Contract
Exhibit
10.1
This
SECOND AMENDMENT TO LEASE ("Second
Amendment") is made and entered into as of November 10,
2016, by and between BAYSIDE AREA
DEVELOPMENT, LLC, a Delaware limited liability company
("Landlord"), and
VISTAGEN THERAPEUTICS, INC.,
a Nevada corporation ("Tenant").
R E C I T A L S :
A. Landlord
and Tenant (as successor-in-interest to VistaGen Therapeutics,
Inc., a California corporation) entered into that certain Lease,
dated as of April 24, 2013 (the "Original Lease"), as amended by that certain
First Amendment to Lease dated September 28, 2013 (the
"First Amendment"), pursuant
to which Tenant currently leases approximately 10,909 rentable
square feet of space with a street address of 000 Xxxxxxxx Xxxxxx
(as set forth in Exhibit A to the Lease, the "Premises"), in the building located at
000-000 Xxxxxxxx Xxxxxx, Xxxxx Xxx Xxxxxxxxx, XX (the "Building"). The Original Lease and the
First Amendment are collectively, the "Lease."
B. The
parties desire to amend the Lease on the terms and conditions set
forth in this Second Amendment.
A G R E E M E N T
:
NOW,
THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Terms.
All capitalized terms when used herein shall have the same
respective meanings as are given such terms in the Lease unless
expressly provided otherwise in this Second Amendment.
2. Condition
of the Premises. Landlord and Tenant acknowledge that Tenant
has been occupying the Premises pursuant to the Lease, and
therefore Tenant continues to accept the Premises in its presently
existing, "as is" condition. Except as expressly set forth in the
Tenant Work Letter attached to this Second Amendment as
Exhibit
A (the "Tenant Work
Letter"), Landlord shall not be obligated to provide or pay
for any improvement work or services related to the improvement of
the Premises.
3. Lease
Term.
3.1 Extended
Lease Term. Pursuant to the Lease, the Lease Term is
scheduled to expire on July 31, 2017. Landlord and Tenant hereby
agree to extend the Lease Term for a period of five (5) years, from
August 1, 2017, through July 31, 2022 (the "Extended Term"), on the terms and
conditions set forth in the Lease, as hereby amended by this
Second Amendment,
unless sooner terminated as provided in the Lease.
3.2 Option
to Extend Lease Term. Landlord and Tenant acknowledge and
agree that the Extended Term provided herein shall not be deemed to
represent Tenant's option to extend the Lease Term as provided in
Section 2.2 of
the Original Lease, and accordingly Tenant shall continue to have
one (1) option to extend the Lease Term in accordance with, and
pursuant to the terms of, Section 2.2 of the
Original Lease; provided that effective as of the date of this
Second Amendment such option to extend the Lease Term shall be for
five (5) years (as opposed to three (3) years as presently set
forth in the Lease).
4. Rent.
4.1 Base
Rent. Prior to August 1, 2017, Tenant shall continue to pay
monthly installments of Base Rent for the Premises in accordance
with the terms of the Lease. During the Extended Term, Tenant shall
pay monthly installments of Base Rent for the Premises as
follows:
|
Period
During
Extended
Term
|
Annual
Base
Rent
|
Monthly
Installment
of Base
Rent
|
Monthly
Rental Rate
per
Square Foot
|
|
August
1, 2017 – July 31, 2018
|
$589,086.00
|
$49,090.50
|
$4.50
|
|
August
1, 2018 – July 31, 2019
|
$609,704.01
|
$50,808.67
|
$4.66
|
|
August
1, 2019 – July 31, 2020
|
$631,043.65
|
$52,586.97
|
$4.82
|
|
August
1, 2020 – July 31, 2021
|
$653,130.18
|
$54,427.51
|
$4.99
|
|
August
1, 2021 – July 31, 2022
|
$675,989.73
|
$56,332.48
|
$5.16
|
4.2 Abated
Base Rent. Provided that Tenant is not then in default of
the Lease (as hereby amended),
then during the period commencing on August 1, 2017 and ending on
September 30, 2017 (the “Rent
Abatement Period”), Tenant shall not be obligated to
pay any Base Rent otherwise attributable to the Premises during
such Rent Abatement Period (the “Rent Abatement”). Landlord and
Tenant acknowledge that the aggregate amount of the Rent Abatement
equals $98,181.00 (i.e.,
$49,090.50 per month). Tenant
acknowledges and agrees that the foregoing Rent Abatement has been
granted to Tenant as additional consideration for entering into
this Second Amendment, and for agreeing to pay the Rent and perform
the terms and conditions otherwise required under the Lease (as
hereby amended). If Tenant shall be in default under the Lease (as
hereby amended) and shall fail to cure such default within the
notice and cure period, if any, permitted for cure pursuant to the
Lease (as hereby amended), or if the Lease (as hereby amended) is
terminated for any reason, other than as the result of casualty or
condemnation, then the dollar amount of the unapplied portion of
the Rent Abatement as of such default or termination shall be
converted to a credit to be applied to the Base Rent applicable at
the end of the Extended Term and Tenant shall immediately be
obligated to begin paying Base Rent for the Premises in
full.
4.3 Direct
Expenses. Prior to and continuing throughout the Extended
Term, Tenant shall continue to pay Tenant's Share of all Direct
Expenses in accordance with the terms of the Lease.
5. Broker.
Landlord and Tenant hereby warrant to each other that they have had
no dealings with any real estate broker or agent in connection with
the negotiation of this Second Amendment other than CBRE, Inc. (the
"Broker"), and that they
know of no other real estate broker or agent who is entitled to a
commission in connection with this Second Amendment. Each party
agrees to indemnify and defend the other party against and hold the
other party harmless from any and all claims, demands, losses,
liabilities, lawsuits, judgments, costs and expenses (including
without limitation reasonable attorneys' fees) with respect to any
leasing commission or equivalent compensation alleged to be owing
on account of any dealings with any real estate broker or agent,
other than the Broker, occurring by, through, or under the
indemnifying party. The terms of this Section 5 shall survive
the expiration or earlier termination of the term of the Lease, as
hereby amended.
6. California
Accessibility Disclosure. For purposes of Section 1938 of
the California Civil Code, Landlord hereby discloses to Tenant, and
Tenant hereby acknowledges that the Common Areas and the Premises
have not undergone inspection by a Certified Access Specialist
(CASp).
7. No
Further Modification. Except as specifically set forth in
this Second Amendment,
all of the terms and provisions of the Lease shall remain
unmodified and in full force and effect.
IN
WITNESS WHEREOF, this Second Amendment has been executed as of the
day and year first above written.
|
"LANDLORD"
|
"TENANT"
|
|
BAYSIDE
AREA DEVELOPMENT, LLC,
a
Delaware limited liability company
By:
/s/ Xxx X
Xxxxxxxxxxxxx
Xxx X. Xxxxxxxxxxxxx
Executive Vice President
|
a
Nevada corporation
By:
/s/ Xxxxx X.
Xxxxx
Xxxxx X.
Xxxxx
Chief Executive
Officer
|
EXHIBIT A
TENANT WORK LETTER
Landlord and Tenant
acknowledge that Tenant has been occupying the Premises pursuant to
the Lease. Except as specifically set forth herein, Landlord shall
not be obligated to construct or install any improvements or
facilities of any kind in the Premises, and Tenant shall continue
to accept the Premises in its currently-existing, "as-is"
condition. Notwithstanding the foregoing, from and after January 1,
2017, Tenant shall be entitled to a one-time tenant improvement
allowance (the "Tenant Improvement
Allowance") equal to $163,635.00 (i.e., approximately $15.00 for each of
the 10,909 rentable square feet of the Premises) for the costs
relating to the design and construction of Tenant's improvements
which are permanently affixed to the Premises (the
“Tenant
Improvements”). Landlord hereby acknowledges that up
to $10,000.00 of the Tenant Improvement Allowance may be utilized
for new signage for the Premises as part of the Tenant
Improvements, which new signage shall be approved by Landlord
pursuant to the terms of the Lease. A contractor shall be retained
by Tenant to construct the Tenant Improvements, which contractor
shall be selected by Tenant and reasonably approved by Landlord and
in connection therewith, Landlord hereby approves Cody Builders as
a contractor to be retained by Tenant to construct the Tenant
Improvements. The Tenant Improvement Allowance will be disbursed in
accordance with Landlord's standard disbursement procedures,
including, without limitation, following Landlord's receipt of (i)
evidence (i.e., invoices or other documentation reasonably
satisfactory to Landlord) of payment for the Tenant Improvements,
and (ii) fully executed, unconditional lien releases from all
contractors, subcontractors, laborers, materialmen, and suppliers
used by Tenant in connection with the Tenant Improvements. In
connection with the Tenant Improvements, Landlord shall retain
Project Management Advisors, Inc. ("PMA") as a third party project manager
for construction oversight of the Tenant Improvements on behalf of
Landlord, and Tenant shall pay a fee to Landlord with respect to
the PMA services to be deducted from the Tenant Improvement
Allowance not to exceed $5,000.00. The Tenant Improvements shall be
constructed in accordance with the terms and conditions of
Article 8 of
the Original Lease. In no event shall Landlord be obligated to
disburse any portion of the Tenant Improvement Allowance subsequent
to August 1, 2018, nor shall Landlord be obligated to disburse any
amount in excess of the Tenant Improvement Allowance in connection
with the construction of the Tenant Improvements. No portion of the
Tenant Improvement Allowance, if any, remaining after the
construction of the Tenant Improvements shall be available for use
by Tenant.
