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Exhibit 10.32
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FIFTH AMENDMENT TO LEASE
AND
ADDENDUM TO LEASE
THIS FIFTH AMENDMENT TO LEASE and ADDENDUM TO LEASE is made this 27th day of
December, 2000, by and between COMMERCE CORNERS ASSOCIATES ("Landlord") and
GLIATECH R & D, INC., an Ohio Corporation, ("Tenant"), to the certain Lease
Agreements dated July 17, 1991 and July 22, 1992; and to a certain First
Amendment to Lease Agreement dated October 1, 1993; and to a certain Second
Agreement to Lease and Addendum to Lease dated February 15, 1996; and to a
certain Third Amendment to Lease and Addendum to Lease dated June 1, 1996; and
to a certain Fourth Amendment to Lease and Addendum to Lease dated June 25, 1997
(Collectively the "Lease"). The parties hereto agree as follows:
1. SECTION TWO - DEFINITIONS.
3. "Premises" shall mean the entire Building ("Exhibit A") commonly
known as Commerce Corner Industrial Townhouses, located at 23400
- 00000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx that
consists of approximately 53,250 square feet.
9. "Base Year" is no longer applicable and any references to this
term in the Lease are hereby deleted.
10. "Comparison Year" is no longer applicable and any references to
this term in the Lease are hereby deleted.
11. "Tenant's Share" shall mean the percentage that the total area of
the Premises is of the total area of the Building, which
percentage is agreed upon as being 100%.
12. "Operating Expenses" shall mean those expenses incurred during
each year of the Term in respect of the operation of the
Building, more specifically described in subparagraphs 12(a) and
(b).
2. SECTION THREE - PREMISES. The Premises, as defined above, shall
consist of the entire Building.
3. SECTION FOUR - IMPROVEMENTS. Landlord shall have no duty or obligation
to make any improvements or alterations to the Premises, it being
understood that Tenant has had occupancy of the entire Premises.
4. SECTION FIVE - TERM. The Term of this Lease is for a period of three
(3) years commencing on the first (1st) day of January, 2002
("Commencement Date"), and ending on the thirty-first (31st) of
December, 2004 ("Expiration Date"), unless sooner terminated as
hereinafter provided. Tenant shall surrender the Premises to Landlord
immediately upon the expiration or early termination of this Lease.
Tenant (but no one other than Tenant or a permitted assignee) shall
have the option to renew this Lease for one (1) additional period of
two (2) years ("Renewal Period") provided that (a) this Lease shall
not have been sooner terminated pursuant to the terms hereof, (b)
Tenant is not in default of any of its obligations under this Lease,
and (c) Tenant shall exercise such option by giving written notice
thereof to Landlord at least one (1) year prior to the Expiration Date
of this Lease, i.e., no later than December 31, 2003.
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During the Renewal Period, the rights and obligations of Landlord and
Tenant shall be governed by the same terms, covenants and conditions
set forth in the original Leases, as amended, except that (a) no
further option to renew shall apply, and (b) the Annual Base Rent
payable by Tenant during the Renewal Period shall be equal to the
Annual Base Rent in effect for the Premises as of the Expiration Date
increased by the percentage increase in the Consumer Price Index for
all Urban Consumers ("CPI-U"), U.S. City Average, which increase shall
be measured from the Commencement Date hereof.
5. SECTION SIX - RENTAL. Tenant agrees to pay to Landlord without demand,
an Annual Base Rent for the Premises in the amount of Five Hundred
Twenty-three Thousand Seven Hundred Ninety-seven and 96/100 Dollars
($523,797.96) per year throughout the Term hereof in equal consecutive
monthly installments of Forty-three Thousand Six Hundred Forty-nine
and 83/100 Dollars ($43,649.83) each, payable in advance, without
deduction or set-off on the first day of each and every month of the
Term of this Lease beginning January 1, 2002. Tenant shall pay such
rental at the offices of Landlord, or such other place as Landlord may
designate, in writing, from time to time. The amount of such rent to
be paid by Tenant is subject to adjustment from time to time, as set
forth hereinbelow.
The rent reserved and all other charges hereunder not paid by Tenant
when due shall bear interest at the rate of 18% per annum. Further,
Tenant agrees that in the event Tenant does not pay its rental on or
before the 5th day of any calendar month, Landlord shall have the
right to charge Tenant a late payment penalty charge of five percent
(5%) of the Base Rent then due and owing.
The Annual Base Rent shall be adjusted for each year during the Term
hereof by Tenant's Share of the amount of the Operating Expenses for
said year, but shall not in any event be less than the amount of the
Annual Base Rent stipulated hereinabove. The Adjusted Annual Rent for
any year during the Term shall serve as the basis for an estimate of
the Adjusted Annual Rent to become due for the next succeeding year
until the computation for said succeeding year is made. The Adjusted
Annual Rent for the last year shall be paid by Tenant in a lump-sum
within 30 days after presentation by Landlord to Tenant of a statement
of said adjustment.
Landlord shall keep and make available to Tenant for a period of 30
days after statements for rental payments are rendered to Tenant,
records, in reasonable detail, of Operating Expenses for the period
covered by such statement or statements and shall permit Tenant and
representatives of Tenant to examine and audit such statements at any
reasonable time during business hours. If Tenant shall dispute any
item or items included by Landlord in determining Operating Expenses
for any given year, and such dispute is not amicably settled between
Landlord and Tenant within 30 days after any statement for Adjusted
Annual Rent has been rendered or after the date for settling the rent
payable for such year, either party may notify the other, during the
ten days next following the expiration pf said 30 day period, of its
election to arbitrate said dispute, and then may submit said dispute
for arbitration in accordance with the provisions of Section 35 of the
original Leases.
6. SECTION NINE - USE OF COMMON AREAS AND SERVICE CORRIDOR AREA. By this
Amendment, the Service Corridor area is incorporated in the Premises.
7. SECTION TEN - TAXES AND ASSESSMENTS. Landlord shall pay all real
estate taxes and assessments on the Building, subject to reimbursement
by Tenant to the extent that such taxes or assessments are properly
charged to Tenant as an Operating Expense; provided, however, that
Landlord shall retain the right, in good faith, and by proper legal
action, to contest any tax or encumbrance, or the validity thereof and
take any and all action
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relevant thereto, so long as such contest operates to prevent
collection, and it is maintained and prosecuted with due diligence,
and it shall not have been terminated or discontinued adversely to
Landlord.
8. SECTION TWELVE - SERVICE CORRIDOR MAINTENANCE EXPENSES. All Service
Corridor Maintenance Expenses shall be allocated to Tenant and shall
be included in the Common Area Maintenance Expenses.
9. SECTION THIRTEEN - INSURANCE - LANDLORD. The first paragraph of
Section 13 is amended to read as follows: "Landlord shall procure and
maintain, during the term of this Lease, fire and extended coverage
insurance and liability insurance (excluding contents coverage and
public liability insurance which shall be carried by Tenant) covering
the Building, subject to reimbursement by Tenant to the extent that
the insurance premiums are properly charged to Tenant as an Operating
Expense, as described in Section 6 of the Lease."
10. SECTION TWENTY-NINE - HOLDOVER. If Tenant holds possession of the
Premises after the expiration or early termination of this Lease,
Tenant shall become a Tenant At Will on the same terms herein
specified, except that the Adjusted Annual Rent shall be at one
hundred fifty percent (150%) of the adjusted monthly rate in effect as
of the Expiration Date or as of the effective date of termination, as
the case may be. Tenant shall continue to be a Tenant At Will until
the tenancy shall be terminated by Landlord, or until Tenant shall
give to Landlord a written notice of its intention to terminate the
tenancy at least one month prior to the date of termination of the
tenancy.
11. SECTION THIRTY-ONE - BROKERS. Except for Chartwell Group whose
commission will be paid by Landlord, the parties represent and warrant
to each other that no other broker negotiated or was instrumental in
negotiating this Fifth Amendment and Addendum to Lease, and the
parties shall indemnify and hold harmless the other for any claims by
any broker for the payment of a commission or fee in connection with
this transaction.
12. SECTION THIRTY-EIGHT - NOTICES. Notices to Landlord shall be addressed
as follows:
COMMERCE CORNERS ASSOCIATES
THREE COMMERCE PARK SQUARE
00000 XXXXXXX XXXX., XXXXX 000
XXXXXXXXX, XXXX 00000
13. SECTION FORTY-SIX - OPTION TO TERMINATE. Provided Tenant is not in
default under this Lease, Tenant shall have the option to terminate
this Lease effective as of the end of the second year of the Term
hereof (i.e., effective December 31, 2003), provided Tenant gives
Landlord written notice of its intent to so terminate at least one (1)
year prior to the effective date of termination and further provided
that Tenant delivers concurrently with such notice a termination fee
equal to the sum of (a) the unamortized broker's commission (amortized
up to the effective date of termination based on a 3-year
amoritization period using an interest rate of ten percent (10%) per
annum) plus (b) two (2) months' adjusted Base Rent.
All other terms and conditions of the Original Leases and the First, Second,
Third and Fourth Amendments will remain in full force and effect.
IN WITNESS WHEREOF, the parties to this Fifth Amendment to Lease have set their
hands to duplicates hereof as of the date and year first above written.
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WITNESSED: LANDLORD:
COMMERCE CORNERS ASSOCIATES
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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/s/ Authorized Signatory Xxxxxxx X. Xxxxxxxx, Partner
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WITNESSED: TENANT:
GLIATECH R & D, INC.
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
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/s/ Xxxxxx X. Ehretzen Xxxxxx X. Xxxxx, President
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STATE OF OHIO )
) ss:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared COMMERCE CORNERS ASSOCIATES by Xxxxxxx X. Xxxxxxxx, its Partner, who
acknowledged that he did sign the foregoing instrument, and that the same is his
free act and deed personally and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Beachwood, Ohio, this 27th day of December, 2000.
Notary Public /s/ Xxxxx Xxxxxx
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My commission expires: 5/7/01
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STATE OF OHIO )
) ss:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named GLIATECH R & D, INC. by Xxxxxx X. Xxxxx, its President,
who acknowledged that he did sign the foregoing instrument and that the same is
his free act and deed personally and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Beachwood, Ohio, this 27th day of December, 2000.
Notary Public /s/ J. Xxxxxx Xxxxx Xxxxxxxxxx
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My commission expires: 12/22/01
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