[FINOVA LOGO]
FINANCIAL INNOVATORS
FINOVA Capital Corporation
10 Waterside Drive
Farmington, Connecticut 06032-3065
(860) 676-1818
MASTER LEASE No. S7280, dated June 2, 1999
FINOVA Capital Corporation ("we", "us" or "FINOVA") agrees to lease to Avanex
Corporation ("you" or "Lessee") and you agree to lease from us, the Equipment
described in any schedule to this Lease (a "Schedule"). The Equipment also
includes any replacement parts, repairs, additions and accessories that you may
add to the Equipment. We may treat any Schedule as a separate lease containing
all of the provisions of this Lease.
1. PURCHASING AND INSTALLING THE EQUIPMENT
We will purchase the Equipment from the Supplier you chose. The Supplier
will deliver the Equipment to you at your expense. You will properly
install the Equipment at your expense at the location(s) indicated in the
Schedule.
2. TERM
- The Term of each Schedule begins when any of the Equipment on that
Schedule is delivered to you, or a later date that we agree to in
writing.
- The Term continues until you fully perform in all material respects
all of your obligations under this Lease and the Schedule.
- If the Equipment is not delivered, installed and accepted by you by
the date indicated in the Schedule, we may terminate this Lease and
the Schedule as to the Equipment that was not delivered, installed
and accepted by giving you 10 days written notice of termination.
- Before we make any progress payment or final payment for the
Equipment on any Schedule, we require the following:
- That no payment is past due to us under any lease, loan or other
financial arrangement that you or any guarantor have with us.
- That you are complying in all material respects with all the terms
of this Lease.
- That we have received all the documents we requested, including the
signed Schedule and Delivery and Acceptance Certificate.
- That there has been no material adverse change in your financial
condition, business, operations or prospects, or that of any
guarantor, from the condition that you disclosed to us in your
application for credit.
3. RENT
- The rent is indicated on the Schedule. The rent is payable
periodically in advance from time to time (for example, monthly).
You agree that you owe us the total of all of these rent payments
over the Term of the Schedule.
- The first rent payment is due at the beginning of the Term or at a
later date that we agree to in writing. Subsequent rent payments are
due on the same day of each successive period until you pay us in
full all of the rent and any other charges or expenses you owe us.
- If the first rent payment is due later than the beginning of the
Term, you will also pay us interim rent on the first rent payment
date. The interim rent will be for the period from the beginning of
the Term until the date that the first rent payment is due. Interim
rent will be calculated at the same rate as the regular rent
payment, but on a daily basis for the number of days for which
interim rent is due.
- YOUR OBLIGATION TO PAY US ALL RENT IS ABSOLUTE AND UNCONDITIONAL.
YOU ARE NOT EXCUSED FROM PAYING THE RENT, IN
FULL, FOR ANY REASON. YOU AGREE THAT YOU HAVE NO DEFENSE FOR FAILURE
TO PAY THE RENT AND YOU WILL NOT MAKE ANY COUNTERCLAIMS OR SETOFFS
TO AVOID PAYING THE RENT.
4. NON-CANCELABLE LEASE. YOU AGREE THAT YOU MAY NOT CANCEL OR TERMINATE
THIS LEASE OR ANY SCHEDULE.
5. PROTECTION OF OUR INTEREST IN THE EQUIPMENT; FEES.
- The Equipment is our property. It will remain our property. You will
not own the Equipment unless the Schedule gives you an option to
purchase the Equipment and you have exercised that option and paid
us in full for the Equipment and any other amounts you may owe us.
If we request, you will put labels supplied by us stating "PROPERTY
OF FINOVA" on the Equipment where they are clearly visible.
- You give us permission to add to this Lease or any Schedule the
serial numbers and other information about the Equipment.
- While this Lease is intended to be a lease (and not a loan), you
grant us a security interest in the Equipment to protect our
interest in the Equipment if this Lease is later determined to be a
security agreement. You give us permission to file this Lease or a
Uniform Commercial Code financing statement, at your expense, in
order to perfect this security interest. You also give us permission
to sign your name on the Uniform Commercial Code financing
statements where this is permitted by law.
- You will pay our cost to do searches for other filings or judgments
against you or your affiliates. You will also pay any filing,
recording or stamp fees or taxes resulting from filing this Lease or
a Uniform Commercial Code financing statement. You will also pay our
fees in effect from time to time for documentation, administration
and Termination of this Lease.
- At your expense, you will defend our ownership rights in the
Equipment against, and keep the Equipment free of, any legal
process, liens, security interests, attachments, levies and
executions. You will give us immediate written notice of any legal
process, liens, attachments, levies or executions, and you will
indemnify us against any loss that results to us from these causes.
- You will notify us at least 15 days before you change the address of
your principal executive office.
- You will promptly sign and return additional documents that we may
request in order to protect our interest in the Equipment.
- The Equipment is personal property and will remain personal
property. You will not incorporate it into real estate and will not
do anything that will cause the Equipment to become part of real
estate or a fixture.
6. CARE, USE, LOCATION AND ALTERATION OF THE EQUIPMENT
- You will make sure that the Equipment is maintained in good
operating condition, and that it is serviced, repaired and
overhauled when this is necessary to keep the Equipment in good
operating condition. All maintenance must be done according to the
Supplier's or Manufacturer's requirements or recommendations. All
maintenance must also comply with any legal or regulatory
requirements.
- You will maintain service logs for the Equipment, if applicable, and
permit us to inspect the Equipment, the service logs and service
reports. You give us permission to make copies of the service logs
and service reports.
- We will give you prior notice if we, or our agent, want to inspect
the Equipment or the service logs or service reports. We may inspect
it during regular business hours. If we find during an inspection
that you are not complying with this Lease, you will pay our travel,
meals and lodging costs, our salary costs, and the costs and fees of
our agents for reinspection. You will promptly cure any problems
with the Equipment that are discovered during our inspection.
- You will use the Equipment only for business purposes. You will obey
all legal and regulatory requirements in your use of the Equipment.
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- You will make all additions, modifications and improvements to the
Equipment that are required by law or government regulation.
Otherwise, you will not alter the Equipment without our written
permission. You will replace all worn, lost, stolen or destroyed
parts of the Equipment with replacement parts that are as good or
better than the original parts. The new parts will become our
property upon replacement.
- You will not remove the Equipment from the location indicated in the
Schedule without our written permission.
7. RETURN OF EQUIPMENT. Unless otherwise stated in the Schedule:
- You must give us written notice at least 60 days before the end of
the Term if you want to purchase the equipment from us (assuming the
Schedule provides you with an option to purchase the Equipment).
- You must give us written notice at least 60 days before the end of
the Term if you want to return the Equipment to us.
- If you do not give us written notice at least 60 days before the end
of the Term either that you want to purchase or that you want to
return the Equipment, you will continue to rent the Equipment and
this Lease and the Schedule will be automatically extended until 120
days after we receive your notice. The rent will be the fair market
rental value of the Equipment, as determined by us. Unless we notify
you otherwise, the fair market rental value will not exceed the rent
then being charged under this Lease and the Schedule.
- If you do give us 60 days written notice that you want to purchase
the Equipment but you do not pay us the purchase price, you will
continue to rent the Equipment. The rent will be the fair market
rental value of the Equipment, as determined by us. You will
continue to pay us this rent until you have paid the purchase price
for the Equipment. The rent payments will not be credited to the
purchase price.
- If you do give us 60 days written notice that you want to return the
Equipment to us, but you do not return the Equipment in compliance
with the return conditions contained in the next paragraph, you will
continue to rent the Equipment. The rent will be the fair market
rental value of the Equipment, as determined by us. You will
continue to pay us this rent until you have returned the Equipment
to us in compliance with these return conditions.
- Return conditions: - You will return the Equipment, freight and
insurance prepaid by you, to us at a location we request in the
United States of America. It will be returned in good operating
condition, as required by section 6 above. The Equipment will not be
subject to any liens when it is returned.
- You will pack or crate the Equipment for shipping in the
original containers, or comparable ones. You will do this
carefully and follow all recommendations of the Supplier and
the Manufacturer as to packing or crating.
- You will also return to us the plans, specifications,
operating manuals, software documentation, discs, warranties
and other documents furnished by the Manufacturer or Supplier.
You will also return to us all service logs and service
reports, as well as all written materials that you may have
concerning the maintenance and operation of the Equipment.
- At our request, you will provide us with up to 60 days free
storage of the Equipment at your location, and upon prior
notice and during normal business hours (except in a case of
an Event of Default in which case no notice is due) you will
let us (or our agent) have access to the Equipment in order to
inspect it and sell it.
- You will pay us what it costs us to repair the Equipment if
you do not return it in the required condition.
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8. RISK OF LOSS
- You have the complete risk of loss or damage to the Equipment. Loss
or damage to the Equipment will not relieve you of your obligation
to pay rent.
- If any Equipment is lost or damaged, you have two choices (although
if you are in default under this Lease, we and not you will have the
two options). The choices are:
(1) Repair or replace the damaged or lost Equipment so that, once again,
we own Equipment in good operating condition and have clear title to
it.
(2) Pay us the present value (as of the date of payment) of the
remaining rent payments and our residual interest in the Equipment.
We will calculate the present value using a discount rate of five
(5%) percent per year. Once you have paid us this amount and any
other amount that you may owe us, you (or your insurer) may keep the
Equipment for salvage purposes, on an "AS IS, WHERE IS" basis.
9. INSURANCE
- Until you have properly returned the Equipment to us, you will keep
it insured. The amount of the insurance, the coverage, and the
insurance company must be acceptable to us.
- If you do not provide us with written evidence of insurance that is
acceptable to us, we may buy the insurance ourselves, at your
expense. You will promptly pay us the cost of this insurance. We
have no obligation to purchase any insurance. Any insurance that we
purchase will be our insurance, and not yours, and may insure the
Equipment beyond the end of the Term.
- Insurance proceeds may be used to repair or replace damaged or lost
Equipment or to pay us the present value of the rent and our
residual interest in the Equipment. (See section 8, "Risk of Loss",
above.)
- You appoint us as your "attorney-in-fact" to make claims under the
insurance policies, to receive payments under the insurance
policies, and to endorse your name on all documents, checks or
drafts relating to insurance claims for Equipment.
10. TAXES
- You will pay all sales, use, excise, stamp, documentary and ad
valorem taxes, license and registration fees, assessments, fines,
penalties and similar charges imposed on the ownership, possession,
use or lease of the Equipment.
- You will pay all taxes (other than our federal or state net income
taxes) imposed on you or on us or the rent payments.
- You will reimburse us for any of these taxes that we pay or advance.
- Unless we notify you otherwise, we will file and pay for any
personal property taxes on the Equipment. You will reimburse us for
the full amount of these taxes, without regard to early payment
discount. We may estimate the amount of these taxes in advance and
bill you periodically in advance for these taxes.
11. INDEMNITY
- You will indemnify us, defend us and hold us harmless. This applies
to any and all claims, expenses and attorney's fees concerning or
arising from the Equipment, this Lease, or any Schedule. It includes
any claims concerning the manufacture, selection, delivery,
possession, use, operation or return of the Equipment, excluding
claims arising out of our gross negligence or willful misconduct.
- This obligation of yours to indemnify us continues even after the
Term is over.
12. DEFAULT
You are in default if any of the following happens:
- You do not pay us, within five (5) days of when it is due, any rent
payment or other payment that you owe us under this Lease, any
Schedule, or any other lease, loan or other financial arrangement
that you have with us.
- Any of the financial information that you give us is not true and
complete, or you fail to tell us
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anything that would make the financial information misleading in any
material respect.
- You do something you are not permitted to do, or you fail to do
anything that is required of you, under this Lease, any Schedule or
any other lease, loan or other financial arrangement that you have
with us, which continues uncured for thirty (30) days after written
notice by us to you.
- An event of default occurs for any other lease, loan or obligation
of yours (or any guarantor) that exceeds $50,000.
- You or any guarantor file bankruptcy, or involuntary bankruptcy is
filed against you or any guarantor and is not dismissed within 60
days.
- You or any guarantor are subject to any other insolvency proceeding
other than bankruptcy (for example, a receivership action or an
assignment for benefit of creditors) and such proceeding that is
involuntary is not dismissed within 60 days.
- Without our permission, which shall not be unreasonably withheld or
delayed you sell all or a substantial part of its assets, merge or
consolidate, or a majority of your voting stock or interests (or any
guarantor's voting stock or interests) is transferred.
- There is a material adverse change in your financial condition,
business, operations or prospects, or that of any guarantor, from
the condition that you disclosed to us in your application for
credit.
13. REMEDIES, DEFAULT INTEREST, LATE FEES
If you are in default we may exercise one or more of our "remedies." Each
of our remedies is independent. We may exercise any of our remedies, all
of our remedies or none of our remedies. We may exercise them in any order
we choose. Our exercise of any remedy will not prevent us from exercising
any other remedy or be an "election of remedies." If we do not exercise a
remedy, or if we delay in exercising a remedy, this does not mean that we
are forgiving your default or that we are giving up our right to exercise
the remedy. Our remedies allow us to do one or more of the following:
- Require you to immediately pay us all rent for the entire Term for
any or all Schedules.
- Require you to immediately pay us all amounts that you are required
to pay us for the entire Term of any other leases, loans or other
financial arrangements that you have with us.
- Sue you for all rent and other amounts you owe us plus the greater
of (1) the actual residual value of the Equipment or (2) the
residual value we assumed when we leased it to you. Future rent and
residual value will be discounted to present value using a discount
rate of five (5%) percent per year.
- Require you at your expense to assemble the Equipment at a location
we request in the United States of America.
- Remove and repossess the Equipment from where it is located, without
demand or notice, or make the Equipment inoperable. We have your
permission to remove any physical obstructions to removal of the
Equipment. We may also disconnect and separate all Equipment from
other property. No court order, court hearing or "legal process"
will be required for us to repossess the Equipment. You will not be
entitled to any damages resulting from removal or repossession of
the Equipment. We may use, ship, store, repair or lease any
Equipment that we repossess. We may sell any repossessed Equipment
at private or public sale. You give us permission to show the
Equipment to buyers at your location free of charge during normal
business hours. If we do this, we do not have to remove the
Equipment from your location. If we repossess the Equipment and sell
it, we will give you credit for the net sale price, after
subtracting our costs of repossessing and selling the Equipment. If
we rent the Equipment to somebody else, we will give you credit for
the net rent received, after subtracting our costs of repossessing
and renting the Equipment, but the credit will be discounted to
present value using the discount rate that we used in calculating
your rental payment under the Schedule for the Equipment. The credit
will be applied against what you owe us under this Lease, the
Schedules and any other leases, loans or other financial
arrangements that you have with us. If the credit exceeds the amount
you owe under this Lease,
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the Schedules and any other leases, loans or other financial
arrangements that you have with us, we will refund the amount of the
excess to you.
- You will also pay us the following:
- All our expenses of enforcing our remedies. This includes all our
expenses to repossess, store, ship, repair and sell the Equipment.
- Our reasonable attorney's fees and expenses.
- Default interest on everything you owe us from the date of your
default to the date on which we are paid in full. The "default
interest rate" will be one and one-half (1.5%) percent per month. If
this interest rate exceeds the highest legal interest rate, you will
only be required to pay us default interest at the highest legal
interest rate.
You realize that the damages we could suffer as a result of your default
are very uncertain. You also realize that the value of an unexpired lease
Term is difficult or impossible to calculate. This is why we have agreed
with you in advance on the discount rates and default interest rate to be
used in calculating the payments you will owe us if you default. You agree
that, for these reasons, the payments you will owe us if you default are
"agreed" or "liquidated" damages. You understand that these payments are
not "penalties" or "forfeitures."
You will pay us a late fee whenever you pay any amount that you owe us
more than ten (10) days after it is due. You will pay the late fee within
one month after the late payment was originally due. The late fee will be
five (5%) percent of the late payment. If this exceeds the highest legal
amount we can charge you; you will only be required to pay the highest
legal amount. The late fee is intended to reimburse us for our collection
costs that are caused by late payment. It is charged in addition to all
other amounts you are required to pay us, including default interest.
14. PERFORMING YOUR OBLIGATIONS IF YOU DO NOT
If you do not perform one or more of your obligations under this Lease or
a Schedule, we may perform it for you. We will notify you in writing at
least ten (10) days before we do this. We do not have to perform any of
your obligations for you. If we do choose to perform them, you will pay us
all of our expenses to perform the obligations. You will also reimburse us
for any money that we advance to perform your obligations, together with
interest at the default interest rate on that amount. This will be
additional "rent" that you will owe us and you will pay it at the same
time that your next rent payment is due.
15. ASSIGNMENT
WE MAY ASSIGN THIS LEASE OR ANY SCHEDULE OR ANY RENT PAYMENTS WITHOUT YOUR
PERMISSION.
WE MAY GRANT A SECURITY INTEREST IN THE EQUIPMENT WITHOUT YOUR PERMISSION.
THE PERSON TO WHOM WE ASSIGN IS CALLED THE "ASSIGNEE." THE ASSIGNEE WILL
NOT HAVE ANY OF OUR OBLIGATIONS UNDER THIS LEASE. YOU WILL NOT BE ABLE TO
RAISE ANY DEFENSE, COUNTERCLAIM OR OFFSET AGAINST THE ASSIGNEE.
AFTER ASSIGNMENT YOU MAY "QUIETLY ENJOY" THE USE OF THE EQUIPMENT SO LONG
AS YOU ARE NOT IN DEFAULT.
UNLESS YOU RECEIVE OUR WRITTEN PERMISSION, YOU MAY NOT ASSIGN OR TRANSFER
YOUR RIGHTS UNDER THIS LEASE OR ANY SCHEDULE. YOU ALSO ARE NOT ALLOWED TO
SUBLET THE EQUIPMENT OR LET ANYBODY ELSE USE IT UNLESS WE GIVE YOU OUR
WRITTEN PERMISSION.
16. UNIFORM COMMERCIAL CODE DISCLAIMERS OF WARRANTIES AND WAIVERS
WE DID NOT MANUFACTURE OR SUPPLY THE EQUIPMENT. WE ARE NOT A DEALER IN THE
EQUIPMENT. INSTEAD, YOU CHOSE THE EQUIPMENT.
WE DO NOT MAKE ANY WARRANTY AS TO THE EQUIPMENT. WE DO NOT MAKE ANY
WARRANTY AS TO "MERCHANTABILITY" OR "SUITABILITY" OR "FITNESS FOR A
PARTICULAR PURPOSE" OR
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"NONINFRINGEMENT" OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY
RIGHT.
WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, OR INJURY TO YOU OR
ANYBODY ELSE AS A RESULT OF ANY DEFECTS, HIDDEN OR OTHERWISE, IN THE
EQUIPMENT UNDER "STRICT LIABILITY" LAWS OR ANY OTHER LAWS.
WE WILL NOT BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, LOSS OF PROFITS OR GOODWILL.
WE MAKE NO WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR
ACCOUNTING PURPOSES.
If the Equipment is unsatisfactory, you will continue to pay us all rent
and other amounts you are required to pay us. You must seek repair or
replacement of the Equipment solely from the Manufacturer or Supplier and
not from us. You may use our rights under any Manufacturer or Supplier
warranties on the Equipment to get it repaired or replaced. Neither the
Manufacturer nor the Supplier is our "agent," so they cannot speak for us
and they are not allowed to make any changes in this Lease or any
Schedule, or give up any of our rights.
17. UNIFORM COMMERCIAL CODE ARTICLE 2A PROVISIONS.
This Lease is a "Finance Lease" under Article 2A of the Uniform Commercial
Code. You agree that (a) we have advised you of the identity of the
Supplier, (b) you may have rights under the "supply contract" under which
we are purchasing the Equipment from the Supplier and (c) you may contact
the Supplier for a description of these rights.
YOU WAIVE ANY AND ALL OF YOUR RIGHTS AND REMEDIES UNDER ARTICLE 2A OF THE
UNIFORM COMMERCIAL CODE, INCLUDING SECTIONS 2A-508 THROUGH 2A-522 OF THE
UNIFORM COMMERCIAL CODE.
18. ACCEPTANCE BY FINOVA, GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF
PROCESS, WAIVER OF JURY TRIAL.
THIS LEASE WILL ONLY BE BINDING WHEN WE HAVE ACCEPTED IT IN WRITING.
THIS LEASE IS GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, THE STATE IN
WHICH OUR OFFICE IS LOCATED IN WHICH FINAL APPROVAL OF THE TERMS AND
CONDITIONS OF THIS LEASE OCCURRED AND FROM WHICH PAYMENT FOR THE EQUIPMENT
WILL BE ORDERED HOWEVER, IF THIS LEASE IS UNENFORCEABLE UNDER ARIZONA LAW,
IT WILL INSTEAD BE GOVERNED BY THE LAWS OF THE STATE IN WHICH THE
EQUIPMENT IS LOCATED.
YOU MAY ONLY SUE US IN A FEDERAL OR STATE COURT THAT IS LOCATED IN
MARICOPA COUNTY, ARIZONA. THIS APPLIES TO ALL LAWSUITS UNDER ALL LEGAL
THEORIES, INCLUDING CONTRACT, TORT AND STRICT LIABILITY. YOU CONSENT TO
THE PERSONAL JURISDICTION OF THESE ARIZONA COURTS. YOU WILL NOT CLAIM THAT
MARICOPA COUNTY, ARIZONA, IS AN "INCONVENIENT FORUM" OR THAT IT IS NOT A
PROPER "VENUE."
WE MAY SUE YOU IN ANY COURT THAT HAS JURISDICTION. WE MAY SERVE YOU WITH
PROCESS IN A LAWSUIT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO YOUR
ADDRESS INDICATED AFTER YOUR SIGNATURE BELOW.
YOU AND WE EACH WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A JURY TRIAL IN ANY
LAWSUIT BETWEEN YOU AND US.
19. INFORMATION SUPPLIED BY YOU AND ANY GUARANTOR
- All financial information and other information that you or any
guarantor have given us is true and complete. You or any guarantor
have not failed to tell us anything that would make the financial
information misleading. There has been no material adverse change in
your financial condition, business, operations or prospects, or the
financial condition of any guarantor, from the financial condition
that you disclosed to us in your application for credit.
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- You have supplied us with information about the Equipment. You
promise to us that the amount we are paying for the Equipment is no
more than the fair and usual price for this kind of Equipment,
taking into account any discounts, rebates and allowances that you
or any affiliate of yours may have been given for the Equipment.
- During the Term you will promptly give copies of any filings you
make with the Securities and Exchange Commission (SEC). You and any
guarantor will also provide us with the following financial
statements:
- Quarterly balance sheet and statements of earnings and cash flow -
within 45 days after the end of your first three fiscal quarters in
each fiscal year. These will be certified by your chief financial
officer and accompanied by a certificate of your chief financial
officer stating that no default exists, or, if he or she cannot
certify this because a default does exist, he or she must specify in
reasonable detail the nature of the default.
- Annual balance sheet and statements of earnings and cash flow -
within 120 days after the end of each fiscal year. These will be
audited by independent auditors acceptable to us and will be
accompanied by a certificate executed by your Chief Financial
Officer stating that you have complied with all covenants contained
in the Lease and that there are no events of default thereunder
("the Compliance Certificate"). Their audit report must be
unqualified or otherwise acceptable to FINOVA.
These financial statements will be prepared according to generally
accepted accounting principles, consistently applied.
All financial statements and SEC filings that you or any guarantor provide
us will be true and complete. They will not fail to tell us anything that
would make them misleading.
20. NOTICES
We may give you written notice in person, by mail, by overnight delivery
service, or by fax. Notice will be sent to your address below your
signature. Mail notice will be effective three (3) days after we mail it
with prepaid postage to the right address. Overnight delivery notice
requires a receipt and tracking number. Fax notice requires a receipt from
the sending machine showing that it has been sent to your fax number and
received.
You may give us notice the same way that we may give you notice.
21. GENERAL
This Lease benefits our successors and assigns. This Lease benefits only
those successors and assigns of yours that we have approved in writing.
This Lease binds your successors and assigns. This Lease binds only those
successors and assigns of ours that clearly assume our obligations in
writing.
TIME IS OF THE ESSENCE OF THIS LEASE.
This Lease and all of the Schedules is the entire agreement between you
and us concerning the Equipment.
Only an employee of FINOVA who is authorized by corporate resolution or
policy may modify or amend this Lease or any Schedule on our behalf, and
this must be in writing. Only he or she may give up any of our rights, and
this must be in writing. If more than one person is the Lessee under this
Lease, then each of you is jointly and severally liable for your
obligations under this Lease.
This Lease is only for your benefit and for our benefit, as well as our
successors and assigns. It is not intended to benefit any other person.
If any provision in this Lease is unenforceable, then that provision must
be deleted. Only unenforceable provisions are to be deleted. The rest of
the lease will remain as written.
22. YEAR 2000
You represent, warrant and agree to take all action necessary including
but not limited to due inquiry and due diligence to assure that there will
be no material adverse change to your business by reason of the advent of
the year 2000, including without limitation that all computer based
systems, embedded microchips and other processing capabilities effectively
recognize and process all dates before and after December 31, 1999 ("Y2K
Compliant"). At
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our request, you will provide to us assurance reasonably acceptable to us
that your computer-based systems, embedded microchips and other processing
capabilities are Y2K Compliant.
23. REPRESENTATIONS AND WARRANTIES
You represent and warrant to us as follows:
- You have complied with all "environmental laws" and will continue to
comply with all "environmental laws." No "hazardous substances" are
used, generated, treated, stored or disposed of by you or at your
properties except in compliance with all environmental laws.
"Environmental laws" mean all federal, state or local environmental
laws and regulations, including the following laws: CERCLA, RCRA,
Hazardous Materials Transport Act and The Federal Water Pollution
Control Act. "Hazardous substances" means all hazardous or toxic
wastes, materials or substances, as defined in the environmental
laws, as well as oil, flammable substances, asbestos that is or
could become friable, urea formaldehyde insulation, polychlorinated
biphenyls and radon gas.
24. PUBLICITY
We may make press releases and publish a tombstone announcing this
transaction and its total amount. You may not publicize this transaction
in any way without our prior written consent.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION AVANEX CORPORATION
10 Waterside Drive 42501 Albrae Street
Farmington, Connecticut 06032-3065 Fremont, CA 94538
BY /s/ LINDA A. MOSCHITTO BY: /s/ JESSY CHAO
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PRINTED NAME: LINDA A. MOSCHITTO PRINTED NAME: JESSY CHAO
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TITLE Director-Contract Administration TITLE: DIRECTOR OF FINANCE
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FAX NUMBER: (860) 676-1814 Taxpayer ID# 94-3285348
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DATE ACCEPTED: July 20, 1999 FAX NUMBER: 510-360-0689
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DATED: 7-13-99
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STATE OF
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COUNTY OF
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I acknowledge that ________________, who stated that he/she is
_________________ of the Lessee named above, signed this Master Lease Agreement
in my presence today: ________________. He/she acknowledged to me that his/her
signature on this Master Lease Agreement was authorized by a valid resolution or
other valid authorization from Lessee's board of directors or other governing
body.
See attachment
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Notary Public
[SEAL]
9
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No 5907
State of CALIFORNIA
County of ALAMEDA
On 7-13-99 before me, SHEFALI B. SHETH, NOTARY PUBLIC
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DATE NAME, TITLE OF OFFICER - E G. "JANE DOE, NOTARY PUBLIC"
personally appeared Jessy Chao
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NAME(S) OF SIGNER(S)
[ ] personally known to me - OR - [x] proved to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the
same in his authorized capacity, and that
by his signature on the instrument the
person or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
[STAMP OMITTED]
/s/ Shefali B. Sheth
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SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[ ] CORPORATE OFFICER
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---------------------------------- TITLE OR TYPE OF DOCUMENT
TITLE(S)
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL -------------------------------------
[ ] ATTORNEY-IN-FACT NUMBER OF PAGES
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER:
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DATE OF DOCUMENT
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SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
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-------------------------------------- SIGNER(S) OTHER THAN NAMED ABOVE
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(c) 1993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave. P O Box 7184 - Canoga
Park, CA 91309-7184
SECRETARY'S CERTIFICATE
I am the properly elected Secretary of Avanex Corporation, which is a
California corporation (the "Corporation"). I certify to FINOVA CAPITAL
CORPORATION that:
1. A true and correct copy of the Certificate of Incorporation of
the Corporation is attached as Exhibit A to this Certificate. The Certificate of
Incorporation has not been amended, modified or supplemented. It is still in
effect as written.
2. A true and correct copy of the By-laws of the Corporation is
attached as Exhibit B to this Certificate. The By-laws have not been amended,
modified or supplemented. These are still in effect as written.
3. The following officers of the Corporation have been properly
elected. They are still officers. Their true signatures appear below:
OFFICE NAME SIGNATURE
------ ---- ---------
President ------------------ -----------------------
Vice President ------------------ -----------------------
Secretary JUDITH O'BRIEN /s/ JUDITH O'BRIEN
----------------- -----------------------
Treasurer JESSY CHAO /s/ JESSY CHAO
----------------- -----------------------
4. The Corporation is qualified to do business everywhere this is
required. It is in good standing in each of these jurisdictions.
5. Resolutions properly adopted by the Board of Directors of the
Corporation appear below. These resolutions have not been revoked, amended,
modified or supplemented. They are still in effect as written.
"WHEREAS, the Board of Directors of the Corporation believes
it is in the best interests of the Corporation to enter into a
Master Lease Agreement with FINOVA Capital Corporation
("FINOVA");
NOW, THEREFORE, be it:
RESOLVED, that the Corporation is authorized to lease
Equipment from FINOVA, pursuant to the terms of a Master Lease
Agreement and all of its Exhibits, a copy of which has been
delivered to each of the directors (the "Lease") to be signed
and delivered by the Corporation, and be it further
RESOLVED, that the form of the Lease and all of its Exhibits
are approved; and be it further
RESOLVED, that the President or any Vice President of the
Corporation, acting alone or together with a Secretary or any
Assistant Secretary of the Corporation, are authorized and
directed
to sign and deliver and perform the Lease in the name and on
behalf of the Corporation. Any of these officers are also
authorized to sign and deliver the Exhibits and all other
documents required by FINOVA. Any of these officers are also
authorized to make any changes or add additional terms as may
appear in the final Lease and Exhibits signed by any of these
officers; and be it further
RESOLVED, that each officer of the Corporation is authorized
and directed to sign and deliver all other documents and to
take all further lawful actions to implement the previous
resolutions".
/s/ JUDITH O'BRIEN
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Secretary
Name: JUDITH O'BRIEN
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Date: 3-13-99
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