Amendment #10 to Lease
Exhibit 10.2
Amendment #10 to Lease
1. Parties.
| This Amendment, dated as of November 24th, 2010, is between 400 Minuteman LLC (“Landlord”), and NaviSite, Inc. (“Tenant”). |
2. Recitals.
2.1 Landlord’s predecessor in interest, 400 Minuteman Limited Partnership, and Tenant entered
into a lease, dated as of May 14, 1999, for space in the building at 000 Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx (as now or hereafter amended or extended, the “Lease”). Unless otherwise defined,
terms in this Amendment have the same meanings as those in the Lease.
2.2 Tenant wishes to upgrade its Backup Power System primarily by increasing the capacity of
its existing UPS system, and install a third electrical service to the Building (the “New
Electrical Service”). While performing this work, Tenant will also locate temporary UPS Modules
outside the Building in a roll-up trailer.
2.3 To accomplish this, 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 this date,
notwithstanding anything to the contrary:
3. Amendments.
3.1 Definitions.
(a) “Equipment” means the equipment specified in Project Scope attached as Exhibit A-10, the
equipment specified in the Plans, and any additional equipment installed or used in connection with
upgrades, modifications or installations’ to or for the Backup Power System or the New Electrical
Service, including new UPS Modules, switchgear, power distribution equipment, transformers, all
associated wiring, pipes, ducts and connectors, and all replacements.
(b) “Temporary Equipment” means the temporary UPS Modules, the trailer in which they will be
contained, the other equipment and items described in the Project Scope attached as Exhibit A-10 or
the Plans as being temporary in nature, and any additional equipment installed or used in
connection with temporary upgrades, modifications or installations to support the Backup Power
System or the New Electrical Service, all associated wiring, pipes, ducts and connectors, and all
replacements.
(c) “Landscaping” means all screens, trees, shrubs and other plantings to be provided by
Riverside Landscaping or another landscaping contractor approved by Landlord to screen and
landscape around the Temporary Equipment, the new transformer, and any other equipment located
outside the Building in a manner
satisfactory to Landlord.
(d) “Installation and Operation” means the installation, operation, maintenance, repair,
replacement and removal of the Equipment and the Temporary Equipment (and all associated
modifications to the Project or its Systems and Equipment that are required by applicable Laws or
deemed advisable by Landlord), and the installation, maintenance, irrigation, replacement and
removal of the Landscaping.
(e) “Plans” means the plans, drawings and specifications listed in Exhibit B-10 and
Exhibit C-10 attached, and any additional or modified plans, drawings and specifications
specifically approved or required by Landlord in writing.
3.2 Installation; Maintenance.
(a) The parties understand that the attached Project Scope and Plans are preliminary, not
final, and there will be modifications to those documents as this project proceeds. Accordingly,
Landlord’s prior written approval will be required for: the Equipment and Temporary Equipment when
finally specified; the final Plans; the final locations of the new transformer, the Temporary
Equipment and other Equipment; and the manner in which the Installation and Operation is
accomplished. Otherwise, the Installation and Operation will be performed diligently, in a good and
workmanlike manner, and in accordance with the final approved Plans, applicable Laws, the Lease
(including, without limitation, this Amendment and Section 13 of the Lease), and Landlord’s
scheduling and coordination requirements. Landlord’s scheduling and coordination requirements may
take into account, among other things, WSI Corporation’s scheduling and operating requirements (WSI
Corporation is another Building tenant). Tenant will not alter or remove the Landscaping without
Landlord’s prior written approval, but will remove any Landscaping on Landlord’s written request.
All repairs and replacements will be at least equivalent to the originals in quality and capacity
and, if applicable, in appearance.
(b) Tenant understands that WSI Corporation uses its space “24/7” for critical
functions, including national TV broadcasts, and that it also uses the Backup Power System. Thus,
in addition to its other obligations, Tenant will ensure at its cost that the Installation and
Operation do not disrupt or interfere with WSI Corporation’s operations, whether because of Backup
Power System shutdowns or otherwise. This may require, for example, additional precautions that go
beyond typical installations. (i) Landlord may hire X.X. Xxxx and other professionals
to review Tenant’s Plans and Project Scope, meet and consult with Tenant and Landlord, and inspect
and supervise aspects of the Installation and Operation, and if so Tenant will pay reasonable
out-of-pocket fees and expenses of X.X. Xxxx and those other professionals within 30 days after
invoices are submitted. Reviews, inspections, supervision, approvals, modifications or
rejections of the Plans, any means or methods, or any other aspect of the Installation and
Operation or the rest of this project by Landlord or its Affiliates or professionals are solely for
Landlord’s benefit, will not be deemed a representation or warranty as to safety, efficacy,
adequacy, effectiveness, compliance or other matters or a waiver of any of Tenant’s Liabilities,
require Landlord to notify, act or respond in any manner, or permit Tenant or its Affiliates,
clients or co-locators to make any claims against Landlord or its Affiliates or professionals (and
all such claims are now irrevocably waived).
(c) Tenant will be solely responsible at its cost for: the Equipment, the Temporary Equipment,
the Landscaping, the Installation and Operation, and all required permits and approvals; and
providing “as-built” plans to Landlord within 30 days after the Equipment and Temporary Equipment
are installed. But Landlord reserves the right at Tenant’s cost and risk to perform any aspects of
the Installation and Operation that affect the Building’s structure, tie into or affect the
Building’s Systems and Equipment, are performed in the common areas, or involve the Landscaping. If
Landlord exercises this right, Tenant will pay Landlord’s reasonable out-of-pocket costs incurred
within 30 days after invoices are submitted.
(d) Tenant will take all necessary steps to minimize any damage caused by or arising in
connection with the Equipment, the Temporary Equipment, the Landscaping or the
- 2 -
Installation and Operation. Tenant will be solely responsible for any damage that
occurs, and will promptly repair and restore such damage at its cost to Landlord’s reasonable
satisfaction.
3.3 Removal of Temporary Equipment. Tenant understands that Landlord considers the Temporary
Equipment an eyesore that materially diminishes the Project’s and Minuteman Park’s value and
attractiveness to other tenants, and so Landlord wants the Temporary Equipment removed as quickly
as possible. Thus Tenant will remove the Temporary Equipment and any Landscaping specified by
Landlord, repair any resulting damage and restore affected areas before the “Removal Date,” which
is the date eight months after the trailer contained the temporary UPS Modules first appears at the
Project. If there are unforeseen circumstances that cause delays which are out of NaviSite’s
control, including without limitation, a delay in delivery of the permanent UPS by the manufacturer
or delays created by NaviSite’s contractors, Tenant shall request in writing and Landlord shall
approve an extension to ten months. The Removal Date is material to Landlord, and so if Tenant
fails to remove, repair and restore as required, Tenant will pay Landlord the following amounts for
each day thereafter until Tenant has done so (in addition to any other amounts owed by Tenant under
the Lease): $1,000 per day for each of the first 30 days after the Removal Date; $2,000 per day for
each of the next 30 days; $3,000 per day for each of the next 30 days; and $5,000 per day
thereafter. (A partial day is deemed to be a “day” for these purposes.) Time is of the essence in
this Amendment. These per diem amounts will be payable by Tenant weekly in arrears without further
notice or bills, although Landlord may deliver further notices or bills if it wishes to. The
parties understand that it would be difficult to precisely determine Landlord’s actual damages
under these circumstances, so these per diem amounts
are agreed to be a reasonable forecast of damages under the circumstances and not a penalty,
and will be considered liquidated damages for Tenant’s failure to remove, repair and restore as
described above as and when required.
3.4 Liability. As a material inducement to Landlord: (a) Tenant and its Affiliates waive all
claims against Landlord and its professionals and Affiliates in connection with the Equipment, the
Temporary Equipment, the Landscaping and the Installation and Operation, or any of them, regardless
of cause or fault (including, without limitation, Liabilities arising from or in connection with
damage, breakage, defect or interruption of service, or Landlord’s gross negligence or willful
misconduct); and (b) Tenant will indemnify Landlord and its professionals and Affiliates from all
associated Liabilities (except for Liabilities directly caused by Landlord’s gross negligence or
willful misconduct). Tenant specifically agrees that none of Landlord’s approvals, rejections or
modifications will be considered negligence, gross negligence or willful misconduct of any type.
3.5 Miscellaneous. All amounts owed by Tenant to Landlord will be considered additional rent
under the Lease, however other than penalty fees (or other fees set forth herein) there are no
contemplated fees to be paid to Landlord. Without limiting the generality of Section 3.2(a),
Tenant’s contractors and subcontractors at all times will carry occurrence-based liability
insurance in amounts and on policy forms reasonably satisfactory to Landlord in addition to all
other insurance required by the Lease, name Landlord and its designees as additional insureds, and
provide complying certificates of insurance before beginning work. Landlord’s rights and remedies
are cumulative and not exclusive. Tenant agrees that Landlord has fully complied with its Lease
obligations. This Amendment may be executed in counterparts, all of which together will constitute
one agreement. This Amendment will not be construed for or against the drafter. The Lease is in
full force and effect, and except as set forth in this Amendment it remains unchanged.
- 3 -
IN WITNESS WHEREOF, intending to be legally bound, the parties have executed this Amendment
#10 as of the date in Section 1 above.
| NAVISITE, INC | 400 MINUTEMAN LLC | |||||||||||||
| By: | /s/ Xxx Xxxxxxx | By: | Minuteman Master LLC, Sole Member | |||||||||||
| Name: Xxx Xxxxxxx | ||||||||||||||
| Title: CFO | By: | 150 Minuteman Limited Partnership, | ||||||||||||
| Authorized Signature | Managing Member | |||||||||||||
| By: | Niuna-150 Minuteman, Inc., | |||||||||||||
| General Partner | ||||||||||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||||||||||
| Name: Xxxxxx Xxxxxx Title: Vice President |
||||||||||||||
- 4 -
