FIRST AMENDMENT TO LEASE
Exhibit
10.2
FIRST
AMENDMENT TO LEASE
THIS
FIRST AMENDMENT TO LEASE (“First Amendment”) is entered into as of this 15th day
of September, 2006 (the “Effective Date”), by and between MOUNT AIRY ASSOCIATES,
LLC (“Landlord”) and VIOQUEST PHARMACEUTICALS, INC. (“Tenant”).
Recitals
A. Transwestern
Mt. Airy, L.L.C. (“Original
Landlord”)
and
Tenant entered into that certain Office Lease dated June 15, 2005 (the
“Lease”)
with
respect to certain premises consisting of two thousand one hundred ninety-one
(2,191) rentable square feet located in the Building at 000 Xx. Xxxx Xxxx,
Xxxxxxx Xxxxx, Xxx Xxxxxx, as more fully described in the Lease (the
“Original
Premises”).
B. Original
Landlord subsequently assigned all of its right, title and interest in and
to
the Lease to Landlord.
C. Tenant
now desires to relinquish its rights to the Original Premises and to lease
substitute premises consisting of three thousand eight hundred eighty-nine
(3,889) rentable square feet of space (the “Substitute
Premises”)
on the
first (1st) floor of the Building, as depicted on Exhibit
“A”
attached
hereto and made a part hereof.
D. Landlord
and Tenant now desire to amend the Lease to substitute the Substitute Premises
for the Original Premises as hereinafter provided.
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties mutually covenant and agree as follows:
1. Capitalized
Terms.
Capitalized terms used in this First Amendment which are not specifically
defined herein shall have the meanings given such terms in the Lease.
2. Premises.
Upon
the Substitute Premises Commencement Date, defined below, the definition
of
“Premises” is hereby amended to mean the Substitute Premises and shall, for all
purposes under the Lease, be deemed to be three thousand eight hundred
eighty-nine (3,889) rentable square feet.
3. Substitute
Premises Term.
The
term for the Substitute Premises will commence on the earlier of (i) the
date
Tenant commences occupancy of all or any portion of the Substitute Premises
(excluding, occupancy by Tenant fifteen (15) days prior to the Substitute
Premises Commencement Date for sole the purpose of installing Tenant’s
furniture, fixtures, or equipment, provided such occupancy by Tenant does
not
interfere with the completion of Landlord’s Work, defined hereinafter) and (ii)
the Delivery Date, defined hereinafter (the “Substitute
Premises Commencement Date”),
and
ending on the date (the “Substitute
Premises Expiration Date”)
which
is (i) the day immediately preceding the five (5) year, two (2) month
anniversary of the Substitute Premises Commencement Date, if the Substitute
Premises Commencement Date is the first day of a calendar month, or (ii)
the
last day of the calendar month in which the five (5) year, two (2) month
anniversary of the Substitute Premises Commencement Date occurs, if the
Substitute Premises Commencement Date is any day other than the first day
of a
calendar month (the “Substitute
Premises Term”).
The
Substitute Premises Commencement Date is currently estimated by Landlord
to be
October 1, 2006 (the “Substitute
Premises Estimated Commencement Date”).
“Delivery
Date”
shall
mean the date on which the Tenant Improvements are “Substantially Completed”
pursuant to the terms of Section 8 below. Notwithstanding the foregoing,
in the
event that the Delivery Date is delayed due to a delay caused in whole or
in
part by Tenant (including, without limitation, a “Tenant Delay” as hereinafter
defined), then the Delivery Date shall be deemed to occur on the Substitute
Premises Estimated Commencement Date, subject to extension for delays other
than
those caused in whole or in part by Tenant. Following the determination of
the
Substitute Premises Commencement Date, and as a pre-condition of Tenant’s
occupancy of the Substitute Premises, Landlord and Tenant shall enter into
a
Commencement Date Memorandum in the form attached hereto as Exhibit
“C”
to this
Lease confirming the Substitute Premises Commencement Date.
4. Base
Rent.
The
Base Rent payable by the Tenant during the Substitute Premises Term shall
be as
follows (which sun be payable on the first day of each month, without notice,
in
accordance with the terms of the Lease):
|
Lease
Year
(months)
|
Annual
Base Rent
|
Monthly
Installment
|
Base
Rent/R.S.F.
|
|
1-2
|
$0.00
|
$0.00
|
$0.00
|
|
3-36
|
$91,391.50
|
$7,615.96
|
$23.50
|
|
37-62
|
$96,252.75
|
$8,021.06
|
$24.75
|
|
Tenant
will continue to pay Base Rent and Additional Rent for the Original
Premises, in accordance with the terms and conditions of the Lease,
until
the last day of occupancy of the Original Premises.
|
|||
5. Security
Deposit.
Upon
the Substitute Premises Commencement Date, the Security Deposit held by Landlord
pursuant to the Lease shall be increased to two (2) months’ Base Rent.
Accordingly, upon the Substitute Premises Commencement Date, Tenant shall
deliver to Landlord the sum of Five Thousand Five Hundred Twenty-Four and
42/100
Dollars ($5,524.42) to be added to the Security Deposit currently held by
Landlord for the Original Premises.
6. Tenant’s
Pro Rata Share.
Upon
the Substitute Premises Commencement Date and surrender of the Original
Premises, the Tenant’s Pro Rata Share is hereby amended to be 7.857%, as the
same may be adjusted from time to time.
7. Base
Year.
Upon
the Substitute Premises Commencement Date, the Base Year shall be amended
to
mean the calendar year 2006.
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8. Tenant
Improvements.
(a) Landlord,
at Tenant’s sole cost and expense (subject to the Tenant Improvement Allowance,
as hereinafter defined), shall construct the Tenant Improvements in accordance
with the construction plan attached hereto as Exhibit
“B”
and the
construction standards attached hereto as Exhibit
“B-1”
(collectively, the “Tenant’s
Plans”),
reserving the right to: (a) make substitutions of material of equivalent
grade
and quality when and if any specified material shall not be readily and
reasonably available and (b) make changes necessitated by conditions met
during
the course of construction, provided that Tenant’s approval of any substantial
change (and any reduction of cost incident thereto) shall first be obtained,
which approval shall not be unreasonably withheld. All work shall be furnished,
installed and performed by Landlord, utilizing a general contractor selected
by
Landlord (which maybe an affiliate of a general partner of Landlord), for
“Landlord’s Cost.” “Landlord’s
Cost”
shall
mean all costs and expenses incurred by Landlord in connection with the
completion of the Tenant Improvements, including, without limitation: (i)
Landlord’s out-of-pocket contract or purchase price(s) for materials,
components, labor and services plus (ii) an amount equal to five percent
(5%) of
the foregoing items as Landlord’s construction management fee, plus (iii)
Landlord’s architects’ and engineers’ fees and costs, plus (iv) fees for all
required permits and approvals.
(b) All
subsequent changes in the Tenant’s Plans shall be subject to the approval of
Landlord. If Landlord approves any change in the Tenant’s Plans, Landlord shall
construct the Tenant Improvements in accordance with such change, and Tenant
shall pay any increase in the cost of constructing the Tenant Improvements
resulting from such change.
(c) Provided
that Tenant is not in default in the performance of any of its obligations
hereunder, Landlord shall provide Tenant with a construction allowance (the
“Tenant Improvement Allowance”) of Fifteen and 00/100 Dollars ($15.00) per
rentable square foot of the Substitute Premises, which shall be applied solely
against Landlord’s Cost for the Tenant Improvements (and specifically excluding,
without limitation, Tenant’s costs for space planning, design, furniture, and
moving expenses). In the event that Landlord’s Cost exceeds the amount of the
Tenant Improvement Allowance, Tenant shall reimburse Landlord for such excess
from time to time during the progress of the work within ten (10) days after
receipt of Landlord’s invoice(s) therefor; provided, however, that Landlord may
require that, before Landlord commences any work, Tenant shall pay to Landlord
fifty percent (50%) of the amount estimated by Landlord to become due to
Landlord therefor, which fifty percent (50%) shall be applied against the
last
of the Tenant Improvements to be paid for by Tenant to Landlord. Following
payment of the final invoice, the total amount of Landlord’s Cost shall be
subject to examination by Tenant and Tenant shall have reasonable access
to
Landlord’s cost records relative thereto. Landlord shall provide to Tenant a
moving expense allowance (the “Moving Allowance”) of up to Three Thousand Five
Hundred and 00/100 Dollars ($3,500.00) to reimburse the actual out-of-pocket
costs and expenses paid by Tenant to relocate its fixtures, furnishings,
equipment and other personal property to the Substitute Premises, Landlord
will
reimburse to Tenant any sums due on account of the Moving Allowance within
thirty (30) days after the last to occur of the following: (a) the Substitute
Premises Commencement Date has occurred and Tenant has executed and delivered
the Commencement Date Memorandum, (b) Tenant has occupied the Substitute
Premises for purposes of conducting business therein, (c) there is no default
by
Tenant under the Lease, and (d) Tenant has submitted to Landlord its invoice
requesting payment of the Moving Allowance together with (i) copies of bills
and
invoices, (ii) evidence that the same have been paid in full by Tenant, and
(iii) any other documentation reasonably requested by Landlord. In the event
that Tenant fails to utilize the entire Tenant Improvement Allowance and/or
Moving Allowance, Tenant shall not be entitled to any refund or credit against
the rent payable hereunder. All requests for the Tenant Improvement Allowance
and/or Moving Allowance shall be made within six (6) months from the Effective
Date hereof or the same shall be forfeited by Tenant.
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(d) Upon
completion of the Tenant Improvements, except for items described in
subparagraph (e) below, Landlord shall notify Tenant and Tenant shall inspect
the Substitute Premises with Landlord within thee (3) business days after
Tenant’s receipt of Landlord’s notice. Upon completion of the inspection, it
shall be presumed that all work theretofore performed by or on behalf of
Landlord was satisfactorily performed in accordance with, and meeting the
requirements of this First Amendment. The foregoing presumption shall not
apply,
however: (i) to required work not actually completed by Landlord, which Landlord
agrees it shall complete with reasonable speed and diligence and which is
identified at the time of the inspection on a list prepared by the construction
representatives of Landlord and Tenant (collectively, the “Punchlist Items”), or
(ii) to latent defects in such work which could not reasonably have been
discovered at the time of the inspection; provided Tenant notifies Landlord
of
such defects within ninety (90) days from the date of the inspection. Landlord
shall endeavor to complete any emergency Punchlist Items that affect Tenant’s
occupancy of the Substitute Premises within forty-eight (48) hours from the
date
of the inspection. Landlord shall endeavor to complete any remaining Punchlist
Items within thirty (30) days from the date of the inspection. Landlord will
correct any defects or deficiencies of which it is notified within the required
period with reasonable speed and diligence.
(e) The
Tenant Improvements shall be deemed to be “Substantially Completed” and,
correspondingly, the Commencement Date shall occur when the following have
occurred:
| (i) |
The
work shown on the Tenant’s Plans has been completed except for:
|
a. Any
improvements or work to be performed by Tenant; and
b. Minor
or
insubstantial details of construction, mechanical adjustments, or finishing
touches, which items shall not adversely affect Tenants conduct of its ordinary
business activities in the Premises; and
c. Items
not
then completed because of (each, a “Tenant Delay”):
1.
changes
in the Tenant’s Plans requested by Tenant; or
2. delays,
not caused by Landlord, in furnishing special items which are not readily
available (“Long Lead Items”) or procuring specialized labor required for
installation of Long Lead Items, provided that Tenant shall be notified of
Landlord’s good faith estimate of the anticipated delay promptly after discovery
thereof by Landlord, and shall be given an opportunity to specify alternative
materials or requirements which are readily available; or
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3. the
performance of any work or activity in the Substitute Premises by Tenant
or any
of its employees, agents or contractors.
4. if
required under the applicable code or ordinance of the municipality in which
the
Building is located, the municipality has approved the work completed as
part of
the Tenant Improvements, or would have approved the same but for delays caused
by Tenant pursuant to subparagraph (i) (c) above.
(f) The
date
determined in accordance with subparagraph (e) above is herein called the
date
of “Substantial Completion”. In the event of any delay as described in
subparagraph (e) above, Tenant acknowledges that the Commencement Date and
Tenant’s obligations to pay rent hereunder may begin before the Tenant
Improvements have been completed.
9. Delay
in Possession.
Landlord currently anticipates that the Substitute Premises Commencement
Date
hereunder will occur on or about the Substitute Premises Estimated Commencement
Date. If the Substitute Premises Commencement Date has not occurred by the
Substitute Premises Estimated Commencement Date because any repairs,
improvements or decoration of the Substitute Premises are not completed,
or for
any other reason, Landlord shall not be subject to any liability to Tenant.
Under such circumstances, the rent reserved and covenanted to be paid for
the
Substitute Premises herein shall not commence until the Substitute Premises
Commencement Date, and no such failure to deliver possession shall in any
other
respect affect the validity of this First Amendment.
10. Notices
to Landlord.
Notices
shall be deliver to Landlord, c/o Pitcairn Properties Incorporated, 000 Xxxxxxxx
Xxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000-0000. Rent payments shall be
made
payable to Landlord and shall be sent to Pitcaim Properties Management Company,
LLC, do Pitcairn Properties Incorporated, 000 Xxxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxxxxxxxxx, XX 00000-0000.
11. Broker.
Tenant
represents and warrants to Landlord that Tenant has dealt with no broker,
agent
or other intermediary in connection with this First Amendment other than
CB
Xxxxxxx Xxxxx (“Landlord’s
Broker”)
and
Xxxxx Xxxxxxxx Company (“Tenant’s
Broker”),
and
that insofar as Tenant knows, no other broker, agent or other intermediary
negotiated this First Amendment. Tenant agrees to indemnify, defend and hold
Landlord and its partners, employees, agents, their officers and partners,
harmless from and against any claims made by any broker, agent or other
intermediary other than Landlord’s Broker or Tenant’s Broker, with respect to a
claim for broker’s commission or fee or similar compensation brought by any
person in connection with this First Amendment, provided that Landlord has
not
in fact retained such broker, agent or other intermediary. Landlord agrees
to
pay all commissions payable to Landlord’s Broker pursuant to a separate
agreement between Landlord and Landlord’s Broker. Landlord’s Broker shall pay
Tenant’s Broker a co-brokerage commission pursuant to a separate agreement
between Landlord’s Broker and Tenant’s Broker.
5
12. Counterparts.
This
First Amendment may be executed in one or more counterparts, each of which
shall
be deemed an original hereof, but all of which shall constitute one and the
same
First Amendment.
13. Confirmation
of Lease.
Except
as otherwise set forth in this First Amendment, the Lease shall remain in
full
force and effect in accordance with its original terms and be binding on
Landlord and Tenant their respective heirs, executors, administrators,
successors and assigns.
IN
WITNESS WHEREOF,
the
parties hereto have executed this First Amendment as of the day and year
first
above written.
|
Landlord
MOUNT
AIRY ASSOCIATES, LLC
|
||
| |
By: |
PPI
MOUNT AIRY, LLC, its sole member
|
| By: | Pitcairn Properties, Incorporated, its sole member | |
| By: | /s/ Xxxx X. Xxxxxxx | |
|
|
||
| Title: Senior Vice President | ||
|
Tenant
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxx | |
|
|
||
| Title: CFO | ||
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