INSIGHT INVESTMENTS, CORP
MASTER LEASE #6269
MASTER LEASE NO. 6269, DATED NOVEMBER 17, 1997, BY AND BETWEEN IN
SIGHT INVESTMENTS, CORP., A CALIFORNIA CORPORATION ("LESSOR"), 265 SOUTH ANITA DRIVE, SUITE 200, ORANGE, CALIFORNIA 92868 AND VERIO INC., A
Delaware CORPORATION ("LESSEE"), 9250 E. COSTILLA AVE., ENGLEWOOD, CO 80112.
FOR AND IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN AND THE PAYMENT OF RENT AS PROVIDED HEREIN, LESSOR AND LESSEE AGREE AS FOLLOWS:
1. LEASE OF EQUIPMENT. Lessor leases to Lessee, and Lessee leases from Lessor, all of the personal property, together with all replace
ments, parts and repairs incorporated therein (collectively, the "Equipment"; and individually, an "Item") described in each Equipment Schedule ("Schedule") executed and delivered from time to time pursuant to this Master Lease.
2. SCHEDULES. Each Schedul
e shall incorporate the terms and conditions of this Master Lease and such other terms and conditions as Lessor and Lessee shall agree upon. Each Schedule is a separate and independent lease and contractual obligation. In the event of a conflict between t
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e provisions of the Master Lease and those of any Schedule, the provisions of the Schedule shall control. The term "Lease" shall mean an individual Schedule which incorporates the terms and conditions of this Master Lease. The Lease shall be effective upo
n execution by Lessee and subsequent acceptance by Lessor at its principal place of business.
3. LEASE TERM. The term of lease ("Lease Term") for each Item shall begin on its Acceptance Date and continue after the Commencement Date for that number of month
s specified in the Schedule as the "Initial Lease Term", and thereafter until terminated by either party upon not less than ninety (90) days prior notice (which notice shall apply to all the Equipment and may not be revoked without the consent of the othe
r party). The term "Commencement Date" means the first day of the month immediately following the month during which the Acceptance Date occurs for the Item to be last installed or delivered, as applicable.
4. ACCEPTANCE. The Acceptance Date for each Item shall be the earliest of (i) the date the manufacturer, or other party acceptable to Lessor, installs the Item and certifies that Item to be in good working order, or (ii) if Lessee has caused a delay in th
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installation of an Item, then the fifth day after the Item is delivered to the location specified in the Schedule, or (iii) if Lessee is to install the Item, the fifth day after delivery; or (iv) if the Item does not require installation, the third day a
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ter the day the Item is delivered to Lessee. If the Equipment is already installed at the Lessee's location, the Acceptance Date shall be the date on which the Lessor pays for the Equipment. On each Acceptance Date, Lessee shall execute and deliver to Les
sor a Certificate of Acceptance.
5. RENT.
(a) "Rent" as used herein shall mean and include all of the following:
(1) INTERIM RENT. Lessee's interim rental obligation for each Item shall commence on its Acceptance Date and continue through the day immedia
tely preceding the Commencement Date ("Interim Rent"). Interim Rent for each Item shall be one-thirtieth (1/30) of the Monthly Rent for that Item, with Interim Rent for all Items being due and payable on the Commencement Date. If the Acceptance Date for a
ll the Equipment is the first day of a calendar month, there shall be no Interim Rent.
(2) MONTHLY RENT. Lessee shall pay Lessor Monthly Rent for the Equipment in the amount set forth in the Schedule. Monthly Rent shall begin to accrue on the Commencement
Date and shall be due and payable by Lessee in advance on the Commencement Date and on the first day of each month thereafter during the Lease Term.
(3) ADDITIONAL RENT. Lessee shall also owe to Lessor, as additional rent ("Additional Rent") any and all c
harges, expenses, indemnities and other sums which become due by Lessee to Lessor under the terms of this Lease. Any such Additional Rent shall be paid to Lessor within thirty (30) days after the date that Lessor gives notice to Lessee that such Additiona
l Rent is due, unless a longer or shorter period is otherwise specified herein.
(b) LATE CHARGE. If Lessee fails to pay to Lessor within ten (10) days after the due date thereof (and without regard as to whether Lessor has given Lessee notice of such failu
re or whether an Event of Default has occurred) any Rent due hereunder, then Lessee shall also owe to Lessor Late Charges on such delinquent payment from the due date until paid at the lower of two percent (2%) per month or the maximum rate permitted by a
pplicable law.
(c) METHOD OF PAYMENT. All payment of Rent, Late Charges or other amounts required to be paid by Lessee shall be paid to Lessor by check or wire transfer so as to constitute immediately available funds at the address of Lessor set forth abov
e or at such other place as Lessor shall designate in writing, or, if to an Assignee of Lessor, at such place as such Assignee shall designate in writing.
6. USE AND LOCATION.
(a) USE. Lessee shall use the Equipment in a careful and proper manner in conf
ormance with all manufacturer's specifications and shall comply with all federal, state, municipal and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment, and in compliance with all requiremen
ts of the insurance policies required to be maintained by Lessee pursuant to Section 12 herein.
(b) LOCATION. Each Item will at all times be and remain in Lessee's sole possession and control at the place of installation/location shown in the Schedule. Th
e Equipment, may be moved to another location of Lessee within the continental contiguous United States on written notification to Lessor. Lessor may require Lessee to execute such documents, including, but not limited to, Uniform Commercial Code ("UCC")
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inancing statements, as Lessor may reasonably require to provide notice, perfect, or maintain the notification or perfection of, Lessor's or Assignee's interest in such Equipment. Any relocation of the Equipment pursuant to this Section and all UCC financ
ing statement filing fees shall be at the sole expense of Lessee.
7. MAINTENANCE AND REPAIR. Lessee hereby assumes the sole duty to maintain the Equipment and shall not look to Lessor or any Assignee for such maintenance. At its own expense, Lessee shall m
aintain and keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms, devices and labor required therefor, and shall enter into and maintain during the Lease Term a maintenance agreement with the Equip
ment manufacturer or other party acceptable to Lessor. Lessee shall furnish a copy of such agreement to Lessor upon Lessor's request.
8. QUIET ENJOYMENT. Lessor hereby warrants and represents and covenants that so long as no Event of Default has occurred,
Lessee shall and may quietly have, hold and enjoy the Equipment in accordance with the terms and conditions of the Lease, free from disturbance by Lessor or anyone claiming by or through Lessor.
9. LESSOR'S RIGHT TO INSPECT. Lessor shall at all times during business hours, and subject to Lessee's reasonable security requirements, have the right to enter upon the premises where an Item may be located for the purpose of inspecting such Item.
10. EQUIPMENT IMPROVEMENTS.
(a) Lessee may, with the prior consent of Lessor and subject to compliance with this Section 10, affix or install any accessory, feature or device to the Equipment and make any improvement, upgrade, modification, alteration or addition to the Equipment (e
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ch of the foregoing being an "Improvement"). The affixing or installation of the Improvement must not adversely affect the Equipment manufacturer's warranties or maintenance agreement, or require that substantial original parts of the Equipment be removed
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nor can it impair the originally intended function, value or use of the Equipment. Title to each Improvement shall, without further action, upon the affixing or installing of such Improvement, vest solely in Lessor. Upon the expiration or earlier termin
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tion of this Lease, Lessee may remove and retain any readily detachable Improvement provided that: (i) no Event of Default has occurred; (ii) by such removal the Equipment is not rendered any less useful or valuable to Lessor than if such Improvement had
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ot been made and later removed, and (iii) the Equipment is returned in compliance with Section 13 herein. Upon Lessee's permitted removal of a detachable Improvement and compliance with this Section 10, title shall thereupon revert to Lessee free and clea
r of any claims of Lessor whatsoever.
(b) Lessee shall notify Lessor not less than sixty (60) days prior to the anticipated Acceptance Date of the type of Improvement Lessee desires to obtain. Lessor may, within fifteen (15) days after receipt of such noti
ce, offer to lease or sell the Improvement to Lessee upon mutually agreeable terms and conditions. If Lessee leases the Improvement from Lessor, such Improvement shall be on a separate Schedule with an Initial Lease Term co-terminus with that of the Equip
ment. (c) Nothing in this section 10 shall preclude or limit Lessee's ability to maintain and support the Equipment or require Lessee's prior consent to such normal and customary maintenance.
11. LOSS AND DAMAGES; STIPULATED LOSS VALUE.
(a) LESSEE'S ASSUM
PTION OF RISK. Lessee hereby assumes and shall bear the entire risk of loss, damage, theft or destruction to the Equipment from any cause whatsoever, or governmental taking. No loss, damage, theft or destruction to the Equipment, or any part thereof, or g
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vernmental taking shall affect any obligation of Lessee under this Lease, which shall continue in full force and effect notwithstanding any such loss or damage. Lessee's assumption of risk of loss shall commence when the Equipment or Item is placed in tra
nsit to Lessee and shall continue until Lessor has received and accepted the surrendered Equipment pursuant to Section 13.
(b) NOTICE OF LOSS OR DAMAGE. Lessee shall promptly notify Lessor of the loss, damage, destruction, theft or governmental taking of any Item.
(c) DUTY TO REPAIR. Unless such Item is lost, stolen, damaged beyond repair or there is a governmental taking ("Casualty Loss"), Lessee shall promptly repair and restore such Item to the same condition, working order and appearance as of the Acce
ptance Date.
(d) CASUALTY LOSS; PAYMENT OF STIPULATED LOSS VALUE. If the Equipment or any Item is a Casualty Loss, then Lessee, at Lessee's option:
(1) shall pay Lessor in cash the Stipulated Loss Value (as per Attachment A to this Master Lease) for such
Equipment or Item calculated as of the next Monthly Rent payment date, which amount shall be due and payable not later than thirty (30) days after the date of the occurrence of the Casualty Loss. Upon payment of the Stipulated Loss Value, and provided th
at no Event of Default (as hereinafter defined) has occurred:
(i) Lessee's obligation to pay Rent for all remaining Items shall remain in full force and effect and shall terminate only with respect to such Casualty Loss Item.
(ii) Lessee shall become entitled to such Item, as-is, where-is, without warranty, express or implied, with respect to any matter whatsoever; OR,
(2) shall continue all payments under the Lease without interruption as if no such loss had occurred, and shall request
that Lessor, within thirty (30) days after the date of the occurrence of the Casualty Loss, replace the Casualty Loss Item with a "Replacement Item". Lessee shall pay all costs of such Replacement Item. Unless otherwise mutually agreed, the Replacement It
em shall be of the same manufacture, model and type and of at least equal capacity, function and value as the Casualty Loss Item.
(e) INSURANCE PROCEEDS. Lessee's obligation to repair or pay Stipulated Loss Value shall not be contingent upon receipt of any insurance proceeds.
12. INSURANCE. Lessee shall at its expense keep each Item insured from every cause whatever for not less than the Stipulated Loss Value thereof, and shall carry public liability and property damage insurance of $2,500,000 or more. All
such insurance shall be with companies reasonably acceptable to Lessor, and shall name Lessor and any Assignee as additional insureds and, as to the all-risk insurance, loss payees as their interests may appear. Such insurance policies shall provide that
they may not be invalidated against Lessor or any Assignee by reason of any violation of a condition or breach of warranty of the policies or the application therefor by Lessee and that Lessor shall be given written notice thirty (30) days prior to any al
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eration or cancellation of such policies. The proceeds of such insurance, if Lessee is not in default hereunder, shall be applied to reimburse Lessee for Stipulated Loss Value to the extent previously paid by Lessee; or shall be paid to Lessor or Assignee
to the extent of Stipulated Loss Value not previously paid by Lessee; or shall be applied to repair the Equipment or to reimburse Lessee for repairs for which Lessee previously paid. If Lessee is in default hereunder, then such insurance proceeds shall be
paid to Lessor or Assignee to be applied to the satisfaction of Lessee's obligations under the Lease.
13. DELIVERY AND SURRENDER.
Lessee hereby assumes all cost and expense of the transpo ...