FIRST AMENDMENT TO LEASE
EXHIBIT
10.17
EXECUTION
COPY
FIRST
AMENDMENT TO LEASE
This
FIRST AMENDMENT TO LEASE made as of this _______ day
of __________, 2006, by and
between CambridgePark 125 Realty Corporation, a Delaware corporation
("Landlord") and Javelin Pharmaceuticals, Inc., a Delaware corporation
("Tenant").
WITNESSETH:
WHEREAS,
Landlord and Innovative Drug Delivery Systems, Inc. ("Original Tenant") entered
into a lease dated , 2005, (the "Lease"), for approximately 3,131
square feet of Rentable Floor Area (the "Premises") located on the first (1st)
floor of the building known as 000 XxxxxxxxxXxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
(the "Building") as more particularly described in the Lease;
WHEREAS,
Tenant succeeded to the interest of Original Tenant under the Lease;
and
WHEREAS,
Landlord and Tenant wish to expand and relocate the Premises, extend the Term of
the Lease, and otherwise amend the Lease as set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant agree to amend the Lease as
follows:
1. All
capitalized terms used herein and not defined herein shall have the meanings
ascribed
to them in the Lease.
2. Section
1.1 of the Lease is hereby amended by deleting the data which corresponds to the
following subjects and replacing it with the data set forth below which follows
such subject:
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"TENANT:
"TENANT'S
ADDRESS (FOR NOTICE
AND BILLING):
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Javelin
Pharmaceuticals, Inc., a Delaware corporation"
000
XxxxxxxxxXxxx Xxxxx
Xxxxxxxxx,
XX 00000"
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3. Effective
as of the Expansion Date (as defined below), Section 1.1 of the Lease is hereby
amended by deleting the data which corresponds to the following subjects and
replacing it with the data set forth below which follows such
subject:
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"RENTABLE
FLOOR AREA OF THE
PREMISES:
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Approximately
10,553 rentable square feet"
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"LEASE
TERM OR TERM:
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Commencing
on the Term Commencement Date
and continuing until six (6) years after the Expansion Date (as defined in
the First Amendment to Lease), plus the partial month after the Expansion
Date, if any, unless sooner terminated as provided
herein."
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"ANNUAL
RENT:
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(a)
$25.75 per square foot of Rentable Floor Area of the Premises (based in
the first year only on only 7,200 square feet of Rentable Floor Area of
the Premises), or $15,450.00 per calendar month for the first year after
the Expansion Date, plus the partial month following the Expansion Date,
if any;
(b) $26.75
per square foot of Rentable Floor Area of the Premises, or $23,524.40 per
calendar month for the next twelve months of the Term;
(c) $27.75
per square foot of Rentable Floor Area of the Premises, or $24,403.81 per
calendar month for the next twelve months of the Term;
(d) $28.75
per square foot of Rentable Floor Area of the Premises, or $25,283.23 per
calendar month for the next twelve months of the Term;
(e) $29.75
per square foot of Rentable Floor Area of the Premises, or $26,162.65 per
calendar month for the next twelve months of the Term;
(f) $30.75
per square foot of Rentable Floor Area of the Premises, or $27,042.06 per
calendar month for the next twelve months of the Term;
and,
in all cases, proportionately at such rate for any partial month, net of
Tenant's charges for electrical consumption in the
Premises."
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| "BASE ANNUAL OPERATING COSTS: | All of Landlord's Operating Costs for calendar year 2006, other than real estate taxes." |
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| "TENANT'S PROPORTIONATE SHARE: | 5.74%" | |
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"SECURITY
DEPOSIT:
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$97,615.00"
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"TENANT'S
PARKING ACCESS CARDS:
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A
total of 32 (the "Base Cards"), 11 of which are for spaces located in the
lot behind the Building (the "Blue Lot") and 21 of which are for spaces
located in the lot behind 100 & 000 XxxxxxxxxXxxx Xxxxx (the "Red
Lot"); together with 11 additional cards for spaces located in the Red Lot
(the "Additional Cards"), at Tenant's request, subject to availability,
provided that Landlord shall have the right to terminate any or all of the
Additional Cards upon thirty (30) days prior notice to
Tenant."
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4. Effective
on the Expansion Date, Section 1.1 is hereby amended by inserting the
following
subject and data after the subject and data for "BASE ANNUAL OPERATING
COSTS":
| "BASE ANNUAL REAL ESTATE TAXES: | All of Landlord's Real Estate Taxes for Fiscal Year 2006, ending June 30, 2006." |
5. Effective
on the Expansion Date, as defined below, the Premises shall be relocated
and expanded to include the space on the third (3rd)
floor of the Building shown on Exhibit
A attached hereto (the "Expansion Premises") consisting of approximately
10,553 square feet of Rentable Floor Area. As of the Expansion Date, all
references to the Premises shall be deemed to refer to the Expansion Premises
and not the original premises described in the Lease (the "Original Premises")
which shall no longer constitute the Premises or any portion thereof. Tenant
acknowledges that Tenant has had an opportunity to inspect the Expansion
Premises and that, except as set forth herein, the Expansion Premises, shall be
delivered to and accepted by Tenant As Is, Where Is, with all faults and without
representation, warranty or guaranty of any kind by Landlord to Tenant. As of
the Expansion Date, Tenant shall vacate the Original Premises in accordance with
Section 6.1.2 of the Lease as though the Term of the Lease had expired. Tenant's
failure to so vacate the Original Premises shall be an immediate default under
the Lease, without benefit of notice or the opportunity to cure, and shall be
treated as a holdover in accordance with the provisions of Section 6.1.16 of the
Lease with respect to the Original Premises.
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6. Subject
to the provisions of the Lease, including, without limitation, Sections 3.4
and 3.5
thereof, all work to prepare the Expansion Premises for Tenant's occupancy,
including painting, carpeting and changes of lock cylinders on all office and
entry doors ("Expansion Work"), shall be performed by Tenant at Tenant's sole
cost and expense. Landlord shall have no responsibility
to Tenant or to any contractor, subcontractor, supplier, materialman, xxxxxxx,
or other person, firm, or corporation who shall engage or participate in any
Expansion Work or other matter on behalf of Tenant. Notwithstanding the
foregoing, Landlord shall reimburse Tenant for up to 5158,295.00 for Expansion
Work (the "Expansion Allowance") upon the last to occur of (a) substantial
completion of Expansion Work, (b) issuance of a certificate of occupancy for the
Expansion Space, (c) Tenant's occupying the Expansion Space for the conduct of
its business and payment of Annual Rent, and (d) delivery by Tenant to Landlord
of executed lien waivers from all general contractors and subcontractors for the
Expansion Work. The Expansion Date shall be the earlier of (i) June 1, 2006, and
(ii) the date that Tenant occupies the Expansion Premises for the conduct of its
business. If and to the extent that any portion of the Expansion Allowance is
unused after reimbursement in accordance with the foregoing, Landlord shall
reimburse Tenant for moving expenses and other improvements made by Tenant to
the Premises, from time to time, including telecommunications and electrical
wiring„ in accordance with and subject to all applicable provisions of the
Lease, upon notice from Tenant to Landlord given no later than one (1) year
after the Expansion Date certifying that any such moving expenses have been
incurred and paid by Tenant in connection with the expansion and relocation of
the Premises and that any such improvements have been substantially completed
and the cost of such moving expenses and improvements accompanied by (x) paid
invoices for such moving expenses and improvements, (y) if applicable, a copy of
the certificate of occupancy for such improvements or other applicable sign-off
from the City of Cambridge Inspectional Services Department, and (z) executed
lien waivers from all general contractors and subcontractors for such
improvements. All such reimbursements to Tenant in accordance with this
Paragraph 6 shall not exceed, in the aggregate, the Expansion
Allowance.
7 The following
new sections are hereby inserted into the Lease after Section 2.2:
"2.3 RIGHT OF
OFFER
Provided
that Tenant fully occupies the Premises and has not assigned this Lease to any
other party and that no event of default or condition which with the giving of
notice or the passage of time, or both, would constitute an event of default
then exists, Landlord shall offer to Tenant, before offering to any party
unrelated to Landlord, other than the existing tenant of such space or other
tenants with prior rights to such space, if any, the space, or any portion of
the space, on the third (31-d)
floor of the Building (the "Offer Space") which becomes available for lease
during the Term. Any such offer by Landlord to Tenant shall be set forth in a
written notice from Landlord to Tenant setting forth the rent and the other
material business terms under which Landlord intends to offer the Offer Space on
the market ("Landlord's Notice").
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If Tenant
notifies Landlord in writing within five (5) days after Landlord's Notice that
it elects to rent the Offer Space upon the terms set forth in Landlord's Notice
("Tenant's Notice"), Landlord and Tenant shall within fifteen (15) days after
Tenant's Notice execute a written lease or, at Landlord's option, an amendment
to this Lease under which Tenant shall lease the Offer Space upon the
business
terms set forth in Landlord's Notice and otherwise upon terms consistent with
this Lease (in either case, the "New Lease"). The New Lease shall be in a form
provided by Landlord to Tenant. If Tenant does not notify Landlord in writing
within five (5) days after Landlord's Notice that it elects to rent the Offer
Space upon the terms set forth in Landlord's Notice, or if Tenant provides
Tenant's Notice to Landlord but fails to execute the New Lease within fifteen
(15) days after Tenant's Notice (such period being extendable by mutual written
agreement between the Parties), Landlord shall thereafter be free to lease the
Offer Space to any other party on whatever terms Landlord may negotiate with
such other party , even if such terms are more favorable than those set forth in
Landlord's Notice. Time is of the essence of the provisions hereof. Failure by
the parties to execute the New Lease within such time period (as it may be
extended in writing) shall have no affect on the rights, obligations and
responsibilities of the parties under the current Lease and shall have no
material affect on the current Lease.
2.4 RIGHT TO
TERMINATE
Landlord
shall endeavor to accommodate any expansion needs of Tenant within the Building
or, so long as Landlord maintains common control of the building at 000
XxxxxxxxxXxxx Xxxxx, the building at 000 XxxxxxxxxXxxx Xxxxx, without, however,
any affirmative obligation to provide additional space to Tenant. Tenant
understands that any ability to lease additional space in the Building or such
other building shall depend upon the availability of such additional space and
agreement between Landlord and Tenant on the terms and conditions upon which
Tenant may lease such additional space from Landlord or, if applicable, the
owner of such other building. The determination of whether additional space is
available and the terms and conditions upon which Landlord or, if applicable,
the owner of such other building may lease to Tenant any additional space which
Landlord or the owner of such other building determines to be available, shall
be solely within the discretion of Landlord and, if applicable, the owner of
such other building, provided that such terms and conditions shall reflect
current market conditions as reasonably determined by Landlord or the owner of
such other building, as the case may be.
In the
event that Landlord cannot accommodate the growth needs of Tenant at either 000
XxxxxxxxxXxxx Xxxxx or through an affiliated entity, 000 XxxxxxxxxXxxx Xxxxx
after the fourth (4th)
full year after the Expansion Date, Tenant shall have the one-time right to
terminate this Lease without penalty on the following terms:
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(a) At any
time after the fourth (4th)
full year after the Expansion Date, Tenant may provide notice to Landlord
setting forth Tenant's growth needs at CambridgePark in reasonable detail,
including the minimum amount of space required, and the date upon which Tenant
needs to occupy the space, which date shall be no sooner than six (6) months
after the date of such notice ("Tenant's Growth Notice").
(b) Landlord
shall provide notice to Tenant within thirty (30) days of Tenant's Growth Notice
specifying whether or not Landlord can accommodate Tenant's growth needs and, if
so, the location or alternative locations of the space to accommodate such
growth needs at 000 XxxxxxxxxXxxx Xxxxx or 000 XxxxxxxxxXxxx Xxxxx and the
primary business terms and conditions upon which such growth needs are being
offered to Tenant, which terms and conditions shall reflect current market
conditions as reasonably determined by Landlord or, if applicable, the owner of
the building at 150 CambridgePark Drive("Landlord's Response
Notice").
(c) If
Landlord indicates that it cannot accommodate such growth needs in Landlord's
Response Notice, then Tenant may terminate the Lease without penalty by notice
to Landlord within thirty (30) days after Landlord's Response Notice, specifying
the date of termination, which date shall not be sooner than six (6) months from
the date of such notice and shall be the last day of a calendar month (the
"Expiration Date"). In the event of such termination notice, the Term of the
Lease shall expire on the Expiration Date as though such date were the date set
forth in the Lease for expiration of the Term.
(d) If
Landlord indicates that it can accommodate
Tenant's growth needs in Landlord's Response Notice, then Landlord and Tenant
shall negotiate in good faith to complete a lease or amendment to this Lease to
accommodate Tenant's growth needs upon the terms set forth in Landlord's
Response Notice and otherwise upon terms consistent with this Lease (except that
Tenant shall have no further right to terminate the Lease as set forth in this
Section 2.4).
(e) If the
parties are unable to come to agreement on such a lease or amendment to this
Lease within thirty (30) days after Landlord's Response Notice, then neither
party shall have any further obligation to negotiate or enter into any such
lease or amendment to this Lease, and this Lease shall remain in full force and
effect unaffected thereby."
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8. Article
XI of the Lease is hereby amended by inserting the following sentence at
the end
of the first paragraph thereof: "Notwithstanding any other provision hereof to
the contrary, the Letter of Credit or any substitute therefor, as the same may
be automatically renewed as provided herein, shall expire no sooner than thirty
(30) days after the Term Expiration Date."
9. Tenant
and Landlord represent and warrant to each other that each has dealt with
no broker
in connection with this transaction, other than Xxxxxxxxx & Xxxx Colliers
International (the "Broker"). Tenant and Landlord agree to defend, indemnify and
hold the other harmless from and against any and all costs, expenses or
liability for any compensation, commissions or charges claimed by a broker or
agent with which such party has had any dealings other than the Broker with
respect to this First Amendment to Lease. Landlord will pay the commissions
owing to the Broker and agrees to defend, indemnify and hold Tenant harmless
from and against commissions claimed by the Broker with respect to this First
Amendment to Lease.
10. (a) Tenant acknowledges that
it has been advised that an affiliate of the Landlord
is a collective investment fund (the "Fund") which holds the assets of one or
more employee benefit plans or retirement arrangements which are subject to
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and/or Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code") (each a "Plan"), and with respect to which JPMorgan Chase Bank,
N.A. ("JPMCB") is the Trustee and that, as a result, Landlord may be prohibited
by law from engaging in certain transactions.
(b) Landlord
hereby represents and warrants to Tenant that, as of the date hereof,
the only Plans whose assets are invested in the Fund which, together with the
interests of any other Plans maintained by the same employer or employee
organization, represent a collective interest in the Fund in excess of ten
percent (10%) of the total interests in the Fund (each, a "10% Plan") are
referenced on Exhibit
B (collectively, the "Existing 10% Plans") hereto.
(c) Tenant
represents and warrants that as of the date hereof, and at all times
while it
is a Tenant under this Lease, one of the following statements is, and will
continue to be, true: (1) Tenant is not a "party in interest" (as defined in
Section 3(14) of ERISA) or a "disqualified person" (as defined in Section 4975
of the Code) (each a "Party in Interest") with respect to the Existing 10% Plans
or, (2) if Tenant is a Party in Interest, that:
(i) neither
Tenant nor its "affiliate" (as defined in Section V(c) of PTCE
84-14, "Affiliate") has, or during the immediately preceding one (1) year has,
exercised the authority to either: (i) appoint or terminate JPMCB as the
qualified professional asset manager (as defined in Section V(a) of PTCE 84-14,
"QPAM") of any of the assets of the Existing 10% Plan with respect to which
Tenant or its Affiliate is a Party in Interest; or (ii) negotiate the terms of
the management agreement with JPMCB, including renewals or modifications
thereof, on behalf of the Existing 10% Plan; and
(ii) neither
Tenant nor any entity controlling, or controlled by, Tenant owns a
five percent (5%) or more interest (within the meaning of PTCE 84-14, "5%
Interest") in X.X. Xxxxxx Xxxxx & Co.
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(d) If
Landlord or the Fund notifies Tenant in writing that a Plan other than the
Existing 10% Plan may become a 10% Plan, Tenant will, within 10 days of such
notification, inform the Fund in writing as to whether it can make the
representations in clause (i) or (ii) of subsection (c) of this Section with
respect to such prospective 10% Plan. Thereafter, if based on such
representations made by Tenant such Plan becomes a 10% Plan, Tenant represents
and warrants that, at all times during the period Tenant is a tenant under the
Lease, the statements set forth in clause (i) or (ii) of subsection (c) will be
true with respect to such 10% Plan.
(e) In the
event that Tenant becomes aware that any statement in subsection (c) is no
longer true with respect to a 10% Plan, Tenant will immediately notify Landlord,
and Tenant will cooperate with Landlord and/or the Fund in its efforts to take
whatever action is necessary under ERISA to rectify the situation.
11. Except as otherwise
expressly provided in this First Amendment to Lease, all of the
terms, conditions and provisions of the Lease remain unaltered and in full force
and effect and are hereby ratified and confirmed. This First Amendment to Lease
together with the original Lease shall be read and construed as one document.
Notwithstanding the foregoing, if an event of default by Tenant, or condition
which with the giving of notice or the passage of time, or both, would
constitute an event of default, exists on the Expansion Date, this First
Amendment to Lease shall, at the option of Landlord exercised by written notice
to Tenant, be null and void and of no further force and effect.
EXECUTED
as a sealed instrument on the date and year first written above.
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LANDLORD:
CAMBRIDGEPARK
125 REALTY CORPORATION
By:_____________________________
Name:
Title:
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TENANT:
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By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: CEO
Hereunto duly
authorized
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EXHIBIT
A
Plan of Expansion
Premises
[Exhibit
follows this page]
EXHIBIT
B
Existing 10%
Plans
1. General
Motors Hourly - Rate Employees Pension Plan
2. General
Motors Retirement Program for Salaried Employees
