Exhibit 10.46
FARM ASSOCIATES LIMITED PARTNERSHIP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
000.000.0000 . FAX 000.000.0000
Dated:
NaviSite, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Re: Project located at 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx (the
"Project") Temporary License to Occupy Space on 2nd Floor
Gentlemen:
Farm Associates Limited Partnership, as Landlord, and NaviSite, Inc., as
Tenant, have entered into a Lease, dated as of___________(the "New Lease"), for
space on the 1st floor of the Building. For convenience, unless otherwise
defined herein, terms used in this letter agreement have the same meanings as
those used in the New Lease. The New Lease is attached hereto as Exhibit "A."
Pursuant to a previous lease of the entire Project, Tenant leased both the
1st and 2nd floors of the Building (the "Old Lease"). The Old Lease has expired
and terminated, and pursuant to the New Lease, Tenant has agreed to lease the
Premises, which includes only space located on the 1st floor of the Building and
a rooftop Penthouse, and Tenant has no right to lease or occupy space on the 2nd
floor of the Building. However, Tenant will be performing Tenant improvements to
its Premises under the New Lease to accommodate its personnel that it intends to
relocate from the 2nd floor to the 1/st/ floor, and so Tenant has requested the
right to temporarily occupy the 2nd floor space for a limited period of time so
that it can relocate its personnel to the 1st floor in an orderly fashion.
To accommodate Tenant, but only subject to the terms hereof (including,
without limitation, the termination rights described herein), Landlord is
willing to permit Tenant to temporarily occupy the space on the 2nd floor of the
Building (the "Temporary Space"), which is agreed to contain 76,500 square feet
of rentable area.
To accomplish this, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Landlord and Tenant agree as follows:
1. Landlord hereby grants and Tenant accepts a revocable license
permitting Tenant to temporarily occupy the Temporary Space on the terms and
conditions of this letter agreement. This revocable license to temporarily
occupy the Temporary Space, as embodied in this letter agreement and subject to
the terms and conditions hereof, is called the "Temporary License."
NaviSite, Inc.
Page 2
2. Although this is a revocable license, and not a lease, to avoid
needless redrafting, and subject to the terms and conditions of this Temporary
License, the terms and conditions of the New Lease are incorporated herein by
this reference and form a part of this Temporary License, except as follows:
(1) This Temporary License is an accommodation to Tenant, and so
Landlord is not required to pay for or perform any work in connection with the
Temporary Space, and Landlord will incur no Liabilities to Tenant (including,
without limitation, any Liabilities for negligence) in connection with this
Temporary License or the Temporary Space, all of which are hereby irrevocably
waived by Tenant on its own behalf and on behalf of its Affiliates and insurers
(although this will not affect Landlord's Liabilities to Tenant under the New
Lease).
(2) The term of the Temporary License begins on the date hereof and
ends on the earliest of: six (6) months from the date hereof; or written notice
of termination from Landlord or Tenant if the Temporary Space is damaged by
casualty so as to be rendered untenantable; or Tenant's default hereunder or
under the Lease not cured within applicable notice and cure periods; or on at
least ten (10) days' prior written notice from Tenant if it entirely vacates and
surrenders possession of the Temporary Space. Also, if Landlord leases or enters
into letters of intent to lease less than all or substantially all of the
Temporary Space, on at least thirty (30) days' prior written notice to Tenant
Landlord will have the right to reclaim those areas of the Temporary Space and
revoke this Temporary License with respect to those areas, and in that case
Tenant will cooperate with Landlord and make diligent efforts to vacate and
surrender those areas to Landlord as soon as reasonably possible, but in any
case on or before the required date in Landlord's written notice. Tenant has no
extension or renewal rights or options of any type under this Temporary License.
(3) The Premises under this Temporary License will be the Temporary
Space.
(4) Tenant will not be required to pay base rent or any share of
Taxes or Landlord's insurance costs for the Temporary Space or under this
Temporary License (except as specifically set forth in Section 2(g) hereof), but
during the term of this Temporary License it will pay in accordance with the New
Lease and in addition to all amounts payable under the New Lease: (i) the costs
for all utilities serving the Temporary Space plus 50% of all Operating Costs;
less (ii) the utility costs and the Operating Costs payable during that same
period by other tenants of the Temporary Space pursuant to their leases of the
Temporary Space (if any such leases are entered into by Landlord, and Landlord
has no obligation to enter into such leases).
NaviSite, Inc.
Page 3
(5) Tenant agrees, represents and warrants that it has not engaged or
dealt with any broker, agent, finder or similar party of any type in connection
with this Temporary License, and Tenant will defend, indemnify and hold Landlord
harmless from all Liabilities in connection with any claim by any broker, agent,
finder or similar party engaged by Tenant or with whom Tenant has dealt in
connection with this Temporary License.
(6) Neither Landlord nor Tenant will be required to repair, rebuild
or maintain the Temporary Space or the rest of the Project under this Temporary
License, except that Tenant will be responsible for repairs and maintenance
required as a result of any negligent or intentional misconduct by Tenant.
Tenant will not be permitted to make any Alterations to the Temporary Space
without Landlord's prior written approval. Tenant will not have the right or
power to sublease, assign or otherwise Transfer this Temporary License or the
Temporary Space or any interest therein under any circumstances or allow anyone
other than Tenant's employees to occupy the Temporary Space.
(7) Time is of the essence, and holding over will not be permitted
unless otherwise specifically agreed to in writing by Landlord in its sole and
arbitrary discretion. If Tenant holds over in the Temporary Space, then Tenant
will indemnify, defend and hold harmless Landlord and its Affiliates from all
Liabilities in connection therewith, and in addition to any other rights and
remedies and amounts payable hereunder, Tenant will pay additional fees for the
occupancy of the Temporary Space at the same rate as the base rent payable under
the New Lease.
3. (a) The sole right and remedy of Tenant and its Affiliates for any
default by, or Liabilities incurred as a result of the acts or omissions of,
Landlord or its Affiliates under or in connection with this Temporary License or
the Temporary Space will be to terminate or specifically enforce this Temporary
License, and all other rights and remedies are hereby irrevocably waived.
Nothing in this Temporary License will affect the rights, obligations and other
Liabilities of the parties under the New Lease, except that if Tenant fails to
vacate and surrender the Temporary Space as and when required hereunder, it will
also be deemed to be a default by Tenant under the New Lease, and Landlord may
exercise any or all of its rights hereunder and/or under the New Lease. A
default by Tenant under the New Lease pursuant to the terms of Article 21
thereof also will be a default by Tenant hereunder, and Landlord may exercise
any or all of its rights hereunder and/or under the New Lease, all of which are
cumulative and not exclusive.
(b) If Tenant defaults hereunder, Landlord will have the right, but
not the obligation, to enforce any or all of the rights and remedies set forth
in the New Lease in connection
NaviSite Inc.
Page 4
with that default hereunder, even though this is a temporary license and not a
lease, in addition to the rights and remedies available to Landlord for a breach
of this temporary license, all of which are cumulative and not exclusive.
When and if signed and delivered by Landlord, Tenant and ClearBlue
Technologies, Inc., this letter agreement will be a binding agreement executed
under seal.
Sincerely,
Farm Associates Limited Partnership
By: Finca-Farm, Inc., general partner
ACCEPTED AND AGREED:
By:
NaviSite, Inc.
Name:
Title:
By: Authorized Signature
Name:
Title:
Authorized Signature
By:
Name:
Title:
Authorized Signature
By its signature below, ClearBlue Technologies, Inc. hereby agrees that the
obligations and other Liabilities of Tenant under this Temporary License are
guaranteed fully under any Guaranty of the New Lease executed by ClearBlue
Technologies, Inc. in favor Landlord as if those Liabilities were part of
Tenant's Liabilities under the New Lease, and notwithstanding any integration or
similar clause in that Guaranty.
ClearBlue Technologies, Inc.
By:
Name:
NaviSite, Inc.
Page 5
Title:
Authorized Signature
By:
Name:
Title:
Authorized Signature
NaviSite, Inc.
Page 6
EXHIBIT A
New Lease
