Steelcase Financial Service Inc.
a Steelcase Company Exhibit 10.45
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MASTER LEASE AGREEMENT Number 14965
THIS MASTER LEASE AGREEMENT is dated and effective as of OCTOBER 30, 2000, (the
"Effective Date"), by and between Steelcase Financial Services Inc., a Michigan
corporation, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (together
with any successors or assigns, the "Lessor"), and the Lessee indicated below
(the "Lessee").
LESSEE
Full Legal Name Trade Name
INTERLIANT, INC.
Mailing ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-
Type of Legal Entity State of Organization Date 0f Establishment
CORPORATION DE 1997
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor all of the tangible personal property listed on each Equipment Schedule
executed from time to time pursuant to this Agreement (each, an "Equipment
Schedule"). Each Equipment schedule shall be substantially in the form annexed
hereto as Annex A, shall incorporate by reference therein all of the terms and
conditions of this Agreement and shall include such other terms and conditions
upon which the parties have agreed (each Equipment Schedule, together with this
Agreement as it relates to such Schedule, is referred to herein as a "Lease").
With respect to each Lease, capitalized terms not defined in this Agreement
shall have the meanings stated in the applicable Equipment Schedule.
2. NET LEASE. EACH LEASE IS A NET LEASE, AND LESSEE SHALL PAY ALL COSTS AND
EXPENSES OF EVERY CHARACTER, WHETHER FORESEEN OR UNFORESEEN, ORDINARY OR
EXTRAORDINARY, IN CONNECTION WITH THE USE, POSSESSION, STORAGE, MAINTENANCE AND
REPAIR OF THE EQUIPMENT. LESSEE IS UNCONDITIONALLY OBLIGATED TO PAY PERIODIC
RENT AND ALL OTHER AMOUNTS DUE UNDER EACH LEASE REGARDLESS OF ANY DEFECT IN OR
DAMAGE TO THE EQUIPMENT, LOSS OF POSSESSION OR USE OF THE EQUIPMENT OR
DESTRUCTION OF THE EQUIPMENT FROM ANY CAUSE WHATSOEVER. LESSEE'S OBLIGATIONS
UNDER EACH LEASE SHALL CONTINUE UNTIL SPECIFICALLY TERMINATED AS PROVIDED
THEREIN. LESSEE IS NOT ENTITLED TO ANY ABATEMENT, REDUCTION, RECOUPMENT,
DEFENSE, OR SET-OFF AGAINST PERIODIC RENT OR OTHER AMOUNTS DUE TO LESSOR UNDER
EACH LEASE, WHETHER ARISING OUT OF SUCH LEASE (INCLUDING ANY BREACH, DEFAULT OR
MISREPRESENTATION OF LESSOR) OR OUT OF LESSOR'S STRICT LIABILITY OR NEGLIGENCE,
OR OTHERWISE.
3. TERM. The term of this Agreement shall commence on the Effective Date and
shall continue in effect thereafter as long as any Lease remains in effect. The
term of each Lease shall commence on the Lease Commencement Date as set forth in
a Delivery and Acceptance Certificate signed by the Lessee in substantially the
form annexed hereto as Annex B (the "Lease Commencement Date") and shall
continue thereafter for the lease term set forth in the applicable Equipment
Schedule (the "Lease Term"). Unless Lessee shall have given due notice of the
exercise of one of the options available to Lessee under Section 13 hereof or
shall have given Lessor written notice of nonrenewal at least 30 days prior to
the expiration of any Lease Term, such Lease Term shall automatically renew for
successive monthly periods until terminated by Lessee or Lessor upon at least 30
days prior written notice.
4. RENT. Lessee agrees to pay Periodic Rent in the amount specified in each
Equipment Schedule (the "Periodic Rent"). The initial Periodic Rent payment for
each Lease shall be due on the date the Equipment is accepted by Lessee and
subsequent Periodic Rent payments shall be due as specified on the applicable
Equipment Schedule. All Periodic Rent and other amounts payable under each Lease
(collectively referred to herein as "Rent") shall be paid to Lessor at the
address specified on the applicable Equipment Schedule or at such other address
as Lessor may specify thereafter in writing. If any Periodic Rent or other Rent
payment is not paid within 10 days of its due date, Lessee agrees to pay as
additional Rent a late charge equal to 5% of such unpaid Rent payment plus
1 1/2% per month of any amount due and unpaid for more than 30 days, or, if
less, the maximum amount permitted under applicable law. Periodic Rent payable
during any automatic renewal period described in Section 3 hereof shall be equal
to the highest Periodic Rent payable during the initial Lease Term.
Lessee hereby agrees that the amount of the Periodic Rent payments and
Purchase Option Price under each Lease shall be adjusted to reflect any change
in the Cost to Lessor set forth in the applicable Equipment Schedule as a result
of Equipment change orders or returns, invoicing errors or other similar events.
In the event of any such adjustment, Lessor will furnish to Lessee a written
notice stating the final Cost Lessor, Periodic Rent and Purchase Option Price.
5. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES AND AGREES THAT: (a) EACH
ITEM OF EQUIPMENT IS OF A TYPE, DESIGN, QUALITY AND MANUFACTURE SELECTED BY
LESSEE, ACCEPTABLE TO LESSEE AND SUITABLE FOR LESSEE'S PURPOSES; (b) LESSOR IS
NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR THE REPRESENTATIVE OF
EITHER; (c) LESSOR IS NOT REQUIRED TO ENFORCE ANY MANUFACTURER'S WARRANTIES ON
BEHALF OF ITSELF OR LESSEE; (d) LESSOR HAS NOT INSPECTED AND IS NOT OBLIGATED TO
INSPECT THE EQUIPMENT; (e) LESSOR LEASES THE EQUIPMENT TO LESSEE AS IS WITHOUT
WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED, AND THE LESSOR EXPRESSLY
DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, AS TO (i) THE TITLE, CONDITION,
FITNESS FOR USE FOR A PARTICULAR PURPOSE, DESIGN, COMPLIANCE WITH
----------------------------------------
SPECIFICATIONS, OPERATION OR MERCHANTABILITY THEREOF, (ii) THE ABSENCE OF LATENT
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OR OTHER DEFECTS, WHETHER OR NOT DISCERNABLE, (iii) THE ABSENCE OF INFRINGEMENT
OF ANY PATENT, TRADEMARK OR COPYRIGHT OR (iv) ANY OTHER MATTER WHATSOEVER, IT
BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN THE LESSOR AND THE LESSEE, ARE TO
BE BORNE BY THE LESSEE.
6. USE, OPERATION AND RETURN OF EQUIPMENT.
(a) Lessee agrees at its own expense to: (i) maintain the Equipment in
good appearance and condition, reasonable wear and tear excepted; and (ii) use
the Equipment in the manner for which it was intended and in compliance with all
applicable laws and manufacturer requirements and recommendations.
(b) Lessee agrees not to attach to the Equipment any accessory, equipment,
or device not leased from Lessor unless it is easily removable without
damaging the Equipment. Lessee agrees to pay all costs for parts, alterations,
and additions to the Equipment (including those required by law), all of which
immediately shall become the property of Lessor. Lessor and Lessee intend that
the Equipment shall remain personal property to Lessor.
(c) Provided that no Default, as defined herein, has occurred and is
continuing, Lessee is authorized on behalf of Lessor to enforce in its own name
(and at its own expense) any warranty, indemnity, or rights to damages relating
to the Equipment which Lessor has against the supplier of such Equipment.
Page 1 of 4
Form: SC.ML1001
Rev: August 29, 1997
Steelcase Financial Service Inc.
a Steelcase Company
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INTERLIANT, INC. 14965
(d) Not later than the expiration date of each Lease Term, Lessee agrees,
at its own expense and risk, to: (i) effect any repairs necessary to place the
applicable Equipment in the same condition as when received by Lessee,
reasonable wear and tear excepted; (ii) cause such Equipment to be disassembled
and crated in a workmanlike manner in accordance with the manufacturer's
recommendations (if any); and (iii) deliver such Equipment, freight prepaid, to
a carrier selected by Lessor for shipment to a location in the continental U.S.
selected by Lessor. "Reasonable wear and tear" does not include (i) ▇▇▇▇▇, tears
in material or large scratches, gouges, dents, discolorations or stains, (ii)
damage to drawers, runners, or locks such that they are not in good working
order or (iii) the loss of all keys for any locks.
(e) If Lessee shall, for any reason whatsoever, fail to return any
Equipment at the time required by the applicable Lease, the obligations of
Lessee as provided in such Lease shall continue in effect with respect to such
Equipment until such Equipment is returned to the Lessor, and the amount of
each Periodic Rent payment shall be equal to the highest Periodic Rent payment
during the Lease Term of such Lease. However, this Section 6(e) shall not be
construed as permitting Lessee to fail to meet its obligation to return the
Equipment in accordance with the requirements of the applicable Lease or
constitute waiver of any Default.
7. LOSS OR DAMAGE. Lessee shall bear the risk of any disappearance of, damage
to or loss of any item of Equipment from any cause whatsoever (a "Casualty
Occurrence"). Lessee shall promptly notify Lessor in writing of any Casualty
Occurrence. Upon a Casualty Occurrence: (a) if the affected Equipment is
repairable, Lessee shall, at Lessee's expense, promptly restore the Equipment to
good repair, condition and working order in accordance with the manufacturer's
recommendations and to the reasonable satisfaction of Lessor; or (b) if the
affected Equipment is an actual or constructive total loss or otherwise is not
repairable, Lessee shall pay to Lessor on or before the next Periodic Rent
Payment Date (such payment date, the "Casualty Payment Date") an amount equal to
the sum of (i) all amounts due and unpaid under the applicable Lease as of the
Casualty Payment Date (including all Periodic Rent payments in respect of such
Equipment, which shall be pro rated to the Casualty Payment Date, and any
indemnity obligations), plus (ii) the present value of all future Periodic Rent
payments for such Equipment, discounted on an annual basis at a discount rate
equal to the ask yield to maturity of the U.S. Treasury ▇▇▇▇ issue maturing in
180 days (or the issue maturing closest thereto), as published in the Wall
Street Journal for the immediately preceding Rent Payment Date (or the next
preceding business day if such date is not a business day), which Lessee agrees
is a commercially reasonable rate (the "Discount Rate") from the scheduled
payment dates to the Casualty Payment Date, plus (iii) the present value of the
greater of (x) the anticipated residual value of the affected Equipment at the
end of the relevant Lease Term, as determined by the Lessor for purposes of
calculating the relevant Periodic Rent and Purchase Option Price or (y) the then
expected fair market value of the affected Equipment at the end of the relevant
Lease Term, in each case discounted on an annual basis at the Discount Rate from
the expiration of the Lease Term to the Casualty Payment Date; provided, that if
the Purchase Option Price is a fixed amount, the value calculated pursuant to
the foregoing clause (iii) shall not exceed the present value of such fixed
Purchase Option Price, discounted on an annual basis at the Discount Rate from
the expiration date of the relevant Lease term to the Casualty Payment Date. If
Lessee is required to repair the affected Equipment pursuant to clause (a) of
the foregoing sentence, the insurance proceeds actually received by Lessor, if
any, pursuant to Section 8 hereof shall be applied first to pay any amounts then
due under this Agreement or any Lease and then shall be paid to Lessee upon
proof satisfactory to Lessor that such repair has been completed as required
herein. In the event Lessee is obligated to pay to Lessor the amounts set forth
in clause (b) of the foregoing sentence, Lessee shall be entitled to a credit
against such amounts equal to the amount of insurance proceeds actually received
by Lessor, if any, pursuant to Section 8 hereof on account of such Equipment and
upon payment in full of all amounts set forth in such clause (b), Lessor shall
assign to Lessee and Lessee's insurers, as their interests may appear, all of
Lessor's interest in such Equipment on an as is, where is basis, without
representation or warranty, express or implied, and the Lease in respect of such
Equipment shall terminate.
8. INSURANCE. Lessee agrees, at its own expense, to keep the Equipment insured
with companies acceptable to Lessor and to maintain primary coverage consisting
of (a) actual cash value all risk insurance on the Equipment, naming Lessor and
Lessee as sole loss payees, as their interests may appear, and (b) combined
limit public liability and property damage insurance of not less than $1,000,000
per occurrence (or such other amounts as Lessor reasonably may require by notice
to Lessee) naming Lessee as insured and Lessor as an additional insured. The
insurance shall provide for not less than 30 days prior written notice to Lessor
of any material change, cancellation or non-renewal of the policy. Premiums for
all such insurance shall be prepaid. Lessee shall deliver evidence of such
insurance to Lessor upon request, and shall promptly provide to Lessor all
information pertinent to any occurrence which may become the basis of a claim.
Lessee will not make claims adjustments with insurers except with Lessor's prior
written consent.
9. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
to Lessor that as of the date hereof:
(a) Lessee has adequate power and capacity to enter into this Agreement
and each Lease, any documents relating to the purchase of Equipment and any
other documents required to be delivered in connection herewith or therewith
(collectively, the "Documents"); the Documents have been duly authorized,
executed, and delivered by Lessee and constitute valid, legal, and binding
agreements, enforceable in accordance with their terms; there are no legal or
other proceedings presently pending or threatened against Lessee which may
impair its ability to perform under the Documents or affect the validity
thereof: and all information which has been supplied to Lessor is accurate and
complete.
(b) Lessee's execution of the Documents and its leasing of the Equipment
does not and will not (i) violate Lessee's organizational documents or any
judgment, order or law applicable to this Agreement or any Lease or Lessee; (ii)
violate or require consent under any agreement to which Lessee is a party or to
which Lessee's property is subject; or (iii) result in the creation of any lien,
security interest, or other encumbrance upon the Equipment except in favor of
the Lessor.
(c) All financial data of Lessee or of any consolidated group of companies
of which it is a member ("Lessee Group") delivered to Lessor have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis with prior periods and fairly present the financial position
and results of operations of Lessee, or of the Lessee Group, as of the stated
date and for the indicated periods. Since the date of the most recently
delivered financial data, there has been no material adverse change in the
financial or operating condition of the Lessee or of the Lessee Group.
(d) If Lessee is a corporation, partnership or limited liability company,
it is and will be validly existing and in good standing under the laws of the
state of its organization; the persons signing the Lease are acting with the
full authority of the board of directors, partners, members or managers, as the
case may be, and such persons hold the offices indicated below their signatures,
which are genuine.
10. COVENANTS OF LESSEE.
(a) Lessee agrees that title to each item of Equipment shall remain with
the Lessor at all times and the Lessee shall have no right, title or interest
therein except as expressly set forth in each Lease. Lessee agrees that it will
keep the Equipment free and clear from all claims, liens, and encumbrances
(except in favor of the Lessor) and will not assign, sublet, or grant a security
interest in the Equipment or in any Lease without Lessor's prior written
consent. As additional security for the performance of Lessee's obligations
hereunder and under each Lease, Lessee hereby grants to Lessor a first priority
security interest in its interest in the Equipment and any proceeds thereof.
Lessee irrevocably appoints Lessor (acting directly or through any agent) its
attorney-in-fact to execute such UCC financing Statements as Lessor shall deem
necessary or expedient to perfect or protect such security interest, and Lessee
agrees to execute and deliver, at Lessee's expense, such other or additional
documents or instruments as Lessor shall reasonably deem necessary or expedient
to perfect or protect such security interest. Lessee shall notify Lessor in
writing, with full particulars, within 10 days after it learns of the attachment
of any lien to any Equipment and of the Equipment's location.
Form: SC.ML1001
Rev: August 29, 1997 Page 2 of 4
Steelcase Financial Service Inc.
a Steelcase Company
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INTERLIANT, INC.
(b) LESSEE COVENANTS AND AGREES THAT THE EQUIPMENT WILL NOT BE USED FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, AND WILL BE USED SOLELY FOR COMMERCIAL
OR BUSINESS PURPOSES.
(c) Lessee shall not relocate any unit of Equipment from the Equipment
Location set forth in the applicable Equipment Schedule without the prior
written approval of Lessor (which shall not be unreasonably withheld). Lessee
agrees to notify Lessor immediately in writing of any change in Lessee's
corporate or business name or in the location of its chief executive office.
(d) Upon reasonable written notice to Lessee, Lessor may inspect the
Equipment during normal business hours. At Lessor's request, Lessee will attach
identifying labels to each unit of Equipment in a location reasonably suitable
for such labels and in a form approved by Lessor showing Lessor's ownership
interest therein.
(e) Lessor may assign this Agreement and/or any Lease. Lessee waives and
agrees not to assert against any assignee any defense, set off, recoupment,
claim or counterclaim which Lessee has or may at any time have against Lessor
for any reason whatsoever; provided that no such assignment shall extinguish or
impair any rights Lessee may have against Lessor.
(f) Upon Lessor's request, Lessee shall within 90 days of the close of
each fiscal year of Lessee, deliver to Lessor duplicate copies of Lessee's
balance sheet and profit and loss statement, certified by a recognized firm of
certified public accountants. Upon request, Lessee will deliver to Lessor
duplicate copies of Lessee's most recent quarterly financial report.
(g) At the request of Lessor, upon execution of this Agreement and each
Equipment Schedule pursuant hereto, Lessee shall provide Lessor with copies of
the resolutions or other actions or documents authorizing such execution,
certified by an appropriate officer of Lessee and such other documents as Lessor
may reasonably request.
(h) If more than one Lessee is named in this Lease, the liability of each
Lessee shall be joint and several.
(i) Lessee hereby agrees that any action by Lessee against Lessor for any
default under this Agreement or any Lease shall be commenced within one year
after the cause of action accrues.
(j) Lessee acknowledges that Lessee has selected the manufacturer and
supplier of the Equipment to be leased under each Lease and that: (i) Lessor has
not selected, manufactured or supplied any Equipment and will acquire Equipment
only in connection with the applicable Lease thereof, and (ii) Lessee is
entitled under Article 2A of the Uniform Commercial Code (the "UCC") to the
promises and warranties, including those of any third party, provided to Lessor
by the supplier of the Equipment in connection with or as part of the contract
by which Lessor acquires the Equipment, and Lessee is entitled to communicate
with the supplier of the Equipment and to receive an accurate and complete
statement of those promises and warranties including any disclaimers and
limitations thereof or of any remedies.
(k) To the extent permitted by applicable law, Lessee hereby waives all
rights and remedies conferred upon a lessee in respect of each Lease under
Article 2A of the UCC.
(l) Lessee acknowledges and agrees that to the extent that the Periodic
Rent under any Lease is deemed to include finance charges ("interest"), Lessee
agrees to pay all such Interest. The rate of any such deemed interest is not
intended to exceed the maximum amount of interest permitted to be charged or
collected by applicable law. If such Interest exceeds such maximum, then the
interest payable will be reduced to the legally permitted maximum amount of
interest, and any excessive interest will be used to reduce the deemed principal
amount of Lessee's obligation or refunded.
11. INDEMNIFICATION.
(a) Taxes. Lessee agrees to indemnify and hold Lessor harmless on an
after tax basis from al fees, taxes (excluding taxes on Lessor's net income),
levies, assessments or withholdings of any nature together with penalties and
interest (collectively, "Taxes") assessed against Lessor, Lessee, this
Agreement, any Lease or the Equipment, arising out of the purchase (including
purchase by Lessee), sale, ownership, delivery, leasing, possession, use,
operation, or return of the Equipment or any proceeds thereof. Lessee shall pay
Lessor on demand as additional Rent any Taxes paid by Lessor.
(b) General. Lessee agrees, whether or not any Equipment Schedules are
executed hereunder, to assume liability for, and does hereby agree to indemnify,
protect, save and keep harmless the Lessor from and against any and all
liabilities, obligations, losses, damages, penalties, claims (including claims
by any employee of the Lessee or any of its contractors), actions, suits and
related costs, expenses and disbursements, including reasonable legal fees and
expenses of whatsoever kind and nature ("Losses"), imposes on, asserted against
or incurred by Lessor, in any way relating to or arising out of (i) this
Agreement or any Lease, including the enforcement thereof or (ii) the
construction, financing, purchase, acceptance, rejection, installation,
ownership, delivery, lease, sublease, possession, use, operation, maintenance,
repair, condition, sale (including pursuant to Section 12 hereof), abandonment
or return of the Equipment (including without limitation latent and other
defects, whether or not discoverable by the Lessor or the Lessee, and any claim
for patent, trademark or copyright infringement or arising under the strict
liability doctrine in tort); provided, that Lessee shall not be obligated to
indemnify Lessor for any Losses to the extent resulting from the Lessor's
willful misconduct, gross negligence or willful breach of this Agreement or any
Lease.
12. DEFAULT.
(a) Each of the following events shall constitute a default hereunder (a
"Default") whether voluntary or involuntary, by operation of law or otherwise:
(i) Lessor has not received a Periodic Rent payment or any other Rent within 10
days after its due date; or (ii) Lessee violates any other term of this
Agreement or any Lease and fails to correct such violation within 30 days after
written notice thereof from Lessor; or (iii) Lessee or any guarantor becomes
insolvent, is liquidated or dissolved, stops doing business, or assigns its
rights or property for the benefit of creditors; or (iv) a petition is filed by
or against Lessee or any guarantor under Title 11 of the United States Code or
any successor or similar law; or (v) (for individuals) Lessee or any guarantor
dies or a guardian is appointed for such person; or (vi) Lessee (or any
affiliate) is in default under or fails to fulfill the terms of any other
agreement between Lessee and Lessor or any affiliate of either; or (vii) the
Equipment or any part thereof is abused, illegally used or misused; or (viii)
any representation or warranty made by Lessee or any guarantor herein or in any
Lease or in any statement, certificate or agreement furnished in connection
therewith shall prove to be untrue in any material respect as of the date made.
(b) At any time after a Default hereunder and during the continuance
thereof, Lessor may declare this Agreement and each Lease to be in default and
at any time thereafter the Lessor may do any one or more of the following: (i)
cancel this Agreement and/or all or part of any Lease; (ii) proceed by
appropriate action to enforce performance at Lessee's expense of the applicable
covenants and terms of the applicable Lease or to recover damages (including
reasonable attorneys' fees) for the breach thereof; (iii) demand that the
Lessee, and in such case the Lessee shall, return all or any part of the
Equipment promptly in the manner required by and in accordance with Section 6
hereof as if such Equipment were being returned at the end of the Lease Term;
(iv) enter, with or without legal process, any premises and take possession of
all or any part of the Equipment without any liability to Lessee by reason of
such entry; (v) sell, lease or otherwise dispose of all or any part of the
Equipment at a public or private sale, which may be conducted where the
Equipment is then located, with or without display of the Equipment; (vi)
declare immediately due and payable all sums due and to become due under this
Agreement and each Lease; (vii) demand that the Lessee, and in such case the
Lessee shall, pay to Lessor as liquidated damages for loss of a
Steelcase Financial Service Inc.
a Steelcase Company
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INTERLIANT, INC. 14965
bargain and not as a penalty (the "Liquidated Damages") an amount equal to the
sum of (A) all amounts due and unpaid under each Lease (including any indemnity
obligations) plus interest thereon from the due date thereof at a per annum
interest rate equal to the prime rate of interest then in effect as published in
The Wall Street Journal, plus 2 percentage points (the "Default Rate"); plus (B)
the present value of all future Periodic Rent payments for such Equipment,
discounted on an annual basis at the Discount Rate from the scheduled payment
dates; plus (C) the present value of the greater of (x) the anticipated residual
value of the affected Equipment at the end of the relevant Lease Term, as
determined by the Lessor for purposes of calculating the relevant Periodic Rent
and Purchase Option Price or (y) the then expected fair market value of the
affected Equipment at the end of the relevant Lease Term, in each case
discounted on an annual basis at the Discount Rate from the expiration date of
the relevant Lease Term, provided that, notwithstanding the foregoing, if the
Purchase Option Price is a fixed amount, the value calculated pursuant to this
clause (C) shall not exceed the present value of such fixed Purchase Option
Price, discounted on an annual basis at the Discount Rate from the expiration
date of the relevant Lease Term; plus (D) all commercially reasonable costs and
expenses incurred by Lessor in enforcing Lessor's rights hereunder or under any
Lease (including without limitation all costs of repossession, recovery,
storage, repair, sale, re-lease and reasonable attorneys' fees), together with
interest thereon at the Default Rate; or (viii) exercise any other right or
remedy which may be available to it under the UCC or any other applicable law.
The proceeds of any sale or lease will be applied in the following order of
priorities: (1) to pay all of Lessor's expenses in taking, holding, preparing
for sale or lease and disposing of Equipment, including all reasonable
attorneys' fees and legal expenses; then (2) to pay any late charges and all
interest accrued at the Default Rate; then (3) to pay accrued but unpaid
Periodic Rent payments, then (4) to pay any unpaid Rent, Liquidated Damages and
all other due but unpaid sums. Any remaining proceeds shall be paid to Lessee.
If the proceeds of any sale or lease are not enough to pay the amounts owed to
Lessor under this Section, Lessee will pay the deficiency.
(c) In case of failure by the Lessee to procure or maintain insurance, or
to pay any fees, assessments, charges or taxes arising with respect to the
Equipment, Lessor shall have the right, but shall not be obligated, to effect
such insurance or pay such fees, assessments, charges or taxes, as the case may
be, and, in that event, the cost thereof shall be payable by Lessee to Lessor
upon demand, together with interest at the Default Rate from the date of
disbursement by Lessor.
(d) Lessor's remedies for Default may be exercised instead of or in
addition to each other or any other legal or equitable remedies. Lessor has the
right to set off any sums received from any source (including insurance
proceeds) against Lessee's obligations under each Lease. Lessee waives its right
to object to the notice of the time or place of sales or lease and to the manner
and place of any advertising. Lessee waives any defense based on statutes of
limitations or laches in actions for damages. Lessor's waiver of any Default is
not a waiver of its rights with respect to a different or later Default.
13. OPTIONS.
So long as no Default has occurred and is continuing, upon the expiration
of any Lease, Lessee shall have the option (i) to purchase all but not less than
all of the Equipment leased under such Lease on an AS IS, WHERE IS basis without
representation or warranty, for a cash purchase price equal to the lesser of the
Purchase Option Price (plus applicable sales tax) stated on the applicable
Equipment Schedule or the Equipment's Fair Market Value (plus any applicable
sales taxes) determined as of the end of the applicable Lease Term; or (ii) to
extend the Lease Term of such Lease at the then Fair Market Rental of the
Equipment for an additional 24 months, or such other term as may be approved by
Lessor in its sole discretion. Lessee may exercise the foregoing options only by
giving irrevocable written notice thereof to Lessor at least 90 days before the
end of the Lease Term or, if the Lease Term has been automatically renewed for
one or more monthly periods as provided in Section 3 hereof, at least 30 days
before the end of the Lease Term. If the Lease is renewed, the Lessee's
obligations (other than the amount of the Periodic Rent payments) shall remain
unchanged. "Fair Market Value" or "Fair Market Rental" means the price or rental
which a willing buyer or lessee (who is neither a lessee in possession nor a
used equipment dealer) would pay for the Equipment in an arm's length
transaction to a willing seller or lessor who is under no compulsion to sell or
lease. In determining "Fair Market Value," the Equipment shall be assumed to
have been maintained as required by the Lease and returned in full compliance
with Section 6(d) hereof. In determining "Fair Market Rental," the Equipment
shall be assumed to have been maintained as required by the Lease and, in the
case of Equipment which requires installation, to be installed in the facility
of the prospective lessee.
14. MISCELLANEOUS.
(a) Time is of the essence of this Lease. So long as there is no Default,
Lessor shall not interfere with Lessee's quiet enjoyment of the Equipment.
(b) All required notices will be considered to have been given if sent by
registered or certified mail or overnight courier service to the Lessor or
Lessee at the address stated on the applicable Equipment Schedule, or at such
other place as such addressee may have designated in writing.
(c) Each Lease constitutes the entire agreement of the parties with
respect to the lease of the Equipment and supersedes and incorporates all prior
oral or written agreements or statements. Neither this Agreement nor any Lease
may be changed except by written agreement signed by an authorized
representative of the party against whom it is to be enforced. If any provision
of this Agreement or any Lease is declared invalid under applicable law, the
affected provision will be considered omitted or modified to conform to
applicable law. All other provisions will remain in full force and effect.
(d) All of Lessor's rights (including indemnity rights) under this
Agreement and each Lease shall survive any expiration or termination of each
Lease and this Agreement and shall be enforceable by Lessor.
(e) This Agreement and each Lease shall be deemed to be made in Michigan
and shall be governed by and construed in accordance with internal Michigan law
applicable to contracts made and performed in Michigan without regard to
conflicts of laws principles. LESSEE WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY LEASE AND LESSEE
SUBMITS TO THE JURISDICTION OF THE FEDERAL DISTRICT COURT FOR THE WESTERN
DISTRICT OF MICHIGAN OR ANY STATE COURT OF COMPETENT JURISDICTION WITHIN KENT
COUNTY, MICHIGAN AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION INSTITUTED BY
LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A
MORE CONVENIENT FORUM.
LESSOR: LESSEE:
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STEELCASE FINANCIAL SERVICES, INC. INTERLIANT, INC.
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Signature Signature
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Print or Type Name Print or Type Name
Credit Manager Vice President Finance & Treasurer
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Print or Type Title Print or Type Title
1/8/01 11/20/00
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Date Date