Exhibit 10.1
FIRST AMENDMENT TO LEASE
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THIS AMENDMENT, made the 18th day of August, 2004 by and between
Arthur J. Rogers & Co., as managing agent for the beneficiary owner, as
Landlord, and Immtech International, Inc., a Delaware Corporation, (herein
referred to as "Tenant").
WITNESSETH
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That the Lease Agreement dated August 26, 1999, between the parties
hereto, covering 10,600 square feet of space in the building known by street
address as 150 Fairway Drive, Suite 148-150, Vernon Hills, Illinois 60061, as
more particularly shown in said Lease, for a term commencing November 15, 1999
and expiring March 14, 2005 is hereby further amended and extended as follows:
AND
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WHEREAS, Landlord and Tenant now desire to amend said Lease in the
following manner, but in no other respects;
NOW, THEREFORE, in consideration of the premises and of the
covenants herein made, Landlord and Tenant agree that the above described Lease
be amended as follows:
1.0 TERM
Effective March 15, 2005 said Lease is extended for a term of five
(5) years, expiring March 14, 2010.
1.1 RENTAL
Tenant shall pay to Landlord the sum of Five hundred thousand, eight
hundred fifty dollars and 00/100 ($500,850.00) as rent in installments as
follows:
From 3/15/05 to 3/14/06 in monthly installments of $8,170.83
From 3/15/06 to 3/14/07 in monthly installments of $8,170.83
From 3/15/07 to 3/14/08 in monthly installments of $8,170.83
From 3/15/08 to 3/14/09 in monthly installments of $8,612.50
From 3/15/09 to 3/14/10 in monthly installments of $8,612.50
1.2 ADDITIONAL RENT - REAL ESTATE TAX AND TENANT'S PROPORTIONATE SHARE
In addition to Fixed Rent, Tenant shall pay to Landlord Tenant's
proportionate share (8.87%) ("Tenant's Proportionate Share") of all taxes and
assessments, general and special, and all other impositions, ordinary and
extraordinary, of any kind and nature whatsoever (or any substitution thereof),
which may be levied, assessed or imposed upon the Development (as
constructed from time to time) and Tenant's proportionate share of any and all
reasonable fees and expenses incurred by Landlord in its efforts to reduce said
taxes (collectively "Real Estate Taxes"). If Landlord is successful in reducing
said taxes, Tenant shall share proportionately in such reduction.
The Landlord shall in good faith estimate the real estate taxes to
be incurred by the Landlord during each year of the Lease and a sum equal to one
twelfth (1/12th) thereof shall be paid by the Tenant each month of the term of
this Lease.
Payment of additional rental for Tenant's proportionate share of
real estate taxes is due within ten (10) days following Tenant's receipt of the
invoice. Late payments are subject to late charges as included in Section 1.7.
Within ninety (90) days following receipt of the bill for real estate taxes for
the applicable year, Landlord shall furnish the Tenant with a copy of the same
and there shall be an adjustment between the Landlord and Tenant with payment to
or a refund by Landlord, as the case may be, so that the amount charged to the
Tenant does not exceed Tenant's proportionate share of the real estate taxes
actually paid.
Upon the termination of the Lease, by lapse of time or otherwise,
the Tenant shall pay Tenant's proportionate share based upon the actual amount
of real estate taxes, if known, or if not known, based on an estimate of the
previous year's actual real estate taxes prorated for any partial calendar year.
This amount will be billed and due prior to the last day of occupancy.
1.3 ADDITIONAL RENT - COMMON AREA EXPENSES
Tenant shall pay to the Landlord as additional rent for the
Premises, Tenant's proportionate share (6.51%) of the expenses attributable to
"Common Areas" (hereafter defined). If, when billed, the Tenant's proportionate
share has been estimated, the Landlord shall, upon receipt of the bill for
Common area expenses for the applicable year compute the actual amount payable
by the Tenant and either refund overpayment or bill the Tenant for underpayment.
Billings for additional rental for Common Area Expense are due within ten (10)
days following receipt of the invoice. Late payments are subject to late charges
as included in Section 1.7.
The Landlord shall in good faith estimate the "Common area expenses"
(hereafter defined) to be incurred by the Landlord during each year of the Lease
and a sum equal to one twelfth (1/12th) thereof shall be paid by the Tenant each
month of the term of this Lease.
"Common area expenses" shall mean any and all reasonable expenses
incurred by the Landlord in connection with common areas within the Building and
Development, including, but not limited to, snow removal, landscaping, exterior
window washing, parking lot, the roof, exterior wall, foundation, sidewalk
repair and maintenance, cleaning, fire and extended coverage insurance and
liability insurance against casualties in such Common Areas, management fees and
other expenses usually and customarily charged to tenants as Common Area
expenses in like industrial developments, but excluding capital expenditures of
any kind. Landlord expressly reserves the right to determine the manner in which
these common areas shall be maintained. Landlord shall maintain areas in a
first-class manner.
Within ninety (90) days following the end of each calendar year
during the term of the Lease, Landlord will furnish Tenant with a Statement of
Common area expenses prepared
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and certified to by an independent certified public accountant, which Statement
shall be binding on Landlord and Tenant. Any overpayment made by the Tenant
shall be refunded to Tenant and any underpayment shall be billed to and paid by
Tenant. In the event of any dispute as to Tenant's proportionate share of Common
area expenses, the Tenant shall have the right once each twelve (12) calendar
month period, upon reasonable written notice, at its own expense, to inspect the
Landlord's accounting records relative to Common area expenses at Landlord's
accounting office during normal business hours. Unless Tenant shall take written
exception to any item included in Common area expenses for any period prior to
such inspection within fifteen (15) days following such inspection, all previous
statements shall be considered as final and accepted by the Tenant. Tenant shall
have the right to copy Landlord's records at the Tenant's expenses within
Landlord's office.
Upon the termination of the Lease, by lapse of time or otherwise,
the Tenant shall pay Tenant's proportionate share based upon the actual amount
of Common area expenses, if known, or if not known, based on an estimate of the
previous year's actual Common area expenses prorated for any partial calendar
year. This amount will be billed and due prior to the last day of occupancy. If,
when billed, the Tenant's proportionate share has been estimated, the Landlord
shall, upon receipt of the bill for Common area expenses for the applicable year
compute the actual amount payable by the Tenant and either refund overpayment or
bill Tenant for underpayment.
1.4 DEFINITION OF TENANT'S PROPORTIONATE SHARE
For sections 1.2 "Tenant's proportionate share" has been computed by
dividing 119,540 square feet (the total rentable area of the industrial
buildings) into 10,600 square feet (the square footage of the leased premises).
For sections 1.3 "Tenant's proportionate share" has been computed by
dividing 162,740 square feet (the total rentable area of the entire development)
into 10,600 square feet (the square footage of the leased premises).
COMMISSIONS
With regards to the Landlord and the Landlord's Exclusive Agent
(Arthur J. Rogers & Company) paying commissions for existing Tenants renewing,
extending or expanding their Lease, it is expressly understood, in all cases,
that the Tenant's representative, if any, will be directly compensated for its
services by the Tenant. And further, both the Landlord and the Landlord's
Exclusive Agent reserves the right to require written confirmation from the
Tenant, that the Tenant is responsible for such compensation prior to commencing
any communications or discussions with the Tenant's Representative.
It is mutually understood and agreed by the parties hereto that,
unless specifically changed or amended above, this Lease Amendment does not
modify or amend any of the provisions, conditions, terms or covenants of the
Lease dated August 26, 1999 and all Amendments thereto.
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RATIFIED AND CONFIRMED
WITNESS the signature and seal of Landlord this ___ day of
_______________, 2004 A.D., and the signature and seal of Tenant this ___ day of
_______________, 2004 A.D. THE LANDLORD:
THE LANDLORD: THE TENANT:
ARTHUR J. ROGERS & CO., as Managing IMMTECH INTERNATIONAL INC., a Delaware
agent for the beneficiary owner. corporation
By: By:
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Name: William G. Schmitz Name:
Title: RPA/President Title:
Date: Date:
Landlord's offer may be withdrawn by the Landlord or its Agent at
any time without notice, and does not constitute a binding offer or Lease
Amendment until properly signed by all parties to the Lease Amendment, and a
fully executed copy is delivered by the Landlord to the Tenant.
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