Exhibit 10.44
SECOND AMENDMENT TO OFFICE
LEASE
THIS SECOND AMENDMENT TO OFFICE
LEASE (this “ Second Amendment ”) is made as of
Sept. 16 th 2008, by and between Park Place Trust, a
Maryland business trust (“ Landlord ”) and
PharmAthene, Inc., a Delaware corporation (“
Tenant ”) .
WITNESSETH
:
WHEREAS, Landlord and Tenant entered
into that certain Office Lease dated September 14, 2006 (the
“ Original Lease ”) .
WHEREAS, Landlord and Tenant entered
into that certain First Amendment to Office Lease dated
January 22, 2007 (the “ First Amendment ”
and, together with the Original Lease, the “ Lease
”).
WHEREAS, pursuant to the Lease,
Landlord has leased to Tenant and Tenant has leased from Landlord
certain space (the “ Premises ”) ,
consisting of approximately twelve thousand five hundred
twenty-seven (12,527) rentable square feet of office space located
on the fourth (4th) floor of the building known as Park Place
Office Building One and located at West Street and Taylor Avenue,
Annapolis, Maryland (the “ Building ”) ,
as more particularly described in the Lease.
WHEREAS, Landlord has agreed to
lease to Tenant, and Tenant has agreed to lease from Landlord,
approximately 9,329 square feet of additional rentable area on the
fifth (5 th
) floor of the Building (the “
Fifth Floor Expansion Space ”) as shown on
Exhibit A-2 attached hereto.
WHEREAS, Landlord and Tenant desire
to amend the Lease upon the terms and conditions set forth in this
Second Amendment.
WHEREAS, except as otherwise defined
herein, all terms used in this Second Amendment that are defined in
the Lease shall have the same meaning as set forth in the
Lease.
NOW, THEREFORE, in consideration of
the sum of Ten Dollars ($10.00) cash in hand paid, the mutual
covenants hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Landlord hereby leases the Fifth Floor Expansion
Space to Tenant, and Tenant hereby leases the Fifth Floor Expansion
Space from Landlord. With the addition of the Fifth Floor Expansion
Space, the Demised Premises (as so expanded, the “ Demised
Premises Expanded ”) shall contain approximately 21,856
rentable square feet.
The Monthly Rent for the Fifth
Floor Expansion Space (“ Fifth Floor Expansion Space
Monthly Rent ”) from and after the Fifth Floor Expansion
Space Commencement Date (as defined below) shall be as
follows:
|
Period
|
|
Fifth Floor Expansion
Space
Monthly Rent
|
|
Rate Per
Square Foot
|
|
|
|
|
|
|
|
|
|
Fifth Floor Expansion Space
Commencement
|
|
|
|
$
|
31.93
|
|
|
|
|
|
|
|
|
|
Date through end of the Second Lease
Year (ending May 31, 2009)
|
|
$
|
24,822.91
|
|
|
|
|
|
|
|
|
|
|
|
Third Lease Year
|
|
$
|
25,569.23
|
|
$
|
32.89
|
|
|
|
|
|
|
|
|
|
Fourth Lease Year
|
|
$
|
26,338.88
|
|
$
|
33.88
|
|
|
|
|
|
|
|
|
|
Fifth Lease Year
|
|
$
|
27,131.84
|
|
$
|
34.90
|
|
|
|
|
|
|
|
|
|
Sixth Lease Year
|
|
$
|
27,948.13
|
|
$
|
35.95
|
|
|
|
|
|
|
|
|
|
Seventh Lease Year
|
|
$
|
28,787.74
|
|
$
|
37.03
|
|
|
|
|
|
|
|
|
|
Eighth Lease Year
|
|
$
|
29,650.67
|
|
$
|
38.14
|
|
|
|
|
|
|
|
|
|
Ninth Lease Year
|
|
$
|
30,536.93
|
|
$
|
39.28
|
|
|
|
|
|
|
|
|
|
Tenth Lease Year (ending
May 31, 2017)
|
|
$
|
31,454.28
|
|
$
|
40.46
|
|
With the addition of the Fifth
Floor Expansion Space, Tenant’s Share of Operating Expenses
shall be increased from 7.81% to 13.86%, Tenant’s Share of
Operating Costs shall be increased from 8.24% to 16.33% and
Tenant’s Share of Real Estate Taxes shall be increased from
7.81% to 13.86%, with such increased amounts pro rated to reflect
partial year tenancy with respect to the Fifth Floor Expansion
Space from the Fifth Floor Expansion Space Commencement Date
through the end of that calendar year.
2.
Letter of Credit
Landlord and Tenant acknowledge
that Tenant has provided a Security Deposit Letter of Credit (the
“ Letter of Credit ”) in the amount of
$183,588.00 pursuant to the First Amendment and
Section 6(B) of the Lease and that Tenant had the right
to reduce the Letter of Credit by $61,196.00 on the last day of the
first Lease Year, which right was not exercised by Tenant. Landlord
and Tenant agree that given Tenant’s right to terminate this
Second Amendment pursuant to the Fifth Floor Expansion Space
Termination Option as provided in Section 4 hereof, and in
consideration of Landlord’s willingness to not require an
increase in the Letter of Credit immediately upon execution of this
Second Amendment, Tenant hereby waives it right to reduce the
Letter of Credit until after the exercise or expiration of the
Fifth Floor Expansion Space Termination Option.
If Tenant properly exercises the
Fifth Floor Expansion Space Termination Option pursuant to
Section 4 hereof and this Second Amendment is terminated
pursuant thereto, Tenant shall be entitled to take an immediate
reduction in the Letter of Credit of
2
$61,196.00 and further reductions
on the last day of the second, third and fourth Lease Year as
outlined in the First Amendment.
If Tenant does not terminate this
Second Amendment pursuant to the Fifth Floor Expansion Space
Termination Option, on the Fifth Floor Expansion Space Commencement
Date, the Letter of Credit shall be increased pro rata from One
Hundred Eighty-Three Thousand Five Hundred Eighty-Eight Dollars
($183,588.00) to Three Hundred Twenty Thousand Three Hundred Six
Dollars ($320,306.00) and Tenant shall simultaneously be permitted
to take a reduction of One Hundred Six Thousand Seven Hundred
Sixty-Eight Dollars ($106,768.00), which pro rata increase and
reduction shall be evidenced by an amendment to the Letter of
Credit to be delivered by Tenant to Landlord on such date, such
that on the Fifth Floor Expansion Space Commencement Date the
Letter of Credit shall be in the amount of Two Hundred Thirteen
Thousand Five Hundred Thirty-Eight Dollars ($213,538). The Letter
of Credit Reduction chart contained in Section 6(C) of
the Lease shall be deemed deleted and replaced with the
following:
|
|
|
Security Deposit
|
|
Security Deposit Remaining
|
|
|
Reduction Date
|
|
Reduction Amount
|
|
After Reduction
|
|
|
|
|
|
|
|
|
|
Last day of the second Lease
Year
|
|
$
|
53,384.33
|
|
$
|
160,152.99
|
|
|
|
|
|
|
|
|
|
Last day of the third Lease
Year
|
|
$
|
53,384.33
|
|
$
|
106,768.66
|
|
|
|
|
|
|
|
|
|
Last day of the fourth Lease
Year
|
|
$
|
53,384.33
|
|
$
|
53,384.33
|
|
3. Term
(A) The term of the Lease with
respect to the Fifth Floor Expansion Space shall commence on the
Fifth Floor Expansion Space Commencement Date and shall expire on
and be coterminous with the Expiration Date of the Lease,
May 31, 2017. The term of the Lease with respect to the Fifth
Floor Expansion Space shall also include any properly exercised
renewal or extension of the Lease.
(B) The “ Fifth Floor
Expansion Space Commencement Date ” shall be the earlier
of (i) the date on which Tenant commences business operations
in the Fifth Floor Expansion Space or (ii) the date on which
the Fifth Floor Expansion Space Leasehold Work (as defined in
Exhibit B-1 attached hereto) is substantially complete
(as determined in accordance with Paragraph 10 of
Exhibit B-1 attached hereto). Notwithstanding the
foregoing, Tenant shall not have any right to commence business
operations in the Fifth Floor Expansion Space unless the same are
vacant and delivered to Tenant by Landlord and during any period
Tenant is in breach of any of its obligations under the Lease.
Promptly after the Fifth Floor Expansion Space Commencement Date is
ascertained, Landlord shall provide and Tenant shall execute a
certificate confirming the Fifth Floor Expansion Space Commencement
Date in the form of Exhibit D-2 attached
hereto.
3
(C) It is presently
anticipated that the Fifth Floor Expansion Space will be delivered
to Tenant with the Fifth Floor Expansion Space Leasehold Work
substantially complete, except as hereinafter provided, on or about
February 15, 2009; provided, however, that if Landlord does
not deliver possession of the Fifth Floor Expansion Space by such
date, Landlord shall not have any liability whatsoever, and except
as set forth in the sentence next following, this Second Amendment
shall not be rendered void or voidable, as a result thereof. The
foregoing notwithstanding, in the event the Fifth Floor Expansion
Space Commencement Date has not occurred by June 15, 2009 (as
such date may be extended by force majeure and Tenant Delay, as
defined in Exhibit B ) , then Tenant shall have
the right to terminate this Second Amendment without penalty upon
notice to Landlord given prior to the Fifth Floor Expansion Space
Commencement Date. If so terminated, the Lease shall thereafter
continue in full force and effect without reference to this Second
Amendment.
Except as herein set forth the
Fifth Floor Expansion Space shall be deemed part of the Demised
Premises Expanded and the Lease shall apply to the Fifth Floor
Expansion Space in the same manner it applies to the space
originally demised.
4. Prior to the Fifth Floor Expansion Space
Commencement Date, Tenant shall have the option to terminate this
Second Amendment (the “ Fifth Floor Expansion Space
Termination Option ”) by providing Landlord with written
notice and payment, along with such notice, of the applicable Fifth
Floor Expansion Space Termination Fee as follows:
|
|
|
Fifth Floor Expansion
|
|
|
|
|
|
|
Space Termination Fee
|
|
Total Fifth Floor Expansion
|
|
|
Notice of Termination
|
|
Per Square Foot
|
|
Space Termination Fee
|
|
|
|
|
|
|
|
|
|
Prior to December 1,
2008
|
|
$
|
15.00
|
|
$
|
139,935.00
|
|
|
|
|
|
|
|
|
|
Between December 1, 2008 and
December 31, 2008
|
|
$
|
40.00
|
|
$
|
373,160.00
|
|
This Fifth Floor Expansion Space
Termination Option shall, if not thereto exercised, expire upon the
earlier of (A) the date Tenant takes possession of the Fifth
Floor Expansion Space or (B) 5:00pm EST on December 31,
2008. In the event this Second Amendment is so terminated, the
Lease shall continue in full force and effect in accordance with
its terms and without reference to this Second
Amendment.
5. Any and all references in the Lease to
“200 Park Place” are hereby deleted and replaced with
“One Park Place.”
6. Landlord’s address in Section 1 of
the Lease, and Landlord’s notice address in Paragraph 41 of
the Lease, are hereby deleted and replaced with the following:
“c/o Jerome J. Parks Companies, One Park Place,
Suite 400, Annapolis, Maryland 21401, Attn: Jerome J.
Parks.”
4
7. By virtue of the leasing of the Fifth Floor
Expansion Space, Tenant shall be entitled to an allocation of two
(2) additional contracts for reserved spaces, such contracts
to be made available pursuant to Section 8 of the
Lease.
8. This Second Amendment shall be binding upon and
inure to the benefit of the parties hereto, their successors and
assigns.
9. This Second Amendment may be executed in
multiple counterparts, each of which shall be an original, but all
of which shall constitute one and the same Second Amendment. Faxed
signatures shall have the same binding effect as original
signature, and a faxed Second Amendment containing the signatures
(original or faxed) of the parties shall be binding.
10. In all other respects the Lease shall continue
in full force and effect in accordance with its terms.
[Signatures contained on the
following page]
5
IN WITNESS WHEREOF, Landlord and
Tenant have caused this Second Amendment to be executed under seal
as of the date first above written.
|
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LANDLORD:
|
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|
|
|
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PARK PLACE TRUST,
|
|
|
a Maryland business trust
|
|
|
|
|
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By:
|
JBJ/Carlyle Park Place LP,
a
|
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|
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Delaware limited
partnership,
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|
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as Trustee
|
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|
|
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By:
|
JBJ Management Company,
|
|
|
|
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Inc., a Maryland limited
|
|
|
|
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liability company,
Managing
|
|
|
|
|
General Partner
|
|
|
|
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By:
|
/s/ J. Parks
|
[SEAL]
|
|
|
Name:
|
J. Parks
|
|
|
|
Date:
|
9/16/08
|
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TENANT:
|
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PHARMATHENE, INC.,
|
|
|
a Delaware corporation
|
|
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|
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By:
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/s/ Christopher C. Camut
|
[SEAL]
|
|
|
Name:
|
Christopher C. Camut
|
|
|
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Title:
|
VP, Chief Financial
Officer
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EXHIBIT A-2
FIFTH FLOOR EXPANSION
SPACE
(Attached)