SIXTH AMENDMENT TO LEASE
SIXTH
AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE
("Amendment") made as of the 18th day of April, 2008, by and between
111 XXXXXXX ASSOCIATES ("Landlord"), sole beneficiary under CHICAGO TITLE LAND
TRUST COMPANY, as successor trustee to LASALLE BANK NATIONAL ASSOCIATION, as
successor trustee ("Trustee") to AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, as Trustee under Trust Agreement ("Trust") dated January 1, 1991 and
known as Trust No. 113370-03 ("Landlord") and BIOSANTE PHARMACEUTICALS, INC.
("Tenant").
W
I T N E S S E T H:
WHEREAS, Landlord and Tenant entered
into that certain Lease dated December 19, 2003, as amended by First Amendment
to Lease dated February 26, 2004, as modified by Letter Amendment dated March
19, 2004 (the "Lease"), as amended by Second Amendment to Lease dated January 4,
2005, as amended by Third Amendment to Lease dated January 27, 2006, as amended
by Fourth Amendment to Lease dated March 7, 2007 and as amended by Fifth
Amendment to Lease dated November 2, 2007, which Lease demised to Tenant a
portion of the 2nd floor,
known as Suite 280 ("Premises") of the building known as 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxx ("Building"); and
WHEREAS, the parties hereto desire to
expand the Premises to include Suite 220 and to amend the Lease in certain other
respects.
NOW, THEREFORE, in consideration of the
mutual covenants and conditions contained herein, the Lease is hereby further
amended as follows:
1. Additional
Premises. Subject to the matters described in Paragraph 8
below, as of May 1, 2008 ("Availability Date"), Tenant shall be entitled to full
and unencumbered possession of the space containing 5,199 rentable square feet
on the 2nd floor described on attached Exhibit "A" and now commonly known as
Suite 220 ("Additional Premises"). From and after the Availability
Date, all references to the "Premises" under the Lease shall be deemed to
include the Additional Premises.
2. Landlord's Work and
Condition of Additional Premises. Following the Availability
Date, Landlord shall perform the work described on Exhibit "B" attached hereto
("Landlord's Work"). The cost of Landlord's Work is
$8,000.00. Landlord shall also repaint certain areas in the portion
of the Premises known as Suite 280, where needed as a result of moving
furnishings in connection with Tenant's expansion into the Additional
Premises. Landlord shall pay the cost of any repainting required in
Suite 280 and Landlord and Tenant shall each pay ½ of the cost of Landlord's
Work ($4,000.00 each); provided, however, that if Tenant fails to exercise its
option to extend the Term of the Lease pursuant to the terms hereof, then Tenant
shall, prior to the Termination Date, pay Landlord the sum of (a) $4,000.00, as
reimbursement for Landlord's share of the cost of Landlord's Work, and (b) the
total cost expended by Landlord for any repainting required in Suite
280. Tenant's $4,000.00 share of the cost of Landlord's Work shall be
paid to Landlord in advance, on or before the Availability Date. Sums
owed by Tenant pursuant to this Paragraph 2 shall be deemed to be Additional
Rent under the Lease. Tenant has inspected the Additional Premises
and agrees, except for Landlord's Work, to accept possession of the
Additional Premises in current "as is" condition.
3. Amended
Term. The Term of the Lease is hereby amended so that the Term
shall expire on April 30, 2009 ("Termination Date"), unless sooner terminated
pursuant to the terms of the Lease. This Termination Date shall apply
to the entire Premises, notwithstanding anything to the contrary in the
Lease and
from and after the date hereof, this new Termination Date shall be used for
purposes relating to the timing of Tenant's option to extend the Term of the
Lease and any related adjustment dates for Base Rent payable during any such
extended Terms.
4. Base
Rent. As of the Availability Date, the total Base Rent payable
under the Lease for the entire Premises shall be as follows:
Base
Rent:
|
Period
|
Annual
Base Rent
|
Monthly
Installment
|
||||||
|
5/1/08-4/30/09
|
$ | 159,000.00 | $ | 13,250.00 | ||||
Extended
Base Rent:
|
Period
|
Annual
Base Rent
|
Monthly
Installment
|
||||||
|
5/1/09-4/30/10
|
$ | 165,000.00 | $ | 13,750.00 | ||||
|
5/1/10-4/30/11
|
$ | 171,000.00 | $ | 14,250.00 | ||||
5. Tenant's Proportionate
Share. As of the Availability Date, Tenant's Proportionate
Share shall increase from 8.698% to 15.3488%. For the purposes of the
Lease, the "Rentable Area of the Building" shall mean 78,182 stipulated rentable
square feet.
6. Additional Parking
Spaces. Commencing on the Availability Date, Tenant shall have
the right to use, on the same terms and conditions provided under the original
Lease, an additional 31 unreserved exterior parking spaces, for a total of up to
46 unreserved exterior parking spaces for use by Tenant.
7. Extended
Term. Tenant's option to extend the term of the Lease as
provided in Paragraph 4 of the Fifth Amendment to Lease dated November 2, 2007
is hereby deleted in its entirety and replaced with the following:
Tenant
shall have the right to extend the Term of the Lease for two (2) extension terms
of one (1) year each (each, an "Extended Term") which shall commence on the day
following the expiration of the initial term and end on the first anniversary of
the Expiration Date or the expiration date of the first Extended Term, as the
case may be, unless the Extended Term shall sooner terminate pursuant to any of
the terms of this Lease or otherwise. Each Extended Term shall
commence only if Tenant shall have notified Landlord in writing of Tenant's
exercise of such extension right not later than four and a half (4½) months
prior to the Expiration Date of the initial Term or the first Extended Term, as
the case may be, and at the time of the exercise of such right and immediately
prior to the then Expiration Date, this Lease is in full force and effect and no
Default shall have occurred and be continuing hereunder. Time is of
the essence with respect to the giving of the notice of Tenant's exercise of the
extension right. Each Extended Term shall be upon all of the
agreements, terms, covenants and conditions hereof binding upon Tenant, except
that (a) the Extended Base Rent shall be as provided in the Schedule of
Significant Terms, (b) Landlord shall have no obligation to perform any work or
make any contribution to work performed to prepare the Premises for Tenant's
use, and (c) Tenant shall have no further right to extend the Term, other than
in accordance with this Paragraph 7. Upon the exercise of each
extension option by Tenant, (i) the Extended Term shall be added to and become
part of the Term (but shall not be considered part of the initial term), (ii)
any reference to "this Lease", to the "Term", the "term of this Lease" or any
similar expression shall be deemed to include the Extended Term, and (iii) the
expiration of each Extended Term shall become the Expiration
Date. Tenant shall have the right to exercise its option to extend
for all of the Premises or for either (a) the portion of the Premises containing
approximately 5,199 rentable square feet and known as Suite 220 and described
herein as the Additional Premises or (b) the portion of the Premises containing
approximately 6,801 rentable square feet and known as Suite 280; provided,
however, that if Tenant elects to extend the Term of the Lease with respect to
only a portion of the Premises, any remaining extension option shall only apply
to the portion of the Premises for which the Lease has been
extended. Further, in the event that Tenant elects to extend the Term
of the Lease with respect to only a portion of the Premises, as provided above,
Tenant shall vacate the portion of the Premises for which the Lease is not being
extended on or before the end of the then current Term of the Lease and Landlord
and Tenant shall promptly enter into an amendment to the Lease deleting the
applicable Suite from the Premises and making such further adjustments as may be
appropriate, including, without limitation, proportionate reductions in the Base
Rent, the Tenant's Proportionate Share and the allocation of Parking
Spaces.
8. Termination of Pinnacle
Lease. Landlord and Tenant each acknowledge and agree that the
parties' rights and obligations under this Sixth Amendment are expressly subject
to and contingent upon the execution and delivery of a termination agreement
accelerating the termination date of the existing lease for Pinnacle
Performance, Inc. for Suite 220. In the event that such termination
agreement is not signed and/or Pinnacle Performance, Inc. fails to vacate Suite
220 on or before April 30, 2008, the parties shall have no rights and
obligations hereunder.
9. Real Estate
Brokers. Tenant represents that it has dealt with, and only
with, Van Vlissingen and Co., as broker in connection with this Amendment, and
that, insofar as Tenant knows, no other broker negotiated this Amendment or is
entitled to any commission in connection therewith. Tenant agrees to
indemnify and hold Landlord harmless from all damages, liability and expense
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker or brokers or finders in connection with its participating with
Tenant in the negotiating of this Amendment.
10. Lease in Full Force and
Effect. Except for the provisions of this Amendment, all the
terms, covenants and conditions of the Lease and all the rights and obligations
of Landlord and Tenant thereunder, shall remain in full force and effect, and
are not otherwise altered, amended, revised or changed.
11. Estoppel. Tenant
and Landlord hereby each acknowledge that as of the date hereof, they have no
claims arising under the Lease against the other party or its agents, or any one
or more of the foregoing, and that neither knows of any default or failure on
the part of the other party to keep or perform any covenant, condition or
undertaking to be kept or performed by such other party under the
Lease.
12. Exculpatory
Provisions. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings, and agreements
of such Landlord are nevertheless each and every one of them made and intended,
not as personal representations, warranties, covenants, undertakings, and
agreements by such Landlord or for the purpose or with the intention of binding
such Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Building, the Land and the Premises
to the terms of this Amendment and for no other purpose whatsoever, and in case
of default hereunder by any Landlord (or default through, under, or by any of
its agents or representatives), the Tenant shall look solely to the interests of
such Landlord in the Building and Land; that neither Landlord nor LaSalle Bank
National Association, as Successor Trustee of Trust No 113370-03 shall have any
personal liability to pay any indebtedness accruing hereunder or to perform any
covenant, either express or implied, herein contained and no liability or duty
shall rest upon any Landlord which is a land trust to sequester the trust estate
or the rents, issues and profits arising therefrom, or the proceeds arising from
any sale or other disposition thereof; that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be asserted or
enforceable against, Landlord, LaSalle Bank National Association, as Successor
Trustee under Trust No. 113370-03 or any beneficiaries under any land trust
which may become the owner of the Building, on account of this Amendment or on
account of any representation, warranty, covenant, undertaking or agreement of
Landlord in this Amendment contained, either express or implied, all such
personal liability, if any, being expressly waived and released by Tenant and by
all persons claiming by, through, or under Tenant; and that this Amendment is
executed and delivered by the undersigned Landlord not in its own right, but
solely in the exercise of the powers conferred upon it as such Successor
Trustee.
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed on the date first above
written.
| LANDLORD: | |||
|
111
Xxxxxxx Associates
|
|||
| By: Van Vlissingen & Co., it's authorized agent | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name Xxxxxxx Xxxxxxxx | |||
| Title President | |||
| TENANT: | |||
| BioSante Pharmaceuticals | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Name Xxxxxxx X. Xxxxx | |||
| Title President and CEO | |||
