FIRST LEASE AMENDMENT
Exhibit 10.1
FIRST LEASE AMENDMENT
THIS FIRST LEASE AMENDMENT (the “Amendment”) is executed this 11th
day of September, 2007 by and between XXXXX FINANCING LLC, a Delaware limited liability
company (“Landlord”), and VIACELL, INC., a Delaware corporation (“Tenant”).
W I T N E S S E T H :
WHEREAS, Landlord and Tenant entered into a certain lease dated April 12, 2002 (the “Lease”),
whereby Tenant leased from Landlord certain premises consisting of approximately 12,375 square feet
of space (the “Original Premises”) in a building commonly known as Building No. 4 (the “Building”)
located in Xxxxxxx 000 Xxxxxxxx Xxxx (the “Park”), located at 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000; and
WHEREAS, Tenant desires to expand the Original Premises by approximately 8,250 square feet of
space (the “Additional Space”); and
WHEREAS, Landlord and Tenant desire to amend certain provisions of the Lease to reflect such
expansion and other changes to the Lease;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants herein
contained and each act performed hereunder by the parties, Landlord and Tenant hereby agree that
the Lease is amended as follows:
1. Incorporation of Recitals. The above recitals are hereby incorporated into this
Amendment as if fully set forth herein.
2. Amendment of Section 1.01. Basic Lease Provisions and Definitions.
(a) Commencing on the Additional Space Commencement Date (as defined below), Section
1.01 of the Lease is hereby amended by incorporating Exhibit A-1, attached hereto and
incorporated herein by reference, on which the Additional Space is depicted. Collectively, the
Original Premises and the Additional Space shall hereinafter be referred to as the “Leased
Premises”. References in the Lease to the “Commencement Date” shall mean June 1, 2002 for the
Original Premises and the Additional Space Commencement Date for the Additional Space.
(b) Commencing on the Additional Space Commencement Date, Section 1.01 of the Lease is
further amended by deleting subsections X, X, X, X, X, X, X and M and substituting the following in
lieu thereof:
| “A. | Leased Premises (as depicted on Exhibit A attached to the Lease and Exhibit A-1 attached hereto): 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000; Building No. 4 (the “Building”) located in Skyport 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the “Park”); | ||
| B. | Rentable Area: approximately 20,625 square feet; | ||
| C. | Tenant’s Proportionate Share: 28.41%; |
| D. | Minimum Annual Rent: | ||
| Original Premises: |
| September 1, 2007 - August 31, 2011 | $91,822.56 per year | |||
| September 1, 2011 - May 31, 2012 | $68,866.92 (9 months) | |||
| Additional Space: | ||||
| September 1, 2007 - August 31, 2008 | $66,825.00 | |||
| September 1, 2008 - August 31, 2010 | $68,887.56 per year; |
| E. | Monthly Rental Installments: | ||
| Original Premises: |
| September 1, 2007 - May 31, 2012 | $7,651.88 per month | |||
| Additional Space: | ||||
| September 1, 2007 - August 31, 2008 | $5,568.75 per month | |||
| September 1, 2008 - August 31, 2010 | $5,740.63 per month; |
| G. | Lease Term: | ||
| Original Premises: Commencement Date through May 31, 2012 Additional Space: Additional Space Commencement Date through August 31, 2010; |
|||
| H. | Commencement Date: | ||
| Original Premises: June 1, 2002 Additional Space: September 1, 2007 (the “Additional Space Commencement Date”); |
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| M. | Address for payments and notices as follows: |
| Landlord: | Xxxxx Financing LLC | |||
| c/o Duke Realty Services, LLC | ||||
| Attn.: Vice President, Asset Management and Customer | ||||
| Service - Cincinnati Industrial Market | ||||
| 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| With a copy to: | Xxxxx Financing LLC | |||
| c/o Duke Realty Services, LLC | ||||
| Attn.: Xxxxx Xxxxxx | ||||
| 000 Xxxx 00xx Xxxxxx, Xxxxx 000 | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| With payments to: | Xxxxx Financing LLC | |||
| 00 Xxxxxxxxxx Xxxxx, Xxxxx 0000 |
| Xxxxxxx, XX 00000-0000 | ||||
| Tenant: | ViaCell, Inc. | |||
| Attn: Xxx Xxxxxxx | ||||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxx, XX 00000 | ||||
| With a copy to: | ViaCell, Inc. | |||
| Attn: General Counsel | ||||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxx, XX 00000 | ||||
| With invoices to: | ViaCell, Inc. | |||
| Attn: Accounts Payable | ||||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxx, XX 00000;” |
3. In the event that the Tenant does not exercise its option to extend the term of the
Additional Space for the Additional Space Extension Term (as defined in Section 16.21), as
set forth in Section 16.21, commencing on September 1, 2010, Section 1.01 of the
Lease will be further amended by deleting subsections A, B and C and substituting the following in
lieu thereof:
| “A. | Leased Premises (as depicted on Exhibit A attached to the
Lease): 0000 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000; Building No. 4 (the “Building”) located in Skyport 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the “Park”); |
||
| B. | Rentable Area: approximately 12,375 square feet; | ||
| C. | Tenant’s Proportionate Share: 17.05%;” |
4. Amendment of Section 2.02. Construction of Tenant Improvements.
Section 2.02 of the Lease is hereby amended by adding the following language to the end of
the section:
“Notwithstanding the foregoing, with respect to the Additional Space, the
following shall apply: Tenant has personally inspected the Additional Space and
accepts the same “AS IS” without representation or warranty by Landlord of any
kind. Tenant may make tenant finish improvements and equipment installations in
the Additional Space (collectively, the “Additional Space Improvements”). The
Additional Space Improvements shall comply with the provisions of Section
7.03 of the Lease. Landlord agrees to reimburse Tenant in an amount not to
exceed Twelve Thousand Three Hundred Seventy-five Dollars ($12,375.00) (the
“Additional Space Allowance”) for the costs incurred by Tenant for the Additional
Space Improvements. Landlord shall pay the Additional Space Allowance to Tenant
within thirty (30) days after receipt of paid invoices from Tenant (all such paid
invoices shall be submitted to Landlord on or before the date which is six (6)
months immediately after the Improvement Completion Date [as defined below]) and
Landlord’s inspection of the completed work, if applicable, to the Additional
Space. All plans and specifications for the Additional Space Improvements to be made by Tenant shall be subject to
Landlord’s reasonable approval (which approval shall not be unreasonably withheld
or delayed). Landlord, or its affiliate, shall be permitted to bid on the
construction of the Additional Space Improvements. Tenant shall
consider
Landlord’s bid in good faith and in the event that another contractor’s bid is
lower than the bid submitted by Landlord or one of its affiliates, Landlord or its
affiliate shall have the right to revise its bid to match the other contractor’s
bid by providing Tenant with written notice of its desire to match the bid, which
notice shall contain a revised written bid containing the matching offer, within
five (5) business days of notification by Tenant that the other contractor’s bid
was lower than the bid of Landlord or its affiliate (“Notice”) and Landlord’s bid,
if revised to match the other contractor’s bid within the 5-day period after
receipt of Notice and given to Tenant in writing in the manner described in this
sentence, shall be accepted by Tenant. In the event that a contractor other than
Landlord or one of its affiliates performs the Additional Space Improvements,
Tenant shall pay Landlord a fee for its supervision of the project equal to five
percent (5%) of the cost of the Additional Space Improvements (the “Fee”). Tenant
shall be responsible for all costs of the Additional Space Improvements in excess
of the Additional Space Allowance. At Landlord’s option, the Fee shall either be
(i) applied against the Additional Space Allowance, or (ii) billed to Tenant after
substantial completion of the Additional Space Improvements (in which event Tenant
shall pay the Fee to Landlord within thirty (30) days following Landlord’s
delivery of an invoice to Tenant). If a contractor other than Landlord or one of
its affiliates is selected to construct the Additional Space Improvements, Tenant
and its personnel and the contractor, its subcontractors and their respective
personnel shall have the right to enter the Additional Space in order to install
the Additional Space Improvements. If and to the extent permitted by applicable
laws, rules and ordinances and after the execution of this Amendment by the
parties, Tenant shall have the right to enter the Additional Space in order to
install fixtures (such as racking) and otherwise prepare the Additional Space for
occupancy, which right shall expressly exclude making any structural
modifications. During any entry prior to the Additional Space Commencement Date
(a) Tenant shall comply with all terms and conditions of the Lease other than the
obligation to pay rent on the Additional Space, and (b) Tenant shall not interfere
with Landlord’s completion of the Additional Space Improvements. Tenant
acknowledges that Tenant shall be responsible for obtaining all applicable permits
and inspections relating to any such entry by Tenant. Tenant shall cause its
personnel and the personnel of the contractors and subcontractors to comply with
the terms and conditions of Landlord’s rules of conduct (which Landlord agrees to
furnish to Tenant upon request), and Tenant shall not begin operation of its
business in the Additional Space unless and until Tenant delivers to Landlord an
original certificate of occupancy, if applicable, for the Additional Space.
Tenant acknowledges that Tenant shall be responsible for obtaining all applicable
permits and inspections relating to Tenant’s occupancy of the Additional Space.
If Landlord or one of its affiliates is selected to construct the Additional Space
Improvements, Landlord or its affiliate shall receive reasonable and competitive
compensation for its services, but shall in no event be entitled to receive any
amounts in excess of the amount set forth in the bid accepted by Tenant unless the
variance is in compliance with the definitive agreement between the parties
related to the Additional Space Improvements, which fee(s) shall be applied
against the Additional Space Allowance. Any costs of said work performed by
Landlord or its affiliates in excess of the Additional Space Allowance shall
be borne by Tenant and reimbursed to Landlord or paid to Landlord’s designee
within thirty (30) days of receipt of an itemized statement therefor. Landlord
and Tenant shall in good faith cooperate to cause the Additional Space
Improvements to be completed at the earliest reasonably practical date. Tenant
shall be entitled to the Additional Space Allowance only if the Additional Space
Improvements are substantially complete on or before the Improvement Completion
Date and Tenant submits paid invoices to Landlord seeking
reimbursement of the
Additional Space Allowance on or before the date which is three (3) months
immediately after February 29, 2008 (the “Improvement Completion Date”). The
foregoing limitation on Tenant’s right to receive the Additional Space Allowance
shall not apply if the failure to substantially complete the Additional Space
Improvements by the Improvement Completion Date arises from the negligence or
willful misconduct of Landlord or its affiliates.”
5. Amendment of Section 2.03. Surrender of Premises. The fourth
(4th) sentence of Section 2.03 of the Lease is hereby deleted and the following
is substituted in lieu thereof:
“Landlord reserves the right to require Tenant to remove, at Tenant’s
expense, the clean room, the entrance and exit associated therewith, the wall
around the freezers, and all or a portion of the Additional Space Improvements
prior to the expiration or earlier termination of this Lease and other items to be
removed as indicated on Exhibit B-1.”
6. Amendment of Section 16.14. Option to Extend. The first
(1st) sentence of Subsection A of Section 16.14 of the Lease is
hereby deleted and the following is substituted in lieu thereof:
“X. Xxxxx and Exercise of Option. Provided that (i) Tenant is not
in Default hereunder, and (ii) Tenant originally named herein or a Permitted
Transferee remains in possession of (a) the Original Premises since the
Commencement Date and continuing through the entire term of the Original Premises,
and (b) the Additional Space since the Additional Space Commencement Date and
continuing through the entire term of the Original Premises, Tenant shall have the
option to extend the Lease Term of the Leased Premises for two (2) additional
periods of five (5) years each (the “Extension Term(s)); provided, however,
condition (ii)(b) above shall apply only if the term of the Additional Space has
been extended, either pursuant to Section 16.21 hereof or by agreement of the
parties, for the Additional Space Extension Term.”
7. Incorporation into Article 16. Miscellaneous. Article 16
of the Lease is hereby amended by adding the following additional sections:
“Section 16.21. Option to Extend the Term of the Additional Space.
(a) Grant and Exercise of Option. Provided that (i) Tenant is not in
Default hereunder, and (ii) Tenant originally named herein or its Permitted
Transferee remains in possession of the Additional Space and the Original Premises
throughout the term of the Additional Space, Tenant shall have one (1) option to
extend the term of the Additional Space through May 31, 2012 (the “Additional
Space Extension Term”). The Additional Space Extension Term
shall be upon the same terms and conditions contained in the Lease except (x)
Tenant shall not have any further option to extend the term of the Additional
Space only, (y) any improvement allowances or other concessions applicable to the
Additional Space under the Lease shall not apply to the Additional Space Extension
Term, and (z) the Minimum Annual Rent for the Additional Space shall be adjusted
as set forth below (“Additional Space Rent Adjustment”). Tenant shall exercise
such option by delivering to Landlord, no later than March 1, 2010, written notice
of Tenant’s desire to extend the term of the Additional Space. Tenant’s failure
to properly exercise such option shall be deemed a waiver of such option. If
Tenant properly exercises its option to extend the term of the Additional Space,
Landlord and Tenant shall
execute an amendment to the Lease reflecting the terms
and conditions of the Additional Space Extension Term.
(b) Additional Space Rent Adjustment. The Minimum Annual Rent for
the Additional Space during the Additional Space Extension Term shall be as
follows:
| September 1, 2010 - August 31, 2011 | $68,887.56 | |||
| September 1, 2011 - May 31, 2012 | $51,665.67 (9 months);” |
“Section 16.22. Patriot Act. Each of Landlord and Tenant,
each as to itself, hereby represents its compliance with all applicable anti-money
laundering laws, including, without limitation, the USA Patriot Act, and the laws
administered by the United States Treasury Department’s Office of Foreign Assets
Control, including, without limitation, Executive Order 13224 (“Executive Order”).
Each of Landlord and Tenant further represents (i) that it is not, and it is not
owned or controlled directly or indirectly by any person or entity, on the SDN
List published by the United States Treasury Department’s Office of Foreign Assets
Control and (ii) that it is not a person otherwise identified by government or
legal authority as a person with whom a U.S. Person is prohibited from transacting
business. As of the date hereof, a list of such designations and the text of the
Executive Order are published under the internet website address
xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx.”
8. Amendment of Section 16.15. Right of First Offer. Section 16.15
of the Lease is hereby deleted in its entirety and shall be of no further force or effect.
9. Amendment of Section 16.20. Temporary Space. Section 16.20 of the
Lease is hereby deleted in its entirety and shall be of no further force or effect.
10. Acknowledgment of Completion of Improvements. Tenant hereby acknowledges that (i)
the improvements designated as Landlord’s obligations in Exhibit B of the Lease have been
completed in a satisfactory manner, and (ii) any and all amounts owed by Landlord to Tenant under
Exhibit B of the Lease, including but not limited to the Work Allowance, have either been
paid by Landlord or forfeited.
11. Brokerage Commissions. The parties hereby represent and warrant that the only
real estate broker involved in the negotiation and execution of this Amendment is Duke Realty
Services, LLC, representing Landlord. Each party shall indemnify the other party from any and all
liability for the breach of this representation and warranty on its part and shall pay any
compensation to any other broker or person who may be entitled thereto. All compensation owed
to Duke Realty Services, LLC and any other broker or agent acting in a similar capacity on behalf
of the Landlord, shall be paid by the Landlord.
12. Representations and Warranties. The undersigned person executing this Amendment
on behalf of Tenant represents and warrants to Landlord that (i) Tenant is duly organized, validly
existing and in good standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this Amendment has been taken by
Tenant; and (iii) the individual executing and delivering this Amendment on behalf of Tenant has
been authorized to do so, and such execution and delivery shall bind Tenant. Tenant, at Landlord’s
request, shall provide Landlord with evidence of such authority. The undersigned person executing
this Amendment on behalf of Landlord represents and warrants to Tenant that (i) no consent of any
other party, including but not limited to any mortgagee of the Landlord, is needed to enter into
this Amendment or, if such consent is needed, it has been obtained by Landlord; (ii) Landlord is
duly organized, validly existing and in good standing in
accordance with the laws of the state
under which it was organized; (iii) all action necessary to authorize the execution of this
Amendment has been taken by Landlord; and (iv) the individual executing and delivering this
Amendment on behalf of Landlord has been authorized to do so, and such execution and delivery shall
bind Landlord. Landlord, at Tenant’s request, shall provide Tenant with evidence of such
authority.
13. Examination of Amendment. Submission of this instrument for examination or
signature to Tenant does not constitute a reservation or option, and it is not effective until
execution by and delivery to both Landlord and Tenant.
14. Definitions. Except as otherwise provided herein, the capitalized terms used in
this Amendment shall have the definitions set forth in the Lease.
15. Incorporation. This Amendment shall be incorporated into and made a part of the
Lease, and all provisions of the Lease not expressly modified or amended hereby shall remain in
full force and effect. To the extent of any inconsistency between the Lease and this Amendment,
the terms of this Amendment shall control.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed on the day and year
first written above.
| LANDLORD: | ||||||||||
| XXXXX FINANCING LLC, | ||||||||||
| a Delaware limited liability company | ||||||||||
| By: | Xxxxx Realty, L.L.C., its sole member |
|||||||||
| By: | Duke Realty Limited Partnership, its manager |
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| By: | Duke Realty Corporation, its general partner |
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| By: /s/ Xxx X. Xxxxxx | ||||||||||
| Senior Vice President | ||||||||||
| Cincinnati Group | ||||||||||
| TENANT: | ||||||||||
| VIACELL, INC., | ||||||||||
| a Delaware corporation | ||||||||||
| By: /s/ Xxxx X. Beer | ||||||||||
| Title: President and Chief Executive Officer | ||||||||||
