EXHIBIT 10.1
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into as of this 25th
day of January 2006 by and between SCIENCE PARK DEVELOPMENT CORPORATION, a
Connecticut corporation having its office at 00 Xxxxxxx Xxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxxx 00000 (the "LANDLORD"), and VION PHARMACEUTICALS, INC., a
Delaware corporation having its office at 0 Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxxx
00000, (the "TENANT") in modification of that certain lease between the Landlord
and the Tenant dated as of November 1, 2001 (the "LEASE").
WHEREAS, the Landlord and the Tenant are parties to the Lease which is
in full force and effect; and
WHEREAS, the Landlord and the Tenant wish to modify the Lease, as of
January 1, 2006, to extend the Term, to create Extension Options and an
additional Expansion Option and to adjust the rent payable and to make certain
other provisions, all as more fully set forth herein; and
NOW, THEREFORE, the Landlord and the Tenant agrees as follows:
1. In lieu of Article 2 of the Lease, Sections 2.1 and 2.1 are
hereby inserted as follows:
SECTION 2.1. TERM; COMMENCEMENT DATE. The term ("Term") of
this Lease commenced on November 1, 2001 ("COMMENCEMENT
DATE") and will expire as to the entire Leased Premises
(including Additional Leased Premises and Building 5 Space as
defined in Section 36 hereof) on December 31, 2010, unless
sooner terminated or extended in accordance with the Lease
(the "EXPIRATION DATE").
SECTION 2.2. OPTIONS TO EXTEND TERM. Subject to the terms and
conditions hereinafter provided, Tenant shall have the right
to extend the Term ("EXTENSION OPTION") exercisable as
hereinafter provided, for two successive extensive terms of
five years each, each such extension term ("EXTENSION TERM")
upon all of the terms, covenants and conditions set forth in
this Lease, except that after the expiration of the second
Extension Term, Tenant shall have no further right to extend
the Term. The exercise of one or both of such Extension
Options shall apply to all of the Leased Premises, including
any Additional Leased Premises and the Building 5 Space as
defined in Article 36 hereof. The Tenant shall have the right
to an Extension Option only so long as this Lease shall be in
full force and effect, and Tenant is not in default of this
Lease after any required notice
and expiration of any applicable cure periods, and that in the
case of the second Extension Option, Tenant shall have
exercised the first Extension Option. Base Rent for each Lease
Year or a portion thereof during any Extension Term shall be
that amount specified in Section 3.1(ii) hereof. Tenant shall
exercise its right to an Extension Term by giving Landlord
notice of its election to do so not less than six (6) months
prior to the expiration of the then applicable Term and, upon
the giving of such notice, this Lease shall be deemed to be
extended for the period of the relevant Extension Term without
the execution of any further lease or instrument.
2. Section 3.1 of the Lease is hereby amended to read, in full,
as follows:
3.1 BASE RENT.
(i) In lieu of the rent table set forth in previous version
of Section 3.1 of this Lease, commencing on January 1,
2006 and continuing for each month thereafter through the
Expiration Date of the initial term, Tenant shall pay to
the Landlord a base annual rent ("BASE RENT") in the
amount shown in the table below, which shall be due and
payable in twelve (12) equal monthly installments in
advance on the first (1st) day of each calendar month. If
the Commencement Date shall be any day other than the
first day of a calendar month, the Base Rent for such
calendar month shall be prorated on a per diem basis.
Annual Rent Monthly Installment Due
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$217,118.00 $18,093.17
(ii) During the first Extension Term, if any, Tenant shall pay
to Landlord a Base Rent equal to the greater of (a)
$217,118 per annum; or (b) ninety percent (90%) of the
then fair market annual rent for the Leased Premises.
During the second Extension Term, if any, Tenant shall
pay to Landlord a Base Rent equal to (i) the greater of
(a) ninety percent (90%) of the then fair market value
rent for the Leased Premises or (ii) the annual Base Rent
payable in the first Extension Term. The then current fair
market value annual rent of the Leased Premises shall be
determined by mutual agreement between the parties within
thirty (30) days of Tenant's notice of extension, taking
into account rents for similar space within the same
geographic area. If the parties fail to agree within said
time period, it shall be determined by real estate
appraisers who are licensed in Connecticut and members of
the Appraisal Institute with the MAI designation and who
are appointed in accordance with the provisions hereof
(the "Appraisers"). Landlord and Tenant shall each select
one Appraiser with at least ten (10) years of experience
in the New Haven commercial real estate market within ten
(10) days of the expiration of said thirty (30)-day
period. If the
two Appraisers agree on the fair market value annual rent
for the Leased Premises, their decision shall be binding
on the parties. If the two Appraisers are unable to agree
on the fair market value rent within fifteen (15) days of
their selection, they shall, within ten (10) days
thereof, appoint a third Appraiser with similar
qualifications and the determination of fair market value
rent by the third Appraiser so selected shall be final.
The decision of the third Appraiser shall be made within
ten (10) days of his/her selection and shall be binding
on the parties. Each party shall pay the fees and
expenses of the Appraiser it selects and the fees and
expenses of the third Appraiser, if one is necessary,
shall be shared equally by the parties.
4. In lieu of Article 36 of the Lease, the following Article 36
of the Lease is hereby inserted, as follows:
SECTION 36.1. OPTION TO EXPAND TO CONTIGUOUS SPACE. If, during
the term of this Lease, additional space in the Building
contiguous to the Leased Premises becomes available, Landlord
will notify Tenant in writing of such availability, together
with a copy of the floor plan of the available space and
Tenant shall have the option to lease such additional space
(the "ADDITIONAL LEASED PREMISES") from the Landlord for the
remainder of the Term of this Lease upon the same terms as the
Lease, as amended, including any Extension Term or Terms.
Tenant shall have ten (10) days after receipt of such notice
of the availability of the Additional Leased Premises to
exercise such option by giving written notice to the Landlord.
The commencement date for such Additional Leased Premises
shall be the date on which Landlord delivers to Tenant the
Additional Leased Premises in a vacant broom clean manner,
which date shall be no later than 185 days after Landlord's
notice of availability, nor earlier than thirty (30) days
after Landlord's notice. The parties shall enter into an
amendment to document the inclusion of the Additional Leased
Premises as part of the Premises.
SECTION 36.2. ADDITIONAL EXPANSION OR TERMINATION OPTION. In
addition to Tenant's rights under Section 36.1 above, at any
time on or before April 1, 2008 Tenant may request that the
Landlord provide a requested square footage ("Requested Square
Footage") elsewhere in Science Park (collectively "Building 5
Space"). Landlord must notify Tenant within 30 days following
the receipt of such request of the availability of the
Requested Square Footage of in Building 5 Space. If Landlord
can provide the Requested Square Footage of the Building 5
Space, Landlord shall deliver the Building 5 Space in a vacant
broom clean manner no later than sixty (60) days after
Landlord's notice to Tenant and no earlier than thirty (30)
days after such notice, which date of delivery shall be the
commencement date for such Building 5 Space, upon the same
terms of this Lease, as amended. The parties shall enter into
an
amendment to document the inclusion of the Building 5 Space
as part of the Premises. In no event, however, shall Landlord
be required to make available more than 8,000 square feet of
the Building 5 Space less whatever amount of Additional Leased
Premises has heretofore been leased pursuant to Section 36.1
hereof (the "NET MAXIMUM REQUIRED") and if Landlord has
Building 5 Space equal to the Net Maximum Required, Tenant
shall be required to lease the Net Maximum Required if
Tenant's Requested Square Footage was greater than the Net
Maximum Required. If Tenant's Requested Square Footage is less
than the Net Maximum Required, Tenant shall only be obligated
to lease the Requested Square Footage.
If Tenant's Requested Square Footage is equal or greater than
the Maximum Net Required, and the Landlord cannot provide at
least the Maximum Net Required, then Tenant may terminate this
lease effective December 1, 2008 without any termination
penalty, by providing notice of its intent to do so on or
before March 1, 2008.
If Tenant fails to deliver the initial request of availability
to Landlord of the Building 5 Space by April 1, 2008, the
rights granted to the Tenant in this Section 36.2 shall expire
and be of no further force or effect.
SECTION 36.3. ADDITIONAL PARKING AREAS. The rental of the
Additional Leased Premises and the Building 5 Space,
respectively, shall include the use of additional parking
areas equal to a parking ratio of 3 spaces for every 1,000
additional square feet of the Premises to be located on the
lots shown on Exhibit A hereto.
SECTION 36.4. REFERENCE IS TO LEASED PREMISES TO BE DEEMED TO
INCLUDE ADDITIONAL LEASED PREMISES AND BUILDING 5 SPACE.
Except as expressly modified by this Article 36, any
reference, express or implied, in this Lease to the Leased
Premises shall be deemed to include a reference to the
Additional Leased Premises and the Building 5 Space upon the
commencement of the term of each respective space.
Accordingly, the Base Rent, Tenant's Pro Rata Share of
Operating Expenses and other additional rent set forth in the
Lease shall be proportionately increased by the square footage
increase of the Premises as calculated in Section 3.3 A
thereof.
11. In all other respects, the Lease, as hereby amended, shall be
and remain in full force and effect.
Dated as of the date and year first above written.
WITNESSES: SCIENCE PARK DEVELOPMENT
CORPORATION
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------- -------------------------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxxxxx
Its President and Chairman of the Board
/s/ Xxxx Xxx Duly Authorized
--------------------------------------------
Name: Xxxx Xxx
VION PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X Xxxxxxx
-------------------------------------------- -------------------------------------------------
Name: Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Financial Officer
-------------------------------------------- Duly Authorized
Name:
STATE OF CONNECTICUT)
) ss.: New Haven; January 25, 2006
COUNTY OF NEW HAVEN )
On this date personally appeared before me Xxxxx Xxxxxxxxxxx, who
acknowledged himself to be the duly authorized President and Chairman of the
Board of Science Park Development Corporation, a Connecticut corporation, and
that the execution hereof was the free act and deed of such corporation and his
free act and deed as such officer.
IN WITNESS WHEREOF, I hereunto set my hand.
/s/ Xxxxxxx X. Xxxxxxx
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Commissioner of the Superior Court/
Notary Public
STATE OF CONNECTICUT)
) ss.: New Haven; January 25, 2006
COUNTY OF NEW HAVEN )
On this date personally appeared before me Xxxxxx X. Xxxxxxx, who
acknowledged himself/herself to be the duly authorized President and Chief
Financial Officer of Vion Pharmaceuticals, Inc., a Delaware corporation, and
that the execution hereof was the free act and deed of such corporation and
his/her free act and deed as such officer.
IN WITNESS WHEREOF, I hereunto set my hand.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Notary Public
(My commission expires: March 31, 2010)
