Exhibit 10.47
ORIGINAL
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ No. 12586
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EMC/2/
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT, (hereinafter called the "Master Agreement") is
entered into by and between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Massachusetts corporation
(hereinafter called "Lessor"), having its principal place of business at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and Interliant, Inc. (hereinafter called
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"Lessee"), having a principal place of business at Two Manhattanville Road,
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇--▇▇▇▇.
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I. THE LEASE
1.1 Lease of Equipment. In accordance with the terms and conditions of this
Master Agreement, Lessor agrees to lease to Lessee, and Lessee agrees
to lease from Lessor, the units of personal property (hereinafter
individually called a "Unit" and collectively called "Equipment")
described in supplement(s) which are executed pursuant to and
incorporate the terms of this Master Agreement (each hereinafter, a
"Supplement"). Each Supplement shall constitute a separate, distinct,
and independent lease and contractual obligation of Lessee. The term
"Lease" as used hereinafter shall refer to an individual Supplement
which incorporates the terms of this Master Agreement. Lessor or its
assignee shall retain the full legal title to the Equipment, it being
expressly agreed by both parties that this Master Agreement and each
Lease shall constitute an agreement of lease only. Each Lease shall be
binding upon Lessor and Lessee from the date of acceptance and
execution of the applicable Supplement, by Lessor at its headquarters.
1.2 Term of Lease. The original term of lease for each Unit (hereinafter
the "Original Term") shall commence on the date specified in the
applicable Supplement and, subject to Section 2.5 below, shall
terminate as specified in such Supplement. No Lease may be canceled by
Lessee for any reason whatsoever.
1.3 Disclaimers; Warranties. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR
MAKES NO EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO
LESSEE'S USE OR OPERATION OF THE EQUIPMENT. LESSOR EXPRESSLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE FOR THE EQUIPMENT OR OTHER PRODUCTS, DOCUMENTATION AND SERVICES
PROVIDED HEREIN. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
ASSOCIATED WITH THE EQUIPMENT OR THE LEASE THEREOF EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
1.4 Rental Payments. Lessee shall pay rental to Lessor for the Unit(s) in
the amounts and on the dates specified in the applicable Supplement. If
any rental or other amount due hereunder is not paid within five (5)
days of the due date thereof, Lessee shall pay to Lessor on demand, as
additional rental, interest thereon from the due date until payment at
a rate equal to the lesser of (i) eighteen (18%) per annum, or (ii) the
maximum rate permitted by law. All rental and other amounts payable by
Lessee to Lessor hereunder shall be paid to Lessor at the address
specified above, or at such other place as Lessor may designate in
writing to Lessee. Time is of the essence with respect to all of
Lessee's obligations under any Lease.
1.5 Return of Equipment. Upon expiration of the Original Term, Lessee will
immediately return the Equipment to Lessor as provided in Section 2.3
below. Should Lessee not return the Equipment at the end of the
Original Term, the Equipment shall continue to be held and leased
hereunder, and the Lease shall thereupon be extended for successive
three (3) month terms, at the same monthly rental, subject to the right
of either Lessee or the Lessor to terminate the Lease upon ninety (90)
days written notice, whereupon the Lessee shall forthwith deliver the
Equipment to the Lessor. If Lessee fails to return the Equipment upon
demand therefor by Lessor, Lessee shall pay Lessor, as the reasonable
measure of Lessor's damages, the value, at replacement cost, of the
Equipment so converted.
II. COVENANTS OF LESSEE
2.1 Payment of Rental and other Monies. Each lease is a net lease and
Lessee acknowledges and agrees that Lessee's obligation to pay all
rental and other sums payable hereunder, and the rights of Lessor in
and to such payments, shall be absolute and unconditional and shall not
be subject to any abatement, reduction, setoff, counterclaim or other
defense for any reason whatsoever. It being the intent of Lessor, and
an inducement to Lessor, to enter into the Lease, to claim all
available tax benefits of ownership with respect to the Equipment,
Lessee acknowledges and agrees that (i) no right, title or interest in
the Equipment has been or is intended to be passed to Lessee, other
than the right to maintain possession and use of the Equipment for the
Original Term, conditioned on Lessee's performance of the terms and
conditions of the Lease, (ii) Lessee has not taken and will not at any
time during the Original Term take any action which shall cause Lessor
to lose any tax benefits of ownership, and (iii) the Stipulated Loss
Values (defined in the applicable Lease) agreed to under this Lease are
intended to provide recovery by Lessor of such lost tax benefits of
ownership.
2.1.1 Acceptance of Equipment. Lessee's acceptance of the Equipment shall be
conclusively and irrevocably evidenced by Lessee executing the
Certificate of Delivery and Acceptance and upon acceptance the Lease
of such Equipment shall be noncancellable for the Original Term unless
otherwise agreed to in writing by Lessor.
2.2 Use of Equipment. Lessee shall use the Equipment solely in the conduct
of its business, in a manner and for the use contemplated by the
manufacturer thereof, and in compliance with all laws, rules and
regulations of every governmental authority having jurisdiction over
the Equipment and with the provisions of all policies of insurance
carried by Lessee pursuant to Section 2.6 below; provided, however,
Lessee shall have the right to allow third parties, under Lessee's
supervision, to use the Equipment, so long as Lessee shall retain
uninterrupted possession and control of the Equipment. Lessee shall pay
all costs, expenses, fees and charges incurred in connection with the
use and operation of the Equipment.
2.3 Delivery, Installation, Maintenance and Repair. Lessee shall be solely
responsible, at its own expense, for the delivery of the Equipment to
Lessee, the packing, rigging and delivery of the Equipment back to
Lessor upon expiration of the Original Term in good repair, condition,
and working order, ordinary wear and tear excepted, at the location(s)
within the continental United States specified by Lessor. Lessee is
also solely responsible for the installation, de-installation,
maintenance and repair of the Equipment. Lessee shall, at its expense,
(a) keep the Equipment in good repair, condition and working order,
ordinary wear and tear excepted, and (b) at the expiration of the
Original Term or any renewal term have the Equipment inspected and
certified as acceptable for maintenance service by the manufacturer.
Lessor shall be entitled to inspect the Equipment at Lessee's location
at reasonable times.
2.4 Taxes. Lessee agrees to pay, and to indemnify and hold Lessor harmless
from, all license fees, assessments, and sales, use, property, excise
and other taxes and charges ("Imposts")(other than those measured by
Lessor's net income) now or hereafter imposed by any governmental body
or agency upon or with respect to (a) the Equipment or the possession,
ownership, use or operation thereof or (b) this Master Agreement, any
Lease, or the consummation of the transactions herein contemplated. All
required personal property tax returns relating to the Equipment shall
be filed by Lessee unless otherwise provided in writing. Lessee shall
reimburse Lessor promptly upon demand for the amount of any Imposts
remitted by Lessor which are required hereunder to be borne by Lessee.
2.5 Loss of Equipment. Lessee shall bear the entire risk of the Equipment
being lost, destroyed or otherwise rendered permanently unfit or
unavailable for use from any cause whatsoever (hereinafter called an
"Event of Loss") after its delivery to Lessee. If an Event of Loss
shall occur with respect to any Unit, Lessee shall promptly and fully
notify Lessor thereof. On the rental payment date following such notice
Lessee shall pay to Lessor an amount equal to the rental payment or
payments due and payable for such Unit on such date plus a sum equal to
the Stipulated Loss Value (as defined in the applicable Supplement) of
such Unit as of the date of such payment set forth in such Supplement.
Upon the making of such payment by Lessee regarding any Unit, the
rental obligation for such Unit shall cease, the Lease as to such Unit
shall terminate and (except in the case of loss, theft or complete
destruction) Lessor shall be entitled to recover possession of such
Unit at Lessee's expense in accordance with the provisions of Section
2.3 above. Provided that Lessor has received the Stipulated Loss Value
for any Unit, Lessee shall be entitled to the proceeds of any recovery
in respect of such Unit from insurance or otherwise.
2.6 Insurance. Lessee shall obtain and maintain for the entire term of the
Lease, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including, without
limitation, loss by fire (including so-called extended coverage), theft
and such other risks of loss as are required on the type of Equipment
leased hereunder and by businesses in which Lessee is engaged in such
amounts in such form and with such insurers as shall be satisfactory to
Lessor, provided however, that such insurance for loss or damage of any
Unit shall always be at a minimum, the amount of the Stipulated Loss
Value of such Unit. Each insurance policy will name Lessee as insured
and Lessor as an additional insured and loss payee thereof as Lessor's
interests may appear and shall provide that it may not be canceled or
altered without at least 30 days prior written notice to Lessor or its
successors and assigns. Lessee shall provide to Lessor a certificate of
insurance as evidence of insurance coverage prior to delivery of any
Unit.
2.7 Indemnity. Lessee shall and does hereby indemnify Lessor and its
successors and assigns against, and hold Lessor and its successors and
assigns harmless from, any and all claims, demands, actions and suits,
proceedings, costs, expenses, damages and liabilities, including
reasonable attorneys' fees, hereinafter ("Claims"), arising out of,
connected with or resulting from this Master Agreement, any Lease, or
the Equipment, including, without limitation, the selection, ownership,
control, maintenance, lease, purchase, delivery, possession, condition,
use, operation, or return of the Equipment. Lessee shall give Lessor
immediate notice of any Claim and Lessee shall satisfy, pay and
discharge any and all judgments and fines that may be recovered against
Lessor in connection with any such Claim. Lessor shall give Lessee
written notice of any such Claim of which Lessor has knowledge.
2.8 Possession; Assignment; Pledge. Without the prior written consent of
Lessor, which such consent as it pertains to subsections (a) and (d),
shall not be unreasonably withheld or delayed, Lessee shall not (a)
sublease the Equipment, or any part thereof, provided, that Lessee may,
without the prior written consent of Lessor, permit any parent or
subsidiary of Lessee to use the Equipment, or any part thereof, in the
ordinary course of its business, (b) assign, this Master Agreement or
any Lease or its interest hereunder or thereafter, (c) create or incur
any lien or encumbrance with respect to the Equipment, or any part
thereof, (d) move the Equipment, or any part thereof, or permit any of
the Equipment to be moved from the location at which it is first
installed, or (e) permit the Equipment, or any part thereof, to be
removed outside the continental limits of the United States.
2.9 Identification. At any time during the term of a Lease, Lessor may
require Lessee to legibly ▇▇▇▇ each Unit subject to such Lease in a
reasonably prominent location with a label, disc or other marking
stating that the Equipment is owned by Lessor.
2.10 Alterations or Modifications. Lessee shall not make any alternations of
or additions to the Equipment without the prior written consent of
Lessor. At any time during the Original Term, of any Lease there may be
added to such Lease additional Units of the same type as are rented
thereunder for a term equal to the remaining Original Term and, subject
to the terms and conditions hereof, at the rental rates applicable to
such Equipment and term in effect at the time the order is placed,
provided that the order is in writing and accepted by Lessor. Such
acceptance shall be at the sole discretion of Lessor. All additions,
attachments or accessories to or improvements of the Equipment shall
immediately belong to and become property of the Lessor unless, at the
request of Lessor, such additions, attachments or accessories to or
improvements of the Equipment are removed prior to the return of said
Equipment by Lessee. Lessee shall be responsible for the costs of such
removal and shall restore the Equipment to the same operating condition
as when it became subject to the Lease.
2.11 Equipment to be Personal Property. Lessee agrees that the Equipment
shall be and remain personal property notwithstanding the manner in
which it may be attached or affixed to realty, and Lessee shall do all
acts and enter into all agreements necessary to ensure that the
Equipment remains personal property.
2.12 Financial Statements. Lessee shall promptly furnish, or cause to be
furnished, to Lessor such financial or other statements respecting the
condition and operations of Lessee or respecting the Equipment as Lessor
may from time to time reasonably request.
2.13 Lessee Representations. Lessee hereby represents, warrants and covenants
that with respect to this Master Agreement and each Lease entered into
hereunder:
(a) The execution, delivery and performance thereof by the Lessee have
been duly authorized by all necessary corporate action;
(b) The individual executing such was duly authorized to do so;
(c) This Master Agreement and each Lease constitute the legal, valid
and binding obligations of the Lessee enforceable in accordance
with their respective terms.
III. DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any of the following shall
constitute an Event of Default hereunder: (a) Lessee shall fail to pay
on the due date any rental or other payment due under any lease, (b) any
provision of this Master Agreement or any Lease or any provision in any
document provided by Lessee for this Master Agreement or any Lease, or
in any document furnished pursuant to the provisions hereof or
otherwise, shall prove to have been false or misleading in any material
respect as of the date when it was made, (c) Lessee shall fail to
perform any provision, covenant, condition or agreement made by it under
this Master Agreement or Lease, and such failure shall continue for ten
(10) days after notice thereof from Lessor to Lessee or (d) bankruptcy,
receivership, insolvency, reorganization, dissolution, liquidation, or
other similar proceedings shall be instituted by or against Lessee or
all or any part of its property under the Federal Bankruptcy Code or
other law of the United States or of any state law, and if against
Lessee it shall consent thereto or shall fail to cause the same to be
discharged within twenty (20) days, or (e) Lessee shall default under
any agreement with respect to the purchase or installation of the
Equipment, or (f) if Lessee or any guarantor of Lessee's obligations
hereunder shall default under any other agreement with Lessor.
3.2 Remedies. If an Event of Default hereunder shall occur and be
continuing, Lessor may exercise any one or more of the following
remedies: (a) immediately terminate this Master Agreement and any or all
Leases and Lessee's rights hereunder and thereunder, (b) proceed, by
appropriate court action or actions either at law or in equity, to
enforce performance by Lessee of the applicable covenants of the Lease
or to recover damages for the breach thereof, (c) by notice in writing
to Lessee, recover all amounts due on or before the date of the event of
default, plus, as liquidated damages for loss of a bargain and not as a
penalty, accelerate, and declare to be immediately due and payable all
rentals and other sums payable under any or all such Leases, without any
presentment, demand, protest or further notice (all of which hereby are
expressly waived by Lessee), whereupon the same shall be and become
immediately due and payable, and (d) personally, or by its agents take
immediate possession of the Equipment, or any part thereof, from Lessee
and for such purpose, enter upon Lessee's premises where any of the
Equipment is located with or without notice or process of law and free
from all claims by Lessee. The exercise of any of the foregoing remedies
by Lessor shall not constitute a termination of any Lease unless Lessor
so notifies Lessee in writing.
3.3 Disposition of Equipment. In the event Lessor repossesses Equipment,
Lessor may (a) lease the Equipment, or any portion thereof, in such a
manner, for such time and upon such term(s) as Lessor may determine or
(b) sell the Equipment, or any portion thereof, at one or more public or
private sales, in such manner, and at such times and upon such terms as
Lessor may determine. In the event that Lessor leases any such Units,
any rentals received by Lessor for the Remaining Lease Term(s) (the
period ending on the date when the Original Term for the Unit(s) would
have expired if an Event of Default had not occurred) for such Units
shall be applied to the payment of (i) all costs and expenses (including
attorneys' fees) incurred by Lessor in retaking possession of, and
removing, storing, repairing, refurbishing and leasing such Units, and
(ii) the rentals for the remainder of the Original Term and all other
sums, including past due rentals, remaining unpaid under the Lease. The
balance of such rentals, if any, shall be applied first to reimburse
Lessee for any sums previously paid by Lessee as liquidated damages, and
any remaining amounts shall be retained by Lessor. All rentals received
by Lessor for the period commencing after the expiration of the
Remaining Lease Term(s) shall be retained by Lessor. Lessee shall remain
liable to Lessor to the extent that the aggregate amount of the sums
referred to in clauses (i) and (ii) above shall exceed the aggregate
rentals received by Lessor under such leases for the respective
Remaining Lease Term(s) applicable to the Units covered by such leases.
In the event that Lessor shall sell or otherwise dispose of (other than
pursuant to a lease) any such Unit, the proceeds thereof shall be
applied to the payment of (i) all costs and expenses (including
reasonable attorneys' fees) incurred by Lessor in retaking possession
of, and removing, storing, repairing, refurbishing and selling or
otherwise disposing of such Unit(s), (ii) the rentals that either did or
would have accrued under the Lease but are unpaid up to the time of such
sale or other disposition, (iii) any and all other sums (other than
rentals) then owing to Lessor by Lessee under, and (iv) the Stipulated
Loss Value of such Unit(s) determined as of the date of such sales or
other disposition in accordance with the schedule set forth in the Lease
for such Unit(s). The balance of such proceeds, if any, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages, and any remaining amounts shall be retained by
Lessor. Lessee shall remain liable to Lessor to the extent that the
aggregate amount of the sums referred to in clauses (i) through (iv)
above shall exceed the aggregate proceeds received by Lessor in
connection with the sale or disposition of the Equipment (other than
pursuant to a lease).
IV. MISCELLANEOUS
4.1 Performance of Lessee's Obligations. Upon Lessee's failure to pay any
sum or perform any obligation hereunder when due, Lessor shall have the
option, but shall in no case be obligated, to pay such sum or perform
such obligation, whereupon such sum or the cost of such performance
shall immediately become due and payable as additional rent from Lessee
to Lessor with interest at the highest legal rate from the date payment
or performance was due.
4.2 Assignment. No right, obligation or interest of Lessee with respect to
this Master Agreement, any Lease or Equipment shall, without the prior
written consent of Lessor, be assignable by Lessee or by operation of
law, and any such purported assignment, transfer or succession shall be
null and void. Lessor may, at anytime, without the consent of Lessee,
assign the Master Agreement and any Lease or any interest herein or
therein to any party. In the event of any assignment of Lessor, the
assignee shall have all of Lessor's rights hereunder, but none of its
obligations, and upon receipt by Lessee of written notice of any such
assignment, Lessee shall make all payments thereafter becoming due under
any assigned Lease to such assignee without regard to any set-off,
defense or counter claim that Lessee may have against Lessor.
4.3 Quiet Enjoyment. So long as Lessee shall not be in default hereunder and
Lessor continues to receive all rent and other sums payable by Lessee
hereunder in accordance with the terms hereof, neither Lessor nor its
assignee, shall interfere with Lessee's right of quiet enjoyment and use
of the Equipment.
4.4 Further Assurances. Lessee agrees that at any time, and from time to
time, after the execution and delivery of this Lease, it shall, upon the
request of Lessor, execute and deliver such further documents and do
such further acts and things as Lessor may reasonably request in order
fully to effect the purposes of this Lease including without limitation,
the filing of financial and confirmation statements. Lessee authorizes
Lessor to file a financing statement or any confirmation statements
signed only by Lessor in accordance with the Uniform Commercial Code or
signed by Lessor as Lessee's attorney in fact.
4.5 Rights, Remedies, Powers. Each and every right, remedy and power granted
to Lessor hereunder shall be cumulative and in addition to any other
right, remedy or power herein specifically granted or now or hereafter
existing in equity, at law, by virtue of statute or otherwise, and may
be exercised by Lessor from time to time concurrently or independently
and as often and in such order as Lessor may deem expedient. And any
failure or delay on the part of Lessor in exercising any such right,
remedy or power, or abandonment or discontinuance of steps to enforce
the same, shall not operate as a waiver thereof or affect Lessor's right
thereafter to exercise the same, and any single or partial exercise of
any such right, remedy or power shall not preclude any other or further
exercise thereof or the exercise of any other right, remedy or power.
4.6 Notices. Any notice, request, demand, consent, approval or other
communication provided or permitted hereunder shall be in writing and
shall be conclusively deemed to have been received by a party hereto on
the day it is delivered to such party at its address set forth above (or
at such other address as such party shall specify to the other party in
writing), or if sent by registered or certified mail, return receipt
requested, on the third business day after the day on which mailed,
addressed to such party at such address.
4.7 Section Headings. Section headings are inserted for convenience only and
shall not affect any construction or interpretation of any Lease.
4.8 Binding Effect. Each Lease, subject to the provisions of Sections 2.8
and 4.3 hereof, shall be binding upon and shall inure to the benefit of
the respective successors and assigns of the Lessee and Lessor.
4.9 Governing law. Each Lease shall be governed in all respects by the laws
of the Commonwealth of Massachusetts.
4.10 Entire lease. Each Lease, consisting of the terms and conditions of this
Master Agreement, a Supplement, and any Amendments, Schedules or Riders
to either of them, constitutes the entire agreement between Lessor and
lessee. No waiver, consent, modification or change of terms of this
Lease shall bind either party unless in writing signed by both parties,
and then such waiver, consent, modification or change shall be effective
only, in the specific instance and for the specific purpose given. There
are no understandings, agreements, representations or warranties,
express or implied, not specified therein regarding any Lease or the
Equipment leased thereunder. Any terms and conditions of any purchase
order or other document (with the exception of Supplements) submitted by
Lessee in connection with any Lease which are in addition to or
inconsistent with the terms and conditions of such Lease will not be
binding on Lessor and will not apply to the Lease. LESSEE BY THE
SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT IT
HAS READ THIS MASTER AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND
BY ITS TERMS AND CONDITIONS WITH RESPECT TO ANY LEASE ENTERED INTO
HEREUNDER.
See Amendment No. 1 attached hereto and made a part hereof.
LEASE ACCEPTED BY:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, (Lessor) Interliant, Inc. (lessee)
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BY: _______________________________ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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TITLE: ____________________________ TITLE: Senior Vice President
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Corporate Development
AMENDMENT NO. 1
TO MASTER LEASE AGREEMENT Number 12586, (hereinafter called the "Master
Agreement"), between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Lessor") and Interliant, Inc. ("Lessee").
Lessor and Lessee have entered into the Master Agreement identified above
pursuant to which Lessor has agreed to lease to Lessee, and Lessee has agreed to
lease from Lessor, subject to the terms and conditions of the Master Agreement.
NOW, THEREFORE Lessor and Lessee, by entering into this Amendment hereby confirm
and agree as follows:
Section 1.5 In the last sentence, after "damages" strike "the value, at
replacement cost," and replace with "the fair market value".
Section 2.7 To the end of the first sentence, add "except such claims
resulting from the gross negligence or willful misconduct of
Lessor, its employees, contractors or agents."
Section 2.8 In line 4, to the end of subsection (b) add "except as
provided in Section 4.2".
Section 3.1 In the first sentence, to the end of subsection (a) add "and
such failure shall continue for five (5) days after notice
thereof from Lessor to Lessee".
In the first sentence, subsection (d), after "within" strike
"twenty (20)" and replace with "sixty (60)".
Section 3.2 In the first sentence, to the end of subsection (d) add
"provided, however, such entry must be made peacefully and
Lessor shall be liable to Lessee for any and all damage to any
property or person resulting from the gross negligence or
willful misconduct of Lessor, its employees, contractors or
agents."
Section 3.3 In the second sentence, line 5, subsection (i), before "costs
and expenses" add "reasonable" and before "attorneys' fees"
add "reasonable".
In the sixth sentence, line 13, subsection (i) before "costs
and expenses" insert "reasonable".
Section 4.1 In line 1, after "due" add "after all applicable notice and
cure periods,".
Section 4.2 In the first sentence, line 2, after "Lessor" add "which
consent shall not be unreasonably withheld, conditioned or
delayed,".
After the first sentence add the following new sentence: "Upon
receipt of a written request from Lessee to assign this Master
Agreement or any Lease or its interest hereunder, Lessor shall
review the new entity under its then current underwriting
criteria, and if, in the reasonable discretion of Lessor, the
new entity is equal to or better than that of Lessee based on
its then current underwriting criteria, Lessor shall consent
to such assignment, and such consent shall not be reasonably
delayed or withheld."
Section 4.4 To the end of the last sentence add "solely with respect to
the Equipment or any part thereof."
Except as provided in this Amendment No. 1, all the terms and conditions of the
above referenced Master Agreement will remain in full force and effect.
AMENDMENT ACCEPTED BY:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (Lessor) Interliant, Inc. (Lessee)
By:____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:__________________________ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:_________________________ Title: Senior Vice President
Corporate Development
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Date:__________________________ Date: January 26, 2001
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AMENDMENT NO. 1
TO SUPPLEMENT Number 1 to Master Lease Agreement Number 12586 (hereinafter
called the "Lease"), between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Lessor") and Interliant, Inc.
("Lessee").
Lessor and Lessee have entered into the Lease identified above pursuant to which
Lessor has agreed to lease to Lessee, and Lessee has agreed to lease from
Lessor, subject to the terms and conditions of the Lease.
NOW, THEREFORE Lessor and Lessee, by entering into this Amendment hereby confirm
and agree as follows:
The paragraph entitled "Interim Rent" in deleted in its entirety as it does not
apply to this Lease.
Add the following paragraph to the Lease:
"End of Lease Options: Provided that Lessee is not in default, as defined
in Section 3.1 hereof, Lessor hereby grants Lessee the following options at
the end of the Original Term or any extended term; (i) Lessee may elect to
return the Equipment to Lessor as provided in Sections 1.5 and 2.3 hereof,
(ii) Lessee may elect to renew the Lease at the fair market value rental,
or (iii) Lessee may elect to purchase the Equipment at the then fair market
value."
Except as provided in this Amendment No. 1, all the terms and conditions of the
above referenced Lease will remain in full force and effect.
AMENDMENT ACCEPTED BY:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (Lessor) Interliant, Inc. (Lessee)
By:____________________________ By:_________________________________
Name:__________________________ Name:_______________________________
Title:_________________________ Title:______________________________
Date:__________________________ Date:_______________________________