Exhibit 10.1
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO
LEASE (hereinafter referred to as the “Amendment”)
dated as of June 6, 2006 by and among Danbury Buildings, Inc
., a Florida corporation acting as agent for Danbury Buildings Co.,
L.P., a Delaware limited partnership having offices c/o Sunbelt
Investment Holdings, Inc., 220 Congress Park Drive, Delray Beach,
FL 33445 (hereinafter referred to as “Overlandlord”),
Union Carbide Corporation , a New York corporation having
offices at 400 West Sam Houston Parkway South, Houston, TX 77042
(hereinafter referred to as the “Landlord”), and
Penwest Pharmaceuticals Co. , a Washington corporation
having offices at 39 Old Ridgebury Road, Danbury, CT 06810
(hereinafter referred to as the “Tenant”).
WITNESSETH
Whereas, Overlandlord’s
predecessor corporations and Landlord executed that certain Lease
Agreement dated as of December 29, 1986, as amended
thereafter, for the building now known as Corporate Center
(hereinafter referred to as the “Prime Lease”);
and
Whereas, Landlord and Tenant executed
that certain Lease Agreement dated as of February 3, 2003,
which Lease Agreement was amended by Lease Amendment and Attornment
Agreement dated as of March 15, 2004, (said Lease Agreement as
so amended is hereinafter referred to as the “Lease”)
to sublease office space at the building commonly known as
Corporate Center in Danbury Connecticut; and
Whereas, the Lease provides Tenant
with certain Renewal Options, as therein defined, to extend the
Term of the Lease and by Letter dated March 17, 2006 from
Tenant to Overlandlord, the Tenant has elected to exercise its
first Renewal Option to extend the term of the Lease for one
(1) year; and
Whereas, the parties wish to amend
the Lease accordingly;
Now, Therefore, in consideration of
the mutual covenants and obligations contained herein, Landlord and
Tenant hereby amend the Lease as follows:
1.
Incorporation and Definitions . The foregoing
Recitals are hereby incorporated into and made an integral part of
this Amendment as if fully set forth herein. Capitalized terms used
in this Amendment which are not defined herein shall have the
meanings ascribed to such terms in the Lease.
2.
Term . The Lease shall be amended to provide
that the Term of the Lease (hereinafter referred to as the
“Term”) shall be extended to and including
December 31, 2007 and the termination date of the Lease
(hereinafter referred to as the “Termination Date”)
shall be December 31, 2007.
3.
Base Rent . During the period commencing on
December 31, 2006 through December 31, 2007 Tenant shall
pay Base Rent (hereinafter referred to as the “Base
Rent”) in the amount of Five Hundred Thirty Seven Thousand
One Hundred Seventy Five Dollars and No Cents ($537,175.00),
payable in equal monthly installments in the amount of Forty Four
Thousand Seven Hundred Sixty Four Dollars and Fifty Eight Cents
($44,764.58) which Base Rent monthly installments shall be paid in
advance on the first day of January, 2007 and on the first day of
each and every month thereafter during the Term. All Rent is
payable without notice, set-off or demand.
4.
Condition of Premises . Tenant hereby
acknowledges and agrees as of the date hereof that it is in full
possession of the Premises, that Tenant is satisfied with and
accepts the condition of the Premises existing as of the date
hereof, that Landlord has performed all of its obligations under
the Lease and that Landlord has no obligation to improve or repair
the Premises, or to pay for or reimburse Tenant for any such
improvements or repairs.
5.
Broker. Landlord, Overlandlord and Tenant each
represent and warrant that there were no real estate brokers or
agents involved in connection with the Lease, as amended hereby,
except for Cushman & Wakefield Inc. who represented the Tenant
and Grubb & Ellis Company who represented the Landlord and
Overlandlord. Overlandlord agrees to pay any fee or commission owed
to Grubb & Ellis Company and to Cushman & Wakefield, Inc.
in connection with the Lease as amended hereby. Landlord and
Overlandlord, on the one hand, and Tenant, on the other hand, each
indemnify and hold harmless the other against any and all claims
for real estate commissions or finder’s fees due to their
respective brokers and from any other brokers incurred as a result
of the acts of the indemnifying party.
6.
Continuing Effect . Except as expressly
modified and amended by this instrument, the terms, covenants and
conditions of the Lease are hereby ratified and confirmed, and
remain in full force and effect. In the event of any conflict
between the terms of the Lease and of this Amendment, the terms of
this Amendment shall control.
7.
Estoppel . As an inducement to Landlord and
Overlandlord to enter into this Amendment the Tenant hereby
warrants and represents to Landlord and Overlandlord that:
(i) the Lease as amended hereby, has not been assigned or any
of the Premises sublet; (ii) the Lease as amended hereby, is
in full force and effect and has not been modified, supplemented,
or amended; (iii) to the knowledge of Tenant, Landlord is not
in default under the Lease and Tenant has no defenses, setoffs,
claims or counterclaims against Landlord arising out of the Lease,
as amended hereby, or in any way relating thereto; (iv) Tenant
has not paid any rentals more than one (1) month in advance;
(v) Tenant has accepted and is in full and complete occupancy
and possession of all of the Premises demised pursuant to the
Lease, as amended hereby, and the improvements and space required
to be furnished according to the Lease have been satisfactorily
completed in all respects and Landlord has fulfilled all of its
duties of an inducement nature required to have been fulfilled to
date; (vi) to the knowledge of Tenant, no payments,
reimbursements, credits or offsets are due from Landlord to Tenant
under the Lease, as amended hereby, and no work is required to be
done by Landlord to any of the premises demised under
2
said
Lease. As an inducement to Tenant to enter into this Amendment the
Landlord and Overlandlord hereby warrant and represent to Tenant
that: (i) the Lease as amended hereby, is in full force and
effect and has not been modified, supplemented, or amended;
(ii) to the knowledge of Landlord and Overlandlord, Tenant is
not in default under the Lease.
8.
Binding Effect . The terms, conditions and
covenants of the Lease, as modified hereby, shall be binding upon
and inure to the benefit of Landlord, Tenant and their respective
successors and permitted assigns.
9.
Headings . The paragraph headings herein contained
are for convenience and shall not be deemed to govern or control
the substance hereof.
10. Governing
Law . This Amendment shall be governed and construed under
the laws of the State of Connecticut.
11.
Authority . Landlord, Overlandlord and Tenant
represent, each for themselves and with respect only to themselves,
that; (i) they have full authority to enter into this
Amendment, are validly formed and in good standing under the laws
of the state in which they were formed and the State of Illinois;
(ii) that this Amendment has been duly approved by all
necessary corporate action and that the person or persons signing
on their behalf are duly authorized to execute this Amendment with
binding effect upon Landlord, Overlandlord and Tenant;
(iii) this Amendment constitutes the legal, valid and binding
obligations of Landlord, Overlandlord and Tenant, enforceable in
accordance with its terms; (iv) the execution and delivery of
this Amendment does not and will not: (a) contravene any
provision of the organizational documents comprising Landlord,
Overlandlord or Tenant; or (b) require consent by a third
party or such consent has, as of the date hereof, been obtained;
and the consummation by Landlord, Overlandlord and Tenant of this
Amendment will not result in a breach of any of the terms of any
agreement or instrument to which Landlord, Overlandlord or Tenant
are a party or by which such entities are bound.
12.
Counterparts . This Amendment may be executed in two
or more counterparts, all of which, when taken toget
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