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.
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