**Exhibit10(c)(xvii)**

 

**SECONDAMENDMENT TO LEASE**

 

THIS AMENDMENT ismade and entered into this 3rd day of December, 2004, by and between MiddlelexDevelopment Limited Partnership (hereinafter referred to as “Landlord”) andAmerican Science and Engineering, Inc., a Massachusetts corporation(hereinafter referred to as “Tenant”).

 

**BACKGROUND:**

 

A.           Landlord and Tenant entered into alease dated January 12, 1995, as amended by a First Amendment dated as of June11, 1997 (the “Lease”), with respect to 115,200 square feet (the “ExistingPremises”) on the first floor of the building (the “Building”) located at 829 MiddlesexTurnpike, Billerica, Massachusetts (the Building and the land on which it issituated are referred to herein as the “Property”).

 

B.           The parties now desire to extend theterm of the Lease for an additional period commencing as of March 1, 2005 andending ten (10) years after the Final Funding Date (defined below);

 

C.           Tenant desires to lease additionalspace consisting of (i) certain high bay space consisting of approximately26,200 rentable square feet which is to be constructed by Tenant as an additionto the Building in accordance with the terms of this Amendment, substantiallyin the location shown on Exhibit D attached hereto (the “High Bay Premises”)and (ii) certain additional space in the Building consisting of 24,974 rentablesquare feet, substantially as shown on Exhibit A attached hereto (the “AdditionalPremises”), to increase the floor area of the Premises to approximately 166,374rentable square feet in the aggregate;

 

D.           Tenant also desires that Landlordperform certain other improvements and upgrades to existing areas and systemsof the Building, as set forth herein;

 

E.            Landlord has agreed to lease theAdditional Premises and the High Bay Premises to Tenant, to perform theimprovements and upgrades and demising work more particularly described herein,and to amend the Lease in other respects, and now the parties desire to modify theLease accordingly;

 

NOWTHEREFORE, in consideration of the mutual undertakings contained herein, andfor other good and valuable consideration, Landlord and Tenant hereby agree asfollows, effective as of the date hereof (the “Effective Date”):

 

1.            *Extensionof Term.*As of the Effective Date, the Term specified in Section1.1 of the Lease is hereby extended and shall expire on the last day of thetenth (10th) Year(1) after the Final Funding Date. The “Final Funding Date”shall be that date which is the last day of the 11th

 

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(1)           Theterm “Year” as used herein shall mean a period of twelve (12) consecutive fullcalendar months. The first Year shall begin on the Final Funding Date it theFinal Funding Date is the first day of a calendar month; if not, then the firstYear shall commence upon the first day of the calendar month next following theFinal Funding Date. Each succeeding Year shall commence upon the anniversarydate of the first Year.

 

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full calendar monthfollowing the Site Plan Approval Date. The term “Site Plan Approval Date” shallmean the date on which the Town of Billerica approves the site planmodification contemplated by the provisions of Paragraph 20 of this Amendment,and any and all appeal periods applicable thereto have expired.

 

2.            *Demiseof Additional Premises and High Bay Premises: Additional Premises Reduction.*A. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,subject to and with the benefit of the terms, covenants, conditions andprovisions of the Lease, the Additional Premises and the High Bay Premises fora term commencing on the Additional Premises Commencement Date with respect tothe Additional Premises and for a term commencing on the High Bay PremisesCommencement Date with respect to the High Bay Premises, and continuing in eachinstance coterminously with the Term of the Lease as extended by Paragraph 1above. The “Additional Premises Commencement Date” shall be the date which isthe earlier to occur of (a) the date on which Landlord disburses the TIAllowance for Phase III, as hereinafter defined, and (b) the Final FundingDate. The “High Bay Premises Commencement Date” shall be the date which is theearlier to occur of (a) the date on which a temporary Certificate of Occupancyhas been issued by the Town of Billerica for the High Bay Premises, and (b) theFinal Funding Date. The term “Premises” as used in the Lease and in thisAmendment shall collectively mean the Existing Premises, the High Bay Premisesand the Additional Premises, as the context so requires.

 

B.   The Additional Premises areleased to Tenant in “as-is” condition, without any representations orwarranties by Landlord as to their condition or suitability for Tenant’s use,and without any obligation by Landlord to perform any construction orimprovements to the Additional Premises, except that Landlord shall, at itsexpense and so as to conform to all Applicable Laws (defined in Paragraph 5below), (i) cause to be constructed a demising wall to separate the AdditionalPremises from the remainder of the Temporary Space as soon as practicable afterthe Effective Date, but no later than the date which is sixty (60) daysfollowing the Site Plan Approval Date, and (ii) separately demise theelectrical systems, the heating, ventilating and air-conditioning systems andthe life safety systems to effectively serve the Additional Premises, no laterthan the date which is thirty (30) days after Tenant vacates that portion ofthe Temporary Space remaining after Landlord constructs the demising wall contemplatedin clause (i) of this subparagraph B. Landlord may elect to commence any such workduring Tenant’s occupancy of the Temporary Space, and if Landlord so elects,Tenant shall cooperate with Landlord’s reasonable requirements to facilitatethe performance of the demising work. Tenant shall pay Additional Rent toLandlord on account of Taxes and Operating Costs with respect to the AdditionalPremises as set forth in Paragraph 3 below.

 

C.   Tenant shall have the optionto reduce the total area of the Premises by deleting up to 5,000 square feet ofrentable floor area from the Additional Premises contiguous to the Vacant Spaceand comprising a configuration approved by Landlord (such deleted area beingreferred to herein as the “Deleted Premises”), provided Tenant gives notice toLandlord of its exercise of such option no later than thirty (30) daysfollowing the Site Plan Approval Date, which notice shall contain Tenant’sdesignation of the Deleted Premises and an effective termination date, whichshall be no later than thirty (30) days following the date of Tenant’s noticeas aforesaid. If Tenant satisfies all of the conditions of the precedingsentence, then

 

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effective as of the earlytermination date specified in Tenant’s notice, without need for a formalamendment, the Lease, as amended hereby, shall automatically be deemed furtheramended and shall terminate with respect only to the Deleted Premises, and fromand after the early termination date each of the items listed below shall beproportionately decreased to reflect the deletion of the rentable floor area ofthe Deleted Premises:

 

(1)          the Rentable Floor Area of thePremises specified in Paragraph 3(F);

 

(2)                                 eachadjustment of the Annual Fixed Rent Rate specified in Paragraph 3(D);

 

(3)                                 eachadjustment of the Monthly Fixed Rent Rate specified in Paragraph 3(D);

 

(4)          the Tenant’s Percentage specified inParagraph 3(F); and

 

(5)                                 theTI Allowance specified in Paragraph 7(A) (i.e., by deleting from the amountspecified in Paragraph 7(A) the sum of $34.00 times the rentable floorarea of the Deleted Premises).

 

Inaddition, Exhibit A hereto shall be modified to indicate the reductionof the Additional Premises; and the rentable floor area of the AdditionalPremises specified in recital “C” at the beginning of this Amendment shall bereduced by subtracting therefrom the rentable floor area of the DeletedPremises.

 

Notwithstandingany of the foregoing, at the request of either party, Landlord and Tenant shallexecute and deliver an amendment confirming the amounts of the reduced Premisesfloor area, the Fixed Rent, the Tenant’s Percentage and the TI Allowance listedabove, and any other applicable changes as a result of a reduction in the areaof the Premises by the deletion of the Deleted Premises.

 

D.   Tenant will cause to beconstructed the High Bay Premises in accordance with the provisions ofParagraph 6 of this Amendment.

 

3.            *FixedRent; Additional Rent; Certain Amendments as of Final Funding Date.*A.It is the intent of the parties that Tenant shall commence to pay fixed rentand additional rent to Landlord for the High Bay Premises as of the High BayPremises Commencement Date. Accordingly, Tenant shall pay fixed rent for theHigh Bay Premises to Landlord in the manner specified for the payment of fixedrent in Section 4.1 of the Lease, at annual and monthly rates of $203,050.08and $16,920.84, respectively, from the High Bay Premises Commencement Datethrough the day before the Final Funding Date, and thereafter as set forth inParagraph E below. For the purposes of determining Tenant’s Percentage of Taxesand Tenant’s Percentage of Operating Costs under Article 4 of the Lease withrespect to the High Bay Premises, the Tenant’s Percentage for the High BayPremises shall be 14.07%. For the purposes of this Amendment and theLease, including without limitation the provisions of Sections 8.1 and 8.2thereof, the term “Fixed Rent” as used in the Lease shall mean and include therent payable by Tenant for the

 

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High Bay Premises as setforth in this subparagraph A.

 

B.   With respect to the ExistingPremises, Tenant shall continue to pay Fixed Rent from the Effective Date atthe Annual Fixed Rent Rate of $604,800.00 (i.e., $5.25 per rentable squarefoot), and the Monthly Fixed Rent Rate of $50,400.00 until the last day of thecalendar month in which the first TI Disbursement Date occurs. As used herein,the term “TI Disbursement Date” shall mean, as to any Phase (as hereinafterdefined), the date on which Landlord disburses the TI Allowance for such Phase.

 

C.   Tenant shall pay Fixed Rentfor the Additional Premises and the Existing Premises at an increased rentalrate for any portion of the Additional Premises and Existing Premises, asapplicable, in which a Phase of Tenant’s Work has been completed and Landlord hasdisbursed the TI Allowance for such Phase. As used herein, the term “Phase”shall mean the portion of the Premises shown as Phase I, Phase II, Phase IIIand Phase IV, as applicable, on Exhibit G hereto. Commencing as of thefirst day of the calendar month following the first TI Disbursement Date, andthereafter on the first day of any calendar month following each successive TIDisbursement Date, Tenant shall pay Fixed Rent at the rate of $7.75 perrentable square foot times the rentable area of the applicable portionof the Existing Premises, or the Additional Premises, in which Tenant hascompleted a Phase of Tenant’s Work. The formula specified in the precedingsentence shall be utilized to increase the Fixed Rent contemporaneously witheach disbursement of the TI Allowance for a Phase of Tenant’s Work in thePremises, as applicable. For the purposes of calculating the increases in FixedRent payable by Tenant, Tenant shall specify the rentable square footageincluded in a Phase of Tenant’s Work for which the TI Allowance is beingdisbursed, and shall submit to Landlord with each disbursement request Tenant’sdetermination of such square footage (which shall be determined by measuringthe entire floor area contained within such Phase, taking measurement from the outsideof any exterior wall and to the middle of any demising wall), subject toverification by Landlord’s architect. The foregoing increases notwithstanding,Tenant shall continue to pay Fixed Rent at the rate of $5.25 per rentablesquare foot times the rentable area of the Existing Premises in which aPhase of Tenant’s Work has not been completed and the TI Allowance has not beendisbursed, until the earlier of (i) the Final Funding Date, or (ii) the TIDisbursement Date for such Phase of the Existing Premises. A Phase of Tenant’sWork shall be deemed “completed” on the date Tenant properly submits toLandlord the documentation required for payment of the TI Allowance for suchPhase pursuant to Paragraph 7(B) below.

 

D.   As of the Final Funding Date,Tenant shall be obligated to pay Fixed Rent to Landlord calculated at the rateof $7.75 per rentable square foot times the rentable floor area of 100%of the Premises, even if each Phase of Tenant’s Work and the High Bay Work arenot then complete. Accordingly, commencing as of the Final Funding Date, theAnnual Fixed Rent Rate and the Monthly Fixed Rent Rate specified in Section 1.1of the Lease, shall each be further amended and increased as set forth below:

 

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| **Period:**                                         | ** ** | **Annual Fixed Rent Rate:** | ** **                      | **Monthly Fixed Rent Rate:** |
|-----------------------------------------------------|------------|-----------------------------|---------------------------------|------------------------------|
|                                                |       |                        |                            |                         |
| Final Funding  Date(2) through the end of 4th Year: |       | $                           | 1,289,398.50 (i.e.,  $7.75 psf) |                         | $ | 107,449.87 |
|                                                |       |                        |                            |                         |
| 5th Year through 7th Year:                          |       | $                           | 1,414,179.00 (i.e.,  $8.50 psf) |                         | $ | 117,848.25 |
|                                                |       |                        |                            |                         |
| 8th Year through 10th Year:                         |       | $                           | 1,538,959.50 (i.e.,  $9.25 psf) |                         | $ | 128,246.62 |

 

Theabove rental amounts shall be proportionately reduced as applicable if Tenantexercises its right pursuant to Paragraph 2(C) to reduce the area of thePremises.

 

E.    Tenant shall pay additionalrent to Landlord on account of Taxes and Operating Costs allocable to theAdditional Premises pursuant to the provisions of Article 4 of the Lease andthis subparagraph. If the Additional Premises Commencement Date occurs prior tothe Final Funding Date, for the purposes of determining the Tenant’s Percentageof Taxes and Operating Costs with respect to the Additional Premises, theTenant’s Percentage for the Additional Premises shall be the ratio of therentable area of the Additional Premises (as the same may have been reducedpursuant to Paragraph 2(C) above) to the total rentable area of the Building atsuch time. As of the Final Funding Date, the Additional Premises shall bedeemed integrated with the remainder of the Premises and the Tenant’sPercentage shall be as set forth in subparagraph F below.

 

F.    Effective as of the FinalFunding Date, the Tenant’s Percentage specified in Section 1.1 of the Lease, aspreviously amended, shall be further amended and increased to 89.36% bythe inclusion of the High Bay Premises and the Additional Premises into theExisting Premises. It is understood that the independent percentages specifiedin subparagraphs A and E above with respect to the High Bay Premises and theAdditional Premises are solely for the purpose of determining Taxes andOperating Costs applicable to such premises during the interim period prior tothe Final Funding Date and shall have no further applicability after such date.Additionally, as of the Final Funding Date, the Rentable Floor Area of Premisesin Section 1.1 of the Lease shall be increased to 166,374 square feet, and ExhibitA and Exhibit D attached hereto shall collectively show the entirePremises and shall be substituted for the existing Exhibit A to the Lease. Theforegoing is subject to appropriate downward adjustment if Tenant exercises itsright pursuant to Paragraph 2(C) to reduce the Premises.

 

4.             *Demise ofTemporary Space; Parking*.**A. Notwithstanding anything hereinto the contrary, as of the Effective Date, Landlord demises to Tenant, andTenant accepts the demise of, the Temporary Space (hereinafter defined), forthe Permitted Uses, in its “as-is” condition, without any representations orwarranties by Landlord and without any obligation by Landlord to construct orprepare the Temporary Space for Tenant’s use, on all the terms and

 

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(2)           Ifthe Final Funding Date is not the first day of a calendar month, then anappropriate reconciliation shall be made and Tenant shall pay any difference inthe Fixed Rent owing to Landlord upon demand therefor.

 

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conditions of the Lease,as amended hereby, except for the obligation to pay Fixed Rent which is herebywaived and abated in full, except as otherwise provided below in subparagraphD. The term with respect to the Temporary Space shall commence on the EffectiveDate and continue until the date (the “Temporary Space Termination Date”) whichis the earlier of (i) the Final Funding Date and (ii) the date on which Tenantmoves out of the Temporary Space and relocates to the Existing Premises, unlessterminated sooner pursuant to the terms of the Lease or this Paragraph 4.During the period of Tenant’s occupancy of the Temporary Space, no Fixed Rentor Additional Rent on account of Operating Costs or Taxes shall accrue or bepayable by Tenant with respect to the Temporary Space. However, Tenant shall beobligated to pay, as Additional Rent to Landlord, all charges and costs made bythe applicable public authority for electricity, water and other utilitiesfurnished or consumed in the entirety of the Temporary Space, until such timethat Tenant vacates the portion of the Temporary Space comprising the VacantSpace, as hereinafter defined. Once Tenant vacates that portion of theTemporary Space comprising the Vacant Space, Tenant shall pay to Landlord, asAdditional Rent, its pro rata share of utility charges equitably allocated tothe Additional Premises (based upon the ratio of the rentable area of theAdditional Premises to the rentable area the Temporary Space) until Landlordcompletes the work to separate the electrical and other utilities serving theAdditional Premises. Before taking occupancy of the Temporary Space, Tenantshall deliver to Landlord certificates evidencing the insurance required bySection 4.2.4 of this Lease, and shall obtain all permits from the applicablegovernmental authorities required to occupy the Temporary Space for thePermitted Uses, if necessary, and shall deliver copies of such permits toLandlord. The term “Temporary Space” shall mean the approximately 44,800 squarefeet of space in the Building not currently occupied by Tenant, as shown on ExhibitB attached hereto. For the purposes of this Amendment and the Lease,including without limitation Tenant’s indemnifications contained in Section6.1.5 of the Lease, the term “Premises” shall be deemed to mean and include theTemporary Space during Tenant’s occupancy thereof.

 

B.   Landlord shall have the rightto terminate Tenant’s right to use and occupy the Temporary Space, effective noearlier than the date that is four (4) months prior to the Final Funding Date,if Landlord requires such space for another tenant. In the event Landlord exercisesthe aforesaid right, (1) Landlord shall give Tenant a written noticeterminating Tenant’s right to use and occupy the Temporary Space specifying aneffective termination date that is at least thirty (30) days after the date ofLandlord’s notice, and (2) the Temporary Space Termination Date specified insubparagraph A above shall be changed to the effective termination datespecified in Landlord’s notice.

 

C.   It is contemplated thatTenant will move out of the Temporary Space on or before the Temporary SpaceTermination Date (as the same may be changed pursuant to subparagraph B above).As of the Temporary Space Termination Date, Tenant shall be obligated toyield-up and surrender the Temporary Space to Landlord in broom cleancondition, free of all personal property and equipment, in substantially thesame condition the Temporary Space was in on the Effective Date, reasonablewear and tear, damage and loss by casualty and condemnation excepted, andotherwise in accordance with, and subject to, the provisions of Section 6.1.9of the Lease. If Tenant shall fail to comply with the foregoing provisions, Landlordmay undertake such cleaning, repair and removal of personal property as isrequired to so comply, at Tenant’s cost and expense, and Tenant shall reimburseLandlord, as Additional

 

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Rent, within thirty (30)days after invoice by Landlord, for all such costs and expenses. Subject toParagraph 7 below, Tenant shall be responsible for paying for all moving costsincurred in connection with Tenant relocating from the Temporary Space to theExisting Premises.

 

D.   If Tenant remains in theTemporary Space beyond the Temporary Space Termination Date, such holding overshall be without right and shall not be deemed to create any tenancy, butTenant shall be a tenant at sufferance only at a daily rate of rent equal to 2times the rent then payable by Tenant for the remainder of the Premises. Tenantshall further indemnify Landlord against all loss, cost and damages resultingfrom Tenant’s failure and delay in vacating and surrendering the TemporarySpace as provided above.

 

E.    Tenant acknowledges that theparking ratio for the Building is 3.5 spaces per 1,000 rentable square feet offloor area. Tenant further acknowledges that Landlord intends to lease aportion of the Temporary Space consisting of approximately 19,810 square feetas shown on Exhibit B-l attached hereto (the “Vacant Space”) to one ormore other tenants and that Landlord needs to ensure that an appropriate numberof parking spaces is available at all times to satisfy the parking ratio withrespect to the Vacant Space. Accordingly, Tenant shall be permitted to use, atno additional cost, all of the parking spaces on the Property, provided, however,that at all times there shall be 70 parking spaces available nearest to thearea of the Building in which the Vacant Space is located.

 

5.            *Landlord’sWork.*A. Landlord agrees to cause to be performed, at its soleexpense, the work to the front entry and facade of the Building substantiallyas shown on the plan attached hereto as Exhibit C (the “Facade Work”),and the base building improvements described in Exhibit C-l attachedhereto and incorporated herein by reference (the “Base Building Work”). Subjectto the provisions of Section 10.5 of the Lease, and any delay caused by Tenant,the Landlord’s Facade Work described in Exhibit C, and the Base BuildingWork described in Exhibit C-l, shall all be substantially completed(defined below) no later than the date (the “Substantial Completion Date”)which is 120 days after the Site Plan Approval Date, provided Tenant cooperateswith Landlord’s reasonable and necessary requirements to timely perform suchwork and coordinate the same with a corresponding Phase of Tenant’s Work, asapplicable, and provided further that there is no delay caused by Tenant. TheFacade Work and the Base Building Work are sometimes collectively referred toherein as “Landlord’s Work.”

 

B.   All of Landlord’s Work shallbe completed by Landlord’s contractor, in a good and workmanlike manneremploying good materials and so as to conform to all applicable governmentallaws, statutes, ordinances, rules, codes and regulations (collectively, the “ApplicableLaws”). Landlord agrees to cause its architects, engineers and contractors tocoordinate and reasonably cooperate with those of Tenant to enable Tenant’sWork to be performed on schedule. Subject to the provisions of Section 10.5 ofthe Lease, if Landlord fails to substantially complete all of Landlord’s Workby the date which is 30 days after the Substantial Completion Date, and suchfailure is not due to the actions or inaction of Tenant, then Tenant, at itsoption, may perform the work to complete any uncomplete portions of Landlord’sWork, and Landlord shall, within thirty (30) days after demand therefor,reimburse Tenant for all out of pocket costs incurred by Tenant in completingsuch work, together with interest thereon at the Prime Rate as published in theWall Street Journal from time to time plus

 

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two percentage points perannum.

 

C.   The term “substantiallycompleted” as used herein shall mean that the work to be performed by Landlordpursuant to Exhibits C and C-l has been completed with the exception of(i) defects in Landlord’s Work of which Tenant shall have given notice toLandlord within one (1) year after the Substantial Completion Date, and (ii)minor items which can be fully completed without material interference withTenant, and other items which because of the season or weather or the nature ofthe item are not practicable to do at the time, provided that none of saiditems is necessary to make the Premises tenantable. Any dispute between the partiesas to whether substantial completion of Landlord’s Work has occurred which continuesfor thirty (30) days after notice from either party to the other, may uponrequest of either party be submitted for resolution to a mutually acceptablearchitect whose decision shall be binding on the parties.

 

D.   If Landlord claims that anyact or omission by Tenant constitutes a “delay” caused by Tenant or constitutesa “non-cooperation” by Tenant, then Landlord shall promptly notify Tenant ofthe circumstances constituting such delay or non-cooperation within ten (10) daysafter Landlord becomes aware of the same. If Landlord fails to timely notifyTenant as aforesaid, then the purported delay and/or non-cooperation claimshall be irrevocably waived and Landlord shall not be entitled to the benefitof any purported claim relating thereto.

 

6.     *Tenant’sWork and High Bay Work; Tenant’s Plans.*A. All work other thanthe Landlord’s Work that is necessary or desirable to prepare the Premises forTenant’s use and occupancy shall be performed by Tenant at its expense subjectto the provisions of Paragraph 7 below (such work being referred to herein asthe “Tenant’s Work”). Subject to Landlord’s obtaining site plan approval inaccordance with Paragraph 20(A) below, Tenant shall cause to be constructed, atTenant’s expense, subject to the provisions of Paragraph 7 below the High BayPremises substantially as shown on and in accordance with the Tenant’s premisesplan which is attached hereto as Exhibit D (the “High Bay Work”). Tenantshall have the right from and after the Effective Date to perform the Tenant’s Workin the Existing Premises and the Additional Premises and to access the Propertyas necessary to perform the High Bay Work, provided that all such work shall beconducted without unreasonable interference with the performance of any portionof Landlord’s Work. All work performed by Tenant shall be done in a good andworkmanlike manner and in compliance with all Applicable Laws. Tenant shall paypromptly when due the entire cost of any work to the Premises undertaken byTenant so that the Premises shall at all times be free of liens for labor andmaterials, and Tenant shall forthwith bond against or discharge any mechanics’liens or other encumbrances that may arise out of such work. Except forobtaining site plan approval, including the variance required in connectiontherewith (all of which shall be Landlord’s obligation pursuant to Paragraph20(A) below), Tenant shall obtain a building permit(s) from the Town ofBillerica for the Tenant’s Work and the High Bay Work, and shall be responsiblefor obtaining the review required under Chapter 34 of the Massachusettsbuilding code pursuant to Paragraph 20(B) below, at Tenant’s sole expensebefore undertaking such work. Tenant shall be responsible, at its expense, forobtaining a certificate of occupancy from the Town of Billerica for all ofTenant’s work in the Premises, including the High Bay Premises. Tenant shallsave Landlord harmless and indemnified from all injury, loss, claims or damageto any person or property occasioned by or growing out of the Tenant’s Workand/or the High Bay Work, unless

 

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caused by the negligenceor willful misconduct of Landlord or its agents, or contractors. Tenant agreesto cause its contractors to carry worker’s compensation insurance in accordancewith statutory requirements, comprehensive public liability insurance coveringsuch contractors on or about the Premises in amounts at least equal to thelimits set forth in Section 4.2.4 of the Lease and builder’s risk insurancecovering Landlord and Tenant as their interests may appear, against loss ordamage by fire, vandalism, malicious mischief and such risks as are customarilycovered by a so-called “extended coverage endorsement” to the full insurablevalue of Tenant’s work and to submit certificates evidencing such coverage toLandlord prior to the commencement of such work. In addition, Tenant agrees tocause its architects, engineers and contractors to coordinate and reasonablycooperate with those of Landlord to enable Landlord’s Work to be performed onschedule. Landlord hereby approves Tenant’s contractor, J. Calnan &Associates.

 

B.   Tenant shall submit toLandlord architectural, mechanical, electrical and plumbing constructiondrawings, plans and specifications (called “Tenant’s Plans”) necessary toperform the High Bay Work and the Tenant’s Work. The Tenant’s Plans for theHigh Bay Premises shall be consistent with the plan attached as Exhibit D.The preparation of Tenant’s Plans shall be Tenant’s responsibility at itsexpense and shall comply with Landlord’s reasonable submission requirements,which include, without limitation, delivery to Landlord of five (5) sets ofeach plan submission. Landlord shall approve or disapprove in writing theinitial submission of any plans within seven (7) business days of receiptthereof, and any revisions thereof within three (3) business days of receipt ofsuch revisions, as the case may be, failing which such plans shall be deemedapproved. Landlord’s approval of the Tenant’s Plans shall not be unreasonablywithheld, conditioned or delayed. If any of such plans are disapproved byLandlord, Landlord shall provide Tenant with specific reasons for suchdisapproval (which may include a request for more information), and theforegoing submission process shall be repeated until all Tenant’s Plans havebeen approved (or deemed approved) by Landlord. Tenant’s Plans approved byLandlord hereunder are referred to herein as “Tenant’s Approved Plans”. Tenantconfirms and acknowledges that the TI Allowance may only be utilized forportions of Tenant’s Work which upgrade and improve the general condition ofthe Building. It is the intent of the parties that the TI Allowance is to beused for general Building-wide improvements and upgrades, such as improvementsand upgrades that result in the following uses and facilities: assembly,storage, office, electronics lab (not to exceed 3,000 square feet), cafeteria,conference room, reception, restrooms and Building support systems. The TIAllowance shall not be used for the installation or purchase of the diesel tankand gantry. Tenant shall not make any changes to Tenant’s Approved Planswithout obtaining Landlord’s approval which shall be sought in the mannerdescribed above. Tenant shall be permitted to make minor changes to Tenant’sApproved Plans without Landlord’s prior approval (“minor changes” meaningchanges which are customary to the trades to accommodate field conditions or tosubstitute materials of equal or better quality to meet availabilityschedules).

 

7.            *TI Allowance andFunding of TI Allowance.*A. Landlord shall provide Tenant with acontribution toward the Costs of the Tenant’s Work equal to $3,200,000.00 (the “TIAllowance”), subject to reduction pursuant to Paragraph 2(C) hereinabove, andParagraph 8 hereinbelow. The “Costs of the Tenant’s Work” shall mean (i) allhard and soft construction costs incurred by Tenant in connection with any ofthe Tenant’s Work which is a general Building upgrade or improvement pursuantto Paragraph 6(B) above, (ii) construction

 

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management costs, anddesign and permitting fees, and (iii) up to $350,000.00 for Tenant’stelecommunications/data cabling and moving expenses. In addition, Landlordshall provide a separate contribution toward the hard and soft costs incurredby Tenant in performing the High Bay Work of up to $2,500,000.00 (the “High BayAllowance”). Notwithstanding the foregoing, Landlord shall have the right todeduct from the High Bay Allowance the costs incurred by Landlord in connectionwith the High Bay Work, which costs shall include architectural and engineeringfees, the cost of geotech investigations performed by Landlord, up to$58,000.00 for the costs of filing for and obtaining approval of the site planmodification pursuant to Paragraph 20 below, and the fees of Jim Dangora inconnection with such site plan approval. Any unused portion of the High BayAllowance remaining after Landlord deducts Landlord’s costs pursuant to thepreceding sentence may be applied by Tenant to supplement the TI Allowance.

 

B.   On the 31st day following theSite Plan Approval Date, Landlord shall advance to Tenant (i) $1,000,000.00 ofthe High Bay Allowance, which Tenant covenants to use and apply toward thecosts of the High Bay Work, and (ii) $500,000.00 of the TI Allowance, whichTenant covenants to use and apply toward the Costs of the Tenant’s Work forPhase II and/or Phase III. Notwithstanding such advances, Tenant shall remainbound by the terms and requirements of Paragraph 6(B) above, including, withoutlimitation, obtaining Landlord’s approval of the Tenant’s Plans. Tenantcovenants to refund to Landlord any portion of the foregoing advanced sums thatare remaining unused as of December 31, 2008, together with interest. If Tenantfails to refund such unused sums, and if Tenant’s failure continues for ten (10)days after written notice from Landlord to Tenant, then such failure shall bean event of default for the purposes of Section 8.1 of the Lease, and Landlordshall be entitled to avail itself of all rights and remedies under the Leaseand at law for such default.

 

C.   When Tenant has completed anyPhase of Tenant’s Work in the Premises, Tenant shall submit to Landlord fromtime to time (but not more frequently than upon completion of any Phase ofTenant’s Work) a requisition for payment from the TI Allowance, in the form ofAIA Document G702 as to hard construction costs, and in such other form as tosoft costs as is reasonably acceptable to Landlord, setting forth any costsincurred for the Tenant’s Work in such Phase, together with Tenant’sdetermination of the rentable floor area of the Phase for which a disbursementis being requested (which shall be determined by measuring the entire floorarea contained within a Phase, taking measurement from the outside of anyexterior wall and to the middle of any demising wall), subject to verificationby Landlord’s architect, and partial lien waivers executed by Tenant’s generalcontractor and all subcontractors, a written statement from Tenant’s Architectthat such Phase of Tenant’s Work has been completed substantially in accordancewith Tenant’s Approved Plans, and a temporary certificate of occupancy for thePhase for which requisition is being submitted, and within thirty (30) days followingLandlord’s receipt of all of the foregoing, Landlord shall pay to Tenant theamount of each such requisition, or in the case of the requisition for Phase IIand Phase III (if applicable) shall apply a credit against such requisition forthe sum of the TI Allowance previously advanced by Landlord to Tenant pursuantto Paragraph B above; provided that the last requisition hereunder shall not bepaid until thirty (30) days after Tenant’s requisition accompanied by a writtenstatement from Tenant’s Architect that such Tenant’s Work has been completed substantiallyin accordance with Tenant’s Approved Plans, final lien waivers executed by Tenant’sgeneral contractor and all major subcontractors providing work in excess of

 

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$25,000.00, and a finalcertificate of occupancy (except that a temporary certificate of occupancyshall be acceptable if Tenant’s inability to obtain a final certificate ofoccupancy is due to Landlord’s failure to complete the Landlord’s Work) andother required governmental approvals for the Tenant’s Work. When Tenant hascompleted the High Bay Work, Tenant shall submit to Landlord a requisition forpayment of the High Bay Allowance, in the form of AIA Document G702 as to hardconstruction costs, and in such other form as to soft costs as is reasonablyacceptable to Landlord, setting forth the costs incurred by Tenant for the HighBay Work, together with final lien waivers by Tenant’s general contractor andall major subcontractors providing work in excess of $25,000.00, a writtenstatement from Tenant’s Architect that the High Bay Work has been completedsubstantially in accordance with Tenant’s Approved Plans, and a finalcertificate of occupancy for the High Bay Premises, and within thirty (30) daysfollowing Landlord’s receipt of all of the foregoing, Landlord shall pay toTenant the amount of the requisition for the High Bay Work, except that thereshall be a credit applied against such requisition for the sum of the High BayAllowance previously advanced by Landlord to Tenant pursuant to Paragraph Babove. If any lien is filed against the Property, or any part or interesttherein, arising out of or in connection with the Tenant’s Work and/or the HighBay Work and such lien or encumbrance is not discharged, insured or bonded overor otherwise disposed of to Landlord’s reasonable satisfaction within thirty(30) days after the filing or establishment thereof, then Landlord shall haveno further obligation to disburse any funds from the TI Allowance or the HighBay Allowance, as applicable, to Tenant unless and until the same is sodischarged or otherwise disposed, in addition to, and not in lieu of, Landlord’srights and remedies and Tenant’s obligations on account thereof under the Leaseor otherwise.

 

8.             *Rent Reduction.*Tenant may elect to spend less than the full TI Allowance. In the eventTenant so elects, then no later than the date which is thirty (30) daysfollowing the Site Plan Approval Date, Tenant shall notify Landlord of theamount (the “Reduction Amount”) by which the TI Allowance shall be reduced. Underno circumstances may the Reduction Amount be greater than $1,000,000.00. IfTenant exercises such reduction right, the Annual Fixed Rent Rate specified inParagraph 3 of this Amendment shall be reduced annually by an amount which isthe sum of the Reduction Amount times 10. Tenant agrees to execute anddeliver to Landlord such reasonable documentation as Landlord requests toconfirm the amount of the Annual Fixed Rent Rate and the Monthly Fixed RentRate as aforesaid.

 

9.             *Escrow Fund.*If Tenant has not requested payment of the entire amount of the TI Allowanceand the High Bay Allowance on or before the Final Funding Date in accordancewith the terms of paragraph 7B above, then Landlord shall deposit the portionof such funds remaining as of the Final Funding Date (such deposit beingreferred to herein as the “Escrow Deposit”) with a title company selected byLandlord (which title company shall be subject to Tenant’s reasonable approval)no later than thirty (30) days prior to the Final Funding Date. Such escrowagent shall hold and release the Escrow Deposit in accordance with the termsset forth in the form of escrow agreement attached hereto as Exhibit F,provided, however, any portion of the Escrow Deposit that is remaining ondeposit with said escrow agent as of December 31, 2008 and which is not the subjectof pending litigation shall be released to Landlord to be used for generalimprovements, alterations and upgrades at the Property.

 

10.           *ExtensionOptions.*A. Provided that as of the date of the notice specifiedbelow,

 

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Tenant is not in defaultand has not previously been in default of its obligations under the Lease, asamended hereby, beyond any applicable grace period, and provided further thatthe Lease has not been assigned (except to a Permitted Transferee (as definedin the Lease and Paragraph 16 of this Amendment), Tenant shall have the rightto extend the term of the Lease for two additional periods of five (5) yearseach, each such period to begin immediately upon the expiration of the thencurrent term of the Lease (the “Extended Terms”). All of the terms, covenantsand provisions of this Lease shall apply to such Extended Terms except that theAnnual Fixed Rent Rate for each such Extended Term shall be the market rate atthe commencement of such Extended Term, as designated by Landlord. If Tenantshall elect to exercise either of the aforesaid options, it shall do so bygiving Landlord notice in writing of its intention to do so not later than one(1) year prior to the expiration of the then current term of the Lease. IfTenant gives such notice, the extension of the Lease shall be automaticallyeffected without the execution of any additional documents. The Term specifiedin paragraph 1 hereof and the Extended Terms are hereinafter collectivelycalled the “term”.

 

B.   If the Tenant disagrees withLandlord’s designation of the market rate, and the parties cannot agree uponthe market rate, then the market rate shall be submitted to arbitration asfollows:  market rate shall be determinedby impartial arbitrators, one to be chosen by the Landlord, one to be chosen byTenant, and a third to be selected, if necessary, as below provided. Theunanimous written decision of the two first chosen, without selection andparticipation of a third arbitrator, or otherwise, the written decision of amajority of three arbitrators chosen and selected as aforesaid, shall beconclusive and binding upon Landlord and Tenant. Landlord and Tenant shall eachnotify the other of its chosen arbitrator within ten (10) days following thecall for arbitration and, unless such two arbitrators shall have reached aunanimous decision within thirty (30) days after their designation, they shallso notify the then President of the Boston Bar Association and request him toselect an impartial third arbitrator, who shall be another office buildingowner, a real estate counselor or a broker dealing with like types ofproperties, to determine market rate as herein defined. Such third arbitratorand the first two chosen shall hear the parties and their evidence and rendertheir decision within thirty (30) days following the conclusion of such hearingand notify Landlord and Tenant thereof. Landlord and Tenant shall share equallythe expense of the third arbitrator (if any). If the dispute between theparties as to a market rate has not been resolved before the commencement ofTenant’s obligation to pay Fixed Rent based upon such market rate, then Tenantshall pay Fixed Rent under the Lease based upon the then current rate untileither the agreement of the parties as to the market rate, or the decision ofthe arbitrators, as the case may be, at which time Tenant shall pay anyunderpayment of Fixed Rent to Landlord, or Landlord shall refund anyoverpayment of Fixed Rent to Tenant. In any event, the Annual Fixed Rent Ratefor each Extended Term shall not be less than the Annual Fixed Rent Rate ineffect immediately prior to such Extended Term.

 

11.          *Rightto Lease Vacant Space.*A. If at any time during the Term of theLease, as extended by this Amendment, or any Extended Term, Landlord shallreceive a “bona fide offer” from a third party to lease that remaining portionof the Building referred to herein as the Vacant Space, Landlord shall firstgive Tenant written notice of such offer (“Landlord’s Offer Notice”), includingwith such notice a copy of such third party offer, and Tenant shall have acontinuous right of first expansion with respect to entering into an agreementto lease the Vacant Space on the terms as set forth in subparagraph B or Cbelow, as the case may be, provided that at the time

 

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of Landlord’s OfferNotice Tenant is not in default of its obligations under the Lease beyond anyapplicable grace period, and provided, further, that at the commencement of theterm for the Vacant Space the initial Tenant herein will occupy 100% of thePremises. Tenant shall have five (5) business days from receipt of Landlord’sOffer Notice within which to notify Landlord that Tenant is exercising itsright to lease the Vacant Space. In the event Tenant notifies Landlord thatTenant does not elect to exercise its right to lease the Vacant Space, orotherwise fails to respond within the aforesaid 5 business-day period, Landlordshall have six (6) months to execute a lease for the Vacant Space. For thepurposes of this Paragraph 11, the phrase “bona fide offer” shall mean anyproposal or other writing from a third party not affiliated with Landlord, orsuch party’s authorized representative or real estate broker, setting forth theterms by which such party would enter into a lease for the Vacant Space.

 

B.   In the event Landlordreceives a bona fide offer to lease the Vacant Space during the periodcommencing on March 1, 2005 and ending on the last day of the 60th calendar monththereafter (such period being the “1st Expansion Period”), and Tenant exercisesits right to lease the Vacant Space, Landlord and Tenant shall enter into alease amendment on the terms contained in the offer, except that (1) Tenantshall pay Fixed Rent with respect to the Vacant Space at the same rental ratethen in effect for the Premises; (2) Tenant’s obligation to pay Fixed Rentshall commence ninety (90) days from and after the date Landlord deliverspossession of the Vacant Space to Tenant in “as-is” condition; (3) Landlordshall provide an allowance equal to $15.00 per rentable square foot of theVacant Space; and (4) the term for the Vacant Space shall be coterminous withthe term of the Lease.

 

C.   In the event Landlordreceives a bona fide offer to lease the Vacant Space at any time after theexpiration of the 1st Expansion Period, and Tenant exercises its right to leasethe Vacant Space, Landlord and Tenant shall enter into a lease amendment on allthe same terms contained in the bona fide offer presented to Tenant withLandlord’s Offer Notice.

 

12.          *Letterof Credit.*The performance of Tenant’s obligations under theLease, as amended hereby, shall be secured by a letter of credit throughout theterm in accordance with and subject to the following terms and conditions:

 

A.   *Amount of Letter of Credit.*Concurrently with Tenant’sexecution and delivery of this Amendment, Tenant shall deliver to Landlord anirrevocable standby letter of credit (the “Original Letter of Credit”) whichshall be (i) in the form of Exhibit E attached to this Amendment (the “FormLC”), (ii) issued by a bank reasonably satisfactory to Landlord upon whichpresentment may be made in Boston, Massachusetts, (iii) in the amount equal to $300,000.00,and (iv) for a term of at least 1 year, subject to the provisions ofSubparagraph B below. The Original Letter of Credit, any Additional Letters(s)of Credit and Substitute Letter(s) of Credit are referred to herein as the “Letterof Credit.”

 

B.   *Renewal of letter of Credit.*Each Letter of Credit shallbe automatically renewable in accordance with the second to last paragraph ofthe Form LC; provided however, that Tenant shall be required to deliver toLandlord a new letter of credit (a “Substitute Letter of Credit”) satisfyingthe requirements for the Original Letter of Credit on or before the date 30 daysprior to the expiration of the term of the Letter of Credit then in effect, ifthe issuer of such Letter of Credit gives notice of its election not to renewsuch Letter of Credit for any additional

 

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period pursuant thereto.Should any Letter of Credit contain a final expiration date, in addition to acurrent expiration date, such final expiration date shall be no earlier than 45days following the expiration date of the Lease.

 

C.   *Draws to Cure Defaults.*If the Fixed Rent, AdditionalRent or any other sum payable to Landlord hereunder shall be overdue and unpaidor should Landlord make payments on behalf of the Tenant, or Tenant shall failto perform any of the terms of this Lease in all cases beyond the expiration ofall applicable notice and cure periods, then Landlord shall have the right, atany time thereafter to draw down from the Letter of Credit the amount necessaryto cure such default. In the event of any such draw by the Landlord, Tenantshall, within 30 days of written demand therefor, deliver to Landlord anadditional Letter of Credit (“Additional Letter of Credit”) satisfying therequirements for the Original Letter of Credit, except that the amount of suchAdditional Letter of Credit shall be the amount of such draw.

 

D.   *Draws to Pay Damages.*In addition, if (i) the Leaseshall have been terminated as a result of Tenant’s default under the Leasebeyond the expiration of the applicable cure period, and/or (ii) the Leaseshall have been rejected in a bankruptcy or other creditor-debtor proceeding,then Landlord shall have the right at any time thereafter to draw down from theLetter of Credit an amount sufficient to pay any and all damages payable byTenant on account of such termination or rejection, as the case may be,pursuant to Article 8 hereof. In the event of bankruptcy or othercreditor-debtor proceeding against Tenant, all proceeds of the Letter of Creditshall be deemed to be applied first to the payment of rent and other chargesdue Landlord for all periods prior to the filing of such proceedings.

 

E.    *Draws for Failure to Deliver Substitute Letter ofCredit.*If Tenant fails timely to deliver to Landlord aSubstitute Letter of Credit, then Landlord shall have the right, at any timethereafter, without giving any notice to Tenant, to draw down the Letter ofCredit and to hold the proceeds thereof (“Security Proceeds”) in a bank accountin the name of Landlord, which may be withdrawn and applied by Landlord underthe same circumstances and for the same purposes as if the Security Proceedswere a Letter of Credit. Upon any such application of Security Proceeds byLandlord, Tenant shall, within 30 days of written demand therefor, deliver toLandlord an Additional Letter of Credit in the amount of Security Proceeds soapplied.

 

F.    *Transferability.*Landlord shall beentitled to transfer its beneficial interest under the Letter of Credit or anySecurity Proceeds in connection with (i) Landlord’s sale or transfer of theProperty, or (ii) the addition, deletion or modification of any beneficiariesunder the Letter of Credit and the Letter of Credit shall specifically state onits face that it is transferable by Landlord, its successors and assigns.Landlord shall pay all costs and fees charged to effect such transfer.

 

G.   *Return of Letter of Credit at End of Term.*Within 45days after the expiration of the term, to the extent Landlord has notpreviously drawn upon any Letter of Credit or Security Proceeds held byLandlord, Landlord shall return the same to Tenant provided that there is notat such time any continuing default of any of Tenant’s obligations under the

 

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Lease, and if there isany continuing default, then within ten (10) days after the curing of suchdefault.

 

H.   *Existing Security Deposit.*Upon receipt of an acceptableOriginal Letter of Credit, Landlord shall return to Tenant the cash securitydeposit Landlord is currently holding, and existing Section 4.4 of the Leaseshall be deleted and of no farther force or effect.

 

13.          *Nondisturbanceand Attornment Agreement.*Within sixty (60) days following the SitePlan Approval Date, Landlord shall obtain from Landlord’s lender an agreementthat Tenant’s rights to possession will not be disturbed so long as Tenant isnot in default beyond the expiration of applicable grace periods under theLease, which agreement shall be on such lender’s customary form, subject tosuch reasonable changes that Tenant may negotiate.

 

14.          *Brokers.*Landlord and Tenant warrant and represent to each other that they have dealtwith no broker in connection with this Amendment, other than Nordblom BrokerageCompany and The Staubach Company of New England LLC (collectively, the “Brokers”)and in the event of any brokerage claims, other than by the Brokers, againstTenant or Landlord predicated upon prior dealings with the other, Landlord andTenant, as the case may be, agree to defend the same and indemnify and hold theother harmless against any such claim. Landlord shall be responsible for payingthe commission due to the Brokers pursuant to a separate agreement betweenLandlord and the Brokers.

 

15.          *Yield-up.*Tenant shall be required to remove, upon the expiration or earlier terminationof the term of the Lease, its diesel tank and the outside gantry, all specialtychemical rooms, specialty plumbing, process piping, and Tenant’s old datawiring and cabling which had been previously abandoned by Tenant, and shallrepair any damage to the Building or Property caused by such removal inaccordance with the requirements of said Section 6.1.9. In addition, Landlord,at the time Landlord responds to the Tenant’s Plans, shall identify those itemsthat must be removed at the expiration of the term. Notwithstanding theforegoing or anything to the contrary in Section 6.1.9 of the Lease, Landlordshall not require Tenant to remove items of general and customary use in officeand R&D buildings, such as: partitions, ceiling, lights, HVAC systems,flooring, doors, non-specialty plumbing and life safety systems.

 

16.          *Assignmentand Subletting.*Section 6.2.1 of the Lease is amended as of the EffectiveDate by expanding the definition of “Permitted Transferees” specified in thefirst sentence of said Section 6.2.1 to include any entity that acquires all orsubstantially all of the stock or assets of Tenant, so long as the net worth ofthe resulting entity is not less than the net worth of Tenant immediately priorthe date of such acquisition. In addition, Tenant may assign the Lease in itsentirety, or sublease up to 50,000 square feet of the Premises (and Landlord’s terminationand recapture rights set forth in Section 6.2.1 of the Lease shall not apply ineither case) to any party of a type and quality suitable for a suburbanflex/R&D building; provided Tenant obtains Landlord’s prior written consentwhich shall not be unreasonably withheld, conditioned or delayed.

 

17.          *RoofReplacement.*Prior to February 29, 2012, Landlord and Tenantshall cooperate to reasonably determine whether and when the roof of theBuilding should be

 

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replaced. Landlord shallhave no obligation to consult with Tenant concerning roof replacement aftersuch date.

 

18.         *Signs*.**Notwithstandinganything to the contrary contained in the Lease, Tenant shall be permitted toerect, at its expense, interior and exterior signage in accordance with Landlord’ssign rendering dated April 20, 2004. All Tenant’s signage shall conform to all applicablelocal ordinances and Landlord’s sign policy for the Building and shall bemaintained by Tenant in good repair throughout the term of the Lease. Landlordwill install two (2) tenant/Building identification signs directing visitors tothe main Building entrance and parking.

 

19.         *NoCompetitors.*So long as American Science and Engineering Inc.occupies 100% of the Premises, Landlord shall not lease any space in theBuilding to the following entities: Smiths Heimann; Analogic; OSI/Rapiscan; SAIC; and L-3.

 

20.          *GovernmentalApprovals.*A. Tenant’s right to perform the High Bay Work is conditionedupon Landlord obtaining from the Town of Billerica approval of a modified siteplan that contemplates the construction of the High Bay Premises. Landlordagrees to apply for and take all necessary steps to obtain approval of the siteplan modification from the Town of Billerica. Tenant, without obligating itselfto incur any costs or expenses, shall assist and cooperate with Landlord withrespect to obtaining such approval so far as Landlord reasonably requests.Landlord shall use diligence to obtain such approval on or before February 1,2005. However, if Landlord, after having diligently prosecuted its applicationtherefor, fails to obtain such approval on or before May 1, 2005 (the “OutsideApproval Date”), then Tenant may elect to either (i) postpone the OutsideApproval Date for one period of thirty (30) days from the date of Tenant’selection notice, or (ii) terminate the Lease effective as of the date which isone year from the date of Tenant’s election notice (the “Effective TerminationDate”), provided Tenant gives Landlord written notice of its election withinten (10) days after the Outside Approval Date, which notice shall specifywhether Tenant is electing to postpone the Outside Termination Date or toterminate the Lease as of the Effective Termination Date. Tenant may elect to postponethe Outside Termination Date only once. After postponement, Tenant’s sole rightwith respect to any delay in obtaining site plan modification shall be toterminate the Lease as set forth in this paragraph. If Tenant timely exercisesits option to terminate the Lease, then (A) Tenant shall have no right tooccupy the Additional Premises and Paragraph 2 hereof shall be void and of noeffect, (B) Tenant’s right to occupy the Temporary Space shall expire andTenant shall vacate and yield up the Temporary Space in accordance with theterms of Paragraph 4.C above within ten (10) business days after the date ofTenant’s election notice as aforesaid, (C) the Lease shall continue in effectwith respect to the Existing Premises and Tenant shall pay Fixed Rent toLandlord at the Annual Fixed Rent Rate and Monthly Fixed Rent Rate of $604,800.00and $50,400.00, respectively, until the Effective Termination Date (D) Tenantshall continue to pay to Landlord amounts on account of Taxes and OperatingCosts with respect to the Existing Premises, and (E) on the EffectiveTermination Date, the Lease, as amended hereby, shall terminate without theneed for any further documentation and the parties shall have no furtheraccruing liability or obligation to each other.

 

B.            Tenant acknowledges that Tenant shall be required tocomply with Chapter 34 of the state Building Code dealing with renovations toexisting structures. Tenant shall, at its sole

 

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expense, cause itsarchitect to coordinate and prepare the requisite structural review and reportand submit the same to the Town of Billerica; provided, however, that Tenantshall first submit such report (together with Tenant’s structural engineer’sreview) to Landlord for Landlord’s review and input prior to submitting thesame with the Town.

 

21.         *StructuralUpgrades.*In light of Tenant’s concern that certain structuralupgrades might be required by the Building Inspector of the Town of Billericaon account of Tenant’s Building improvements, Landlord and Tenant have agreedto establish the responsibilities of the parties with respect to such requirements.Provided that Tenant’s design of the High Bay Premises will not necessitate anystructural changes to the Building to accommodate the High Bay Work, andprovided, further, that Tenant does not intend to place any equipment on theroof of the Building nor place any hanging equipment from the structure of theBuilding, then if the Building Inspector requires any structural upgrades tothe Building to comply with applicable building code requirements, Landlordshall perform the structural upgrade work so required, and the cost of suchwork up to $100,000.00 shall be shared equally between Landlord and Tenant (sothat Tenant shall only be responsible for directly paying Landlord up to$50,000.00 of the cost of the work). The cost of such structural work whichexceeds $100,000.00, if any, shall be deemed a “capital expenditure” for thepurposes of Section 4.2.3 of the Lease and the amortized portion thereof shallbe included in Operating Costs to be paid for by Tenant in accordance with theprovisions of said Section 4.2.3.

 

22.           *OtherModifications.*As of the Effective Date, Sections 2.3, 4.4 and10.8 of the Lease are deleted, and Article 3 of the Lease shall have no furtherforce or effect with respect to this Amendment.

 

23.           *Miscellaneous.*Each of the parties hereto represents and warrants to the other that theperson executing this Amendment on behalf of such party has the full right,power and authority to enter into and execute this Amendment on such party’sbehalf and that no consent from any other person or entity is necessary as acondition precedent to the legal effect of this Amendment. All priorunderstandings and agreements between the parties with respect to the subjectmatter of this Amendment are merged within this Amendment, which alone fully andcompletely sets forth the understanding of the parties with respect thereto.This Amendment may not be changed or modified nor may any of its provisions bewaived orally or in any manner other than by a writing signed by the partyagainst whom enforcement of the change, modification or waiver is sought. Ifnot otherwise defined, capitalized terms used herein shall have the samemeanings as defined in the Lease.

 

24.           *Attorneys’Fees.*In the event any litigation between Landlord and Tenantarises with respect to any matter relating to Landlord’s Work (including,without limitation, Landlord’s failure to reimburse Tenant for Tenant’s costsunder Paragraph 5(B) above), Tenant’s Work, the funding of the TI Allowance, orthe Escrow Deposit, the prevailing party shall recover from the other party itscosts and attorneys’ fees incurred in enforcing or defending its rightshereunder through final judgment and appeal.

 

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As amended hereby, theLease is ratified and confirmed in all respects and shall continue in fullforce and effect. The recitals appearing at the beginning of this agreement arehereby incorporated into this Amendment.

 

Executed under seal as ofthe date first written above.

 

 
|   | LANDLORD:                                  |
|--------|--------------------------------------------|
|   |                                       |
|   | MIDDLELEX DEVELOPMENT LIMITED  PARTNERSHIP |
|   |                                       |
|   |                                       |
|   | By:                                        | Route 3 Associates, general partner |
|   |                                       |
|   |                                       | By: | /s/ [ILLEGIBLE] |   |
|   |                                       |   | As Trustee and not  individually |   |
|   |                                       |
|   |                                       | By: | /s/ [ILLEGIBLE] |   |
|   |                                       |   | As Trustee and not  individually |   |
|   |                                       |
|   |                                       |
|   | TENANT:                                    |
|   |                                       |
|   | AMERICAN SCIENCE AND ENGINEERING INC.      |
|   |                                       |
|   |                                       |
|   | By:                                        | /s/ Anthony R. Fabiano |   |
|   | Name:                                      |   Anthony R. Fabiano |   |
|   |   Title:                         |   President & CEO |   |
|        |                                            |  |  |  |  |  |

 

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