FIRST AMENDMENT TO OFFICE SPACE LEASE
Exhibit 10.12
FIRST AMENDMENT TO OFFICE SPACE LEASE
This First Amendment to Office Space Lease (this “Amendment”) is made and entered into this
1st day of November, 2010, by and between WASHINGTON STREET ASSOCIATES II, L.P., a
Pennsylvania limited partnership having an office at 0000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxx
xx Xxxxxxx, XX 00000 (“Landlord”), and NUPATHE INC., a Delaware corporation having an office at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (“Tenant”).
RECITALS
WHEREAS, pursuant to that certain Office Space Lease dated January 10, 2008 (the “Lease”),
Landlord currently leases to Tenant that certain premises consisting of approximately eleven
thousand seventy-five (11,075) rentable square feet of office space (the “Initial Premises”) on the
second (2nd) floor of that certain building known as Millennium III and located at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (the “Building”); and
WHEREAS, Landlord and Tenant desire to amend the Lease for the purpose of, inter
alia, Tenant leasing certain additional storage space located on the ground level of the
Building, upon the terms, conditions and agreements set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and intending to be legally bound hereby,
Landlord and Tenant agree as follows:
1. Incorporation of Recitals. The recitals set forth above are hereby incorporated
herein by reference as if set forth in full in the body of this Amendment. Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to them in the Lease.
2. Lease of Additional Premises; Term. The Lease is hereby amended to provide that
Landlord hereby demises unto Tenant, and Tenant hereby leases from Landlord, all that certain space
containing approximately two hundred forty (240) rentable square feet of storage space on the
ground level (the “Additional Premises”) of the Building, as shown on Exhibit A attached hereto and
made a part hereof. The term of the Lease for the Additional Premises shall commence on October
18, 2010 (the “Additional Premises Commencement Date”) in accordance with the terms of Section 3(a)
of this Amendment. The lease term for the Additional Premises shall be coterminous with the Term
for the Initial Premises, which, for the avoidance of doubt, expires on March 31, 2013 unless
otherwise terminated or extended pursuant to the terms of the Lease. It is the mutual intention of
Landlord and Tenant that the Additional Premises shall be leased to and occupied by Tenant on and
subject to all of the terms, covenants and conditions of the Lease, except as otherwise expressly
provided to the contrary in this Amendment. Landlord and Tenant hereby agree that for all periods
under the Lease from and after the Additional Premises Commencement Date, the defined term
“Premises,” as defined in the Lease, shall mean and include both the Initial Premises and the
Additional Premises, containing a total of eleven thousand three hundred fifteen (11,315) rentable
square feet, unless the context otherwise requires or this Amendment expressly provides otherwise.
3. Acceptance of Additional Premises; Improvement Rebate Amount; Partitioning.
(a) Tenant accepts the Property and the Additional Premises in their “AS IS” “WHERE IS”
condition or state. Landlord shall have no obligations to make any improvements to the Premises.
(b) All references in the Lease to the “Improvement Rebate Amount” shall be deemed to apply
only to the Initial Premises; Tenant shall not receive all or any portion of the Improvement Rebate
Amount with regard to the Additional Premises.
(c) Landlord, at Tenant’s sole cost and expense, shall partition the Additional Premises from
the remainder of the storage space shown on Exhibit A. Tenant shall reimburse Landlord for
Landlord’s costs and expenses related thereto within thirty (30) days of receipt of Landlord’s
invoice therefor.
4. Permitted Use. The permitted use of the Additional Premises shall be for the
storage of clinical supplies (the “Additional Premises Permitted Use”), and for no other purpose,
subject to all applicable laws and all rules and regulations of the Building and insurers of the
Building. From and after the Additional Premises Commencement Date the defined term “Permitted
Use,” as defined in the Lease, shall mean and include both the Permitted Use with respect to the
Initial Premises and the Additional Premises Permitted Use.
5. Fixed Basic Rent for Additional Premises. In addition to Fixed Basic Rent for the
Initial Premises, as provided in the Lease, beginning on the Additional Premises Commencement Date,
Tenant shall pay Fixed Basic Rent to Landlord for the Additional Premises (“Additional Premises
Fixed Basic Rent”), calculated and payable as follows:
| Rentable Square | Rate Per Rentable | Monthly | ||||||||||||||
| Year | Feet | Square Foot | Yearly Rate | Installment | ||||||||||||
10/18/10
– 3/31/13 |
240 | $ | 8.00 | $ | 1,920.00 | $ | 160.00 | |||||||||
Landlord and Tenant hereby agree that for all periods under the Lease from and after the
Additional Premises Commencement Date, the word “Fixed Basic Rent,” as defined in the Lease, shall
mean and include both Fixed Basic Rent for the Initial Premises and the Additional Premises Fixed
Basic Rent. Further, the reference in Section G of the Preamble to an abatement of Fixed Basic Rent
for a portion of the Initial Premises shall not be deemed to apply to the Additional Premises.
6. Parking. The fourth (4th) sentence in Section 2 is hereby deleted in its
entirety and replaced with the following:
“Tenant’s interest in the Premises shall include, at no cost to
Tenant, the right to use up to three and a half (3.5) unreserved
parking spaces for every one thousand (1,000) rentable square feet
within the Initial Premises.”
7. Operating Expenses; Utility Charges; Tenant’s Operating Expenses Share.
Notwithstanding anything to the contrary contained in this Amendment or in the Lease: (i) Tenant
shall not be responsible for the payment of any Operating Expenses with respect to the Additional
Premises; (ii) Tenant shall not be responsible for the payment of any charges for electricity,
light, heat, air conditioning, HVAC or other utilities with respect to the Additional Premises,
whether or not such usage is sub-metered; and (iii) neither the Additional Premises, nor the
rentable square feet of the Additional Premises, shall be included in calculating the Tenant’s
Operating Expenses Share or the Tenant’s Operating Expenses Share of any payment required to be
made by Tenant under this Amendment or the Lease (including, without limitation, payments relating
to Operating Expenses or charges for electricity, light, heat, air conditioning, HVAC or other
utilities).
8. Electric Sub-Meters. The third (3rd) sentence in Section 12 is hereby
deleted in its entirety and replaced with the following:
“A separate sub-meter has been installed in the Initial Premises and
Tenant shall pay Landlord for the consumption of electricity based
upon its sub-metered usage as Additional Rent and Landlord shall not
charge a xxxx-up for such electricity.”
9. Common Area Utility Charges. The seventh (7th) sentence of Section 12 is
hereby deleted in its entirety and replaced with the following:
“In addition, Tenant agrees to pay as Additional Rent Tenant’s
Operating Expenses Share of all charges for electricity, light, or
other utilities used generally at the Property (i.e., not within
tenant occupied premises of the Building).”
10. Renewal Option. For purposes of clarity, the Renewal Option set forth in Section
45 of the Lease shall also include the Additional Premises.
11. Broker’s Commission. Landlord and Tenant each represent and warrant to the other
party hereto that Binswanger of Pennsylvania, Inc. is the sole broker with whom Landlord or Tenant,
as applicable, has negotiated in bringing about this Amendment. Landlord agrees to indemnify and
hold Tenant harmless from any and all claims and expenses of Binswanger of Pennsylvania, Inc
arising out of or in connection with the negotiation of or the entering into this Amendment by
Landlord and Tenant. Landlord and Tenant each agree to indemnify and hold the other party hereto
harmless from any and all claims and expenses of any other broker that the indemnifying party has
dealt with arising out of or in connection with the negotiation of or the entering into this
Amendment by Landlord and Tenant.
12. Binding Effect. The Lease, as amended hereby, shall be binding upon and inure to
the benefit of Landlord and Tenant and their respective permitted successors and assigns. Except
as specifically amended and modified hereby, the Lease and each of the terms, covenants and
conditions set forth therein shall remain in full force and effect and are in all respects adopted,
ratified and confirmed.
13. Entire Agreement. The Lease, as amended hereby, is a complete statement of all of
the terms of the arrangements between the parties with respect to the matters pertaining to the
Premises, supersedes any previous agreements and understandings between the parties with respect to
those matters, and cannot be changed or terminated orally.
14. Governing Law. This Amendment shall be governed by and construed in accordance
with the substantive laws of the Commonwealth of Pennsylvania.
15. Headings. The section headings of this Amendment are for reference purposes only
and are to be given no effect in the construction or interpretation of this Amendment.
16. Counterparts. This Amendment may be executed electronically and in two (2) or
more counterpart copies, all of which counterparts shall have the same force and effect as if the
parties hereto had executed a single copy of this Amendment.
17. Severability. Any provision of this Amendment that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of this Amendment or
such provision, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment or caused this Amendment
to be executed by their duly authorized representatives the day and year first above written.
| LANDLORD: WASHINGTON STREET ASSOCIATES II, L.P., a Pennsylvania limited partnership |
||||
| By: |
Washington Street Associates II Acquisition Corporation, a Pennsylvania
corporation, its sole general partner |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Xxxxxxx Xxxxx, President | ||||
| TENANT: NUPATHE INC., a Delaware corporation |
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| By: | /s/ Xxxx X. Xxxxxxxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxxxxxxx | ||||
| Title: Chief Executive Officer | ||||
EXHIBIT A
Drawing of Premises follows this cover page
