Exhibit
10(c)(xvii)


 


SECOND
AMENDMENT TO LEASE


 


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


 


BACKGROUND:


 


A.           Landlord and Tenant entered into a
lease dated January 12, 1995, as amended by a First Amendment dated as of June
11, 1997 (the “Lease”), with respect to 115,200 square feet (the “Existing
Premises”) on the first floor of the building (the “Building”) located at 829 Middlesex
Turnpike, Billerica, Massachusetts (the Building and the land on which it is
situated are referred to herein as the “Property”).


 


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


 


C.           Tenant desires to lease additional
space consisting of (i) certain high bay space consisting of approximately
26,200 rentable square feet which is to be constructed by Tenant as an addition
to the Building in accordance with the terms of this Amendment, substantially
in the location shown on Exhibit D attached hereto (the “High Bay Premises”)
and (ii) certain additional space in the Building consisting of 24,974 rentable
square feet, substantially as shown on Exhibit A attached hereto (the “Additional
Premises”), to increase the floor area of the Premises to approximately 166,374
rentable square feet in the aggregate;


 


D.           Tenant also desires that Landlord
perform certain other improvements and upgrades to existing areas and systems
of the Building, as set forth herein;


 


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


 


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


 


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


 










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


 





















 


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


 


2.            Demise
of 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 and
provisions of the Lease, the Additional Premises and the High Bay Premises for
a term commencing on the Additional Premises Commencement Date with respect to
the Additional Premises and for a term commencing on the High Bay Premises
Commencement Date with respect to the High Bay Premises, and continuing in each
instance coterminously with the Term of the Lease as extended by Paragraph 1
above. The “Additional Premises Commencement Date” shall be the date which is
the earlier to occur of (a) the date on which Landlord disburses the TI
Allowance for Phase III, as hereinafter defined, and (b) the Final Funding
Date. The “High Bay Premises Commencement Date” shall be the date which is the
earlier to occur of (a) the date on which a temporary Certificate of Occupancy
has been issued by the Town of Billerica for the High Bay Premises, and (b) the
Final Funding Date. The term “Premises” as used in the Lease and in this
Amendment shall collectively mean the Existing Premises, the High Bay Premises
and the Additional Premises, as the context so requires.


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


(5)                                 the
TI Allowance specified in Paragraph 7(A) (i.e., by deleting from the amount
specified in Paragraph 7(A) the sum of $34.00 times the rentable floor
area of the Deleted Premises).


 


In
addition, Exhibit A hereto shall be modified to indicate the reduction
of the Additional Premises; and the rentable floor area of the Additional
Premises specified in recital “C” at the beginning of this Amendment shall be
reduced by subtracting therefrom the rentable floor area of the Deleted
Premises.


 


Notwithstanding
any of the foregoing, at the request of either party, Landlord and Tenant shall
execute and deliver an amendment confirming the amounts of the reduced Premises
floor area, the Fixed Rent, the Tenant’s Percentage and the TI Allowance listed
above, and any other applicable changes as a result of a reduction in the area
of the Premises by the deletion of the Deleted Premises.


 


D.   Tenant will cause to be
constructed the High Bay Premises in accordance with the provisions of
Paragraph 6 of this Amendment.


 


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


 





















 


High Bay Premises as set
forth in this subparagraph A.


 


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


 


C.   Tenant shall pay Fixed Rent
for the Additional Premises and the Existing Premises at an increased rental
rate for any portion of the Additional Premises and Existing Premises, as
applicable, in which a Phase of Tenant’s Work has been completed and Landlord has
disbursed 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 III
and Phase IV, as applicable, on Exhibit G hereto. Commencing as of the
first day of the calendar month following the first TI Disbursement Date, and
thereafter on the first day of any calendar month following each successive TI
Disbursement Date, Tenant shall pay Fixed Rent at the rate of $7.75 per
rentable square foot times the rentable area of the applicable portion
of the Existing Premises, or the Additional Premises, in which Tenant has
completed a Phase of Tenant’s Work. The formula specified in the preceding
sentence shall be utilized to increase the Fixed Rent contemporaneously with
each disbursement of the TI Allowance for a Phase of Tenant’s Work in the
Premises, as applicable. For the purposes of calculating the increases in Fixed
Rent payable by Tenant, Tenant shall specify the rentable square footage
included in a Phase of Tenant’s Work for which the TI Allowance is being
disbursed, and shall submit to Landlord with each disbursement request Tenant’s
determination of such square footage (which shall be determined by measuring
the entire floor area contained within such Phase, taking measurement from the outside
of any exterior wall and to the middle of any demising wall), subject to
verification by Landlord’s architect. The foregoing increases notwithstanding,
Tenant shall continue to pay Fixed Rent at the rate of $5.25 per rentable
square foot times the rentable area of the Existing Premises in which a
Phase of Tenant’s Work has not been completed and the TI Allowance has not been
disbursed, until the earlier of (i) the Final Funding Date, or (ii) the TI
Disbursement Date for such Phase of the Existing Premises. A Phase of Tenant’s
Work shall be deemed “completed” on the date Tenant properly submits to
Landlord the documentation required for payment of the TI Allowance for such
Phase 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 rate
of $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 are
not then complete. Accordingly, commencing as of the Final Funding Date, the
Annual Fixed Rent Rate and the Monthly Fixed Rent Rate specified in Section 1.1
of the Lease, shall each be further amended and increased as set forth below:


 





















 


	
  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

  



 


The
above rental amounts shall be proportionately reduced as applicable if Tenant
exercises its right pursuant to Paragraph 2(C) to reduce the area of the
Premises.


 


E.    Tenant shall pay additional
rent to Landlord on account of Taxes and Operating Costs allocable to the
Additional Premises pursuant to the provisions of Article 4 of the Lease and
this subparagraph. If the Additional Premises Commencement Date occurs prior to
the Final Funding Date, for the purposes of determining the Tenant’s Percentage
of Taxes and Operating Costs with respect to the Additional Premises, the
Tenant’s Percentage for the Additional Premises shall be the ratio of the
rentable area of the Additional Premises (as the same may have been reduced
pursuant to Paragraph 2(C) above) to the total rentable area of the Building at
such time. As of the Final Funding Date, the Additional Premises shall be
deemed integrated with the remainder of the Premises and the Tenant’s
Percentage shall be as set forth in subparagraph F below.


 


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


 


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


 










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


 





















 


conditions of the Lease,
as amended hereby, except for the obligation to pay Fixed Rent which is hereby
waived and abated in full, except as otherwise provided below in subparagraph
D. The term with respect to the Temporary Space shall commence on the Effective
Date and continue until the date (the “Temporary Space Termination Date”) which
is the earlier of (i) the Final Funding Date and (ii) the date on which Tenant
moves out of the Temporary Space and relocates to the Existing Premises, unless
terminated 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 Rent
or Additional Rent on account of Operating Costs or Taxes shall accrue or be
payable by Tenant with respect to the Temporary Space. However, Tenant shall be
obligated to pay, as Additional Rent to Landlord, all charges and costs made by
the applicable public authority for electricity, water and other utilities
furnished or consumed in the entirety of the Temporary Space, until such time
that Tenant vacates the portion of the Temporary Space comprising the Vacant
Space, as hereinafter defined. Once Tenant vacates that portion of the
Temporary Space comprising the Vacant Space, Tenant shall pay to Landlord, as
Additional Rent, its pro rata share of utility charges equitably allocated to
the Additional Premises (based upon the ratio of the rentable area of the
Additional Premises to the rentable area the Temporary Space) until Landlord
completes the work to separate the electrical and other utilities serving the
Additional Premises. Before taking occupancy of the Temporary Space, Tenant
shall deliver to Landlord certificates evidencing the insurance required by
Section 4.2.4 of this Lease, and shall obtain all permits from the applicable
governmental authorities required to occupy the Temporary Space for the
Permitted Uses, if necessary, and shall deliver copies of such permits to
Landlord. The term “Temporary Space” shall mean the approximately 44,800 square
feet of space in the Building not currently occupied by Tenant, as shown on Exhibit
B attached hereto. For the purposes of this Amendment and the Lease,
including without limitation Tenant’s indemnifications contained in Section
6.1.5 of the Lease, the term “Premises” shall be deemed to mean and include the
Temporary Space during Tenant’s occupancy thereof.


 


B.   Landlord shall have the right
to terminate Tenant’s right to use and occupy the Temporary Space, effective no
earlier 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 exercises
the aforesaid right, (1) Landlord shall give Tenant a written notice
terminating Tenant’s right to use and occupy the Temporary Space specifying an
effective termination date that is at least thirty (30) days after the date of
Landlord’s notice, and (2) the Temporary Space Termination Date specified in
subparagraph A above shall be changed to the effective termination date
specified in Landlord’s notice.


 


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


 





















 


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


 


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


 


E.    Tenant acknowledges that the
parking ratio for the Building is 3.5 spaces per 1,000 rentable square feet of
floor area. Tenant further acknowledges that Landlord intends to lease a
portion of the Temporary Space consisting of approximately 19,810 square feet
as shown on Exhibit B-l attached hereto (the “Vacant Space”) to one or
more other tenants and that Landlord needs to ensure that an appropriate number
of parking spaces is available at all times to satisfy the parking ratio with
respect to the Vacant Space. Accordingly, Tenant shall be permitted to use, at
no 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 the
area of the Building in which the Vacant Space is located.


 


5.            Landlord’s
Work. A. Landlord agrees to cause to be performed, at its sole
expense, the work to the front entry and facade of the Building substantially
as shown on the plan attached hereto as Exhibit C (the “Facade Work”),
and the base building improvements described in Exhibit C-l attached
hereto and incorporated herein by reference (the “Base Building Work”). Subject
to 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 Building
Work 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 cooperates
with Landlord’s reasonable and necessary requirements to timely perform such
work and coordinate the same with a corresponding Phase of Tenant’s Work, as
applicable, and provided further that there is no delay caused by Tenant. The
Facade Work and the Base Building Work are sometimes collectively referred to
herein as “Landlord’s Work.”


 


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


 





















 


two percentage points per
annum.


 


C.   The term “substantially
completed” as used herein shall mean that the work to be performed by Landlord
pursuant 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 to
Landlord within one (1) year after the Substantial Completion Date, and (ii)
minor items which can be fully completed without material interference with
Tenant, and other items which because of the season or weather or the nature of
the item are not practicable to do at the time, provided that none of said
items is necessary to make the Premises tenantable. Any dispute between the parties
as to whether substantial completion of Landlord’s Work has occurred which continues
for thirty (30) days after notice from either party to the other, may upon
request of either party be submitted for resolution to a mutually acceptable
architect whose decision shall be binding on the parties.


 


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


 


6.     Tenant’s
Work and High Bay Work; Tenant’s Plans. A. All work other than
the Landlord’s Work that is necessary or desirable to prepare the Premises for
Tenant’s use and occupancy shall be performed by Tenant at its expense subject
to the provisions of Paragraph 7 below (such work being referred to herein as
the “Tenant’s Work”). Subject to Landlord’s obtaining site plan approval in
accordance with Paragraph 20(A) below, Tenant shall cause to be constructed, at
Tenant’s expense, subject to the provisions of Paragraph 7 below the High Bay
Premises substantially as shown on and in accordance with the Tenant’s premises
plan which is attached hereto as Exhibit D (the “High Bay Work”). Tenant
shall have the right from and after the Effective Date to perform the Tenant’s Work
in the Existing Premises and the Additional Premises and to access the Property
as necessary to perform the High Bay Work, provided that all such work shall be
conducted without unreasonable interference with the performance of any portion
of Landlord’s Work. All work performed by Tenant shall be done in a good and
workmanlike manner and in compliance with all Applicable Laws. Tenant shall pay
promptly when due the entire cost of any work to the Premises undertaken by
Tenant so that the Premises shall at all times be free of liens for labor and
materials, and Tenant shall forthwith bond against or discharge any mechanics’
liens or other encumbrances that may arise out of such work. Except for
obtaining site plan approval, including the variance required in connection
therewith (all of which shall be Landlord’s obligation pursuant to Paragraph
20(A) below), Tenant shall obtain a building permit(s) from the Town of
Billerica for the Tenant’s Work and the High Bay Work, and shall be responsible
for obtaining the review required under Chapter 34 of the Massachusetts
building code pursuant to Paragraph 20(B) below, at Tenant’s sole expense
before undertaking such work. Tenant shall be responsible, at its expense, for
obtaining a certificate of occupancy from the Town of Billerica for all of
Tenant’s work in the Premises, including the High Bay Premises. Tenant shall
save Landlord harmless and indemnified from all injury, loss, claims or damage
to any person or property occasioned by or growing out of the Tenant’s Work
and/or the High Bay Work, unless


 





















 


caused by the negligence
or willful misconduct of Landlord or its agents, or contractors. Tenant agrees
to cause its contractors to carry worker’s compensation insurance in accordance
with statutory requirements, comprehensive public liability insurance covering
such contractors on or about the Premises in amounts at least equal to the
limits set forth in Section 4.2.4 of the Lease and builder’s risk insurance
covering Landlord and Tenant as their interests may appear, against loss or
damage by fire, vandalism, malicious mischief and such risks as are customarily
covered by a so-called “extended coverage endorsement” to the full insurable
value of Tenant’s work and to submit certificates evidencing such coverage to
Landlord prior to the commencement of such work. In addition, Tenant agrees to
cause its architects, engineers and contractors to coordinate and reasonably
cooperate with those of Landlord to enable Landlord’s Work to be performed on
schedule. Landlord hereby approves Tenant’s contractor, J. Calnan &
Associates.


 


B.   Tenant shall submit to
Landlord architectural, mechanical, electrical and plumbing construction
drawings, plans and specifications (called “Tenant’s Plans”) necessary to
perform the High Bay Work and the Tenant’s Work. The Tenant’s Plans for the
High Bay Premises shall be consistent with the plan attached as Exhibit D.
The preparation of Tenant’s Plans shall be Tenant’s responsibility at its
expense and shall comply with Landlord’s reasonable submission requirements,
which include, without limitation, delivery to Landlord of five (5) sets of
each plan submission. Landlord shall approve or disapprove in writing the
initial submission of any plans within seven (7) business days of receipt
thereof, and any revisions thereof within three (3) business days of receipt of
such revisions, as the case may be, failing which such plans shall be deemed
approved. Landlord’s approval of the Tenant’s Plans shall not be unreasonably
withheld, conditioned or delayed. If any of such plans are disapproved by
Landlord, Landlord shall provide Tenant with specific reasons for such
disapproval (which may include a request for more information), and the
foregoing submission process shall be repeated until all Tenant’s Plans have
been approved (or deemed approved) by Landlord. Tenant’s Plans approved by
Landlord hereunder are referred to herein as “Tenant’s Approved Plans”. Tenant
confirms and acknowledges that the TI Allowance may only be utilized for
portions of Tenant’s Work which upgrade and improve the general condition of
the Building. It is the intent of the parties that the TI Allowance is to be
used for general Building-wide improvements and upgrades, such as improvements
and 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 TI
Allowance shall not be used for the installation or purchase of the diesel tank
and gantry. Tenant shall not make any changes to Tenant’s Approved Plans
without obtaining Landlord’s approval which shall be sought in the manner
described above. Tenant shall be permitted to make minor changes to Tenant’s
Approved Plans without Landlord’s prior approval (“minor changes” meaning
changes which are customary to the trades to accommodate field conditions or to
substitute materials of equal or better quality to meet availability
schedules).


 


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


 





















 


management costs, and
design and permitting fees, and (iii) up to $350,000.00 for Tenant’s
telecommunications/data cabling and moving expenses. In addition, Landlord
shall provide a separate contribution toward the hard and soft costs incurred
by Tenant in performing the High Bay Work of up to $2,500,000.00 (the “High Bay
Allowance”). Notwithstanding the foregoing, Landlord shall have the right to
deduct from the High Bay Allowance the costs incurred by Landlord in connection
with the High Bay Work, which costs shall include architectural and engineering
fees, 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 plan
modification pursuant to Paragraph 20 below, and the fees of Jim Dangora in
connection with such site plan approval. Any unused portion of the High Bay
Allowance remaining after Landlord deducts Landlord’s costs pursuant to the
preceding sentence may be applied by Tenant to supplement the TI Allowance.


 


B.   On the 31st day following the
Site Plan Approval Date, Landlord shall advance to Tenant (i) $1,000,000.00 of
the High Bay Allowance, which Tenant covenants to use and apply toward the
costs of the High Bay Work, and (ii) $500,000.00 of the TI Allowance, which
Tenant covenants to use and apply toward the Costs of the Tenant’s Work for
Phase II and/or Phase III. Notwithstanding such advances, Tenant shall remain
bound by the terms and requirements of Paragraph 6(B) above, including, without
limitation, obtaining Landlord’s approval of the Tenant’s Plans. Tenant
covenants to refund to Landlord any portion of the foregoing advanced sums that
are remaining unused as of December 31, 2008, together with interest. If Tenant
fails 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 be
an event of default for the purposes of Section 8.1 of the Lease, and Landlord
shall be entitled to avail itself of all rights and remedies under the Lease
and at law for such default.


 


C.   When Tenant has completed any
Phase of Tenant’s Work in the Premises, Tenant shall submit to Landlord from
time to time (but not more frequently than upon completion of any Phase of
Tenant’s Work) a requisition for payment from the TI Allowance, in the form of
AIA Document G702 as to hard construction costs, and in such other form as to
soft costs as is reasonably acceptable to Landlord, setting forth any costs
incurred for the Tenant’s Work in such Phase, together with Tenant’s
determination of the rentable floor area of the Phase for which a disbursement
is being requested (which shall be determined by measuring the entire floor
area contained within a Phase, taking measurement from the outside of any
exterior wall and to the middle of any demising wall), subject to verification
by Landlord’s architect, and partial lien waivers executed by Tenant’s general
contractor and all subcontractors, a written statement from Tenant’s Architect
that such Phase of Tenant’s Work has been completed substantially in accordance
with Tenant’s Approved Plans, and a temporary certificate of occupancy for the
Phase for which requisition is being submitted, and within thirty (30) days following
Landlord’s receipt of all of the foregoing, Landlord shall pay to Tenant the
amount of each such requisition, or in the case of the requisition for Phase II
and Phase III (if applicable) shall apply a credit against such requisition for
the sum of the TI Allowance previously advanced by Landlord to Tenant pursuant
to Paragraph B above; provided that the last requisition hereunder shall not be
paid until thirty (30) days after Tenant’s requisition accompanied by a written
statement from Tenant’s Architect that such Tenant’s Work has been completed substantially
in accordance with Tenant’s Approved Plans, final lien waivers executed by Tenant’s
general contractor and all major subcontractors providing work in excess of


 





















 


$25,000.00, and a final
certificate of occupancy (except that a temporary certificate of occupancy
shall be acceptable if Tenant’s inability to obtain a final certificate of
occupancy is due to Landlord’s failure to complete the Landlord’s Work) and
other required governmental approvals for the Tenant’s Work. When Tenant has
completed the High Bay Work, Tenant shall submit to Landlord a requisition for
payment of the High Bay Allowance, in the form of AIA Document G702 as to hard
construction costs, and in such other form as to soft costs as is reasonably
acceptable to Landlord, setting forth the costs incurred by Tenant for the High
Bay Work, together with final lien waivers by Tenant’s general contractor and
all major subcontractors providing work in excess of $25,000.00, a written
statement from Tenant’s Architect that the High Bay Work has been completed
substantially in accordance with Tenant’s Approved Plans, and a final
certificate of occupancy for the High Bay Premises, and within thirty (30) days
following Landlord’s receipt of all of the foregoing, Landlord shall pay to
Tenant the amount of the requisition for the High Bay Work, except that there
shall be a credit applied against such requisition for the sum of the High Bay
Allowance previously advanced by Landlord to Tenant pursuant to Paragraph B
above. If any lien is filed against the Property, or any part or interest
therein, arising out of or in connection with the Tenant’s Work and/or the High
Bay Work and such lien or encumbrance is not discharged, insured or bonded over
or otherwise disposed of to Landlord’s reasonable satisfaction within thirty
(30) days after the filing or establishment thereof, then Landlord shall have
no further obligation to disburse any funds from the TI Allowance or the High
Bay Allowance, as applicable, to Tenant unless and until the same is so
discharged or otherwise disposed, in addition to, and not in lieu of, Landlord’s
rights and remedies and Tenant’s obligations on account thereof under the Lease
or otherwise.


 


8.             Rent Reduction.
Tenant may elect to spend less than the full TI Allowance. In the event
Tenant so elects, then no later than the date which is thirty (30) days
following the Site Plan Approval Date, Tenant shall notify Landlord of the
amount (the “Reduction Amount”) by which the TI Allowance shall be reduced. Under
no circumstances may the Reduction Amount be greater than $1,000,000.00. If
Tenant exercises such reduction right, the Annual Fixed Rent Rate specified in
Paragraph 3 of this Amendment shall be reduced annually by an amount which is
the sum of the Reduction Amount times 10. Tenant agrees to execute and
deliver to Landlord such reasonable documentation as Landlord requests to
confirm the amount of the Annual Fixed Rent Rate and the Monthly Fixed Rent
Rate as aforesaid.


 


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


 


10.           Extension
Options. A. Provided that as of the date of the notice specified
below,


 





















 


Tenant is not in default
and has not previously been in default of its obligations under the Lease, as
amended hereby, beyond any applicable grace period, and provided further that
the Lease has not been assigned (except to a Permitted Transferee (as defined
in the Lease and Paragraph 16 of this Amendment), Tenant shall have the right
to extend the term of the Lease for two additional periods of five (5) years
each, each such period to begin immediately upon the expiration of the then
current term of the Lease (the “Extended Terms”). All of the terms, covenants
and provisions of this Lease shall apply to such Extended Terms except that the
Annual Fixed Rent Rate for each such Extended Term shall be the market rate at
the commencement of such Extended Term, as designated by Landlord. If Tenant
shall elect to exercise either of the aforesaid options, it shall do so by
giving 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. If
Tenant gives such notice, the extension of the Lease shall be automatically
effected without the execution of any additional documents. The Term specified
in paragraph 1 hereof and the Extended Terms are hereinafter collectively
called the “term”.


 


B.   If the Tenant disagrees with
Landlord’s designation of the market rate, and the parties cannot agree upon
the market rate, then the market rate shall be submitted to arbitration as
follows:  market rate shall be determined
by impartial arbitrators, one to be chosen by the Landlord, one to be chosen by
Tenant, and a third to be selected, if necessary, as below provided. The
unanimous written decision of the two first chosen, without selection and
participation of a third arbitrator, or otherwise, the written decision of a
majority of three arbitrators chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each
notify the other of its chosen arbitrator within ten (10) days following the
call for arbitration and, unless such two arbitrators shall have reached a
unanimous decision within thirty (30) days after their designation, they shall
so notify the then President of the Boston Bar Association and request him to
select an impartial third arbitrator, who shall be another office building
owner, a real estate counselor or a broker dealing with like types of
properties, to determine market rate as herein defined. Such third arbitrator
and the first two chosen shall hear the parties and their evidence and render
their decision within thirty (30) days following the conclusion of such hearing
and notify Landlord and Tenant thereof. Landlord and Tenant shall share equally
the expense of the third arbitrator (if any). If the dispute between the
parties as to a market rate has not been resolved before the commencement of
Tenant’s obligation to pay Fixed Rent based upon such market rate, then Tenant
shall pay Fixed Rent under the Lease based upon the then current rate until
either the agreement of the parties as to the market rate, or the decision of
the arbitrators, as the case may be, at which time Tenant shall pay any
underpayment of Fixed Rent to Landlord, or Landlord shall refund any
overpayment of Fixed Rent to Tenant. In any event, the Annual Fixed Rent Rate
for each Extended Term shall not be less than the Annual Fixed Rent Rate in
effect immediately prior to such Extended Term.


 


11.          Right
to Lease Vacant Space. A. If at any time during the Term of the
Lease, as extended by this Amendment, or any Extended Term, Landlord shall
receive a “bona fide offer” from a third party to lease that remaining portion
of the Building referred to herein as the Vacant Space, Landlord shall first
give Tenant written notice of such offer (“Landlord’s Offer Notice”), including
with such notice a copy of such third party offer, and Tenant shall have a
continuous right of first expansion with respect to entering into an agreement
to lease the Vacant Space on the terms as set forth in subparagraph B or C
below, as the case may be, provided that at the time


 





















 


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


 


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


 


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


 


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


 


A.   Amount of Letter of Credit. Concurrently with Tenant’s
execution and delivery of this Amendment, Tenant shall deliver to Landlord an
irrevocable standby letter of credit (the “Original Letter of Credit”) which
shall be (i) in the form of Exhibit E attached to this Amendment (the “Form
LC”), (ii) issued by a bank reasonably satisfactory to Landlord upon which
presentment 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 of
Subparagraph 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 “Letter
of Credit.”


 


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


 





















 


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


 


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


 


D.   Draws to Pay Damages. In addition, if (i) the Lease
shall have been terminated as a result of Tenant’s default under the Lease
beyond the expiration of the applicable cure period, and/or (ii) the Lease
shall 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 the
Letter of Credit an amount sufficient to pay any and all damages payable by
Tenant on account of such termination or rejection, as the case may be,
pursuant to Article 8 hereof. In the event of bankruptcy or other
creditor-debtor proceeding against Tenant, all proceeds of the Letter of Credit
shall be deemed to be applied first to the payment of rent and other charges
due Landlord for all periods prior to the filing of such proceedings.


 


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


 


F.    Transferability. Landlord shall be
entitled to transfer its beneficial interest under the Letter of Credit or any
Security Proceeds in connection with (i) Landlord’s sale or transfer of the
Property, or (ii) the addition, deletion or modification of any beneficiaries
under the Letter of Credit and the Letter of Credit shall specifically state on
its 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 45
days after the expiration of the term, to the extent Landlord has not
previously drawn upon any Letter of Credit or Security Proceeds held by
Landlord, Landlord shall return the same to Tenant provided that there is not
at such time any continuing default of any of Tenant’s obligations under the


 





















 


Lease, and if there is
any continuing default, then within ten (10) days after the curing of such
default.


 


H.   Existing Security Deposit. Upon receipt of an acceptable
Original Letter of Credit, Landlord shall return to Tenant the cash security
deposit Landlord is currently holding, and existing Section 4.4 of the Lease
shall be deleted and of no farther force or effect.


 


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


 


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


 


15.          Yield-up.
Tenant shall be required to remove, upon the expiration or earlier termination
of the term of the Lease, its diesel tank and the outside gantry, all specialty
chemical rooms, specialty plumbing, process piping, and Tenant’s old data
wiring and cabling which had been previously abandoned by Tenant, and shall
repair any damage to the Building or Property caused by such removal in
accordance 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 items
that must be removed at the expiration of the term. Notwithstanding the
foregoing or anything to the contrary in Section 6.1.9 of the Lease, Landlord
shall not require Tenant to remove items of general and customary use in office
and R&D buildings, such as: partitions, ceiling, lights, HVAC systems,
flooring, doors, non-specialty plumbing and life safety systems.


 


16.          Assignment
and Subletting. Section 6.2.1 of the Lease is amended as of the Effective
Date by expanding the definition of “Permitted Transferees” specified in the
first sentence of said Section 6.2.1 to include any entity that acquires all or
substantially all of the stock or assets of Tenant, so long as the net worth of
the resulting entity is not less than the net worth of Tenant immediately prior
the date of such acquisition. In addition, Tenant may assign the Lease in its
entirety, or sublease up to 50,000 square feet of the Premises (and Landlord’s termination
and recapture rights set forth in Section 6.2.1 of the Lease shall not apply in
either case) to any party of a type and quality suitable for a suburban
flex/R&D building; provided Tenant obtains Landlord’s prior written consent
which shall not be unreasonably withheld, conditioned or delayed.


 


17.          Roof
Replacement. Prior to February 29, 2012, Landlord and Tenant
shall cooperate to reasonably determine whether and when the roof of the
Building should be


 





















 


replaced. Landlord shall
have no obligation to consult with Tenant concerning roof replacement after
such date.


 


18.         Signs. Notwithstanding
anything to the contrary contained in the Lease, Tenant shall be permitted to
erect, at its expense, interior and exterior signage in accordance with Landlord’s
sign rendering dated April 20, 2004. All Tenant’s signage shall conform to all applicable
local ordinances and Landlord’s sign policy for the Building and shall be
maintained by Tenant in good repair throughout the term of the Lease. Landlord
will install two (2) tenant/Building identification signs directing visitors to
the main Building entrance and parking.


 


19.         No
Competitors. So long as American Science and Engineering Inc.
occupies 100% of the Premises, Landlord shall not lease any space in the
Building to the following entities: 
Smiths Heimann; Analogic; OSI/Rapiscan; SAIC; and L-3.


 


20.          Governmental
Approvals. A. Tenant’s right to perform the High Bay Work is conditioned
upon Landlord obtaining from the Town of Billerica approval of a modified site
plan that contemplates the construction of the High Bay Premises. Landlord
agrees to apply for and take all necessary steps to obtain approval of the site
plan modification from the Town of Billerica. Tenant, without obligating itself
to incur any costs or expenses, shall assist and cooperate with Landlord with
respect 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 application
therefor, fails to obtain such approval on or before May 1, 2005 (the “Outside
Approval Date”), then Tenant may elect to either (i) postpone the Outside
Approval Date for one period of thirty (30) days from the date of Tenant’s
election notice, or (ii) terminate the Lease effective as of the date which is
one year from the date of Tenant’s election notice (the “Effective Termination
Date”), provided Tenant gives Landlord written notice of its election within
ten (10) days after the Outside Approval Date, which notice shall specify
whether Tenant is electing to postpone the Outside Termination Date or to
terminate the Lease as of the Effective Termination Date. Tenant may elect to postpone
the Outside Termination Date only once. After postponement, Tenant’s sole right
with respect to any delay in obtaining site plan modification shall be to
terminate the Lease as set forth in this paragraph. If Tenant timely exercises
its option to terminate the Lease, then (A) Tenant shall have no right to
occupy the Additional Premises and Paragraph 2 hereof shall be void and of no
effect, (B) Tenant’s right to occupy the Temporary Space shall expire and
Tenant shall vacate and yield up the Temporary Space in accordance with the
terms of Paragraph 4.C above within ten (10) business days after the date of
Tenant’s election notice as aforesaid, (C) the Lease shall continue in effect
with respect to the Existing Premises and Tenant shall pay Fixed Rent to
Landlord at the Annual Fixed Rent Rate and Monthly Fixed Rent Rate of $604,800.00
and $50,400.00, respectively, until the Effective Termination Date (D) Tenant
shall continue to pay to Landlord amounts on account of Taxes and Operating
Costs with respect to the Existing Premises, and (E) on the Effective
Termination Date, the Lease, as amended hereby, shall terminate without the
need for any further documentation and the parties shall have no further
accruing liability or obligation to each other.


 


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


 





















 


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


 


21.         Structural
Upgrades. In light of Tenant’s concern that certain structural
upgrades might be required by the Building Inspector of the Town of Billerica
on account of Tenant’s Building improvements, Landlord and Tenant have agreed
to establish the responsibilities of the parties with respect to such requirements.
Provided that Tenant’s design of the High Bay Premises will not necessitate any
structural changes to the Building to accommodate the High Bay Work, and
provided, further, that Tenant does not intend to place any equipment on the
roof of the Building nor place any hanging equipment from the structure of the
Building, then if the Building Inspector requires any structural upgrades to
the Building to comply with applicable building code requirements, Landlord
shall perform the structural upgrade work so required, and the cost of such
work up to $100,000.00 shall be shared equally between Landlord and Tenant (so
that 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 which
exceeds $100,000.00, if any, shall be deemed a “capital expenditure” for the
purposes of Section 4.2.3 of the Lease and the amortized portion thereof shall
be included in Operating Costs to be paid for by Tenant in accordance with the
provisions of said Section 4.2.3.


 


22.           Other
Modifications. As of the Effective Date, Sections 2.3, 4.4 and
10.8 of the Lease are deleted, and Article 3 of the Lease shall have no further
force or effect with respect to this Amendment.


 


23.           Miscellaneous.
Each of the parties hereto represents and warrants to the other that the
person 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’s
behalf and that no consent from any other person or entity is necessary as a
condition precedent to the legal effect of this Amendment. All prior
understandings and agreements between the parties with respect to the subject
matter of this Amendment are merged within this Amendment, which alone fully and
completely sets forth the understanding of the parties with respect thereto.
This Amendment may not be changed or modified nor may any of its provisions be
waived orally or in any manner other than by a writing signed by the party
against whom enforcement of the change, modification or waiver is sought. If
not otherwise defined, capitalized terms used herein shall have the same
meanings as defined in the Lease.


 


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


 





















 


As amended hereby, the
Lease is ratified and confirmed in all respects and shall continue in full
force and effect. The recitals appearing at the beginning of this agreement are
hereby incorporated into this Amendment.


 


Executed under seal as of
the 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