Exhibit 10.43
MASTER LEASE AGREEMENT
NO. 4187960
Effective Date:_________________
[LETTERHEAD OF DELL FINANCIAL SERVICES]
Lessor: DELL FINANCIAL SERVICES L.P. Lessee:INTERLIANT, INC.
Mailing Address Payment Address:
--------------- --------------- Two Manhattanville Road
PO Box 811550 XX Xxx 00000 Xxxxxxxx, XX 00000-0000
Chicago, Illinois Chicago, Illinois Fax: 0000000000
60681-1550 60693 Attention: General Counsel
Fax: Fax:
Attention: Chief Operating Attention:
Officer
This Master Lease Agreement ("this Agreement"), dated to be effective as of the
Effective Date set forth above, is between the Lessor and Lessee named above.
1. LEASE.
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Products
described in any lease schedule subject to this Agreement (each a "Schedule")
executed by Lessee end Lessor from time to time in the form attached to this
Agreement as Exhibit A. Lessor and Lessee may agree to amend this Agreement to
use a modified version of Lessee's purchase order form as an alternative form of
Schedule hereunder. The provisions of this Agreement shall govern each Schedule
and each Schedule shall constitute a separate lease of Products (a "Lease").
Except as may be specifically provided otherwise in this Agreement, in the event
of any conflict between the terms of any Schedule and the terms of this
Agreement, the terms of the Schedule shall prevail. All rights to the Products
not specifically granted to Lessee in this Agreement or in a Schedule are
reserved by Lessor.
2. ACCEPTANCE; COMMENCEMENT DATE AND TERM.
(a) Lessee may, from time to time, order Products from Seller for lease under
this Agreement. Subject to any right of return provided by the Seller, such
Products are deemed to have been irrevocably accepted under this Agreement upon
delivery to Lessee's specified delivery location ("Acceptance"). Lessor shall
prepare and send to Lessee Schedules under this Agreement specifying the lease
terms for Products ordered by Lessee. Lessee agrees to sign and return each
Schedule 5 days after Lessee receives a Schedule unless Lessee receives a
Schedule before the Acceptance Date, in which case the Schedule shall be
returned to Lessor on the later of the Acceptance Date of the Products or 5 days
after Lessee's receipt of the Schedule. If the Lessee fails to comply with the
prior sentence, Lessor may require the Lessee to purchase the Products at the
Total Product Acquisition Cost set forth on the Schedules, plus any shipping
charges, Taxes or Duties and Interest at the Overdue Rate accruing from the date
the Products are shipped through the date of payment.
Lessee and Lessor agree that a signed Schedule may be amended by written
notice from Lessor to Lessee provided such notice is (i) to correct the serial
(or service tag) number of Products and/or (ii) adjust up to 15% of the Total
Product AcquisitIon Cost and the related Rent on the Schedule caused by changes
in Lessee's order with the Seller.
(b) Each Lease shall have a primary term (the "Primary Term") for the number of
months set forth in the Schedule. The Primary Term for each Lease shall begin on
the date set forth on the Schedule as the Commencement Date (the "Commencement
Date"). The period beginning on the Acceptance Date and ending on the last day
of the Primary Term, together with any renewals or extensions thereof, is
defined as the "Lease Term". Each Lease of Products shall become effective as of
the applicable Acceptance Date and shall continue for the Lease Term and shall
be non-cancelable by Lessee.
3. RENT; PAYMENT OBLIGATION.
(a) The amount of the rental payments ("Rent"), and the payment thereof, with
respect to the Lease of any Product hereunder, shall be as provided in the
applicable Schedule. Rent shall be due and payable as stated in the relevant
Schedule starting on the Commencement Date; provided, however, that added to the
first payment of Rent shall be a prorated portion of Rent calculated based on a
30-day month, 90-day quarter or 360-day year (as appropriate) for the period
from the Acceptance Date to the Commencement Date. All Rent and other amounts
due and payable under this Agreement or any Schedule shall be paid to Lessor in
lawful funds of the United States of America at the payment address for Lessor
set forth above or at such other address as Lessor may designate from time to
time. Whenever Rent and other amounts payable under this Agreement are not paid
when due, Lessee shall pay interest on such amounts at the Overdue Rate (or the
maximum interest rate legally permissible whichever is less). Rent shall be due
and payable whether or not Lessee has received any notice that such Rent is due.
(b) EACH LEASE SHALL BE A NET LEASE, and any Rent or other amounts set forth in
this Agreement or any Schedule shall not include insurance, handling costs,
shipping or other transportation costs (except as may be specifically provided
in any Schedule); or sales, use, excise, purchase, property, added value or
other taxes, fees, levies or assessments, or (to the extent Lessor may consent
to Lessee's transfer of any Products to Persons outside the United States)
customs, duties or surcharges on imports or exports (collectively, "Taxes or
Duties"), with respect to the Products, this Agreement or any Lease, all of
which shall be paid directly by or charged to the account of Lessee. If Lessee
claims eligibility for exemption from any tax, it shall provide Lessor with a
tax exemption certificate acceptable to the relevant taxing authority prior to
Lessor's payment of such tax. Any such Tax or Duty Lessor may be required to
collect or pay (other than taxes based on the Income of Lessor) shall be paid by
Lessee and, if not specifically set forth in this Agreement or the applicable
Schedule as payable concurrently with the payment of Rent, shall be due and
payable to Lessor on demand.
(C) LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE AND TO
OTHERWISE PERFORM AS REQUIRED UNDER THIS AGREEMENT OR ANY SCHEDULE SHALL RE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT,
REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT
FOR ANY REASON WHATSOEVER WHETHER ARISING OUT OF ANY CLAIMS BY LESSEE AGAINST
LESSOR, THE SUPPLIER OR MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL LOSS OF
THE PRODUCTS OR THEIR USE OR POSSESSION, OR OTHERWISE. If any Product is
unsatisfactory for any reason, Lessee shall make its claim solely against the
Seller or Licensor of such Product and shall, nevertheless, pay Lessor or its
assignee all amounts due and payable under the Lease.
4. LICENSED MATERIALS.
This Agreement or any Schedule does not grant any right, title or Interest in or
to that portion of any Products constituting or containing Software or
Documentation or any items in the Operating System Software Kit (collectively,
"Licensed Materials"). Any rights that Lessee may have with respect to Licensed
Materials shall arise only pursuant to license agreements
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between Lessee end the licensor(s) of such Licensed Materials (collectively, the
"Licensors") which license agreements (the "Licenses") may be contained within
the packaging associated with the Products. All title to and ownership of the
Licensed Materials (together with all rights in patents, copyrights, trade
secrets and other intellectual property rights applicable thereto) are and shall
remain with the Licensors during and after the term of this Agreement. Any use
of the terms "sell," "purchase," "license," "lease," and the like in this
Agreement or any Schedule with respect to Licensed Materials shall be
interpreted in accordance with this Section 4.
5. PERFORMANCE BY LESSOR.
Lessor shall have the right to accept or reject in Lessor's sole discretion any
request by Lessee for the leasing of Products under this Agreement. Each
Schedule shall be binding upon Lessor and Lessee in accordance with the terms
contained herein. Lessor shall have no obligations with regard to any Schedule
unless Lessor receives clear and unencumbered title to the Products (excluding
Licensed Materials) either through an assignment of Lessee's rights and
interests in the Products, or otherwise, in the event Lessor has not received
such title prior to the Commencement Date of the applicable Schedule, Lessor may
terminate its obligations hereunder, and reassign all rights and obligations
with respect to the Products to Lessee without recourse or warranty. Lessee
shall thereafter promptly reimburse Lessor for all expenses and other amounts
incurred by Lessor with respect to such Products and transaction, plus interest
from the date such amounts were disbursed by Lessor through the date such
amounts are reimbursed by Lessee at the Overdue Rate .
6. USE; LOCATION; INSPECTION.
Lessee shall be solely responsible for unpacking and installing the Products.
Lessee agrees to comply with all terms and conditions of any Licenses and shall
possess and operate the Products only (i) in accordance with the Documentation
and Applicable Laws (including Intellectual property laws); and (ii) for the
Internal business purposes of Lessee and not for any other use or disposition.
Lessee agrees not to move Products from the locations set forth in the related
Schedule without providing Lessor with at least 30 days prior written notice,
and then only to a location within the United States; provided, however, Lessee
may temporarily move from such location any laptops or notebook computers
without notice to Lessor to a location within or outside the United States so
long as, while they are outside the United States, they are used in compliance
with the United States Export Control Administration Act of 1979 and the Export
Administration Act of 1985, as those Acts are amended from lime to time (or any
successor or similar legislation). Lessee shall be responsible for all costs and
expenses in connection with such relocation, including those incurred by Lessor
in the protection of its interests in the Products Provided Lessor complies with
Lessee's reasonable security requirements, Lessee shall allow Lessor to inspect
the premises where the Products are located from time to time during reasonable
hours after reasonable notice in order to confirm Lessee's compliance with its
obligations under this Agreement and shall correct any deficiencies promptly
upon notice from Lessor.
7. RETURN.
At the expiration of the Lease Term for any Product or earlier termination of
each Lease, Lessee agrees to remove all proprietary data and return to Lessor at
a place within the contiguous United States designated by Lessor, all Products
(with their Operating System Software Kits), leased to Lessee under the Lease.
Lessee agrees to package the Products for return in a manner which will protect
them from damage and pay for the cost of transporting the Products up to 500
miles from the original delivery location. If Products are not returned in the
condition required by Section 8 below, Lessee shall promptly reimburse Lessor
for all costs and expenses for missing or damaged Products. If Lessee fails to
return all of the Products at the expiration of any applicable Term, Lessee
shall promptly pay the estimated in-place fair market value for such Products as
determined by Lessor.
8. RISK OF LOSS; MAINTENANCE
Lessee assumes all risk of loss or damage to Products from the time such
Products are either (i) delivered to a carrier for shipment to Lessee if Lessee
or a third party arranges for their shipment or (ii) delivered to Lessee (if
shipment is arranged by Lessor, Deli Computer Corporation or their Affiliates)
until their return to Lessor. Lessee agrees to maintain the Products in good
operating condition and appearance (Ordinary wear and tear excepted), in
compliance with requirements necessary to enforce all Product warranty rights
and agrees to promptly repair any repairable damage. During the Lease Term,
Lessee shall ensure that each Product is covered by a maintenance agreement (if
available) from the manufacturer of such Product or another Person that is
reasonably acceptable to Lessor or, upon Lessor's prior written approval, Lessee
may self-maintain the Products in accordance with the standards set forth in
this section. If the Products are lost, stolen, destroyed, damaged beyond repair
or in the event of any condemnation, confiscation, seizure or expropriation of
such Products ("Casualty Products"), Lessee shall promptly (i) notify Lessor of
the same and (ii) pay to Lessor the Stipulated Loss Value for the Casualty
Products.
9. ALTERATIONS.
Lessee shall, at its expense, make such alterations to Products during the Lease
Term as legally required or made available to Lessee by the Seller. Lessee may
make other alterations, additions or improvements to Products provided they do
not violate any License or decrease the value or utility of Products end are
readily removable. Lessee may at its own expense, remove any such alteration,
addition or improvement at the expiration at the relevant Lease Term provided
Lessee shall restore the Products to their original configuration and repair any
resulting damage to Products. Any alteration, addition or improvement that is
not removed by Lessee as provided above shall become the property of Lessor upon
the Products' return, free and clear of all liens and encumbrances.
10. INSURANCE.
Lessee shall obtain and maintain at its own expense, from the date risk of loss
passes to Lessee hereunder until all of Lessee's obligations under the related
Lease have been performed in full, (a) insurance against loss, theft,
destruction of, or damage to the Products in an amount not less than the full
replacement value thereof, with Lessor named as a loss payee thereunder, and (b)
such public liability end property damage insurance as is customarily maintained
by prudent operators of similar businesses, with Lessor named as an additional
insured thereunder. Lessee shall, at Lessor's request, deliver certificate(s) of
such insurance to Lessor, and shall require that the carrier(s) of all such
insurance give Lessor not less than ten (10) days prior written notice of any
change to or cancellation of the related policies. If the proceeds received by
Lessor from such insurance are less than the Stipulated Loss Value for Casualty
Products, Lessee shall pay to Lessor the amount of such deficiency.
Notwithstanding anything to the contrary contained herein, Lessee may, upon
Lessor's prior written approval, self-insure in accordance with the standards
sat forth above.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE.
Lessee represents, warrants and covenants to Lessor at the time Lessee enters
into this Agreement and each Schedule that:
(a) Lessee is an entity duly organized and validly existing in good standing
under the laws of the jurisdiction of its organization and in all jurisdictions
with respect to which its ownership or its conduct of business or leasing of
property requires it to be so qualified; has full power and authority to
execute, deliver, and perform under this Agreement and each Schedule;
(b) The execution and delivery by Lessee of the Documents have been duly
authorized by all necessary corporate or other action on the part of Lessee, and
have been duly executed and delivered on Lessee's behalf by Persons duly
authorized in that regard, and constitute the legal, valid and binding
agreements of Lessee, enforceable against Lessee in accordance with their
respective terms (subject to applicable bankruptcy and other similar laws);
(c) The execution and delivery of and performance under any of the Documents to
which Lessee is a party do not and shall not result in a breach of, constitute a
default under, contravene any provision of, or result in the creation of any
lien on or in any property or assets of Lessee pursuant to any documents
pursuant to which Lessee is organized or operates, or any agreement, indenture
or other instrument to which Lessee is a party or by which Lessee or any of its
property or assets may be bound or affected;
(d) There is no action, suit or proceeding pending or, to the knowledge of
Lessee, threatened in any court or tribunal or before any competent authority
against Lessee or any of its property or assets which challenges any Documents
or any of the transactions contemplated hereunder or which may have a material
adverse effect on the financial condition or business of Lessee; and
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(e) The financial statements and other information furnished and to be furnished
to Lessor by Lessee are and shall be true and correct in all material respects.
If any Person guarantees payment or performance by Lessee of any liabilities or
obligations of Lessee under this Agreement or any Schedule (a "Guarantor"), the
preceding representations, warranties and covenants shall be deemed to be made
by Lessee on behalf of such Guarantor as well as Lessee as if such Guarantor was
named in addition to Lessee therein.
12. WARRANTY ASSIGNMENT; EXCLUSION OF WARRANTIES; LIMITATIONS OF LIABILITY;
FINANCE LEASE.
(a) Provided no Event of Default has occurred and is continuing hereunder,
Lessor assigns to Lessee the benefit of any warranty or right of return provided
by any Seller until such time as the Lease of such Product to Lessee has
terminated or expired.
(b) LESSEE ACKNOWLEDGES THAT LESSOR DID NOT SELECT, MANUFACTURE, SUPPLY OR
LICENSE ANY PRODUCT AND THAT LESSEE HAS MADE THE SELECTION OF PRODUCTS BASED
UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY
LESSOR OR ITS AGENTS. LESSEE FURTHER ACKNOWLEDGES THAT NEITHER THE SELLER NOR
LICENSOR OF THE PRODUCTS (INCLUDING THE SALESPERSONS OF ANY OF THEM) IS AN AGENT
OF LESSOR (EVEN IF AFFILIATED WITH LESSOR). NOR ARE THEY AUTHORIZED TO WAIVE OR
ALTER ANY TERMS OF THIS AGREEMENT NOR ANY LEASE. LESSOR LEASES THE PRODUCTS AS-
IS AND MAKES NO WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING ANY
WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ANY
WARRANTIES OF TITLE OR AGAINST INFRINGEMENT, OR ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE SPECIFICALLY
DISCLAIMED BY LESSOR. LESSEE HEREBY WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED
ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT MIGHT HAVE AGAINST LESSOR OR ITS
ASSIGNEE FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED BY OR WITH RESPECT TO ANY
PRODUCTS.
(c) IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SCHEDULE
OR THE SALE, LEASE OR USE OF ANY PRODUCTS INCLUDING INTERRUPTION OF SERVICE,
LOSS OF DATA, LOSS OF REVENUE OR PROFIT, LOSS OF TIME OR BUSINESS, OR ANY
SIMILAR LOSS, EVEN IF LESSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OR
CERTAINTY OF SUCH DAMAGES AND EVEN IF LESSEE ASSERTS OR ESTABLISHES A FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
(d) Lessee agrees that it is the intent of both parties that each Lease qualify
as a statutory finance lease under Article 2A of the Uniform Commercial Code.
Lessee acknowledges either (i) that Lessee has reviewed and approved any written
supply contract covering the Products purchased from the Seller thereof for
lease to Lessee or (ii) that Lessor has informed or advised Lessee, in writing,
either previously or by this Agreement, that Lessee may have rights under the
supply contract evidencing the purchase of the Products and that Lessee should
contact the Seller for a description of any such rights. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ALL RIGHTS AND REMEDIES
CONFERRED UPON A LESSEE BY ARTICLE 2A
13. EVENTS OF DEFAULT.
It shall be an event of default hereunder and under any Schedule ("Event of
Default") if:
(a) Lessee fails to pay any Rent or other amounts payable under this Agreement
or any Schedule within 15 days after its due date:
(b) Any representation or warranty made by Lessee or any Guarantor to Lessor
under, or in connection with entering into this Agreement, any Schedule or any
other Document is at the time made materially untrue or incorrect;
(c) Lessee fails to comply with any other obligation or provision of this
Agreement or any Schedule and such failure shall have continued for 30 days
after notice from Lessor;
(d) Lessee or any Guarantor becomes insolvent or bankrupt, admits in writing its
inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; or Lessee or any Guarantor applies for or consents to the
appointment of any receiver, trustee or similar officer for it or for all or any
substantial part of its property (or such receiver, trustee or similar officer
is appointed without its consent); or Lessee or any Guarantor institutes any
bankruptcy, Insolvency, reorganization, moratorium, arrangement, readjustment of
debt, dissolution, liquidation or similar proceeding relating to it under the
laws of any jurisdiction, or any such proceeding is instituted against Lessee or
any Guarantor end is not dismissed within 60 days; or any judgment, writ,
warrant or attachment or execution of similar process is issued or levied
against a substantial part of the property of Lessee or any Guarantor and
remains unsatisfied for 60 days.
(e) Lessee or any Guarantor dissolves, liquidates or otherwise terminates its
existence as an entity, or consolidates with or merges with or into any entity,
or sells, leases or otherwise disposes of all or substantially all of its
assets, or incurs a substantial amount of Indebtedness other than in the
ordinary course of its business, or engages in a leveraged buy-out or any other
form of corporate reorganization. In each case whether in a single transaction
or in a series of related transactions, UNLESS in each case and before the event
in question, either (i) Lessor, based on written confirmation from such party,
is reasonably satisfied that such party's financial condition and credit
standing shall not be impaired by the event, or (ii) such party's obligations
under this Agreement, each Schedule and any Guaranty are assumed or guaranteed
in a manner reasonably satisfactory to Lessor by an entity having in Lessor's
good faith opinion at least as good financial condition and credit standing as
those of such party immediately before the event; or
(f) Lessee or any Guarantor is in default under any other lease, contract,
agreement or obligation now existing or hereafter entered into with Lessor or
any Affiliate of Lessor whether such party is bound alone or with others.
14. REMEDIES; TERMINATION.
(a) Upon an Event of Default, Lessor may:
(i) require Lessee to return any or all Products as provided in Section
7;
(ii) without further notice, take possession of any or all Products
("Repossession") and for such purpose Lessee hereby (A) shall, if requested by
Lessor, assemble the Products and deliver them to a location designated by
Lessor and (B) grants Lessor the right to enter the premises where such
Products, are located for the purpose at Repossession;
(iii) terminate this Agreement and/or any or all Schedules;
(iv) without terminating or being deemed to have terminated this Agreement
or any Schedule, sell, lease or otherwise dispose of any or all Products (as
agent and attorney-in-fact for Lessee to the extent necessary) upon such terms
and in such manner (at public or private sale) as Lessor deems advisable in its
sole discretion ("Disposition"); or
(v) declare immediately due and payable as a pre-estimate of liquidated
damages for loss of bargain and not as a penalty, the Stipulated Loss Value of
the Products in lieu of any further Rent, in which event Lessee shall pay such
amount to Lessor within 10 days after the date of Lessor's demand.
(b) Upon termination of this Agreement or termination or expiration of any
Schedule, all right, title and interest of Lessee in or to the use of the
Products subject to the terminated Schedule(s) shall absolutely cease and Lessee
shall return any and all such Products in accordance with Lessor's instructions.
Termination or expiration of one or more of the Schedules shall not in and of
itself constitute termination of this Agreement.
(c) Lessee shall pay all costs arising or incurred by Lessor as a result of an
Event of Default by Lessee or any Guarantor, including reasonable legal fees and
expenses, and all costs related to the Repossession, transportation, re-
furbishing, storage and Disposition of any or all Products ("Default Expenses").
In the event Lessor recovers proceeds (net of Default Expenses) from its
Disposition of the Products, Lessor shall credit such proceeds against the
Stipulated Loss Value owed by Lessee under Section
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14(a)(v). Lessee shall remain liable to Lessor for any deficiency. If the
proceeds of the Disposition (net of Default Expenses) exceed the Stipulated Loss
Value, or Lessee has paid the Stipulated Loss Value, Default Expenses and any
other amounts owing, Lessee shall be entitled to such excess.
(d) All rights of Lessor are cumulative and not alternative and may be exercised
by Lessor separately or together. In addition to the rights of Lessor
specifically set forth in this Agreement or any Schedule, Lessor shall be
entitled to any other appropriate order or remedy available by contract, at law
or in equity
15. QUIET ENJOYMENT.
Lessor shall not interfere with Lessee's right to possession and quiet enjoyment
of Products during the relevant Lease Term, provided no Event of Default has
occurred or is continuing.
16. INDEMNIFICATION.
Lessee shall indemnify, defend and hold Lessor, its assignees, and their
respective officers, directors, employees, representatives and agents harmless
from and against, all claims, demands, damages, losses, liabilities, actions,
costs or expenses, including reasonable legal fees and expenses (collectively,
"Claims"), arising from or incurred in connection with this Agreement, any
Schedule, or the selection, manufacture, acquisition, possession, ownership,
use, maintenance, condition, return or operation of any Products (including
Claims for personal injury or death and for damage to property, Claims related
to patent, copyright or trademark infringement and Claims related to any
subsequent use or disposition by Lessor, Lessor's Affiliates or any of their
respective successors or assigns of any Products resulting from such Product's
containing any data or other materials of Lessee or any third party), regardless
of the form of action (including negligence, tort and strict liability). This
indemnity shall not extend to any loss caused solely by the negligence or
willful misconduct of Lessor. Lessee shall assume the defense of such Claim at
its expense and pay any amount in settlement and all costs and damages awarded
against or incurred by Lessor or any other Person Indemnified hereunder,
provided, however, that any Person indemnified hereunder shall have the right to
participate in the defense of such Claim with counsel of its choice and at its
expense and to approve any such settlement (such approval not to be unreasonably
withheld or delayed). Lessee shall keep Lessor informed at all times as to the
status of Lessee's efforts and consult with Lessor concerning its efforts.
17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS.
As between Lessor and Lessee, title to the Products (other than any Licensed
Materials) is and shall remain with Lessor. During the relevant Lease Term,
Products shall be and remain movable, personal property and Lessee agrees to
take all action necessary or reasonably requested by Lessor to ensure that
Products retain such status Lessee shall, at Lessee's expense, keep Products
free and clear of liens, security interests, attachments, seizures and
encumbrances of any kind (except those arising hereunder or solely through the
acts of Lessor) and shall immediately notify Lessor if any Person attempts to
claim ownership of, a lein against, or any other interest in, or bring any legal
process with respect to, any of the Products. Lessee shall affix if Lessor so
requires plates, labels, or other markings upon Products (other than any
Licensed Materials) indicating Lessor as the owner.
18. REMEDYING DEFAULTS.
If Lessee shall fail to perform or comply with any of Lessee's obligations
hereunder or under any Schedule, Lessor in its discretion may do all such
reasonable acts and make all such reasonable disbursements as may be necessary
to itself perform, or cause performance of or compliance with, such obligations,
without the same constituting a waiver of such obligations or creating any
obligation or liability on the part of Lessor either to remedy any other failure
to perform or comply or to take any other action whatsoever, and any
disbursements so made shall be payable by Lessee on demand, together with
interest at the Overdue Rate from the date of disbursement by Lessor to the date
of payment by Lessee.
19. NOTICES.
Except as may be specifically provided herein, all notices with respect hereto
shall be given in writing and shall be delivered (including delivery by courier,
facsimile transmittal, or similar means) or sent by mail, postage prepaid,
return receipt requested, addressed to the party for whom intended at the
address specified on the first page of this Agreement or at such other
address as the intended recipient previously shall have designated by at least
10 days written notice to the other party. Unless otherwise provided in this
Agreement, notice shall be effective on the date that it is received or (if
mailed as described above) 4 Business Days after the date of mailing.
20. ASSIGNMENT.
(a) NEITHER THIS AGREEMENT, ANY SCHEDULE, OR ANY RIGHT OR OBLIGATION HEREUNDER
OR THEREUNDER IS ASSIGNABLE IN WHOLE OR IN PART, WHETHER BY OPERATION OF LAW OR
OTHERWISE, BY LESSEE WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, NOR MAY
LESSEE ASSIGN OR SUBLET PRODUCTS WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE FEE FOR ANY
APPROVED ASSIGNMENT OR SUBLEASE BY LESSEE. ANY ATTEMPTED ASSIGNMENT OR
SUBLETTING WITHOUT LESSOR'S PRIOR WRITTEN CONSENT SHALL BE VOID AND OF NO FORCE
AND EFFECT. Upon Lessor's prior written consent, Lessee may assign or sublease a
Schedule in whole to an Affiliate subject to the following terms:
(i) Lessee shall provide to Lessor 30 days prior written notice of the location
of the Products and the Identity of the subsequent lessee thereof; and (ii) no
assignment or sublease shall in any way discharge Lessee's obligations to Lessor
under this Agreement or Schedule; and (iii) the terms and conditions of such
assignment or sublease shall be subject to Lessor's reasonable approval and be
expressly subject and subordinate to the terms of this Agreement and the
applicable Schedule. Lessee shall assign any of its rights under such sublease
or assignment to Lessor (or its assignee) as additional collateral and security
for performance of Lessee's obligations hereunder,
(b) Lessor may at any time without notice to Lessee, but subject to the rights
of Lessee hereunder, transfer, assign, or grant a security interest in any
Product, this Agreement, any Schedule, or any rights hereunder or thereunder
(including any Rent or other monies and benefits due or to become due
hereunder), in whole or in part, in such event, the assignment shall not relieve
Lessor of any of its obligations hereunder. Lessee agrees that the rights of any
such assignee will not be subject to any claims, defenses or setoffs that Lessee
may have against Lessor.
(c) This Agreement shall be binding upon and inure to the benefit of Lessor and
its successors and assigns and shall be binding upon Lessee and the heirs,
executors, administrators, successors and permitted assigns and permitted
sublessees of Lessee.
21. SURVIVAL
All of the representations, warranties, covenants and agreements of Lessee
contained in this Agreement or any Schedule shall survive the termination of
this Agreement and the expiration or earlier termination of any or all
Schedule(s) until all obligations of Lessee under this Agreement and all
Schedules have been performed in full provided, however, that the provisions of
Sections 11, 12(b), 12(c), 12(d), and 16 shall continue in full force and effect
even after all obligations of Lessee have been performed in full.
22. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL
THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED IN ALL RESPECTS BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, U.S.A. (EXCEPT
AS OTHERWISE PROVIDED IN SECTION 25(h) REGARDING THE DETERMINATION OF THE
MAXIMUM AMOUNT OF TIME PRICE BALANCE DIFFERENTIAL AND INTEREST), EXCLUSIVE OF
ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF
GOODS, THE UNIDROIT INTERNATIONAL CONVENTION ON FINANCIAL LEASING (OTTAWA, 1988)
AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. LESSEE IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN XXXX COUNTY,
ILLINOIS, AND WAIVES TO THE FULLEST EXTENT ALLOWED BY LAW ANY OBJECTION TO
VENUE IN SUCH COURT, AND FURTHER WAIVES ANY RIGHT TO A TRIAL BY JURY.
23. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the following
terms have the following respective meanings for purposes of this
Agreement:
Acceptance. Defined in Section 2(a).
----------
4 of 6
Acceptance Date. Defined as the date on which Products are deemed accepted under
---------------
Section 2(a).
Affiliate. Any Person that directly or indirectly controls, is controlled by, or
----------
is under common control with, Lessor or Lessees as the context may require.
Agreement. This Master Lease Agreement.
----------
Applicable Laws. All applicable laws, rules, regulations and orders of any
--------------
government authority with jurisdiction over a party or over its performance in
connection with this Agreement or any Schedule (including Lessee's lease or use
of Products hereunder or thereunder).
Business Day. Any day except Saturday, Sunday or a day on which banking
------------
institutions are required or authorized by law or other governmental action to
be closed in Illinois.
Casualty Products. Defined in Section 8.
-----------------
Claims. Defined in Section 16.
------
Commencement Date. Defined in Section 2(b).
-----------------
Default Expenses. Defined in Section 14(c).
----------------
Disposition. Defined in Section 14(a)(iv).
------------
Documents. Defined as this Agreement, any Schedules, Certificates of
---------
incumbency or other documents requiring execution hereunder.
Documentation. All user guides, driver installation guides, listings,
-------------
manuals, illustrations, and other written materials or publications that
accompany or constitute all or a portion of the Products or that are provided by
or on behalf of any manufacturer, supplier or Licensor of Products to Lessee
relating to the installation, operation, sale, support or other use of such
Products, and all modifications, additions, supplements, translations,
derivative works and full or partial copies of any thereof, regardless of who
prepared the same.
Event of Default. Defined in Section 13.
----------------
Guarantor. Defined in Section 11.
---------
Lease. Defined in Section 1.
-----
Lease Term. Defined in Section 2(b).
----------
Licensed Materials. Defined in Section 4.
------------------
Licenses. Defined in Section 4.
--------
Licensors. Defined in Section 4.
---------
Operating System Software Kit. All manuals (which include the end-user license
----------------------------
agreement), printed material, certificates of authenticity and media (including
CD-ROMs, DVDs and diskettes) distributed or made available by either the Seller
or Licensor in connection with the Product's operating system.
Overdue Rate. A rate equal to the lesser of 1-1/2% per month or the
------------
highest rate permitted by applicable law.
Person. Any individual, partnership, joint venture, corporation, limited
------
liability company, trust, unincorporated organization, joint stock company,
government or department or agency thereof, or other form of association or
entity.
Primary Term. Defined in Section 2(b).
------------
Products. All of the computer hardware, parts, equipment, accessories, and
--------
other products (including any Software or Documentation and the Operating System
Software Kit) that Lessor, in its sole discretion, may from time to time lease
or offer for lease to Lessee under this Agreement.
Rent. Defined in Section 3(a).
----
Repossession. Defined in SectIon 14 (a)ii).
------------
Schedule. Defined in Section 1.
--------
Software. All software or computer programs that accompany or constitute all or
--------
a portion of any Products or are provided by or on behalf of any vendor or
Licensor to Lessee with respect to any Products, and all modifications,
additions, supplements, translations, derivative works, and full or partial
copies of any thereof, regardless of who prepared the same, and code with
respect thereto, whether embodied in or contained on magnetic tape, disk,
semiconductor device, or any other device or medium.
Seller. Any supplier, manufacturer, vendor or reseller of the Products.
------
Stipulated Loss Value. With respect to any Product, an amount equal to the sum
----------------------
of(a) all Rent and other amounts then due and owing (including interest at the
Overdue Rate from the due date until payment is received) under the Lease, plus
(b) the present value of all future Rent to become due under the Lease during
the remainder of the Lease Term, plus (c) the present value of either any
end-of-term purchase Option Price for the Product specified in the relevant
Schedule or, if no such Option Price is specified in such Schedule, the
estimated in-place fair market value at the end of the Lease Term as determined
by Lessor. Each of (b) and (c) shall be calculated using the discount rate of
the Federal Reserve Bank of Chicago on the Commencement Date of the applicable
Schedule.
Taxes or Duties. Defined in Section 3 (b).
---------------
24. CONSTRUCTION.
The headings used in this Agreement are for convenience only and shall have no
legal effect. This Agreement shall be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either party.
25. MISCELLANEOUS.
(a) If more than one Person executes this Agreement or any Schedule as Lessee,
their respective liabilities hereunder or thereunder shall be both joint and
several, but Lessor shall be fully discharged in respect of any obligation
hereunder upon performance of that obligation to any one of them.
(b) Failure of Lessor at any time to require Lessee's performance of any
obligation shall not affect the right to require performance of that obligation.
No term, condition or provision of this Agreement or any Schedule shall be
waived or deemed to have been waived by Lessor unless it is in writing and
signed by a duly authorized representative of Lessor. A valid waiver is limited
to the specific situation for which it was given.
(c) Lessee shall furnish such financial statements of Lessee and any Guarantor
(prepared in accordance with generally accepted accounting principles
consistently applied) and other information as Lessor may from time to time
reasonably request. Lessee shall notify Lessor within 10 days after any material
adverse change in Lessee's or any Guarantor's financial condition.
(d) Whenever possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or the application thereof to any Person or under
any circumstances, shall be invalid or unenforceable to any extent under
applicable law, and the extent of such invalidity or unenforceability does not
destroy the basis for the bargain between the parties as expressed herein, then
(i) such provision shall be deemed severed from this Agreement with respect to
such party or such circumstance, without invalidating the remainder of this
Agreement or the application of such provision to other Persons or
circumstances, and (ii) a new provision shall be deemed substituted in lieu of
the provision so severed which new provision shall, to the extent possible,
accomplish the intent of the parties hereto as evidenced by the provision so
severed.
(e) All Lessee's obligations hereunder shall be performed or observed at
Lessee's expense.
(f) Lessee shall, upon Lessor's demand, promptly execute, acknowledge, deliver,
file, register and record any and all further documents and take any and all
other action reasonably requested by Lessor from time to time, for the purpose
of fully effectuating the intent and purposes of this Agreement or any Schedule,
and to protect the interests of Lessor, its Successors and assigns. The parties
intend for each lease to constitute a true lease of Products under the Uniform
Commercial Code and all Applicable Laws; if, however, any Lease is determined to
be other than a true lease, Lessee grants to Lessor a security interest in the
Products and all proceeds thereof.
Page 5 of 6
Lessee hereby appoints Lessor as Lessee's agent and attorney-in-fact to execute,
deliver and file in the name of Lessee (and Lessee agrees to execute if
requested) any financing statements or related filings as Lessor may reasonably
deem necessary or appropriate. In addition, Lessor may file a copy of this
Agreement or any Schedule in lieu of a financing statement
(g) Each Schedule may be executed in two manually numbered counterparts.
Counterpart number one when executed and delivered and which has the Lessor's
original signature or is in Lessor's possession shall constitute chattel paper
as that term is defined in the Uniform Commercial Code. To the extent a Schedule
constitutes chattel paper, no security interest in such Schedule may be
perfected except by the possession of the manually numbered and executed
counterpart of such Schedule. If Lessee transmits a Schedule by facsimile, the
facsimile copy as received by Lessor shall be binding on Lessee as if it were
manually signed. Lessee acknowledges that Lessor may rely on Lessee's facsimile
transmission and as such, Lessee covenants that this Agreement or any Schedule
has not been changed. Lessor shall be bound by a Schedule once it has either
purchased the Products subject to that Schedule, or manually signed the
Schedule, whichever occurs first. Lessee agrees that the facsimile version of a
Schedule manually signed by Lessor shall constitute the original Lease for all
purposes including, without limitation, (i) any hearing, trial or proceeding
with respect to such Schedule; (ii) any determination of which version of such
Schedule constitutes the single true original item of chattel paper under the
Uniform Commercial Code. Lessee agrees to deliver all Documents with Lessee's
original signature upon Lessor's request.
(h) Lessor and Lessee intend for each Lease to constitute a true lease of
Products under the Uniform Commercial Code and all applicable law. If, however,
any Lease is determined to be a lease intended as security, in no event shall
Lessee, by acceleration or prepayment of the unpaid time price balance under the
related Schedule or otherwise, be obligated to pay any time price balance
differential in excess of the maximum amount permitted by applicable law (and
for purposes of this Section the applicable law shall be the law of the state
specified in Section 22 or the law of the state where the Products are located,
whichever law permits the greater amount). Any acceleration or prepayment of the
unpaid time price balance shall be subject to all applicable law, including
rebates of unearned charges. If in any event whatsoever Lessor shall receive
anything of value under a Lease deemed interest under applicable law which would
exceed the maximum amount of interest, the excess amount shall be applied to the
reduction of the unpaid time price balance or shall be refunded to Lessee. All
sums paid or agreed to be paid by Lessee to Lessor for the use, forbearance or
detention of money shall, to the fullest extent permitted by applicable law, be
amortized, prorated and allocated and spread throughout the full term of the
applicable Schedule so that the amount of consideration constituting interest is
uniform throughout the term of such Schedule and does not exceed the maximum
permitted by applicable law. If any of the provisions of this paragraph conflict
with any provision(s) of any other paragraph of this Agreement, any Schedule, or
any provision(s) in any other agreement or course of dealing between Lessor and
Lessee, the provisions of this paragraph shall control and govern the
interpretation of this Agreement, such Schedule and any such other agreement or
course of dealing.
(i) This Agreement and the Schedules hereto between Lessor and Lessee set forth
all of the understandings and agreements between the parties and supersede and
merge all prior written or oral communications, understandings, or agreements
between the parties relating to the subject matter contained herein. This
Agreement may be amended only in writing signed by Lessor (by a duly authorized
representative) and Lessee. Lessee agrees to be bound by the terms of this
Agreement and, to the extent applicable, that the provision concerning a
separately signed document pursuant to Uniform Commercial Code Section 2A-208
has been complied with.
Executed by the undersigned on the dates set forth below, to be effective
as of the Effective Date.
DELL FINANCIAL SERVICES L.P. INTERLIANT, INC
"Lessor" "Lessee"
By: /s/ By: /s/ Xxxxxxx Xxxxxx
--------------------------------- -----------------------------
NAME: NAME: Xxxxxxx X. Xxxxxx
--------------------------------- -----------------------------
TITLE: President Dell Financial Services TITLE: Chief Financial Officer
--------------------------------- -----------------------------
DATE: 02/25/00 DATE: 01/26/00
-------------------------------- -----------------------------
Page 6 of 6
AMENDMENT NO. 1 DATED 1-26, 2000
TO THE MASTER LEASE AGREEMENT DATED 1-26, 2000
BETWEEN INTERLIANT, INC AND DELL FINANCIAL SERVICES L.P.
This Amendment is made part of and modifies the Master Lease Agreement (the
"Agreement") between Interliant, Inc ("Lessee") and Dell Financial Services L.P.
("Lessor"). Terms otherwise not defined herein shall have the meaning ascribed
to them in the Agreement. To the extent of any conflict or inconsistency between
this Amendment and the terms and conditions of the Agreement, this Amendment
will prevail.
The following Sections of the Agreement are hereby modified:
1. Section 2, "Acceptance; Commencement Date and Term".
In the fourth sentence of subsection (a), after "comply with the prior
sentence" insert "and such failure shall continue for 5 days after Notice
from Lessor".
2. Section 8, "Risk of Loss; Maintenance".
In the third sentence after, "acceptable to Lessor", delete "or, upon
Lessor's prior written approval, Lessee may self-maintain the Products in
accordance with the standards set forth in this section", and insert,
"Lessor hereby consents to Lessee self-maintenance of the Products in
accordance with the standards set forth above as long as there is no
substantial adverse change in Lessee's financial condition."
3. Section 13, "Events of Default".
In subsection (a), after "days after its due date" insert "and such failure
shall continue for 5 days after Notice from Lessor".
In subsection (f), after "is in default" insert "in any material respect
and beyond all applicable notice, grace and cure periods".
4. Section 16, "Indemnification".
In the second sentence, after "extend to any loss" insert "to the extent";
in the same sentence, after "caused", delete "solely".
5. Section 18, "Remedying Defaults"
In the first sentence, after "under any Schedule" insert "beyond applicable
notice and cure periods".
6. Section 19, "Notices"
Insert the following new second sentence, "Lessor agrees to give Notice in
addition to the Lessee address on the first page to:
Attn: Finance
0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000."
7. Section 20, "Assignment"
1
Insert the following at the end of the section, "In each instance, any approval
required shall not be unreasonably withheld or delayed".
Except as amended hereby, the Master Lease Agreement is restated and shall
remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed by each party as
of the day and year first above written.
LESSOR: LESSEE:
DELL FINANCIAL SERVICES L.P. INTERLIANT, INC
By: /s/ By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ------------------------------
Title: President Dell Financial Services Title: CFO
---------------------------------- ----------------------------
2
AMENDMENT NO. 2 DATED ________________, 2000
TO THE MASTER LEASE AGREEMENT DATED __________________, 2000
BETWEEN INTERLIANT, INC.
AND DELL FINANCIAL SERVICES L.P.
This Amendment is made part of and modifies the Master Lease Agreement (the
"Agreement") between Interliant, Inc. ("Lessee") and Dell Financial Services
L.P. ("Lessor"). Terms not defined otherwise herein shall have the meaning
ascribed to them in the Agreement. To the extent of any conflict or
inconsistency between this Amendment and the terms and conditions of the
Agreement, this Amendment will prevail.
The following section of the Agreement is hereby modified:
1. Section 1, "Lease".
Insert the following as an entirely new second paragraph:
"Schedules may be entered into hereunder by the named Lessee's majority
owned direct and indirect Affiliates organized under the laws of a
jurisdiction within the United States of America which Affiliates are
listed in attached Exhibit A hereto (which Exhibit A may be amended from
time to time by the undersigned Lessee and Lessor). Each such Affiliate
which executes a Schedule shall be considered a "Lessee" under this
Agreement and under each Lease to which it is a party. Prompt payment and
performance of all obligations of each Affiliate under each Lease are
hereby unconditionally and irrevocably guaranteed by the undersigned Lessee
to Lessor, its successors and assigns, regardless of any circumstance which
might otherwise be a defense available to, or a discharge of, the
undersigned Lessee or the Affiliate. The undersigned Lessee agrees that
this is a continuing guaranty of payment and not of collection, and that
Lessor may proceed directly against the undersigned Lessee without first
proceeding against the Affiliate or the Products. The undersigned Lessee
waives all defenses and notices, including those of protest, presentment
and demand, notice of acceptance hereof and all other notices of any kind.
The undersigned Lessee agrees that any renewal, extension or other
modification of the terms of the Lease will not release it from its
guaranty obligations hereunder. Lessor may, without affecting the
undersigned Lessee's liability hereunder, compromise or release any rights
against the Affiliate or the Products. This guaranty may be enforced by any
assignee or successor of Lessor to the same extent as Lessor itself may
enforce it.".
Except as amended hereby, the Master Lease Agreement is restated and shall
remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed by each party as
of the day and year first above written.
LESSOR: LESSEE:
DELL FINANCIAL SERVICES L.P. INTERLIANT, INC.
By:_________________________________ By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title:______________________________ Title: CFO
-------------------------
9
EXHIBIT A, LESSEE AFFILIATES
As of March 2, 2001
Knowledge Systems, Inc.
0000-X Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Resource Partner, Inc.
000 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Interliant Consulting and Professional Services
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
LESSOR: LESSEE:
DELL FINANCIAL SERVICES L.P. INTERLIANT, INC.
By:___________________________________ By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title:________________________________ Title: C.F.O.
-------------------------
AMENDMENT NO. 3 DATED DECEMBER 13, 2000
TO THE MASTER LEASE AGREEMENT DATED __________________, 2000
BETWEEN INTERLIANT, INC.
AND DELL FINANCIAL SERVICES L.P.
This Amendment is made part of and modifies the Master Lease Agreement and
all Amendments pertaining thereto (the "Agreement") between Interliant, Inc.
("Lessee") and Dell Financial Services L.P. ("Lessor"). Terms not defined
otherwise herein shall have the meaning ascribed to them in the Agreement. To
the extent of any conflict or inconsistency between this Amendment and the terms
and conditions of the Agreement, this Amendment will prevail.
The following section of the Agreement is hereby modified:
1. Section 2, "Acceptance; Commencement Date and Term".
In the fourth sentence, delete all occurrences of "5" and insert "10" in
lieu thereof.
Except as amended hereby, the Agreement is restated and shall remain in full
force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed by each party as
of the day and year first above written.
LESSOR: LESSEE:
DELL FINANCIAL SERVICES L.P. INTERLIANT, INC.
By: By:
Title: Title:
Leaseline Rider
To
Master Lease No. 4187960, dated January 26, 2000 ("the Agreement")
By and between
Interliant, Inc. ("Lessee")
and Dell Financial Services L.P. ("Lessor")
Lessor and Lessee hereby amend the Agreement to incorporate the following terms
and conditions:
Dell Quarterly Ordering Period. Defined terms not otherwise defined herein shall
have the meanings ascribed to them in the Agreement, Schedule or other lease
documents. This Rider applies to Leaseline Schedules which are those Schedules
expressly referencing this Rider or otherwise denominated as "Leaseline"
Schedules or including "LL" within as part of the Schedule number .
1.1 Definitions:
"Products" under a Leaseline Schedule shall mean types of Dell products
specified in the Leaseline Schedule
"Ordering Period" shall be the time frame during which the Lessee may order
Products for lease under a Leaseline Schedule. The time frame, the types of
Products and the applicable Base Lease Rate Factors shall be specified in the
Leaseline Schedule.
"Leaseline Schedule" shall mean a Leaseline Schedule in substantially the
form attached hereto and including the form of Schedule Summary.
"Material Adverse Change" shall mean any material adverse change in the
business, operations, assets, liabilities, financial condition, results of
operations or business prospects of the Lessee, or in the ability of the Lessee
to perform its obligations under the Lease, resulting from any act, omission,
situation, status, event or undertaking, either singly or taken together.
"Maximum Leaseline Amount" shall mean the aggregate Product Acquisition
Cost approved for financing in an Ordering Period specified in a Leaseline
Schedule.
1.2 Leaseline Schedule; Products Ordered during Ordering Period:
For leaselines that have been approved by Lessor, Lessor will prepare and
send to Lessee a Leaseline Schedule prior to the start of the Ordering Period.
The Leaseline Schedule will be reviewed and signed by an authorized
representative of Lessee. If Lessee does not return an executed Leaseline
Schedule within 15 days of delivery, the Leaseline Schedule shall be null and
void. Following Lessor's receipt of the signed Leaseline Schedule, Lessee may,
for the duration of the Ordering Period, order Products from Dell of the type
set forth in the Leaseline Schedule up to the amount to the Maximum Leaseline
Amount set forth in the Leaseline Schedule. Notwithstanding the foregoing, in
the event Lessor determines that a Material Adverse Change has occurred, Lessee
may not order additional Products under the Leaseline Schedule during the
Ordering Period.
1.3 Acceptance of Products:
Products ordered pursuant to a properly executed Leaseline Schedule shall
be accepted pursuant to the terms of the Agreement. Daily Rent shall accrue with
respect to each Product during the Acquisition Period from the Acceptance Date
of the Product.
1.4 Leaseline Schedule Summary:
For a quarterly Ordering Periods, Lessor shall, as an administrative
convenience for Lessee, send monthly summaries to Lessee which may be sent by
facsimile, e-mail or overnight mail and shall include the following: (A) a
description of all Products shipped by Dell to Lessee during the month; (B) the
Product service tag number; and (C) the applicable monthly Rent for such
Products under the Schedule. During the last month of a quarterly Ordering
Period, Lessor shall send to Lessee Schedule summary (the "Schedule Summary")
which incorporates all terms and conditions of the Leaseline Schedule. Each
Schedule Summary shall incorporate the information contained in the monthly
summaries and also include Products ordered during the last month of the
Ordering Period. Promptly upon receipt of a Schedule Summary Lessee shall review
the Schedule Summary. Within the later of (i) the last Acceptance Date for the
Products; or (ii) three (3) Business Days of its receipt of a Schedule Summary,
Lessee agrees to (A) sign and return the applicable Schedule Summary or (B) in
the event Lessee has a bona fide objection to the information in the Schedule
Summary, contact Lessor promptly (in no event later than three (3) Business Days
of receipt of the Schedule Summary) by telephone or e-mail specifying the
information that Lessee has determined is incorrect in the Schedule Summary,
provided, however, Lessee agrees that if Dell's records show that the Products
on the Schedule Summary were shipped to Lessee within the Ordering Period, such
shall be conclusive proof and such Products shall be deemed accepted for lease
under the Leaseline schedule and correct in the Schedule Summary. Lessee
appoints Lessor as its attorney-in-fact to execute each Schedule Summary on its
behalf in the event Lessee fails to comply with the prior sentence, and Lessee
shall be bound to all of the terms and conditions thereof. Such appointment
shall be evidenced in a form separate from this Rider and is prepared for
Lessee's benefit and at its request and direction. The power of attorney is
revocable by Lessee upon 30 prior days written notice. If Lessee revokes such
power of attorney, Lessor may immediately revoke Lessee's right to order
Products from Dell under a Leaseline Schedule. Lessee's payment of Rent with
respect to a Schedule Summary shall serve as ratification of a Schedule Summary
executed by Lessor as attorney-in-fact (although, Lessee's failure to pay such
Rent shall not serve as a rejection of such Schedule Summary). Any claim by
Lessee that Lessor's use of the power of attorney is invalid, shall be asserted
by Lessee solely and exclusively against Lessor and Lessee shall not assert any
defense, counterclaim or offset against any assignee of Lessor.
1.5 Rent:
All Base Lease Rate Factors set forth in a Leaseline Schedule assume that
all Products will be accepted under the Schedule within the Ordering Period. If
Lessee does not accept the Products in accordance with the terms contained in
the Agreement and Section 1.4 above, Lessor may, at its sole discretion, extend
the Commencement Date or place the Products on a subsequent Leaseline Schedule
(without affecting other terms contained herein or in the Agreement). The Base
Lease Rate Factors are subject to adjustment by Lessor at the beginning of each
calendar month during the Ordering Period for Products ordered during that month
based on Lessor's determination of changes in like term U.S. Treasury Constant
Yield Maturity rates.
The first Rent payment for Products leased under a Leaseline Schedule shall
consist of the sum of the following: (1) the first monthly Rent payment and (2)
Daily Rent (calculated for each Product as 1/90 of the total Rent listed on the
Summaries multiplied by the number of days from the Acceptance Date to, but
excluding, the first Rent Payment due date.
1.6 End of Lease Options:
Provided that no Event of Default has occurred and is continuing, Lessee
shall have the following options for all, but not less than all of the Products
upon expiration of the Primary Term (the "Expiration Date"):
(A) Purchase the Products for $1.00; or
(B) Upon at least 90 days but no more than 180 days prior written notice.
(i) purchase the Products at the Option Price (as defined
below);
(ii) renew the Lease Term for a minimum of six (6) months at a
rate and for a term agreed upon by both parties; or
(iii) return the Products in accordance with the Agreement.
The Leaseline Schedule shall specify the applicable option. If neither
Option is selected in the Leaseline Schedule, Option B shall govern. If Option A
is selected, upon the later of: (x) expiration of the Primary Term; or (y)
payment in full of all amounts due (including taxes and any late charges), title
to the Products shall pass to Lessee, on an AS IS, WHERE IS basis, WITHOUT
WARRANTY OR RECOURSE, EXPRESS, IMPLIED OR OTHERWISE, BY OR AGAINST LESSOR,
INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR AGAINST INFRINGEMENT. If Option (B)(i) is selected, the Option Price
shall be a fair market value mutually agreed by Lessor and Lessee and upon
payment in full of the Option Price and all amounts due (including any taxes and
late charges), title to the Products shall pass to Lessee as described above. If
Lessee desires to renew the Lease Term, Lessee and Lessor shall enter into a
supplement to the applicable Leaseline Schedule to set forth the length of the
renewal Lease Term, agreed upon amount of Rent and all other terms of the
Schedule and the Agreement shall remain in full force and effect.
If Lessee does nor return or purchase the Products, or renew the Lease, the
Lease, the term of the Lease shall automatically be extended on a month-to-month
basis, at the Rent in effect on the Expiration Date (prorated on a monthly basis
if the Payment Period during the Primary Term was other than monthly), and shall
continue until terminated by Lessee upon at least thirty (30) days prior written
notice to Lessor on the first day of a Payment Period. Payments of Rent during
month-to-month status are due and payable monthly in advance, on the same day of
each month as the Commencement Date.
1.7 Miscellaneous Leaseline Provisions:
All references to "Schedule" in the Agreement shall include Leaseline
Schedules. If there are any conflicts or contradictory terms and conditions
among a Leaseline Schedule, this Rider and the Agreement, then the terms of the
Leaseline Schedule shall supersede those of this Rider, and this Rider shall
supersede the terms and conditions of the Agreement.
All other terms and conditions of the Agreement shall remain the same.
INTERLIANT, INC. DELL FINANCIAL SERVICES L.P.
(Lessee) (Lessor)
By: /s/ Xxxxx Xxxxxx By:
-------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxxx, SVP-Finance
-------------------------- --------------------------------
(Name/Title) (Name/Title)
3/7/01
-------------------------- --------------------------------
(Date) (Date)
[DELL LOGO]
Financial Services
Form of
LEASELINE SCHEDULE
[LESSEE LEGAL NAME]
MASTER LEASE AGREEMENT SCHEDULE NO. ________LL
COUNTERPART NO.__ OF 2 COUNTERPARTS. POSSESSION AND TRANSFER OF COUNTERPART NO.
1 OF THIS SCHEDULE IS THE ONLY EFFECTIVE MEANS TO TRANSFER OWNERSHIP OF OR
CREATE A SECURITY IN THIS SCHEDULE.
THIS SCHEDULE IS SUBJECT TO THE TERMS AND CONDITIONS OF MASTER LEASE AGREEMENT
NO. _______ DATED _______, 200_ and the Leaseline Rider thereto (collectively
the "Agreement") BETWEEN DELL FINANCIAL SERVICES L.P. ("Lessor") AND
________________ ("LESSEE").
________________________________________________________________________________
Lessor hereby agrees to lease Lessee subject to the terms, conditions and
provisions set forth in this Schedule and in the Agreement, the Products ordered
by Lessee and set forth in the Summary Schedule. Any capitalized term used
herein and not defined shall have the meaning ascribed to it in the Agreement.
________________________________________________________________________________
PRODUCT SELLER: Dell Computer Corporation or one of its Affiliates ("Dell"),
Xxx Xxxx Xxx, Xxxxx Xxxx, XX 00000
PRODUCT: Products under this Schedule shall mean the Dell Products of the types
specified below which Lessee orders and Dell ships to Lessee Dell for lease
under this Schedule and the Agreement during the Ordering Period which are
within the Aggregate Amount of Total Product Acquisition Cos. A detailed
description, including Product Acquisition Cost, description, quantity and
location, Rent and Interim Rent shall be set forth in the Schedule Summary, a
form of which is attached hereto and is considered an integral part of this
Schedule.
ORDERING PERIOD: _____, 200_ to __________, 200_
MAXIMUM LEASELINE AMOUNT (during the Ordering Period): $
PRIMARY TERM: 24 MONTHS
PRIMARY TERM COMMENCEMENT DATE: ________, 200_
BASE LEASE RATE FACTORS: Dell Desktops: ________________
Dell Notebooks: _______________
Dell Servers: _________________
Miscellaneous Products, Software License Fees and
Services: _____________________
The Base Lease Rate Factors may be adjusted at the beginning of each calendar
month during the Ordering Period for Products ordered during that month based
on Lessor's determination of (1) any material adverse change in Lessee's
financial condition and/ or (2) changes in U.S. Treasury Constant Yield Maturity
rates.
RENT: During the Primary Term, Monthly Rent for the Products is payable in
advance and shall be calculated by multiplying the Lease Rate Factor with the
amount the Total Product Acquisition Cost. Rent shall be due and payable
beginning on the Commencement Date. The first payment of Rent shall include: (i)
Monthly Rent amount for the first month; and (ii) a pro-rated portion of Rent
calculated based on a 90 day quarter for the period from the Acceptance Date of
each Product to the Primary Term Commencement Date.
MASTER LEASE AGREEMENT SCHEDULE NO ___________LL
(continued)
--------------------------------------------------------------------------------
END OF LEASE OPTIONS:
[_] Option A
purchase the Products for $1.00
[_] Option B
(i) purchase all but not less than all of the Products at the Option
Price;
(ii) renew the Lease Term for a minimum of six (6) months at a rate and for
a term agreed upon by both parties; or
(iii) return all but not less than all of the Products in accordance with
the Agreement.
SCHEDULE SUMMARIES: Lessor shall send a Schedule Summary substantially in the
same form as the form attached hereto during the last month of the Ordering
Period. Lessee hereby agrees that it shall promptly review the Schedule
Summary and will sign and return the Schedule Summary to Lessor within 3
Business Days of receipt. If Lessee does not duly sign and return the Schedule
Summary to Lessor within 3 Business Days, Lessor shall sign the Schedule
Summary as the attorney-in-fact.
By signing below, each of the parties hereto agrees to be bound by the terms
of the Agreement and this Schedule.
--------------------------------------------------------------------------------
[LESSEE LEGAL NAME] DELL FINANCIAL SERVICES L.P.
(lessee) (Lessor)
By: By:
(Authorized Signature) (Authorized Signature)
(Name/Title) (Name/Title)
(Date) (Date)
-------------------------------------------------------------------------------
SCHEDULE SUMMARY
MASTER LEASE AGREEMENT SCHEDULE NO. _________LL
THIS SCHEDULE SUMMARY IS SUBJECT TO THE TERMS AND CONDITIONS LEASELINE SCHEDULE
NO. _________ BETWEEN DELL FINANCIAL SERVICES L.P. ("Lessor") AND _____________
("Lessee").
--------------------------------------------------------------------------------
Product Description Tag number Ship Date Monthly Rent
--------------------------------------------------------------------------------
________________________________________________________________________________
________________________________________________________________________________
[LESSEE LEGAL NAME] DELL FINANCIAL SERVICES L.P.
(Lessee)
or
DELL FINANCIAL SERVICES L.P.
ATTORNEY-IN-FACT FOR [LESSEE LEGAL NAME]
By: By:
(Authorized Signature) (Authorized Signature)
(Name/Title) (Name/Title)
(Date) (Date)
