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Exhibit
10.41
FIRST AMENDMENT TO LEASE
AGREEMENT
DATED OCTOBER 29,
2007
THIS FIRST AMENDMENT TO
LEASE AGREEMENT (“ Amendment ”) is made and
executed as of October 29, 2007 by and among BONE (DE) QRS 15-12,
INC., a Delaware corporation, BONE (DE) LLC, a Delaware Limited
liability company (collectively, “ Landlord ”),
each with an address c/o W.P. Carey & Co. LLC,
50 Rockefeller Plaza, 2nd Floor, New York, New York 10020 and
HOLOGIC, INC., a Delaware corporation (“Tenant”), with
an address of 35 Crosby Drive, Bedford, Massachusetts
01730.
RECITALS :
WHEREAS , pursuant to
the terms of a Lease Agreement dated August 28, 2002 (the
“ Lease ”), BONE (DE) QRS 15-12, Inc.
(“BONE QRS”) leased to Tenant and Tenant leased from
Landlord the real property described therein (the “ Leased
Premises ”) upon the terms set forth therein;
WHEREAS, pursuant to
an Amended and Restated Co-Tenancy Agreement between BONE QRS and
BONE (DE) LLC, BONE QRS owns an undivided 64% interest in the Lease
and property comprising the Leased Premises and BONE (DE) LLC owns
an undivided 36% interest in the Lease and property comprising the
Leased Premises; and
WHEREAS , Landlord and
Tenant desire to amend the Lease as more particularly set forth
herein.
NOW, THEREFORE ,
incorporating the recitals hereinabove set forth by reference and
intending to be legally bound hereby, and in consideration of the
mutual covenants contained herein and other good and valuable
consideration, the receipt whereof is hereby acknowledged, the
parties hereto covenant and agree as follows:
1. Capitalized Terms .
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Lease.
2. EBITDAR . The definition of
“EBITDAR” in Section 2 of Exhibit “F”
of the Lease is hereby deleted and the following shall be inserted
in lieu thereof:
“ EBITDAR
” means, with respect to any fiscal period, the
Tenant’s and its Subsidiaries consolidated net earnings (or
loss), minus extraordinary gains, plus interest
expense, income taxes, depreciation and amortization, rental
expense, and non-cash charges related to restructuring or
acquisition for such period, as determined in accordance with GAAP;
provided, however, that during any fiscal period commencing on
September 29, 2007, and expiring on June 30, 2009 for
which EBITDAR is being determined, (i) EBITDAR shall be
determined on a pro forma basis for such period as if
Tenant’s Acquisition (as hereinafter defined) had been made
or consummated as of t
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