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EXHIBIT 10.12
AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Amendment"), made and entered
into as of the 15th day of October, 1996, by and between REGENCY HOLDINGS, INC.,
a Georgia corporation ("Landlord"), and Vaxcel, Inc., a Delaware corporation
("Tenant");
WITNESSETH THAT:
WHEREAS, New England Mutual Life Insurance Company ("Original
Landlord") and Tenant entered into that certain Lease dated November 23, 1993,
as amended by that certain First Amendment dated January 23, 1996 (collectively,
the "Lease") for certain premises in the building known as Suite 200 (the
"Building"), consisting of approximately 6282 rentable square feet of office
space located in Suite 200; and
WHEREAS, Landlord is successor-in-interest to Original Landlord;
WHEREAS, Landlord and Tenant desire to evidence the terms of such
renewal and to amend certain other terms and conditions of the Lease and
evidence their agreements and other matters by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby amended and
the parties hereto do hereby agree as follows:
1. The Premises of the Lease is hereby expanded to include 971
s.f. of warehouse space shown on Exhibit A as Suite 210.
Rental commencement shall begin on the earlier of November 1
or occupancy.
2. Base Rent for the expansion shall be $5.00/sf, increasing at
3% per year.
3. a. As used in this Amendment, the term "Hazardous
Materials" shall mean and include any substance that
is or contains petroleum, asbestos, polychlorinated
biphenyls, lead, or any other substance, material or
waste which is now or is hereafter classified or
considered to be hazardous or toxic under any
federal, state or local law, rule, regulation or
ordinance relating to pollution or the protection or
regulation of human health, natural resources or the
environment (collectively "Environmental Laws") or
poses or
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threatens to pose a hazard to the health or safety of
persons on the Premises or any adjacent property.
b. Tenant agrees that during its use and occupancy of
the Premises it will not permit Hazardous Materials
to be present on or about the Premises except in a
manner and quantity necessary for the ordinary
performance of Tenant's business and that it will
comply with all Environmental Laws relating to the
use, storage or disposal of any such Hazardous
Materials.
c. If Tenant's use of Hazardous Materials on or about
the Premises results in a release, discharge or
disposal of Hazardous Materials on, in, at, under, or
emanating from, the Premises or the property in which
the Premises are located, Tenant agrees to
investigate, clean up, remove or remediate such
Hazardous Materials in full compliance with (a) the
requirements of (i) all Environmental Laws and (ii)
any governmental agency or authority responsible for
the enforcement of any Environmental Laws; and (b)
any additional requirements of Landlord that are
reasonably necessary to protect the value of the
Premises or the property in which the Premises are
located. Landlord shall also have the right, but not
the obligation, to take whatever action with respect
to any such Hazardous Materials that it deems
reasonably necessary to protect the value of the
Premises or the property in which the Premises are
located. All costs and expenses paid or incurred by
Landlord in the exercise of such right shall be
payable by Tenant upon demand.
d. Upon reasonable notice to Tenant, Landlord may
inspect the Premises for the purpose of determining
whether there exists on the Premises any Hazardous
Materials or other condition or activity that is in
violation of the requirements of the Lease or of any
Environmental Laws. The right granted to Landlord
herein to perform inspections shall not create a duty
on Landlord's part to inspect the Premises, or
liability on the part of Landlord for Tenant's use,
storage or disposal of Hazardous Materials, it being
understood that Tenant shall be solely responsible
for all liability in connection therewith.
e. Tenant shall surrender the Premises to Landlord upon
the expiration or earlier termination of the Lease or
this Amendment free of debris, waste or Hazardous
Materials placed on or about the Premises by Tenant
or its agents, employees, contractors or invitees,
and in a condition which complies with all
Environmental Laws.
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f. Tenant agrees to indemnify and hold harmless Landlord
from and against any and all claims, losses
(including, without limitation, loss in value of the
Premises or the property in which the Premises are
located), liabilities and expenses (including
reasonable attorney's fees) sustained by Landlord
attributable to (i) any Hazardous Materials placed on
or about the Premises by Tenant or its agents,
employees, contractors or invitees or (ii) Tenant's
breach of any provision of this Section 4.
g. The provisions of this Section 4 shall survive the
expiration or earlier termination of the Lease.
4. Tenant represents and warrants to Landlord that neither it nor
its officers or agents nor anyone acting on its behalf has
dealt with any real estate broker other than Xxxxxxx Xxxxxxx &
Mannelly Property Management, Inc. who represented Landlord in
the negotiating or making of this Amendment, and Wm. Xxxxxxx &
Co., who represented Tenant. Tenant agrees to indemnify and
hold Landlord, its agents, employees, partners, directors,
shareholders and independent contractors harmless from all
liabilities, costs, demands, judgments, settlements, claims,
and losses, including reasonable attorneys' fees and costs,
incurred by Landlord in conjunction with any such claim or
claims of any other broker or brokers, specifically including
Xxxxxxx & Wakefield, claiming to have interested Tenant in the
Building or Premises or claiming to have caused Tenant to
enter into this Amendment.
5. Anything in the Lease or this Amendment to the contrary
notwithstanding, covenants, undertakings and agreements herein
made on the part of Landlord are made and intended not for the
purpose of binding Landlord personally or the assets of
Landlord but are made and intended to bind only the Landlord's
interest in the Premises and the Building, as the same may,
from time to time, be encumbered and no personal liability
shall at any time be asserted or enforceable against Landlord
or its stockholders, officers or partners or their respective
heirs, legal representatives, successors and assigns on
account of the Lease or this Amendment on account of any
covenant, undertaking or agreement of Landlord in the Lease.
6. In the event of any transfer(s) of Landlord's interest in the
Premises or the Building, other than a transfer for security
purposes only, the transferor shall be automatically relieved
of any and all obligations and liabilities on the part of
Landlord after the date of such transfer, and Tenant agrees to
attorn to the transferee.
7. Tenant hereby affirms that as of the date hereof the Lease is
in full force and effect, that the Lease has not been modified
or amended (except as
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provided in this Amendment) and that all of Landlord's
obligations accrued to date have been performed. Tenant hereby
ratifies the provisions of the Lease on behalf of itself and
its successors and assigns and agrees to attorn and be bound
to Landlord and its successors and assigns as to all of the
terms, covenants and conditions of the Lease as amended
hereby. Tenant further agrees to fulfill all of its
obligations under the Lease as amended hereby to Landlord
throughout the remainder of the term.
8. Paragraph 11.2 of the Lease regarding the address of Landlord,
shall be amended to provide that the address of Landlord is,
and all notices to Landlord shall be sent to:
Notices to Landlord:
Regency Holdings, Inc.
x/x Xxxxxxx, Xxxxxxx & Xxxxxxxx Property Management, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Rent Checks to:
Regency Holdings, Inc.
x/x Xxxxxxx, Xxxxxxx & Mannelly Property Management, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
9. Tenant hereby agrees that there are, as of the date hereof,
regardless of the giving of notice and the passage of time, or
both, no defaults or breaches on the part of Landlord or
Tenant under the Lease.
10. All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
ii. Lessor discloses to Lessee, and Lessee acknowledges, that
Lessor is the owner of record of the Building and of the
Leased Premises, and that Xxxxxxx, Xxxxxxx & Xxxxxxxx Property
Management, Inc. is authorized to manage the Building and the
Leased Premises, on behalf of the Lessor. The address of
Lessor is: x/x Xxxxxxx, Xxxxxxx & Mannelly Property
Management, Inc., 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000.
12. This space is leased "as is". Tenant may install access doors
from its space, at its expense. This Amendment represents the
entire agreement between
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the parties hereto. Landlord and Tenant agree that there are
no collateral or oral agreements or understandings between
them with respect to the Premises or the Building. This
Amendment supersedes all prior negotiations, agreements,
letters or other statements with respect to this extension of
the lease term.
EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the Lease
and this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
REGENCY HOLDINGS, INC.,
a Georgia corporation by its agent
Xxxxxxx, Xxxxxxx & Xxxxxxxx Property
Management, Inc.
By:______________________
Title:___________________
TENANT:
VAXCEL, INC.
a Delaware corporation
By:______________________
Title:___________________
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EXHIBIT 'A'
[Diagram]
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