EXHIBIT 10.42
LEASE AGREEMENT
This Lease Agreement (hereinafter the "Lease") is made this 7th day of
June, 2000 (hereinafter referred to as the "Effective Date) by and between
XxXxxxx.xxx, a corporation organized and existing under the laws of the State of
California and having a principal place of business at 0000 Xxxxx Xxxxx Xxxx,
Xxxxxx Xxxxxx, XX 00000 ("OnRadio'), and XxxxxxXxxxx.xxx, a corporation
organized and existing under the laws of the State of Nevada and having a
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0 ("Global').
1. Entire Agreement
This Agreement, including all appendices and attachments referenced herein,
constitutes the entire agreement between OnRadio and Global and supersedes all
proposals, oral and written, between the parties on this subject matter.
2. Lease and Use of Equipment
OnRadio hereby leases to Global the computer equipment, parts,
documentation and other property enumerated and described in Schedule "A" and
Schedule "B" (hereinafter collectively called the "Equipment"). Global shall
have the right to use the Equipment during the term of this Agreement at any
location at which Global or any corporate affiliate maintains a place of
business in the United States or Canada, provided that Global agrees that it
will not have access to, and shall not move the equipment listed in Schedule "B"
until six (6) months after the Initial Closing as defined in the Asset Purchase
Agreement, unless OnRadio provides Global with written consent to access or move
the equipment prior to the expiration of the six (6) month period. Global shall
be solely responsible for the costs of moving the Equipment from its current
location and of returning the Equipment to OnRadio at the expiration of the
lease term. Global shall use the Equipment in a careful and proper manner and
shall comply with all laws and regulations applicable to the possession or use
of the Equipment. If at any time during the term hereof OnRadio supplies Global
with labels, plates or other markings stating that the Equipment is owned by
OnRadio, Global shall affix and keep the same in a prominent place on the
Equipment.
3. Term
The term of this lease commences on the Effective Date with respect to the
Equipment in Schedule "B". The term of this lease commences on the Final Closing
Date with respect to the equipment in Schedule "A". Unless the lease is renewed
for an additional period or earlier terminated as provided for herein, the term
ends six (6) months after the Final Closing Date with respect to the Equipment
on Schedule "A", and December 6, 2002 with respect to the equipment in Schedule
"B". "Final Closing Date" shall have the meaning set forth in the Asset Purchase
Agreement executed by the Global and OnRadio on June 6, 2000.
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4. Installation
a. In the event Global moves the Equipment from its current location,
Global shall be responsible, at its own expense, for shipping, unpacking and
installing the Equipment including making all cable connections and all
connections with electrical power and communication services. Risk of loss shall
pass to Global on the Effective Date.
5. Rent
Global shall pay the rental payment of $1.00 on the Effective Date.
6. Warranties and Disclaimers of Warranties
a. OnRadio provides the Equipment AS IS. EXCEPT AS EXPRESSLY PROVIDED
BELOW, ONRADIO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
REGARDING THE SERVICES AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO
THE MAXIMUM EXTENT POSSIBLE BY LAW.
b. Quiet Enjoyment. OnRadio warrants and represents that the Equipment is
the sole and exclusive property of OnRadio and is not subject to any lien, claim
or encumbrance inconsistent with any of Global's rights under this Agreement and
that Global is entitled to, and shall be able to enjoy, quiet possession and use
of the Equipment during the term of this Agreement, without interruption by
OnRadio or any person claiming under or through OnRadio or by right of paramount
title. OnRadio shall not assign this lease without obtaining from any assignee a
covenant of quiet enjoyment for the benefit of Global. Global has no right,
title or interest in the Equipment except as expressly set forth herein.
c. Conflicting Agreement. OnRadio warrants that entry into and
performance of this lease is not limited in any way by any loan, security,
financing, contractual or other agreement to which OnRadio is a party.
7. Indemnification
a. Each party (the "Indemnitor") shall defend, indemnify, and hold the
other party (the "Indemnitee") harmless from and against any claims, losses,
actions, demands, lawsuits or damages, including, but not limited to reasonable
attorney's fees, costs, experts costs and other litigation/settlement costs
resulting from any performance under this Agreement, act, omission, or
negligence by the Indemnitor, its agents or representatives.
b. This indemnity shall not apply to the extent the portion of such
claim, liability, loss, cost, damage or expense is the result of the gross
negligence or willful misconduct of the Indemnitee, its agents or
representatives, or to the extent liability is disclaimed or limited by either
party under this Agreement. The indemnity obligations set forth in this Section
are contingent upon: (a) the Indemnitee giving prompt written notice to the
Indemnitor of any such claim(s); (b) the Indemnitor
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having sole control of the defense or settlement of the claim; and (c) at the
Indemnitor's request and expense, the Indemnitee cooperating in the
investigation and defense of such claim(s).
8. Termination
a. Default. Either party has the right to terminate this Agreement if the
other party is in default of any obligation or representation hereunder which
default is incapable of cure or which, being capable of cure, has not been cured
within fifteen (15) days after receipt of notice of such default (or such
additional cure period as the non-defaulting party may authorize).
b. Acts of Insolvency. Either party may terminate this Agreement by
written notice if the other party becomes insolvent, makes a general assignment
for the benefit of creditors, suffers or permits the appointment of a receiver
for its business or assets, becomes subject to any proceeding under any
bankruptcy or insolvency law whether domestic or foreign, or has wound up or
liquidated, voluntarily or otherwise.
c. Force Majeure; Suspension and Termination. In the event that either
party is unable to perform its obligations under this Agreement or to enjoy any
of its benefits because of (or if loss of the Equipment is caused by) natural
disaster, actions or decrees of governmental bodies or communications line
failure not the fault of the affected party (hereinafter referred to as a "Force
Majeure Event"), the party who has been so affected immediately shall give
notice to the other party and shall do everything possible to resume
performance. Upon receipt of such notice, all obligations under this Agreement
shall be immediately suspended. If the period of nonperformance exceeds fifteen
(15) days from the receipt of notice of the Force Majeure Event, the party whose
ability to perform has not been so affected may by giving written notice
terminate this Agreement. If such Event shall affect the delivery date or
warranty provisions of this Agreement, such date or warranty period shall
automatically be extended for a period equal to the duration of such Event.
9. Option to Purchase; Surrender of Equipment
Global Media shall have the option, exercisable upon notice to OnRadio at
any time after the Final Closing Date, to purchase the Equipment listed in
Schedule "A" for an exercise price of $1.00. If Global exercises such option,
OnRadio agrees to execute such instruments of transfer as may be reasonably
necessary to vest title to the Equipment in Global. If Global does not exercise
such option, then upon the expiration or termination of this Agreement Global
shall return the Equipment to OnRadio in good repair, condition and working
order, ordinary wear and tear excepted, as directed by OnRadio. Global shall pay
the cost of returning the Equipment to the office of OnRadio as specified herein
unless the Agreement has been terminated by Global as provided for herein, in
which case OnRadio shall pay for return of the Equipment.
10. Loss and Damage
Global hereby assumes and shall bear the entire risk of loss and damage to
the Equipment (following the Effective Date and until surrender of the
Equipment) for any cause which is not the fault of OnRadio.
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11. Consequential Damages
In no event shall either of the parties hereto be liable to the other for
payment of any consequential damages resulting from the default in the
performance of their respective obligations under this Agreement. However, the
provisions of this section shall not apply in any way to Indemnitor's duty to
indemnify any Indemnitee.
12. Taxes
Global shall be responsible for the payment of all taxes which arise from
this Agreement except for any tax based on OnRadio's net income.
13. Insurance
Global shall insure the Equipment in Schedule "B" against loss or damage
from the date of certification for use; such insurance also will cover OnRadio
as its interests may appear.
14. Miscellaneous
a. Personal Property. The Equipment is personal property notwithstanding
that it may now be, or hereafter become, in some manner affixed or attached to
real property or any building.
b. Contract Assignment. Neither Party may assign their rights and duties
under this Agreement without the written consent of the other Party which will
not be unreasonably withheld; provided, however, either Party may assign this
Agreement to any parent, subsidiary, or affiliate of such Party or to any third
party which succeeds by operation of law to, or purchases or otherwise acquires
substantially all of the assets of such Party or a subsidiary or affiliate of
such Party and which assumes such Party's obligation hereunder; provided,
further, that in no event shall the rights or obligations of either Party
hereunder be assigned or assignable by any bankruptcy proceedings, and in no
event shall this Agreement or any rights or privileges hereunder be an asset of
either Party under any bankruptcy, insolvency or reorganization proceedings.
c. Applicable Law. The validity, construction, and performance of this
Agreement shall be governed by the laws of the state of California without
regard to principles of conflicts of law.
d. Notices. Any notice or other communication hereunder shall be in
writing.
e. Waiver. No term or provision hereof shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented. Any consent by any party to, or
waiver of, a breach by the other whether express or implied, shall not
constitute a continuing waiver of or consent to, or a consent to or waiver of,
or excuse for any different or subsequent breach.
[signatures on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and do each hereby warrant and represent that their respective signatory whose
signature appears below has been and is on the date of this Agreement duly
authorized by all necessary and appropriate corporate action to execute this
Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date set
forth above.
OnRadio Global Media Corp.
By: /s/ Xxxxxxx Xxxx By:/s/ L. Xxxxx Xxxxxx
------------------------ -------------------------
Its: President Its: Chief Financial Officer
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SCHEDULE A
OnRadio has deployed "encoder" streaming systems for some of it's streaming
affiliates. These are all affiliates currently streamed by OnRadio's
distribution partner, iBEAM. The hardware and installed software specification
of these system is listed below.
Penguin Computing 1U system
Intel CA 810 Motherboard
Intel Pentium III 550MHz w/256 KB Cache
256 MB ECC SDRAM (One 256MB DIMM/Two 128MB DIMM)
Quantum 13 GB 7200 RPM Hard Drive
Toshiba 40X XXXX XX-ROM
3.5" 1.44 MB Floppy Drive
Integrated Intel 10/100 Mbps Ethernet Adapter
Integrated SB 128
Integrated 8 MB AGP Video
Keytronic Keyboard and Logitech 3 Button Mouse
Penguin Computing Two Year Warranty
Software (installed on encoder)
Windows NT, SP 5
Windows Media Server, 4.1+
Windows Media Encoder, 4.1+
Windows Media patches (OnRadio possesses these as a media partner)
autolog.exe for automatic logon features
loader.exe 1.0 by OnRadio (launches media server on boot)
alternative to loader.exe
.bat file which accomplishes the same as loader.exe but uses a brute
force
Intel CA810 motherboard drivers for video, audio, NIC, etc.
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SCHEDULE B
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SYSTEM NAME SERVICES SYSTEM INFO
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KALI httpd[80], ssh[22], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
INDRA httpd[80], ssh[22], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
BRAHMA httpd[80], ssh[22], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
KRISHNA ftp[21], ssh[22], dns[53], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
BIMA ssh[22], dns[53], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
LAKSHMI ssh[22], klogin[543], mysql[3306 512M RAM, Sun OS v5.6, Sparc Ultra-4 (e450)
RATRI ssh[22], smtp[25], pop3[110] 000X XXX, Xxxxxx, Linux kernal 2.0.34
SHIVA telnet[23] NetAppliance F720
PORTS telnet[23] Portmaster
2924 CATALYST SWITCH telnet[23] (208.49.167.x network) Cisco Catalyst Switch
LINUX WORKSTATION ssh[22] Linux workstation (cage administration)
NETGEAR HUB n/a 10/100 Hub
SUN DLT-7000 Tape Backup Tape Backup
SUN X0000 Xxxxx Xxxxx for Backup Drive Array for Backup
N/A Spare httpd[80], ssh[22], klogin[543] 512M RAM, Sun OS v5.5.1, Sparc Ultra-5
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