FIFTH LEASE AMENDMENT
THIS FIFTH LEASE AMENDMENT
(this “Amendment”) is made this ___ day of July, 2010, between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership (“Landlord”) and CUTANEA LIFE SCIENCES, INC., a
Delaware corporation (“Tenant”).
BACKGROUND
A. Landlord
and Tenant are parties to a Lease Agreement dated January 20, 2006, as amended
by a First Amendment to Lease Agreement dated as of February 27, 2009, a Second
Amendment to Lease Agreement dated as of August 1, 2009, a Third Amendment to
Lease Agreement dated as of December 21, 2009, and a Fourth Amendment to Lease
Agreement dated as of March 12, 2010 (collectively, the “Lease”) pursuant to
which Tenant occupies Suite 355 consisting of approximately 3,330 rentable
square feet (“Premises”) in the building commonly known as 0 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx (the “Building”). Tenant formerly
occupied Suite 200 in the Building.
B. The
Expiration Date of the Lease prior to this Amendment is July 31,
2010.
C. Tenant
wishes to extend the term of the Lease.
Accordingly,
the parties agree as follows:
1. Term. The term of the Lease is
extended through December 31, 2010.
2. Minimum Annual
Rent. Section 1(f) of the Lease is amended by adding the
following:
LEASE PERIOD
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MONTHLY RENT
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08/01/10
- 12/31/10
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$3,424.35
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3. Annual Operating
Expenses. Tenant shall continue to pay Annual Operating
Expenses and monthly installments on account of estimated Annual Operating
Expenses based on Tenant’s Share, which shall be subject to reconciliation and
adjustment as provided in Section 6 of the Lease (currently estimated to be
$2,591.85 per month).
4. As-Is. Tenant
accepts the Premises in its “As-Is” condition, and Landlord shall not be
required to further improve the Premises. Tenant shall not make other
improvements to the Premises, except painting and carpeting at Tenant’s option,
and those repairs required by the Lease.
5. Broker. Tenant
represents and warrants to Landlord that it has dealt with no brokers in
connection with this Amendment other than Xxxxxxx & Xxxxxxxxx of
Pennsylvania. Tenant shall indemnify and hold Landlord harmless from
a breach of this representation and warranty.
6. Capitalized
Terms. All capitalized terms used and not separately defined
in this Amendment have the meanings assigned to them in the Lease.
7. Counterparts. This
Amendment may be executed in counterparts and may be delivered by electronic
transmittal of signed original counterparts, which shall have the same full
force and effect as if an original executed copy of this Amendment had been
delivered.
8. Full Force and
Effect. Except as expressly modified herein, the terms and
conditions of the Lease remain unchanged and in full force and
effect.
9. Default. To
Tenant's knowledge, there are no uncured defaults on the part of Landlord under
the Lease, and there are no events which have occurred that, with the giving of
notice or the passage of time or both, would result in a default by Landlord
under the Lease. At the present time Tenant has no claim against
Landlord under the Lease.
10. Confession of
Judgment.
(a) If
an Event of Default occurs relating to Tenant's non-payment of the Rent due
under the Lease, Tenant hereby authorizes any attorney of any court of record of
the Commonwealth of Pennsylvania to appear for Tenant and to confess judgment
against Tenant, and in favor of Landlord, for all Rent due plus costs and an
attorney's collection commission equal to the greater of 10% of all Rent or
$1,000, for which the Lease or a true and correct copy of the Lease shall be
good and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING
PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR
HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR
MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT
FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS,
LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS
LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE
JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD
CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF
SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN
CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO
EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE
COSTS OF THE EXECUTION. Such authority shall not be exhausted
by one exercise thereof, but judgment may be confessed as aforesaid from time to
time as often as any of the Rent and other sums shall fall due or be in arrears,
and such powers may be exercised as well after the expiration of the Second
Extension Term and during any extended or renewal term and after the expiration
of any extended or renewal term of the Lease.
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(b) When
the Lease and the Term or any extension thereof have been terminated on account
of any default by Tenant, or when the Term or any extension thereof has expired,
Tenant hereby authorizes any attorney of any court of record of the Commonwealth
of Pennsylvania to appear for Tenant and for anyone claiming by, through or
under Tenant and to confess judgment against all such parties, and in favor of
Landlord, in ejectment and for the recovery of possession of the Premises, for
which the Lease or a true and correct copy of thereof shall be good and
sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT
A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND
WITHOUT A HEARING. If for any reason after such action shall
have been commenced it shall be determined and possession of the Premises remain
in or be restored to Tenant, Landlord shall have the right for the same default
and upon any subsequent default(s) or upon the termination of the Lease or
Tenant's right of possession as herein set forth, to again confess judgment as
herein provided, for which the Lease or a true and correct copy thereof shall be
good and sufficient warrant.
(c) The
warrants to confess judgment set forth above shall continue in full force and
effect and be unaffected by amendments to the Lease or other agreements between
Landlord and Tenant even if any such amendments or other agreements increase
Tenant's obligations or expand the size of the Premises.
(d) TENANT EXPRESSLY AND ABSOLUTELY
KNOWINGLY AND EXPRESSLY WAIVES AND RELEASES (i) ANY RIGHT, INCLUDING, WITHOUT
LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY HAVE TO RECEIVE A
NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR REPOSSESSION OF THE
PREMISES AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE AND TO HEARING PRIOR
TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR THEREAFTER AND (iii) ANY
PROCEDURAL ERRORS IN CONNECTION WITH THE ENTRY OF ANY SUCH JUDGMENT OR IN THE
ISSUANCE OF ANY ONE OR MORE WRITS OF POSSESSION OR EXECUTION OR GARNISHMENT
THEREON.
To evidence the parties’ agreement with
this Amendment, Landlord and Tenant have executed it on the day and year first
above written.
LANDLORD:
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LIBERTY
PROPERTY LIMITED PARTNERSHIP
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By:
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Liberty
Property Trust, Sole General Partner
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By:
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Xxxxx
X. Xxxxxxxxxx, Xx.
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Sr.
Vice President / Regional Director
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TENANT:
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CUTANEA
LIFE SCIENCES, INC.
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By:
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Name:
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Title:
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