Amendment #7 to Lease
Exhibit 10.7
Amendment #7 to Lease
1. Parties.
This
Amendment, dated as of March 11, 2009, 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 Pursuant to Amendment #6 to Lease, dated as of November 20, 2008, Tenant agreed (and was
permitted) to install the New Chiller and related Equipment on the Building’s roof. Tenant has not
yet begun to install the New Chiller or the other Equipment, and so has advised Landlord that, to
service the Premises, it wants to temporarily install another 400-ton Trane chiller (the “Emergency
Chiller”) mounted on a flatbed trailer at ground level outside the Building. Tenant has advised
Landlord that the New Chiller will be installed and the Emergency Chiller removed during 2009. 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) “Temporary Equipment” means the Emergency Chiller, the trailer on which it will be
mounted, and the other equipment and items described in Exhibit A-7 attached, all
associated wiring, pipes, ducts and other equipment and items now or in the future installed or
used in connection with the installation, operation, maintenance and repair of the Emergency
Chiller, and all replacements thereof.
(b) “Landscaping” means trees, shrubs and screens to be provided by Riverside Landscaping or
another landscaping contractor approved by Landlord that will screen the Emergency Chiller from
view in a manner satisfactory to Landlord.
(c) “Installation and Operation” means the installation, operation, maintenance, repair,
replacement and removal of the Temporary Equipment, and the installation, maintenance, irrigation,
replacement and removal of the Landscaping.
(d) “Drawings” means the drawings and specifications listed in Exhibit B-7 attached,
and any additional or modified drawings, plans and specifications specifically approved or
required by Landlord in writing.
3.2 Installation; Maintenance.
(a) If and when the Temporary Equipment and the Landscaping are installed, they will be
installed in the locations specified in the Drawings and Exhibit C-7 attached, diligently
and in a good and workmanlike manner, and in accordance with the Drawings, applicable Laws, the
Lease (including, without limitation, this Amendment and Section 13 of the Lease), and Landlord’s
scheduling and coordination requirements, which may take into account, among other things, WSI
Corporation’s scheduling and operating requirements (WSI Corporation is another Building tenant).
(b) Tenant understands that WSI Corporation uses its space “24/7” for critical functions,
including national TV broadcasts. 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 noise, vibration, leaks or otherwise. This may require, for example,
additional weatherproofing and measures to reduce noise or vibration that go beyond typical
installations. Without limiting the generality of Section 3.2(a) in any way, considering the work
scope and the critical nature of the operations of Tenant and WSI Corporation in the Building:
Landlord may control the timing, means and methods of the Installation and Operation (and may
require Tenant to perform some of the work before or after normal business hours); Landlord may
hire X.X. Xxxx and other professionals to review Tenant’s Drawings, meet and consult with Tenant,
and inspect and supervise aspects of the Installation and Operation, and if so Tenant will pay
their reasonable out-of-pocket fees and expenses (not to exceed $2,000 for the initial
installation) within 15 days after invoices are submitted; and Landlord’s or its Affiliates’ or
professionals’ review, inspections, supervision, approval, modification or rejection of the
Drawings, any means or methods, or any other aspect of the Temporary Equipment or the Installation
and Operation 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 hereby waived).
(c) Tenant will be solely responsible at its cost for: the Temporary Equipment, the
Landscaping, the Installation and Operation and all required permits and approvals; and providing
“as-built” plans within 30 days after the Temporary Equipment is 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 or that tie into the Building’s Systems and Equipment, or that
involve the Landscaping, and Tenant will pay Landlord’s reasonable out-of-pocket costs incurred
within 30 days after invoices are submitted. Tenant will not remove the Landscaping unless it
promptly replaces it or Tenant also removes the Temporary Equipment at the same time. All repairs
and replacements will be of at least equivalent quality and specifications.
(d) Tenant will take all necessary steps to minimize, but will be solely responsible for and
promptly repair at its cost to Landlord’s reasonable satisfaction, any damage caused by or arising
from or in connection with the Temporary Equipment, the Landscaping or the Installation and
Operation and restore affected areas to their prior condition.
3.3 Removal of Temporary Equipment. Tenant understands that Landlord considers the
Emergency Chiller and the other Temporary Equipment an eyesore that materially diminishes the
Project’s and Minuteman Park’s value and attractiveness to other tenants, and so Landlord wants
them removed as quickly as possible. Thus Tenant will remove the Temporary Equipment and the
Landscaping and repair any resulting damage and restore affected areas before the “Removal Date,”
which is the earlier of: December 31, 2009; or seven months after the New Chiller first appears at
the Project. The Removal Date is material to Landlord, and so if Tenant fails to remove, repair and
restore as required, in addition to any other amounts owed by Tenant under the Lease Tenant will
pay Landlord the following amounts for each day thereafter until Tenant has done so: $1,000 per day
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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 perform 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
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).
3.5 Miscellaneous. All amounts owed by Tenant to Landlord hereunder will be
considered additional rent under the Lease. 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 and 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. The Lease (including, without limitation, Amendment #6) is in full force and
effect, and except as set forth in this Amendment it remains unchanged.
IN WITNESS WHEREOF, intending to be legally bound, the parties have executed this Amendment #7 as
of the date in Section 1 above.
| NAVISITE, INC. | 400 MINUTEMAN LLC | |||||||||||||
| By: | /s/ Xxx Xxxxxxx | By: | Minuteman Master LLC, Sole Member | |||||||||||
| 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 | ||||||||||||||
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