Master Equipment Lease Agreement - Fleet Capital Corp. and NaviSite Inc.
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
MASTER EQUIPMENT LEASE AGREEMENT No. 35076
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LESSOR: FLEET CAPITAL CORPORATION LESSEE: NAVISITE, INC.
a Rhode Island corporation a Delaware corporation
ADDRESS: 50 Kennedy Plaza ADDRESS: 400 Minuteman Road
Providence, Rhode Island 02903-2305 Andover, Massachusetts 01810
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1. LEASE OF EQUIPMENT
Subject to the terms and conditions set forth herein (the "MASTER LEASE") and
in any Lease Schedule incorporating the terms of this Master Lease (each, a
"LEASE SCHEDULE"), Lessor agrees to lease to Lessee, and Lessee agrees to lease
from Lessor, the items and units of personal property described in each such
Lease Schedule, together with all replacements, parts, additions, accessories
and substitutions therefor (collectively, the "EQUIPMENT"). As used in this
Lease, the term "ITEM OF EQUIPMENT" shall mean each functionally integrated and
separately marketable group or unit of Equipment subject to this Lease. Each
Lease Schedule shall constitute a separate, distinct and independent lease of
Equipment and contractual obligation of Lessee. References to "THE LEASE,"
"THIS LEASE" or "ANY LEASE" shall mean and refer to any Lease Schedule which
incorporates the terms of this Master Lease, together with all exhibits,
addenda, schedules, certificates, riders and other documents and instruments
executed and delivered in connection with such Lease Schedule or this Master
Lease, all as the same may be amended or modified from time to time. The
Equipment is to be delivered and installed at the location specified or referred
to in the applicable Lease Schedule. The Equipment shall be deemed to have been
accepted by Lessee for all purposes under this Lease upon Lessor's receipt of an
Acceptance Certificate with respect to such Equipment, executed by Lessee after
receipt of all other documentation required by Lessor with respect to such
Equipment. Lessor shall not be liable or responsible for any failure or delay
in the delivery of the Equipment to Lessee for whatever reason. As used in this
Lease, "ACQUISITION COST" shall mean (a) with respect to all Equipment subject
to a Lease Schedule, the amount set forth as the Acquisition Cost in the Lease
Schedule and the Acceptance Certificate applicable to such Equipment, provided
such amount is paid by Lessor; and (b) with respect to any item of Equipment,
the total amount of all vendor or seller invoices (including Lessee invoices, if
any) for such item of Equipment, together with all acquisition fees and costs of
delivery, installation, testing and related services, accessories, supplies or
attachments procured or financed by Lessor from vendors or suppliers thereof
(including items provided by Lessee) relating or allocable to such item of
Equipment ("RELATED EXPENSES"). As used in this Lease with respect to any
Equipment, the terms "ACCEPTANCE DATE," "RENTAL PAYMENT(S)," "RENTAL PAYMENT
DATE(S)," "RENTAL PAYMENT NUMBERS," "RENTAL PAYMENT COMMENCEMENT DATE," "LEASE
TERM" and "LEASE TERM COMMENCEMENT DATE" shall have the meanings and values
assigned to them in the Lease Schedule and the Acceptance Certificate applicable
to such Equipment.
2. TERM AND RENT
The Lease Term for any Equipment shall be as specified in the applicable Lease
Schedule. Rental Payments shall be in the amounts and shall be due and payable
as set forth in the applicable Lease Schedule. Lessee shall, in addition, pay
interim rent to Lessor on a pro-rata, per-diem basis from the Acceptance Date to
the Lease Term Commencement Date set forth in the applicable Acceptance
Certificate, payable on such Lease Term Commencement Date. If any rent or other
amount payable hereunder shall not be paid within 10 days of the date when due,
Lessee shall pay as an administrative and late charge an amount equal to 5% of
the amount of any such overdue payment. All payments to be made to Lessor shall
be made to Lessor in immediately available funds at the address shown above, or
at such other place as Lessor shall specify in writing. THIS IS A NON-
CANCELABLE, NON-TERMINABLE LEASE OF EQUIPMENT FOR THE ENTIRE LEASE TERM PROVIDED
IN EACH LEASE SCHEDULE HERETO.
3. POSSESSION; PERSONAL PROPERTY
No right, title or interest in the Equipment shall pass to Lessee other than
the right to maintain possession and use of the Equipment for the Lease Term
(provided no Event of Default has occurred) free from interference by any person
claiming by, through, or under Lessor. The Equipment shall always remain
personal property even though the Equipment may hereafter become attached or
affixed to real property. Lessee agrees to give and record such notices and to
take such other action at its own expense as may be necessary to prevent any
third party (other than an assignee of Lessor) from acquiring or having the
right under any circumstances to acquire any interest in the Equipment or this
Lease.
4. DISCLAIMER OF WARRANTIES
LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, NOR THE AGENT
THEREOF, AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS TO
ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE MERCHANTABILITY OF THE
EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN OR CONDITION, ITS
CAPACITY OR DURABILITY, THE QUALITY OF THE MATERIAL OR WORKMANSHIP IN THE
MANUFACTURE OR ASSEMBLY OF THE EQUIPMENT, OR THE CONFORMITY OF THE EQUIPMENT TO
THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER RELATING THERETO, OR
PATENT INFRINGEMENTS, AND LESSOR HEREBY DISCLAIMS ANY SUCH WARRANTY. LESSOR IS
NOT RESPONSIBLE FOR ANY REPAIRS OR SERVICE TO THE EQUIPMENT, DEFECTS THEREIN OR
FAILURES IN THE OPERATION THEREOF. Lessee has made the selection of each item of
Equipment and the manufacturer and/or supplier thereof based on its own judgment
and expressly disclaims any reliance upon any statements or representations made
by Lessor. For so long as no Event of Default (or event or condition which,
with the passage of time or giving of notice, or both, would become such an
Event of Default) has occurred and is continuing, Lessee shall be the
beneficiary of, and shall be entitled to, all rights under any applicable
manufacturer's or vendor's warranties with respect to the Equipment, to the
extent permitted by law.
If the Equipment is not delivered, is not properly installed, does not operate
as warranted, becomes obsolete, or is unsatisfactory for any reason whatsoever,
Lessee shall make all claims on account thereof solely against the manufacturer
or supplier and not against Lessor, and Lessee shall nevertheless pay all
rentals and other sums payable hereunder. Lessee acknowledges that neither the
manufacturer or supplier of the Equipment, nor any sales representative or agent
thereof, is an agent of Lessor, and no agreement or representation as to the
Equipment or any other matter by any such sales representative or agent of the
manufacturer or supplier shall in any way affect Lessee's obligations hereunder.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
Lessee represents and warrants to and covenants with Lessor that:
(a) Lessee has the form of business organization indicated above and is duly
organized and existing in good standing under the laws of the state listed in
the caption of this Master Lease and is duly qualified to do business wherever
necessary to carry on its present business and operations and to own its
property; (b) this Lease has been duly authorized by all necessary action on the
part of Lessee consistent with its form of organization, does not require any
further shareholder or partner approval, does not require the approval of, or
the giving notice to, any federal, state, local or foreign governmental
authority and does not contravene any law binding on Lessee or contravene any
certificate or articles of incorporation or by-laws or partnership certificate
or agreement, or any agreement, indenture, or other instrument to which Lessee
is a party or by which it may be bound; (c) this Lease has been duly executed
and delivered by authorized officers or partners of Lessee and constitutes a
legal, valid and binding obligation of Lessee enforceable in accordance with its
terms; (d) Lessee has not and will not, directly or indirectly, create, incur or
permit to exist any lien, encumbrance, mortgage, pledge, attachment or security
interest on or with respect to the
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Equipment or this Lease (except those of persons claiming by, through or under
Lessor); (e) the Equipment will be used solely in the conduct of Lessee's
business and will remain in the location shown on the applicable Lease Schedule
unless Lessor otherwise agrees in writing and Lessee has completed all
notifications, filings, recordings and other actions in such new location as
Lessor may reasonably request to protect Lessor's interest in the Equipment; (f)
there are no pending or threatened actions or proceedings before any court or
administrative agency which materially adversely affect Lessee's financial
condition or operations, and all credit, financial and other information
provided by Lessee or at Lessee's direction is, and all such information
hereafter furnished will be, true, correct and complete in all material
respects; and (g) Lessor has not selected, manufactured or supplied the
Equipment to Lessee and has acquired any Equipment subject hereto solely in
connection with this Lease and Lessee has received and approved the terms of any
purchase order or agreement with respect to the Equipment.
6. INDEMNITY
Lessee assumes the risk of liability for, and hereby agrees to indemnify and
hold safe and harmless, and covenants to defend, Lessor, its employees, servants
and agents from and against: (a) any and all liabilities, losses, damages,
claims and expenses (including legal expenses of every kind and nature) arising
out of the manufacture, purchase, shipment and delivery of the Equipment to
Lessee, acceptance or rejection, ownership, titling, registration, leasing,
possession, operation, use, return or other disposition of the Equipment,
including, without limitation, any liabilities that may arise from patent or
latent defects in the Equipment (whether or not discoverable by Lessee), any
claims based on absolute tort liability or warranty and any claims based on
patent, trademark or copyright infringement; (b) any and all loss or damage of
or to the Equipment; and (c) any obligation or liability to the manufacturer or
any supplier of the Equipment arising under any purchase orders issued by or
assigned to Lessor.
7. TAXES AND OTHER CHARGES
Lessee agrees to comply with all laws, regulations and governmental orders
related to this Lease and to the Equipment and its use or possession, and to pay
when due, and to defend and indemnify Lessor against liability for all license
fees, assessments, and sales, use, property, excise, privilege and other taxes
(including any related interest or penalties, except any such interest or
penalties incurred primarily due to any negligence or misconduct of Lessor) or
other charges or fees now or hereafter imposed by any governmental body or
agency upon any Equipment, or with respect to the manufacturing, ordering,
shipment, purchase, ownership, delivery, installation, leasing, operation,
possession, use, return, or other disposition thereof or the rentals hereunder
(other than taxes on or measured solely by the net income of Lessor). Any fees,
taxes or other lawful charges paid by Lessor upon failure of Lessee to make such
payments shall at Lessor's option become immediately due from Lessee to Lessor.
Lessor shall file timely all necessary personal property returns or declarations
and pay all personal property taxes levied on or assessed against the Equipment
during the Basic Term and any Renewal Term of the applicable Schedule, before
such taxes become delinquent, without any proration whatsoever. Lessor shall
(a) upon Lessee's request, provide evidence of the filing of the returns or
declarations and the payment of such taxes, or (b) notify Lessee, in sufficient
time for Lessee to file same timely, when by law or local regulation, Lessor
cannot file same. Lessee, within 10 days of receipt of an invoice for the same,
shall pay to Lessor an amount equal to all such taxes paid by Lessor. Lessor
shall use commercially reasonably efforts to notify Lessee of the proposed
assessments and/or valuations upon which such taxes are based prior to the due
date thereof, and if Lessor fails to do so and such assessments and/or
valuations are manifestly unreasonable, Lessee shall not be liable to reimburse
Lessor for personal property taxes paid to the extent such personal property
taxes are in excess of those that would be payable based on a reasonable
assessment and/or valuation, provided that Lessee cooperates with Lessor in any
appeal, refund or abatement proceeding Lessor may choose to pursue.
If any Lease Schedule is denominated as a "TRUE LEASE SCHEDULE," then, with
respect to the Equipment set forth on such True Lease Schedule, Lessee and
Lessor anticipate that Lessor shall be entitled to the following tax benefits
(the "TAX BENEFITS"): Lessor will be entitled to cost recovery deductions under
Section 168 of the Internal Revenue Code of 1986, as amended (the "CODE"), using
a 200% declining balance method of depreciation switching to the straight line
method for the first taxable year for which such method will yield larger
depreciation deductions, and assuming a half-year convention and zero salvage
value, for the applicable recovery period for such Equipment as set forth in the
True Lease Schedule with respect to such Equipment. With respect to Equipment
set forth on any such True Lease Schedule, Lessee agrees that: Lessee will not
claim that Lessee is the owner of the Equipment subject thereto or that Lessee
is otherwise entitled to all or any of the Tax Benefits; Lessee will not take
any action inconsistent with Lessor's anticipated Tax Benefits; and the
Equipment will not constitute "public utility property" or "tax-exempt use
property" within the meaning of Sections 168(i)(10) or 168(h) of the Code. If,
as the result of any act, omission and/or misrepresentation of Lessee, there
shall be a loss, disallowance, recapture or delay in claiming all or any portion
of the Tax Benefits with respect to the Equipment, or there shall be included in
Lessor's gross income for Federal, state or local income tax purposes any amount
on account of any addition, modification or improvement to or in respect of any
of the Equipment made or paid for by Lessee (any loss, disallowance, recapture,
delay or inclusion being herein called a "TAX LOSS"), Lessee shall reimburse
Lessor for such Tax Loss in the manner provided for in this Section 7. Lessee
shall not have any liability to Lessor for indemnification hereunder for any Tax
Loss with respect to a Lease resulting from one or more of the following: (i)
any voluntary transfer or other disposition by Lessor of any of its interests in
the Lease or the Equipment; (ii) Lessor's failure to claim or follow the proper
procedure in claiming any Tax Benefit in a proper and timely manner; and (iii)
Lessor's failure to have sufficient income to utilize any Tax Benefit. A Tax
Loss shall be deemed to have occurred if either (a) a deficiency shall have been
proposed or a claim has been made that a Tax Loss has so occurred by the
Internal Revenue Service or other taxing authority having jurisdiction, or (b)
independent tax counsel ("TAX COUNSEL") selected by Lessor and acceptable to
Lessee (which acceptance shall not be unreasonably withheld or delayed by
Lessee) has rendered an opinion to Lessor that such Tax Loss has so occurred.
Lessor shall use its best efforts to promptly provide written notice to Lessee
that a Tax Loss has occurred. The foregoing indemnities and covenants set forth
in this Section 7 shall continue in full force and effect and shall survive the
expiration or earlier termination of the Lease.
8. DEFAULT
Lessee shall be in default of this Lease upon the occurrence of any one or
more of the following events (each an "EVENT OF DEFAULT"):
(a) Lessee shall fail to make any payment, of rent or otherwise, under any
Lease within 10 days of the date when due, provided Lessee has received not less
than two days notice that such payments was not paid when due; or (b) Lessee
shall fail to obtain or maintain any of the insurance required under any Lease;
or (c) Lessee shall fail to perform or observe any covenant, condition or
agreement under any Lease, and such failure continued for 10 days after notice
thereof to Lessee; or (d) Lessee shall default in the payment or performance of
any indebtedness or obligation to Lessor or any affiliated person, firm or
entity controlling, controlled by or under common control with Lessor, under any
loan, note, security agreement, lease, guaranty, title retention or conditional
sales agreement or any other instrument or agreement evidencing such
indebtedness with Lessor or such other affiliated person, firm or entity
affiliated with Lessor; or (e) any representation or warranty made by Lessee
herein or in any certificate, agreement, statement or document hereto or
hereafter furnished to Lessor in connection herewith, including without
limitation, any financial information disclosed to Lessor, shall prove to be
false or incorrect in any material respect; or (f) death or judicial declaration
of incompetence of Lessee, if an individual; the commencement of any bankruptcy,
insolvency, arrangement, reorganization, receivership, liquidation or other
similar proceeding by or against Lessee or any of its properties or businesses,
or the appointment of a trustee, receiver, liquidator or custodian for Lessee or
any of its properties of business, or if Lessee suffers the entry of an order
for relief under Title 11 of the United States Code; or the making by Lessee of
a general assignment or deed of trust for the benefit of creditors, or (g)
Lessee shall default in any payment or other obligation to any third party and
any applicable grace or cure period with respect thereto has expired; or (h)
Lessee shall terminate its existence by merger, consolidation, sale of
substantially all of its assets or otherwise; or (i) if Lessee is a privately
held entity, and more than 50% of Lessee's voting capital stock or other
equivalent ownership interest, or effective control of such stock or interest in
Lessee, issued and outstanding from time to time, is not retained by the holders
of such stock or interest on the date of this Lease; or (j) if Lessee is a
publicly held corporation, there shall be a change in the ownership of Lessee's
stock such that Lessee is no longer subject to the reporting requirements of the
Securities Exchange Act of 1934, or no longer has a class of equity securities
registered under Section 12 of the Securities Act of 1933; or (k) where no
financial covenants exist in or apply to a Lease Schedule, Lessor shall
determine, in its sole discretion and in good faith, that there has been a
material adverse change in the financial condition of the Lessee since the date
of this Lease, or that Lessee's ability to make any payment hereunder promptly
when due or otherwise comply with the terms of this Lease or any other agreement
between Lessor and Lessee is impaired; or (l) any event or condition set forth
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in subsections (b) through (k) of this Section 8 shall occur with respect to any
guarantor or other person responsible, in whole or in part, for payment or
performance of this Lease; or (m) any event or condition set forth in
subsections (d) through (j) shall occur with respect to any affiliated person,
firm or entity controlling orcontrolled by Lessee. Lessee shall promptly notify
Lessor of the occurrence of any Event of Default or the occurrence or existence
of any event or condition which, upon the giving of notice of lapse of time, or
both, may become an Event of Default.
9. REMEDIES; MANDATORY PREPAYMENT.
Upon the occurrence of any Event of Default, Lessor may, at its sole option
and discretion, exercise one or more of the following remedies with respect to
any or all of the Equipment: (a) cause Lessee to promptly return, at Lessee's
expense, any or all Equipment to such location as Lessor may designate in
accordance with the terms of Section 18 of this Master Lease, or Lessor, at its
option, may enter upon the premises where the Equipment is located and take
immediate possession of and remove the same by summary proceedings or otherwise,
all without liability to Lessor for or by reason of damage to property or such
entry or taking possession except for Lessor's gross negligence or willful
misconduct; (b) sell any or all Equipment at public or private sale or otherwise
dispose of, hold, use, operate, lease to others or keep idle the Equipment, all
as Lessor in its sole discretion may determine and all free and clear of any
rights of Lessee; (c) remedy such default, including making repairs or
modifications to the Equipment, for the account and expense of Lessee, and
Lessee agrees to reimburse Lessor for all of Lessor's costs and expenses; (d) by
written notice to Lessee, terminate the Lease with respect to any or all Lease
Schedules and the Equipment subject thereto, as such notice shall specify, and,
with respect to such terminated Lease Schedules and Equipment, declare
immediately due and payable and recover from Lessee, as liquidated damages for
loss of Lessor's bargain and not as a penalty, an amount equal to the Stipulated
Loss Value, calculated as of the next following Rental Payment Date; (e) apply
any deposit or other cash collateral or sale or remarketing proceeds of the
Equipment at any time to reduce any amounts due to Lessor, and (f) exercise any
other right or remedy which may be available to Lessor under applicable law, or
proceed by appropriate court action to enforce the terms hereof or to recover
damages for the breach hereof, including reasonable attorneys' fees and court
costs. Notice of Lessor's intention to accelerate, notice of acceleration,
notice of nonpayment, presentment, protest, notice of dishonor, or any other
notice whatsoever are hereby waived by Lessee and any endorser, guarantor,
surety or other party liable in any capacity for any of the Lessee's obligations
under or in respect of the Lease. No remedy referred to in this Section 9 shall
be exclusive, but each shall be cumulative and in addition to any other remedy
referred to above or otherwise available to Lessor at law or in equity.
The exercise or pursuit by Lessor of any one or more of such remedies shall
not preclude the simultaneous or later exercise or pursuit by Lessor of any or
all such other remedies, and all remedies hereunder shall survive termination of
this Lease. At any sale of the Equipment pursuant to this Section 9, Lessor may
bid for the Equipment. Notice required, if any, of any sale or other
disposition hereunder by Lessor shall be satisfied by the mailing of such notice
to Lessee at least seven (7) days prior to such sale or other disposition. In
the event Lessor takes possession and disposes of the Equipment, the proceeds of
any such disposition shall be applied in the following order: (1) to all of
Lessor's costs, charges and expenses incurred in taking, removing, holding,
repairing and selling or leasing the Equipment; (2) to the extent not previously
paid by Lessee, to pay Lessor for any damages then remaining unpaid hereunder;
(3) to reimburse Lessee for any sums previously paid by Lessee as damages
hereunder; and (4) the balance, if any, shall be retained by Lessor. A
termination shall occur only upon written notice by Lessor and only with respect
to such Equipment as Lessor shall specify in such notice. Termination under
this Section 9 shall not affect Lessee's duty to perform Lessee's obligations
hereunder to Lessor in full. Lessee agrees to reimburse Lessor on demand for
any and all costs and expenses incurred by Lessor in enforcing its rights and
remedies hereunder following the occurrence of an Event of Default, including,
without limitation, reasonable attorney's fees, and the costs of repossession,
storage, insuring, reletting, selling and disposing of any and all Equipment.
The term "STIPULATED LOSS VALUE" with respect to any item of Equipment shall
mean the Stipulated Loss Value as set forth in any Schedule of Stipulated Loss
Values attached to and made a part of the applicable Lease Schedule. If there is
no such Schedule of Stipulated Loss Values, then the Stipulated Loss Value with
respect to any item of Equipment on any Rental Payment Date during the Lease
Term shall be an amount equal to the sum of: (a) all Rental Payments and other
amounts then due and owing to Lessor under the Lease, together with all accrued
interest and late charges thereon calculated through and including the date of
payment; plus (b) the net present value of: (i) all Rental Payments then
remaining unpaid for the Lease Term, plus (ii) the amount of any purchase
obligation with respect to such item of Equipment or, if there is no such
obligation, then the fair market value of such item of Equipment at the end of
the Lease Term, as estimated by Lessor in its sole discretion (accounting for
the amount of any unpaid Related Expenses for such item of Equipment and, with
respect to any such item of Equipment that has been attached to or installed on
or in any other property leased or owned by Lessee, such value shall be
determined on an installed basis, in place and in use), all discounted to net
present value at a discount rate equal to the 1-year Treasury Constant Maturity
rate as published in the Selected Interest Rates table of the Federal Reserve
statistical release H.15(519) for the week ending immediately prior to the
original Acceptance Date for such Equipment.
Lessee is or may become indebted under or in respect of one or more leases,
loans, notes, credit agreements, reimbursement agreements, security agreements,
title retention or conditional sales agreements, or other documents, instruments
or agreements, whether now existing or hereafter arising, evidencing Lessee's
obligations for the payment of borrowed money or other financial accommodations
("OBLIGATIONS") owing to FCC, or to one or more affiliated persons, firms or
entities controlling, controlled by or under common control with Lessor
("AFFILIATES"). If Lessee pays or prepays all or substantially all of its
Obligations owing to any Affiliate, and such payment or prepayment is
involuntarily made by Lessee after any default or acceleration of such
Obligations, then Lessee shall pay, at Lessor's option and immediately upon
notice from Lessor, all or any part of Lessee's Obligations owing to Lessor,
including but not limited to Lessee's payment of Stipulated Loss Value for all
or any Lease Schedules as set forth in such notice from Lessor.
10. ADDITIONAL SECURITY
For so long as any obligations of Lessee shall remain outstanding under any
Lease, Lessee hereby grants to Lessor a security interest in all of Lessee's
rights in and to Equipment subject to such Lease from time to time, to secure
the prompt payment and performance when due (by reason of acceleration or
otherwise) of each and every indebtedness, obligation or liability of Lessee, or
any affiliated person, firm, or entity controlled by Lessee, owing to Lessor,
whether now existing or hereafter arising, including but not limited to all of
such obligations under or in respect of any Lease. The extent to which Lessor
shall have a purchase money security interest in any item of Equipment under a
Lease which is deemed to create a security interest under Section 1-201(37) of
the Uniform Commercial Code shall be determined by reference to the Acquisition
Cost of such item financed by Lessor. In order to more fully secure its rental
payments and all other obligations to Lessor hereunder, Lessee hereby grants to
Lessor a security interest in any deposit of Lessee to Lessor under Section 3(d)
of any Lease Schedule hereto. Such security deposit shall not bear interest,
may be commingled with other funds of Lessor and shall be immediately restored
by Lessee if applied under Section 9. Upon expiration of the Lease Term of this
Lease and satisfaction of all of Lessee's obligations, the security deposit
shall be returned to Lessee. The term "LESSOR" as used in this Section 10 shall
include any affiliated person, firm or entity controlling, controlled by or
under common control with Lessor.
11. NOTICES
Any notices or demands required or permitted to be given under this Lease
shall be given in writing and by certified mail or recognized overnight courier
and shall become effective upon receipt to Lessor to the attention of Customer
Accounts, and to Lessee at the address set forth above, or to such other address
as the party to receive notice hereafter designates by such written notice.
12. USE; MAINTENANCE; INSPECTION; LOSS AND DAMAGE
During the Lease Term for each item of Equipment, Lessee shall, unless Lessor
shall otherwise consent in writing: (a) permit each item of Equipment to be used
only within the continental United States by qualified personnel solely for
business purposes and the purpose for which it was designed and shall, at its
sole expense, service, repair, overhaul and maintain each item of Equipment in
the same condition as when received, ordinary wear and tear excepted, in good
operating order, consistent with prudent industry practice (but, in no event
less than the same extent to which Lessee maintains other similar equipment in
the prudent management of its assets and properties) and in compliance with all
applicable laws, ordinances, regulations, and conditions of all insurance
policies required to be maintained by Lessee under the Lease and all manuals,
orders, recommendations, instructions and other written requirements as to the
repair and maintenance of such item of Equipment issued at any time by the
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vendor and/or manufacturer thereof; (b) maintain conspicuously on any Equipment
such labels, plates, decals or other markings as Lessor may reasonably require,
stating that Lessor is owner of such Equipment; (c) furnish to Lessor such
information concerning the condition, location, use and operation of the
Equipment as Lessor may request; (d) permit any person designated by Lessor to
visit and inspect any Equipment and any records maintained in connection
therewith, provided, however, that the failure of Lessor to inspect the
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Equipment or to inform Lessee of any noncompliance shall not relieve Lessee of
any of its obligations hereunder; (e) if any Equipment does not comply with the
requirements of this Lease, Lessee shall, within 30 days of written notice from
Lessor, bring such Equipment into compliance; (f) not use any Equipment, nor
allow the same to be used, for any unlawful purpose, nor in connection with any
property or material that would subject the Lessor to any liability under any
state or federal statute or regulation pertaining to the production, transport,
storage, disposal or discharge of hazardous or toxic waste or materials; and (g)
make no additions, alterations, modifications or improvements (collectively,
"IMPROVEMENTS") to any item of Equipment that are not readily removable without
causing material damage to such item of Equipment or which will cause the value,
utility or useful life of such item of Equipment to materially decline. If any
such Improvement is made and cannot be removed without causing material damage
or decline in value, utility or useful life (a "NON-SEVERABLE IMPROVEMENT"),
then Lessee warrants that such Non-Severable Improvement shall immediately
become Lessor's property upon being installed and shall be free and clear of all
liens and encumbrances and shall become Equipment subject to all of the terms
and conditions of the Lease. All such Improvements that are not Non-Severable
Improvements shall be removed by Lessee prior to the return of the item of
Equipment hereunder or such Improvements shall also become the sole and absolute
property of Lessor without any further payment by Lessor to Lessee and shall be
free and clear of all liens and encumbrances whatsoever. Lessee shall repair all
damage to any item of Equipment caused by the removal of any Improvement so as
to restore such item of Equipment to the same condition which existed prior to
its installation and as required by this Lease.
Lessee hereby assumes all risk of loss, damage or destruction for whatever
reason to the Equipment from and after the earlier of the date (i) on which the
Equipment is ordered or (ii) Lessor pays the purchase price of the Equipment,
and continuing until the Equipment has been returned to, and received by, Lessor
in the condition required by Section 18 hereof upon the expiration of the Lease
Term. If during the Lease Term all or any portion of an item of Equipment shall
become lost, stolen, destroyed, damaged beyond repair or rendered permanently
unfit for use for any reason, or in the event of any condemnation, confiscation,
theft or seizure or requisition of title to or use of such item, Lessee shall
immediately pay to Lessor an amount equal to the Stipulated Loss Value of such
item of Equipment, as of the next following Rental Payment Date.
13. INSURANCE
Lessee shall procure and maintain insurance in such amounts and upon such
terms and with such companies as Lessor may approve, during the entire Lease
Term and until the Equipment has been returned to, and received by, Lessor in
the condition required by Section 18 hereof, at Lessee's expense, provided that
in no event shall such insurance be less than the following coverages and
amounts: (a) Worker's Compensation and Employer's Liability Insurance, in the
full statutory amounts provided by law; (b) Comprehensive General Liability
Insurance including product/completed operations and contractual liability
coverage, with minimum limits of $1,000,000 each occurrence, and Combined Single
Limit Body Injury and Property Damage, $1,000,000 aggregate, where applicable;
and (c) All Risk Physical Damage Insurance, including earthquake and flood, on
each item of Equipment, in an amount not less than the greater of the Stipulated
Loss Value of the Equipment or (if available) its full replacement value. Lessor
will be included as an additional insured and loss payee as its interest may
appear. Such policies shall be endorsed to provide that the coverage afforded to
Lessor shall not be rescinded, impaired or invalidated by any act or neglect of
Lessee. Lessee agrees to waive Lessee's right and its insurance carrier's rights
of subrogation against Lessor for any and all loss or damage.
In addition to the foregoing minimum insurance coverage, Lessee shall procure
and maintain such other insurance coverage as Lessor may require from time to
time during the Lease Term. All policies shall be endorsed or contain a clause
requiring the insurer to furnish Lessor with at least 30 days' prior written
notice of any material change, cancellation or non-renewal of coverage. Upon
execution of this Lease, Lessee shall furnish Lessor with a certificate of
insurance or other evidence satisfactory to Lessor that such insurance coverage
is in effect, provided, however, that Lessor shall be under no duty either to
ascertain the existence of or to examine such insurance coverage or to advise
Lessee in the event such insurance coverage should not comply with the
requirements hereof. In case of failure of Lessee to procure or maintain
insurance, Lessor may at its option obtain such insurance, the cost of which
will be paid by the Lessee as additional rentals. Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact to file, settle or adjust, and
receive payment of claims under any such insurance policy and to endorse
Lessee's name on any checks, drafts or other instruments on payment of such
claims. Lessee further agrees to give Lessor prompt notice of any damage to or
loss of, the Equipment, or any part thereof.
14. LIMITATION OF LIABILITY
Lessor shall have no liability in connection with or arising out of the
ownership, leasing, furnishing, performance or use of the Equipment or any
special, indirect, incidental or consequential damages of any character,
including, without limitation, loss of use of production facilities or
equipment, loss of profits, property damage or lost production, whether suffered
by Lessee or any third party.
15. FURTHER ASSURANCES
Lessee shall promptly execute and deliver to Lessor such further documents and
take such further action as Lessor may require in order to more effectively
carry out the intent and purpose of this Lease. Lessee shall provide to Lessor,
within 120 days after the close of each of Lessee's fiscal years, and, upon
Lessor's request, within 45 days of the end of each quarter of Lessee's fiscal
year, a copy of its financial statements prepared in accordance with generally
accepted accounting principles and, in the case of annual financial statements,
audited by independent certified public accountants, and in the case of
quarterly financial statements certified by Lessee's chief financial officer.
Lessee's timely filing of its financial statements with the Securities and
Exchange Commission on Form 10-K and Form 10-Q in compliance with the
requirements thereof will satisfy the preceding financial statement reporting
requirements. Lessee shall also furnish Lessor an annual operating budget
within 45 days following the end of each of Lessee's fiscal years during the
Lease Term and any Renewal Term. Lessee shall execute and deliver to Lessor
upon Lessor's request any and all schedules, forms and other reports and
information as Lessor may deem necessary or appropriate to respond to
requirements or regulations imposed by any governmental authorities. Lessee
shall execute and deliver to Lessor upon Lessor's request such further and
additional documents, instruments and assurances as Lessor deems necessary (a)
to acknowledge and confirm, for the benefit of Lessor or any assignee or
transferee of any of Lessor's rights, title and interests hereunder (an
"ASSIGNEE"), all of the terms and conditions of all or any part of this Lease
and Lessor's or Assignee's rights with respect thereto, and Lessee's compliance
with all of the terms and provisions hereof and (b) to preserve, protect and
perfect Lessor's or Assignee's right, title or interest hereunder and in any
Equipment, including, without limitation, such UCC financing statements or
amendments, corporate resolutions, certificates of compliance, notices of
assignment or transfers of interests, and restatements and reaffirmations of
Lessee's obligations and its representations and warranties with respect thereto
as of the dates requested by Lessor from time to time. In furtherance thereof,
Lessor may file or record this Lease or a memorandum or a photocopy hereof
(which for the purposes hereof shall be effective as a financing statement) so
as to give notice to third parties, and Lessee hereby appoints Lessor as its
attorney-in-fact to execute, sign, file and record UCC financing statements and
other lien recordation documents with respect to the Equipment where Lessee
fails or refuses to do so after Lessor's written request, and Lessee agrees to
pay or reimburse Lessor for any filing, recording or stamp fees or taxes arising
from any such filings.
16. ASSIGNMENT
This Lease and all rights of Lessor hereunder shall be assignable by Lessor,
at the sole cost of Lessor provided that such assignment is not made in
connection with an Event of Default, absolutely or as security, without notice
to Lessee, subject to the rights of Lessee hereunder for the use and possession
of the Equipment for so long as no Event of Default has occurred and is
continuing hereunder. Any such assignment shall not relieve Lessor of its
obligations hereunder unless specifically assumed by the assignee, and LESSEE
AGREES IT SHALL NOT ASSERT ANY DEFENSE, RIGHTS OF SET-OFF OR COUNTERCLAIM
AGAINST ANY ASSIGNEE TO WHICH LESSOR SHALL HAVE ASSIGNED ITS RIGHTS AND
INTERESTS HEREUNDER, NOR HOLD OR ATTEMPT TO HOLD SUCH ASSIGNEE LIABLE FOR ANY OF
LESSOR'S OBLIGATIONS HEREUNDER. No such assignment shall materially increase
Lessee's obligations hereunder. LESSEE SHALL NOT ASSIGN OR DISPOSE OF ANY OF
ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE WITH
RESPECT TO ANY OF THE EQUIPMENT WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF
LESSOR.
4
<PAGE>
17. LESSEE'S OBLIGATION UNCONDITIONAL
This Lease is a net lease and Lessee hereby agrees that it shall not be
entitled to any abatement of rents or of any other amounts payable hereunder by
Lessee, and that its obligation to pay all rent and any other amounts owing
hereunder shall be absolute and unconditional under all circumstances,
including, without limitation, the following circumstances: (i) any claim by
Lessee to any right of set-off, counterclaim, recoupment, defense or other right
which Lessee may have against Lessor, any seller or manufacturer of any
Equipment or anyone else for any reason whatsoever; (ii) the existence of any
liens, encumbrances or rights of others whatsoever with respect to any
Equipment, whether or not resulting from claims against Lessor not related to
the ownership of such Equipment; or (iii) any other event or circumstances
whatsoever. Each Rental Payment or other amount paid by Lessee hereunder shall
be final and Lessee will not seek to recover all or any part of such payment
from Lessor for any reason whatsoever.
18. RETURN OF EQUIPMENT
Upon the expiration or earlier termination of the Lease Term with respect to
any Equipment, and provided that Lessee has not validly exercised any purchase
option with respect thereto, Lessee shall: (a) return the Equipment to a
location and in the manner designated by the Lessor within the continental
United States, including, as reasonably required by Lessor, securing
arrangements for the disassembly and packing for shipment by an authorized
representative of the manufacturer of the Equipment, shipment with all parts and
pieces on a carrier designated or approved by Lessor, and then reassembly
(including, if necessary, repair and overhaul) by such representative at the
return location in the condition the Equipment is required to be maintained by
the Lease and in such condition as will make the Equipment immediately able to
perform all functions for which the Equipment was originally designed (or as
upgraded during the Lease Term), and immediately qualified for the
manufacturer's (or other authorized servicing representative's) then-available
service contract or warranty; (b) cause the Equipment to qualify for all
applicable licenses or permits necessary for its operation for its intended
purpose and to comply with all specifications and requirements of applicable
federal, state and local laws, regulations and ordinances; (c) upon Lessor's
request, provide suitable storage, acceptable to Lessor, for the Equipment for a
period not to exceed 180 days from the date of return; (d) cooperate with Lessor
in attempting to remarket the Equipment, including display and demonstration of
the Equipment to prospective purchasers or lessees, and allowing Lessor to
conduct any private or public sale or auction of the Equipment on Lessee's
premises. All costs incurred in connection with any of the foregoing shall be
the sole responsibility of the Lessee. During any period of time from the
expiration or earlier termination of the Lease until the Equipment is returned
in accordance with the provisions hereof or until Lessor has been paid the
applicable purchase option price if any applicable purchase option is exercised,
Lessee agrees to pay to Lessor additional per diem rent ("HOLDOVER RENT"),
payable promptly on demand in an amount equal to average monthly Rental Payment
payable during the Lease Term divided by 30, provided, however, that nothing
-------- -------
contained herein and no payment of Holdover Rent hereunder shall relieve Lessee
of its obligation to return the Equipment upon the expiration or earlier
termination of the Lease.
19. RELATED LEASE SCHEDULES
"RELATED LEASE SCHEDULES" means and refers to: (i) Leases covering Equipment
intended to be or which otherwise becomes attached to, affixed to, or used in
connection with other Equipment subject to any other Lease hereunder, or (ii)
Leases entered into pursuant to or in respect of a single credit offering
memorandum or credit approval of Lessor. Lessee agrees that if: (a) if Lessee
elects to exercise any purchase option, early termination option, renewal
option, purchase obligation or early purchase option under any Related Lease
Schedule; or (b) Lessee elects to return the Equipment under any Related Lease
Schedule in accordance therewith, then, in either case, Lessor shall have the
----
right, in its sole discretion, to require Lessee to elect the same or similar
disposition for all Equipment subject and pursuant to the terms and provisions
of one or more other Related Lease Schedules.
20. MISCELLANEOUS; ENFORCEABILITY AND GOVERNING LAW
The term "LESSEE" as used in the Lease shall mean and include any and all
Lessees who sign below, each of whom shall be jointly and severally liable under
the Lease. This Master Lease will not be binding on Lessor until accepted and
executed by Lessor, notice of which is hereby waived by Lessee. Any waiver of
the terms hereof shall be effective only in the specific instance and for the
specific purpose given. Time is of the essence in the payment and performance
of all of Lessee's obligations under the Lease. The captions in this Lease are
for convenience only and shall not define or limit any of the terms hereof.
Any provisions of this Lease which are unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions hereof, and any
such unenforceability in any jurisdiction shall not render unenforceable such
provisions in any other jurisdiction. To the extent permitted by applicable
law, Lessee hereby waives; (a) any provisions of law which render any provision
hereof unenforceable in any respect; (b) all rights and remedies under Rhode
Island General Laws Sections 6A-2.1-508 through 522 or corresponding provisions
of the Uniform Commercial Code article or division pertaining to personal
property leasing in any jurisdiction in which enforcement of this Lease is
sought.
THIS LEASE AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL RESPECTS
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF RHODE
ISLAND, WITHOUT REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW. LESSEE HEREBY
CONSENTS AND SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF RHODE
ISLAND AND THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND FOR THE
PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ITS OBLIGATIONS
HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE TO THE VENUE OF
SUCH COURTS. LESSEE HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE. Any action by Lessee against
Lessor for any cause of action relating to this Lease shall be brought within
one year after any such cause of action first arises.
THIS LEASE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES CONCERNING THE
LEASE OF THE EQUIPMENT AND CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
SUPERSEDING ANY AND ALL CONFLICTING TERMS OR PROVISIONS OF ANY PRIOR PROPOSALS,
COMMITMENT LETTERS, TERM SHEETS OR OTHER AGREEMENTS OR UNDERSTANDINGS BETWEEN
THE PARTIES. THIS LEASE MAY NOT BE CONTRADICTED BY EVIDENCE OF (i) ANY PRIOR
WRITTEN OR ORAL AGREEMENTS OR UNDERSTANDINGS, OR (ii) ANY CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS BETWEEN THE PARTIES, AND LESSEE
ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL OR WRITTEN AGREEMENTS OR
UNDERSTANDINGS EXIST AS OF THE DATE OF THIS LEASE. THIS LEASE MAY NOT BE
AMENDED, NOR MAY ANY RIGHTS UNDER THE LEASE BE WAIVED, EXCEPT BY AN INSTRUMENT
IN WRITING SIGNED BY THE PARTY CHARGED WITH SUCH AMENDMENT OR WAIVER.
Executed and delivered by duly authorized representatives of the parties hereto
as of the date set forth below.
DATED AS OF: May 26, 2000
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
---------------------------- ----------------------------
Name: David w. Kellogg Name: Kenneth W. Hale
-------------------------- --------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
5
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
LEASE SCHEDULE NO. 35076-00001
-----------
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
LESSEE: NAVISITE, INC.
ADDRESS: 400 MINUTEMAN DRIVE
ANDOVER, MA 01810
1. This Lease Schedule No. 35076 - 00001 dated as of MAY 26, 2000 is
------------- ------------
entered into pursuant to and incorporates by this reference, all of the terms
and provisions of that certain Master Equipment Lease Agreement No. 35076 dated
-----
as of MAY 26, 2000 (the "MASTER LEASE"), for the lease of the Equipment
------------
described in Schedule A attached hereto. This Lease Schedule shall constitute a
separate, distinct and independent lease of the Equipment and the contractual
obligation of Lessee. References to the "THE LEASE" or "THIS LEASE" shall mean
and refer to this Lease Schedule, together with the Master Lease and all
exhibits, addenda, schedules, certificates, riders and other documents and
instruments executed and delivered in connection with this Lease Schedule, all
as the same may be amended or modified from time to time. All capitalized terms
used herein and not defined herein shall have the meanings set forth or referred
to in the Master Lease. By its execution and delivery of this Lease Schedule,
Lessee hereby reaffirms all of the representations, warranties and covenants
contained in the Master Lease, as of the date hereof, and further represents and
warrants to Lessor that no Event of Default, and no event or condition which
with notice or the passage of time or both would constitute an Event of Default,
has occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The Acquisition Cost of the Equipment is:
$18,600,000.00.
--------------
3. (a) LEASE TERM. The Lease Term shall commence on the date hereof and
shall continue for a period of 48 months after the Lease Term Commencement Date
--
set forth in the Acceptance Certificate to this Lease Schedule, plus any renewal
or extended term applicable in accordance with the terms of the Lease.
(b) RENTAL PAYMENTS. In addition to interim rent payable pursuant to
Section 2 of the Master Lease, Lessee shall pay Lessor 48 consecutive Rental
--
Payments in the amounts set forth in the schedule below, plus any applicable
sales/use taxes, commencing on the Rental Payment Commencement Date set forth in
the Acceptance Certificate and MONTHLY thereafter for the remaining Lease Term.
-------
Each Rental Payment shall be payable on the same day of the month as the Rental
Payment Date in each succeeding rental period during the remaining Lease Term
(each, a "RENTAL PAYMENT DATE"):
AMOUNT OF EACH
Number of Rental Payments RENTAL PAYMENT
------------------------- --------------
48 $464,226.05
(c) ADVANCE RENTAL PAYMENT. Lessee agrees to pay Lessor the first 0 and
last 0 Rental Payments, due and payable on the Acceptance Date.
(d) SECURITY DEPOSIT. Lessee agrees to make a payment in an amount equal
to 0% of the Acquisition Cost of the Equipment, due and payable on the
Acceptance Date, to be held by Lessor as a non-interest bearing deposit to
secure Lessee's performance under the Lease.
4. EQUIPMENT LOCATION(S). The Equipment will be located at the
location(s) specified in Schedule A-1 hereto.
6
<PAGE>
5. Lessor will invoice Lessee for all sales, use and/or personal property
taxes as and when due and payable in accordance with applicable law, unless
Lessee delivers to Lessor a valid exemption certificate with respect to such
taxes. Delivery of such certificate shall constitute Lessee's representation
and warranty that no such taxes shall become due and payable with respect to the
Equipment, and Lessee shall indemnify and hold harmless Lessor from and against
any and all liability or damages, including late charges and interest which
Lessor may incur by reason of the assessment of such taxes.
6. The Rental Payments may change for Equipment accepted after JUNE 12,
----------
2000.
-----
7. Section 12(f) of the Master Lease, the hazardous material covenant, is
hereby waived with respect to the use of diesel fuel by the data center
generators described in the Schedule A.
8. For purposes of Section 19 of the Master Lease ("Related Lease
Schedules"), the Equipment covered under this Lease is not related to the
Equipment covered under Lease Schedule No. 35076-00002.
Dated as of: MAY 26, 2000
------------
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
---------------------------- ----------------------------
Name: David w. Kellogg Name: Kenneth W. Hale
-------------------------- --------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
7
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
LOC# (01)
VENDOR: CDW COMPUTER CENTERS, INC.
1 IBM TP 390E6/333 6.4GB 64MB 2
VENDOR: PROJECT SCHEDULERS
1 SureTrack system 73134176
VENDOR: NECR
1 Laptop bag & niccard
VENDOR: BOISE CASCADE OFFICE PRODUCTS
1 ct Chair, folding 5/ct bge ALTSRC=U22 1 ct
1 Table, fold DLX 36x96 wal req prod #E4FTD3696WA
ALTSRC=U22 1 ea
1 Table, crt folding wal/st req prod #E4FTD3696WA
ALTSRC=U22 1 ea
VENDOR: NEXTEL
1 I1000 plus Cell phone with:
1 Charger: wall/travel
1 900MAH LI Battery: std
1 I1000 Case: plastic holder
VENDOR: PRO TOOL & SUPPLY
2 Item# WP60113; WAP sq 10 gal RDF vacuum
2 Item# WP100377; WAP Hepa filter kit
VENDOR: GE APPLIANCES
1 ZDI15C BB ref-compact
1 GSD5920D BB undctr D/W
4 TCX22PAC BB refrigerator
6 JE1640GB Micro Wave O
</TABLE>
8
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
VENDOR: WHITNEY VEIGAS
19 LSI Life Safety ID signs
VENDOR: WINBROOK ASSOCIATES, INC.
54 Network cabinets
54 Standard rack 7x9
29 Single vertical cable management
54 Wire relay racks
34 Sun 450 29" customer cabinet
190 One-door customer cabinet
21 Two-door customer cabinet
12 Three-door customer cabinet
13 Sun 450 server cabinet 29x36x84
6 E-450 rackmount kits
12 Power strips
VENDOR: RESOURCES FOR OFFICE INTERIORS
27 Workstations
308 AIS steelcase Avenir stations
68 Offices; constructed
Fabric: Newport
Trim: Black
Laminate: Chromatix
ELECTICAL ITEMS, AS MORE FULLY DESCRIBED BELOW:
VENDOR: SOUTHWORTH-MILTON POWER SYSTEMS
4 3516BDI TA Outdoor Caterpillar Low Emissions Diesel Packaged
Generator Sets. Each unit rated 2000KW, continuous
standby power, 277/480 volt, 60 hertz, 1800 rpm, 3
phase, 0.8 pf. Included is the following for each
unit:
3500 Gallon Fuel Tank Base Double Walled with Leak
Detection
Structural Steel Base
Starting Batteries with Rack and Cables
Battery Charger
Charging Alternator
</TABLE>
9
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
Engine/Generator Unit Mounted Control Panel
NFPA 99-Pre-Alarm Module
Engine Gauge Panel
3000 Amp Free Standing Circuit Breakers, 100%
rated Mounted and Wired with Enclosure
Jacket Water Heater, Two (2) at 6000 Watts each
United Mounted Radiator, Stack Core Type, with
Fuel Oil Coolers
Permanent Magnet Generator
Automatic Start/Stop Package
Unit Mounted Control Panel, Caterpillar EMCPII+
Critical Grade Silencer mounted and insulated
within the Enclosure
Stainless Steel Flexible Connector
Flexible Fuel Connectors
Vibration Isolators, Seismic Spring Type
Lubricating Oil
Ethylene Glycol
Electronic Isochronous Governor with Load Share
Module
Remote Breakglass Shutdown Switch
4 LEA Dynatech System 3 TVSS units
1 4 Engine, NEMA 1 enclosed, wall mounted remote
annunciator panel
PDU distribution A & B panels
VENDOR: RUSSELECTRIC INC.
UTILITY PARALLELING/ GENERATOR CONTROL SYSTEM
CONSISTING OF THE FOLLOWING:
1 Generator Control Cubicle; including, but not
limited to, (1) Programmable Logic Controller,
General Electric Series 90-30
4 Generator Control Cubicle
1 Master Control Cubicle
4 Utility Transfer Control Cubicle
1 Mimic Display Cubicle
</TABLE>
10
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
1 Generator Circuit Breaker Switchgear consisting of
the following:
4 Generator Breaker Cubicle
6 Distribution Circuit Breaker Cubicle
1 Distribution Circuit Breaker Cubicle
1 UPS Input Circuit Breaker Switchgear consisting of
the following:
2 Utility Main Breaker Cubicle
2 Generator Main Breaker Cubicle
1 Tie Circuit Breaker Cubicle
4 Distribution Breaker Cubicle
2 Distribution Circuit Breaker Cubicle
1 Mechanical/House Circuit Breaker Switchgear
consisting of the following:
2 Utility Main Breaker Cubicle
2 Generator Main Breaker Cubicle
1 Tie Circuit Breaker Cubicle
6 Distribution Breaker Cubicle
1 Distribution Circuit Breaker Cubicle
1 Russelectric SCADA Terminal consisting of the
following:
1 Master Display Unit; including, but not limited
to, (1) Desktop Personal Computer with 450 MHz
Pentium II Xeon Processor with 512K Cache, 256 MB
SDRAM, 9GB, Harddrive, 3.5" diskette drive, 13X
min / 32X max CD-ROM, Telepath modem w/x2
technology, 3COM PCI 10/100 twisted pair Ethernet
w/wol, 104+ keyboard and MS IntelliMouse, Gateway
Model E-5250, (1) 21" color monitor by Vivitron
model VX1100 (19.7" viewable), and (1) Hewlett
Parkard 6Pse printer.
VENDOR: LOAD TECHNOLOGY, INC.
1 Model: OSL6-2000.1-480V33-0600-(6) 100 Resistive
Load Bank, rating: 2000 KW, consisting of the
following:
An outdoor load enclosure containing the load
resistors, power controls and cooling fan.
An outdoor control enclosure containing the pilot
control devices for remote mounting.
</TABLE>
11
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
VENDOR: PRITCHARD BROWN
4 Sound Attenuated Enclosure; including, but not
limited to the following:
3500 Gallon Capacity Fuel Tank
3850 Gallon Rupure Basin
4-Point Base Lift Plates
U.L. Listed Fuel Tank
VENDOR: EXIDE
5 750KVA Multi-Module Parallel UPS System with:
Input Voltage of: 480 VAC, 3 Phase, 3-Wire, 60 Hz
Output Voltage of: 480 VAC, 3 Phase, 3-Wire, 60 Hz
5 System Battery
5 2500AF/2000AT Battery Breaker with Aux. Contacts
and Shunt Trip
5 Manually Operated 2000 amp Fused Battery
Disconnect Switch
1 UPS Output Switchboard with System Bypass Control
by General Electric Rated at 100KAIC
1 Remote Monitor Panel
HVAC, PLUMBING & FIRE PROTECTION
ITEMS AS MORE FULLY DESCRIBED BELOW:
VENDOR: ADVANCED SAFETY SYSTEMS, INC.
FM-200 Fire Detection/Suppression System with Fenwal's
Smart-One Analog Intelligent Multizone System
Technology for 3 zones.
VENDOR: DELTA MECHANICAL OF NEW ENGLAND, INC.
HVAC System; including, but not limited to, the
following:
Controls
</TABLE>
12
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
Chillers
RTUs/AIIU
Cooling Towers
Pumps & Accessories
RGDs
Fans
Electric Heat & Cabs
Supply & Return Piping
Liebert Units
Fan Powered & VAV Boxes
Fire Dampers/Access Damper
Trailers
Smoke Dampers
AUDIO/VISUAL EQUIPMENT ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: HB COMMUNICATIONS
1 VPL-X1000 Sony LCD Video Projector
1 VPLCFM30 Sony Short Focus Lens
4 LMP-600 Sony Lamps
1 WRK-24SA-27 MidAtlantic Equipment Rack
1 MW-VT MidAtlantic Vented Top
1 PD-1415C MidAtlantic Power Strip
1 MD-KB MidAtlantic Keyboard Tray
10 U317 MidAtlantic Vented Shelves
1 AS3-22 MidAtlantic Video Rackshelf (computer monitor)
1 AV-16B Cybex AutoView 16 input KVM Switcher
9 CUFU-6 Cybex CPC/VGA Cables
2 RMK-33 Cybex Rackmounts
1 A-906 TOA Mixer/Power Amplifier
1 MB-25B TOA Rack Mount
4 U21S TOA Input Module
5 C803-AT47 Soundolier 8" Coaxial Loudspeaker
5 95-8-10 Soundolier 8" Loudspeaker enclosures
5 61-8W Soundolier Grille
</TABLE>
13
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
5 81-8 Soundolier T Bar Support
22 RGB 202x Extron Computer Interface
22 MBC/VGA MBC Input Cable
1 AV Creston Audiovisual Control System
1 SAS-BS3 Sony DSS Receiver & Dish
1 IN1024 Inline Video Scan Doubler
1 Inline Rack Mount
1 3200 Extron RGBHV Matrix Switcher
9 VPL-X1000U Sony LCD Video Projector
9 VPLL-FM30 Sony Short Focus Lens
9 Trooper Rear Projection Screen
9 Trooper RPM System (Video Projection Support)
1 WRK-44SA MidAtlantic Equipment Rack
1 RWL-1 Soundolier Rack Work Light
1 SB MidAtlantic Blank Panels
1 VTF MidAtlantic Vented Panels
1 Wiremold Power Strips
Cable & Connectors
SECURITY ITEMS AS MORE FULLY DESCRIBED BELOW:
VENDOR: ADT SECURITY SERVICES, INC.
Central Security & Access Control Systems;
including, but not limited to, the following:
Recessed Magnetic Door Switch
Surface Mounted Door Switch
Relay Alarm Interface
Motion Detector (Passive Infrared)
Magnetic Lock with Power Supply for Access
Controlled Door
Interior Intercom Station with speaker and Signal
Button
Weatherproof Intercom Station with speaker and
Signal Button
Inside Close Circuit Television Camera with all
Accessories such as mounting brackets, bubble
</TABLE>
14
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
ceiling housing and lens
Inside Close Circuit Television Camera with Pan
Tilt and Zoom with all Accessories such as
mounting brackets, bubble ceiling housing and lens
Outside Close Circuit Television Camera with Pan
Tilt and Zoom with Weatherproof Housing and
Equipment (Speed Dome)
Fixed Outside Close Circuit Television Camera with
Weatherproof Housing and Equipment
Assistance Button/Panic Alarm
Glass Break Detector
Proximity Reader Controlled Door with: Entrance
Card Reader, Electric Door Strike, Exit Device
(PIR), and Magnetic Switch
Proximity Card Reader Controlled Door with:
Entrance Card Reader, Exit Card Reader, Electric
Door Strike, and Magnetic Switch
Exterior Mounting for Card Reader
Multiplex Panel, Base Panel with Power Supply with
Battery Backup
Report Printer
Laser Printer
Work Station
Card Printing Supplies
Portable Video ID Input Camera with Interface
Cables
Digital Recorder for 32 CCTV Cameras
16 Camera Multiplexer
Proximity Card Reader
Visitor Printer Option (Printer and Software)
</TABLE>
WITH ALL STANDARD AND ACCESSORY EQUIPMENT
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: David W. Kellogg By: Kenneth W. Hale
------------------------------- -------------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
----------------------------- -----------------------------
Title: Vice President/Sr. Lender Title: CFO
---------------------------- ----------------------------
15
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
SCHEDULE A-1 EQUIPMENT LOCATION
Attached hereto and made part of the
following documents: Lease Schedule No. 35076-00001
and Acceptance Certificate
With: NAVISTE, INC.
<TABLE>
<CAPTION>
LOCATION# EQUIPMENT LOCATION
------------------------------------------------------------------------------
<S> <C>
01 400 Minuteman Drive, Andover, MA 01810
------------------------------------------------------------------------------
</TABLE>
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
16
<PAGE>
AMENDMENT
FINANCIAL COVENANTS
______________________
This Amendment ("Amendment") is attached to and made a part of that certain
Lease Schedule No. 35076-00001 ("Schedule") to Master Equipment Lease Agreement
No. 35076 dated as of May 26, 2000 (the "MASTER LEASE") by and between FLEET
CAPITAL CORPORATION ("FCC") and NAVISITE, INC., a Delaware corporation
("LESSEE"). All capitalized terms used herein which are not defined herein shall
have the meanings set forth in the Master Lease.
For purposes of the Schedule, the Master Lease is hereby amended by adding the
following Section 5A after Section 5 thereof:
"5A. ADDITIONAL FINANCIAL COVENANTS. Throughout the term of the Master
Lease, Lessee shall comply with each of the following financial covenants:
Affirmative Covenants:
---------------------
1. Cash. Lessee shall at all times maintain a balance of available
cash and Cash Equivalents equal to not less than (a) $15,000,000.00 or (b)
at all times after Lessee shall have raised an aggregate amount of not less
than $300,000,000.00 of net proceeds from the issuance of any one or more
of any form of convertible debt securities, high-yield debt financing
instruments, or capital stock or other equity securities, $30,000,000.00.
2. Market Capitalization. Lessee's common stock shall remain listed on
the Nasdaq Stock Market or other nationally recognized United States stock
exchange acceptable to Lessor and shall maintain thereon a market
capitalization of not less than $1,000,000,000.00.
Negative Covenants:
------------------
1. Indebtedness. Lessee shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume, guarantee, or be or remain liable
with respect to any Indebtedness other than the following: (a) Indebtedness
to the Lessor; (b) Indebtedness existing as of the date of this Amendment
and disclosed on Lessee's Form 10-Q for the period ended January 31, 2000
and filed with the Securities and Exchange Commission ("SEC") on March 16,
2000; (c) Indebtedness arising from the issuance by Lessee of convertible
debt securities and of high-yield debt financing instruments; (d) senior
unsecured Indebtedness of the Lessee not exceeding in the aggregate
outstanding principal amount at any time $15,000,000.00.
2. Sale and Leaseback. Lessee shall not, and shall not permit any of its
Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property owned by it in order to
lease such property or lease other property that the Lessee or such
Subsidiary intends to use for substantially the same purpose as the
property being sold or transferred, other than in the ordinary course of
its business consistent with past practice.
3. Liens. Lessee shall not, and shall not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any mortgage, pledge, security
interest, lien or other charge or encumbrance, including the lien or
retained security title of a conditional vendor upon or with respect to any
of its property or assets ("Liens"), or assign or otherwise convey any
right to receive income, including the sale or discount of accounts
receivable with or without recourse but excluding revenue sharing
arrangements Lessee enters into with software vendors and service providers
in the ordinary course of business consistent with past practice, except
the following ("Permitted Liens"): (a) Liens in favor of the Lessor; (b)
Liens existing as of the date of this Amendment and disclosed on Lessee's
Form 10-Q for the period ended January 31, 2000 and filed with the SEC on
March 16, 2000; (c) liens for taxes, fees, assessments and other
governmental charges to the extent that payment of the same may be
postponed; (d) landlords' and lessors' liens in respect of rent not in
default or liens in respect of pledges or deposits under workmen's
compensation, unemployment insurance, social security laws, or similar
legislation (other than ERISA) or in connection with appeal and similar
bonds
17
<PAGE>
incidental to litigation; mechanics', laborers' and materialmen's and
similar liens, if the obligations secured by such liens are not then
delinquent; liens securing the performance of bids, tenders, contracts
(other than for the payment of money); and statutory obligations incidental
to the conduct of its business consistent with past practice and that do
not in the aggregate materially detract from the value of its property or
materially impair the use thereof in the operation of its business; (e)
rights of lessors under capitalized leases; (f) easements, rights of way,
restrictions and other similar charges or Liens relating to real property
and not interfering in a material way with the ordinary conduct of its
business; (g) Liens on assets acquired after the date hereof as permitted
by the terms of this Amendment (including liens on assets of Subsidiaries
so acquired) if the indebtedness or obligation secured by such Lien is
permitted by the terms of this Amendment and such Lien was created in
contemplation of the acquisition of such asset or Subsidiary by the Lessee;
and (h) Liens on its assets created in connection with the refinancing of
Indebtedness secured by Permitted Liens on such assets, provided that the
amount of Indebtedness secured by any such Lien shall not be increased as a
result of such refinancing and no such Lien shall extend to property and
assets of the Lessee or any such Subsidiary not encumbered prior to any
such refinancing.
4. Merger; Consolidation. Lessee shall not, and shall not permit any of
its Subsidiaries to, sell, lease or otherwise dispose of assets (valued at
the greater of cost or market), other than sales of inventory in the
ordinary course of business consistent with past practice; or liquidate,
merge or consolidate into or with any other person or entity or effect any
stock or asset acquisition (other than in the ordinary course of business
consistent with past practice), provided that any Subsidiary of the Lessee
or of CMGI, Inc. ("CMGI") may merge or consolidate into or with (i) the
Lessee if no Event of Default has occurred and is continuing or would
result from such merger and if the Lessee is the surviving company, or (ii)
any other wholly-owned Subsidiary of the Lessee.
5. Equity Distributions. Lessee shall not, and shall not permit any of
its Subsidiaries to, pay any dividends on any class of its capital stock or
make any other distribution or payment on account of or in redemption,
retirement or purchase of such capital stock, except for (i) the issuance,
delivery or distribution by the Lessee of shares of its common stock pro
rata to its existing shareholders, (ii) the purchase or redemption by the
Lessee of its capital stock with the proceeds of the issuance of additional
shares of capital stock, and (iii) the issuance and repurchase of capital
stock to employees under an employee stock purchase or similar program.
6. Investments. Neither the Lessee nor any of its Subsidiaries shall make
or maintain any Investments other than existing Investments in Subsidiaries
and new Investments in such Subsidiaries in the ordinary course of its
business consistent with past practice, provided such new Subsidiaries are
in the same line of business as Lessee or (with Lessor's prior written
consent which shall not be unreasonably withheld) complementary lines of
business.
7. Transactions with Affiliates. Lessee will not, and will not permit any
of its Subsidiaries to, engage in any transaction with any Affiliate (other
than for services as, or in connection with the employment of, employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any such Affiliate or, to the knowledge of the Lessee,
any corporation, partnership, trust or other entity in which any such
Affiliate has a substantial interest or is an officer, director, trustee or
partner, on terms more favorable to such Person than would have been
obtainable on an arm's-length basis in the ordinary course of business.
8. Change of Control. Lessee shall not permit CMGI to maintain beneficial
ownership (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended, or any successor provision thereto) of less than 51% of
the capital stock of Lessee ordinarily entitled to vote for the election of
directors.
Compliance Certificates. Lessee will furnish to Lessor, immediately
prior to Lessor's funding of the acquisition of the Equipment, and
thereafter within 10 days of the end of each month during the Lease Term or
any Renewal Term, a Compliance Certificate, substantially in the form of
EXHIBIT A hereto, certified by
18
<PAGE>
Lessee's chief financial officer, as to Lessee's compliance with the
financial covenants contained herein.
DEFINITIONS. For purposes of this section 5A, the following terms shall
have the meanings set forth below. All other financial terms contained
herein that are not specifically defined herein shall have meanings and
values determined in accordance with United States generally accepted
accounting principles, as defined by controlling pronouncements of the
Financial Accounting Standards Board, as from time to time supplemented and
amended, and consistently applied ("GAAP")
"AFFILIATE" includes any corporation, partnership, association, joint
venture, company, trust, individual or entity, which now or hereafter at
any time controls, is controlled by, or is under common control with a
Person, including without limitation, each person or entity who or which
is, at any time, a shareholder, director or officer of such Person.
"Cash Equivalents" shall mean time deposits, certificates of deposit,
overnight bank deposits [and U.S. government securities and commercial
paper of an issuer rated at least A-1 by Standard & Poor's Ratings Group or
P-1 by Moody's Investors Services, Inc., in each case which have a maturity
of less than three months.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, collectively, as amended and in
effect from time to time.
"INDEBTEDNESS" shall mean the total of all obligations, whether current or
long-term, which in accordance with GAAP would be included as liabilities,
contingent or otherwise, upon a balance sheet as at the date as of which
Indebtedness is to be determined (but excluding trade payables incurred in
the ordinary course of business and not overdue), and shall also include,
without limitation, obligations for money borrowed, obligations evidenced
by bonds, debentures, notes or similar instruments, reimbursement
obligations with respect to letters of credit or bankers' acceptances,
obligations issued or assumed as the deferred purchase price of property or
services, obligations under capitalized leases and synthetic leases,
guaranties, endorsements (other than for collection in the ordinary course
of business) or other arrangements whereby responsibility is assumed for
the obligations of others, whether by agreement to purchase or otherwise
acquire the obligations of others, including any agreement, contingent or
otherwise, to furnish funds through the purchase of goods, supplies or
services for the purpose of payment of the obligations of others.
"Investment" shall mean the purchase or acquisition of any share of capital
stock, partnership interest, evidence of indebtedness or other equity
security of any other person or entity, any loan, advance or extension of
credit to, or contribution to the capital of, any other person or entity,
any real estate held for sale or investment, any commodities futures
contracts held other than in connection with bona fide hedging
transactions, any other investment in any other person or entity, and the
making of any commitment or acquisition of any option to make an
Investment.
"PERSON" shall mean an individual, a corporation, a limited liability
company, a partnership, a limited liability partnership, a joint venture or
adventure, a trust or estate or unincorporated organization, a joint stock
company or other similar organization, a governmental or political
subdivision, or any other legal entity, and shall include the Lessee and
all Affiliates of Lessee.
19
<PAGE>
Except as specifically set forth herein, all of the terms and conditions of the
Master Lease remain in full force and effect and are hereby ratified and
affirmed. To the extent that the provisions of the Amendment conflict with any
provisions contained in the Master Lease, the provisions of this Amendment will
control.
Dated as of: May 26, 2000
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
--------------------------------- --------------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
------------------------------ -----------------------------
Title: Vice President/Sr. Lender Title: CFO
------------------------------ -----------------------------
20
<PAGE>
EXHIBIT A
[NAVISITE, INC.'S LETTERHEAD]
TO: FLEET CAPITAL CORPORATION FLEET NATIONAL BANK
50 Kennedy Plaza 100 Federal Street
Providence, Rhode Island 02903-2305 Boston, Massachusetts 02110
ATTN: Portfolio Management Department ATTN: Lynn R. Schade
Re: Financial Covenants under Master Equipment Lease Agreement
No. 35076 dated as of May 26, 2000 (the "LEASE").
The undersigned hereby certifies that he/she is the chief financial officer
of NaviSite, Inc. ("LESSEE") and that as of the end of the month of ________,
200_, Lessee [is/is not] in compliance with the affirmative financial covenants
set forth below:
<TABLE>
<CAPTION>
REQUIRED COVENANT REQUIRED AMOUNT ACTUAL AMOUNT COMPLIANCE
------------------------------------------- ---------------------------- -------------------------- ------------------------
(Y/N)
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Minimum Balance Sheet Cash $15,000,000 ($30,000,000
after certain equity
raising thresholds are met)
------------------------------------------------------------------------------------------------------------------------------
Minimum Market Capitalization $1,000,000,000
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The undersigned hereby also certifies that Lessee is in compliance with all
negative financial and other covenants set forth in the Lease.
Dated as of: _______________________________
NAVISITE, INC.
By: _________________________________
Name: _______________________________
Title: Chief Financial Officer
21
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
PROPERTY TAX INDEMNIFICATION RIDER
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Property Tax Indemnification Rider (this "RIDER") is attached to and
made a part of that certain Lease Schedule No. 35076-00001, dated as of MAY 26,
2000 (the "LEASE SCHEDULE"), by and between the undersigned parties.
Notwithstanding any provision to the contrary in the Lease, Lessee shall
file directly with all appropriate taxing authorities all declarations, returns,
inventories and other documentation with respect to any personal property taxes
due or to become due with respect to the Equipment ("TAXES") and shall pay on or
before the date when due all such Taxes assessed, billed or otherwise payable
with respect to such Equipment directly to such taxing authorities. Upon request
by Lessor, Lessee shall provide Lessor with copies of satisfactory documentation
and proof of payment of such Taxes. Lessee shall indemnify and hold harmless
Lessor from and against any such Taxes, and any penalties and interest thereon,
and any other liabilities and damages that Lessor may incur arising out of the
failure of Lessee to pay when due such Taxes. The indemnity and covenants set
forth herein shall continue in full force and effect and shall survive the
expiration or earlier termination of the Lease.
All capitalized terms used herein and not defined herein shall have the
meanings set forth or referred to in the Lease Schedule. Except as specifically
set forth herein, all of the terms and conditions of the Lease shall remain in
full force and effect and are hereby ratified and affirmed. To the extent that
the provisions of this Rider conflict with any provisions contained in the
Lease, the provisions of this Rider shall control.
Dated as of: MAY 26, 2000
------------
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
22
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
PURCHASE OBLIGATION RIDER
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Purchase Obligation Rider (this "RIDER") is attached to and made a
part of that certain Lease Schedule No. 35076-00001, dated as of MAY 26, 2000
(the "LEASE SCHEDULE"), by and between the undersigned parties.
Upon the expiration of the Lease Term, Lessor shall sell to Lessee and
Lessee shall purchase from Lessor all, but not less than all, of the Equipment
for an amount, payable in immediately available funds on the last day of the
Lease Term, equal to: (a) all Rental Payments, late charges and other amounts
due and owing under the Lease; plus (b) all taxes, assessments and other charges
due or payable in connection with the sale of the Equipment to Lessee; plus (c)
10.00000% of the Acquisition Cost of the Equipment.
Upon receipt by Lessor of all amounts payable hereunder, Lessor shall
convey all of its right, title and interest in and to the Equipment to Lessee on
an "AS-IS," "WHERE-IS" BASIS, WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, and without recourse to Lessor, except that the Equipment shall be free
and clear of all liens created by Lessor.
All capitalized terms used herein and not defined herein shall have the
meanings set forth or referred to in the Lease Schedule. Except as specifically
set forth herein, all of the terms and conditions of the Lease shall remain in
full force and effect and are hereby ratified and affirmed. To the extent that
the provisions of this Rider conflict with any provisions contained in the
Lease, the provisions of this Rider shall control.
Dated as of: MAY 26, 2000
------------
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
23
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
ACCEPTANCE CERTIFICATE
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Acceptance Certificate (this "ACCEPTANCE CERTIFICATE") is attached to and
made a part of that certain Lease Schedule No. 35076 - 00001, dated as of
-------------
MAY 26, 2000 (the "LEASE SCHEDULE"), by and between the undersigned parties. All
------------
capitalized terms used herein and not defined herein shall have the meanings set
forth or referred to in the Lease Schedule. To the extent the terms set forth in
this Acceptance Certificate differ or conflict with any of the terms set forth
in the Lease, the terms set forth in this Acceptance Certificate shall control.
1. Lessee acknowledges and agrees that each item of Equipment set forth on
Schedule A hereto (collectively, the "EQUIPMENT") is hereby unconditionally
accepted by Lessee for all purposes under the Lease at the locations specified
in Schedule A-1 hereto, and hereby agrees to faithfully perform all of its
obligations under the Lease as of the date hereof (the "ACCEPTANCE DATE").
Lessee hereby authorizes and directs Lessor to make payment to each vendor of
the Equipment pursuant to such vendor's invoice or any purchase order, purchase
agreement or supply contract with such vendor, receipt and approval of which are
hereby reaffirmed by Lessee.
2. By its execution and delivery of this Acceptance Certificate, Lessee hereby
reaffirms all of the representations, warranties and covenants contained in the
Lease as of the date hereof, and further represents and warrants to Lessor that
no Event of Default, and no event or condition which with notice or the passage
of time or both would constitute an Event of Default, has occurred and is
continuing as of the date hereof. Lessee further certifies to Lessor that
Lessee has selected the Equipment and has received and approved the purchase
order, purchase agreement or supply contract under which the Equipment will be
acquired for all purposes of the Lease.
3. Lessee hereby represents and warrants that: (a) the Equipment has been
delivered and is in an operating condition and performing the operation for
which it is intended to the satisfaction of the Lessee; and (b) if requested by
Lessor, the Equipment has been marked or labeled evidencing the Lessor's
interest therein.
4. The LEASE TERM COMMENCEMENT DATE is the 10th day of June, 2000.
5. The RENTAL PAYMENT COMMENCEMENT DATE is the 10th day of July, 2000.
6. All terms and provisions of the Lease Schedule shall remain in full force
and effect, except as otherwise provided below:
- ACQUISITION COST: $ N/A.
- LEASE TERM: N/A months.
- RENTAL PAYMENTS: NUMBER OF RENTAL PAYMENTS RENTAL PAYMENT AMOUNT
------------------------- ---------------------
N/A
- ADVANCE RENTAL PAYMENT(S): First N/A and last N/A.
- SECURITY DEPOSIT: N/A%.
Dated: June 7, 2000
Agreed and Accepted:
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
---------------------------- ----------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
-------------------------- --------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
24
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
LEASE SCHEDULE NO. 35076-00002
-----------
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
LESSEE: NAVISITE, INC.
ADDRESS: 400 MINUTEMAN DRIVE
ANDOVER, MA 01810
1. This Lease Schedule No. 35076 - 00002 dated as of MAY 26, 2000 is
entered into pursuant to and incorporates by this reference, all of the terms
and provisions of that certain Master Equipment Lease Agreement No. 35076 dated
as of MAY 26, 2000 (the "MASTER LEASE"), for the lease of the Equipment
described in Schedule A attached hereto. This Lease Schedule shall constitute a
separate, distinct and independent lease of the Equipment and the contractual
obligation of Lessee. References to the "THE LEASE" or "THIS LEASE" shall mean
and refer to this Lease Schedule, together with the Master Lease and all
exhibits, addenda, schedules, certificates, riders and other documents and
instruments executed and delivered in connection with this Lease Schedule, all
as the same may be amended or modified from time to time. All capitalized terms
used herein and not defined herein shall have the meanings set forth or referred
to in the Master Lease. By its execution and delivery of this Lease Schedule,
Lessee hereby reaffirms all of the representations, warranties and covenants
contained in the Master Lease, as of the date hereof, and further represents and
warrants to Lessor that no Event of Default, and no event or condition which
with notice or the passage of time or both would constitute an Event of Default,
has occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The Acquisition Cost of the Equipment is:
$11,400,000.00.
3. (a) LEASE TERM. The Lease Term shall commence on the date hereof and
shall continue for a period of 48 months after the Lease Term Commencement Date
set forth in the Acceptance Certificate to this Lease Schedule, plus any renewal
or extended term applicable in accordance with the terms of the Lease.
(b) RENTAL PAYMENTS. In addition to interim rent payable pursuant to
Section 2 of the Master Lease, Lessee shall pay Lessor 48 consecutive Rental
Payments in the amounts set forth in the schedule below, plus any applicable
sales/use taxes, commencing on the Rental Payment Commencement Date set forth in
the Acceptance Certificate and MONTHLY thereafter for the remaining Lease Term.
Each Rental Payment shall be payable on the same day of the month as the Rental
Payment Date in each succeeding rental period during the remaining Lease Term
(each, a "RENTAL PAYMENT DATE"):
AMOUNT OF EACH
Number of Rental Payments RENTAL PAYMENT
------------------------- --------------
48 $284,525.64
(c) ADVANCE RENTAL PAYMENT. Lessee agrees to pay Lessor the first 0
and last 0 Rental Payments, due and payable on the Acceptance Date.
(d) SECURITY DEPOSIT. Lessee agrees to make a payment in an amount
equal to 0% of the Acquisition Cost of the Equipment, due and payable on the
Acceptance Date, to be held by Lessor as a non-interest bearing deposit to
secure Lessee's performance under the Lease.
4. EQUIPMENT LOCATION(S). The Equipment will be located at the
location(s) specified in Schedule A-1 hereto.
25
<PAGE>
5. Lessor will invoice Lessee for all sales, use and/or personal property
taxes as and when due and payable in accordance with applicable law, unless
Lessee delivers to Lessor a valid exemption certificate with respect to such
taxes. Delivery of such certificate shall constitute Lessee's representation
and warranty that no such taxes shall become due and payable with respect to the
Equipment, and Lessee shall indemnify and hold harmless Lessor from and against
any and all liability or damages, including late charges and interest which
Lessor may incur by reason of the assessment of such taxes.
6. The Rental Payments may change for Equipment accepted after JUNE 12,
2000.
7. Section 12(f) of the Master Lease, the hazardous material covenant, is
hereby waived with respect to the use of diesel fuel by the data center
generators described in the Schedule A.
8. For purposes of Section 19 of the Master Lease ("Related Lease
Schedules"), the Equipment covered under this Lease is not related to the
Equipment covered under Lease Schedule No. 35076-00001.
Dated as of: MAY 26, 2000
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
26
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00002
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
LOC# (01)
ELECTRICAL ITEMS AS MORE FULLY DESCRIBED BELOW:
VENDOR: PETERSON POWER (CAT)
3 3512 diesel engine generator systems; each
including, but not limited to, the following:
60hz 480 volts
60 hertz
Standby power application
3512 1250 EKW 60 hz pgs-stby
Electronic modular control PNL
English display units
CSA test and certification
Neutral grounding connection
Alarm module - NFPA 110
Panel lights/auxiliary relay
Coolant loss sensing
Cust communications module-CCM
2301A load sharing governor
Generator conversion (PM Excitation)
Space heater relay
Radiator 46/CV
Fan pulley 0.428 ratio
Coolant level sensor
Fuel priming pump, RH mounted
Flexible fuel lines
Fuel cooler
Fumes disposal
Jacket water heater - dual
Oil pan drain valve
24 volt battery set - dry
Battery charger 10 AMP
Charging Alternator 24V 35 AMP
Circuit Breaker, 2000A, 100%
Fuel/Water separator
Double Battery Box, Group 4D
Seismic Calculations
Vibration Isolator
</TABLE>
27
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
Critical Silencer, 14 inch
Dimensions 9'W x 19' L
VENDOR: RUSSELECTRIC INC.
1 Generator Paralleling and Distribution Switchgear;
including, but not limited to, the following:
1 Master/Generator Control Cubicle CC
5 Circuit Breaker Cubicle
VENDOR: IEM
1 Metal Clad Switchgear "PSG" - NEMA3R non walk-in 3
phase 3 wire 21KV 1200 AMP BUS 125KV BIL CONS
1 Switchgear "MHSB" - NEMA1 3 phase 3 wire 480V 2500
AMP, Class III, CU bussing 100KA1C/braced for 100KA
1 Switchgear "USB" - NEMA1 3 phase 4 wire 277/480V
2500 AMP Class III, CU bussing 100KA1C/braced for
100KA
2 Balteau pad mounted transformers, 3000KVA, 3
phase, mineral oil filed, designed for outdoor
service. OA/FFA, 55/65 deg. C Rise, 30 deg.
Average ambient, 60Hz, with AI windings, 7.0%
impedance w/primary loop feed, dead front, no
lightening arrestors, 21KV primary - 125KV BIL to
277/480V secondary
1 SWBD "Load Bank Breaker", NEMA1 enclosed, 480V 3
phase 3 wire w/grd. Class III, 3000A, CU Bussing,
100KA1C
2 SWBD "UPSDPA", "UPSDPB", 2500A Bussing, 480V 3
phase 3 wire w/grd. Class I, 100KA1C
4 Dist. Panel "MDP11, MDP12, MDP21, MDP22", 600A CU
Bussing, 480V 3 phase 3 wire w/grd. 65KA1C, wall
mount
1 SWBD "HD72" 800A Cu Bussing, 480V 3 phase 3 wire
w/grd. 100KA1C, Class I
1 SWBD "MBPSB", 2500A CU Bussing, 480V 3 phase 3
wire w/grd. 65KA1C, Class I
</TABLE>
28
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
VENDOR: POWERWARE
3 625 Powerware Plus 750; each including, but not
limited to, the following:
(1) UPS OUT
(2) UPS System Cabinet
(2) Battery Strings
HVAC & FIRE PROTECTION SYSTEM ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: N/A
1 HVAC system
VENDOR: VARIOUS
1 FM200 Fire Detection/Suppression System with Fenwal's
Smart One Analog Intelligent Multizone System
Technology
MECHANICAL & PLUMBING ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: LIEBERT
23 Computer Room A/C Units; each including, but not
limited to, the following:
Quiet Line Condenser Units (CDF415L)
AHU (FH245A-ASOO)
60% Filters
Semi Hermetic Compressor
4-step unloading
Quiet Line Condenser Fan
Dual Supply Fan
Oversized Motor (7.5HP)
Top Single Point of Connection
Outdoor Unit Disconnect
</TABLE>
29
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
Indoor Unit Disconnect
Controls for Johnson front end interface, Modbus
Hi Efficiency Motors
Extended Condenser Legs 36"
Leak detection kits, cable type
NOC AV EQUIPMENT ITEMS AS MORE FULLY DESCRIBED
BELOW:
VENDOR: CEITRONICS
1 A906MK2 TOA 8 input, 60W mixer-amp
1 MB25B TOA Rack Mount Kit
4 B01S TOA Bridging Line Input Module
5 409-4T Altec 8" Coax Speaker/Transformer
5 LB-8-CP Lowell Tile Support Bridge
5 XCP-810 Lowell Ceiling Backbox
5 WB-8 Lowell Speaker Grille
22 RGB202xi Extron Computer Interface
22 U1 MidAtlantic Mounting Shelf
22 MCB Exide Interface Breakout Cable
1 Axcent3PRO AMX Integrated Control Chassis
1 AXB-VOL3 AMX Volume Control Box
4 AXC-232 AMX Serial/RS232 Card
1 AXT-CV10 AMX Tilt Screen Control Panel
1 SAS-BS3 Sony DSS Receiver & Dish
1 1N1024 Inline Video to RGBHS Scan Converter
1 4YDM Autopatch 200MHz RGBHV with stereo audio matrix
switcher (32x16)
9 VPL-X100U Sony LCD Video Projector
9 VPLL-FM30 Sony Short Focus Lens
1 Trooper 1x5, 60", 1.2 gain screen, wedge frame
2 Trooper 1x2, 60", 1.2 gain screen, wedge frame
9 RPM Trooper Rear Screen Mounting /Mirror
1 502-77B Soundolier Equipment Rack
</TABLE>
30
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00001
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
2 542-77B Soundolier Side Panels
2 RWL-1 Soundolier Work Light
A/R SB series MidAtlantic Blank Panel
A/R VTF series MidAtlantic Vent Panel
A/R King BNC Connectors
A/R 25292 West Penn Plenum Line Cable
A/R 25225 West Penn Plenum Speaker Cable
A/R 5C P/N Liberty Plenum RGBHV Cable
MISCELLANEOUS ITEMS ARE MORE FULLY DESCRIBED BELOW:
Vendor: ADT Security Services, Inc.
1 Integrated Access Control System;
including, but not limited to, the
following:
2 Pro-Watch-NT client workstation w/printer
1 Pro-Watch-NT report printer
1 Visitor badge printer with badging kit
1 Digital camera with access control cards
1 Pro-Watch-NT Communications converter
4 LAN serial T interface with reader/controllers
8 Pro-Watch-NT four reader control panel
8 Power transformer for PW-2000 control panel with
power supplies
8 UL listed 12 VDC or 24 VDC, 4 AMP power supply
with card readers
7 HID proximity reader
7 Supression kit for PW-2000 relays with: door
contacts, rex motions, and local sounder
20 Recessed door contact
20 Request-to-exit motion detector - beige
3 RX-7 remote sounder
7 Armored door contact with CCTV exterior
3 Color integrated camera w/PTZ and presets
3 Exterior camera dome housing with heater & blower
1 Exterior camera housing mounting bracket
1 Exterior camera housing
3 Corner mount adapter
</TABLE>
31
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00002
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
VENDOR: N/A
NOC Console
VENDOR: N/A
1 Projection Screen
VENDOR: UNION PLANNING MILL
1 Security Counter
1 Reception Counter
Personal Lockers
VENDOR: WINBROOK ASSOCIATES, INC.
15 Three door server cabinets
100 One door server cabinets
VENDOR: RESOURCES FOR OFFICE INTERIORS
1 #76303 Rainbow chair w/arms in C.O.M. fabric
#2461-60 sky w/black frame
8 Dauphin Cosmos#CM5261 chair w/black/chrome fabric
#2461-60 sky
2 Patrician Fitzgerald table 39-1/4" diameter Tag:
recp.
2 Patrician end table Faulkner series
14 Nevins 36" round laminate table w/vinyl edge and
Atlantis Martini base/#4661-60 laminate
44 Thonet #5005P chair w/black frame and finish in
C.O.M. Vivaldi #AC63834 midnight #6
46 #4001 swivel tilt chair in C.O.M. fabric AD Navy
w/black frame and shell
1 Patrician Faulkner table 27" x 37"
23 BRCR 53-1/2" x 27" x 29" H training table in a
#4661-60 laminate w/black edge and base
60 Thornet #5002P chair w/out arms in a C.O.M. fabric
midnight #6/black finish
4 Nevins 48" round laminate table #4661-60/black
w/vinyl edge and Atlantis Martini base finishes
20 Thornet Reva #1700 chair stackable finish (7)
black, (7) blue and (6) green
</TABLE>
32
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part Lease Schedule No. 35076-00002
of the following documents: Acceptance Certificate
and UCC Financing Statement(s)
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin
-------- ----- ----- ----------- -----------
<S> <C> <C> <C> <C>
2 Patrician #1726F Fitzgerald 27-1/4"
2 Rainbow task chairs in Authentic Cafe/black
46 #4008 sled base chairs in a #90 navy fabric Tag:
guest seating
(131) AIS Steelcase Avenir stations and (23)
offices
Fabric: Newport
Trim: Black
Laminate: Chromatix
</TABLE>
WITH ALL STANDARD AND ACCESSORY EQUIPMENT
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: David W. Kellogg By: Kenneth W. Hale
-------------------------------- -------------------------------
Name: David W. Kellog Name: Kenneth W.Hale
------------------------------ -----------------------------
Title: Vice President/Sr. Lender Title: CFO
----------------------------- ----------------------------
33
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
SCHEDULE A-1 EQUIPMENT LOCATION
Attached hereto and made part of the
following documents: Lease Schedule No. 35076-00002
and Acceptance Certificate
With: NAVISITE, INC.
<TABLE>
<CAPTION>
Location # Equipment Location
------------------------------------------------------------------------------
<S> <C>
01 2720 Zanker Road in the Valley Technology Centre, Bldg 2,
San Jose, CA 95134
------------------------------------------------------------------------------
</TABLE>
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
34
<PAGE>
AMENDMENT
FINANCIAL COVENANTS
-------------------
This Amendment ("Amendment") is attached to and made a part of that certain
Lease Schedule No. 35076-00002 ("Schedule") to Master Equipment Lease Agreement
No. 35076 dated as of May 26, 2000 (the "MASTER LEASE") by and between FLEET
CAPITAL CORPORATION ("FCC") and NAVISITE, INC., a Delaware corporation
("LESSEE"). All capitalized terms used herein which are not defined herein shall
have the meanings set forth in the Master Lease.
For purposes of the Schedule, the Master Lease is hereby amended by adding the
following Section 5A after Section 5 thereof:
"5A. ADDITIONAL FINANCIAL COVENANTS. Throughout the term of the Master
Lease, Lessee shall comply with each of the following financial covenants:
Affirmative Covenants:
---------------------
1. Cash. Lessee shall at all times maintain a balance of available
cash and Cash Equivalents equal to not less than (a) $15,000,000.00 or (b)
at all times after Lessee shall have raised an aggregate amount of not less
than $300,000,000.00 of net proceeds from the issuance of any one or more
of any form of convertible debt securities, high-yield debt financing
instruments, or capital stock or other equity securities, $30,000,000.00.
2. Market Capitalization. Lessee's common stock shall remain listed on
the Nasdaq Stock Market or other nationally recognized United States stock
exchange acceptable to Lessor and shall maintain thereon a market
capitalization of not less than $1,000,000,000.00.
Negative Covenants:
------------------
1. Indebtedness. Lessee shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume, guarantee, or be or remain liable
with respect to any Indebtedness other than the following: (a) Indebtedness
to the Lessor; (b) Indebtedness existing as of the date of this Amendment
and disclosed on Lessee's Form 10-Q for the period ended January 31, 2000
and filed with the Securities and Exchange Commission ("SEC") on March 16,
2000; (c) Indebtedness arising from the issuance by Lessee of convertible
debt securities and of high-yield debt financing instruments; (d) senior
unsecured Indebtedness of the Lessee not exceeding in the aggregate
outstanding principal amount at any time $15,000,000.00.
2. Sale and Leaseback. Lessee shall not, and shall not permit any of its
Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby it shall sell or transfer any property owned by it in order to
lease such property or lease other property that the Lessee or such
Subsidiary intends to use for substantially the same purpose as the
property being sold or transferred, other than in the ordinary course of
its business consistent with past practice.
3. Liens. Lessee shall not, and shall not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any mortgage, pledge, security
interest, lien or other charge or encumbrance, including the lien or
retained security title of a conditional vendor upon or with respect to any
of its property or assets ("Liens"), or assign or otherwise convey any
right to receive income, including the sale or discount of accounts
receivable with or without recourse but excluding revenue sharing
arrangements Lessee enters into with software vendors and service providers
in the ordinary course of business consistent with past practice, except
the following ("Permitted Liens"): (a) Liens in favor of the Lessor; (b)
Liens existing as of the date of this Amendment and disclosed on Lessee's
Form 10-Q for the period ended January 31, 2000 and filed with the SEC on
March 16, 2000; (c) liens for taxes, fees, assessments and other
governmental charges to the extent that payment of the same may be
postponed; (d) landlords' and lessors' liens in respect of rent not in
default or liens in respect of pledges or deposits under workmen's
compensation, unemployment insurance, social security laws, or similar
legislation (other than ERISA) or in connection with appeal and similar
bonds
35
<PAGE>
incidental to litigation; mechanics', laborers' and materialmen's and
similar liens, if the obligations secured by such liens are not then
delinquent; liens securing the performance of bids, tenders, contracts
(other than for the payment of money); and statutory obligations incidental
to the conduct of its business consistent with past practice and that do
not in the aggregate materially detract from the value of its property or
materially impair the use thereof in the operation of its business; (e)
rights of lessors under capitalized leases; (f) easements, rights of way,
restrictions and other similar charges or Liens relating to real property
and not interfering in a material way with the ordinary conduct of its
business; (g) Liens on assets acquired after the date hereof as permitted
by the terms of this Amendment (including liens on assets of Subsidiaries
so acquired) if the indebtedness or obligation secured by such Lien is
permitted by the terms of this Amendment and such Lien was created in
contemplation of the acquisition of such asset or Subsidiary by the Lessee;
and (h) Liens on its assets created in connection with the refinancing of
Indebtedness secured by Permitted Liens on such assets, provided that the
amount of Indebtedness secured by any such Lien shall not be increased as a
result of such refinancing and no such Lien shall extend to property and
assets of the Lessee or any such Subsidiary not encumbered prior to any
such refinancing.
4. Merger; Consolidation. Lessee shall not, and shall not permit any of
its Subsidiaries to, sell, lease or otherwise dispose of assets (valued at
the greater of cost or market), other than sales of inventory in the
ordinary course of business consistent with past practice; or liquidate,
merge or consolidate into or with any other person or entity or effect any
stock or asset acquisition (other than in the ordinary course of business
consistent with past practice), provided that any Subsidiary of the Lessee
or of CMGI, Inc. ("CMGI") may merge or consolidate into or with (i) the
Lessee if no Event of Default has occurred and is continuing or would
result from such merger and if the Lessee is the surviving company, or (ii)
any other wholly-owned Subsidiary of the Lessee.
5. Equity Distributions. Lessee shall not, and shall not permit any of
its Subsidiaries to, pay any dividends on any class of its capital stock or
make any other distribution or payment on account of or in redemption,
retirement or purchase of such capital stock, except for (i) the issuance,
delivery or distribution by the Lessee of shares of its common stock pro
rata to its existing shareholders, (ii) the purchase or redemption by the
Lessee of its capital stock with the proceeds of the issuance of additional
shares of capital stock, and (iii) the issuance and repurchase of capital
stock to employees under an employee stock purchase or similar program.
6. Investments. Neither the Lessee nor any of its Subsidiaries shall make
or maintain any Investments other than existing Investments in Subsidiaries
and new Investments in such Subsidiaries in the ordinary course of its
business consistent with past practice, provided such new Subsidiaries are
in the same line of business as Lessee or (with Lessor's prior written
consent which shall not be unreasonably withheld) complementary lines of
business.
7. Transactions with Affiliates. Lessee will not, and will not permit any
of its Subsidiaries to, engage in any transaction with any Affiliate (other
than for services as, or in connection with the employment of, employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any such Affiliate or, to the knowledge of the Lessee,
any corporation, partnership, trust or other entity in which any such
Affiliate has a substantial interest or is an officer, director, trustee or
partner, on terms more favorable to such Person than would have been
obtainable on an arm's-length basis in the ordinary course of business.
8. Change of Control. Lessee shall not permit CMGI to maintain beneficial
ownership (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended, or any successor provision thereto) of less than 51% of
the capital stock of Lessee ordinarily entitled to vote for the election of
directors.
Compliance Certificates. Lessee will furnish to Lessor, immediately
prior to Lessor's funding of the acquisition of the Equipment, and
thereafter within 10 days of the end of each month during the Lease Term or
any Renewal Term, a Compliance Certificate, substantially in the form of
EXHIBIT A hereto, certified by
36
<PAGE>
Lessee's chief financial officer, as to Lessee's compliance with the
financial covenants contained herein.
DEFINITIONS. For purposes of this section 5A, the following terms shall
have the meanings set forth below. All other financial terms contained
herein that are not specifically defined herein shall have meanings and
values determined in accordance with United States generally accepted
accounting principles, as defined by controlling pronouncements of the
Financial Accounting Standards Board, as from time to time supplemented and
amended, and consistently applied ("GAAP")
"AFFILIATE" includes any corporation, partnership, association, joint
venture, company, trust, individual or entity, which now or hereafter at
any time controls, is controlled by, or is under common control with a
Person, including without limitation, each person or entity who or which
is, at any time, a shareholder, director or officer of such Person.
"Cash Equivalents" shall mean time deposits, certificates of deposit,
overnight bank deposits [and U.S. government securities and commercial
paper of an issuer rated at least A-1 by Standard & Poor's Ratings Group or
P-1 by Moody's Investors Services, Inc., in each case which have a maturity
of less than three months.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, collectively, as amended and in
effect from time to time.
"INDEBTEDNESS" shall mean the total of all obligations, whether current or
long-term, which in accordance with GAAP would be included as liabilities,
contingent or otherwise, upon a balance sheet as at the date as of which
Indebtedness is to be determined (but excluding trade payables incurred in
the ordinary course of business and not overdue), and shall also include,
without limitation, obligations for money borrowed, obligations evidenced
by bonds, debentures, notes or similar instruments, reimbursement
obligations with respect to letters of credit or bankers' acceptances,
obligations issued or assumed as the deferred purchase price of property or
services, obligations under capitalized leases and synthetic leases,
guaranties, endorsements (other than for collection in the ordinary course
of business) or other arrangements whereby responsibility is assumed for
the obligations of others, whether by agreement to purchase or otherwise
acquire the obligations of others, including any agreement, contingent or
otherwise, to furnish funds through the purchase of goods, supplies or
services for the purpose of payment of the obligations of others.
"Investment" shall mean the purchase or acquisition of any share of capital
stock, partnership interest, evidence of indebtedness or other equity
security of any other person or entity, any loan, advance or extension of
credit to, or contribution to the capital of, any other person or entity,
any real estate held for sale or investment, any commodities futures
contracts held other than in connection with bona fide hedging
transactions, any other investment in any other person or entity, and the
making of any commitment or acquisition of any option to make an
Investment.
"PERSON" shall mean an individual, a corporation, a limited liability
company, a partnership, a limited liability partnership, a joint venture or
adventure, a trust or estate or unincorporated organization, a joint stock
company or other similar organization, a governmental or political
subdivision, or any other legal entity, and shall include the Lessee and
all Affiliates of Lessee.
37
<PAGE>
Except as specifically set forth herein, all of the terms and conditions of the
Master Lease remain in full force and effect and are hereby ratified and
affirmed. To the extent that the provisions of the Amendment conflict with any
provisions contained in the Master Lease, the provisions of this Amendment will
control.
Dated as of: May 26, 2000
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: David W. Kellogg By: Kenneth W. Hale
------------------------------- ----------------------------
Name: David W. Kellog Name: Kenneth W. Hale
----------------------------- --------------------------
Title: Vice President/Sr. Lender Title: CFO
---------------------------- -------------------------
38
<PAGE>
EXHIBIT A
[NAVISITE, INC.'S LETTERHEAD]
TO: FLEET CAPITAL CORPORATION FLEET NATIONAL BANK
50 Kennedy Plaza 100 Federal Street
Providence, Rhode Island 02903-2305 Boston, Massachusetts 02110
ATTN: Portfolio Management Department ATTN: Lynn R. Schade
Re: Financial Covenants under Master Equipment Lease Agreement
No. 35076 dated as of May 26, 2000 (the "LEASE").
The undersigned hereby certifies that he/she is the chief financial officer
of NaviSite, Inc. ("LESSEE") and that as of the end of the month of ________,
200_, Lessee [is/is not] in compliance with the affirmative financial covenants
set forth below:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
REQUIRED COVENANT REQUIRED AMOUNT ACTUAL AMOUNT COMPLIANCE
(Y/N)
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Minimum Balance Sheet Cash $15,000,000 ($30,000,000
after certain equity
raising thresholds are met)
-----------------------------------------------------------------------------------------------------------
Minimum Market Capitalization $1,000,000,000
-----------------------------------------------------------------------------------------------------------
</TABLE>
The undersigned hereby also certifies that Lessee is in compliance with all
negative financial and other covenants set forth in the Lease.
Dated as of: _______________________________
NAVISITE, INC.
By: _________________________________
Name: _______________________________
Title: Chief Financial Officer
39
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
PROPERTY TAX INDEMNIFICATION RIDER
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Property Tax Indemnification Rider (this "RIDER") is attached to and
made a part of that certain Lease Schedule No. 35076-00002, dated as of MAY 26,
2000 (the "LEASE SCHEDULE"), by and between the undersigned parties.
Notwithstanding any provision to the contrary in the Lease, Lessee shall
file directly with all appropriate taxing authorities all declarations, returns,
inventories and other documentation with respect to any personal property taxes
due or to become due with respect to the Equipment ("TAXES") and shall pay on or
before the date when due all such Taxes assessed, billed or otherwise payable
with respect to such Equipment directly to such taxing authorities. Upon request
by Lessor, Lessee shall provide Lessor with copies of satisfactory documentation
and proof of payment of such Taxes. Lessee shall indemnify and hold harmless
Lessor from and against any such Taxes, and any penalties and interest thereon,
and any other liabilities and damages that Lessor may incur arising out of the
failure of Lessee to pay when due such Taxes. The indemnity and covenants set
forth herein shall continue in full force and effect and shall survive the
expiration or earlier termination of the Lease.
All capitalized terms used herein and not defined herein shall have the
meanings set forth or referred to in the Lease Schedule. Except as specifically
set forth herein, all of the terms and conditions of the Lease shall remain in
full force and effect and are hereby ratified and affirmed. To the extent that
the provisions of this Rider conflict with any provisions contained in the
Lease, the provisions of this Rider shall control.
Dated as of: MAY 26, 2000
------------
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
40
<PAGE>
[FLEET CAPITAL CORPORATION LOGO APPEARS HERE]
PURCHASE OBLIGATION RIDER
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Purchase Obligation Rider (this "RIDER") is attached to and made a
part of that certain Lease Schedule No. 35076-00002, dated as of MAY 26, 2000
(the "LEASE SCHEDULE"), by and between the undersigned parties.
Upon the expiration of the Lease Term, Lessor shall sell to Lessee and
Lessee shall purchase from Lessor all, but not less than all, of the Equipment
for an amount, payable in immediately available funds on the last day of the
Lease Term, equal to: (a) all Rental Payments, late charges and other amounts
due and owing under the Lease; plus (b) all taxes, assessments and other charges
due or payable in connection with the sale of the Equipment to Lessee; plus (c)
10.00000% of the Acquisition Cost of the Equipment.
Upon receipt by Lessor of all amounts payable hereunder, Lessor shall
convey all of its right, title and interest in and to the Equipment to Lessee on
an "AS-IS," "WHERE-IS" BASIS, WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, and without recourse to Lessor, except that the Equipment shall be free
and clear of all liens created by Lessor.
All capitalized terms used herein and not defined herein shall have the
meanings set forth or referred to in the Lease Schedule. Except as specifically
set forth herein, all of the terms and conditions of the Lease shall remain in
full force and effect and are hereby ratified and affirmed. To the extent that
the provisions of this Rider conflict with any provisions contained in the
Lease, the provisions of this Rider shall control.
Dated as of: MAY 26, 2000
------------
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
----------------------------- ---------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
--------------------------- -------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
41
<PAGE>
[FLEET CAPITAL CORPORTION LOGO APPEARS HERE]
ACCEPTANCE CERTIFICATE
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Acceptance Certificate (this "ACCEPTANCE CERTIFICATE") is attached to and
made a part of that certain Lease Schedule No. 35076 - 00002, dated as of
-------------
MAY 26, 2000 (the "LEASE SCHEDULE"), by and between the undersigned parties. All
------------
capitalized terms used herein and not defined herein shall have the meanings set
forth or referred to in the Lease Schedule. To the extent the terms set forth
in this Acceptance Certificate differ or conflict with any of the terms set
forth in the Lease, the terms set forth in this Acceptance Certificate shall
control.
1. Lessee acknowledges and agrees that each item of Equipment set forth on
Schedule A hereto (collectively, the "EQUIPMENT") is hereby unconditionally
accepted by Lessee for all purposes under the Lease at the locations specified
in Schedule A-1 hereto, and hereby agrees to faithfully perform all of its
obligations under the Lease as of the date hereof (the "ACCEPTANCE DATE").
Lessee hereby authorizes and directs Lessor to make payment to each vendor of
the Equipment pursuant to such vendor's invoice or any purchase order, purchase
agreement or supply contract with such vendor, receipt and approval of which are
hereby reaffirmed by Lessee.
2. By its execution and delivery of this Acceptance Certificate, Lessee hereby
reaffirms all of the representations, warranties and covenants contained in the
Lease as of the date hereof, and further represents and warrants to Lessor that
no Event of Default, and no event or condition which with notice or the passage
of time or both would constitute an Event of Default, has occurred and is
continuing as of the date hereof. Lessee further certifies to Lessor that
Lessee has selected the Equipment and has received and approved the purchase
order, purchase agreement or supply contract under which the Equipment will be
acquired for all purposes of the Lease.
3. Lessee hereby represents and warrants that: (a) the Equipment has been
delivered and is in an operating condition and performing the operation for
which it is intended to the satisfaction of the Lessee; and (b) if requested by
Lessor, the Equipment has been marked or labeled evidencing the Lessor's
interest therein.
4. The LEASE TERM COMMENCEMENT DATE is the 10th day of June, 2000.
5. The RENTAL PAYMENT COMMENCEMENT DATE is the 10th day of July, 2000.
6. All terms and provisions of the Lease Schedule shall remain in full force
and effect, except as otherwise provided below:
- ACQUISITION COST: $ N/A.
- LEASE TERM: N/A months.
- RENTAL PAYMENTS: NUMBER OF RENTAL PAYMENTS RENTAL PAYMENT AMOUNT
------------------------- ---------------------
N/A
- ADVANCE RENTAL PAYMENT(S): First N/A and last N/A.
- SECURITY DEPOSIT: N/A%.
Dated: June 7, 2000
Agreed and Accepted:
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
---------------------------- ----------------------------
Name: David w. Kellogg Name: Kenneth W. Hale
-------------------------- --------------------------
Title: Vice President/Sr. Lender Title: CFO
--------------------------- -------------------------
42
<PAGE>
[Fleet Capital Letterhead]
June 5, 2000 via facsimile 978/946-8638
Mr. Christopher R. Guiod
Director of Leasing
NAVISITE, INC.
400 Minuteman Road
Andover, MA 01810
RE: Treatment of sales tax due upfront on the data centers and leasehold
improvements to be financed under Lease Schedules 35076-00001 and 35076-00002 to
Master Equipment Lease Agreement No. 35076 dated May 26, 2000 (the "Schedules").
Dear Ms. Root:
This is written to confirm the understanding of Fleet Capital Corporation
("FCC") and NAVISITE, INC. ("NAVISITE") regarding the treatment of sales taxes
due on the above mentioned Schedules. NAVISITE currently has provided FCC with
proof that they have paid some of the sales taxes due on the Schedules, and
agree that they will provide the balance necessary within 90 days after the
funding of the Schedules. After the 90 days, FCC will bill NAVISITE for the
difference between the amount of sales taxes calculated as due and what proof
NAVISITE has been able to provide.
THE SALES TAXES HAVE BEEN CALCULATED AS FOLLOWS:
ANDOVER, MA $372,583.60 (5% OF THE $7,451,672.00 EQUIPMENT COST)
FCC has received proof that $340,452.21 has been paid.
SAN JOSE, CA $378,366.95 (8.25% OF THE $4,586,266.00 EQUIPMENT COST)
FCC has received proof that $36,667.00 has been paid.
Please indicate your agreement with the foregoing by signing and returning
the original copy of this agreement to Lisa A. Evora at the address noted
below.
Very Truly Yours,
BY: /s/ David W. Kellogg
-------------------------
NAME: David W. Kellogg
TITLE: Vice President
Acknowledged and Agreed:
NAVISITE, INC.
BY: /s/ Kenneth W. Hale
-------------------------------
NAME: Kenneth W. Hale
----------------------------
TITLE: CFO
----------------------------
DATE: 6/7/00
----------------------------
43
<PAGE>
Fleet Capital Corporation
50 Kennedy Plaza
Providence, RI 02903-2305
June 7, 2000
NaviSite, Inc.
400 Minuteman Road
Andover, MA 01810
Re: Waiver under Master Equipment Lease Agreement
---------------------------------------------
Ladies and Gentlemen:
Reference is made to the Master Equipment Lease Agreement dated as of May
26, 2000 between Fleet Capital Corporation, as lessor ("Lessor") and NaviSite,
Inc., as lessee ("Lessee"), as amended by Amendment dated as of May 26, 2000
between Lessor and Lessee (as so amended, the "Master Lease"), together with all
lease schedules executed thereunder (collectively, the "Lease"). Capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Master Lease.
The Lessee (a) has informed the Lessor that as of the date hereof the
Lessee will not be in compliance with the additional financial covenant set
forth in Section 5A of the Master Lease under the heading "Affirmative Covenants
- 1. Cash" (requiring the Lessee to maintain a balance of available cash and
Cash Equivalents of at least $15,000,000) (the "Cash Covenant") and (b) has
requested that the Lessor waive compliance with the Cash Covenant until the
Lessee completes a planned sale of $50 million of common stock to CMGI, Inc.
substantially in accordance with the draft term sheet attached hereto as Exhibit
A in order to raise the additional cash needed to achieve compliance.
The Lessor hereby waives compliance with the Cash Covenant until June 14,
2000 in order to permit the Lessee more time to raise the additional cash from
such sale of common stock to CMGI, Inc. needed to comply with the Cash Covenant.
From and after June 15, 2000, the Lessee's failure to be in compliance with the
Cash Covenant for any reason (including failure to complete the planned sale of
common stock by such date) shall result in an Event of Default under the Master
Lease in accordance with Section 8 thereof.
44
<PAGE>
Except for those provisions of the Master Lease expressly waived hereby,
the Master Lease, all Lease Schedules executed thereunder and all documents,
instruments and agreements related thereto are hereby ratified and confirmed in
all respects and shall continue in full force and effect. Nothing contained
herein shall in any way prejudice, impair or effect any rights or remedies of
the Lessor under the Master Lease and all Lease Schedules executed thereunder.
The Lessor's willingness to provide this waiver shall not constitute an
agreement or imply a willingness by the Lessor to provide any similar or other
waivers of any of the terms of the Master Lease in the future.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF
LAW). This letter agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be original, but all of which
counterparts taken together shall be deemed to constitute one instrument.
Please indicate your acceptance of the terms of this letter agreement by
signing and returning this letter.
Very truly yours,
FLEET CAPITAL CORPORATION
By: /s/ David W. Kellogg
------------------------------------
Name: David W. Kellogg
----------------------------------
Title: Vice President/Sr. Lender
----------------------------------
AGREED AND ACCEPTED BY:
NAVISITE, INC.
By: /s/ Kenneth W. Hale
------------------------------------
Name: Kenneth W. Hale
----------------------------------
Title: CFO
----------------------------------
45
<PAGE>
SUBORDINATION OF LANDLORD'S LIEN
WHEREAS, CarrAmerica Realty Corporation ("Landlord") is the owner of
certain real property located at 2720 Zanker Road, San Jose, California (the
"Property"); and
WHEREAS, Landlord and NaviSite, Inc. ("Tenant") have entered into a Lease
Agreement covering certain space at the Property (the "Leased Premises"); and
WHEREAS, Tenant has placed, or may place on the Leased Premises, certain
personal property, goods, wares, equipment, fixtures, furniture, improvements or
other personal property owned by Tenant and identified on Exhibit A attached
hereto (collectively referred to as "Tenant's Personal Property"); and
WHEREAS, Tenant has borrowed or will borrow certain sums of money (the
"Loan") from Fleet Capital Corporation ("Lender") and has given or may give as
security for the payment of such indebtedness a security interest or other lien
upon Tenant's Personal Property located on the Leased Premises; and
WHEREAS, it is desire of Landlord and Tenant that any such security
interest or lien held by Lender shall be in all things first and prior to any
other lien or liens against Tenant's Personal Property held by Landlord.
NOW THEREFORE, for and in consideration of good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Landlord does
hereby agree that any and all presently existing or future liens that may exist
as a result of the lease or rental of the Leased Premises by Tenant from
Landlord, shall be and the same are hereby made subordinate, subject and
inferior to any security interest or liens now and hereafter held by Lender upon
any of the Tenant's Personal Property located on the Leased Premises, and
Landlord does hereby agree that in the event Lender lawfully becomes entitled to
possession of any of Tenant's Personal Property located on the Leased Premises,
Lender shall have the right to enter the Leased Premises in order to remove
Tenant's Personal Property, free of any liens or claims of Landlord. Landlord
has no obligation to give Lender any notice of default by Tenant, but shall use
commercially reasonable efforts to deliver written notice to Lender of the
approximate date on which Lender will have access to the Leased Premises to
remove Tenant's Personal Property (the "Availability Notice") at least ten (10)
days prior to the date set forth therein. The Availability Notice, which may be
updated from time to time by Landlord as more better information is available,
shall be delivered by Landlord to Lender via fax number 617-434-0112 to the
attention of the Legal--Leasing Division. This instrument will not be effective
unless Landlord receives from Lender an original counterpart of the Lender
Joinder attached hereto.
Tenant hereby agrees that Landlord shall have no duty or obligation to
inquire into the accuracy or validity of any default by Tenant with respect to
the Loan, and Tenant hereby agrees that nothing cointained in this Subordination
of Landlord's Lien nor Landlord's acts or failures to act in connection with the
Lender's entry into, and possession of, the Leased Premises and the
46
<PAGE>
Lender's removal of all or any portion of the Tenant's Personal Property shall
be deemed a default by Landlord under the Lease, and Tenant hereby waives all
claims of whatever nature or kind Tenant may have against Landlord in connection
with this Subordination of Landlord's Lien and/or Landlord's acts or failures to
act in connection with the Lender's entry into, and possession of, the Leased
Premises and/or the Lender's removal of all or any portion of the Tenant's
Personal Property.
EXECUTED, this 7th day of June, 2000.
"Landlord"
CarrAmerica Realty Corporation
by: its agent
CarrAmerica Development, Inc.
By: /s/ P. B. Wall Jr.
-------------------------------
Name: P. B. Wall Jr.
Title: Senior Vice President
"Tenant"
NaviSite, Inc.
By: /s/ Kenneth W. Hale
-------------------------------
Name: Kenneth W. Hale
Title: CFO
47
<PAGE>
LENDER JOINDER
In consideration of the foregoing, Lender agrees that (a) Lender must, at
Lender's sole cost, repair any damage in or about the Leased Premises caused by
any entry or removal of Tenant's Personal Property by Lender or its agents; (b)
Lender must pay to Landlord all rent and other charges due under the Lease
during the period commencing on the date on which Lender has the right to access
the Leased Premises, as set forth in Landlord's Availability Notice to Lender
(the "Access Date") through the date of removal and repair; (c) Lender has no
right to change the locks or otherwise restrict Landlord's access to the Leased
Premises, without Landlord's prior written consent; (d) if Lender fails to
remove all of Tenant's Personal Property within the 30 day period following the
Accesss Date, Landlord may remove, dispose or otherwise store Tenant's Personal
Property outside the Leased Premises, at Lender's sole cost; (e) Lender has no
right to conduct any auction or other sale of Tenant's Personal Property at,
from or within the Leased Premises, except at such times and upon such terms as
Landlord may deem acceptable, in Landlord's reasonable discretion; (f) Landlord
or its agents may access and perform work within the Leased Premises during the
period in which the removal and repair work described above is being performed
by Lender (or its agents), so long as Landlord's work does not unreasonably
interfere with Lender's (or its agent's) work; and (g) nothing herein (other
than Landlord's agreement to subordinate) shall waive, modify or otherwise
restrict any of Landlord's rights, remedies and recourse under the Lease or
otherwise upon Tenant's default.
EXECUTED this 7th day of June, 2000.
LENDER:
FLEET CAPITAL CORPORATION
By: /s/ David W. Kellogg
--------------------------------
Name: David W. Kellogg
------------------------------
Title: Vice President/Sr. Lender
------------------------------
48
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
With: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
LOC# (01)
ELECTRICAL ITEMS AS MORE FULLY DESCRIBED BELOW:
VENDOR: PETERSON POWER (CAT)
3 3512 diesel engine generator systems; each
including, but not limited to, the following:
60hz 480 volts
60 hertz
Standby power application
3512 1250 EKW 60 hz pgs-stby
Electronic modular control PNL
English display units
CSA test and certification
Neutral grounding connection
Alarm module - NFPA 110
Panel lights/auxiliary relay
Coolant loss sensing
Cust communications module-CCM
2301A load sharing governor
Generator conversion (PM Excitation)
Space heater relay
Radiator 46/CV
Fan pulley 0.428 ratio
Coolant level sensor
Fuel priming pump, RH mounted
Flexible fuel lines
Fuel cooler
Fumes disposal
Jacket water heater - dual
Oil pan drain valve
24 volt battery set - dry
Battery charger 10 AMP
Charging Alternator 24V 35 AMP
Circuit Breaker, 2000A, 100%
Fuel/Water separator
Double Battery Box, Group 4D
Seismic Calculations
Vibration Isolator
Critical Silencer, 14 inch
Dimensions 9'W x 19' L
</TABLE>
--------------------------------------------------------------------------------
49
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
With: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
VENDOR: RUSSELECTRIC INC.
1 Generator Paralleling and Distribution
Switchgear;
including, but not limited to, the following:
1 Master/Generator Control Cubicle CC
5 Circuit Breaker Cubicle
VENDOR: IEM
1 Metal Clad Switchgear "PSG" - NEMA3R non
walk-in 3
phase 3 wire 21KV 1200 AMP BUS 125KV BIL CONS
1 Switchgear "MHSB" - NEMA1 3 phase 3 wire 480V
2500
AMP, Class III, CU bussing 100KA1C/braced for
100KA
1 Switchgear "USB" - NEMA1 3 phase 4 wire 277/480V
2500 AMP Class III, CU bussing 100KA1C/braced
for 100KA
2 Balteau pad mounted transformers, 3000KVA, 3
phase, mineral oil filed, designed for outdoor
service. OA/FFA, 55/65 deg. C Rise, 30 deg.
Average ambient, 60Hz, with AI windings, 7.0%
impedance w/primary loop feed, dead front, no
lightening arrestors, 21KV primary - 125KV BIL
to 277/480V secondary
1 SWBD "Load Bank Breaker", NEMA1 enclosed, 480V 3
phase 3 wire w/grd. Class III, 3000A, CU
Bussing, 100KA1C
2 SWBD "UPSDPA", "UPSDPB", 2500A Bussing, 480V 3
phase 3 wire w/grd. Class I, 100KA1C
4 Dist. Panel "MDP11, MDP12, MDP21, MDP22", 600A
CU Bussing, 480V 3 phase 3 wire w/grd. 65KA1C,
wall mount
1 SWBD "HD72" 800A Cu Bussing, 480V 3 phase 3 wire
w/grd. 100KA1C, Class I
1 SWBD "MBPSB", 2500A CU Bussing, 480V 3 phase 3
wire w/grd. 65KA1C, Class I
VENDOR: POWERWARE
3 625 Powerware Plus 750; each including, but not
limited to, the following:
(1) UPS OUT
(2) UPS System Cabinet
</TABLE>
--------------------------------------------------------------------------------
50
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
With: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
(2) Battery Strings
HVAC & FIRE PROTECTION
SYSTEM ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: N/A
1 HVAC system
VENDOR: VARIOUS
1 FM200 Fire Detection/Suppression System with Fenwal's
Smart One Analog Intelligent Multizone System
Technology
MECHANICAL & PLUMBING ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: LIEBERT
23 Computer Room A/C Units; each including, but not
limited to, the following:
Quiet Line Condenser Units (CDF415L)
AHU (FH245A-ASOO)
60% Filters
Semi Hermetic Compressor
4-step unloading
Quiet Line Condenser Fan
Dual Supply Fan
Oversized Motor (7.5HP)
Top Single Point of Connection
Outdoor Unit Disconnect
Indoor Unit Disconnect
Controls for Johnson front end interface, Modbus
Hi Efficiency Motors
Extended Condenser Legs 36"
Leak detection kits, cable type
NOC AV EQUIPMENT ITEMS AS MORE FULLY DESCRIBED
BELOW:
</TABLE>
--------------------------------------------------------------------------------
51
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
with: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
VENDOR: CEITRONICS
1 A906MK2 TOA 8 input, 60W mixer-amp
1 MB25B TOA Rack Mount Kit
4 B01S TOA Bridging Line Input Module
5 409-4T Altec 8" Coax Speaker/Transformer
5 LB-8-CP Lowell Tile Support Bridge
5 XCP-810 Lowell Ceiling Backbox
5 WB-8 Lowell Speaker Grille
22 RGB202xi Extron Computer Interface
22 U1 MidAtlantic Mounting Shelf
22 MCB Exide Interface Breakout Cable
1 Axcent3PRO AMX Integrated Control Chassis
1 AXB-VOL3 AMX Volume Control Box
4 AXC-232 AMX Serial/RS232 Card
1 AXT-CV10 AMX Tilt Screen Control Panel
1 SAS-BS3 Sony DSS Receiver & Dish
1 1N1024 Inline Video to RGBHS Scan Converter
1 4YDM Autopatch 200MHz RGBHV with stereo audio matrix
switcher (32x16)
9 VPL-X100U Sony LCD Video Projector
9 VPLL-FM30 Sony Short Focus Lens
1 Trooper 1x5, 60", 1.2 gain screen, wedge frame
2 Trooper 1x2, 60", 1.2 gain screen, wedge frame
9 RPM Trooper Rear Screen Mounting /Mirror
1 502-77B Soundolier Equipment Rack
2 542-77B Soundolier Side Panels
2 RWL-1 Soundolier Work Light
A/R SB series MidAtlantic Blank Panel
A/R VTF series MidAtlantic Vent Panel
A/R King BNC Connectors
A/R 25292 West Penn Plenum Line Cable
A/R 25225 West Penn Plenum Speaker Cable
A/R 5C P/N Liberty Plenum RGBHV Cable
MISCELLANEOUS ITEMS ARE
</TABLE>
--------------------------------------------------------------------------------
52
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
With: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
MORE FULLY DESCRIBED BELOW:
Vendor: ADT Security Services, Inc.
1 Integrated Access Control System; including, but
not limited to, the following:
2 Pro-Watch-NT client workstation w/printer
1 Pro-Watch-NT report printer
1 Visitor badge printer with badging kit
1 Digital camera with access control cards
1 Pro-Watch-NT Communications converter
4 LAN serial T interface with reader/controllers
8 Pro-Watch-NT four reader control panel
8 Power transformer for PW-2000 control panel with
power supplies
8 UL listed 12 VDC or 24 VDC, 4 AMP power supply
with card readers
7 HID proximity reader
7 Supression kit for PW-2000 relays with: door
contacts, rex motions, and local sounder
20 Recessed door contact
20 Request-to-exit motion detector - beige
3 RX-7 remote sounder
7 Armored door contact with CCTV exterior
3 Color integrated camera w/PTZ and presets
3 Exterior camera dome housing with heater &
blower
1 Exterior camera housing mounting bracket
1 Exterior camera housing
3 Corner mount adapter
VENDOR: N/A
NOC Console
VENDOR: N/A
1 Projection Screen
VENDOR: UNION PLANNING MILL
1 Security Counter
1 Reception Counter
Personal Lockers
</TABLE>
--------------------------------------------------------------------------------
53
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Lease Schedule
No. 35076-00002
Acceptance Certificate
and UCC Financing
Statement(s)
With: NAVISITE, INC.
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Quantity Model Unit# Description Serial#/Vin#
-------- ----- ----- ----------- ------------
<S> <C> <C> <C> <C>
VENDOR: WINBROOK ASSOCIATES, INC.
15 Three door server cabinets
100 One door server cabinets
VENDOR: RESOURCES FOR OFFICE INTERIORS
1 #76303 Rainbow chair w/arms in C.O.M. fabric
#2461-60 sky w/black frame
8 Dauphin Cosmos#CM5261 chair w/black/chrome
fabric #2461-60 sky
2 Patrician Fitzgerald table 39-1/4" diameter Tag:
recp.
2 Patrician end table Faulkner series
14 Nevins 36" round laminate table w/vinyl edge and
Atlantis Martini base/#4661-60 laminate
44 Thonet #5005P chair w/black frame and finish in
C.O.M. Vivaldi #AC63834 midnight #6
46 #4001 swivel tilt chair in C.O.M. fabric AD Navy
w/black frame and shell
1 Patrician Faulkner table 27" x 37"
23 BRCR 53-1/2" x 27" x 29" H training table in a
#4661-60 laminate w/black edge and base
60 Thornet #5002P chair w/out arms in a C.O.M.
fabric midnight #6/black finish
4 Nevins 48" round laminate table #4661-60/black
w/vinyl edge and Atlantis Martini base finishes
20 Thornet Reva #1700 chair stackable finish (7)
black, (7) blue and (6) green
2 Patrician #1726F Fitzgerald 27-1/4"
2 Rainbow task chairs in Authentic Cafe/black
46 #4008 sled base chairs in a #90 navy fabric Tag:
guest seating
(131) AIS Steelcase Avenir stations and (23)
offices
Fabric: Newport
Trim: Black
Laminate: Chromatix
</TABLE>
--------------------------------------------------------------------------------
WITH ALL STANDARD AND ACCESSORY EQUIPMENT
FLEET CAPITAL CORPORATION NAVISITE, INC.
By: /s/ David W. Kellogg By: /s/ Christopher R. Guiod
---------------------------- ----------------------------
Name: David w. Kellogg Name: Christopher R. Guiod
-------------------------- --------------------------
Title: Vice President/Sr. Lender
---------------------------
54
<PAGE>
[Fleet Capital Letterhead]
CONSENT AND WAIVER
(OWNER, LANDLORD OR MORTGAGEE OF REAL ESTATE)
50 Kennedy Plaza
Providence, Rhode Island 02903
The undersigned, 400 RIVER LIMITED PARTNERSHIP, of 200 Brickstone Square
----------------------------- ----------------------
(print name) (street address)
Andover, Massachusetts 01810 is the owner, landlord of the premises
--------------------------------------
(city or town) (state and zip code)
located at 400 Minuteman Road Andover
---------------------------------- , ---------------------
(street address) (city or town)
Massachusetts 01810 (the "Premises") which are occupied by NAVISITE, INC.
-------------------------
(state and zip code)
THE FOLLOWING IS SUBJECT IN ALL RESPECTS TO THE ADDENDUM ATTACHED TO THIS
CONSENT
The undersigned acknowledges that Customer has leased or financed, or that
Customer expects to lease or finance from Fleet Capital Corporation ("FCC"), the
equipment set forth on Schedule A hereto, including any accessories, additions,
substitutions or replacements therefor (collectively, the Equipment), which may
from time to time be located at the Premises. To induce FCC to enter into a
lease or financing agreement with Customer, the undersigned agrees with FCC as
follows:
*The undersigned waives any right, title or interest in or to the Equipment
that it may now or hereafter have. *The undersigned irrevocably agrees and
consents that it will refrain from taking any action to bar, restrain or
otherwise prevent FCC, its agents, successors or assigns, from entering the
Premises for the purpose of inspecting, removing or taking possession of
the Equipment, and will grant FCC, its agents, successors or assigns the
right of entry to the Premises to remove the Equipment at any reasonable
time or times. FCC shall be responsible for any damage to the Premises that
FCC causes in connection with its entry thereon and the removal of the
Equipment therefrom. *The Equipment is and shall remain personal property,
notwithstanding the manner in which it may be installed or affixed to the
Premises.
This Consent and Waiver shall inure to the benefit of the successors and
assigns of FCC and shall be binding upon the heirs, representatives, successors
and assigns of the undersigned. This Agreement shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located, without reference to the principles of conflict of laws.
*to the extent set forth in the Addendum
55
<PAGE>
ADDENDUM TO CONSENT AND WAIVER
(NaviSite, Inc.)
This Addendum is attached to, incorporated into and amends the Consent and
Waiver, dated June 7, 2000 (as amended by this Addendum, the "Waiver
Certificate"), between Fleet Capital Corporation ("FCC") and 400 River Limited
Partnership ("Landlord"). If there is any conflict between the rest of the
Waiver Certificate and this Addendum, this Addendum will control in all
respects. Notwithstanding anything to the contrary in the Waiver Certificate or
otherwise, the parties agree as follows:
(a) The installation and removal of the Equipment will be in
accordance with the terms of the lease of the Premises (with all amendments, the
"NaviSite Lease") between Landlord and NaviSite, Inc. ("Lessee"). FCC will
indemnify Landlord and its affiliates for and defend and hold them harmless from
all claims, costs, damages, injuries, liabilities and losses (including, without
limitation, attorneys' fees and costs) to the extent arising from FCC's and/or
its representatives' entry onto the Premises or the rest of the Project, the
removal of any Equipment, and any damage injuries or death caused thereby, and
at its cost FCC will promptly repair and restore any damage caused to the
Premises as a result thereof in accordance with applicable laws and codes and in
a commercially reasonable manner equivalent in quality and finish to the rest of
the Premises and so that the Premises and the systems and equipment therein
remain in good working order and condition despite the removal of the Equipment.
(b) FCC will, if it wishes to, remove the Equipment from the
Premises on or before the earlier of the termination of the NaviSite Lease; or
within thirty (30) days after written notice (by overnight national courier,
telecopy or by certified mail, return receipt requested) from Landlord of an
uncured default under the NaviSite Lease, and in either case restore and repair
any damage to the Premises and/or the rest of the Project caused by such
removal. If FCC fails to remove all the of Equipment as and when required above,
all rights of FCC in and to the remaining Equipment irrevocably will be deemed
to have been waived and that Equipment will be deemed to have been abandoned by
FCC, and as between FCC and Landlord, Landlord may take any action with respect
to that Equipment that it deems advisable in its sole discretion without any
liability to FCC (all such liability being hereby waived), including, without
limitation, removing, selling, storing, destroying or using all or any portion
of the remaining Equipment. As between Landlord and Lessee, their respective
rights in and to the Equipment will be governed by the NaviSite Lease.
(c) Landlord is not bound in any way by any leases, loan
documents or other agreements between FCC and Lessee. FCC has no rights or
claims with respect to the Premises except to enter the Premises for the sole
purpose or removing the Equipment, all in accordance with the terms hereof and
the terms of the NaviSite Lease, nor does Landlord have any obligations to FCC
except as specifically set forth herein. By its signature below, Lessee hereby
releases, and waives against Landlord and FCC and their respective affiliates,
any and all claims in connection with the matters described or referred to
herein, including, but not limited to, claims for breach of any covenant of
quiet enjoyment or other obligations or conditions under the NaviSite Lease
arising from FCC's entry onto the areas leased by Lessee and/or its removal of
the Equipment. Notwithstanding anything to the contrary, for purposes of this
Waiver Certificate, the Equipment will not be deemed to include, and Landlord
will not now or in the future be deemed to have waived or granted to FCC any
rights with respect to: Equipment, that was not Lessee's personal property paid
for by Lessee (although the manner of installation on the Premises will not, for
the purposes of this Waiver
56
<PAGE>
Certificate only, be deemed to convert what was formerly Lessee's personal
property into "fixtures"); any items the removal of which would damage the
exterior or structure of the Premises or that are integral to or necessary for
the proper functioning of the base building systems and equipment therein; and
items listed under the "HVAC, Plumbing & Fire Protection" category in Schedule A
attached to this Waiver Certificate unless such items are dedicated solely to
the ground floor data center portion of the Premises.
(d) Notwithstanding anything in this Waiver Certificate or elsewhere to the
contrary: FCC and Lessee will look solely to Landlord's interest in the Premises
to satisfy any claims, rights or remedies, and Landlord and its partners and
their respective affiliates (including any property managers), at every level of
ownership and interest, have no personal or individual liability of any type,
whether for breach of this Waiver Certificate or their negligence or otherwise
(and such liability is hereby waived by FCC and Lessee), their assets will not
be subject to lien or levy of any type, nor will they be named individually in
any suits, actions or proceedings of any type.
(e) This Waiver Certificate is binding on and inures to the benefit of the
parties hereto and their respective successors, assigns and representatives, and
is an integrated agreement that may not be modified except by a written document
executed and delivered by Landlord and FCC.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed the Waiver Certificate as of June 7, 2000.
LANDLORD
400 River Limited Partnership, a Massachusetts
limited partnership
By: Niuna-400 River, Inc.,
general partner
By: /s/ John Kusmiersky
--------------------------------
John Kusmiersky, President
FCC LESSEE
Fleet Capital Corporation NaviSite, Inc.
By: /s/ David W. Kellogg By: /s/ Kenneth W. Hale
------------------------ --------------------------
Name: David W. Kellogg Name: Kenneth W. Hale
Title: Vice President/Sr. Title: Chief Financial Officer
Lender
Authorized Signature Authorized Signature
57
<PAGE>
No. 5907
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
--------------------------------------------------------------------------------
State of CALIFORNIA
----------------------
County of LOS ANGELES
----------------------
On JUNE 7, 2000 before me, Mary A. Rocco, Notary Public
------------ -----------------------------------------------------
DATE NAME, TITLE OF OFFICER, EG., JANE DOE, NOTARY PUBLIC
[X] personally known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that executed the same in his
authorized capacity, and that by his signature on the instrument, the entity
upon behalf of which the person acted, executed the instrument.
/NOTARY SEAL/
WITNESS my hand and official seal.
/s/ Mary A. Rocco
----------------------------------
SIGNATURE OF NOTARY
----------------------------------OPTIONAL--------------------------------------
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
[ ] INDIVIDUAL
[X] CORPORATE OFFICER
President
-------------------------
TITLE(S)
[x] PARTNER(S) [ ] LIMITED
[x] GENERAL
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER
-------------------
-------------------------
-------------------------
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
Nuina-400 River, Inc., General Partner of
400 River Limited Partnership
DESCRIPTION OF ATTACHED DOCUMENT
Consent and Waiver with
Addendum to Consent and
Waiver (NaviSite, Inc.)
--------------------------------
TITLE OR TYPE OF DOCUMENT
this page + 12
--------------------------------
NUMBER OF PAGES
June 7, 2000
--------------------------------
DATE OF DOCUMENT
Authorized Signatories of
Fleet Capital Corporation &
NaviSite, Inc.
--------------------------------
SIGNER(S) OTHER THAN NAMED ABOVE
* The "Waiver Certificate"
--------------------------------------------------------------------------------
58
<PAGE>
-------------------------------------------------------------------------------
(CORPORATION)
STATE OF MASSACHUSETTS
------------------
ss.
COUNTY OF ESSEX
-----------------
I, Christopher R. Guiod, a Notary Public within and for said County, in
the State aforesaid, duly commissioned and acting, do hereby certify that on
this 7th day of June, ____, personally appeared before me Kenneth W. Hale (Name
of Signer for Undersigned), to me personally well known and known to me to be
the person who signed the foregoing Consent and Waiver, and known to me to be
and who, being by me duly sworn and being informed of the contents of said
Consent and Waiver, stated and acknowledged to me an oath that he was Chief
Financial Officer (Title) of NaviSite, Inc. the Corporation named in and which
executed the said Consent and Waiver, and that he knows the corporate seal of
said Corporation, and that the seal affixed to said Consent and Waiver is the
corporate seal of said Corporation, that he was duly authorized to execute said
Consent and Waiver, for, in the name of and on behalf of said Corporation, and
that same was signed, sealed, executed and delivered by him in the name of and
on behalf of said Corporation by authority of its Board of Directors and that
the execution of said Consent and Waiver was his free and voluntary act and deed
in his [sole] capacity and acknowledged to me that said Corporation executed the
same as its voluntary act and deed and was by him voluntarily executed, on
behalf of said corporation for the uses, purposes and considerations therein
mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and year in this
certificate above witnessed.
My commission expires March 29, 2007 Christopher R. Guiod
--------------------
(Notary Public)
(Seal)
59
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
VENDOR: CDW COMPUTER CENTERS, INC.
1 IBM TP 390E6/333 6.4GB 64MB 2
VENDOR: PROJECT SCHEDULERS
1 SureTrack system 73134176
VENDOR: NECR
1 Laptop bag & niccard
VENDOR: BOISE CASCADE OFFICE PRODUCTS
1 ct Chair, folding 5/ct bge ALTSRC=U22 1 ct
1 Table, fold DLX 36x96 wal req prod
#E4FTD3696WA ALTSRC=U22 1 ea
1 Table, crt folding wal/st req prod
#E4FTD3696WA ALTSRC=U22 1 ea
VENDOR: NEXTEL
1 I1000 plus Cell phone with:
1 Charger: wall/travel
1 900MAH LI Battery: std
1 I1000 Case: plastic holder
VENDOR: PRO TOOL & SUPPLY
2 Item# WP60113; WAP sq 10 gal RDF vacuum
2 Item# WP100377; WAP Hepa filter kit
VENDOR: GE APPLIANCES
1 ZDI15C BB ref-compact
1 GSD5920D BB undctr D/W
4 TCX22PAC BB refrigerator
6 JE1640GB Micro Wave O
VENDOR: WHITNEY VEIGAS
19 LSI Life Safety ID signs
--------------------------------------------------------------------------------
</TABLE>
60
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
VENDOR: WINBROOK ASSOCIATES, INC.
54 Network cabinets
54 Standard rack 7x9
29 Single vertical cable management
54 Wire relay racks
34 Sun 450 29" customer cabinet
190 One-door customer cabinet
21 Two-door customer cabinet
12 Three-door customer cabinet
13 Sun 450 server cabinet 29x36x84
6 E-450 rackmount kits
12 Power strips
VENDOR: RESOURCES FOR OFFICE INTERIORS
27 Workstations
308 AIS steelcase Avenir stations
68 Offices; constructed
Fabric: Newport
Trim: Black
Laminate: Chromatix
ELECTICAL ITEMS, AS MORE FULLY DESCRIBED BELOW:
VENDOR: SOUTHWORTH-MILTON POWER SYSTEMS
4 3516BDI Outdoor Caterpillar Low Emissions Diesel Packaged
TA Generator Sets. Each unit rated 2000KW, continuous
standby power, 277/480 volt, 60 hertz, 1800 rpm, 3
phase, 0.8 pf. Included is the following for each
unit:
3500 Gallon Fuel Tank Base Double Walled with Leak
Detection
Structural Steel Base
Starting Batteries with Rack and Cables
Battery Charger
Charging Alternator
Engine/Generator Unit Mounted Control Panel
NFPA 99-Pre-Alarm Module
Engine Gauge Panel
3000 Amp Free Standing Circuit Breakers, 100%
--------------------------------------------------------------------------------
</TABLE>
61
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT #DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
rated Mounted and Wired with Enclosure
Jacket Water Heater, Two (2) at 6000 Watts each
United Mounted Radiator, Stack Core Type, with
Fuel Oil Coolers
Permanent Magnet Generator
Automatic Start/Stop Package
Unit Mounted Control Panel, Caterpillar EMCPII+
Critical Grade Silencer mounted and insulated
within the Enclosure
Stainless Steel Flexible Connector
Flexible Fuel Connectors
Vibration Isolators, Seismic Spring Type
Lubricating Oil
Ethylene Glycol
Electronic Isochronous Governor with Load Share
Module
Remote Breakglass Shutdown Switch
4 LEA Dynatech System 3 TVSS units
1 4 Engine, NEMA 1 enclosed, wall mounted remote
annunciator panel
PDU distribution A & B panels
VENDOR: RUSSELECTRIC INC.
UTILITY PARALLELING/
GENERATOR CONTROL
SYSTEM CONSISTING OF THE
FOLLOWING:
1 Generator Control Cubicle; including, but not
limited to, (1) Programmable Logic Controller,
General Electric Series 90-30
4 Generator Control Cubicle
1 Master Control Cubicle
4 Utility Transfer Control Cubicle
1 Mimic Display Cubicle
1 Generator Circuit Breaker Switchgear consisting of
the following:
4 Generator Breaker Cubicle
6 Distribution Circuit Breaker Cubicle
1 Distribution Circuit Breaker Cubicle
--------------------------------------------------------------------------------
</TABLE>
62
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 UPS Input Circuit Breaker Switchgear consisting of
the following:
2 Utility Main Breaker Cubicle
2 Generator Main Breaker Cubicle
1 Tie Circuit Breaker Cubicle
4 Distribution Breaker Cubicle
2 Distribution Circuit Breaker Cubicle
1 Mechanical/House Circuit Breaker Switchgear
consisting of the following:
2 Utility Main Breaker Cubicle
2 Generator Main Breaker Cubicle
1 Tie Circuit Breaker Cubicle
6 Distribution Breaker Cubicle
1 Distribution Circuit Breaker Cubicle
1 Russelectric SCADA Terminal consisting of the
following:
1 Master Display Unit; including, but not limited
to, (1) Desktop Personal Computer with 450 MHz
Pentium II Xeon Processor with 512K Cache, 256 MB
SDRAM, 9GB, Harddrive, 3.5" diskette drive, 13X
min / 32X max CD-ROM, Telepath modem w/x2
technology, 3COM PCI 10/100 twisted pair Ethernet
w/wol, 104+ keyboard and MS IntelliMouse, Gateway
Model E-5250, (1) 21" color monitor by Vivitron
model VX1100 (19.7" viewable), and (1) Hewlett
Parkard 6Pse printer.
VENDOR: LOAD TECHNOLOGY, INC.
1 Model: OSL6-2000.1-480V33-0600-(6) 100 Resistive
Load Bank, rating: 2000 KW, consisting of the
following:
An outdoor load enclosure containing the load
resistors, power controls and cooling fan.
An outdoor control enclosure containing the pilot
control devices for remote mounting.
VENDOR: PRITCHARD BROWN
4 Sound Attenuated Enclosure; including, but not
limited to the following:
3500 Gallon Capacity Fuel Tank
--------------------------------------------------------------------------------
</TABLE>
63
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
3850 Gallon Rupure Basin
4-Point Base Lift Plates
U.L. Listed Fuel Tank
VENDOR: EXIDE
5 750KVA Multi-Module Parallel UPS System with:
Input Voltage of: 480 VAC, 3 Phase, 3-Wire, 60 Hz
Output Voltage of: 480 VAC, 3 Phase, 3-Wire, 60 Hz
5 System Battery
5 2500AF/2000AT Battery Breaker with Aux. Contacts
and Shunt Trip
5 Manually Operated 2000 amp Fused Battery
Disconnect Switch
1 UPS Output Switchboard with System Bypass Control
by General Electric Rated at 100KAIC
1 Remote Monitor Panel
HVAC, PLUMBING & FIRE
PROTECTION
ITEMS AS MORE FULLY DESCRIBED
BELOW:
VENDOR: ADVANCED SAFETY SYSTEMS, INC.
FM-200 Fire Detection/Suppression System with Fenwal's
Smart-One Analog Intelligent Multizone System
Technology for 3 zones.
VENDOR: DELTA MECHANICAL OF NEW ENGLAND, INC.
HVAC System; including, but not limited to, the
following:
Controls
Chillers
RTUs/AIIU
Cooling Towers
Pumps & Accessories
RGDs
Fans
Electric Heat & Cabs
--------------------------------------------------------------------------------
</TABLE>
64
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Supply & Return Piping
Liebert Units
Fan Powered & VAV Boxes
Fire Dampers/Access Damper
Trailers
Smoke Dampers
AUDIO/VISUAL EQUIPMENT ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: HB COMMUNICATIONS
1 VPL-X1000 Sony LCD Video Projector
1 VPLCFM30 Sony Short Focus Lens
4 LMP-600 Sony Lamps
1 WRK-24SA-27 MidAtlantic Equipment Rack
1 MW-VT MidAtlantic Vented Top
1 PD-1415C MidAtlantic Power Strip
1 MD-KB MidAtlantic Keyboard Tray
10 U317 MidAtlantic Vented Shelves
1 AS3-22 MidAtlantic Video Rackshelf (computer monitor)
1 AV-16B Cybex AutoView 16 input KVM Switcher
9 CUFU-6 Cybex CPC/VGA Cables
2 RMK-33 Cybex Rackmounts
1 A-906 TOA Mixer/Power Amplifier
1 MB-25B TOA Rack Mount
4 U21S TOA Input Module
5 C803-AT47 Soundolier 8" Coaxial Loudspeaker
5 95-8-10 Soundolier 8" Loudspeaker enclosures
5 61-8W Soundolier Grille
5 81-8 Soundolier T Bar Support
22 RGB 202x Extron Computer Interface
22 MBC/VGA MBC Input Cable
1 AV Creston Audiovisual Control System
1 SAS-BS3 Sony DSS Receiver & Dish
1 IN1024 Inline Video Scan Doubler
--------------------------------------------------------------------------------
</TABLE>
65
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 Inline Rack Mount
1 3200 Extron RGBHV Matrix Switcher
9 VPL-X1000U Sony LCD Video Projector
9 VPLL-FM30 Sony Short Focus Lens
9 Trooper Rear Projection Screen
9 Trooper RPM System (Video Projection Support)
1 WRK-44SA MidAtlantic Equipment Rack
1 RWL-1 Soundolier Rack Work Light
1 SB MidAtlantic Blank Panels
1 VTF MidAtlantic Vented Panels
1 Wiremold Power Strips
Cable & Connectors
SECURITY ITEMS AS MORE FULLY
DESCRIBED BELOW:
VENDOR: ADT SECURITY SERVICES, INC.
Central Security & Access Control Systems;
including, but not limited to, the following:
Recessed Magnetic Door Switch
Surface Mounted Door Switch
Relay Alarm Interface
Motion Detector (Passive Infrared)
Magnetic Lock with Power Supply for Access
Controlled Door
Interior Intercom Station with speaker and Signal
Button
Weatherproof Intercom Station with speaker and
Signal Button
Inside Close Circuit Television Camera with all
Accessories such as mounting brackets, bubble
ceiling housing and lens
Inside Close Circuit Television Camera with Pan
Tilt and Zoom with all Accessories such as
mounting brackets, bubble ceiling housing and lens
Outside Close Circuit Television Camera with Pan
Tilt and Zoom with Weatherproof Housing and
Equipment (Speed Dome)
Fixed Outside Close Circuit Television Camera
--------------------------------------------------------------------------------
</TABLE>
66
<PAGE>
SCHEDULE A EQUIPMENT
Attached hereto and made part of the following documents: Consent and Waiver
(Owner, Landlord or
Mortgagee of Real
Estate)
With: NaviSite, Inc. (35076-00001)
<TABLE>
<CAPTION>
QUANTITY MODEL UNIT# DESCRIPTION SERIAL#/VIN#
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
with Weatherproof Housing and Equipment
Assistance Button/Panic Alarm
Glass Break Detector
Proximity Reader Controlled Door with: Entrance
Card Reader, Electric Door Strike, Exit Device
(PIR), and Magnetic Switch
Proximity Card Reader Controlled Door with:
Entrance Card Reader, Exit Card Reader, Electric
Door Strike, and Magnetic Switch
Exterior Mounting for Card Reader
Multiplex Panel, Base Panel with Power Supply with
Battery Backup
Report Printer
Laser Printer
Work Station
Card Printing Supplies
Portable Video ID Input Camera with Interface
Cables
Digital Recorder for 32 CCTV Cameras
16 Camera Multiplexer
Proximity Card Reader
Visitor Printer Option (Printer and Software)
--------------------------------------------------------------------------------
</TABLE>
WITH ALL STANDARD AND ACCESSORY EQUIPMENT
67