EXHIBIT 10.58
AMENDMENT #2 TO LEASE
1. Parties.
This Amendment, dated as of December 1, 2003, is between 400 River
Limited Partnership ("Landlord") and NaviSite, Inc., ("Tenant").
2. Recitals.
2.1. Landlord and Tenant have entered into a Lease, dated as of
5/14/1999, for premises known as 000 Xxxxxxxxx Xxxx in Andover, Massachusetts,
and Amendment #1 to Lease, dated as of June 26, 2003 (this Lease, as now or
hereafter amended or extended, is called the "Lease"). Unless otherwise defined,
terms used in this Amendment have the same meanings as those used in the Lease.
2.2 The parties wish to amend the Lease to change certain of the
definitions and the rent payments by Tenant thereunder. To accomplish this and
other matters, for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree and the Lease is amended as follows
as of the date hereof, notwithstanding anything to the contrary:
3. Amendments.
3.1 Section 3.6 of Amendment #1 to Lease is deleted and replaced
by the following:
"3.6 In Section 7.1 of the Lease, the definition of
Operating Costs will be amended as follows: the word "Premises" will be
replaced by the word "Project" as defined in this Amendment; costs and
expenses incurred in connection with the Common Area will be included
therein; and starting on December 1, 2003, the management fee (or fee
in lieu thereof) will be three percent (3%) of all scheduled rent
payable by Tenant and any other tenants or licensees of the Project
(including, without limitation, the WSI Tenant), subject to the
inclusions and exclusions described in Section 7.1.
The definition of Operating Costs payable under the WSI Lease (which
includes Landlord's insurance costs) may differ in some respects from
the definition of Operating Costs under the Lease (as defined above),
and so it's possible that the Operating Costs and insurance costs
payable under the WSI Lease may be less than what Landlord would have
received if Tenant had continued to lease the WSI Space. To prevent
Landlord from being penalized, starting on December 1, 2003 and for the
remainder of the Lease term, Tenant will pay to Landlord any shortfall
that Landlord may incur if the share of Operating Costs and Landlord's
insurance costs payable under the WSI Lease is less than it would have
been if the definitions of Operating Costs and Landlord's insurance
costs payable under the WSI Lease were the same as Tenant's under the
Lease. This shortfall (if any) will be paid by Tenant as additional
rent each month (or less frequently as may be billed by Landlord) and
in addition to any other amounts payable by Tenant under the Lease."
3.2 A default by the Borrower under that certain $2,200,000
Promissory Note, dated as of December 1, 2003, made by Borrower in favor of U.S.
Managers Realty, Inc. will be deemed to be a default under the Lease.
3.3 Exhibit D-1 to Amendment #1 to Lease is deleted and replaced
by Exhibit D-2 attached hereto and incorporated herein by this reference.
4. No Other Changes.
The Lease is in full force and effect, and except as set forth above
the Lease remains unchanged.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Amendment under seal as of the date first set forth above.
NAVISITE, INC., A DELAWARE CORPORATION 400 RIVER LIMITED PARTNERSHIP, A
MASSACHUSETTS LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx By: Niuna-400 River, Inc., a
Title: Chief Executive Officer Massachusetts corporation, general
Authorized Signature partner
Date: December 23, 2003
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: President
Authorized Signature
Date: December 29, 2003
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EXHIBIT D-2
BASE RENT
1. Starting on December 1, 2003, and in addition to the amounts described below
and any other amounts payable by Tenant as described in this Amendment or the
rest of the Lease (e.g., the amounts payable under Section 3.1 of this
Amendment), during the remaining Lease term Tenant only will pay base rent at
the rates set forth in the Lease for the Remaining Premises (86,931 s.f. of
rentable area), and Tenant's Percentage of Taxes, Operating Costs and Landlord's
insurance costs will be reduced to 56.82%; provided, however, that during the
term of any Extension Option under the Lease, the base rent otherwise payable by
Tenant during that term under the Lease will be increased by Sixty Cents ($0.60)
per square foot of agreed rentable area in the Remaining Premises.
2. Starting on December 1, 2003, and in addition to the base rent described
above and any other amounts payable by Tenant as described in this Amendment or
the rest of the Lease, during the remaining Lease term Tenant will pay to
Landlord as additional base rent under the Lease: (a) the scheduled annual base
rent per square foot under the Lease multiplied by the agreed rentable area of
the WSI Space; less (b) the scheduled annual base rent per square foot under the
WSI Lease multiplied by the agreed rentable area of the WSI Space. This
additional base rent will be paid monthly in advance in the same manner as the
rest of the base rent. As a purely hypothetical example, if the WSI Space
contains 66,069 s.f. and the annual base rent per square foot under the WSI
Lease is $10.00, on December 1, 2003 Tenant would pay $24,500.59 in additional
base rent for the month of December, 2003 (i.e., [66,069 s.f. x $14.45/12] -
[66,069 s.f. x $10.00/12] = $24,500.59).
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