EXHIBIT 10.2
SECOND AMENDMENT TO LEASE
This is a Second Amendment to Lease dated as of July 26, 2006 between
CFRI/CQ Norwood Upland, L.L.C. ("Landlord") and Aspect Medical Systems, Inc.
("Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant entered into a lease ("Lease") dated February
3, 2006, as amended by a First Amendment dated as of May 31, 2006, of certain
premises located a 000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx; and
WHEREAS, Landlord and Tenant desire to amend the Lease as more
particularly set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree to amend
the Lease as follows:
1. Delivery Schedule, Term and Rent. Landlord and Tenant hereby agree to adjust
the schedule for delivery of portions of the Premises and related matters as
follows:
(a) Landlord shall achieve Substantial Completion of Landlord's Work in
the area shown as "Phase One Delivery Area" on Exhibit A-1 attached hereto by
August 15, 2006. If Landlord does not do so, Tenant shall receive a credit
against its Annual Fixed Rent obligations under the Lease in the amount of
$1,000 for each day following August 15, 2006 until Landlord has achieved
Substantial Completion of Landlord's Work in the Phase One Delivery Area, up to
a maximum credit of $25,000. The provisions of this clause (a) replace and
supercede the provisions of the third paragraph of Section 3.6 of the Lease.
(b) There shall be included in the Phase One Delivery Area the area shown
on Exhibit A-1 attached hereto as "Temporary Service Area" until completion of
the lavatory facilities in the area shown on Exhibit A-1 as "Permanent Service
Area".
(c) That portion of the Phase II Premises shown on Exhibit A-1 attached
hereto as "Phase Three A Delivery Area" shall be delivered to Tenant
simultaneous with the delivery of the balance of the Phase III Premises as set
forth in the Lease, provided that the Landlord's Work in the Phase Three A
Delivery Area shall be performed in accordance with the plans and specifications
therefor approved as part of the Landlord's Work in the original Phase II
Premises.
(d) For the purposes of Section 3.6 of the Lease, the term "Phase II
Premises" shall be deemed to refer to the "Phase Two Delivery Area" as shown on
Exhibit A-1 attached hereto.
(e) The Term of the Lease shall commence on July 27, 2006, and, unless
sooner terminated pursuant to the provisions of the Lease, shall expire at 11:59
p.m. on the date which is the last day of the month which is the later of (a)
ten (10) years and six (6) months after July 27, 2006 (as such date may be
extended as hereinafter provided), or (b) ten (10) years from the Phase II
Commencement Date. Notwithstanding the foregoing, in the event that Substantial
Completion of Landlord's Work is not achieved on August 15, 2006, the date of
commencement of the Term shall be extended one (1) day for each such day of
delay. Accordingly, July 27,
2006 (unless extended as provided in clause (f) below) is hereby deemed the
Phase I Commencement Date.
(f) The date for commencement of payment of Fixed Rent and Additional Rent
under the Lease is agreed to be July 27, 2006 (hereby superceding any reference
in the Lease to the "Phase I Commencement Date" as the date therefor).
Notwithstanding the foregoing, in the event that Substantial Completion of
Landlord's Work is not achieved on August 15, 2006, the date of commencement of
Fixed Rent and Additional Rent under the Lease shall be extended one (1) day for
each such day of delay.
(g) The obligation of the Tenant to pay Fixed Rent and Additional Rent as
set forth in the Lease shall be unaffected by the provisions of this Second
Amendment. Without limitation of the foregoing, Schedule I of the Lease and
Tenant Share as defined in Section 1.1 of the Lease are unchanged by the
provisions of this Second Amendment, notwithstanding the adjusted dates for
delivery of portions of the Premises set forth herein.
In the event of any conflict between the provisions of this Second
Amendment and the provisions of the Lease, the provisions of this Second
Amendment shall govern.
2. Credit for Late Delivery of Landlord's Work. Section 3.6 of the Lease is
hereby amended by adding in clause (a) after the phrase "up to a maximum credit
of $120,000" the following "as increased by any amount of unused credit for the
achievement of Substantial Completion of Landlord's Work in the Phase One
Delivery Area after August 15, 2006, up to a total maximum credit of $145,000".
Except as hereinabove amended, the Lease remains in full force and effect
in accordance with its terms.
[End of text on page]
WITNESS the execution hereof under seal as of the day and year first above
written.
Landlord:
CFRI/CQ XXXXXXX UPLAND, L.L.C.,
a Delaware limited liability company
By: CFRI Norwood Upland, L.L.C., a Delaware
limited liability company, its managing member
By: CRI Property Trust,
a Maryland real estate investment trust,
its sole member
By: ____________________________________
Name:
Title:
Tenant:
ASPECT MEDICAL SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name:
Title:
Hereunto duly authorized
TENANT'S ESTOPPEL CERTIFICATE
DATE: July ___, 2006
TENANT: ASPECT MEDICAL SYSTEMS, INC.
LANDLORD: CAMBRIDGE SAVINGS BANK
LEASED PREMISES: PREMISES AT 000 XXXXXX XXXXX, XXXXXXX, XX
DATE OF LEASE: FEBRUARY 3, 2006, AS AMENDED BY A FIRST AMENDMENT DATED AS
OF MAY 31, 2006 AND A SECOND AMENDMENT DATED AS OF JULY 26,
2006
The above-named Tenant(s) acknowledge(s) that it has been informed of the
existence of a loan transaction by and between Cambridge Savings Bank (the
"Lender") and the Landlord, secured in part by a mortgage covering the real
estate in which the above-described Leased Premises is located. In connection
with that loan, Lender has required that Landlord obtain this Certificate and
Lender will rely upon the representations contained herein. Tenant hereby
warrants and represents to Lender as follows:
1. That the items, copies of which are attached hereto, constitute true
and complete copies of the Lease to which reference is hereinabove made and of
any and all amendments thereto and agreements entered into in connection
therewith (collectively the "Lease"). The items attached hereto, the dates of
which are noted above, represent the complete agreement between Landlord and
Tenant respecting the Leased Premises and Tenant's use and payment therefor.
2. That to the best of Tenant's knowledge and belief, there are no
existing defaults with respect to the Lease on the part of either Landlord or
Tenant nor do there exist, to the best of Tenant's knowledge and belief, any
facts or situations which would, upon giving of notice, the passage of time, or
otherwise constitute a default under such Lease.
3. That the security deposit in the amount of $911,157.53 in the form of a
letter of credit paid under such Lease has been paid and remain outstanding and
that no other deposits have been paid by Tenant under such Lease except as
hereinafter specified.
4. That no rental payments have been made in advance under such Lease for
a period greater than one month.
Under oath as of the day and year first above written.
TENANT:
ASPECT MEDICAL SYSTEMS, INC.,
a Delaware corporation
________________________________
By:
Its:
- 2 -
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement made as of
the ___ day of August, 2006, by and among Landlord, Tenant and Lender, all as
hereinafter defined;
W I T N E S S E T H:
IN CONSIDERATION OF TEN AND NO/100 ($10.00) DOLLARS and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned Landlord, Tenant and Lender hereby covenant and
agree as follows:
1. For purposes of this agreement the following terms shall be defined as
set forth below:
A. Assignment of Leases: That certain Collateral Assignment of
Lessor's Interest in Leases, Rents, and Profits affecting the Landlord's
interest in the Lease dated October 8, 2003, executed by Landlord in favor of
Lender, recorded with the Norfolk County Registry of Deeds in Book ____, Page
____.
B. Mortgage: That certain Mortgage and Security Agreement and
Financing Statement dated October 8, 2003, executed by Landlord in favor of
Lender, conveying Landlord's interest in the Property to Lender, recorded with
the Norfolk County Registry of Deeds in Book ____, Page ____ (included in the
term are all amendments, additions and substitutions thereof).
C. Landlord: CFRI/CQ Xxxxxxx Upland, L.L.C., a Delaware limited
liability company.
D. Lease: That certain Lease by and between Landlord and Tenant
dated February 3, 2006, as amended by a First Amendment dated as of May 31, 2006
and a Second Amendment dated as of July 26, 2006 affecting the Property.
E. Property: All that tract or parcel of land located at 000 Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx, as more particularly described on Exhibit "A"
attached hereto and made a part hereof.
F. Tenant: Aspect Medical Systems, Inc., a Delaware corporation
G. Lender: Cambridge Savings Bank
2. Tenant has subordinated and does hereby subordinate all of its rights
in and to the Property and in and to the Lease (including any options to
purchase) to the following: (i) the Mortgage; (ii) any, and all renewals,
substitutions, extensions, modifications, replacements or amendments of the
Mortgage; (iii) all loan documents executed in connection with the Mortgage
including, without limitation, the Assignment of Leases; and (iv) all
indebtedness secured by the Mortgage and all advances made pursuant thereto
prior to or after the date hereof. Notwithstanding
anything to the contrary contained herein or in the Lease, any interest of
Tenant in any right of first refusal contained in the Lease shall not be binding
upon Lender at a foreclosure sale of the Property, upon any purchaser at a
foreclosure sale of the Property or upon a transfer of the Property by Lender by
deed in lieu of foreclosure.
3. Tenant shall given written notice to Lender of any default of Landlord
under the Lease (at the time it gives said notice to Landlord) and agrees that
Lender shall have the time periods set forth in the Lease for cure to cure said
Landlord default.
4. So long as Tenant is not in default under the Lease in the payment of
rent or additional rent or in the performance of any of the terms, or conditions
of the Lease beyond applicable notice an/or cure periods, Lender covenants and
agrees that possession of the demised premises under the Lease and the rights
and privileges of Tenant under the Lease shall not be diminished or interfered
with by the Lender in the exercise of any of its rights under the Mortgage.
5. If Lender, its successors or assigns shall succeed to the interest of
Landlord under the Lease in any manner, or if any other person or entity shall
acquire Landlord's interest in the Property upon any foreclosure of the Mortgage
(Lender, its successors or assigns, or such other person or entity, as the case
may be, being hereinafter referred to as "Successor Landlord"), Tenant shall
attorn to Successor Landlord upon such succession or foreclosure sale and shall
recognize Successor Landlord as the landlord under the Lease, and the Lease
shall remain in full force and effect and shall inure to the benefit of
Successor Landlord as landlord thereunder. Such attornment shall be effective
and self-operative without the execution of any further instrument. Tenant
agrees, however, to execute and deliver at any time and from time to time, upon
the request of Successor Landlord, any instrument or certificate that may be
necessary or appropriate to evidence such attornment. From and after any such
attornment, Successor Landlord shall be bound to Tenant under all the terms,
covenants and conditions of the Lease, except that Successor Landlord shall not
(a) be liable for any act or omission of any prior landlord (including
Landlord); or (b) be subject to any offset or defenses which Tenant might have
against any prior landlord (including Landlord); or (c) be bound by any rent or
additional rent which Tenant might have paid for more than sixty (60) days in
advance to any prior landlord (including Landlord); or (d) be bound by any
amendment or modification of the Lease made without the consent of Lender.
6. The agreements herein contained shall bind and inure to the benefit of
successors in interest of the parties hereto.
7. This instrument shall be governed by the laws of the State of
Massachusetts
[End of text on page]
IN WITNESS WHEREOF, the undersigned Tenant has hereunto caused this
instrument to be executed by its duly authorized corporate officials and its
corporate seal to be affixed hereto as of the day and year first above written.
Tenant:
ASPECT MEDICAL SYSTEMS, INC.,
a Delaware corporation
By: ___________________________________
Name:
Title:
Hereunto duly authorized
Landlord:
CFRI/CQ NORWOOD UPLAND, L.L.C.,
a Delaware limited liability company
By: CFRI Norwood Upland, L.L.C., a Delaware
limited liability company, its managing member
By: CRI Property Trust,
a Maryland real estate investment trust,
its sole member
By: ______________________________
Name:
Title:
Lender:
CAMBRIDGE SAVINGS BANK
By: __________________________________
Name:
Title:
Hereunto duly authorized
COMMONWEALTH OF MASSACHUSETTS
, ss.
On this ____ day of ____________, 2006, before me, the undersigned notary
public, personally appeared ____________________, proved to me through
satisfactory evidence of identification, which was ____________________________,
to be the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purposes as
said officer of CRI Property Trust, member of CFRI Norwood Upland, L.L.C.,
managing member of CFRI/CQ Norwood Upland, L.L.C.
_________________________________
__________________, Notary Public
My commission expires: __________
COMMONWEALTH OF MASSACHUSETTS
, ss.
On this ____ day of ____________, 2006, before me, the undersigned notary
public, personally appeared ____________________, proved to me through
satisfactory evidence of identification, which was ____________________________,
to be the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purposes as
said ____________________ of Aspect Medical Systems, Inc.
_________________________________
__________________, Notary Public
My commission expires: __________
COMMONWEALTH OF MASSACHUSETTS
, ss.
On this ____ day of ____________, 2006, before me, the undersigned notary
public, personally appeared ____________________, proved to me through
satisfactory evidence of identification, which was ____________________________,
to be the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purposes as
said ____________________ of Cambridge Savings Bank.
_________________________________
__________________, Notary Public
My commission expires: __________
[UPLAND XXXXX FLOOR PLAN]
[UPLAND XXXXX FLOOR PLAN]
