{"id":42549,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-lease-agreement-sun-microsystems-inc-and-24-7-media.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-lease-agreement-sun-microsystems-inc-and-24-7-media","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-lease-agreement-sun-microsystems-inc-and-24-7-media.html","title":{"rendered":"Master Lease Agreement &#8211; Sun Microsystems Inc. and 24\/7 Media Inc."},"content":{"rendered":"<pre>\n         SUN MICROSYSTEMS FINANCE\n         MASTER LEASE AGREEMENT\n\n         Master Lease # SL2890\n\nLessor agrees to lease to Lessee and Lessee agrees to lease from Lessor, subject\nto the following terms of this Master Lease Agreement ('Master Lease') and any\nLease Schedule ('Schedule'), collectively referred to as the Lease ('Lease'),\nthe personal property described in any Schedule together with all attachments,\nreplacements, parts, substitutions, additions, upgrades, accessories, software\nlicenses and operating manuals (the 'Product'). Each Schedule shall constitute a\nseparate, distinct, and independent Lease and contractual obligation of Lessee.\n\n1.       Commencement Date And Term\n\nThe initial lease term ('Initial Term') and Lessee's rental obligations shall\nbegin on the Commencement Date and continue for the number of Rental Periods\nspecified in the Lease as set forth in Section 2 below and shall renew\nautomatically thereafter until terminated by either party upon not less them\nninety (90) days' prior written notice. The Commencement Date with respect to\neach item of Product shall be the 16th day after date of shipment to Lessee.\n\n2.       Rent and Rental Period\n\nAll rental payments and any other amounts payable under a Lease are collectively\nreferred to as 'Rent'. The Rental Period shall mean the rental payment period of\neither calendar months, quarters, or as otherwise specified in each Schedule.\nRent for the specified Rental Period is due and payable in advance, to the\naddress specified in Lessor's invoice, on the first day of each Rental Period\nduring the Initial Term and any extension (collectively, the 'Lease Term'),\nprovided, however, that Rent for the period of time (if any) from the\nCommencement Date to the first day of the first Rental Period shall begin to\naccrue on the Commencement Date. If any Rent is not paid when due, Lessee will\npay a service fee equal to five percent (5%) of the overdue amount plus interest\nat the rate of one and one half percent (1.5%) per month or the maximum legal\ninterest rate, whichever is less.\n\n3.       Net Lease, Taxes and Fees\n\nEach Schedule shall constitute a net lease and payment of Rent shall be absolute\nand unconditional, and shall not be subject to any abatement, reduction, setoff,\ndefense, counterclaim, interruption, deferment or recoupment for any reason\nwhatsoever. Lessee agrees to pay Lessor when due shipping charges, fees,\nassessments and all taxes (municipal, state and federal) imposed upon a Lease or\nthe Product or its ownership, leasing, renting, possession or use except for\ntaxes based on Lessor's income.\n\n4.       Title\n\nProduct shall always remain personal property. Lessee shall have no right or\ninterest in the Product except as provided in this Master Lease and the\napplicable Schedule and shall hold the Product subject and subordinate to the\nrights of Lessor. Lessee agrees to execute UCC financing statements as and when\nrequested by Lessor and hereby appoints Lessor as its attorney-in-fact to\nexecute such financing statements. Lessor may file a photocopy of any Lease as a\nfinancing statement.\n\nLessee will, at its expense, keep the Product free and clear from any liens or\nencumbrances of any kind (except any caused by Lessor) and will indemnify and\nhold Lessor harmless from and against any loss or expense caused by Lessee's\nfailure to do so. Lessee shall give Lessor immediate written notice of any\nattachment or judicial process affecting the Product or Lessor's ownership. If\nrequested, Lessee will label the Product as the property of Lessor and shall\nallow, subject to Lessee's reasonable security requirements, the inspection of\nthe Product during regular business hours.\n\n5.       Use, Maintenance And Repair\n\nLessee, at its own expense, shall keep the Product in good repair, appearance\nand condition, other than normal wear and tear and shall obtain and keep in\neffect throughout the term of the Schedule a hardware and software maintenance\nagreement with the manufacturer or other party acceptable to Lessor. All parts\nfurnished in connection with such repair and maintenance shall be\nmanufacturer-authorized parts and shall immediately become components of the\nProduct and the property of Lessor. Lessee shall use the Product in compliance\nwith the manufacturer's or supplier's suggested guidelines.\n\n\n                                      - 1 -\n\n\n\n6.       Delivery And Return of Product\n\nLessee assumes the full expense of transportation, insurance, and installation\nto Lessee's site. Upon termination of each Schedule, Lessee will provide\noperating condition and is eligible for continued maintenance and that the\noperating system is at the then current level, unless under a Sun service\ncontract during the Lease Term. Lessee, at its expense, shall deinstall, pack\nand ship the Product to a U.S. location identified by Lessor. Lessee shall\nremain obligated to pay Rent on the Product until the Product and certification\nare received by Lessor.\n\n7.       Assignment And Relocation\n\nLessee may sublease or assign its rights under this agreement with Lessor's\nprior written consent, which consent shall not be unreasonably withheld,\nsubject, however, to any terms and conditions which Lessor may require. No\npermitted assignment or sublease shall relieve Lessee of any of its obligations\nhereunder.\n\nLessee acknowledges Lessor may sell and\/or assign its interest or grant a\nsecurity interest in each Lease and\/or the Product to an assignee ('Lessor's\nAssignee'), so long as Lessee is not in default hereunder. Lessor or Lessor's\nAssignee shall not interfere with Lessee's right of quiet enjoyment and use of\nthe Product. Upon the assignment of each Lease, Lessor's Assignee shall have any\nand all discretions, rights and remedies of Lessor, and all references to Lessor\nshall mean Lessor's Assignee. In no event shall any assignee of Lessor be\nobligated to perform any duty, covenant or condition under this Lease, and\nLessee agrees it shall pay such assignee without any defense, rights of set-off\nor counterclaims and shall not hold or attempt to hold such assignee liable for\nany of Lessor's obligations hereunder.\n\nLessee, at its expense, may relocate Product (after packing it for shipment in\naccordance with the manufacturer's instructions) to a different address with\nthirty (30) days' prior written notice to Lessor. The Product shall at all times\nbe used solely within the United States.\n\n8.       Upgrades And Additions\n\nLessee may affix or install any accessory, addition, upgrade, equipment or\ndevice on the Product ('Additions') provided that such Additions (i) can be\nremoved without causing material damage to the Product, (ii) do not reduce the\nvalue of the Product and (iii) are obtained from or approved by Sun Microsystems\nComputer Corporation and are not subject to the interest of any third party\nother than Lessor. Any other Additions may not be installed without Lessor's\nprior written consent. At the end of the Schedule Term, Lessee shall remove any\nAdditions which (i) were not leased by Lessor and (ii) are readily removable\nwithout causing material damage or impairment of the intended function, use, or\nvalue of the Product and restore the Product to its original configuration. Any\nAdditions which are not so removable will become the Lessor's property (lien\nfree).\n\n9.       Lease End Options\n\nUpon written notice given at least ninety (90) days prior to expiration of the\nLease Term, and provided Lessee is not in default under any Schedule, Lessee may\n(i) exercise any purchase option set forth in the Schedule, or (ii) renew the\nSchedule for a minimum extension period of twelve (12) months, or (iii) return\nthe Product to Lessor at the expiration date of the Schedule pursuant to Section\n6 above.\n\n10.      Insurance, Loss or Damage\n\nEffective upon shipment of Product to Lessee and until Product is received by\nLessor, Lessee shall provide at its expense (i) insurance against the loss or\ntheft or damage to the Product for the full replacement value, and (ii)\ninsurance against public liability and property damage. Lessee shall provide a\ncertificate of insurance that such coverage is in effect, upon request by\nLessor, naming Lessor as loss payee and\/or additional insured as may be\nrequired.\n\nLessee shall bear the entire risk of loss, theft, destruction of or damage to\nany item of Product. No loss or damage shall relieve Lessee of the obligation to\npay Rent or any other obligation under the Schedule. In the event of loss or\ndamage, Lessee shall promptly notify Lessor and shall, at Lessor's option, (i)\nplace the Product in good condition and repair, or (ii) replace the Product with\nlien-free Product of the same model, type and configuration in which case the\nrelevant Schedule shall continue in full force and effect and clear title in\nsuch Product shall automatically vest in Lessor, or (iii) pay Lessor the present\nvalue of remaining Rent plus the buyout purchase option price provided for in\nthe applicable Schedule.\n\n\n                                      - 2 -\n\n\n\n11.      Selection, Warranties And Limitation of Liability\n\nLessee acknowledges that it has selected the Product and disclaims any reliance\nupon statements made by Lessor. Lessee acknowledges and agrees that use and\npossession of the Product by Lessee shall be subject to and controlled by the\nterms of any manufacturer's or, if appropriate, supplier's warranty, and Lessee\nagrees to look solely to the manufacturer or, if appropriate, supplier with\nrespect to all mechanical, service and other claims, and the right to enforce\nall warranties made by said manufacturer are hereby assigned to Lessee for the\nterm of the Schedule.\n\nEXCEPT AS SPECIFICALLY PROVIDED HEREIN, LESSOR HAS NOT MADE AND DOES NOT MAKE\nANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER\nWHATSOEVER, INCLUDING, WITHOUT LIMITATION, NON-FRINGEMENT, THE DESIGN, QUALITY,\nCAPACITY OR CONDITION OF THE PRODUCT, ITS MERCHANTABILITY OR FITNESS FOR ANY\nPARTICULAR PURPOSE. IT BEING AGREED THAT AS THE LESSEE SELECTED BOTH THE PRODUCT\nAND THE SUPPLIER, NO DEFECT, EITHER PATENT OR LATENT SHALL RELIEVE LESSEE OF ITS\nOBLIGATION HEREUNDER. LESSEE AGREES THAT LESSOR SHALL NOT BE LIABLE FOR SPECIFIC\nPERFORMANCE OR ANY LIABILITY, LOSS, DAMAGE OR EXPENSE OF ANY KIND INCLUDING,\nWITHOUT LIMITATION, INDIRECT INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY\nNATURE, DAMAGES ARISING FROM THE LOSS OF USE OF PRODUCT, LOST DATA, LOST\nPROFITS, OR FOR ANY CLAIM OR DEMAND.\n\n12.      Indemnity\n\nLessee shall indemnify and hold harmless Lessor and Lessor's Assignee from and\nagainst any and all claims, actions, suits, proceedings, liabilities, damages,\npenalties, costs and expenses (including reasonable attorneys' fees), arising\nout of the use, operation, possession, ownership (for strict liability in tort\nonly), selection, leasing, maintenance, delivery or return of any item of\nProduct.\n\n13.      Default And Remedies\n\nLessee shall be in default of any Lease if (i) Lessee fails to pay Rent within\nten (10) days of due date; (ii) Lessee fails to perform or observe or breaches\nany covenant or condition or any representation or warranty in such Lease, and\nsuch failure or breach continues unremitted for a period of ten (10) days after\nwritten notice from Lessor; (iii) Lessee, except as expressly permitted in the\nLease, attempts to move, sell, transfer, encumber, or sublet without consent any\nitem of Product leased under such Lease; (iv) Lessee files or has filed against\nit a petition in bankruptcy or becomes insolvent or makes an assignment for the\nbenefit of creditors or consents to the appointment of a trustee or receiver or\neither shall be appointed for Lessee or for a substantial part of its property\nwithout its consent; or (v) Lessee or any guarantor of Lessee is declared\nlegally deceased or if Lessee shall terminate its existence by merger,\nconsolidation, sale of substantially all of its assets or otherwise.\n\nUpon default, Lessor may, at its option, take one or more of the following\nactions: (i) declare all sums due and to become due under the Schedule\nimmediately due and payable, (ii) require Lessee to return immediately all\nProduct leased under such Schedule to Lessor in accordance with Paragraph 6\nhereof, (iii) without breach of the peace take immediate possession of and\nremove the Product, (iv) sell any or all of the Product at public or private\nsale or otherwise dispose of, hold, use or lease to others, or (v) exercise any\nright or remedy which may be available to Lessor under applicable law, including\nthe right to recover damages for the breach of the Schedule. In addition, Lessee\nshall be liable for reasonable attorney's fees, other costs and expenses\nresulting from any default, or the exercise of Lessor's remedies, including\nplacing such Product in the condition required by Paragraph 6 hereof. Each\nremedy shall be cumulative and in addition to any other remedy otherwise\navailable to Lessor at law or in equity. No express or implied waiver of any\ndefault shall constitute a waiver of any of Lessor's other rights.\n\n14.      Lessee's Representations\n\nLessee represents and warrants for this Master Lease and each Schedule that the\nexecution, delivery and performance by Lessee have been duly authorized by all\nnecessary corporate action; the individual executing was duly authorized to do\nso; the Master Lease and each Schedule constitute valid, binding agreements of\nthe Lessee enforceable in accordance with their terms; that all\n\n                                      - 3 -\n\n\n\ninformation supplied by Lessee, including but not limited to the credit\napplication and other financial information concerning Lessee, is accurate in\nall material respects as of the date provided; and if there is any material\nchange in such information prior to manufacturer's or, if appropriate,\nsupplier's shipment of Product under the Schedule, Lessee will advise Lessor of\nsuch change in writing.\n\n15.      Applicable Law\n\nThis Master Lease and each Schedule shalt in all respects be governed by and\nconstrued in accordance with the laws of the state of California without giving\neffect to the principles of conflict of laws.\n\n16.      Miscellaneous\n\nLessee agrees to execute and deliver to Lessor such further documents,\nincluding, but not limited to, financing statements, assignments, and financial\nreports and take such further action as Lessor may reasonably request to protect\nLessor's interest in the Product.\n\nThe performance of any act or payment by Lessor shall not be deemed a waiver of\nany obligation or default on the part of Lessee. Lessor's failure to require\nstrict performance by Lessee of any of the provisions of this Master Lease shall\nnot be a waiver thereof. No rights or remedies referred to in Article 2A of the\nUniform Commercial Code will be conferred on Lessee unless expressly granted in\nthis Master Lease.\n\nThis Master Lease together with any Schedule constitutes the entire\nunderstanding between the parties and supersedes any previous representations or\nagreements whether verbal or written with respect to the use, possession and\nlease of the Product described in that Schedule. In the event of a conflict, the\nterms of the Schedule shall prevail over the Master Lease.\n\nNo amendment or change of any of the terms or conditions herein shall be binding\nupon either party unless they are made in writing and are signed by an\nauthorized representative of each party Each Schedule is non-cancellable for the\nfull term specified and each Schedule shall be binding upon, and shall inure to\nthe benefit of Lessor, Lessee, and their respective successors, legal\nrepresentatives and permitted assigns.\n\nAll agreements, representations and warranties contained herein shall be for the\nbenefit of Lessor and shall survive the execution, delivery and termination of\nthis Master Lease, any Schedule or related document.\n\nAny provision of this Master Agreement and\/or each Schedule which is\nunenforceable shall not cause any other remaining provision to be ineffective or\ninvalid. The captions set forth herein are for convenience only and shall not\ndefine or limit any of the terms hereof. Any notices or demands in connection\nwith any Schedule shall be given in writing by regular or certified mail at the\naddress indicated in the Schedule, or to any other address specified.\n\n\nTHIS MASTER LEASE SHALL BECOME EFFECTIVE\nON THE DATE ACCEPTED BY LESSOR.\n\nLESSOR:         SUN MICROSYSTEMS FINANCE\n                A Sun Microsystems, Inc. Business\n\nBy:      \/s\/ Gregg E. Gerst\n      ----------------------------------\n       (Authorized Signature)\n\nNAME:       Gregg E. Gerst\n      ----------------------------------\n\nTITLE: Manager, U.S. Leasing Programs\n      ----------------------------------\n\nDATE:\n      ----------------------------------\n\n\n\nLESSEE:    24\/7 Media, Inc.\n      ---------------------------------------------\n      (Full legal name of Lessee) (Business Entity)\n\nBY:               \/s\/ Yale R. Brown    \n      ---------------------------------------------\n               (Authorized Signature)\n\nNAME:                 Yale R. Brown\n      ---------------------------------------------\n\nTITLE:                  EVP\n      ---------------------------------------------\n\nDATE:                  5\/18\/98\n      ---------------------------------------------\n\n                                      - 4 -\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536,8968],"corporate_contracts_industries":[9503,9508],"corporate_contracts_types":[9613,9614],"class_list":["post-42549","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_companies-sun-microsystems-inc","corporate_contracts_industries-services__advertising","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__equipment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42549","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42549"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42549"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42549"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42549"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}