Exhibit 10.4
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this "Amendment") is made and entered into
as of November 7, 2003 by and between BROOKHAVEN (NASHUA), LLC, a Delaware
limited liability company, successor in interest to Executive Tower Limited
Partnership, a New Hampshire limited partnership (the "Landlord"), and CRITICAL
CARE SYSTEMS, INC., a Delaware corporation (the "Tenant").
RECITALS
A. Tenant and Executive Tower Limited Partnership entered into a Lease
Agreement dated August 4, 1996 for certain premises located at 00
Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx 00000.
B. By instrument dated June 4, 2001, Landlord (Executive Tower Limited
Partnership' successor in interest) and Tenant entered into an
Amendment To Lease whereby Tenant acquired suite 501-502 at 00 Xxxx
Xxxxx Xxxx.
C. The parties subsequently entered into a Second Amendment To Lease
whereby Tenant acquired xxxxx 000 xx 00 Xxxx Xxxxx Xxxx. (The August
4, 1996 Lease Agreement, June 4, 2001 Amendment To Lease and Second
Amendment To Lease shall collectively be referred to herein as the
"Lease.")
D. Landlord and Tenant desire to amend the Lease on the terms set forth
herein in order to reflect (i) the expansion of Tenant into Suite
503-504, which space currently is occupied by Cypress Semiconductor
Corporation (the "Expansion Premises"), and (ii) other matters as
set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for the consideration provided for below and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree to amend the Lease as follows:
1. Defined Terms. Unless otherwise defined herein, all terms with initial
capital letters shall have the same meaning ascribed to such terms in the
Lease.
2. Continuing Effect of Lease. Except as expressly modified hereby, all other
terms and conditions of the Lease shall continue in full force and effect.
3. Landlord. Tenant acknowledges that the Landlord's Address for Notices by
hand-delivery or Courier is:
Lend Lease Real Estate Investments, Inc.
Attn. Xxxx Xxxxxxx
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxx & Wakefield
ATTN: Portfolio Manager
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
and Landlord's address for mail is:
Lend Lease Real Estate Investments, Inc.
Attn. Xxxx Xxxxxxx
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxx & Wakefield
ATTN: Portfolio Manager
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Landlord's payment address is:
Bank of America
Lend Lease AAF
Brookhaven (Nashua), LLC
X.X. Xxx 000000
Xxxxxxx, XX 00000-0000
4. Relocation of Cypress Semiconductor Corporation. The parties acknowledge
Cypress Semiconductor Corporation ("Cypress") currently occupies the
Expansion Premises and needs to be relocated to other space within the
Building. After the Amendment Commencement Date, Tenant shall pay fifty
percent (50%) of all costs incurred by Landlord in relocating Cypress up
to $55,000. Tenant shall pay Landlord within fifteen (15) days of invoice.
The invoice shall be accompanied by third party invoices and other
documents evidencing the amount due. If Tenant fails to pay all or a
portion of said sum when due, the unpaid invoiced amount shall be
considered "Rent" under the Lease and Landlord shall have all rights as
set forth in the Lease.
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5. Amendments. From and after the date on which Cypress vacates the Expansion
Premises (the "Amendment Commencement Date"), the following provisions of
the Lease are amended as follows:
A. The definition of "Term" in paragraph 2(i) shall be extended to
November 30, 2006.
B. The final Lease Year (as set forth and defined in paragraph 7 of the
Second Amendment To Lease) shall end on November 30, 2006.
C. Tenant may install a sign on the outside of the Building in a
location and of a design and appearance that is agreed to in writing
by Landlord and Tenant. The sign must comply with all applicable
laws, rules, regulations and ordinances.
6. Expansion Premises. As to the Expansion Premises only, after the Amendment
Commencement Date, all provisions of the Lease (including the amendments
set forth in paragraph 5, above) shall apply with the exception of the
following:
A. Definitions.
2(b) The "Premises" shall mean Suite 503-504 located within the
Building as outlined on the plan attached hereto as Exhibit B.
2(d) "Tenant's Rentable Square Feet" shall be 4,466 square feet of
floor area.
2(f) "Tenant's Proportionate Share" shall be 7.61%, which is the
percentage obtained by dividing (i) Tenant's Rentable Square
Feet by (ii) the total Rentable Square Feet in the Building.
2(j) "Base Rent" shall be $80,388.00 for the one (1) year period
commencing on the Amendment Commencement Date payable in equal
monthly installments of $6,699.00, $84,854.00 for the one (1)
year period commencing on the one year anniversary of the
Amendment Commencement Date payable in equal monthly
installments of $7,071.17, and $87,087.00 for the remainder of
the Term of the Lease payable in equal monthly installments of
$7,257.25.
2(t) "Tenant's Electricity Share" shall mean 34.80%, which is the
percentage obtained by dividing (i) Tenant's Rentable Square
Feet by (ii) the total rentable square feet of floor area on
the fifth floor of the Building.
B. Exhibit B. Exhibit B ("Outline of Space") is deleted and replaced
with the Exhibit B attached hereto.
C. Commencement Date of Rent Payments. Notwithstanding any provision of
the Lease to the contrary, Tenant shall commence paying Rent on
January 15th, 2004.
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IN WITNESS WHEREOF the parties have executed this Third Amendment to Lease
as of the day and year first above written.
LANDLORD:
BROOKHAVEN (NASHUA), LLC, a
Delaware limited liability company,
successor in interest to Executive Tower
Limited Partnership
By: Lend Lease Real Estate Investments,
Inc., a Delaware corporation, its manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------- -------------------------------------
Witness Print Name: Xxxx X. Xxxxxxx
----------------------------
Print Title: Vice President
----------------------------
Duly Authorized
CRITICAL CARE SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxx XxXxxxxxx
------------------------------- -------------------------------------
Witness Print Name: Xxxxxx XxXxxxxxx
----------------------------
Print Title: VP & Controller
----------------------------
Duly Authorized
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Exhibit B
Outline of Premises
("Expansion Premises")
[Floor Plan of Additional Leased Space]
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TERMINATION OF TEMPORARY LICENSE AGREEMENT
In consideration of (i) all personal property being removed from Xxxxx 000, 00
Xxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxxxxx no later than December 31, 2003, time
being of the essence, and (ii) Suite 201 being in "broom clean condition" no
later than December 31, 2003, time being of the essence, Brookhaven (Nashua),
LLC agrees to waive all payments due under that certain Temporary License
Agreement for Suite 201 dated February 24, 2003.
November 7, 2003
Brookhaven (Nashua), LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: Vice President
---------------------------------
Critical Care Systems, Inc.
By: /s/ Xxxxxx XxXxxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxxx
---------------------------------
Title: VP & Controller
---------------------------------
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