EXHIBIT 10.77
CONSENT TO SUBLEASE AND AGREEMENT
As of this 25th day of September 2002, K-5 Associates, LLC (the
"Landlord"), MTI Technology Corporation - (the "Tenant"), and WebCommerce Group,
LLC - (the "Subtenant") do hereby enter into this Consent to Sublease and
Agreement (this "Agreement").
RECITALS
WHEREAS, Landlord and Tenant entered into a lease (the
"Lease") dated April 26, 2000 for approximately 2635 rentable square feet of
office space in the building commonly known as the Cii Building, located in Wake
County, Raleigh, North Carolina (the "Subleased Premises");
AND WHEREAS, Tenant and Subtenant have agreed to enter into a
sublease of the Subleased Premises in the form attached hereto and incorporated
herein by reference (the "Sublease");
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord, Tenant and Subtenant agree as follows:
1. Any capitalized terms used in this Agreement that are not
defined herein shall have the meaning given such terms in the
Lease or Sublease, as applicable.
2. Landlord has reviewed and approved the provisions of the
Sublease and hereby consents to the terms and conditions
thereof.
3. Tenant shall not be released in any manner from any of its
obligations, covenants, agreements, liabilities and duties
under the Lease and any amendments thereto, including but not
limited to, Tenant's duty to pay or cause to be paid all rent
due thereunder.
4. Tenant shall pay to Landlord, as additional rent, all rents
received by Tenant from Subtenant in excess of the rent
payable by Tenant to Landlord under the Lease.
5. The Sublease is, in all respects, subject and subordinated to
the Lease. Without limiting the foregoing, no use or occupancy
of the Subleased Premises shall be permitted by Tenant or
undertaken by Subtenant which is in any way inconsistent with
the terms and provisions of the Lease. Subtenant agrees to
comply with all provisions of the Lease, including Section 10
of the Lease, entitled "Tenant's Compliance; Insurance
Requirements", and the requirement that Landlord be named as
an additional insured. Subtenant and Tenant hereby agree that
they are and will be jointly and severally liable for the
performance of the agreements, conditions, covenants and terms
of the Lease.
6. Landlord shall not be obligated to Subtenant under any of the
provisions of the Sublease.
7. Subtenant shall indemnify and hold Landlord harmless from and
against any and all claims arising out of (a) Subtenant's use
of the Subleased Premises or any part thereof; (b) any
activity, work, or other thing done, permitted or suffered by
Subtenant in or about the Subleased Premises or the building,
or any part thereof; (c) any breach or default by Subtenant in
the performance of any of its obligations under the Sublease
or this Agreement; or (d) any act or negligence of Subtenant,
or any officer, agent, employee, contractor, servant, invitee
or guest of Subtenant; and in each case from and against any
and all damages, losses, liabilities, lawsuits, costs and
expenses (including attorneys' fees at all tribunal levels)
arising in connection with any such
claim or claims as described in (a) through (d) above, or any
action brought thereon. If such action is brought against
Landlord, Subtenant upon notice from Landlord shall defend the
same through counsel selected by Subtenant's insurer or other
counsel, in each case acceptable to Landlord. Subtenant
assumes all risk of damage or loss to its property or injuries
or death to persons in, on, or about the Subleased Premises,
from all causes except those for which the law imposes
liability on Landlord regardless of any attempted waiver
thereof, and Subtenant hereby waives such claims in respect
thereof against Landlord. The provisions of this paragraph
shall survive the termination of the Sublease.
8. This Agreement shall not be deemed to constitute a consent to
any future sublease (or any future assignment) and each and
every such proposed future sublease (and any proposed future
assignment) shall require the prior written consent of
Landlord, which Landlord may not arbitrarily refuse to give.
9. The termination of the Lease by lapse of time or as otherwise
provided in the Lease shall immediately cause the Sublease to
be terminated and have no further force or effect; provided,
however, that Subtenant agrees, at the election and upon the
written demand of Landlord, to attorn to Landlord upon the
terms and conditions set forth in the Sublease for the
remainder of the term of the Sublease. The foregoing
provisions of this paragraph shall apply notwithstanding that,
as a matter of law, the Sublease may otherwise terminate upon
the termination of the Lease and shall be self-operative upon
such written demand of the Landlord, and no further instrument
shall be required to give effect to said provisions.
10. Any options provided to Tenant in the Lease shall not be
extended to or exercised by Subtenant.
11. Landlord, hereby represents and warrants to Subtenant that, as
of the date of this agreement, to Landlord's knowledge, no
defaults exist by either party under the lease, nor does there
exist any fact or circumstance which, with the passage of
time, could become a default under the Lease.
12. Landlord agrees to provide the Subtenant a copy of any notice
of default that Landlord shall provide to Tenant under the
Lease, at the same time as such notice is provided to Tenant,
at the address of the Subleased Premises, and otherwise
pursuant to Section 19 of the Lease, and, then, Subtenant
shall thereafter have the concurrent right as may be granted
to Tenant under the Lease to effect a cure of such default,
and Landlord shall accept such cure from Subtenant, provided,
however, that Subtenant shall have no obligation to effect any
cure, such action being at Subtenant's option.
13. If Landlord terminates the Lease and the Sublease because of a
default by Tenant that remains uncured by Tenant and Subtenant
beyond any applicable cure period, Subtenant shall have thirty
(30) days to vacate the Subleased Premises.
14. Subtenant and Tenant hereby agree that upon receipt of written
notice from Landlord certifying that Tenant is in default,
Subtenant shall pay directly to Landlord, rather than to
Tenant, all rent and other sums that become due and payable by
Subtenant under the Lease.
15. Subtenant agrees to deliver to Landlord copies of all notices
of default and other notices or correspondence pertaining to
non-compliance with the Sublease received by Subtenant. Tenant
agrees to deliver to Landlord copies of all notices of default
and other notices or correspondence pertaining to
non-compliance with the Sublease received by Tenant.
16. Notwithstanding anything herein or the Sublease to the
contrary, Landlord hereby consents to the provisions of the
Sublease with respect to the assignment by Tenant to Subtenant
of Tenant's privity and right to enforce the Lease (and
Landlord's obligations thereunder) against Landlord.
17. This Agreement is entered into under the laws of the State of
North Carolina and those laws shall govern the construction
and enforcement of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Consent to
Sublease and Agreement under seal as of the day and year first written above.
LANDLORD:
K-5 ASSOCIATES, LLC
By: /s/ Daniel Kadif (SEAL)
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Title: Manager
Date: October 4, 2002
ATTEST TENANT:
/s/ Mark A. Franzen MTI TECHNOLOGY CORPORATION
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Secretary
By: /s/ Mark A. Franzen
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Title: Chief Financial Officer
Corporate Seal Date: September 26, 2002
SUBTENANT
WEBCOMMERCE GROUP, LLC
By: /s/ Roger Moon (SEAL)
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Title: President & CEO
Date: September 24, 2002
SUBLEASE
This SUBLEASE dated September______, 2002, by and between MTI
Technology Corporation (the "Tenant") with its principal office at 4905 E. La
Palma Avenue, CA 92807 and Web Commerce Group, LLC (the "Subtenant") with its
principal office at 7200 Falls of the Neuse Road, Raleigh, NC 27615, Suite 100.
Subtenant subleases from Tenant the following described premises:
Approximately 2635 rentable square feet of office space in the building
commonly known as Cii Building located in Wake county, Raleigh, North Carolina
(the "Premises") (collectively, the "Lease").
TERM: Subtenant shall occupy the above described premises for a term of
Thirty-one (31) months commencing October 1, 2002 and terminating on April 31,
2005.
RENT: Subtenant covenants and agrees to pay to the Tenant rent in
accordance with the following payment schedule with each monthly rental payment
due and payable on the first day of each month in accordance with Paragraph 4 of
the Lease. Said rental payments shall commence October 1, 2002 and continue
through lease termination.
TERM MONTHLY RENT
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10/01/02-8/31/03 $1,900
9/01/03-6/30/04 $2,195
7/01/04-4/30/05 $2,635
Subtenant will pay for all approved and/or alterations to
charges when billed for approved changes to the premises. Subtenant will also
pay when billed the reasonable restoration charges for approved changes to the
premises if said restoration is performed. Subtenant will not make changes to
the space without written approval of the Tenant and the Landlord.
INSURANCE: Notwithstanding anything to the contrary contained in the
Lease, Subtenant shall maintain general public liability insurance as specified
in Section 10 ("TENANT'S COMPLIANCE-PROPERTY") of the Lease in an amount not
less than one million dollars ($1,000,000.00). Subtenant shall also insure its
personal property to such extent as it deems appropriate, and shall neither have
nor make claim against Landlord or Tenant for any loss or damage to same,
regardless of the cause thereof.
TENANT IMPROVEMENTS: Subtenant agrees to accept the Premises in "As-is"
condition in accordance with the floor plan shown on Exhibit B.
FURNITURE/PHONES: Tenant will furnish one desk and chair for each
office for Subtenant's use. All property is to be listed on an attachment as
Exhibit C and is to remain property of Tenant throughout the Sublease term and
remain property of Tenant at time of lease expiration.
SECURITY DEPOSIT: Subtenant shall provide Tenant with a security
deposit in the amount of $1,900.
This Sublease is contingent on the approval of the Landlord, K-5
Associates, LLC. If for any reason the Landlord will not allow Tenant to
sublease the aforementioned space, this Sublease in null and void.
It is understood that this is a Sublease and that all the terms and
conditions as set forth in the Lease Agreement between K-5 Associates, LLC and
MTI Technology Corporation dated April 26, 2000 are in effect and binding upon
the Subtenant and Tenant. The Lease Agreement and all referenced amendments are
attached hereto as Exhibit "A" and made a part hereof.
WITNESS/ATTEST: SUBTENANT:
/s/ Brad Corsmeier By: /s/ Roger Moon
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Its: Roger Moon
Date: September 23, 2002
WITNESS/ATTEST: TENANT:
By: /s/ Mark Franzen
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Its: Mark Franzen - CFO
Date: September 24, 2002