Exhibit 10.2
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (this "Amendment") is made and entered into as of
the 4th day of June, 2001, by and between BROOKHAVEN (NASHUA), LLC, a Delaware
limited liability company, successor in interest to K/B Opportunity Fund I, L.P.
(the "Landlord") and CRITICAL CARE SYSTEMS, INC., a Delaware corporation (the
"Tenant").
RECITALS
A. Tenant and K/B Opportunity Fund I, L.P. entered into a Lease Agreement
effective as of August 4, 1996, for certain premises consisting of approximately
4,574 rentable square feet located on the fifth (5th) floor of the Building
commonly known as Suite 501 (the "Initial Premises"), at 00 Xxxx Xxxxx Xxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000 (said lease herein the "Lease");
B. Landlord and Tenant desire to amend the Lease on the terms stated
herein in order to reflect the addition of those certain premises consisting of
approximately 3,008 rentable square feet located on the fifth (5th) floor of the
Building as shown on Exhibit A attached hereto and incorporated herein commonly
known as Suite 502 (the "Expansion Premises", the Initial Premises and the
Expansion Premises being collectively referred to as the "Premises").
AGREEMENT
NOW, THEREFORE, for the consideration provided for below and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree to amend the Lease, effective as
of the date hereof, as follows:
1) Unless otherwise defined herein, all terms with initial capital letters
shall have the same meaning ascribed to such terms in the Lease.
2) Except as otherwise stated in this Amendment, the lease of the Expansion
Premises shall be on the same terms and conditions as are provided for the
Initial Premises in the Lease.
3) The "Amendment Commencement Date" shall mean the earlier to occur of the
date on which the (a) Tenant Improvements (as hereinafter defined) to be
constructed within the Expansion Premises are substantially complete and
(b) Tenant is permitted occupancy of the Expansion Premises. For the
purposes of this paragraph, the phrase "substantially complete" shall mean
the date of delivery of a final Certificate of Occupancy (or equivalent)
from the appropriate governmental entity. For the purposes of this
paragraph, the phrase "permitted occupancy" shall mean the date on which
the (1) Tenant has received Landlord's written permission to enter and
occupy the Expansion Premises and (2) Tenant Improvements within the
Expansion Premises have been constructed in accordance with all applicable
governmental requirements, in Landlord's reasonable discretion.
4) The following terms provided for in Section 1 are hereafter amended as
follows:
Landlord's Name and Type of Entity: Brookhaven (Nashua), LLC, a Delaware
limited liability company
Landlord's Address for Notices: Brookhaven (Nashua), LLC
c/o Lend Lease Real Estate
Investments, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Landlord's Payment Address: Bank of America
Lend Lease AAF
Brookhaven (NASHUA), LLC
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
5) From and after the Amendment Commencement Date, Section 2(b) of the Lease
is amended to state as follows:
(b) Premises: The Premises consists of the Initial
Premises as outlined on Exhibit B attached
to the Lease and the Expansion Premises as
outlined on Exhibit A attached to this
Amendment.
6) From and after the Amendment Commencement Date, Section 2(d) of the Lease
is amended to state as follows:
(d) Tenant's Rentable
Square Feet: Approximately 7,582 rentable square feet of
floor area.
7) Section 2(e) is hereafter amended to state as follows:
(e) Total Rentable Square
Feet in the Building 58,719 rentable square feet of office area.
8) From and after the Amendment Commencement Date, Section 2(t) of the
Lease is amended to state as follows:
(f) Tenant's Proportionate 12.91%, which is the percentage obtained by
Share: dividing (i) Tenant's Rentable Square Feet
by (ii) the total Rentable Square Feet in
the Building.
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9) From and after the Amendment Commencement Date, Section 2(j) of the
Lease is amended to state as follows:
(j) Base Rent:
Rate Per Rentable Monthly
Lease Years Square Foot of Premises Installment
----------- ----------------------- -----------
Amendment
Commencement Date
-8/4/2001 $21.00 (Expansion Premises) $11,156.84
(Existing Premises based on
terms of Lease)
8/5/2001-5/31/2003 $21.00 $13,268.50
6/1/2003-5/31/2004 $23.50 $14,848.08
6/1/2004-5th Anniversary $26.00 $16,427.67
of the Amendment
Commencement Date
10) Section 2(m) is hereafter amended to state as follows:
(m) Security Deposit: $15,000.00
11) From and after the Amendment Commencement Date, Section 2(n) of the Lease
is amended to state as follows:
(n) Base Year: Calendar Year 2000 (i.e., January 1,
2000-December 31, 2000), except that
Property Taxes shall be based upon Fiscal
Year 2000 (i.e. April 1, 2000 - March 31,
2001).
12) Section 2(p) is hereafter amended to state as follows:
(p) Property Management
Company/Address: Xxxxxxx & Wakefield of Massachusetts
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
13) From and after the Amendment Commencement Date, Section 2(q) of the Lease
is amended to state as follows:
(q) Landlord's Broker: Xxxxxxx & Xxxxxxxxx of Massachusetts
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
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14) From and after the Amendment Commencement Date, Section 2(t) of the Lease
is amended to state as follows:
(t) Tenant's Electricity
Share 58.02%, which is the percentage obtained by
dividing (A) Tenant's Rentable Square Feet
in the Premises by (B) the total rentable
square feet of floor area on the fifth
floor of the Building,
15) The following shall be included as Station 7 of the Lease and the phrase
"INTENTIONALLY DELETED" shall be deleted from the Lease:
Tenant shall pay Landlord the sum of Fifteen Thousand and 00/100 Dollars
($15,000.00) (hereinafter referred to as "Security Deposit") as evidence
of good faith on the part of Tenant in the fulfillment of the terms of
this Lease, which shall be hold by the Landlord during the Term of this
Lease, or any renewal thereof. Under no circumstances will Tenant be
entitled to any interest on the Security Deposit. The Security Deposit may
be used by Landlord, at is discretion, to apply to any amount owing to
Landlord hereunder, or to pay the expenses of repairing any damage to the
Premises, except natural wear and tear occurring from normal use of the
Premises, which exists on the day Tenant vacates the Premises, but this
right shall not be construed to limit Landlord's right to recover
additional sums from Tenant for damages to the Premises. Within sixty (60)
days of the expiration or earlier termination of this Lease, Landlord
shall provide Tenant with an accounting of the use of such Security
Deposit. If there are no payments to be made from the Security Deposit as
set out is this paragraph, or if there is any balance of the Security
Deposit remaining after all payments have been made, the Security Deposit,
or such balance hereof remaining, will be refunded to the Tenant within
thirty (30) days after fulfillment by Tenant of all obligations hereunder.
In no event shall Tenant be entitled to apply the Security Deposit to Base
Rent or any Additional Rent due hereunder. In the event of an act of
bankruptcy by or insolvency of Tenant, or the appointment of a receiver
for Tenant or a general assignment for the benefit of Tenant's creditors,
then the Security Deposit shall be deemed immediately assigned to
Landlord. The right to retain the Security Deposit shall be in addition
and not alternative to Landlord's other remedies under this Lease or as
may be provided by law and shall not be affected by summary proceedings or
other proceedings to recover possession of the Premises. Upon sale or
conveyance of the Building, Landlord may transfer or assign the Security
Deposit to any new owner of the Premises, and upon such transfer all
liability of Landlord for the Security Deposit shall terminate, except for
a claim of liability for which Landlord has received written notice prior
to such transfer. Landlord shall be entitled to commingle the Security
Deposit with its other finds.
16) Paragraph 5A is hereby deleted in its entirety.
17) Landlord shall provide Tenant with a construction allowance of up to
Thirty Thousand Dollars ($30,000.00) for the actual, documented costs of
improvements to the Premises by Tenant, provided the plans and
specifications for such Tenant improvements have been pre-approved in
writing by Landlord (the "Tenant Improvements") (which approval
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shall not be unreasonably withheld with respect to non-structural
improvements) ("Tenant Allowance"); provided, however, the Tenant
Allowance shall not be used toward the cost of installing telephones, data
wiring, internet, intranet, any related wires or amenities, or any
fixtures. The Tenant Allowance shall be payable directly to Tenant within
thirty (30) days after Landlord's receipt of a Tenant approved invoice
along with such other documentation as Landlord may reasonably require
including, without limitation, lien waivers with respect to all work and
payments up to and including the date of the invoice for which payment
reimbursement is being requested. In addition, within thirty days after
completion of the Tenant Improvements, Tenant shall deliver to Landlord
(i) an Architect's Certificate of Completion for the Tenant Improvements
(to the extent reasonably required based an the nature and scope of the
work, and otherwise such documentation as is reasonably acceptable to
Landlord to verify that the work has been completed), (ii) final lien
waivers from all contractors and material suppliers, (iii) a certificate
of occupancy or comparable document evidencing that governmental approval
has been obtained for the completed Tenant Improvements, and (iv) such
other documentation as Landlord may reasonably require.
18) Brokers. Tenant represents and warrants to Landlord that Tenant has not
dealt with any brokers other than Xxxxxxx and Wakefield of New Hampshire,
Inc., who represents the Landlord (the "Broker"). Landlord shall pay the
Broker a commission pursuant to a separate agreement. Tenant shall
indemnify, defend and hold Landlord harmless from any claims, loss, cost
or damage which Landlord may incur as a result of the breach of Tenant's
representation and warranty contained herein.
19) Term. The Term of the Lease is extended until 5:00 P.M. on the fifth (5th)
anniversary of the Amendment Commencement Date.
20) The Premises shall comply with the heating and cooling temperature ranges
as set forth in the ASHRAE standards in effect as of the date of this
Amendment for buildings of the type and quality as the Building in the
jurisdiction of the Building.
21) Except as modified hereby, the terms, conditions and provisions of the
Lease shall be and remain in full force and affect and as hereby modified,
the Lease is ratified and confirmed.
[signatures on following page]
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IN WITNESS WHEREOF, Landlord and Tenant each have caused this Amendment to
be executed as of the date and year first above written.
LANDLORD:
BROOKHAVEN (NASHUA), LLC, a
Delaware limited liability company
By: Lend Lease Real Estate Investments,
Inc., a Delaware corporation, its manager
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
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Title: Vice President
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TENANT:
CRITICAL CARE SYSTEMS, INC., a Delaware
corporation
By: /s/ Xxxx X. XxXxxxxxx
-------------------------------------
Name: Xxxx X. XxXxxxxxx
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Title: President
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EXHIBIT A
Expansion Premises
[Floor Plan of Additional Leased Space]
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DECLARATION OF AMENDMENT COMMENCEMENT DATE
RE: Lease dated August 4, 1996, as amended on June 4, 2001, (the "Lease") by and
between Brookhaven Nashua LLC ("Landlord") as landlord and Critical Care
Systems, Inc. ("Tenant") as tenant with respect to certain space in the building
known as Executive Tower and 00 Xxxx Xxxxx Xxxx, Xxxxxx, XX 00000 (the
"Building").
The undersigned, being the Landlord and Tenant under the above-captioned Lease
and acting pursuant to the provisions of Section 3 of the Amendment to Lease, do
hereby acknowledge and agree that the Amendment Commencement Date shall be
deemed to be June 25, 2001. Accordingly, the Amendment Term shall expire on June
24, 2006, unless sooner terminated pursuant to the terms and provisions of the
Lease.
LANDLORD: TENANT:
Brookhaven Nashua, LLC Critical Care Systems, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. XxXxxxxxx
-------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx X. XxXxxxxxx
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Its: Investment Manager Its: President
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