MASTER LEASE AND FINANCING AGREEMENT
This
Master Lease and Financing Agreement Number 105291 (together
with Annex A and Exhibits A and B attached hereto and hereby made a part hereof,
this “Master Agreement”) is entered into by and between Hewlett-Packard
Financial Services Company1,
a
Delaware corporation (“Lessor”), and Secured Digital Storage, LLC, a Nevada
limited liability company (“Lessee”). Capitalized terms used in this Master
Agreement without definition have the meanings specified in Annex A to this
Master Agreement.
1.
MASTER AGREEMENT; SCHEDULES. This
Master Agreement sets forth the general terms and conditions upon which (a)
Lessor shall lease to Lessee and Lessee shall lease from Lessor items of
Hardware, Software or both (such Hardware and Software being collectively
referred to as “Equipment”) and (b) Lessor shall provide financing to Lessee for
software program license fees, maintenance fees, fees for other services, and
other costs and one-time charges (“Financed Items”) Lessee desires to finance
hereunder. If Lessor and Lessee agree to a lease of particular Equipment (a
“Lease”) and/or a financing of particular Financed Items (a “Financing”), each
item of Equipment and/or Financed Item will be described on a schedule in the
form of Exhibit A, which schedule will incorporate this Master Agreement by
reference (“Schedule”). Each Schedule, when executed by Lessee and Lessor, will
constitute a separate Lease and/or Financing. If specific terms of a Schedule
conflict with the terms of this Master Agreement, the provisions of the Schedule
will control.
2.
ACCEPTANCE;
INITIAL TERM AND TERM.
(a)
Acceptance.
Lessee
shall unconditionally and irrevocably accept all Equipment under a Lease and,
if
applicable, all related Financed Items subject to a Financing as soon as such
Equipment is delivered and inspected by Lessee and found to be satisfactory
by
executing an Acceptance Certificate related thereto and delivering same to
Lessor. In the case of a Financing of Financed Items unrelated to any Equipment
subject to a Lease, Lessee shall unconditionally and irrevocably accept such
Financed Items as soon as it shall have become liable to pay for such Financed
Items. In either case, Lessee will evidence such acceptance by executing and
delivering to Lessor a properly completed Acceptance Certificate as soon as
reasonably practicable. (b) Initial
Term of Leases and Term of Financings.
The
Initial Term of each Lease and, if applicable, the Term of any related Financing
stated in and evidenced by a Schedule executed pursuant to this Section 2 will
begin on the Acceptance Date of the Equipment subject to that Lease and will
continue for the period described in the applicable Schedule; the Term of each
Financing stated in and evidenced by a Schedule executed pursuant to this
Section 2 that is unrelated to any Lease will begin on the Acceptance Date
for
the related Financed Items and will continue for the period described in the
applicable Schedule.
Master
Agreement Number _________
3.
RENT; LATE CHARGES. As
rent
for the Equipment under any Lease and the Financed Items under any Financing
(in
either case, referred to in this Master Agreement and any Schedule as “Rent”),
Lessee agrees to pay the amounts specified in the applicable Schedule on the
due
dates specified in the applicable Schedule. If
any
part of any Rent payment or other amount due under this Master Agreement is
not
paid within 10 days of its due date, Lessee agrees to pay Lessor: (a) in the
first month, a late charge to compensate Lessor for collecting and processing
the late amount, which late charge is stipulated and liquidated at the greater
of $.05 per dollar of each delayed amount or $50; plus (b) a charge for every
month after the first month in which the amount is late to compensate Lessor
for
the inability to reinvest the amount, which charge is stipulated and liquidated
at 1-½% of the delayed amount per month (or the lesser rate that is the maximum
rate allowable under applicable law).
4.
LEASES AND FINANCINGS NON-CANCELABLE; NET LEASES; WAIVER OF DEFENSES TO PAYMENT.
IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT EACH
LEASE AND FINANCING HEREUNDER SHALL BE NON-CANCELABLE, AND THAT EACH LEASE
HEREUNDER IS A NET LEASE. LESSEE AGREES THAT IT HAS AN ABSOLUTE AND
UNCONDITIONAL OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE. LESSEE
IS
NOT ENTITLED TO ▇▇▇▇▇ OR REDUCE RENT OR ANY OTHER AMOUNT DUE, OR TO SET OFF
ANY
CHARGE AGAINST ANY SUCH AMOUNT. LESSEE HEREBY WAIVES ANY RECOUPMENT,
CROSS-CLAIM, COUNTERCLAIM OR ANY OTHER DEFENSE AT LAW OR IN EQUITY TO ANY RENT
PAYMENT OR OTHER AMOUNT DUE WITH RESPECT TO ANY LEASE OR FINANCING, WHETHER
ANY
SUCH DEFENSE ARISES OUT OF THIS MASTER AGREEMENT, ANY SCHEDULE, ANY CLAIM BY
LESSEE AGAINST LESSOR, LESSOR’S ASSIGNEES OR SUPPLIER, OR OTHERWISE.
5.
ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee
assigns to Lessor all of Lessee's right, title and interest in and to (a) the
Equipment described in each Schedule, and (b) the Purchase Documents relating
to
such Equipment. Such assignment of the Purchase Documents is an assignment
of
rights only; nothing in this Master Agreement shall be deemed to have relieved
Lessee of any obligation or liability under any of the Purchase Documents,
except that, as between Lessee and Lessor, Lessor shall pay for the Equipment
within 30 days after Lessee's delivery to Lessor of a properly completed and
executed Acceptance Certificate and all other documentation necessary to
establish Lessee’s acceptance of such Equipment under the related Lease. Lessee
represents and warrants that it has reviewed and approved the Purchase
Documents. In addition, if Lessor shall so request, Lessee shall deliver to
Lessor a document acceptable to Lessor whereby Seller acknowledges and provides
any required consent to such assignment. For the avoidance of doubt, Lessee
covenants and agrees that it shall at all times during the Total Term of each
Lease comply in all respects with the terms of any License Agreement relating
to
any Equipment leased thereunder. IT
IS ALSO SPECIFICALLY UNDERSTOOD AND AGREED THAT NEITHER SUPPLIER NOR ANY
SALESPERSON OF SUPPLIER IS AN AGENT OF LESSOR, NOR ARE THEY AUTHORIZED TO WAIVE
OR ALTER ANY TERMS OF THIS MASTER AGREEMENT OR ANY
SCHEDULE.
6.
ASSIGNMENT OF SUPPLIER WARRANTIES. To
the
extent permitted, Lessor hereby assigns to Lessee, for the Total Term of any
Lease, all Equipment warranties, indemnities, and representations provided
in
the applicable Purchase Documents. Lessee shall have the right to take any
action it deems appropriate to enforce such warranties, indemnities and
representations provided such enforcement is pursued in Lessee's name and at
its
expense. Any recovery resulting from any such enforcement efforts will be
divided between Lessor and Lessee as their interests may appear.
7.
EQUIPMENT RETURN REQUIREMENTS. Not
later
than 5 days after the last day of the Total Term of each Lease (and any other
time Lessee is required to return Equipment to Lessor under the terms of this
Master Agreement or any Schedule), for all Equipment to be returned to Lessor,
Lessee shall (a) remove
any Lessee labels, tags or other identifying marks on the Equipment and wipe
clean or permanently delete all data contained on the Equipment, including
without limitation, any data contained on internal or external drives, discs,
or
accompanying media, (b)
pack
the Equipment in accordance with the manufacturer's guidelines, and (c) deliver
such Equipment to Lessor at any destination within the continental United States
designated by Lessor. In the case of any item of Software to be returned to
Lessor, Lessee shall also deliver to Lessor the original certificate of
authenticity issued by the licensor of such Software, if any, the end user
license agreement, any CD-ROM, diskettes or other media relating to such
Software and any other materials originally delivered to Lessee with such
Software. All dismantling, packaging, transportation, in-transit insurance
and
shipping charges shall be borne by Lessee. All Equipment shall be returned
to
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New York.
|
Lessor
in
the same condition and working order as when delivered to Lessee, reasonable
wear and tear excepted, and, except in the case of PC Equipment and Software,
shall qualify for maintenance service by the Supplier at its then standard
rates
for Equipment of that age, if available. Lessee shall be responsible for, and
shall reimburse Lessor promptly on demand for, the cost of returning the
Equipment to good working condition or, in the case of Equipment other than
PC
Equipment and Software, qualifying the Equipment for the Supplier’s maintenance
service, if available. The return of the Equipment shall constitute a full
release by Lessee of any leasehold rights or possessory interest in the
Equipment.
8.
EQUIPMENT USE; MAINTENANCE AND ADDITIONS. Lessee
shall, at its own expense, at all times during the applicable Total Term (a)
operate and maintain the Equipment in good working order, repair and condition,
and in accordance with the manufacturer's specifications and recommendations,
(b) except in the case of PC Equipment and Software, maintain and enforce a
maintenance agreement to service and maintain the Equipment, upon terms and
with
a provider reasonably acceptable to Lessor, such that the Equipment shall
qualify for Maintenance Service at the time the Equipment is returned to Lessor,
and (c) make all alterations or additions to the Equipment required by any
applicable law, regulation or order. Lessee shall make no alterations or
additions to the Equipment, except those that will not void any warranty made
by
the Supplier of the Equipment, result in the creation of any security interest,
lien or encumbrance on the Equipment or impair the value or use of the Equipment
either at the time made or at the end of the Total Term of the applicable Lease,
and that are readily removable without damage to the Equipment (“Optional
Additions”). All additions to the Equipment or repairs made to the Equipment,
except Optional Additions, become a part thereof and Lessor's property at the
time made. Optional Additions that have not been removed prior to the return
of
the Equipment shall become Lessor's property upon such return. On at least
24
hours prior notice to Lessee, Lessor and Lessor's agents shall have the right,
during Lessee's normal business hours, to enter the premises where the Equipment
is located for the purpose of inspecting the Equipment.
9.
EQUIPMENT OWNERSHIP; LIENS; LOCATION. As
between Lessor and Lessee, Lessor is the sole owner of the Equipment and has
sole title thereto. Lessee covenants that it will not pledge or encumber the
Equipment or Lessor's interest in the Equipment in any manner whatsoever nor
create or permit to exist any ▇▇▇▇, ▇▇▇▇ or encumbrance thereof or thereon
except those created by or through Lessor. The Equipment shall remain Lessor's
personal property whether or not affixed to realty and shall not become a
fixture or be made to become a part of any real property on which it is placed
without Lessor's prior written consent. If Lessee has been provided tags or
identifying labels, Lessee will at Lessee’s expense affix and maintain the same
in a prominent position on each item of Equipment to indicate Lessor’s
ownership. Lessee may relocate any Equipment from the Equipment Location
specified in the applicable Schedule to another of its business locations within
the United States upon prior written notice to Lessor specifying the new
Equipment Location, provided Lessee remains in possession and control of the
Equipment. Lessee shall not locate or relocate any Equipment such that any
third
party comes into possession or control thereof without Lessor’s prior written
consent; provided, however, that Lessor shall not unreasonably withhold its
consent to the location or relocation of Equipment to a third party co-location
or hosting facility if such third party shall have executed and delivered to
Lessor a waiver agreement in form and substance acceptable to Lessor pursuant
to
which, among other things, such third party shall have waived any rights to
the
Equipment and agreed to surrender the Equipment to Lessor in the event of a
Lessee Default under this Master Agreement.
10.
RISK OF LOSS AND INSURANCE. Lessee
assumes any and all risk of loss or damage to the Equipment until such Equipment
is returned to and received by Lessor in accordance with the terms and
conditions of this Master Agreement. Lessee agrees to keep the Equipment insured
at Lessee's expense against all risks of loss from any cause whatsoever,
including without limitation, loss by fire (including extended coverage), theft
and damage, and such insurance shall cover not less than the Stipulated Loss
Value of the Equipment. Lessee also agrees that it shall carry commercial
general liability insurance in an amount not less than $2,000,000 total
liability per occurrence. Lessee shall cause Lessor and its affiliates, and
its
and their successors and assigns, to be named loss payees and additional
insureds, as applicable, under such insurance policies. Each policy shall
provide that the insurance cannot be canceled without at least 30 days prior
written notice to Lessor, and no policy shall contain a deductible in excess
of
$25,000. Lessee shall provide to Lessor (a) on or prior to the Acceptance Date
for each Lease, and from time to time thereafter, certificates of insurance
evidencing such insurance coverage throughout the Total Term of each Lease,
and
(b) upon Lessor's request, copies of the insurance policies. If Lessee fails
to
provide Lessor with such evidence, then Lessor will have the right, but not
the
obligation, to purchase such insurance protecting Lessor at Lessee's expense.
Lessee's expense shall include the full premium paid for such insurance and
any
customary charges, costs or fees of Lessor. Lessee agrees to pay such amounts
in
substantially equal installments allocated to each Rent payment (plus interest
on such amounts at the rate of 1-1/2% per month or such lesser rate as is the
maximum rate allowable under applicable law).
11.
CASUALTY LOSS. Lessee
shall notify Lessor of any Casualty Loss or repairable damage to any Equipment
not later than 30 days following the date of any such occurrence. In
the
event any Casualty Loss shall occur, on the next Rent payment date Lessee shall
pay Lessor the Stipulated Loss Value of the Equipment suffering the Casualty
Loss. Upon Lessor's receipt of such payment of Stipulated Loss Value in full:
(a) Lessor shall transfer to Lessee all of Lessor's interest in the Equipment
suffering the Casualty Loss “AS IS, WHERE IS,” without any warranty, express or
implied, from Lessor, other than the absence of any liens or claims by or
through Lessor, (b) the applicable Lease shall terminate as it relates to such
Equipment, and (c) except as provided in Section 26(m), Lessee shall be relieved
of all obligations under the applicable Lease as it relates to such Equipment.
In the event of any repairable damage to any Equipment, the Lease shall continue
with respect to such Equipment without any abatement of Rent and Lessee shall
at
its expense cause such Equipment to be repaired to the condition it is required
to be maintained in pursuant to Section 8 not later than 30 days from the date
of the occurrence.
12.
TAXES. Lessor
shall report and pay all Taxes now or hereafter imposed or assessed by
governmental body, agency or taxing authority upon the purchase, ownership,
delivery, installation, leasing, rental, use or sale of the Equipment, the
Rent
or other charges payable hereunder, or otherwise upon or in connection with
any
Lease or Financing, whether assessed on Lessor or Lessee, other than any such
Taxes required by law to be reported and paid by Lessee. Lessee shall within
30
days of invoice reimburse Lessor for all such Taxes paid by Lessor, together
with any penalties or interest in connection therewith attributable to Lessee's
acts or failure to act, excluding (a) Taxes on or measured by the overall gross
or net income or items of tax preference of Lessor, (b) as to any Lease or
the
related Equipment, Taxes attributable to the period after the return of such
Equipment to Lessor, and (c) Taxes imposed as a result of a sale or other
transfer by Lessor of any portion of its interest in any Lease or Financing
or
in any Equipment, except for a sale or other transfer to Lessee or a sale or
other transfer occurring after and during the continuance of any Lessee
Default.
13.
GENERAL INDEMNITY. Lessee
shall indemnify, defend and hold harmless Lessor, its employees, officers,
directors, agents and assignees from and against any and all Claims arising
directly or indirectly out of or in connection with any matter involving this
Master Agreement, the Equipment, the Financed Items or any Lease and/or
Financing.
14.
TAX BENEFIT INDEMNITY. Lessor
and Lessee agree that Lessor is entitled to certain federal, state and local
tax
benefits available to an owner of Equipment (collectively, “Tax Benefits”),
including without limitation, accelerated cost recovery system deductions for
5-year property and deductions for interest incurred by Lessor to finance the
purchase of Equipment available under the Code. Lessee represents, warrants
and
covenants to Lessor that (a) Lessee is not a tax-exempt entity (as defined
in
Section 168(h) of the Code); (b) all Equipment will be used solely within the
United States; and (c) Lessee will take no position inconsistent with the
assumption that Lessor is the owner of the Equipment for federal, state, and
local tax purposes. If, due to any breach or inaccuracy of any of
the
foregoing representations and warranties, Lessor reasonably determines that
it
cannot claim, is not allowed to claim, loses or must recapture any or all of
the
Tax Benefits otherwise available with respect to the Equipment subject to any
Lease (a “Tax Loss”), then Lessee shall, promptly upon demand, pay to Lessor an
amount sufficient to provide Lessor the same after-tax rate of return and
aggregate after-tax cash flow through the end of the Then Applicable Term of
such Lease that Lessor would have realized but for such Tax Loss.
15.
COVENANT OF QUIET ENJOYMENT. So
long
as no Lessee Default exists, and no event shall have occurred and be continuing
which, with the giving of notice or the passage of time or both, would
constitute a Lessee Default neither Lessor nor any party acting or claiming
through Lessor, by assignment or otherwise, will disturb Lessee's quiet
enjoyment of the Equipment during the Total Term of the related
Lease.
16.
DISCLAIMERS AND LESSEE WAIVERS. LESSEE LEASES THE EQUIPMENT FROM LESSOR “AS IS,
WHERE IS”. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT (A) EXCEPT AS EXPRESSLY
SET FORTH IN SECTION 15, LESSOR MAKES ABSOLUTELY NO REPRESENTATIONS OR
WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH
SPECIFICATIONS, QUALITY, OPERATION, OR CONDITION OF ANY EQUIPMENT OR FINANCED
ITEMS (OR ANY PART THEREOF), THE MERCHANTABILITY OR FITNESS OF EQUIPMENT OR
FINANCED ITEMS FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT
INFRINGEMENT, TITLE AND THE LIKE; (B) LESSOR SHALL NOT BE DEEMED TO HAVE MADE,
BE BOUND BY OR LIABLE FOR, ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY
THE
SUPPLIER OF ANY EQUIPMENT OR FINANCED ITEMS (EVEN IF LESSOR IS AFFILIATED WITH
SUCH SUPPLIER); (C) LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT
OR FINANCED ITEMS OR ANY DELAY IN THE DELIVERY OR INSTALLATION THEREOF; (D)
LESSEE HAS SELECTED ALL EQUIPMENT AND FINANCED ITEMS WITHOUT LESSOR'S
ASSISTANCE; AND (E) LESSOR IS NOT A MANUFACTURER OF ANY EQUIPMENT. IT IS FURTHER
AGREED THAT LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY THIRD PARTIES FOR
ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
MASTER AGREEMENT OR ANY SCHEDULE OR CONCERNING ANY EQUIPMENT OR FINANCED ITEMS,
OR FOR ANY DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR LESSOR'S
NEGLIGENCE; PROVIDED, HOWEVER, THAT NOTHING IN THIS MASTER AGREEMENT SHALL
DEPRIVE LESSEE OF ANY RIGHTS IT MAY HAVE AGAINST ANY PERSON OTHER THAN LESSOR.
LESSOR AND LESSEE AGREE THAT THE LEASES AND THE FINANCINGS SHALL BE GOVERNED
BY
THE EXPRESS PROVISIONS OF THIS MASTER AGREEMENT AND THE OTHER FUNDAMENTAL
AGREEMENTS AND NOT BY THE CONFLICTING PROVISIONS OF ANY OTHERWISE APPLICABLE
LAW. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES
THOSE
RIGHTS AND REMEDIES AGAINST A LESSOR CONFERRED UPON A LESSEE BY ARTICLE 2A
OF
THE UCC AND THOSE RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE,
IN
EITHER CASE THAT ARE INCONSISTENT WITH OR THAT WOULD LIMIT OR MODIFY LESSOR'S
RIGHTS SET FORTH IN THIS MASTER AGREEMENT.
17.
LESSEE WARRANTIES. Lessee
represents, warrants and covenants to Lessor that as of the date of this Master
Agreement and for so long as this Master Agreement shall remain in effect:
(a)
ALL EQUIPMENT WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES; (b) Lessee is duly organized, validly existing
and
in good standing under applicable law; (c) Lessee has the power and authority
to
enter into each of the Fundamental Agreements; (d) all Fundamental Agreements
are enforceable against Lessee in accordance with their terms and do not violate
or create a default under any instrument or agreement binding on Lessee; (e)
as
of the date of its execution of this Master Agreement and as of the Acceptance
Date of any Equipment or Financed Items, there are no pending or threatened
actions or proceedings before any court or administrative agency that could
reasonably be expected to have a material adverse effect on Lessee or any
Fundamental Agreement, unless such actions are disclosed to Lessor and consented
to in writing by Lessor; (f) Lessee shall comply with the requirements of all
applicable laws and regulations the violation of which could have an adverse
effect upon the Equipment, Lessor’s rights and remedies under any Fundamental
Agreement or Lessee's performance of its obligations under any Fundamental
Agreement; (g) each Fundamental Agreement shall be effective against all
creditors of Lessee under applicable law, including fraudulent conveyance and
bulk transfer laws, and shall raise no presumption of fraud; (h) all financial
statements and other related information furnished by Lessee shall be prepared
in accordance with generally accepted accounting principles and shall fairly
present Lessee's financial position as of the dates given on such statements;
(i) Lessee’s name set forth in the signature block below is Lessee’s full and
accurate legal name; (j) Lessee is a Nevada limited liability company organized
under the laws of Nevada; (k) Lessee’s “location” (within the meaning of UCC
Section 9-307) is the State of Nevada; (l) Lessee’s organizational number
assigned to it by its jurisdiction of organization is E0815392005-9; (m)
Lessee’s federal tax identification number is ▇▇-▇▇▇▇▇▇▇; (n) Lessee and all
Lessee Affiliates do not export, re-export, or transfer any Equipment, Software,
System Software or source code or any direct product thereof to a prohibited
destination, or to nationals of proscribed countries wherever located, without
prior authorization from the United States and other applicable governments;
(o)
Lessee and all Lessee Affiliates do not use any Equipment, Software or System
Software or technology, technical data, or technical assistance related thereto
or the products thereof in the design, development, or production of nuclear,
missile, chemical, or biological weapons or transfer the same to a prohibited
destination, or to nationals of proscribed countries wherever located, without
prior authorization from the United States and other applicable governments;
and
(p) Lessee and all Lessee Affiliates are not entities designated by the United
States government or any other applicable government with which transacting
business without the prior consent of such government is prohibited. Lessee
agrees to provide Lessor advance written notice of any change in any of the
representations and covenants set forth in clauses (i) through (m) of this
Section 17.
18.
DEFAULT. Any
of
the following shall constitute a default by Lessee (a “Lessee Default”) under
this Master Agreement and all Leases and Financings: (a) Lessee fails to pay
any
Rent payment or any other amount payable to Lessor under this Master Agreement
or any Schedule within 10 days after its due date; or (b) Lessee defaults on
or
breaches any of the other terms and conditions of any Material Agreement, and
fails to cure such breach within 10 days after written notice thereof from
Lessor; or (c) any representation or warranty made by Lessee in any Material
Agreement proves to be incorrect in any material respect when made or
reaffirmed; or (d) any change occurs in relation to Lessee’s or Guarantor’s
business, management, ownership or financial condition that would have a
material adverse effect on Lessee’s ability to perform its obligations under
this Master Agreement or any Schedule or Guarantor’s ability to perform its
obligations under its guaranty; or (e) Lessee or Guarantor dissolves or
otherwise terminates its existence, ceases to do business or becomes insolvent
or fails generally to pay its debts as they become due; or (f) any Equipment
is
levied against, seized or attached and such lien, seizure or attachment has
not
been removed within 30 days of the date of the placement of such lien, the
date
Lessee is notified of a forthcoming seizure or the date of such attachment;;
or
(g) Lessee or Guarantor makes an assignment for the benefit of creditors; or
(h)
a proceeding under any bankruptcy, reorganization, arrangement of debt,
insolvency or receivership law is filed by or against Lessee or Guarantor (and,
if such proceeding is involuntary, it is not dismissed within 60 days after
the
filing thereof) or Lessee or Guarantor takes any action to authorize any of
the
foregoing matters; or (i) any letter of credit or guaranty issued in support
of
a Lease or Financing is revoked, breached, cancelled or terminated (unless
consented to in advance in writing by Lessor); or (j) any Guarantor fails to
fulfill its obligations in favor of Lessor pursuant to its
guaranty.
19.
REMEDIES. If
a
Lessee Default occurs, Lessor may, in its sole discretion, exercise one or
more
of the following remedies: (a) declare all amounts due and to become due under
any or all Leases and Financings to be immediately due and payable; or (b)
terminate this Master Agreement or any Lease or Financing; or (c) take
possession of, or render unusable, any Equipment wherever the Equipment may
be
located, without demand or notice and without any court order or other process
of law in accordance with Lessee's reasonable security procedures, and no such
action shall constitute a termination of any Lease; or (d) require Lessee to
deliver the Equipment to a location specified by Lessor; or (e) declare the
Stipulated Loss Value for any or all Equipment to be due and payable as
liquidated damages for loss of a bargain and not as a penalty and in lieu of
any
further Rent payments under the applicable Lease or Leases; or (f) proceed
by
court action to enforce performance by Lessee of any Lease or Financing and/or
to recover all damages and expenses incurred by Lessor by reason of any Lessee
Default; or (g) terminate any other agreement that Lessor may have with Lessee;
or (h) exercise any other right or remedy available to Lessor at law or in
equity. Also, Lessee shall pay Lessor all costs and expenses that Lessor may
incur to maintain, safeguard or preserve the Equipment, and other expenses
incurred by Lessor in enforcing any of the terms, conditions or provisions
of
this Master Agreement (including reasonable legal fees and collection agency
costs). Upon repossession or surrender of any Equipment or Collateral, Lessor
may lease, sell or otherwise dispose of the Equipment and/or Collateral in
a
commercially reasonable manner, with or without notice and at public or private
sale, and apply the net proceeds thereof to the amounts owed to Lessor
hereunder, but only after deducting (1) in the case of a sale, the estimated
Fair Market Value of the Equipment sold as of the scheduled expiration of the
Then Applicable Term of the related Lease, (2) in the case of a lease, the
rent
due for any period beyond the scheduled expiration of the Then Applicable Term
of the related Lease, and (3) in either case, all expenses (including reasonable
legal fees and costs) incurred by Lessor in connection therewith, or propose
to
retain any or all of the Equipment and/or Collateral in full or partial
satisfaction, as the case may be, of amounts owed to Lessor hereunder; provided,
however, that Lessee shall remain liable to Lessor for any deficiency that
remains after any sale, lease or retention by Lessor of such Equipment. Any
proceeds of any sale or lease of such Equipment in excess of the amounts owed
to
Lessor hereunder shall be retained by Lessor. Lessee agrees that with respect
to
any notice of a sale required by law to be given, 10 days' notice shall
constitute reasonable notice. Upon payment of all past due Rent and the
Stipulated Loss Value as provided in clause (e) above, together with interest
at
the rate of 1-1/2% per month (or such lesser rate as is the maximum rate
allowable under applicable law) from the date declared due until paid, Lessor
will transfer to Lessee all of Lessor's interest in the Equipment for which
such
Rent and Stipulated Loss Value has been paid, which transfer shall be on an
“AS
IS, WHERE IS” basis, without any warranty, express or implied, from Lessor,
other than the absence of any liens or claims by or through Lessor. With respect
to any exercise by Lessor of its right to recover and/or dispose of any
Equipment or other Collateral securing Lessee’s obligations under any Schedule,
Lessee acknowledges and agrees as follows: (i) Lessor shall have no obligation,
subject to the requirements of commercial reasonableness, to clean-up or
otherwise prepare the Equipment or any other Collateral for disposition, (ii)
Lessor may comply with any applicable state or Federal law requirements in
connection with any disposition of the Equipment or other Collateral, and any
actions taken in connection therewith shall not be deemed to have adversely
affected the commercial reasonableness of any such disposition, and (iii) Lessor
may convey the Equipment and any other Collateral on an “AS IS, WHERE IS” basis,
and without limiting the generality of the foregoing, may specifically exclude
or disclaim any and all warranties, including any warranty of title or the
like
with respect to the disposition of the Equipment or other Collateral, and no
such conveyance or such exclusion or such disclaimer of any warranty shall
be
deemed to have adversely affected the commercial reasonableness of any such
disposition. These remedies are cumulative of every other right or remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise, and may be enforced concurrently or separately from time to
time.
20.
PERFORMANCE OF LESSEE'S OBLIGATIONS. If
Lessee
fails to perform any of its obligations hereunder, Lessor may perform any act
or
make any payment that Lessor deems reasonably necessary for the preservation
of
Lessor's interests therein; provided, however, that the performance of any
act
or payment by Lessor shall not be deemed a waiver or release of Lessee from
the
obligation at issue. All sums so paid by Lessor, together with expenses
(including legal fees and costs) incurred by Lessor in connection therewith,
shall be paid to Lessor by Lessee immediately upon demand.
21.
TRUE LEASE; SECURITY INTEREST; MAXIMUM RATE. Each
Lease is intended to be a “Finance Lease” as defined in Article 2A of the UCC,
and Lessee hereby authorizes Lessor to file a financing statement to give public
notice of Lessor's ownership of the Equipment. The parties’ intent that each
Lease be a “Finance Lease” within the meaning of Article 2A of the UCC shall
have no effect on the characterization of any Lease for accounting purposes,
which characterization shall be made by each party independently on the basis
of
generally accepted accounting principles. Lessee, by its execution of each
Schedule, acknowledges that Lessor has informed it that (a) the identity of
Seller is set forth in the applicable Schedule, (b) Lessee is entitled under
Article 2A of the UCC to the promises and warranties, including those of any
third party, provided to Lessor in connection with, or as a part of, the
applicable Purchase Documents, and (c) Lessee may communicate with Seller and
receive an accurate and complete statement of the promises and warranties,
including any disclaimers and limitations of them or of remedies. If (1)
notwithstanding the express intention of Lessor and Lessee to enter into a
true
lease, any Lease is ever deemed by a court of competent jurisdiction to be
a
lease intended for security, or (2) Lessor and Lessee enter into a Lease with
the intention that it be treated as a lease intended as security by so providing
in the applicable Schedule, or (3) Lessor and Lessee enter into a Financing,
then to secure payment and performance of Lessee's obligations under this Master
Agreement and all Leases and Financings, Lessee hereby grants Lessor a purchase
money security interest in the Collateral. In any such event, notwithstanding
any provisions contained in this Master Agreement or in any Schedule, neither
Lessor nor any Assignee shall be entitled to receive, collect or apply as
interest any amount in excess of the maximum rate or amount permitted by
applicable law. In the event Lessor or any Assignee ever receives, collects
or
applies as interest any amount in excess of the maximum amount permitted by
applicable law, such excess amount shall be applied to the unpaid principal
balance and any remaining excess shall be refunded to Lessee. In determining
whether the interest paid or payable under any specific contingency exceeds
the
maximum rate or amount permitted by applicable law, Lessor and Lessee shall,
to
the maximum extent permitted under applicable law, characterize any
non-principal payment as an expense or fee rather than as interest, exclude
voluntary prepayments and the effect thereof, and spread the total amount of
interest over the entire term of this Master Agreement and all Leases and
Financings.
22.
ASSIGNMENT. Lessor
shall have the unqualified right to sell, assign, grant a security interest
in
or otherwise convey any part of its interest in this Master Agreement, any
Lease
or Financing or any Equipment, in whole or in part, without prior notice to
or
the consent of Lessee. If any Lease or Financing is sold, assigned, or otherwise
conveyed, Lessee agrees that Lessor’s purchaser assignee or transferee, as the
case may be (“Assignee”) shall (a) have the same rights, powers and privileges
that Lessor has under the applicable Lease or Financing, and (b) have the right
to receive from Lessee all amounts due under the applicable Lease or Financing.
Lessee agrees to execute such acknowledgements thereto as may be reasonably
requested by Lessor or the Assignee. Lessee further agrees that, in any action
brought by such Assignee against Lessee to enforce Lessor’s rights hereunder,
Lessee will not assert against such Assignee any set-off, defense or
counterclaim that Lessee may have against Lessor or any other person. Unless
otherwise specified by Lessor and the Assignee, Lessee shall continue to pay
all
amounts due under the applicable Lease or Financing to Lessor; provided,
however, that upon notification from Lessor and the Assignee, Lessee covenants
to pay all amounts due under the applicable Lease or Financing to such Assignee
when due and as directed in such notice. Lessee further agrees that any Assignee
may further sell, assign, grant a security interest in or otherwise convey
its
rights and interests under the applicable Lease or Financing with the same
force
and effect as the assignment described herein. Lessee may not assign, transfer,
sell, sublease, pledge or otherwise dispose of this Master Agreement, any Lease
or Financing, any Equipment or any interest therein.
23.
TERM OF MASTER AGREEMENT. This
Master Agreement shall commence and be effective upon the execution hereof
by
both parties and shall continue in effect until terminated by either party
by 30
days’ prior written notice to the other. However, no termination of this Master
Agreement pursuant to the preceding sentence shall be effective with respect
to
any Lease or Financing that commenced prior to such termination until the
expiration or termination of such Lease or Financing and the satisfaction by
Lessee of all of its obligations hereunder with respect thereto.
24.
WAIVER OF JURY TRIAL. LESSEE AND LESSOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO
DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY
LESSOR OR LESSEE IN CONNECTION WITH THIS MASTER AGREEMENT OR ANY FUNDAMENTAL
AGREEMENT.
25.
NOTICES. All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Master Agreement or any other Fundamental
Agreement shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed via certified mail or a nationally recognized
overnight courier service, or sent by confirmed facsimile transmission,
addressed as follows (or such other address or fax number as either party shall
so notify the other):
|
If
to Lessor:
Hewlett-Packard
Financial Services Company
|
If
to Lessee:
Secured
Digital Storage, LLC
|
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇.▇. ▇▇▇ ▇
|
2001
▇▇▇▇▇▇▇▇▇▇▇ Road, Suite ▇▇▇▇
|
|
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Attn:
Director of Operations, North America
|
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
26.
MISCELLANEOUS.
(a)
Governing Law. THIS MASTER AGREEMENT AND EACH LEASE AND FINANCING SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF
THE
STATE OF NEW JERSEY.
(b)
Consent to Jurisdiction. Lessor
and Lessee consent to the jurisdiction of any local, state or Federal court
located within the State of New Jersey and waive any objection relating to
improper venue or forum non-conveniens to the conduct of any proceeding in
any
such court.
(c)
Credit Review.
Lessee
consents to a credit review by Lessor for each Lease and Financing.
(d)
Further Assurances. Lessee
agrees to promptly execute and deliver to Lessor such further documents and
take
such further action as Lessor may require in order to more effectively carry
out
the intent and purpose of this Master Agreement and any Schedule. Without
limiting the generality of the foregoing, Lessee agrees (a) to furnish to Lessor
from time to time, its certified financial statements, officer’s certificates
and appropriate resolutions, opinions of counsel and such other information
and
documents as Lessor may reasonably request, and (b) to execute and timely
deliver to Lessor any financing statements or other documents that Lessor deems
necessary under applicable law to perfect or protect Lessor’s security interest
in the Collateral or to evidence Lessor’s interest in the Equipment; provided,
however, that Lessee authorizes Lessor to file any such financing statement
or
other document without Lessee’s authentication to the extent permitted by
applicable law. Lessee hereby appoints Lessor and any agent of Lessor as
Lessee’s attorney-in-fact, with full power of substitution, for the sole purpose
of executing on behalf of Lessee such UCC financing statements as Lessor deems
necessary to perfect or protect Lessor’s security interest in the Collateral or
to evidence Lessor’s interest in the Equipment. Lessee acknowledges and agrees
that such appointment is coupled with an interest and is irrevocable until
the
expiration or termination of all Leases and Financings and the satisfaction
by
Lessee of all of its obligations hereunder. It is also agreed that Lessor or
Lessor’s agent may file as a financing statement, any lease document (or copy
thereof, where permitted by law) that Lessor deems appropriate to perfect or
protect Lessor’s security interest in the Collateral or to evidence Lessor’s
interest in the Equipment. Upon demand, Lessee will promptly reimburse Lessor
for any filing or recordation fees or expenses (including legal fees and costs)
incurred by Lessor in perfecting or protecting its interests in any Collateral
or the Equipment.
(e)
Captions and References. The
captions contained in this Master Agreement and any Schedule are for convenience
only and shall not affect the interpretation of this Master Agreement. All
references in this Master Agreement to Sections, Annexes and Exhibits refer
to
Sections hereof, Annexes hereof and Exhibits hereto unless otherwise
indicated.
(f)
Entire Agreement; Amendments. This
Master Agreement and all other Fundamental Agreements executed by both Lessor
and Lessee constitute the entire agreement between Lessor and Lessee relating
to
the leasing of the Equipment and the financing of Financed Items, and supersede
all prior agreements relating thereto, whether written or oral, and may not
be
amended or modified except in a writing signed by the parties hereto.
(g)
No Waiver.
Any
failure of Lessor to require strict performance by Lessee, or any written waiver
by Lessor of any provision hereof, shall not constitute consent or waiver of
any
other breach of the same or any other provision hereof.
(h)
Lessor Affiliates. Lessee
understands and agrees that Hewlett-Packard Financial Services Company or any
affiliate or subsidiary thereof may, as lessor, execute Schedules under this
Master Agreement, in which event the terms and conditions of the applicable
Schedule and this Master Agreement, as it relates to the lessor under such
Schedule, shall be binding upon and shall inure to the benefit of such entity
executing such Schedule as lessor, as well as any successors or assigns of
such
entity.
(i)
Lessee Affiliates. A
Lessee
Affiliate may enter into a Lease or Financing under and subject to the terms
and
conditions of this Master Agreement by executing a Schedule incorporating this
Master Agreement by reference, in which case such Lessee Affiliate shall be
deemed, for purposes of such Lease or Financing, to be the “Lessee” under this
Master Agreement. The undersigned Lessee hereby unconditionally guarantees
to
Lessor the full and prompt payment, observance and performance when due of
all
obligations of all Lessee Affiliates (collectively, “Guaranteed Obligations”)
under all such Leases and Financings. The foregoing guarantee is absolute,
continuing, unlimited and independent and shall not be affected, diminished
or
released for any reason whatsoever. The undersigned Lessee waives diligence,
presentment, demand for payment, protest or notice of any Lessee Default or
nonperformance by any Lessee Affiliate, all affirmative defenses, offsets and
counterclaims against Lessor, any right to the benefit of any security or
statute of limitations, and any requirement that Lessor proceed first against
a
Lessee Affiliate or any collateral security. Until the Guaranteed Obligations
shall have been paid in full, Lessee shall have no right of
subrogation.
(j)
Invalidity. If
any
provision of this Master Agreement or any Schedule shall be prohibited by or
invalid under law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Master Agreement or such
Schedule.
(k)
Counterparts.
This
Master Agreement may be executed in counterparts, which collectively shall
constitute one document.
(l)
Lessor Reliance. In
connection with its execution of this Master Agreement, Lessee shall deliver
to
Lessor an officer’s certificate (or partner’s or member’s certificate as
appropriate) in form and substance acceptable to Lessor, executed by a duly
authorized officer (or partner or member) of Lessee and certifying as to, among
other things, Lessee’s authority to enter into this Master Agreement and Leases
and Financings hereunder and the authority of Lessee’s officers or
representatives
specified therein to execute this Master Agreement and all other Fundamental
Agreements. Lessor
may act in reliance upon any instruction, instrument or signature reasonably
believed by Lessor in good faith to be genuine. Lessor may assume that any
employee of Lessee who executes any document or gives any written notice,
request or instruction has the authority to do so.
(m)
Survival.
All
representations, warranties and covenants made by Lessee hereunder shall survive
the termination of this Master Agreement and shall remain in full force and
effect. All of Lessor's rights, privileges and indemnities under this Master
Agreement or any Lease or Financing, to the extent they are fairly attributable
to events or conditions occurring or existing on or prior to the expiration
or
termination of such Lease or Financing, shall survive such expiration or
termination and be enforceable by Lessor and Lessor's successors and
assigns.
27.
Lessee acknowledges that neither this Master Agreement nor any other Fundamental
Agreement may be amended or modified except by a writing signed by Lessor and
Lessee. Lessee Initials: WML.
IN
WITNESS WHEREOF, LESSEE AND LESSOR HAVE EXECUTED THIS MASTER AGREEMENT ON THE
DATES SPECIFIED BELOW.
|
LESSEE:
SECURED
DIGITAL STORAGE, LLC
|
LESSOR:
HEWLETT-PACKARD
FINANCIAL SERVICES COMPANY2
|
|
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Chairman & CEO
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Operations Manager
|
|
Date:
November 21, 2007
|
Date:
|
| 2 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
Annex
A to Master Agreement
Capitalized
terms used in the Master Lease and Financing Agreement Number 105291
by and
between Hewlett-Packard Financial Services Company and Secured Digital Storage,
LLC (“Master Agreement”) without definition shall have the following respective
meanings, and all references to Sections, Exhibits, Schedules or Annexes in
the
following definitions shall refer to Sections, Exhibits, Schedules or Annexes
of
or to the Master Agreement.
“Acceptance
Certificate” means
an
acceptance certificate in substantially the form of Exhibit B executed by Lessee
and delivered to Lessor in accordance with Section 2 of the Master
Agreement.
“Acceptance
Date”
means
the effective date of Lessee’s acceptance of the Equipment or Financed Item(s)
as referenced on the Acceptance Certificate for such Equipment and/or Financed
Item(s).
“Assignee”
means
any assignee of all or any portion of Lessor's interest in the Master Agreement,
any Schedule or any Equipment, whether such assignee received the assignment
of
such interest from Lessor or a previous assignee of such interest.
“Casualty
Loss”
means,
with respect to any Equipment, the condemnation, taking, loss, destruction,
theft or damage beyond repair of such Equipment.
“Casualty
Value”
means,
as to any Equipment, an amount determined as of the date of the Casualty Loss
or
Lessee Default in question pursuant to a “Table of Casualty Values” attached to
the applicable Schedule or, if no “Table of Casualty Values” is attached to the
applicable Schedule, an amount equal to the sum of (a) the present value as
of
the date of the Casualty Loss or Lessee Default in question (discounted at
5%
per annum, compounded monthly) of all Rent payments payable after such date
through the scheduled date of expiration of the Then Applicable Term, plus
(b)
the present value as of the date of the Casualty Loss or Lessee Default in
question (discounted at 5% per annum, compounded monthly, from the scheduled
date of expiration of the Then Applicable Term) of an amount determined by
multiplying the applicable casualty percentage specified below by the Total
Cost
of such Equipment. The applicable casualty percentage shall be 35% for Equipment
having an Initial Term of less than 24 months; 30% for Equipment having an
Initial Term of 24 months or greater, but less than 36 months; 25% for Equipment
having an Initial Term of 36 months or greater, but less than 48 months; and
20%
for Equipment having an Initial Term of 48 months or greater.
“Claims”
means
all
claims, actions, suits, proceedings, costs, expenses (including, without
limitation, court costs, witness fees and attorneys' fees), damages,
obligations, judgments, orders, penalties, fines, injuries, liabilities and
losses, including, without limitation, actions based on Lessor's strict
liability in tort.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Collateral”
means,
with respect to any Lease or Financing, all Equipment and Financed Items and
any
and all attachments, accessories, additions, general intangibles, substitutions,
products, replacements, rentals, and any right, title or interest in any
software used to operate or otherwise installed in any of the foregoing, and
proceeds (including, without limitation, insurance proceeds) thereof, as well
as
any and all other equipment financed pursuant to this Master Agreement or any
other agreement between Lessor and Lessee and all other collateral furnished
by
Lessee to secure Lessee’s obligations under any Schedule.
“Daily
Rent”
means,
as to any Lease or Financing, an amount equal to the per diem Rent payable
under
the applicable Schedule.
“End-of-Term
Notice” has
the
meaning specified in the applicable Schedule.
“Equipment”
has the
meaning specified in Section 1 of the Master Agreement.
“Equipment
Location”
means,
as to any Equipment, the address at which such Equipment is located from time
to
time, as originally specified in the applicable Schedule and as subsequently
specified in a notice delivered to Lessor pursuant to Section 9 of the Master
Agreement, if applicable.
“Fair
Market Value”
means
the total retail price that would be paid for any specified Equipment in an
arm's length transaction between an informed and willing buyer under no
compulsion to buy and an informed and willing seller under no compulsion to
sell. Such total price shall not be reduced by the costs of removing such
Equipment from its current location or moving it to a new location.
“Fair
Rental Value”
means
the amount of periodic rent that would be payable for any specified Equipment
in
an arm's length transaction between an informed and willing lessee and an
informed and willing lessor, neither under compulsion to lease. Such amount
shall not be reduced by the costs of removing such Equipment from its current
location or moving it to a new location.
“Final
Invoice Amount”
has the
meaning set forth in the applicable Schedule.
“Financed
Item”
has the
meaning specified in Section 1 of the Master Agreement.
“Financing”
has the
meaning specified in Section 1 of the Master Agreement.
“First
Payment Date”
means,
as to any Lease or Financing, the date the first Rent payment with respect
to
the Initial Term of such Lease or the Term of such Financing (as applicable)
is
due, as determined pursuant to the terms of the applicable
Schedule.
“Fundamental
Agreements”
means,
collectively, the Master Agreement, each Schedule and Acceptance Certificate
and
all other related instruments and documents.
“Funding
Date”
means,
with respect to any Financed Item, the date Lessor makes funds available to
the
Seller of such Financed Item to pay for the same or to Lessee to reimburse
Lessee for its payment of the same.
“Guaranteed
Obligations” has
the
meaning specified in Section 26(i) of the Master Agreement.
“Guarantor”
means
any guarantor of all or any portion of Lessee's obligations under the Master
Agreement or any Lease or Financing.
“Hardware”
means
items of tangible equipment and other property, including but not limited to
computer, telecommunications, printing, imaging, copying, scanning, projection
and storage equipment, and any related peripherals, attachments, accessions,
additions, substitutions, or replacements.
“Initial
Term”
means,
as to any Lease, the initial term thereof as specified in the applicable
Schedule.
“Lease”
has the
meaning specified in Section 1 of the Master Agreement.
“Lessee”
has
the
meaning specified in the preamble of the Master Agreement.
“Lessee
Affiliate” means
any
corporation which directly or indirectly through one or more intermediaries
controls, is controlled by, or is under common control with,
Lessee.
“Lessee
Default”
has the
meaning specified in Section 18 of the Master Agreement.
“Lessor”
has the
meaning specified in the preamble of the Master Agreement.
“License
Agreement”
means
any license agreement or other document granting a right to use Software or
any
technical information, confidential business information or other documentation
relating to Hardware or Software, as amended, modified or supplemented by any
other agreement between the licensor and Lessor.
“Maintenance
Service” means
the
applicable Supplier’s maintenance service at its then standard rates for
Equipment of that age, if available.
“Master
Agreement” has
the
meaning specified in the preamble of the Master Agreement.
“Material
Agreements”
means,
collectively, all Fundamental Agreements, all other material agreements by
and
between Lessor and Lessee, and any application for credit, financial statement,
or financial data required to be provided by Lessee in connection with any
Lease
or Financing.
“Optional
Additions”
has the
meaning specified in Section 8 of the Master Agreement.
“PC
Equipment”
means,
collectively, personal computers (e.g., workstations, desktops and notebooks)
and related items of peripheral equipment (e.g., monitors, printers and docking
stations).
“Purchase
Documents”
means,
as to any Equipment, any purchase order, contract, ▇▇▇▇ of sale, License
Agreement, invoice and/or other documents that Lessee has, at any time,
approved, agreed to be bound by or entered into with any Supplier of such
Equipment relating to the purchase, ownership, use or warranty of such
Equipment.
“Renewal
Agreement”
has the
meaning specified in the applicable Schedule.
“Renewal
Term” has
the
meaning specified in the applicable Schedule.
“Rent”
has the
meaning specified in Section 3 of the Master Agreement.
“Schedule”
has the
meaning specified in Section 1 of the Master Agreement.
“Seller”
means,
as to any Equipment, the seller of such Equipment, and as to any Financed Item,
the provider thereof, in either case as specified in the applicable
Schedule.
“Software”
means
copies of computer software programs owned or licensed by Lessor.
“Stipulated
Loss Value”
means,
as to any Equipment, an amount equal to the sum of (a) all Rent and other
amounts due and owing with respect to such Equipment as of the date of payment
of such amount, plus (b) the Casualty Value of such Equipment.
“Supplier”
means
(a) as to any Equipment, the Seller and the manufacturer or licensor of such
Equipment collectively, or where the context requires, any of them, and (b)
as
to any Financed Item, the Seller thereof.
“System
Software”
means an
item of Software that is pre-loaded on an item of Hardware purchased by Lessor
for lease hereunder for which the relevant Purchase Documents specify no
purchase price separate from the aggregate purchase price specified for such
items of Hardware and Software.
“Tax
Benefits”
has the
meaning specified in Section 14 of the Master Agreement.
“Tax
Loss”
has the
meaning specified in Section 14 of the Master Agreement.
“Taxes”
means
all license and registration fees and all taxes, fees, levies, imposts, duties,
assessments, charges and withholdings of any nature whatsoever, however
designated (including, without limitation, any value added, transfer, sales,
use, gross receipts, business, occupation, excise, personal property, real
property, stamp or other taxes).
“Term”
means,
as to any Financing, the term thereof as specified in the applicable
Schedule.
“Then
Applicable Term”
means,
as to any Lease, the term of the Lease in effect at the time of determination,
whether it be the Initial Term, any Renewal Term or any optional or other
automatic extension of the Initial Term or any Renewal Term pursuant to the
applicable Schedule.
“Total
Cost” means
(a)
as to any Lease, the total amount of Equipment, and related charges, if any,
stated in and subject to such Schedule, and (b) as to any Financing, the total
amount of the Financed Items subject to such Financing.
“Total
Term”
means,
as to any Lease, the aggregate term of such Lease, including the Initial Term,
any Renewal Term and any optional or other automatic extension of the Initial
Term or any Renewal Term pursuant to the applicable Schedule.
“UCC”
means
the Uniform Commercial Code as enacted and in effect in any applicable
jurisdiction.
“Unit
of Equipment”
means,
as to the Equipment leased pursuant to any Schedule, (a) each individual item
of
PC Equipment leased pursuant to such Schedule, and (b) all Equipment taken
as a
whole leased pursuant to such Schedule other than PC Equipment.
Exhibit
A to Master Agreement
COUNTERPART
NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE CONSTITUTES CHATTEL
PAPER (AS DEFINED IN THE UCC), NO SECURITY INTEREST IN THIS SCHEDULE MAY BE
CREATED THROUGH THE TRANSFER OR POSSESSION
OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master
Agreement Number __
MASTER
LEASE AND FINANCING AGREEMENT SCHEDULE
Hewlett-Packard
Financial Services Company1
(“Lessor”)
and Secured Digital Storage, LLC (“Lessee”) are parties to the Master Lease and
Financing Agreement identified by the Master Agreement Number specified above
(the “Master Agreement”). This Schedule (which shall be identified by the
Schedule Number specified above) and the Master Agreement together comprise
a
separate Lease, a separate Financing or a separate Lease and [a separate]
Financing, as the case may be, between the parties. The terms and conditions
of
the Master Agreement are hereby incorporated by reference into this Schedule.
All capitalized terms used in this Schedule without definition have the meanings
ascribed to them in the Master Agreement.
1. LEASE.
A. Description
of Items of Leased Equipment Total
Cost
B. Initial
Term:
____
Months (plus the number of days from and including the Acceptance Date through
and including the last day of the calendar month or quarter (depending on
whether Rent is payable monthly or quarterly as specified in Section 3 below)
in
which the Acceptance Date occurs).
2. FINANCING.
A. Description
of Financed Items Total
Cost
B. Term:
____
Months (plus the number of days from and including the Acceptance Date through
and including the last day of the calendar month or quarter (depending on
whether Rent is payable monthly or quarterly as specified in Section 3 below)
in
which the Acceptance Date occurs).
3. RENT:
For
Lease: ____________________
For
Financing: ________________
Total
Rent: ___________________
RENT
is payable:
___in
advance ___in arrears (check one)
___monthly
___quarterly (check one)
DAILY
RENT:
For
Lease: __________________ (i.e.,
the
Rent payment specified above expressed on a per diem basis, assuming a 360
day
year and 30 day months)
For
Financing: _______________ (based on the Financing Rate, and interest
only)
For
Financings, the “Financing Rate” generally equals the rate of interest that
would cause the present value of the Rent payable over the Term, calculated
as
of the First Payment Date and assuming monthly or quarterly (as applicable)
compounding, to equal the Total Cost of the Financed
Items.
Lessee
shall pay Lessor (a) on the first day of each calendar month or calendar quarter
(depending on whether Rent is payable monthly or quarterly as specified above)
if Rent is payable in advance, or (b) on the last day of each calendar month
or
calendar quarter (depending on whether Rent is payable monthly or quarterly
as
specified above) if Rent is payable in arrears, the Rent payment specified
above
for the length of the Initial Term in the case of a Lease and for the length
of
the Term in the case of a Financing. The First Payment Date shall be the first
day (if Rent is payable in advance) or the last day (if Rent is payable in
arrears) of the month or quarter (as applicable) immediately following the
month
or quarter (as applicable) in which the Acceptance Date occurs. In addition,
on
the First Payment Date Lessee shall also pay Lessor (a) in the case of Leases
an
amount equal to the Daily Rent multiplied by (i) 15 days if Rent is payable
monthly or (ii) 45 days if Rent is payable quarterly; or (b) in the case of
Financings an amount equal to the Daily Rent multiplied by the number of days
from and including the Funding Date up to but excluding the first day of the
month or quarter (as applicable) in which the First Payment Date occurs.
For
Financings, all payments of Rent will be deemed to be blended payments of
principal and interest (which interest will be calculated and payable at the
Financing Rate), other than (a) Daily Rent, which is interest only, and (b)
if
Rent is payable in advance, the first periodic payment of Rent which is
principal only. All payments of Rent with respect to Financings will be applied
first to accrued and unpaid interest and next on account of principal, with
interest on overdue amounts calculated and payable in accordance with the Master
Agreement.
4.
PRICING
EXPIRATION DATE:
____________. Lessor's obligation to purchase and lease the Equipment or fund
and finance the Financed Items is subject to the Acceptance Date being on or
before the Pricing Expiration Date.
5. EQUIPMENT
LOCATION:
6. SELLER:
7. LESSEE’S
END-OF-LEASE-TERM OPTIONS. Lessee
may choose to exercise one of the following options upon the natural expiration
of the Initial Term, any Renewal Term (as defined below) and any automatic
extension of the Initial Term or any Renewal Term provided, however,
that
Lessee must give Lessor written notice of Lessee’s choice (“End-of-Term Notice”)
not less than ninety (90) days before the expiration of the relevant
term.
(a)
Purchase Option. Lessee
may elect
to
purchase any or all Units of Equipment then subject to this Lease (other than
items of Software that may not be sold by Lessor under the terms of any
applicable License Agreement) for an amount equal to the Fair Market Value
of
such Units of Equipment as of the end of the Then Applicable Term, provided
no
Lessee Default shall have occurred and be continuing. In the event of such
an
election, Lessee shall pay such amount to Lessor, in immediately
available
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
funds,
on
or before the last day of the Then Applicable Term. If Lessee shall have
so
elected to purchase any of the Units of Equipment, shall have so paid the
applicable purchase price and shall have fulfilled the terms and conditions
of
the Master Agreement, then on the last day of the Then Applicable Term (1)
the
Lease with respect to such Units of Equipment shall terminate and, except
as
provided in Section 26(m) of the Master Agreement, Lessee shall be relieved
of
all of its obligations in favor of Lessor with respect to such Units of
Equipment, and (2) Lessor shall transfer all of its interest in such Units
of
Equipment to Lessee “AS IS, WHERE IS,” without any representation, warranty,
express or implied, from Lessor, other than the absence of any liens or claims
by or through Lessor. In the event Lessor and Lessee are unable to agree
on the
Fair Market Value of any Units of Equipment, Lessor shall, at Lessee's expense,
select an independent appraiser to conclusively determine such
amount.
(b)
Renewal Option. Lessee
may elect
to
renew the Lease with respect to any or all Units of Equipment then subject
to
this Lease (other than items of Software that may not be re-leased by Lessor
under the terms of any applicable License Agreement) for an amount equal to
the
Fair Rental Value of such Units of Equipment as of the end of the Then
Applicable Term. In the event of such an election, Lessee shall enter into
a
mutually agreeable renewal agreement with Lessor (“Renewal Agreement”) on or
before the last day of the Then Applicable Term confirming the Units of
Equipment as to which the Lease is to be renewed, the period for which the
Lease
is to be renewed (the “Renewal Term”), and the amount of Rent and the times at
which such Rent is to be payable during the Renewal Term. In the event Lessor
and Lessee are unable to agree on the Fair Rental Value of any Units of
Equipment, Lessor shall, at Lessee's expense, select an independent appraiser
to
conclusively determine such amount.
(c)
Return.
Lessee
may elect to return any or all of the Units of Equipment then subject to this
Lease in accordance with Section 7 of the Master Agreement.
(d)
Automatic Extension.
If
Lessee fails to deliver to Lessor an End-of-Term Notice the Initial Term or
Renewal Term shall, without any additional notice or documentation, be
automatically extended for successive calendar months with respect to all items
of Equipment then subject to this Lease through the end of the calendar month
falling at least 90 days after the date Lessee shall have delivered to Lessor
an
End-of-Term Notice with respect to this Lease. For each calendar month that
the
Then Applicable Term of this Lease is so extended, Lessee shall pay to Lessor
Rent in an amount equal to the monthly Rent payment in effect immediately prior
to such extension (or the appropriate pro rata portion of the Rent payment
then
in effect in the case of Rent payable other than on a monthly basis), and all
other provisions of the Master Agreement and this Schedule shall continue to
apply.
If
Lessee
shall have delivered to Lessor an End-of-Term Notice with respect to a Lease,
but shall have subsequently failed to comply with its obligations arising from
its elections specified therein, then the Then Applicable Term of this Lease
shall, without any additional notice or documentation, be automatically extended
for successive calendar months with respect to all items of Equipment as to
which Lessee shall have so failed to comply with its obligations through the
end
of the calendar month in which Lessee shall have complied with such obligations.
For each calendar month that the Then Applicable Term of this Lease is so
extended, Lessee shall pay to Lessor Rent in an amount equal to the monthly
Rent
payment in effect immediately prior to such extension (or the appropriate pro
rata portion of the Rent payment then in effect in the case of Rent payable
other than on a monthly basis), and all other provisions of the Master Agreement
and this Schedule shall continue to apply.
Notwithstanding
any of the provisions of this Section 7 to the contrary, if any Lessee Default
shall have occurred and be continuing at any time during the last 90 days of
the
Then Applicable Term of this Lease, Lessor may cancel any Renewal Term or
optional or other automatic extension of the Then Applicable Term immediately
upon written notice to Lessee.
8. ADJUSTMENTS
TO SCHEDULE.
Lessee
acknowledges that the Total Cost of Equipment and Financed Items and the related
Rent payments set forth in this Schedule may be estimates, and if the final
invoice from the Seller specifies a Total Cost that is more or less than the
Total Cost set forth in this Schedule, Lessee hereby authorizes Lessor to adjust
the applicable Total Cost and Rent payment on this Schedule to reflect the
final
invoice amount (the “Final Invoice Amount”). However, if the Final Invoice
Amount exceeds the estimated Total Cost by more than 5%, Lessor will notify
Lessee and obtain Lessee's prior written approval of the aforementioned
adjustments. If Lessee fails to so approve any such adjustments within 15 days
of Lessor’s request, then Lessee shall be deemed to accept such Final Invoice
Amount.. All references in this Schedule to Total Cost and Rent shall mean
the
amounts thereof specified herein, as adjusted pursuant to this Section. Lessee
also acknowledges that the Equipment and Financed Items described herein may
differ from the description of the Equipment and Financed Items set forth in
the
related Acceptance Certificate executed by Lessee. Lessee hereby authorizes
Lessor to conform the description of the Equipment and Financed Items set forth
herein to the description thereof in the related Acceptance Certificate executed
by Lessee. All references in this Schedule to the Equipment subject to a Lease
and the Financed Items subject to a Financing shall mean the Equipment and
Financed Items described herein, as conformed to the related Acceptance
Certificate pursuant to this Section.
9. ADVANTAGE
PROTECTION PLUS: The
Advantage Protection Plus Addendum attached to this Schedule as Annex 1 is
hereby incorporated into and made a part of this Schedule to the same extent
as
if fully set forth in this Schedule. The provisions of Sections 10 and 11 of
the
Master Agreement as they relate to this Schedule, are hereby amended to the
extent, and solely to the extent, inconsistent with the terms of the attached
Annex 1. The Advantage Protection Plus Fee is 0.2% (if your Rent is payable
monthly) or 0.6% (if your Rent is payable quarterly) of the aggregate Total
Cost
of the Equipment and Financed Items set forth in this Schedule, payable monthly
or quarterly, as the case may be.
10. ADDITIONAL
PROVISIONS: LESSOR
AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE EQUIPMENT
DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO ENTER
INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF ANY.
SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND THIS
SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND
THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
|
LESSEE:
SECURED
DIGITAL STORAGE, LLC
|
LESSOR:
HEWLETT-PACKARD
FINANCIAL SERVICES COMPANY 2
|
|
By:____________________________________
|
By:_____________________________________
|
|
Name:__________________________________
Title:___________________________________
|
Name:___________________________________
Title:____________________________________
|
|
Date:
__________________________________
|
Date:
___________________________________
|
Exhibit
B to Master Agreement
ACCEPTANCE
CERTIFICATE
Hewlett-Packard
Financial Services Company1(“Lessor”)
and Secured Digital Storage, LLC (“Lessee”) are parties to the Master Lease and
Financing Agreement (the “Master Agreement”) and the Schedule under such Master
Agreement (the “Schedule”) identified by the Master Agreement Number and
Schedule Number, respectively, specified above. The Master Agreement and
Schedule together comprise a separate Lease, a separate Financing, or a separate
Lease and a separate Financing, as the case may be, that is being accepted
and
commenced pursuant to this Acceptance Certificate. All capitalized terms used
in
this Acceptance Certificate without definition have the meanings ascribed to
them in the Master Agreement.
1.
LEASE ACCEPTANCE. Lessee
hereby acknowledges that the Equipment described in Section 1 of the Schedule,
if any, or if different, the Equipment described in the attached invoice or
other attachment hereto, in either case having an aggregate Total Cost of
$_________, has been delivered to the Equipment Location specified below,
inspected by Lessee and found to be in good operating order and condition,
and
has been unconditionally and irrevocably accepted by Lessee under the Lease
evidenced by the Master Agreement and the Schedule as of the Acceptance Date
set
forth below.
2.
FINANCING ACCEPTANCE. Lessee
hereby acknowledges that the Financed Items described in Section 2 of the
Schedule, if any, or if different, the Financed Items described in the attached
invoice or other attachment hereto, in either case having an aggregate Total
Cost of $__________, have been received or incurred by Lessee and have been
unconditionally and irrevocably accepted by Lessee under the Financing evidenced
by the Master Agreement and the Schedule, as of the Acceptance Date set forth
below.
3.
LESSEE ACKNOWLEDGEMENTS. Lessee
hereby agrees to faithfully perform all of its obligations under the Master
Agreement and the Schedule and reaffirms, as of the date hereof, its
representations, warranties and covenants as set forth in the Master Agreement,
including, without limitation, the representations and covenants set forth
in
clauses (i) through (m) in Section 17 of the Master Agreement. Lessee hereby
acknowledges its agreement to pay Lessor Rent payments, as set forth in the
Schedule, plus any applicable taxes, together with all other costs, expenses
and
charges whatsoever which Lessee is required to pay pursuant to the Master
Agreement and the Schedule, in each instance at the times and in the manner
set
forth in the Master Agreement and the Schedule, respectively.
4. EQUIPMENT
LOCATION.
The
Equipment has been installed and is located at the following Equipment
Location:
SECURED
DIGITAL STORAGE, LLC
BY:_____________________________
________________________________
Name
and
Title
Acceptance
Date:___________________
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
Master
Agreement Number: 105291
Schedule
Number: 10529100001
ACCEPTANCE
CERTIFICATE
Hewlett-Packard
Financial Services Company' ("Lessor") and
Secured Digital Storage, LLC
("Lessee") are parties to the Master Lease and Financing Agreement (the
"Master
Agreement") and the Schedule under such Master Agreement (the "Schedule")
identified by the Master Agreement Number and Schedule Number, respectively,
specified above. The Master Agreement and Schedule together comprise a
separate
Lease, a separate Financing, or a separate Lease and a separate Financing,
as
the case may be, that is being accepted and commenced pursuant to this
Acceptance Certificate. All capitalized terms used in this Acceptance
Certificate without definition have the meanings ascribed to them in the
Master
Agreement.
1.
LEASE ACCEPTANCE. Lessee hereby acknowledges that the Equipment
described in Section 1 of the Schedule, if any, or if different, the Equipment
described in the attached invoice or other attachment hereto, in either
case
having an aggregate Total Cost of $149,561.10, has been delivered to the
Equipment Location specified below, inspected by Lessee and found to be
in good
operating order and condition, and has been unconditionally and irrevocably
accepted by Lessee under the Lease evidenced by the Master Agreement and
the
Schedule as of the Acceptance Date set forth below.
2.
FINANCING ACCEPTANCE. Lessee hereby acknowledges that the Financed
Items described in Section 2 of the Schedule, if any, or if different,
the
Financed Items described in the attached invoice or other attachment hereto,
in
either case having an aggregate Total Cost of $0.00, have been received
or
incurred by Lessee and have been unconditionally and irrevocably accepted
by
Lessee under the Financing evidenced by the Master Agreement and the Schedule,
as of the Acceptance Date set forth below.
3.
LESSEE ACKNOWLEDGEMENTS. Lessee hereby agrees to faithfully perform all
of its obligations under the Master Agreement and the Schedule and reaffirms,
as
of the date hereof, its representations, warranties and covenants as set
forth
in the Master Agreement, including, without limitation, the representations
and
covenants set forth in clauses (i) through (m) in Section 17 of the Master
Agreement. Lessee hereby acknowledges its agreement to pay Lessor Rent
payments,
as set forth in the Schedule, plus any applicable taxes, together with
all other
costs, expenses and charges whatsoever which Lessee is required to pay
pursuant
to the Master Agreement and the Schedule, in each instance at the times
and in
the manner set forth in the Master Agreement and the Schedule,
respectively.
4.
EQUIPMENT LOCATION. The Equipment has been installed and is located at
the following Equipment Location:
Secured
Digital Storage, LLC,1331 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇
|
Secured
Digital Storage, LLC
|
|
BY:
/s/ ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇
|
|
Name
and Title
|
|
Acceptance
Date: 12/31/07
|
|
1
|
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
COUNTERPART
NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE CONSTITUTES CHATTEL
PAPER (AS DEFINED IN THE UCC), NO SECURITY INTEREST IN THIS SCHEDULE MAY
BE
CREATED THROUGH THE TRANSFER OR POSSESSION
OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master
Agreement Number _
MASTER
LEASE AND FINANCING AGREEMENT SCHEDULE
Hewlett-Packard
Financial Services Company1
(“Lessor”)
and Secured
Digital Storage, LLC
(“Lessee”) are parties to the Master Lease and Financing Agreement identified by
the Master Agreement Number specified above (the “Master Agreement”). This
Schedule (which shall be identified by the Schedule Number specified above)
and
the Master Agreement together comprise a separate Lease, a separate Financing
or
a separate Lease and [a separate] Financing, as the case may be, between
the
parties. The terms and conditions of the Master Agreement are hereby
incorporated by reference into this Schedule. All capitalized terms used
in this
Schedule without definition have the meanings ascribed to them in the Master
Agreement.
1. LEASE.
A. Description
of Items of Leased Equipment Total
Cost
SEE
ATTACHED EXHIBIT
A
$149,561.10
B. Initial
Term:
_36__
Months
(plus the number of days from and including the Acceptance Date through and
including the last day of the calendar month or quarter (depending on whether
Rent is payable monthly or quarterly as specified in Section 3 below) in
which
the Acceptance Date occurs).
2. FINANCING.
A. Description
of Financed
Items
Total
Cost
N/A
B. Term:
_N/A_
Months
(plus the number of days from and including the Acceptance Date through and
including the last day of the calendar month or quarter (depending on whether
Rent is payable monthly or quarterly as specified in Section 3 below) in
which
the Acceptance Date occurs).
3. RENT:
For
Lease: $4,175.75
For
Financing: $0.00
Total
Rent: $4,175.75
RENT
is payable:
X
in
advance ___in arrears (check one)
X
monthly
___quarterly (check one)
DAILY
RENT:
For
Lease: N/A (i.e.,
the
Rent payment specified above expressed on a per diem basis, assuming a 360
day
year and 30 day months)
For
Financing: N/A
(based
on the Financing Rate, and interest only)
For
Financings, the “Financing Rate” generally equals the rate of interest that
would cause the present value of the Rent payable over the Term, calculated
as
of the First Payment Date and assuming monthly or quarterly (as applicable)
compounding, to equal the Total Cost of the Financed
Items.
Lessee
shall pay Lessor (a) on the first day of each calendar month or calendar
quarter
(depending on whether Rent is payable monthly or quarterly as specified above)
if Rent is payable in advance, or (b) on the last day of each calendar month
or
calendar quarter (depending on whether Rent is payable monthly or quarterly
as
specified above) if Rent is payable in arrears, the Rent payment specified
above
for the length of the Initial Term in the case of a Lease and for the length
of
the Term in the case of a Financing.
For
Financings, all payments of Rent will be deemed to be blended payments of
principal and interest (which interest will be calculated and payable at
the
Financing Rate), other than (a) Daily Rent, which is interest only, and (b)
if
Rent is payable in advance, the first periodic payment of Rent which is
principal only. All payments of Rent with respect to Financings will be applied
first to accrued and unpaid interest and next on account of principal, with
interest on overdue amounts calculated and payable in accordance with the
Master
Agreement.
4.
PRICING
EXPIRATION DATE:
03/01/2008.
Lessor's obligation to purchase and lease the Equipment or fund and finance
the
Financed Items is subject to the Acceptance Date being on or before the Pricing
Expiration Date.
5. EQUIPMENT
LOCATION:
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. SELLER:
▇▇▇▇▇▇▇▇
|
1
|
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
7. LESSEE’S
END-OF-LEASE-TERM OPTIONS. Lessee
may choose to exercise one of the following options upon the natural expiration
of the Initial Term, any Renewal Term (as defined below) and any automatic
extension of the Initial Term or any Renewal Term provided, however,
that
Lessee must give Lessor written notice of Lessee’s choice (“End-of-Term Notice”)
not less than ninety (90) days before the expiration of the relevant
term.
(a)
Purchase Option. Lessee
may elect
to
purchase any or all Units of Equipment then subject to this Lease (other
than
items of Software that may not be sold by Lessor under the terms of any
applicable License Agreement) for an amount equal to the Fair Market Value
of
such Units of Equipment as of the end of the Then Applicable Term, provided
no
Lessee Default shall have occurred and be continuing. In the event of such
an
election, Lessee shall pay such amount to Lessor, in immediately available
funds, on or before the last day of the Then Applicable Term. If Lessee shall
have so elected to purchase any of the Units of Equipment, shall have so
paid
the applicable purchase price and shall have fulfilled the terms and conditions
of the Master Agreement, then on the last day of the Then Applicable Term
(1)
the Lease with respect to such Units of Equipment shall terminate and, except
as
provided in Section 26(m) of the Master Agreement, Lessee shall be relieved
of
all of its obligations in favor of Lessor with respect to such Units of
Equipment, and (2) Lessor shall transfer all of its interest in such Units
of
Equipment to Lessee “AS IS, WHERE IS,” without any representation, warranty,
express or implied, from Lessor, other than the absence of any liens or claims
by or through Lessor. In the event Lessor and Lessee are unable to agree
on the
Fair Market Value of any Units of Equipment, Lessor shall, at Lessee's expense,
select an independent appraiser to conclusively determine such
amount.
(b)
Renewal Option. Lessee
may elect
to
renew the Lease with respect to any or all Units of Equipment then subject
to
this Lease (other than items of Software that may not be re-leased by Lessor
under the terms of any applicable License Agreement) for an amount equal
to the
Fair Rental Value of such Units of Equipment as of the end of the Then
Applicable Term. In the event of such an election, Lessee shall enter into
a
mutually agreeable renewal agreement with Lessor (“Renewal Agreement”) on or
before the last day of the Then Applicable Term confirming the Units of
Equipment as to which the Lease is to be renewed, the period for which the
Lease
is to be renewed (the “Renewal Term”), and the amount of Rent and the times at
which such Rent is to be payable during the Renewal Term. In the event Lessor
and Lessee are unable to agree on the Fair Rental Value of any Units of
Equipment, Lessor shall, at Lessee's expense, select an independent appraiser
to
conclusively determine such amount.
(c)
Return.
Lessee
may elect to return any or all of the Units of Equipment then subject to
this
Lease in accordance with Section 7 of the Master Agreement.
(d)
Automatic Extension.
If
Lessee fails to deliver to Lessor an End-of-Term Notice the Initial Term
or
Renewal Term shall, without any additional notice or documentation, be
automatically extended for successive calendar months with respect to all
items
of Equipment then subject to this Lease through the end of the calendar month
falling at least 90 days after the date Lessee shall have delivered to Lessor
an
End-of-Term Notice with respect to this Lease. For each calendar month that
the
Then Applicable Term of this Lease is so extended, Lessee shall pay to Lessor
Rent in an amount equal to the monthly Rent payment in effect immediately
prior
to such extension (or the appropriate pro rata portion of the Rent payment
then
in effect in the case of Rent payable other than on a monthly basis), and
all
other provisions of the Master Agreement and this Schedule shall continue
to
apply.
If
Lessee
shall have delivered to Lessor an End-of-Term Notice with respect to a Lease,
but shall have subsequently failed to comply with its obligations arising
from
its elections specified therein, then the Then Applicable Term of this Lease
shall, without any additional notice or documentation, be automatically extended
for successive calendar months with respect to all items of Equipment as
to
which Lessee shall have so failed to comply with its obligations through
the end
of the calendar month in which Lessee shall have complied with such obligations.
For each calendar month that the Then Applicable Term of this Lease is so
extended, Lessee shall pay to Lessor Rent in an amount equal to the monthly
Rent
payment in effect immediately prior to such extension (or the appropriate
pro
rata portion of the Rent payment then in effect in the case of Rent payable
other than on a monthly basis), and all other provisions of the Master Agreement
and this Schedule shall continue to apply.
Notwithstanding
any of the provisions of this Section 7 to the contrary, if any Lessee Default
shall have occurred and be continuing at any time during the last 90 days
of the
Then Applicable Term of this Lease, Lessor may cancel any Renewal Term or
optional or other automatic extension of the Then Applicable Term immediately
upon written notice to Lessee.
8. ADJUSTMENTS
TO SCHEDULE.
Lessee
acknowledges that the Total Cost of Equipment and Financed Items and the
related
Rent payments set forth in this Schedule may be estimates, and if the final
invoice from the Seller specifies a Total Cost that is more or less than
the
Total Cost set forth in this Schedule, Lessee hereby authorizes Lessor to
adjust
the applicable Total Cost and Rent payment on this Schedule to reflect the
final
invoice amount (the “Final Invoice Amount”). However, if the Final Invoice
Amount exceeds the estimated Total Cost by more than 5%, Lessor will notify
Lessee and obtain Lessee's prior written approval of the aforementioned
adjustments. If Lessee fails to so approve any such adjustments within 15
days
of Lessor’s request, then this Schedule shall terminate without penalty to
either Lessor or Lessee and Lessee shall be solely responsible to the Supplier
for all obligations arising under the applicable Purchase Documents, including,
without limitation, the obligation to purchase Equipment and pay Financed
Items.
All references in this Schedule to Total Cost and Rent shall mean the amounts
thereof specified herein, as adjusted pursuant to this Section. Lessee also
acknowledges that the Equipment and Financed Items described herein may differ
from the description of the Equipment and Financed Items set forth in the
related Acceptance Certificate executed by Lessee. Lessee hereby authorizes
Lessor to conform the description of the Equipment and Financed Items set
forth
herein to the description thereof in the related Acceptance Certificate executed
by Lessee. All references in this Schedule to the Equipment subject to a
Lease
and the Financed Items subject to a Financing shall mean the Equipment and
Financed Items described herein, as conformed to the related Acceptance
Certificate pursuant to this Section.
|
9.
|
ADDITIONAL
PROVISIONS:
N/A
|
LESSOR
AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE EQUIPMENT
DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO ENTER
INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY.
SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS
SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND
THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
|
LESSEE:
Secured
Digital Storage, LLC
|
LESSOR:
HEWLETT-PACKARD
FINANCIAL SERVICES COMPANY2
|
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇
|
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇▇▇▇
Title:
VP - Finance
|
Name:
▇▇▇▇ ▇▇▇▇▇▇
Title:
Customer Delivery Specialist
|
|
Date:
December 12, 2007
|
Date:
January 16, 2008
|
|
2
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Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
Master
Agreement Number: 105291
Schedule
Number: 10529100004
MASTER
LEASE AND FINANCING AGREEMENT
ACCEPTANCE
CERTIFICATE
Hewlett-Packard
Financial Services Company1
(“Lessor”)
and Secured
Digital Storage, LLC (“Lessee”)
are parties to the Master
Lease and Financing Agreement (the “Master Agreement”) and the Schedule under
such Master Agreement (the “Schedule”) identified
by the Master Agreement Number and Schedule Number, respectively, specified
above. The Master Agreement and Schedule
together comprise a separate Lease, a separate Financing, or a separate
Lease
and a separate Financing, as the case may be, that
is
being accepted and commenced pursuant to this Acceptance Certificate.
All
capitalized terms used in this Acceptance Certificate
without definition have the meanings ascribed to them in the Master
Agreement.
1.
LEASE ACCEPTANCE. Lessee
hereby acknowledges that the Equipment described in Section 1 of the
Schedule,
if any,
or
if different, the Equipment described in the attached invoice or other
attachment hereto, in either case having an aggregate Total
Cost of $27,993.46
has
been
delivered to the Equipment Location specified below, inspected by Lessee
and
found to be in good operating
order and condition, and has been unconditionally and irrevocably accepted
by
Lessee under the Lease evidenced by the Master
Agreement and the Schedule as of the Acceptance Date set forth below.
2.
FINANCING ACCEPTANCE. Lessee
hereby acknowledges that the Financed Items described in Section 2 of
the
Schedule,
if any, or if different, the Financed Items described in t he attached
invoice
or other attachment hereto, in either case having an
aggregate Total Cost of $28,657.66,
have
been received or incurred by Lessee and have been unconditionally and
irrevocably accepted
by Lessee under the Financing evidenced by the Master Agreement and the
Schedule, as of the Acceptance Date set forth below.
3.
LESSEE ACKNOWLEDGEMENTS. Lessee
hereby agrees to faithfully perform all of its obligations under the
Master
Agreement and the Schedule and reaffirms, as of the date hereof, its
representations, warranties and covenants as set forth in the
Master Agreement, including, without limitation, the representations
and
covenants set forth in clauses (i) through (m) in Section 17
of the
Master Agreement. Lessee hereby acknowledges its agreement to pay Lessor
Rent
payments, as set forth in the Schedule, plus
any
applicable taxes, together with all other costs, expenses and charges
whatsoever
which Lessee is required to pay pursuant to the
Master Agreement and the Schedule, in each instance at the times and
in the
manner set forth in the Master Agreement and the Schedule,
respectively.
4.
EQUIPMENT LOCATION. The
Equipment has been installed and is located at the following Equipment
Location:
Secured
Digital Storage, LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Secured
Digital Storage, LLC
BY:
/s/ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇
Name
and Title
Acceptance
Date: 12/31/07
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New York.
|
Master
Agreement Number: 105291
Schedule
Number: 10529100002
MASTER
LEASE AND FINANCING AGREEMENT
ACCEPTANCE
CERTIFICATE
Hewlett-Packard
Financial Services Company' ("Lessor") and
Secured Digital Storage, LLC
("Lessee") are parties to the Master Lease and Financing Agreement (the
"Master
Agreement") and the Schedule under such Master Agreement (the "Schedule")
identified by the Master Agreement Number and Schedule Number, respectively,
specified above. The Master Agreement and Schedule together comprise a
separate
Lease, a separate Financing, or a separate Lease and a separate Financing,
as
the case may be, that is being accepted and commenced pursuant to this
Acceptance Certificate. All capitalized terms used in this Acceptance
Certificate without definition have the meanings ascribed to them in the
Master
Agreement.
1.
LEASE ACCEPTANCE. Lessee hereby acknowledges that the Equipment
described in Section 1 of the Schedule, if any, or if different, the Equipment
described in the attached invoice or other attachment hereto, in either
case
having an aggregate Total Cost of $745,450.23, has been delivered to the
Equipment Location specified below, inspected by Lessee and found to be
in good
operating order and condition, and has been unconditionally and irrevocably
accepted by Lessee under the Lease evidenced by the Master Agreement and
the
Schedule as of the Acceptance Date set forth below.
2.
FINANCING ACCEPTANCE. Lessee hereby acknowledges that the Financed
Items described in Section 2 of the Schedule, if any, or if different,
the
Financed Items described in the attached invoice or other attachment hereto,
in
either case having an aggregate Total Cost of $468,622.30, have been received
or
incurred by Lessee and have been unconditionally and irrevocably accepted
by
Lessee under the Financing evidenced by the Master Agreement and the Schedule,
as of the Acceptance Date set forth below.
3.
LESSEE ACKNOWLEDGEMENTS. Lessee hereby agrees to faithfully perform all
of its obligations under the Master Agreement and the Schedule and reaffirms,
as
of the date hereof, its representations, warranties and covenants as set
forth
in the Master Agreement, including, without limitation, the representations
and
covenants set forth in clauses (i) through (m) in Section 17 of the Master
Agreement. Lessee hereby acknowledges its agreement to pay Lessor Rent
payments,
as set forth in the Schedule, plus any applicable taxes, together with
all other
costs, expenses and charges whatsoever which Lessee is required to pay
pursuant
to the Master Agreement and the Schedule, in each instance at the times
and in
the manner set forth in the Master Agreement and the Schedule,
respectively.
4.
EQUIPMENT LOCATION. The Equipment has been installed and is located at
the following Equipment Location:
Secured
Digital Storage, LLC,1331 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇
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Secured
Digital Storage, LLC
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|
BY:
/s/ ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇
|
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Name
and Title
|
|
Acceptance
Date: 12/31/07
|
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New York.
|
COUNTERPART
NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE CONSTITUTES CHATTEL
PAPER (AS DEFINED IN THE UCC), NO SECURITY INTEREST IN THIS SCHEDULE MAY
BE
CREATED THROUGH THE TRANSFER OR POSSESSION
OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master
Agreement Number _
MASTER
LEASE AND FINANCING AGREEMENT SCHEDULE
Hewlett-Packard
Financial Services Company1(“Lessor”)
and Secured
Digital Storage, LLC
(“Lessee”) are parties to the Master Lease and Financing Agreement identified by
the Master Agreement Number specified above (the “Master Agreement”). This
Schedule (which shall be identified by the Schedule Number specified above)
and
the Master Agreement together comprise a separate Lease, a separate Financing
or
a separate Lease and [a separate] Financing, as the case may be, between
the
parties. The terms and conditions of the Master Agreement are hereby
incorporated by reference into this Schedule. All capitalized terms used
in this
Schedule without definition have the meanings ascribed to them in the Master
Agreement.
1. LEASE.
A. Description
of Items of Leased Equipment Total
Cost
See
Attached Exhibit
A
$745,450.23
B. Initial
Term:
36
Months
(plus the number of days from and including the Acceptance Date through and
including the last day of the calendar month or quarter (depending on whether
Rent is payable monthly or quarterly as specified in Section 3 below) in
which
the Acceptance Date occurs).
2. FINANCING.
A. Description
of Financed Items Total
Cost
See
Attached Exhibit
A
$468,622.32
B. Term: 36
Months
(plus the number of days from and including the Acceptance Date through and
including the last day of the calendar month or quarter (depending on whether
Rent is payable monthly or quarterly as specified in Section 3 below) in
which
the Acceptance Date occurs).
3. RENT:
For
Lease: $20,894.97
For
Financing: $13,346.46
Total
Rent: $34,241.43
RENT
is payable:
X
in
advance ___in arrears (check one)
X
monthly
___quarterly (check one)
DAILY
RENT:
For
Lease: _$0.00_
(i.e.,
the
Rent payment specified above expressed on a per diem basis, assuming a 360
day
year and 30 day months)
For
Financing: $0.00
(based
on the Financing Rate, and interest only)
For
Financings, the “Financing Rate” generally equals the rate of interest that
would cause the present value of the Rent payable over the Term, calculated
as
of the First Payment Date and assuming monthly or quarterly (as applicable)
compounding, to equal the Total Cost of the Financed
Items.
Lessee
shall pay Lessor (a) on the first day of each calendar month or calendar
quarter
(depending on whether Rent is payable monthly or quarterly as specified above)
if Rent is payable in advance, or (b) on the last day of each calendar month
or
calendar quarter (depending on whether Rent is payable monthly or quarterly
as
specified above) if Rent is payable in arrears, the Rent payment specified
above
for the length of the Initial Term in the case of a Lease and for the length
of
the Term in the case of a Financing. The First Payment Date shall be the
first
day (if Rent is payable in advance) or the last day (if Rent is payable in
arrears) of the month or quarter (as applicable) immediately following the
month
or quarter (as applicable) in which the Acceptance Date occurs.
For
Financings, all payments of Rent will be deemed to be blended payments of
principal and interest (which interest will be calculated and payable at
the
Financing Rate), other than (a) Daily Rent, which is interest only, and (b)
if
Rent is payable in advance, the first periodic payment of Rent which is
principal only. All payments of Rent with respect to Financings will be applied
first to accrued and unpaid interest and next on account of principal, with
interest on overdue amounts calculated and payable in accordance with the
Master
Agreement.
4.
PRICING
EXPIRATION DATE:
01/31/2008.
Lessor's obligation to purchase and lease the Equipment or fund and finance
the
Financed Items is subject to the Acceptance Date being on or before the Pricing
Expiration Date.
5. EQUIPMENT
LOCATION:
Secured
Digital Storage, LLC, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
1
|
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
6. SELLER:
Netdirect
Systems
7. LESSEE’S
END-OF-LEASE-TERM OPTIONS. Lessee
may choose to exercise one of the following options upon the natural expiration
of the Initial Term, any Renewal Term (as defined below) and any automatic
extension of the Initial Term or any Renewal Term provided, however,
that
Lessee must give Lessor written notice of Lessee’s choice (“End-of-Term Notice”)
not less than ninety (90) days before the expiration of the relevant
term.
(a)
Purchase Option. Lessee
may elect
to
purchase any or all Units of Equipment then subject to this Lease (other
than
items of Software that may not be sold by Lessor under the terms of any
applicable License Agreement) for an amount equal to the Fair Market Value
of
such Units of Equipment as of the end of the Then Applicable Term, provided
no
Lessee Default shall have occurred and be continuing. In the event of such
an
election, Lessee shall pay such amount to Lessor, in immediately available
funds, on or before the last day of the Then Applicable Term. If Lessee shall
have so elected to purchase any of the Units of Equipment, shall have so
paid
the applicable purchase price and shall have fulfilled the terms and conditions
of the Master Agreement, then on the last day of the Then Applicable Term
(1)
the Lease with respect to such Units of Equipment shall terminate and, except
as
provided in Section 26(m) of the Master Agreement, Lessee shall be relieved
of
all of its obligations in favor of Lessor with respect to such Units of
Equipment, and (2) Lessor shall transfer all of its interest in such Units
of
Equipment to Lessee “AS IS, WHERE IS,” without any representation, warranty,
express or implied, from Lessor, other than the absence of any liens or claims
by or through Lessor. In the event Lessor and Lessee are unable to agree
on the
Fair Market Value of any Units of Equipment, Lessor shall, at Lessee's expense,
select an independent appraiser to conclusively determine such
amount.
(b)
Renewal Option. Lessee
may elect
to
renew the Lease with respect to any or all Units of Equipment then subject
to
this Lease (other than items of Software that may not be re-leased by Lessor
under the terms of any applicable License Agreement) for an amount equal
to the
Fair Rental Value of such Units of Equipment as of the end of the Then
Applicable Term. In the event of such an election, Lessee shall enter into
a
mutually agreeable renewal agreement with Lessor (“Renewal Agreement”) on or
before the last day of the Then Applicable Term confirming the Units of
Equipment as to which the Lease is to be renewed, the period for which the
Lease
is to be renewed (the “Renewal Term”), and the amount of Rent and the times at
which such Rent is to be payable during the Renewal Term. In the event Lessor
and Lessee are unable to agree on the Fair Rental Value of any Units of
Equipment, Lessor shall, at Lessee's expense, select an independent appraiser
to
conclusively determine such amount.
(c)
Return.
Lessee
may elect to return any or all of the Units of Equipment then subject to
this
Lease in accordance with Section 7 of the Master Agreement.
(d)
Automatic Extension.
If
Lessee fails to deliver to Lessor an End-of-Term Notice the Initial Term
or
Renewal Term shall, without any additional notice or documentation, be
automatically extended for successive calendar months with respect to all
items
of Equipment then subject to this Lease through the end of the calendar month
falling at least 90 days after the date Lessee shall have delivered to Lessor
an
End-of-Term Notice with respect to this Lease. For each calendar month that
the
Then Applicable Term of this Lease is so extended, Lessee shall pay to Lessor
Rent in an amount equal to the monthly Rent payment in effect immediately
prior
to such extension (or the appropriate pro rata portion of the Rent payment
then
in effect in the case of Rent payable other than on a monthly basis), and
all
other provisions of the Master Agreement and this Schedule shall continue
to
apply.
If
Lessee
shall have delivered to Lessor an End-of-Term Notice with respect to a Lease,
but shall have subsequently failed to comply with its obligations arising
from
its elections specified therein, then the Then Applicable Term of this Lease
shall, without any additional notice or documentation, be automatically extended
for successive calendar months with respect to all items of Equipment as
to
which Lessee shall have so failed to comply with its obligations through
the end
of the calendar month in which Lessee shall have complied with such obligations.
For each calendar month that the Then Applicable Term of this Lease is so
extended, Lessee shall pay to Lessor Rent in an amount equal to the monthly
Rent
payment in effect immediately prior to such extension (or the appropriate
pro
rata portion of the Rent payment then in effect in the case of Rent payable
other than on a monthly basis), and all other provisions of the Master Agreement
and this Schedule shall continue to apply.
Notwithstanding
any of the provisions of this Section 7 to the contrary, if any Lessee Default
shall have occurred and be continuing at any time during the last 90 days
of the
Then Applicable Term of this Lease, Lessor may cancel any Renewal Term or
optional or other automatic extension of the Then Applicable Term immediately
upon written notice to Lessee.
8. ADJUSTMENTS
TO SCHEDULE.
Lessee
acknowledges that the Total Cost of Equipment and Financed Items and the
related
Rent payments set forth in this Schedule may be estimates, and if the final
invoice from the Seller specifies a Total Cost that is more or less than
the
Total Cost set forth in this Schedule, Lessee hereby authorizes Lessor to
adjust
the applicable Total Cost and Rent payment on this Schedule to reflect the
final
invoice amount (the “Final Invoice Amount”). However, if the Final Invoice
Amount exceeds the estimated Total Cost by more than 5%, Lessor will notify
Lessee and obtain Lessee's prior written approval of the aforementioned
adjustments. If Lessee fails to so approve any such adjustments within 15
days
of Lessor’s request, then this Schedule shall terminate without penalty to
either Lessor or Lessee and Lessee shall be solely responsible to the Supplier
for all obligations arising under the applicable Purchase Documents, including,
without limitation, the obligation to purchase Equipment and pay Financed
Items.
All references in this Schedule to Total Cost and Rent shall mean the amounts
thereof specified herein, as adjusted pursuant to this Section. Lessee also
acknowledges that the Equipment and Financed Items described herein may differ
from the description of the Equipment and Financed Items set forth in the
related Acceptance Certificate executed by Lessee. Lessee hereby authorizes
Lessor to conform the description of the Equipment and Financed Items set
forth
herein to the description thereof in the related Acceptance Certificate executed
by Lessee. All references in this Schedule to the Equipment subject to a
Lease
and the Financed Items subject to a Financing shall mean the Equipment and
Financed Items described herein, as conformed to the related Acceptance
Certificate pursuant to this Section.
9. ADDITIONAL
PROVISIONS: N/A
LESSOR
AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE EQUIPMENT
DESCRIBED IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO ENTER
INTO A FINANCING OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF
ANY.
SUCH LEASE AND/OR FINANCING WILL BE GOVERNED BY THE MASTER AGREEMENT AND
THIS
SCHEDULE, INCLUDING THE IMPORTANT ADDITIONAL TERMS AND CONDITIONS SET FORTH
ABOVE. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE AND
THE
MASTER AGREEMENT, THE TERMS OF THIS SCHEDULE SHALL GOVERN.
|
LESSEE:
Secured
Digital Storage, LLC
|
LESSOR:
HEWLETT-PACKARD
FINANCIAL SERVICES COMPANY2
|
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇
|
By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇ ▇▇▇▇
Title:
VP - Finance
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Operations Manager
|
|
Date:
December
31, 2007
|
Date:
|
|
2
|
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New
York.
|
COUNTERPART
NO. _______ OF _______. TO THE EXTENT THAT THIS SCHEDULE CONSTITUTES
CHATTEL
PAPER
(AS DEFINED IN THE UCC), NO SECURITY INTEREST IN THIS SCHEDULE MAY BE CREATED
THROUGH
THE
TRANSFER OR POSSESSION
OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
Master
Agreement Number 105291
Schedule
Number: 10529100004
MASTER
LEASE AND FINANCING AGREEMENT SCHEDULE
Hewlett-Packard
Financial Services Company1(“Lessor”)
and Secured
Digital Storage, LLC (“Lessee”)
are parties to the Master Lease and Financing
Agreement identified by the Master Agreement Number specified above (the
“Master
Agreement”). This Schedule (which shall be identified
by the Schedule Number specified above) and the Master Agreement together
comprise a separate Lease, a separate Financing or a separate
Lease and [a separate] Financing, as the case may be, between the parties.
The
terms and conditions of the Master Agreement are hereby
incorporated by reference into this Schedule. All capitalized terms used
in this
Schedule without definition have the meanings ascribed to
them
in the Master Agreement.
1.
LEASE.
A.
Description of Items of Leased
Equipment
Total Cost
See
Attached Exhibit
A $27,993.46
B.
Initial Term :
36
Months
(plus the number of days from and including the Acceptance Date through
and
including the last day of the calendar
month or quarter (depending on whether Rent is payable monthly or quarterly
as
specified in Section 3 below) in which the Acceptance
Date occurs).
2.
FINANCING.
A.
Description of Financed
Items
Total Cost
See
Attached Exhibit
A
$28,657.66
B.
Term: 36 Months
(plus the number of days from and including the Acceptance Date through
and
including the last day of the calendar month
or
quarter (depending on whether Rent is payable monthly or quarterly as specified
in Section 3 below) in which the Acceptance Date occurs).
3.
RENT:
For
Lease: $775.42
For
Financing: $793.82
Total
Rent: $1,569.24
RENT
is payable:
X in advance ___in arrears (check one)
X monthly ___quarterly (check one)
DAILY
RENT:
For
Lease: _$0.00_ (i.e.,
the
Rent payment specified above expressed on a per diem basis, assuming a
360 day
year and 30 day months) For
Financing: $0.00 (based on the Financing Rate, and interest only)
For
Financings, the “Financing Rate” generally equals the rate of interest that
would cause the present value of the Rent payable over the
Term, calculated as of the First Payment Date and assuming monthly or quarterly
(as applicable) compounding, to equal the Total Cost
of the Financed Items.
Lessee
shall pay Lessor (a) on the first day of each calendar month or calendar
quarter
(depending on whether Rent is payable monthly or quarterly
as specified above) if Rent is payable in advance, or (b) on the last day
of
each calendar month or calendar quarter (depending on whether
Rent is payable monthly or quarterly as specified above) if Rent is payable
in
arrears, the Rent payment specified above for the length of
the
Initial Term in the case of a Lease and for the length of the Term in the
case
of a Financing. The First Payment Date shall be the first day
(if
Rent is payable in advance) or the last day (if Rent is payable in arrears)
of
the month or quarter (as applicable) immediately following the
month
or quarter (as applicable) in which the Acceptance Date occurs.
For
Financings, all payments of Rent will be deemed to be blended payments
of
principal and interest (which interest will be calculated and payable
at the Financing Rate), other than (a) Daily Rent, which is interest only,
and
(b) if Rent is payable in advance, the first periodic payment
of Rent which is principal only. All payments of Rent with respect to Financings
will be applied first to accrued and unpaid interest and
next
on account of principal, with interest on overdue amounts calculated and
payable
in accordance with the Master Agreement.
4.
PRICING EXPIRATION DATE:
04/30/2008.
Lessor's obligation to purchase and lease the Equipment or fund and finance
the
Financed
Items is subject to the Acceptance Date being on or before the Pricing
Expiration Date.
5.
EQUIPMENT LOCATION:
Secured
Digital Storage, LLC , ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇
| 1 |
Authorized
to do business in the name of Hewlett-Packard Financial Services
Company
Inc. in the States of Alabama and New York.
|
6.
SELLER: Netdirect Systems
7.
LESSEE’S END-OF-LEASE-TERM OPTIONS. Lessee
may choose to exercise one of the following options upon the natural
expiration
of the Initial Term, any Renewal Term (as defined below) and any automatic
extension of the Initial Term or any Renewal Term provided,
however, that Lessee must give Lessor written notice of Lessee’s choice
(“End-of-Term Notice”) not less than ninety (90) days before
the expiration of the relevant term.
(a)
Purchase Option. Lessee
may elect to purchase any or all Units of Equipment then subject to this
Lease
(other than items of
Software that may not be sold by Lessor under the terms of any applicable
License Agreement) for an amount equal to the Fair Market Value
of
such Units of Equipment as of the end of the Then Applicable Term, provided
no
Lessee Default shall have occurred and be continuing.
In the event of such an election, Lessee shall pay such amount to Lessor,
in
immediately available funds, on or before the last day of
the
Then Applicable Term. If Lessee shall have so elected to purchase any
of the
Units of Equipment, shall have so paid the applicable purchase
price and shall have fulfilled the terms and conditions of the Master
Agreement,
then on the last day of the Then Applicable Term (1) the
Lease
with respect to such Units of Equipment shall terminate and, except as
provided
in Section 26(m) of the Master Agreement, Lessee shall
be
relieved of all of its obligations in favor of Lessor with respect to
such Units
of Equipment, and (2) Lessor shall transfer all of its interest
in such Units of Equipment to Lessee “AS IS, WHERE IS,” without any
representation, warranty, express or implied, from Lessor, other
than the absence of any liens or claims by or through Lessor. In the
event
Lessor and Lessee are unable to agree on the Fair Market Value
of
any Units of Equipment, Lessor shall, at Lessee's expense, select an
independent
appraiser to conclusively determine such amount.
(b)
Renewal Option. Lessee
may elect to renew the Lease with respect to any or all Units of Equipment
then
subject to this Lease
(other than items of Software that may not be re-leased by Lessor under
the
terms of any applicable License Agreement) for an amount equal
to
the Fair Rental Value of such Units of Equipment as of the end of the
Then
Applicable Term. In the event of such an election, Lessee shall
enter into a mutually agreeable renewal agreement with Lessor (“Renewal
Agreement”) on or before the last day of the Then Applicable Term
confirming the Units of Equipment as to which the Lease is to be renewed,
the
period for which the Lease is to be renewed (the “Renewal Term”),
and the amount of Rent and the times at which such Rent is to be payable
during
the Renewal Term. In the event Lessor and Lessee are
unable to agree on the Fair Rental Value of any Units of Equipment, Lessor
shall, at Lessee's expense, select an independent appraiser to conclusively
determine such amount.
(c)
Return .
Lessee
may elect to return any or all of the Units of Equipment then subject
to this
Lease in accordance with Section
7
of the Master Agreement.
(d)
Automatic Extension. If
Lessee
fails to deliver to Lessor an End-of-Term Notice the Initial Term or
Renewal
Term shall, without
any additional notice or documentation, be automatically extended for
successive
calendar months with respect to all items of Equipment
then subject to this Lease through the end of the calendar month falling
at
least 90 days after the date Lessee shall have delivered to Lessor
an
End-of-Term Notice with respect to this Lease. For each calendar month
that the
Then Applicable Term of this Lease is so extended, Lessee
shall pay to Lessor Rent in an amount equal to the monthly Rent payment
in
effect immediately prior to such extension (or the appropriate
pro rata portion of the Rent payment then in effect in the case of Rent
payable
other than on a monthly basis), and all other provisions
of the Master Agreement and this Schedule shall continue to apply.
If
Lessee
shall have delivered to Lessor an End-of-Term Notice with respect to
a Lease,
but shall have subsequently failed to comply with its
obligations arising from its elections specified therein, then the Then
Applicable Term of this Lease shall, without any additional notice or
documentation,
be automatically extended for successive calendar months with respect
to all
items of Equipment as to which Lessee shall have so
failed
to comply with its obligations through the end of the calendar month
in which
Lessee shall have complied with such obligations. For each
calendar month that the Then Applicable Term of this Lease is so extended,
Lessee shall pay to Lessor Rent in an amount equal to the monthly
Rent payment in effect immediately prior to such extension (or the appropriate
pro rata portion of the Rent payment then in effect in the
case
of Rent payable other than on a monthly basis), and all other provisions
of the
Master Agreement and this Schedule shall continue to apply.
Notwithstanding
any of the provisions of this Section 7 to the contrary, if any Lessee
Default
shall have occurred and be continuing at any time
during the last 90 days of the Then Applicable Term of this Lease, Lessor
may
cancel any Renewal Term or optional or other automatic extension
of the Then Applicable Term immediately upon written notice to
Lessee.
8.
ADJUSTMENTS TO SCHEDULE.
Lessee
acknowledges that the Total Cost of Equipment and Financed Items and
the related
Rent
payments set forth in this Schedule may be estimates, and if the final
invoice
from the Seller specifies a Total Cost that is more or less than
the
Total Cost set forth in this Schedule, Lessee hereby authorizes Lessor
to adjust
the applicable Total Cost and Rent payment on this Schedule
to reflect the final invoice amount (the “Final Invoice Amount”). However, if
the Final Invoice Amount exceeds the estimated Total Cost
by
more than 5%, Lessor will notify Lessee and obtain Lessee's prior written
approval of the aforementioned adjustments. If Lessee fails to
so
approve any such adjustments within 15 days of Lessor’s request, then this
Schedule shall terminate without penalty to either Lessor or Lessee
and Lessee shall be solely responsible to the Supplier for all obligations
arising under the applicable Purchase Documents, including, without
limitation, the obligation to purchase Equipment and pay Financed Items.
All
references in this Schedule to Total Cost and Rent shall mean
the
amounts thereof specified herein, as adjusted pursuant to this Section.
Lessee
also acknowledges that the Equipment and Financed Items
described herein may differ from the description of the Equipment and
Financed
Items set forth in the related Acceptance Certificate executed
by Lessee. Lessee hereby authorizes Lessor to conform the description
of the
Equipment and Financed Items set forth herein to the description
thereof in the related Acceptance Certificate executed by Lessee. All
references
in this Schedule to the Equipment subject to a Lease
and
the Financed Items subject to a Financing shall mean the Equipment and
Financed
Items described herein, as conformed to the related
Acceptance Certificate pursuant to this Section.
9.
ADDITIONAL PROVISIONS: N/A
LESSOR
AGREES TO LEASE TO LESSEE AND LESSEE AGREES TO LEASE FROM LESSOR THE
EQUIPMENT
DESCRIBED
IN SECTION 1.A ABOVE, IF ANY, AND LESSOR AND LESSEE AGREE TO ENTER
INTO A
FINANCING
OF THE FINANCED ITEMS DESCRIBED IN SECTION 2.A ABOVE, IF ANY. SUCH
LEASE AND/OR
FINANCING
WILL BE GOVERNED BY THE MASTER AGREEMENT AND THIS SCHEDULE, INCLUDING
THE
IMPORTANT
ADDITIONAL TERMS AND CONDITIONS SET FORTH ABOVE. IN THE EVENT OF ANY
CONFLICT
BETWEEN
THE TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, THE TERMS OF THIS
SCHEDULE
SHALL
GOVERN.
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LESSEE:
Secured
Digital Storage, LLC
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LESSOR:
HEWLETT-PACKARD
FINANCIAL SERVICES COMPANY2
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By:
/s/ ▇▇▇▇▇ ▇▇▇▇
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By:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇
Title:
VP - Finance
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Operations Manager
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Date:
December
31, 2007
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Date:
|
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2
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Authorized
to do business in the name of Hewlett-Packard Financial
Services Company
Inc. in the States of Alabama and New
York.
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