Amended and Restated First Amendment to Lease Agreement by and between IQHQ-4 Corporate, LLC and the Registrant, dated as of October 25, 2021
Exhibit 10.1
AMENDED AND RESTATED FIRST AMENDMENT TO LEASE
(Innovation Park)
THIS AMENDED AND RESTATED FIRST AMENDMENT TO LEASE (“First Amendment”) is made and entered into as of the 25th day of October, 2021, by and between IQHQ-4 CORPORATE, LLC, a Delaware limited liability company (“Landlord”) and ONCORUS, INC., a Delaware corporation (“Tenant”).
R E C I T A L S:
A. Landlord and Tenant entered into that certain Lease Agreement entered into as of December 29, 2020 (the “Lease”), whereby Landlord leased to Tenant and Tenant leased from Landlord certain premises located in the South Building (such building includes Pods 3, 4 and 5) (“Building”) of the project (“Project”) now known as Innovation Park @ 4 Corporate Drive whose address is 4 Corporate Drive, Andover, Massachusetts, all as more particularly described in the Lease.
B. Landlord and Tenant agree that certain First Amendment to Lease dated July 7, 2021 (“July Amendment”) unintentionally included the incorrect set of Approved Base Building Plans as Exhibit “A”. As such, Landlord and Tenant agree that (i) the July Amendment is null and void, and (ii) this First Amendment amends and restates the July Amendment and is deemed effective as of July 7, 2021 (“Effective Date”).
C. By this First Amendment, Landlord and Tenant desire to: (i) confirm the Delivery Date under the Lease, (ii) modify the scope of Base Building Improvements to include the Elevator Work (as defined in Section 3 below), (iii) extend the Estimated Base Building Work Completion Date and (iv) to otherwise modify the Lease as provided herein.
D. Unless otherwise defined herein, capitalized terms as used herein shall have the same meanings as given thereto in the Lease.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
A G R E E M E N T:
1. The Premises. Landlord and Tenant hereby agree that pursuant to the Lease, Landlord currently leases to Tenant and Tenant currently leases from Landlord the Premises, as more particularly described in the Lease.
2. Delivery Date. The date upon which Landlord actually makes or made possession of the applicable portion(s) of the Premises available to Tenant (for Tenant to commence business or otherwise commence construction of the Improvements therein) is the “Delivery Date” with respect to such portion of the Premises. Landlord and Tenant hereby acknowledge and agree that the Delivery Date with respect to the entire Premises is January 1, 2021.
3. Base Building Improvements. Subsequent to the Lease, Tenant has requested that Landlord install an elevator in the Pod 5 Portion (as defined in the Lease) of the Premises. Landlord has agreed, using a contractor retained by Landlord pursuant to a guaranteed maximum price agreement to perform the work to install an elevator in the Pod 5 Portion of the Premises subject to the further terms and conditions set forth herein (the “Elevator Work”). The Elevator Work, in addition to the New Loading Dock and the Exterior Work, shall constitute part of the Base Building Improvements under Section 1.2.1 of Exhibit “D” attached to the Lease (the “Work Letter”). Accordingly, effective as of the Effective Date, all references to the “Base Building Improvements” in the Lease (including the Work Letter) shall mean and refer to the New Loading Dock, the Exterior Work and the Elevator Work. Landlord and Tenant hereby agree that Landlord will construct the Base Building Improvements in substantial accordance with the Approved Base Building Plans, which the parties hereto agree to be permit set dated March 29, 2021 prepared by CI Design, Inc. and [Linden Engineering Partners LLC] and attached as Exhibit “A” to this First Amendment, and otherwise in accordance with the Work Letter. For purposes of clarification, for purposes of Section 1.6.1 of the Work Letter, Tenant hereby approves the Approved Base Building Plans as attached hereto. However, Tenant's approval of the Approved Base Building Plans (as attached hereto) does not imply Tenant's review of the same for compliance with codes, laws, or like matters; the parties agreeing that Landlord is responsible for causing the Approved Base Building Plans to comply with and the New Loading Dock, the Exterior Work and the Elevator Work to be constructed in accordance with applicable codes and laws in effect as of the date the building permit for the same is obtained. Further, Tenant shall have the right to request and make revisions to the Approved Base Building Plans in accordance with and subject to the terms set forth in Section 1.6.1 of the Work Letter. Prior to the Effective Date, Landlord submitted and Tenant approved the Construction Pricing Proposal attached as Exhibit “C” to this First Amendment.
4. Estimated Base Building Work Completion Date. Tenant acknowledges and agrees that all of the actual delays in the substantial completion of the Base Building Improvements as a result of Tenant's request to include the Elevator Work as part of the Base Building Improvements shall constitute a Tenant Delay under Section 5.6.1.3 of the Work Letter. Landlord currently, as of the Effective Date, estimates that such additional time to substantially complete the Base Building Improvements will be approximately forty-five (45) days. However, the foregoing is a good faith estimate only and Tenant shall be responsible for the actual total number of days of delay to the substantial completion of the Base Building Improvements to the extent caused by and/or attributable to said request and performance of the same by Landlord in accordance with this Work Letter. Accordingly, the Estimated Base Building Work Completion Date is hereby extended from November 1, 2021 to December 15, 2021, as such date may be further extended by any Tenant Delay (including, but not limited to, the actual Tenant Delay resulting from including the Elevator Work as part of the Base Building Improvements) or by any Uncontrollable Delay (as defined in Section 5.6 of the Work Letter). Landlord shall use reasonable efforts to keep Tenant reasonably informed regarding any change to the Estimated Base Building Work Completion Date and the reason for such change.
5. Construction Schedule. The Construction Schedule (as defined in Section 1.8 of the Work Letter) for the Base Building Improvements is attached as Exhibit “B” to this First Amendment. Tenant hereby acknowledges and approves the same.
-3-
6. Brokers. Each party represents and warrants to the other that no broker, agent or finder negotiated or was instrumental in negotiating or consummating this First Amendment. Each party further agrees to defend, indemnify and hold harmless the other party from and against any claim for commission or finder's fee by any entity who claims or alleges that they were retained or engaged by the first party or at the request of such party in connection with this First Amendment.
7. Slip Page. Landlord and Tenant acknowledge and agree that, on December 31, 2020, the parties agreed, via electronic mail, to utilize the slip page attached hereto as Exhibit “D” to revise Section 30(s). The parties further agree that, for the purposes of said slip page only, approval via electronic mail was sufficient to formally make such revisions notwithstanding anything in the Lease to the contrary (including, without limitation Section 30(a)), and such revisions to Section 30(s) shall be deemed effective as of December 29, 2020.
8. No Further Modification. Except as set forth in this First Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect. Effective as of the Effective Date, all references to the “Lease” shall refer to the Lease as amended by this First Amendment.
9. Counterparts/Electronic Signature. This First Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. This First Amendment may be executed by a party's signature transmitted electronically (including by DocuSign), and copies of this First Amendment executed and delivered by electronic means shall have the same force and effect as copies hereof executed and delivered with original wet signatures. All parties hereto may rely upon electronic signatures as if such signatures were original wet signatures. Any party executing and delivering this First Amendment by electronic means shall, if requested by the other party, promptly thereafter deliver a counterpart signature page of this First Amendment containing said party's original signature; provided, however, any failure to do so shall not affect the enforceability of this First Amendment. All parties hereto agree that a signature page executed and delivered by electronic means may be introduced into evidence in any proceeding arising out of or related to this First Amendment as if it were an original wet signature page.
[Signatures on following page]
-4-
IN WITNESS WHEREOF, this First Amendment has been executed as of the day and year first above written.
-5-
EXHIBIT “A”
APPROVED BASE BUILDING PLANS
[SEE ATTACHED]
EXHIBIT "A"
-6-
-7-
-8-
-9-
-10-
-11-
-12-
-13-
-14-
-15-
-16-
-17-
-18-
-19-
-20-
-21-
-22-
-23-
-24-
-25-
-26-
-27-
-28-
-29-
-30-
-31-
-32-
-33-
-34-
-35-
-36-
-37-
-38-
-39-
-40-
-41-
-42-
-43-
-44-
-45-
-46-
-47-
-48-
-49-
-50-
-51-
-52-
-53-
-54-
-55-
-56-
-57-
EXHIBIT “B”
APPROVED CONSTRUCTION SCHEDULE
EXHIBIT "B"
-58-
EXHIBIT "B"
-59-
EXHIBIT “C”
APPROVED CONSTRUCTION PRICING
5/20/2021 10:49 AM
Category Code | Category | Budget |
100-004 | Construction Contingency | 44,646.00 |
110-002 | Construction Management Overhead & Profit | 62,111.00 |
110-004 | General Requirements | 31,840.00 |
110-006 | General Conditions | 299,860.00 |
110-008 | General Insurance | 19,927.00 |
110-076 | Construction Permits | 13,714.00 |
111-001 | Architectural Design & Engineering - SD | 28,300.00 |
111-002 | Architectural Design & Engineering - DD | 10,000.00 |
111-003 | Architectural Design & Engineering - CD | 24,600.00 |
111-004 | Architectural Design & Engineering - CA | 12,200.00 |
111-006 | Architectural Design & Engineering - Expenses | 500.00 |
111-017 | Project Management Services | 49,645.00 |
111-023 | Geotechnical & Environmental Consultant | 17,500.00 |
111-033 | Water Proofing & Structural Engineering | 90,400.00 |
111-035 | Site/ Civil Engineering Consultant | 28,000.00 |
111-037 | Site/ Civil Engineering - Expenses | 2,800.00 |
120-006 | Selective Demolition | 92,320.00 |
120-021 | Earthwork | 231,017.00 |
120-069 | Landscaping | 31,885.00 |
130-020 | Cast-in-Place Concrete | 68,089.00 |
140-020 | Masonry | 106,040.00 |
150-005 | Structural Steel | 121,025.00 |
160-005 | Rough Carpentry | 23,320.00 |
170-022 | Fireproofing | 5,000.00 |
170-056 | Roofing | 26,500.00 |
170-076 | Sealants | 9,000.00 |
180-001 | Doors, Frames, & Hardwares | 7,445.00 |
180-060 | Glass Glazing | 15,950.00 |
190-078 | Interior Finishes | 106,566.00 |
210-040 | Loading Dock Equipment | 89,072.00 |
240-015 | Elevators | 83,325.00 |
250-010 | Fire Protection | 6,020.00 |
250-015 | Plumbing | 17,620.00 |
250-030 | HVAC | 13,530.00 |
260-005 | Electrical | 89,070.00 |
Grand Total |
| 1,878,837.00 |
Page 1 of 1
EXHIBIT "C"
-60-
EXHIBIT “D”
[SEE ATTACHED]
249860823 v10
EXHIBIT "D"
-61-
covenants, conditions and provisions of this Lease to be kept, observed and performed by Tenant, (B) the term “Tenant” as used in this Lease shall mean and include each of them jointly and severally, and (C) the act of or notice from, or notice or refund to, or the signature of, any one or more of them, with respect to the tenancy of this Lease, including, but not limited to, any renewal, extension, expiration, termination or modification of this Lease, shall be binding upon each and all of the persons or entities executing this Lease as Tenant with the same force and effect as if each and all of them had so acted or so given or received such notice or refund or so signed.
(ii) If Tenant is a partnership (or is comprised of two or more persons, individually and as co-partners of a partnership) or if Tenant's interest in this Lease shall be assigned to a partnership (or to two or more persons, individually and as co-partners of a partnership) pursuant to Article 15 hereof (any such partnership and such persons hereinafter referred to in this Section 30(q)(ii) as “Partnership Tenant”), the following provisions of this Lease shall apply to such Partnership Tenant:
(A) The liability of each of the parties comprising Partnership Tenant shall be joint and several.
(B) Each of the parties comprising Partnership Tenant hereby consents in advance to, and agrees to be bound by, any written instrument which may hereafter be executed, changing, modifying or discharging this Lease, in whole or in part, or surrendering all or any part of the Premises to the Landlord, and by notices, demands, requests or other communication which may hereafter be given, by the individual or individuals authorized to execute this Lease on behalf of Partnership Tenant under Subparagraph (p) above.
(C) Any bills, statements, notices, demands, requests or other communications given or rendered to Partnership Tenant or to any of the parties comprising Partnership Tenant shall be deemed given or rendered to Partnership Tenant and to all such parties and shall be binding upon Partnership Tenant and all such parties.
(D) If Partnership Tenant admits new partners, all of such new partners shall, by their admission to Partnership Tenant, be deemed to have assumed performance of all of the terms, covenants and conditions of this Lease on Tenant's part to be observed and performed.
(E) Partnership Tenant shall give prompt notice to Landlord of the admission of any such new partners, and, upon demand of Landlord, shall cause each such new partner to execute and deliver to Landlord an agreement in form reasonably satisfactory to Landlord, wherein each such new partner shall assume performance of all of the terms, covenants and conditions of this Lease on Partnership Tenant's part to be observed and performed (but neither Landlord's failure to request any such agreement nor the failure of any such new partner to execute or deliver any such agreement to Landlord shall terminate the provisions of clause (D) of this Section 30(q)(ii) or relieve any such new partner of its obligations thereunder).
(r) Intentionally Deleted.
(s) Confidentiality. Landlord and Tenant each acknowledges that the content of this Lease and any related documents are confidential information. Landlord and Tenant each shall keep such confidential information strictly confidential and shall not disclose such confidential information to any person or entity other than as required by applicable law (e.g. 8-K and 10-K filings) or to the party's financial, legal, space planning consultants, any proposed Transferees, and, with respect to the relevant provisions, Tenant's contractors.
(t) Governing Law. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. No conflicts of law rules of any state or country (including, without limitation, Massachusetts conflicts of law rules) shall be applied to result in the application of any substantive or procedural laws of any state or country other than Massachusetts. All controversies, claims, actions or causes of action arising between the parties hereto and/or their respective successors and assigns, shall be brought, heard and adjudicated by the courts of the Commonwealth of Massachusetts, with venue in the county in which the Project is located. Each of the parties hereto hereby consents to personal jurisdiction by the courts of the Commonwealth of Massachusetts in connection with any such controversy, claim, action or cause of action, and each of the parties hereto consents to service of process by any means authorized by Massachusetts law and consent to the enforcement of any judgment so obtained in the courts of the Commonwealth of Massachusetts on the same terms and conditions as if such controversy,
-62-
