EXHIBIT 10.48
First Amendment to Lease
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This Amendment, dated May 18, 2001, is executed by and between (1)
Nancy Ridge Technology Center, LLC, a California limited liability company
("Lessor"), and (2) Neose Technologies, Inc., a Delaware corporation ("Lessee").
This Amendment is entered into with reference to the following facts:
Recitals:
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A. Lessor and Lessee have previously executed and delivered that
certain Standard Industrial/Commercial Multi-Tenant Lease-Net dated February 2,
2001 ("the Lease") pertaining to certain space in a building commonly known as
6330 Nancy Ridge Drive, Suites 102 and 103, San Diego, California 92121 ("the
Premises").
B. Under Paragraph 52 of the Lease, Lessor and Lessee were each
responsible for payment of certain costs pertaining to improvements to be
installed in the Premises.
C. Following execution of the Lease, Lessor and Lessee have been able
substantially to determine the scope of the improvements to be installed in the
Premises and, as a consequence thereof, desire to modify the Lease as provided
herein.
Covenants:
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In consideration of the above recitals and the mutual agreements
stated below, the parties agree:
1. Depletion of Prior Provision. Paragraph 52 of the Lease is deleted
in its entirety and the following substituted therefor:
52. Tenant Improvements. Lessor shall enter into a contract with
Pacific Interior Systems ("Contractor") substantially in form and of
content as Exhibit A attached hereto ("the Construction Contract"). The
work of improvement to be performed by Contractor in accordance with
the terms of the Construction Contract, as such work may be modified
pursuant to change orders as provided below, is herein referred to as
the "Tenant Improvement Work" and such improvements are herein referred
to as the "Tenant Improvements." As used herein, the term "the Plans"
shall mean the plans and specifications as identified in the exhibits
to the Construction Contract. Notwithstanding that Lessee shall
contribute to the cost of the Tenant Improvements as provided below,
all of the Tenant Improvements shall remain Lessor's property and shall
be surrendered by Lessee to Lessor upon expiration or termination of
this Lease.
52.1. Payment of Tenant Improvement Work. Under the Construction
Contract, the cost of the Tenant Improvement Work is $544,882.00
("Original Contract Price"). Lessor and Lessee shall be responsible for
payment of $415,708.00 and $129,174.00 of the Original Contract Price,
respectively. If the Original Contract Price is increased during the
course of the completion of the Tenant Improvement Work, then such
increase shall be borne as follows:
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52.1.1. If the increase to the Original Contract Price is
the result of a Lessee directed change in the scope of the work to be
performed by Contractor (a "Lessee Change Order"), then Lessee shall
pay the full amount of any such increase to the Original Contract
Price.
52.1.2. If the increase to the Original Contract Price is
the result of a Lessor directed change in the scope of the work to be
performed by Contractor (a "Lessor Change Order"), then Lessor shall
pay the full amount of any such increase to the Original Contract
Price.
52.1.3. If the increase to the Original Contract Price is
the result of an unexpected change in the scope of the Tenant
Improvement Work which entitles Contractor to additional compensation
(e.g., change in building codes, unforeseen site condition, unforeseen
unavailability of materials, etc.) (an "Unforeseen Change Order"), then
Lessor and Lessee shall each pay one-half of any such increase in the
Original Contract Price.
52.2 Timing of Payment of Construction Costs. Upon the later
of (1) two business days prior to the date on which Contractor is
entitled to payment under the terms of the Construction Contract or (2)
10 days following Lessee's receipt of a billing request under the
Construction Contract, Lessee shall deliver to Lessor immediately
available funds in an amount equal to Lessee's Proportionate Share of
the payment then due. As used herein, "Lessee's Proportionate Share"
shall mean the sum of (1) 23.7 percent of the portion of the payment
due attributable to the Original Contract Price, (2) the full amount of
any portion of the payment due attributable to a Lessee Change Order
and (3) 50 percent of any portion of the payment due attributable to an
Unforeseen Change Order. Provided that Lessee has timely paid to Lessor
Lessee's Proportionate Share of a payment owed to Contractor, then
Lessor shall pay to Contractor the full amount of the payment then owed
prior to delinquency. If a party fails timely to make payment required
under this paragraph, the non-defaulting party may advance payment and
the defaulting party shall be obligated to reimburse the non-defaulting
party for (1) the amount so advanced, (2) interest at the rate
specified in this Lease from the date of the advance and (3) a late
charge equal to 10 percent of the amount advanced.
52.3 Reconciliation. Upon completion of the Tenant
Improvement Work and determination of the final cost of the Tenant
Improvement Work ("Adjusted Contract Price"), Lessor and Lessee shall
meet to confirm that each has paid their respective shares of the
Adjusted Contract Price as required under Paragraph 52.1 above. To the
extent a party has underpaid, then the party that has underpaid shall
promptly pay the other party or Contractor, as the case may be, the
amount owing.
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52.4 Design and Permitting Costs. Lessor shall be
responsible for payment of (1) fees and cost for architectural,
engineering and other design services (collectively "Design Costs")
pertaining to the design of "Lessor's Original Floor Plan" [as such term
is defined in Paragraph 52 of the Lease prior to this Amendment by
reference to Exhibit C-1 attached to the Lease] (the amount of which is
$32,133.62 and has already been paid by Lessor) and (2) $3,240.00 of the
cost to obtain the building permit for the Tenant Improvements (the
actual amount of which is expected to be $2,708.93, which amount has
already been paid by Lessor). Subject to possible adjustment as provided
below, Lessee shall pay for (1) Design Costs for the Tenant Improvements
in excess of the amount paid, or to be paid by Lessor, under the
preceding sentence and (2) the cost to obtain the building permit for
the Tenant Improvements in excess of $3,240.00. Notwithstanding the
preceding sentence, Lessor shall be responsible for additional Design
Costs and/or building permit costs as follows:
52.4.1. If the additional costs are the result of a
Lessor Change Order, then Lessor shall pay the full amount of any such
additional costs.
52.4.2. If the additional costs are the result of an
Unforeseen Change Order, then Lessor and Lessee shall each pay one-half
of any such additional costs.
52.5. Timing of Payment of Design/Permit Costs. Upon the later
of (1) two business days prior to the date on which any payment for
Design Costs or permit costs is due or (2) 10 days following Lessee's
receipt of a billing request for Design Costs and/or building permit
costs, Lessee shall pay to Lessor the portion of the amount then due
which is owed by Lessee as determined in Paragraph 52.4 above. If
Lessee has timely paid Lessor, then Lessor shall pay the full amount of
the Design Costs and/or permit costs prior to delinquency. If a party
fails timely to make payment required under this paragraph, the
non-defaulting party may advance payment and the defaulting party shall
be obligated to reimburse the non-defaulting party for (1) the amount
so advanced, (2) interest at the rate specified in this Lease from the
date of the advance and (3) a late charge equal to 10 percent of the
amount advanced.
52.6. Change Orders. Subject to the other party's consent
which shall not be unreasonably withheld, either party may direct
Contractor to make changes to the scope of the Tenant Improvement Work
which do not materially vary from the scope of work described in the
Plans.
52.7. Restoration Cost. Lessee acknowledges (1) Lessor
originally intended that the two suites that comprise the Premises
(i.e., Suite 102 and 103) be improved and built out as separate suites,
(2) the Plans provide that the Tenant Improvements will be installed
such that the Premises will constitute a single suite and (3) the
estimated cost to restore the Premises to two separate suites is
approximately $38,000.00. Based upon the foregoing, Lessee agrees that,
if within one year following the expiration or termination of this
Lease, Lessor incurs expenses to divide the Premises into two separate
suites, then Lessee shall pay to Lessor the lesser of the actual costs
incurred by Lessor to complete such work or $38,000.00.
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2. Confirmation. Except as amended hereby, the Lease is ratified and
confirmed.
Nancy Ridge Technology Center, Neose Technologies, Inc.,
LLC, a California limited a Delaware corporation
liability company
By: /s/ Christopher L. Loughridge By: /s/ P. Sherrill Neff
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Christopher L. Loughridge P. Sherrill Neff
Manager President and COO
Schedule of exhibits
Exhibit A - Construction Contract
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