exv10w4






Exhibit
10.4




Amendment #5 to Lease




1. Parties.




     This Amendment, dated as of August 15, 2008, is between 400 Minuteman LLC (“Landlord”), and
NaviSite, Inc. (“Tenant”).



2. Recitals.




     2.1 Landlord’s predecessor in interest, 400 Minuteman Limited Partnership, and Tenant
entered into a lease, dated as of May 14, 1999, for space in the building at 400 Minuteman Road,
Andover, Massachusetts (the “Building) (as now or hereafter amended or extended, the “Lease”).
Unless otherwise defined, terms in this Amendment have the same meanings as those in the Lease.



     2.2 Tenant wishes to install additional fiber optic cable to Tenant’s data center in the
Building for Tenant’s telecommunications purposes through Landlord’s existing infrastructure. To
accomplish this, for good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree and the Lease is amended as follows as of this date,
notwithstanding anything to the contrary:



3. Amendments.




     3.1 Definitions.



          (a) “Equipment” means new fiber optic cable, new 1 1/4” innerduct through which the cable
will travel, and any associated electronic equipment necessary to provide fiber optic
telecommunications service to the Building using this fiber optic cable.




          (b) “Pathway” means the pathway to the Building in which the Equipment will be installed. As
shown in Attachment #1 (the Lightower Lateral Sketch not-to-scale, dated 2/7/2008), the
Pathway originates at a riser pole located at the River Road right-of-way identified as Pole 57
and proceeds to the Building at a proposed D-Mark location via Pole 5062 on Old River Road and
then through existing underground infrastructure consisting of manholes and empty 4” continuous
ducts in the existing duct bank that traverses a route via various easements across other property
owned by the Minuteman Park property owners listed below (the “Other Owners”) and then across the
Project through Manholes number 7, 9, 16 and 15. The Other Owners are:




               (i) 150 Minuteman LLC, the owner of 150 Minuteman Road, where a portion of the Pathway is
located, comprising Manholes number 33 and 35 and approximately 619 lineal feet of underground
conduit;



               (ii) 200 Minuteman LLC, the owner of 200 Minuteman Road, where a portion of the Pathway is
located, comprising Manholes number 37, 32, 31, 30 and 17 and approximately 1,254 lineal feet of
underground conduit; and



               (iii) Minuteman Greenery LLC, the owner of the roadbed, parkway, sidewalks and curbs of
Minuteman Road where a portion of the Pathway is located, comprising Manholes number 43 and 38
and approximately 653 lineal feet of underground conduit.



     3.2 Installation; Maintenance.



 









 





          (a) Tenant will install the Equipment only in the Pathway and will permanently mark the
Equipment in the manholes so as to be fully visible to anyone who may use or maintain the
underground infrastructure. The installation of the Equipment will begin as soon as reasonably
possible and proceed diligently, in a good and workmanlike manner, and in accordance with
applicable Laws, the Lease and Landlord’s reasonable scheduling and coordination requirements.




          (b) Subject to Landlord’s prior written approval of locations, Tenant may use existing
unused or partially used conduit or openings passing through the Building’s core or horizontally
above the ceilings and hallways where space is available to install the fiber optic cable and
conduit.




          (c) During the Term Tenant will be solely responsible at its cost for installing,
maintaining, repairing and if necessary replacing the Equipment, and will promptly repair and if
necessary replace the Equipment in the Pathway if the Equipment is damaged. Tenant will not remove
the Equipment unless it promptly replaces it. All repairs and replacements will be of at least
equivalent quality and specifications. When the Term ends Tenant will leave the Equipment in place
and it will be deemed surrendered to Landlord without additional consideration.




          (d) Tenant will take all necessary steps to minimize any potential damage, but will be solely
responsible for, and promptly repair to Landlord’s reasonable satisfaction, any damage caused by
or arising from or in connection with the Equipment or its installation, operation, maintenance,
repair, replacement or removal.



     3.3 Liability. As a material inducement to Landlord and the Other
Owners, Tenant waives all claims against them and agrees that they and their respective Affiliates
will have absolutely no liability of any kind regardless of cause or fault in connection with the
Equipment or the services provided by the Equipment, including, without limitation, liability
arising from or in connection with installation, operation, maintenance, repair, replacement,
removal, damage, breakage, defect, or interruption of service, and Tenant will indemnify Landlord,
the Other Owners and their respective Affiliates from all Liabilities in connection therewith.




     3.4 Base Rent and Operating Costs: Other than the obligations outlined herein in
this Amendment #5, Tenant’s base rent and Operating Costs (as defined in the Lease) and any other
fees and or costs shall remain unchanged and in accordance with the terms of the Lease.



     3.5 Miscellaneous. Tenant does not have the right or power to Transfer its rights hereunder
or in connection with the Equipment except to a valid assignee of the Lease. Tenant has no rights
in the Pathway except to install, repair, maintain and replace the Equipment as set forth in this
Amendment during the Term. Without limiting the generality of this Amendment, Tenant’s
contractors and subcontractors will carry all insurance required by the Lease, name Landlord, the
Other Owners and their respective designees as additional insureds and provide complying
certificates of insurance before beginning work. Landlord, the Other Owners and their respective
Affiliates may inspect all work as it proceeds, but are not responsible for any of the work.
Tenant agrees that Landlord has fully complied with its Lease obligations. This Amendment may be
executed in counterparts, all of which together will constitute one agreement.



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IN WITNESS WHEREOF, intending to be legally bound, the parties have executed this Amendment #5 as
of the date in Section 1 above.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NAVISITE, INC.	 	400 MINUTEMAN LLC
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Jim Pluntze	 	 	 	By:	 	Minuteman Master LLC, Sole Member	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Name:

Title:	 	Jim Pluntze

CFO	 	 	 	By:	 	150 Minuteman Limited Partnership,	 	 	 
	 	 	Authorized Signature	 	 	 		 	Managing Member
	 	 		 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	By:	 	Niuna-150 Minuteman, Inc.,	 	 
	 	 	 	 	 	 	 	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	/s/ MARTIN SPAGAT 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	Name:

Title:
	 	MARTIN SPAGAT

VICE PRESIDENT	 	 





Although their consent may not be required, the Other Owners nevertheless consent to this
Amendment, but they have no liability in connection with it




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	150 MINUTEMAN LLC	 	200 MINUTEMAN LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Minuteman Master LLC, Sole Member	 	By:	 	Minuteman Master LLC, Sole Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	150 Minuteman Limited Partnership,	 	By:	 	150 Minuteman Limited Partnership,	 	 
	 	 	Managing Member	 	 	 	 	 	Managing Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Niuna-150 Minuteman, Inc.,	 	By:	 	Niuna-150 Minuteman, Inc.,	 	 
	 	 	General Partner	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ MARTIN SPAGAT 	 	 	By:	 	/s/ MARTIN SPAGAT 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	MARTIN SPAGAT

VICE PRESIDENT
	 	 	 	 	 	Name:

Title:
	 	MARTIN SPAGAT

VICE PRESIDENT	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MINUTEMAN GREENERY LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Minuteman Master LLC, Sole Member	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	150 Minuteman Limited Partnership,	 	 	 	 	 	 	 	 
	 	 	Managing Member	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	Niuna-150 Minuteman, Inc., 
General Partner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	/s/ MARTIN SPAGAT 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:

Title:
	 	MARTIN SPAGAT

VICE PRESIDENT	 	 	 	 	 	 	 	 	 	 







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