EIGHTH AMENDMENT TO LEASE
Exhibit 10.23
EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (“Amendment”) made as of the 8th day of September, 2009, by and
between 111 XXXXXXX ASSOCIATES (“Landlord”), sole beneficiary under CHICAGO TITLE LAND TRUST
COMPANY, as successor trustee to LASALLE BANK NATIONAL ASSOCIATION, as successor trustee
(“Trustee”) to AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee under Trust
Agreement (“Trust”) dated January 1, 1991 and known as Trust No. 113370-03 (“Landlord”) and
BIOSANTE PHARMACEUTICALS, INC. (“Tenant”).
RECITALS:
WHEREAS, Landlord and Tenant entered into that certain Lease dated December 19, 2003, as
amended by First Amendment to Lease dated February 26, 2004, as modified by Letter Amendment dated
March 19, 2004, as amended by Second Amendment to Lease dated January 4, 2005, as amended by Third
Amendment to Lease dated January 27, 2006, as amended by Fourth Amendment to Lease dated March 7,
2007, as amended by Fifth Amendment to Lease dated November 2, 2007, as amended by Sixth Amendment
to Lease dated April 18, 2008, and as amended by Seventh Amendment to Lease dated November 17, 2008
(the original lease, as amended, the “Existing Lease”, and the Existing Lease as amended by this
Amendment, the “Lease”) which Lease demised to Tenant a portion of the 2nd floor known
as Suite 280 and Suite 220 (“Premises”) of the building known as 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxx (“Building”); and
WHEREAS, Tenant desires to extend the Term of the Lease for the entire Premises and the
Landlord and Tenant desire to amend the Existing Lease to modify the Existing Lease in certain
other respects.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the
Lease is hereby further amended as follows:
1. Recitals. The Recitals are true and correct in all material respects and are
incorporated as if fully set forth herein.
2. Defined Terms. Capitalized terms used but not defined herein shall have the
meaning assigned to them in the Existing Lease.
3. Term. The Term of the Lease is hereby extended to April 30, 2012 on the same terms
and conditions as set forth in the Lease, except as modified herein and unless sooner terminated
pursuant to the terms of the Lease.
4. Rent. As of April 1, 2010 the Base Rent payable under the Lease shall be as
follows:
| Annual | Monthly | |||
| Period | Base Rent | Installment | ||
| 5/1/10-4/30/12 | $171,000.00 | $14,250.00 |
5. Work. Landlord shall, at Landlord’s expense, do the following work within the
Premises: (a) replace the carpeting in Suite 280 with Building Standard carpeting (color to be
selected by Tenant from Building Standard palette; (b) provide new vinyl base in Suite 280;
(c) paint suite 280 in it’s entirety (d) paint around existing furniture in Suite 220 (furniture is
not to be moved and existing carpeting is not to be removed). The work to be performed by Landlord
shall commence as soon as Tenant and Landlord coordinate their schedules.
6. No Extended Term. Tenant’s option to extend the term of the Lease as provided in
the Seventh Amendment to the Lease is hereby deleted in its entirety. The Tenant shall have no
option to extend the Term of this Lease.
7. Real Estate Brokers. Tenant represents that it has dealt with, and only with, Van
Vlissingen and Co., as broker in connection with this Amendment, and that, insofar as Tenant knows,
no other broker negotiated this Amendment or is entitled to any commission in connection therewith.
Tenant agrees to indemnify and hold Landlord harmless from all damages, liability and expense
(including reasonable attorneys’ fees) arising from any claims or demands of any other broker or
brokers or finders in connection with its participating with Tenant in the negotiating of this
Amendment.
8. Lease in Full Force and Effect. Except for the provisions of this Amendment, all
the terms, covenants and conditions of the Lease and all the rights and obligations of Landlord and
Tenant thereunder, shall remain in full force and effect, and are not otherwise altered, amended,
revised or changed.
9. Estoppel. Tenant and Landlord hereby each acknowledge that as of the date hereof,
they have no claims arising under the Lease against the other party or its agents, or any one or
more of the foregoing, and that neither knows of any default or failure on the part of the other
party to keep or perform any covenant, condition or undertaking to be kept or performed by such
other party under the Lease.
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10. Exculpatory Provisions. It is expressly understood and agreed by and between the
parties hereto, anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made on the part of any
Landlord while in form purporting to be the representations, warranties, covenants, undertakings,
and agreements of such Landlord are nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants, undertakings, and agreements by such Landlord
or for the purpose or with the intention of binding such Landlord personally, but are made and
intended for the purpose only of subjecting such Landlord’s interest in the Building, the Land and
the Premises to the terms of this Amendment and for no other purpose whatsoever, and in case of
default hereunder by any Landlord (or default through, under, or by any of its agents or
representatives), the Tenant shall look solely to the interests of such Landlord in the Building
and Land; that neither Landlord nor Chicago Title Land Trust Company, as Trustee of Trust No
113370-03 shall have any personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained and no liability or duty shall
rest upon any Landlord which is a land trust to sequester the trust estate or the rents, issues and
profits arising therefrom, or the proceeds arising from any sale or other disposition thereof; that
no personal liability or personal responsibility of any sort is assumed by, nor shall at any time
be asserted or enforceable against, Chicago Title Land Trust Company, as Trustee under Trust No.
113370-03 or any beneficiaries under any land trust which may become the owner of the Building, on
account of this Amendment or on account of any representation, warranty, covenant, undertaking or
agreement of Landlord in this Amendment
contained, either express or implied, all such personal liability, if any, being expressly
waived and released by Tenant and by all persons claiming by, through, or under Tenant; and that
this Amendment is executed and delivered by the undersigned Landlord not in its own right, but
solely in the exercise of the powers conferred upon it as such Trustee.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed on the date first
above written.
| LANDLORD: 111 XXXXXXX ASSOCIATES |
||||
| By: | Van Vlissingen & Co., its authorized agent | |||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Its: President | ||||
| TENANT: BIOSANTE PHARMACEUTICALS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Its: CFO, 9/8/09 | ||||
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