSIONED PRODUCTS. MTI shall use its commercially
reasonable efforts to remarket any Products decommissioned by GE through the
attempted resale thereof, and the fees, costs and expenses incurred in
remarketing any Decommissioned Products shall be offset against any funds
received in the resale of the Decommissioned Products. Any resulting net
revenues from the resale of Decommissioned Products shall be divided equally
(i.e., 50/50) by ILC and MTI. It is understood and acknowledged that even
through the use of MTI's commercially reasonable efforts, there may be no market
for the Decommissioned Products
IN WITNESS WHEREOF, each of the undersigned has duly executed this Amendment as
of the date first above written.
MTI
MTI Technology Corporation, a Delaware
corporation
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
--------------------------------
Its: CFO
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ILC
Information Leasing Corporation, an
Ohio corporation
By: /s/ Xxxxxx X. Herald
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Name: Xxxxxx X. Herald
--------------------------------
Its: V.P.
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EXHIBIT A
PRO RATA ALLOCATION OF MAINTENANCE FEES
