EXHIBIT 10.1
FIRST AMENDMENT TO LEASE
THIS AGREEMENT (hereinafter referred to as the "Amendment") made as of
the16 day of March 2001, between 826 NEWTOWN ASSOCIATES, L.P., a Delaware
limited partnership, whose address is C/O First Evergreen, 101 Eisenhower
Parkway, Roseland, New Jersey 07068 (hereinafter referred to as "Landlord"), and
AXCELL BIOSCIENCES CORPORATION, a Delaware corporation (hereinafter referred to
as "Tenant"), with offices at 826 Newtown-Yardley Road, Newtown, Pennsylvania
18940.
W I T N E S S E T H:
WHEREAS, Tenant and Landlord's predecessor-in-interest, Yardley Road
Associates, L.P., entered into a Lease made as of July 23, 1999 (hereinafter
referred to as the "Lease"), whereby Tenant is presently in possession of
premises containing approximately 9,146 gross rentable square feet of space
(hereinafter referred to as the "Original Premises") in the building located at
826 Newtown Yardley Road, Newtown, Pennsylvania (hereinafter referred to as the
"Building"); and
WHEREAS, Tenant desires to lease additional space in the Building, and
Landlord is willing to lease such additional space to Tenant on the terms and
provisions set forth in the Lease, except to the extent provided for herein; and
WHEREAS, the parties hereto desire to amend the Lease only in the
respects and on the conditions hereinafter stated.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. For purposes of this Amendment, capitalized terms shall have the
meanings ascribed to them in the Lease unless otherwise defined herein.
2. Landlord and Tenant hereby confirm that the expiration date of the
Term with respect to the Original Premises is currently December 31, 2004
(hereinafter referred to as the "Original Term1'). The term of the Original
Premises shall not be extended by this Amendment.
3. From and after the Additional Space Commencement Date (as
hereinafter defined) and continuing through the Additional Space Expiration Date
(as hereinafter defined), Tenant hereby leases from Landlord additional space
consisting of approximately 5,680 gross rentable square feet ("hereinafter
referred to as the "Additional Space") which Additional Space is shown on
Exhibit A attached hereto and made a part hereof.
4. The term for the Additional Space (hereinafter referred to as the
"Additional Space Term") shall commence on the date which is the first to occur
of (i) the date "Landlord's Work" (as hereinafter defined) in the Additional
Space is deemed substantially completed and possession of the Additional Space
is delivered to Tenant free from all tenants, occupants and their personal
property, or the date Landlord would have substantially completed and delivered
possession of the Additional Space to Tenant but for any reason attributable to
Tenant; and (ii) the date upon which the Additional Space is occupied by Tenant
for the conduct of Tenant's business (hereinafter referred to as the "Additional
Space Commencement Date"), and shall expire on 11:59 p.m. on the day preceeding
the fifth (5th) anniversary of the Additional Space Rent Commencement Date (as
hereinafter defined).
5. From and after the Additional Space Commencement Date and
continuing through the expiration of the Original Term, the Demised Premises
shall be deemed to include the Additional Space and shall consist of
approximately 14,826 gross rentable square feet of space and Sections 5 and 10
of the Preamble shall be deemed modified accordingly.
6. From and after the Additional Space Commencement Date and
continuing through the expiration of the Original Term, Tenant's Proportionate
Share shall be Twelve and 36/100 (12.36%) percent and Section 10 of the Preamble
shall be deemed modified accordingly.
7. From and after the expiration of the Original Term and continuing
through the Additional Space Expiration Date, and provided Tenant has elected
not to extend the Original Term of this Lease as set forth in Rider A to the
Lease, the Demised Premises shall mean the Additional Space only consisting of
approximately 5,680 gross rentable square feet of space and Sections 5 and 10 of
the preamble shall be deemed modified accordingly.
8. From and after the expiration of the Original Term and continuing
through the Additional Space Expiration Date, and provided Tenant has elected
not to extend the Original Term of this Lease as set forth in Rider A to the
Lease, Tenant's Proportionate Share shall be Four and 73/100 (4.73%) percent and
Section 10 of the Preamble shall be deemed modified accordingly.
9. From and after the later to occur of (i) the Additional Space
Commencement Date and (ii) July 1, 2001 (hereinafter referred to as the
"Additional Space Rent Commencement Date"), Tenant shall pay to Landlord, in
addition to the Fixed Basic Rent due and payable for the Original Premises,
Fixed Basic Rent for the Additional Space as follows:
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- --------------------------------------------------------------------------------
Period Rate per Annual Fixed Monthly
Rentable Basic Rent Installment
Square foot (based upon
(net of twelve equal
operating costs Monthly
and utilities) Installments)
- --------------------------------------------------------------------------------
Additional $22.35 $126,948.00 $10,579.00
Space Rent
Commencement
Date-06/30/02
- --------------------------------------------------------------------------------
07/01/02- $22.85 $129,788.00 $10,815.67
06/30/03
- --------------------------------------------------------------------------------
07/01/03- $23.35 $132,628.00 $11,052.33
06/30/04
- --------------------------------------------------------------------------------
07/01/04- $23.85 $135,468.00 $11,289.00
06/30/05
- --------------------------------------------------------------------------------
07/01/05- $24.35 $138,308.00 $11,525.67
Additional
Space
Expiration Date
- --------------------------------------------------------------------------------
The aforesaid Monthly Installments of Fixed Basic Rent for
the Additional Space shall be payable in advance on or before the first day of
each calendar month commencing upon the Additional Space Rent Commencement Date
and continuing through the Additional Space Expiration Date, without set-off,
deduction, counterclaim or any previous demand therefor (except as otherwise set
forth in the Lease), and Paragraph 7 of the Preamble and Section 6 of the Lease
shall be deemed modified accordingly. Landlord acknowledges receipt, by check
subject to collection, of the first Monthly Installment of Fixed Basic Rent due
and payable for the Additional Space.
10. Tenant hereby acknowledges to Landlord that as of the Additional
Space Commencement Date, Tenant is leasing the Additional Space in its "AS IS"
condition as of the date hereof, except that Landlord hereby agrees to cause the
work set forth on Exhibit B annexed hereto and made a part hereof (hereinafter
referred to as "Landlord's Work") to be performed to the Additional Space.
Landlord hereby agrees to contribute towards the cost of the preparation of the
plans and the construction of the Landlord's Work an amount equal to the sum of
Twelve and 00/100 ($12.00) Dollars per rentable square foot for the Additional
Space only for a total allowance not to exceed Sixty-eight Thousand One Hundred
Sixty and 00/100 ($68,160.00) Dollars (hereinafter referred to as the
"Construction Allowance").
Any costs in excess of the Construction Allowance shall be
paid in full to Landlord by Tenant immediately upon demand, which shall be
deemed Additional Rent due under the Lease and shall be subject to all remedies
for the collection of Rent pursuant to the Lease and by law. Occupancy by Tenant
or the delivery of a Certificate of Occupancy (temporary or permanent) by
Landlord (if required pursuant to local law) shall be prima facie evidence that
Landlord has substantially completed all of Landlord's Work, subject to the
completion of such minor items as would typically be reflected in a "punchlist".
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11. Tenant and Landlord represent and warrant one to the other that
Kelley & Associates, Inc. (hereinafter referred to as "Broker") is the sole
broker which whom either party negotiated in bringing about this transaction,
and Tenant and Landlord agree to indemnify and hold each other harmless (and
Tenant agrees to indemnify and hold Landlord's mortgagee(s) harmless) from any
and all claims of any brokers arising out of or in connection with any conduct
by such party inconsistent with the representations tendered by one to the other
herein. In no event shall Landlord's mortgagee(s) have any obligation to any
broker alleged or determined to be involved in this transaction. It is
specifically understood and agreed that any commission(s) which may be due to
Broker shall be paid by Landlord pursuant to a separate agreement between
Landlord and Broker.
12. Upon execution of this Amendment, Tenant shall deposit with
Landlord the sum of Twenty-Three Thousand Fifty-one and 33/100 ($23,051.33)
Dollars, representing security for the Additional Space, and Three Thousand
Forty-eight and 67/100 ($3,048.67), representing additional security for the
Original Premises, so that Landlord shall have on hand for the remainder of the
Original Term, the total sum of Fifty-nine Thousand Four Hundred Six and 68/100
($59,406.68) Dollars as security (representing two (2) Monthly Installments of
Fixed Basic Rent for the Original Premises and the Additional Space at the
rental rates payable during the last year of the respective terms), and
Paragraph 11 of the Preamble and Section 38 of the Lease shall be deemed
modified accordingly.
From and after the expiration of the Original Term and
continuing through the Additional Space Expiration Date, and provided Tenant has
elected not to extend the Original Term of this Lease as set forth in Rider A to
the Lease, Landlord shall have on hand the sum of Twenty-Three Thousand
Fifty-one and 33/100 ($23,051.33) Dollars, representing security for the
Additional Space and Paragraph 11 of the Preamble and Section 38 of the Lease
shall be deemed modified accordingly.
13. Cytogen Corporation, the Guarantor under that certain Guaranty
dated July 14, 1999, executed in connection with the Lease, hereby ratifies and
affirms that the terms and conditions of said Guaranty remain in full force and
effect and shall apply with respect to the terms and provisions of the Lease as
amended by this Amendment.
14. Landlord and Tenant hereby agree that Tenant's right of early
termination of the Lease as provided for in Section 4 of the Lease shall be
deemed null and void and Tenant shall have no further right to terminate this
Lease pursuant to said Section 4.
15. Nothing contained herein shall be deemed a waiver or exercise of
Tenant's renewal options as set forth in the Lease. The existing renewal options
for the Original Premises, if exercised, shall include the Additional Space and
extend the Additional Space Term, and accordingly, if exercised, the expiration
dates for the renewal terms of the Original Premises and the Additional Space
shall be coterminus and occur on December 31, 2009 for the first renewal term
and December 31, 2014 for the second renewal term.
The Rent for the Original Premises for the first renewal term
shall be calculated as set forth in Rider A to the Lease. The Rent for the
Additional Space for the period from the Additional Space Expiration Date
through December 31, 2009 shall be calculated as set forth in Rider A of the
Lease. The Rent for the Original Premises and the Additional Space for the
second renewal term (e.g. January 1, 2010 through December 31, 2014) shall be
calculated as set forth in Rider A of the Lease.
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16. Tenant represents, warrants and covenants that Landlord is not in
default under any of its obligations under the Lease and that to the best of
Tenant's knowledge, Tenant is not in default of any of its obligations under the
Lease and no event has occurred which, with the passage of time or the giving of
notice, or both, would constitute a default by either Landlord or Tenant
thereunder.
17. Landlord represents, warrants and covenants that to the best of
Landlord's knowledge, Tenant is not in default under any of its obligations
under the Lease, and that to the best of Landlord's knowledge, Landlord is not
in default of any of its obligations under the Lease and no event has occurred
which, with the passage of time or the giving of notice, or both, would
constitute a default by either Landlord or Tenant thereunder.
18. Except as modified by this Amendment, the Lease and all the
covenants, agreements, terms, provisions and conditions thereof shall remain in
full force and effect and are hereby ratified and affirmed. The covenants,
agreements, terms, provisions and conditions contained in this Amendment shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns. In the event of any conflict between the terms contained
in this Amendment and the Lease, the terms herein contained shall supersede and
control the obligations and liabilities of the parties.
19. The submission of this Amendment for examination does not
constitute a reservation of, or option for, the Additional Space, and this
Amendment becomes effective only upon execution and delivery thereof by Landlord
and Tenant. If required, this Amendment is expressly conditioned upon Landlord
receiving the consent and approval of Landlord's mortgagee to its terms and
provisions. If said consent is required but not received, Landlord may, at
Landlord's sole option, cancel this Amendment and thereafter the parties shall
have no further obligations to each other with respect to this Amendment, except
that Tenant shall be entitled to the full refund of any and all monies delivered
to Landlord in connection with this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set
their hands and seals as of the date and year first above written, and
acknowledge the one to the other that they possess the requisite authority to
enter into this transaction and to sign this Amendment.
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LANDLORD:
826 NEWTOWN ASSOCIATES, L.P.
a Delaware limited partnership,
By: 826 NEWTOWN REALTY CORP.,
a Pennsylvania corporation,
its sole general partner
By : /s/ Mark S. Green
Mark S. Green, President
TENANT:
AXCELL BIOSCIENCES CORPORATION, a
DELAWARE corporation
By: /s/ Lawrence R. Hoffman
Name: Lawrence R. Hoffman
Title: Vice President & CFO
GUARANTOR:
CYTOGEN CORPORATION
By: /s/ Lawrence R. Hoffman
Name: Lawrence R. Hoffman
Title: Vice President & CFO
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EXHIBIT A
Diagram of space at 826 Newtown Newtown-Yardley Road
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EXHIBIT B
(Exhibit B consists of plans prepared by JBH 3 & Associates dated September 28,
2000, entitled "Axcell First Floor, Architectural Drawings.)
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