ORANGE COUNTY LEASE MODIFICATION AGREEMENT NO. 1
EXHIBIT
10.1
STATE OF
NORTH CAROLINA
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ORANGE
COUNTY
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THIS
LEASE MODIFICATION AGREEMENT NO. 1 (this “Agreement”) is made and
entered into as of this 16th day of February, 2009 (the “Execution
Date”), by and between The
Exchange at Meadowmont LLC, a North Carolina limited liability
company (“Landlord”), and Pozen, Inc., an Delaware
corporation, authorized to conduct business in the State of North Carolina
(“Tenant”).
WITNESSETH:
WHEREAS,
Landlord and Tenant entered into that certain Lease Agreement dated November 21,
2001 (the “Lease”), pursuant to which Tenant agreed to lease from Landlord
approximately 17,009 square feet of space (the “Leased Premises”) contained in
Suite 400 in the building known as Exchange West and located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Building”). (The Lease is incorporated herein by reference in its
entirety. Any capitalized term used and not otherwise defined herein
shall have the meaning ascribed to it in the Lease.); and
WHEREAS,
the current Expiration Date of the Lease is February 28, 2010; and
WHEREAS,
Exhibit G of
the Lease (Renewal Options) sets forth two (2) options to renew the Term of the
Lease for a period of either three (3) or five (5) years, at Tenant’s
discretion, on the terms and conditions set forth therein; and
WHEREAS,
the Lease provides for a separating Base Operating Expense Factor and Real
Estate Tax Stop and the parties wish to combine the factors and include the Tax
Stop (and tax related expenses) with the Operating Expense Factor and in the
Operating Expenses; and
WHEREAS,
Exhibit H of
the Lease (First Offer Rights) sets forth two (2) separate options for Tenant to
lease additional space in the Building; and
WHEREAS
Landlord and Tenant desire to renew the Term of the Lease for five (5) years and
seven (7) months and make certain other modifications to the Lease, upon the
terms and conditions contained herein.
NOW,
THEREFORE, in consideration of the premises, rent, mutual covenants and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby
agree as follows:
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1. Renewal of Term/Basic Lease
Provisions. Effective as of the Execution Date, the Lease is
hereby renewed for a period of five (5) years and seven (7) months, so that the
revised Expiration Date of the Lease shall be September 30, 2015. The
time period from March 1, 2010, through September 30, 2015, is hereby deemed to
be the “Renewal Term”. Therefore, effective as of the commencement of
the Renewal Term (i.e.,
March 1, 2010) or the Execution Date, as applicable, Section 2.01 of the
Lease is hereby amended as follows:
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A.
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Effective
as of the Execution Date, Subsection
2.01(d) of the Lease (Base Rent) is hereby amended as
follows:
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(i)
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Monthly
Base Rent during the Renewal Term will be changed to equal Twenty-six
Dollars and Seventy-three Cents ($26.73) per square foot contained in the
Leased Premises, per annum;
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(ii)
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Monthly
Base Rent is hereby abated for months one (1) through six (6) of the
Renewal Term and month 37 of the Renewal Term;
and
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(iii)
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Monthly
Base Rent shall be escalated by two percent (2.0%) increases each March
1st throughout the Renewal Term. Therefore, effective as of the
Execution Date, the Lease is hereby amended by modifying the Base Rent
chart currently set forth in Subsection
2.01(d) of the Lease to the
following:
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Date(s)
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Price
Per Square Foot, per annum (rounded)
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Square
Feet
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Annual
(or for time period noted)
Base Rent
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Monthly
Base Rent
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3/1/08
through 2/28/09
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$23.71
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17,009
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$403,207.44
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$33,600.62
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3/1/09
through 2/28/10
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$24.21
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17,009
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$411,859.32
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$34,321.61
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3/1/10
through 8/31/10
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$0.00
($26.73/SF
Base
Rent
abated)
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17,009
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$0.00
($26.73/SF
Base
Rent
abated for 6 months)
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$0.00
($26.73/SF
Base
Rent
abated)
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9/1/10
through 2/28/11
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$26.73
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17,009
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$227,325.30
(for
6 months)
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$37,887.55
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3/1/11
through 2/29/12
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$27.26
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17,009
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$463,743.60
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$38,645.30
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3/1/12
through 2/28/13
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$27.81
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17,009
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$473,018.52
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$39,418.21
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3/1/13
through 3/31/13
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$0.00
($27.81/SF
Base
Rent
abated)
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17,009
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$0.00
($27.81/SF
Base
Rent
abated 1 month)
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$0.00
($27.81/SF
Base
Rent
abated)
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4/1/13
through 2/28/14
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$28.37
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17,009
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$442,272.27
(for
11 months)
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$40,206.57
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3/1/14
through 2/28/15
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$28.93
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17,009
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$492,128.40
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$41,010.70
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3/1/15
through 9/30/15
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$29.51
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17,009
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$292,816.37
(for
7 months)
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$41,830.91
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Tenant
shall also continue to be responsible for Additional Rent payments during the
Renewal Term pursuant to Article 4 of the Lease; and
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B.
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(i)
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Effective
as of the Execution Date, Subsection
2.01(e) of the Lease is hereby amended by changing the
Base Operating Expense Factor from “$4.75” to that of “$6.75”
and deleting the reference to the “Base Real Estate Tax
Stop”; and
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(ii) Effective
as of the commencement of the Renewal Term, Subsection 2.01(e)
of the Lease is hereby amended by changing the Base Operating Expense Factor
from “$6.75” to that of “$8.75”; and
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C.
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Effective
as of the Execution Date, Subsection
2.01(g) of the Lease (Term) is hereby amended to reflect the
addition of the Renewal Term to the Term of the Lease by (i) changing the
number “8” next to the word “Year(s)” to the number “13”, and (ii)
changing the number “0” next to the word “Month(s)” to the number “7”;
and
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D.
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Effective
as of the Execution Date,
Subsection
2.01(h) of the Lease (Expiration Date) is hereby amended to reflect
the Renewal Term by changing the current Expiration Date of “February 28,
2010”, to that of “September 30,
2015”.
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2. Operating Expense
Adjustment. Landlord and Tenant specifically acknowledge and
agree that, effective as of the Execution Date, the Base Operating Expense
Factor shall include the Base Real Estate Tax Stop. Therefore, all
references in the Lease to the “Operating Expense and Real Estate Tax
Adjustment”, including those in Sections 4.03 and
4.04, shall
change to the “Operating Expense Adjustment”. As a result of the
change the definition for Operating Expenses shall include real estate taxes
that were formerly provided for in the separate Real Estate Tax
adjustment.
4. Security for the
Lease. Effective as of the commencement of the Renewal Term,
Section 4.06
(Security for the Lease) is hereby amended by reducing the Letter of Credit
during the Renewal Term to equal $42,000.00, and the chart set forth in Section 4.06 of the
Lease is amended accordingly.
5. Refurbishment
Fee. Landlord and Tenant specifically acknowledge and agree
that, effective prior to the commencement of the Renewal Term, but not earlier
than December 1, 2009, Landlord shall provide Tenant with an allowance in the
amount of $51,027.00 to refurbish the Leased Premises pursuant to the terms of
the Lease, and the Lease is hereby amended accordingly.
6. Renewal
Option. Effective as of the Execution Date, Exhibit G of the
Lease is hereby amended by deleting the first Renewal Option set forth in
section “A” therein so that the Tenant shall have one (1) remaining option to
renew the Term of the Lease, as set forth in Section “B” of Exhibit G to the
Lease, except that Tenant’s notice to Landlord to exercise the Second Renewal
Option shall be reduced to seven (7) months.
7. First Offer
Rights. In regards to the First Offer Rights provided in Exhibit H of the
Lease, Landlord and Tenant specifically acknowledge and agree that:
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(i)
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the
time frame for Tenant to exercise the Second First Offer Right has expired
so the Second First Offer Right is no longer of any force or
effect,
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(ii)
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the
remaining First Offer Right shall be amended as
follows:
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a.
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paragraph
A of the First Offer Right is hereby amended to provide that Tenant has
the right to exercise the First Offer Right anytime during the Term, as it
may be extended, and not just during the initial
Term;
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b.
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paragraph
A of the First Offer Right is hereby amended to reflect that the defined
term the “Space” shall also include the 11,601 square feet of space
contained in Suite 300 of the Building, as shown on Exhibit H-1
attached hereto; and
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c.
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paragraph
A1 of the First Offer Right shall be modified by deleting the language
currently therein and inserting the following in lieu
thereof:
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Prior to
Landlord leasing the Space to any third party, Landlord shall provide Tenant
with notice of the availability of the Space (“Landlord’s Written
Offer”). Tenant hereby acknowledges that Landlord’s Written Offer
may, among other terms, contain a requirement for Tenant’s prompt occupancy of
the Space. The terms for the lease of the Space shall be as provided
for in this Exhibit.
and
the Lease is hereby amended accordingly. Notwithstanding the
foregoing, Landlord and Tenant specifically acknowledge and agree that the First
Offer Right with respect to the Space on the third floor of the Building is
subject to any and all prior existing rights of third parties (i.e., Affiliated Engineers,
East, P.C. and Higgins, Frankstone, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.) and Landlord's
hereby reserved right to continue to lease (by lease amendment, new lease
agreement or other written agreement) the Space contained on the third floor of
the Building to the tenant, assignee or subtenant occupying the Space contained
on the third floor of the Building, whether or not pursuant to a written option
to renew or extend a lease.
8. Brokerage/Indemnification. Landlord
and Tenant each represent to the other that they, respectively, have had no
dealings with any real estate broker or agent in connection with the negotiation
of this Agreement except for Capital Associates Management, LLC, Landlord’s
broker, and ▇▇▇▇▇ Lang LaSalle Americas, Inc. Tenant’s broker, and that they,
respectively, know of no other real estate broker or agent who is entitled to a
commission or finder’s fee in connection with this Agreement. Each
party shall indemnify, protect, defend and hold harmless the other party against
all claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including, but not limited to, reasonable attorneys’ fees) for any
leasing commission, finder’s fee or equivalent compensation alleged to be owed
on account of dealings with any other than the above-stated real estate brokers
by the party from whom indemnification is sought. Landlord shall pay
the commissions or fees due with respect to the Renewal Term to the above-stated
Landlord’s broker. Landlord’s broker shall then pay Tenant’s
broker.
9. Affirmation of Lease
Terms. Except as hereinabove modified, the original terms and
conditions of the Lease shall remain in full force and effect.
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10. Binding
Agreement. Upon execution by Tenant, this Agreement shall be
binding upon Tenant, its legal representatives and successors, and, to the
extent assignment may be approved by Landlord hereunder, Tenant’s
assigns. Upon execution by Landlord, this Agreement shall be binding
upon Landlord, its legal representatives, successors and
assigns. This Agreement shall inure to the benefit of Landlord and
Tenant, and their representatives, successors and permitted
assigns.
11. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which taken together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused
this Agreement to be executed by their respective duly authorized
representatives this the day and year first above written.
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LANDLORD:
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The
Exchange at Meadowmont LLC, a North Carolina limited liability
company
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By:
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Capital
Associates Management, LLC, a North Carolina limited liability company,
Manager
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By:
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/s/ Huge D. Little, Manager |
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▇▇▇▇
▇. ▇▇▇▇▇▇,
Manager
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TENANT:
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Pozen
Inc., a Delaware corporation
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| Title: | Chief Financial Officer |
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