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FIFTH AMENDMENT TO LEASE
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This Agreement made this 4th day of February, 1997, by and between Thomas
J. Flatley d/b/a The Flatley Company (hereinafter referred to as LANDLORD), and
Ibis Technology Corporation (hereinafter referred to as TENANT),
WITNESSETH:
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WHEREAS, by a certain Lease Agreement dated December 22, 1987, as amended
by a First Amendment to Lease dated July 19, 1990, a Second Amendment to Lease
dated August 2, 1991, a Third Amendment to Lease dated March 17, 1992, and a
Fourth Amendment to Lease dated March 7, 1994 (hereinafter collectively referred
to as the "Lease"), LANDLORD leased to TENANT, a certain premises described as
Cherry Hill Commerce Center, 32A and 32B Cherry Hill Drive, Danvers, MA 01923,
consisting of approximately 22,320 square feet of space, more particularly
described therein as ("Premises" "Expansion Premises 1", "Expansion Premises 2"
and "Expansion Premises 4", respectively), and,
TENANT wishes to lease from LANDLORD, and LANDLORD wishes to lease to
TENANT, an additional 4,800 square feet of space, commencing upon the Fifth
Amendment to Lease Commencement Date which shall be January 1, 1997 (as
hereinafter defined) which includes a 0% common area factor, located at Cherry
Hill Commerce Center, 26-42 Cherry Hill Drive, Danvers, MA 01923, as outlined on
Exhibit "A-6" attached hereto and made a part hereof (hereinafter referred to as
"Expansion Premises 5").
LANDLORD and TENANT desire to amend the Lease to reflect this and certain
additional changes which have been agreed to by the parties, and all changes as
set forth below shall become effective on the Fifth Amendment to Lease
Commencement Date (as hereinafter defined).
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged each to the other, the above named parties do hereby agree to amend
said Lease as follows:
1. The description of TENANT'S Premises as set forth in Section 1 of the
Lease, Incorporation of Basic Data, namely Premises, is hereby amended
in part, as follows:
...27,120 square feet of space, being the approximate size of the
Premises and the basis on which Annual Rent and Additional Rent shall
be paid by Tenant to Landlord, in the building located at Cherry Hill
Commerce Center, 32A and 32B Cherry Hill Drive, Danvers, MA 01923...
2. The Third Extended Term of the Lease, which expires December 31, 1996,
is hereby extended for a period of seven (7) years, commencing January
1, 1997 and expiring December 31, 2003 (hereinafter referred to as the
"Fourth Extended Term").
3. The term of this Fifth Amendment to Lease shall commence on January 1,
1997 (hereinafter referred to as the "Fifth Amendment to Lease
Commencement Date") and shall terminate December 31, 2003.
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Notwithstanding the foregoing, if Tenant's personnel shall occupy all
or any part of the Expansion Premises 5 for the conduct of its
business prior to the Fifth Amendment to Lease Commencement Date as
determined pursuant to the preceding paragraph, such date of occupancy
shall, for all intents and purposes of this Fifth Amendment to Lease,
be the Fifth Amendment to Lease Commencement Date.
Landlord and Tenant agree to execute a Supplemental Agreement setting
forth the actual Occupancy and Term Dates, once the same have been
established.
4. Effective January 1, 1997, Section 1 of the Lease, Incorporation of
Basic Data, namely Annual Rent, shall be deleted in its entirety and
replaced with the following:
The TENANT agrees to pay to LANDLORD, without deduction or offset,
rent at the rate of, payable in advance on the first day of each
month, in equal monthly installments of FIFTEEN THOUSAND TWO HUNDRED
FIFTY-FIVE AND 00/100 ($15,255.00) Dollars, for the period commencing
January 1, 1997 and continuing through and including December 31, 1999
and at that rate for any fraction of a month; and
The annual rent for the period commencing January 1, 2000 and
continuing through and including December 31, 2001, shall be ONE
HUNDRED EIGHTY-THREE THOUSAND SIXTY AND 00/100 ($183,060.00) Dollars
annually, which shall be adjusted to reflect the percentage increase,
if any, of The Consumer Price Index for Urban Wage Earners and
Clerical Workers, all cities average, (1982-84=100) issued by the U.S.
Department of Labor, or such other costs as may be hereafter
substituted by the United States Department of Labor for The Consumer
Price Index. If there is an upward change thereof from the
Commencement Date of this Lease, to December 31, 1999, then the annual
rent during this period shall be increased in accordance with such
adjusted value of the dollar, but in no event shall such rent be less
than the last annual rent paid by TENANT to LANDLORD; and
The annual rent for the period commencing January 1, 2002 and
continuing through and including December 31, 2003, shall be ONE
HUNDRED EIGHTY-THREE THOUSAND SIXTY AND 00/100 ($183,060.00) Dollars
annually, which shall be adjusted to reflect the percentage increase,
if any, of The Consumer Price Index for Urban Wage Earners and
Clerical Workers, all cities average, (1982-84=100) issued by the U.S.
Department of Labor, or such other costs as may be hereafter
substituted by the United States Department of Labor for The Consumer
Price Index. If there is an upward change thereof from January 1, 2000
to December 31, 2001 of this Lease, then the annual rent during this
period shall be increased in accordance with such adjusted value of
the dollar, but in no event shall such rent be less than the last
annual rent paid by TENANT to LANDLORD.
5. Effective on January 1, 1997, the Lease is hereby amended in part, by
inserting the following section:
SECTION 40 - LATE PAYMENT
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If TENANT fails to pay any installment of Annual Rent and/or
Additional Rent within five (5) days of the first (lst) day of the
calendar month when such
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installment becomes due and payable, TENANT shall pay to LANDLORD a
late charge of five percent (5%) of the amount of such installment,
and, in addition, such unpaid installment shall bear interest at the
rate per annum which is four percent (4%) greater than the "base
lending rate" then in effect at The Wall Street Journal, or the
highest rate permitted by law, whichever may be less; with it being
the express intent of the parties that nothing herein contained shall
be construed or implemented in such manner as to allow LANDLORD to
charge or receive interest in excess of the maximum legal rate. then
allowed by law. Such late charge and interest shall constitute
Additional Rent hereunder due and payable with the next monthly
installment of Annual Rent due.
6. Effective January 1, 1997, the Lease is hereby amended in part, by
inserting the following section:
SECTION 41 - TENANT'S OPTION TO EXPAND
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In the event TENANT has not been in default of any of the terms,
conditions and covenants of this Lease Agreement and any Amendments
made hereto during the term hereof, after the expiration of any
applicable notice and grace period, TENANT shall have the option, to
lease additional space from the LANDLORD within Cherry Hill Commerce
Center, Danvers, MA 01923, (as delineated on Exhibit "A-7", attached
hereto and made a part hereof), subject, but not limited to, the
following terms and conditions:
1. TENANT'S additional space requirement must be a minimum of 9,600
square feet (hereinafter referred to as the "Expansion Space").
2. LANDLORD shall notify TENANT approximately six (6) months prior to
Expansion Space availability and TENANT must notify LANDLORD in
writing of its desire to lease said Expansion Space or not to lease
said Expansion Space within thirty (30) days from LANDLORD's said
notice. If TENANT does not respond within thirty (30) days as stated
herein, said Option to Expand shall be deemed null and void.
3. TENANT must occupy said Expansion Space and the Premises demised
hereunder for a term of no less than five (5) years which shall be
coterminous with this Fifth Amendment to Lease.
4. Rent for said Expansion Space shall be at then rental rate being
paid by TENANT.
5. TENANT shall pay to LANDLORD in three (3) monthly installments, the
amount of FIVE THOUSAND FOUR HUNDRED AND 00/100 ($5,400.00) Dollars,
beginning on the date as set forth herein, in addition to TENANT'S
annual rent, in order to maintain this Option to Expand (herein
referred to "Option Payments"). Said Option Payments shall be due as
follows:
February 1, 1997: $5,400.00
May 1, 1997: $5,400.00
September 1, 1997: $5,400.00
Only in the event TENANT exercises said Option to Expand, then the
above-referenced Option Payments shall
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be applied to TENANT'S account and therefore the Rent for said
Expansion Space shall commence at such time as the Option Payments
have been fully recaptured. In the event TENANT shall not exercise
this Option to Expand as stated herein, then LANDLORD shall retain the
above-referenced Option Payments and said Option Payments shall not be
applied to TENANT'S account or refunded to TENANT.
In the event that, LANDLORD is unable to make the Expansion Space
available to TENANT on or before August 1, 1998, LANDLORD shall pay to
TENANT on such date the sum of $16,200.00, which equals the total
amount of Option Payments made hereunder, with interest thereon from
the time paid by TENANT as required by this Section 41, at the
passbook savings rate then in effect at Fleet Bank.
Such repayment by LANDLORD shall be the only remedy, either at law or
in equity, available to TENANT in the event of LANDLORD'S failure to
make the Expansion Space available at the time specified above, except
for LANDLORD'S willful failure to do so.
It is hereby agreed between the parties that immediately following
LANDLORD'S receipt of TENANT'S notice indicating its desire to lease
Expansion Space, LANDLORD and TENANT shall enter a mutually acceptable
Amendment to this Lease setting forth the terms and provisions set
forth hereinabove.
7. Effective on January 1, 1997, the Lease is hereby amended in part, by
inserting the following section:
SECTION 43 - FINANCIAL INFORMATION
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It is hereby understood and agreed that TENANT will supply to the
LANDLORD, on an annual basis, a copy of TENANT'S audited financial
statement within ninety (90) days following TENANT'S fiscal year end.
Any information obtained by LANDLORD pursuant to the provisions of
this Paragraph shall be treated as confidential, except that LANDLORD
may disclose such information to its lenders.
8. Effective on January 1, 1997, the Lease shall be amended in part by
inserting the following section:
SECTION 44 - OPTION TO EXTEND
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In the event TENANT has not been in default of any of the terms,
conditions and covenants of this Lease Agreement and any Amendments
made hereto during the Term hereof, after the expiration of any
applicable notice and grace period, LESSEE shall have the right to
extend the Term of this Lease for an additional period of five (5)
years, subject to the following terms and conditions:
1. Annual Rent for the Premises shall be at the then current market
rent rate and terms, but in no event shall such rental be less
than the last annual rent paid by TENANT.
2. TENANT must exercise this option no earlier than nine (9)
calendar months but no later than six (6)
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calendar months prior to the termination date of this Lease by
sending written notice to LANDLORD by registered or certified
mail.
Thereupon, this Lease shall be deemed extended for an additional
period of five (5) years, upon all of the same terms and conditions of
this Lease and any Amendments made hereto with the exception of the
annual rent stipulated hereinabove.
In the event the credit worthiness of Tenant is not sufficient in
LANDLORD'S reasonable discretion to assure the future performance of
TENANT'S obligations under the lease during the Renewal Term, LANDLORD
may nullify TENANT'S exercise of this renewal option.
9. TENANT acknowledges that it has examined and inspected the Premises
and is familiar with the physical condition thereof. TENANT further
acknowledges (1) that LANDLORD has not made and does not hereby make
any representations regarding the physical condition of the Premises
and (2) that there are no warranties, either expressed or implied,
regarding the condition of the Premises. Any such warranties which may
exist, are hereby expressly released and waived. Accordingly, TENANT
hereby agrees to accept the Premises in their "as is" condition.
10. TENANT shall not make any structural improvements or alterations to
the Expansion Premises 5, without first obtaining LANDLORD'S prior
written approval. TENANT shall not make any non-structural
improvements or alterations to the Expansion Premises 5, in excess of
$20,000.00, without first obtaining LANDLORD'S prior written approval.
It is further understood and agreed that LANDLORD'S prior written
approval is contingent upon TENANT submitting to LANDLORD, TENANT'S
construction plans for any structural or non-structural improvements
in excess of the stated amount as set forth herein, to the Expansion
Premises 5. All such allowed improvements shall be at TENANT'S sole
cost and expense. Any improvements made by the TENANT shall become the
property of the LANDLORD at the termination of occupancy as provided
herein.
11. Except where this Fifth Amendment to Lease specifically changes same,
all other terms, conditions and covenants of the original Lease
Agreement shall remain the same, where applicable, and are hereby
reaffirmed.
12. The submission of this document is for examination and negotiation and
does not constitute an offer, and this document shall become effective
and binding only upon the execution thereof by both LANDLORD and
TENANT, regardless of any written or verbal representation of any
agent, manager or other employee of LANDLORD to the contrary. All
negotiations, consideration, representations and understandings
between LANDLORD and TENANT are incorporated herein and the Lease and
this Amendment expressly supersede any proposals or other written
documents relating hereto. The Lease and this Amendment may be
modified or altered only by written agreement between LANDLORD and
TENANT, and no act or omission of any employee or agent of LANDLORD
shall alter, change or modify any of the provisions thereof.
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IN WITNESS WHEREOF, the parties hereto have signed and sealed this
instrument on the day and year first above written.
LANDLORD Thomas J. Flatley d/b/a
The Flatley Company
/s/ Sarah V. Capaccioli /s/ Thomas J. Flatley
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WITNESS By Thomas J. Flatley
Its President
TENANT Ibis Technology Corporation
/s/ Nancy A. Bailey /s/ Timothy J. Burns
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WITNESS By Timothy J. Burns
Its CFO
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COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF NORFOLK )
February 21, 1997
Then personally appeared Thomas J. Flatley to me known to be the individual
who acknowledged himself to be the President of The Flatley Company, LANDLORD,
and that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Norfolk
County, Braintree, Massachusetts, this 21st day of February, 1997.
/s/ Francesca Austin
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Notary Public
My commission expires: 9/4/03
STATE OF MASSACHUSETTS )
) SS.
COUNTY OF ESSEX )
February 4, 1997
Then personally appeared Timothy J. Burns to me known to be the individual
who acknowledged himself to be the C.F.O. of Ibis Technology Corporation,
TENANT, and that he, as such, being authorized to do so, executed the foregoing
instrument and acknowledged the execution thereof to be his free act and deed
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal at Essex
County, Danvers, Massachusetts, this 4th day of February, 1997.
/s/ Nancy J. McKenna
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Notary Public
My commission expires: 8/31/01