Exhibit 10.37
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "FIRST AMENDMENT") is made as of the
1st day of November, 2002 by and between BerCar II, LLC ("LANDLORD"), and
Brooks-PRI Automation, Inc. ("TENANT").
1. Reference Information.
1.1. Landlord and Tenant entered into that certain Lease Agreement dated as
of October 23, 2002 (the "LEASE"), pursuant to which Landlord is
leasing to Tenant the land and improvements thereon known as 12
Elizabeth Drive, Chelmsford, MA, as more particularly described in the
Lease.
1.2. Landlord and Tenant intend to confirm the commencement of the term of
the Lease and to make other revisions set forth more particularly
below.
In consideration of the covenants herein reserved and contained, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
2. Incorporation; Capitalized Terms. The foregoing Reference Information
hereby incorporated in this First Amendment and made part hereof for all
purposes. All capitalized terms used in this First Amendment and not
otherwise defined shall have the meanings given in the Lease.
3. Commencement Date. The Original Term of the Lease shall be deemed to
commence on November 1, 2002, which date shall be the "Rent Day" as
referred to in the Lease. Except to the extent directly affected by the
foregoing change in the commencement of the term and the "Rent Day", all
other dates and time periods in the Lease remain unaltered.
4. Approval of Alterations. Landlord shall not unreasonably withhold,
condition or delay its approval of any alterations to the demised premises
submitted by Tenant as provided in Sections 7.1.1 and 7.1.2 of the Lease or
otherwise. In the event that Landlord fails to respond to a request for
approval within the time frames provided in Sections 7.1.1 or 7.1.2, then
Tenant may give Landlord a notice (an "ALTERATIONS REMINDER NOTICE") that a
request for approval is pending and the deadline for response has passed.
If Landlord fails to respond within five (5) business days of the receipt
of an Alterations Reminder Notice, then Landlord shall be deemed to have
approved the request that was the subject of such Alterations Reminder
Notice.
5. Insurance Provisions. The first sentence of Section 4.3 of the Lease is
hereby deemed deleted and replaced with the following: "Tenant shall
maintain with respect to the demised premises during the term of this Lease
a policy of commercial general liability insurance and if necessary
commercial umbrella insurance in insurance companies authorized to do
business in the Commonwealth of Massachusetts and with a financial capacity
to be approved by Landlord in its commercially reasonable discretion and in
amounts not less than Three Million Dollars ($3,000,000.00)."
6. Tax Payments: Notwithstanding anything in the Lease to the contrary, so
long as Landlord is required to escrow and pay real estate taxes by any
mortgagee holding an interest in the demised premises, then in lieu of
direct payment of real estate taxes by the Tenant as provided in the Lease,
Tenant shall pay to Landlord along with the monthly payment of
Fixed Rent an estimated payment in the amount of 1/12 of the annual real
estate taxes for the demised premises with respect to any tax fiscal year
(or portion thereof) which falls within the term of the Lease (the "MONTHLY
ESTIMATED TAX PAYMENT"). Landlord shall from time to time render to Tenant
a statement calculating the Monthly Estimated Tax Payment based on the
estimated amount of real estate taxes payable by Landlord during the tax
fiscal year in question, and shall adjust the Monthly Estimated Tax Payment
(a) within 30 days of the receipt by Landlord of the quarterly real estate
tax bill which sets the final assessment and final tax rate for the demised
premises for the tax fiscal year in question, and (b) promptly if at any
time Landlord determines that the Monthly Estimated Tax Payment is in
excess or less than 1/12 of the annual amount of real estate taxes payable
by Landlord. Promptly after any real estate tax payment made by or on
behalf of Landlord, Landlord shall render a statement to Tenant summarizing
the actual amounts of real estate taxes paid by Landlord and provide
documentation confirming payment to the taxing authority. Within 30 days of
the end of each tax fiscal year during the term of the Lease (and within 30
days of the earlier of either the end of the term of the Lease or the
determination of the final assessment and final tax rate for the demised
premises for the tax fiscal year during which the end of the term of the
Lease falls), Landlord shall issue to Tenant a final statement of taxes for
the tax fiscal year in question stating the total amount of real estate
taxes payable by Tenant, the total amount of the Monthly Estimated Tax
Payments paid by Tenant, and any excess or deficiency between those two
amounts, and within 30 days of such final determination, either, (y)
Landlord shall refund any excess payment of Monthly Estimated Tax Payments
to Tenant, or (z) Tenant shall pay any deficiency in the Monthly Estimated
Tax Payments to Landlord.
7. Ratification. Except as amended hereby, the terms and conditions of the
Lease shall remain unaffected. From and after the date hereof, all
references to the Lease shall mean the Lease as amended hereby.
Additionally, Landlord and Tenant each confirms and ratifies that, as of
the date hereof and to its actual knowledge, (a) the Lease is and remains
in good standing and in full force and effect, and (b) neither party has
any claims, counterclaims, set-offs or defenses against the other party
arising out of the Lease or the demised premises or in any way relating
thereto or arising out of any other transaction between Landlord and
Tenant.
8. General Provisions.
8.1 Applicable Law. This First Amendment shall be deemed to have been
executed and delivered within the Commonwealth of Massachusetts, and
the rights and obligations of Landlord and Tenant hereunder shall be
construed and enforced in accordance with, and governed by, the laws
of the Commonwealth of Massachusetts without regard to the laws
governing conflicts of laws.
8.2 Severability. If any term of this First Amendment or the application
thereof to any person or circumstances shall be invalid and
unenforceable, the remaining provisions of this First Amendment, the
application or such term to persons or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected.
8.3 Successors and Assigns. This First Amendment is binding upon and
shall inure to the benefit of Landlord and Tenant, their respective
agents, employees, representatives, officers, directors, divisions,
subsidiaries, affiliates, assigns, heirs, successors-in-interest and
shareholders.
8.4 Interpretation. Each party has cooperated in the drafting and
preparation of this First Amendment and, therefore, in any
construction to be made of this First Amendment, the same shall not
be construed against either party. In the event of litigation
relating to this
First Amendment, the prevailing party shall be entitled to
reimbursement from the other party of its reasonable attorneys'
fees and costs.
8.5. Entire Agreement. This First Amendment constitutes the entire
agreement of the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written
agreements and discussions, and may not be amended, waived,
discharged or terminated except by a written instrument signed by
all of the parties hereto.
[signatures on following page]
IN WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment
to be executed as a sealed instrument as of the day and year first above
written.
LANDLORD:
BerCar II LLC, BY ITS MANAGERS:
ALTID ENTERPRISES, LLC
By: /s/ Raymond F. Carye
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Raymond F. Carye, Manager
By: /s/ Barbara F. Carye
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Barbara F. Carye, Manager
SENNEN REALTY TRUST
/s/ Edward F. Carye
--------------------------------
Edward F. Carye, Trustee
/s/ Barbara J. Hausman
--------------------------------
Barbara J. Hausman, Trustee
TENANT:
BROOKS-PRI AUTOMATION, INC.
By /s/ Robert J. Therrien
----------------------------
Name: Robert J. Therrien
Title: President & CEO
ATTEST:
By /s/ Jeffrey J. Myrdek
------------------------------------
Name: Jeffrey J. Myrdek
Title: Director of Global Facilities