Master Equipment Lease Agreement [Amendment No. 2] - NaviSite Inc. and Fleet Capital Corp.
Waiver and Second Amendment to
Lease Schedule No. 35076-00002 to
Master Equipment Lease Agreement No. 35076
This Waiver and Second Amendment to Lease Schedule No. 35076-00002 to
Master Equipment Lease Agreement No. 35076 (this "Amendment") is entered into as
of this 8/th/ day of December, 2000 by and between Navisite, Inc., as lessee
(the "Lessee") and Fleet Capital Corporation, as lessor (the "Lessor").
WHEREAS, Lessor and Lessee have entered into that certain Lease Schedule
No. 35076-00002 to Master Equipment Lease Agreement No. 35076 (such Master
Equipment Lease Agreement is referred to herein as the "Master Lease") dated as
of May 26, 2000, as amended by Amendment dated as of May 26, 2000 (such Lease
Schedule, as amended, which incorporates the terms of the Master Lease, together
with all exhibits, schedules, addenda and riders, is hereafter referred to as
the "Lease Schedule");
WHEREAS, the parties desire to amend the Lease Schedule as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall
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have the meanings assigned to such terms in the Lease Schedule.
2. Waiver; Amendment to Lease Schedule.
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2.1. Waiver. The Lessee (a) has informed the Lessor that as of
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October 6, 2000 the Lessee is not in compliance with the market capitalization
covenant set forth in Section 5A of the Master Lease under the heading
"Affirmative Covenants- 2. Market Capitalization" (requiring the Lessee to
maintain a market capitalization of at least $1,000,000,000) (the
"Capitalization Covenant") and (b) has requested that the Lessor waive
compliance with the Capitalization Covenant. The Lessor hereby waives compliance
with the Capitalization Covenant until the earlier of December 13, 2000 or the
effectiveness of the amendment to the Master Lease set forth in Section 2.2
below. If such amendment does not become effective on or before December 13,
2000, the Lessee's failure to be in compliance with the Capitalization Covenant
after December 13, 2000 for any reason shall result in an Event of Default under
the Lease in accordance with Section 8 of the Master Lease.
2.2. Amendments. From and after the occurrence of the Effective Date
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(as defined below), Section 5A of the Master Lease, as incorporated into the
Lease Schedule, is hereby amended effective as of October 31, 2000 by deleting
the two covenants set forth therein under the heading "Affirmative Covenants"
(such covenants
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being entitled "1. Cash." and "2. Market Capitalization.") and substituting in
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place thereof the following new covenant:
"1. Cash Collateral. The Lessee shall (a) establish and maintain at
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all times a cash collateral account (the "Cash Collateral Account")
with Fleet National Bank, as collateral trustee for the Lessor, (b)
deposit and maintain in the Cash Collateral Account at all times cash
and cash equivalents acceptable to the Lessor in an amount equal to or
greater than the lesser of (i) $23,250,000 or (ii) 100% of the
Stipulated Loss Value, calculated as of the next following Rental
Payment Date, under the Lease Schedule No. 35076-00002, and (c) at all
times pledge and grant a security interest in the Cash Collateral
Account and all amounts on deposit therein to Lessor to secure its
obligations under the Lease Schedule pursuant to a cash collateral
agreement in form and substance satisfactory to Lessor (the "Cash
Collateral Agreement"). Lessee and Lessor agree that any default in
the payment or performance of any obligation under this paragraph or
in the Cash Collateral Agreement shall constitute an Event of Default
under and in accordance with Section 8 of the Master Lease."
From and after the occurrence of the Effective Date (as defined
below), Section 5A of the Master Lease, as incorporated into the Lease Schedule,
is hereby further amended effective as of October 31, 2000 by (x) deleting the
covenant entitled "1. Indebtedness." under the heading "Negative Covenants" and
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substituting in place thereof the words "1. [Deleted.]" and (y) deleting the
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covenant entitled "3. Liens." set forth therein under the heading "Negative
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Covenants" and substituting in place thereof the words "3. [Deleted.]".
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For purposes of this Section 2.2, the Effective Date shall mean the
first date on which the Lessee shall have satisfied each of the following
conditions precedent: (1) the Lessee shall have funded the Cash Collateral
Account with at least $23,250,000 in cash, (2) Lessee shall have executed and
delivered to the Lessor the Cash Collateral Agreement, pursuant to which the
Lessee pledges and grants a security interest in the Cash Collateral Account and
all amounts on deposit therein to Lessor to secure its obligations under the
Lease Schedule, and (3) the Lessee shall have delivered to the Lessor corporate
resolutions of the Lessee evidencing the Lessee's authority to enter into this
Amendment and the Cash Collateral Agreement and a legal opinion of counsel to
the Lessee in form and substance reasonably satisfactory to the Lessor as to the
enforceability of this Amendment and the Cash Collateral Agreement against the
Lessee.
3. Representations and Warranties. The Lessee hereby represents and
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warrants as follows:
3.1 Representations in Lease Documents. Each of the representations
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and warranties made by or on behalf of the Lessee in the Lease Schedule was true
and correct when made and is true and correct on and as of the date hereof
(except to the
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extent of changes resulting from transactions contemplated or not prohibited by
the Lease Schedule and changes occurring in the ordinary course of business, and
except to the extent that such representations and warranties relate expressly
to an earlier date) with the same full force and effect as if each of such
representations and warranties had been made by the Lessee on the date hereof
and in this Amendment.
3.2. Defaults. Except as described in Section 2.1 above, no default
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or Event of Default exists on the date hereof (after giving effect to all of the
arrangements and transactions contemplated by this Amendment).
3.3. Binding Effect. This Amendment has been duly executed and
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delivered by the Lessee and is in full force and effect as of the date hereof,
and the respective agreements and obligations of the Lessee contained herein
constitute the legal, valid and binding obligations of the Lessee, enforceable
against it in accordance with its terms, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and to the fact that the
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
4. Provisions Of General Application.
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4.1. No Other Changes. Except as otherwise expressly provided or
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contemplated by this Amendment, all of the terms, conditions and provisions of
the Lease Schedule and the Master Lease remain unaltered. The Lease Schedule
and this Amendment shall be read and construed as one agreement. The making of
the amendments in this Amendment does not imply any obligation or agreement by
the Lessor to make any other amendment, waiver, modification or consent as to
any matter on any subsequent occasion.
4.2. Governing Law. This Amendment is intended to take effect as a
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sealed instrument and shall be deemed to be a contract under the laws of the
State of Rhode Island. This Amendment and the rights and obligations of each of
the parties hereto are contracts under the laws of the State of Rhode Island and
shall for all purposes be construed in accordance with and governed by the laws
of such State (excluding the laws applicable to conflicts or choice of law).
4.3. Assignment. This Amendment shall be binding upon and inure to
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the benefit of each of the parties hereto and their respective permitted
successors and assigns.
4.4. Counterparts. This Amendment may be executed in any number of
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counterparts, but all such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
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IN WITNESS WHEREOF, Lessor and Lessee, each by its duly authorized officer,
have duly executed and delivered this Amendment as a sealed instrument as of the
date first written above.
NAVISITE, INC.
By: /s/ Kenneth W. Hale
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Name: Kenneth W. Hale
Title: Chief Financial Officer
FLEET CAPITAL CORPORATION
By: /s/ Kevin G. McGrath
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Name: Kevin G. McGrath
Title: Senior Vice President