Exhibit 4(B)2

 

FIFTH AMENDMENT TO LEASE AGREEMENT

 

This Fifth Amendment to Lease Agreement (this “Amendment”) made as of this 31st day of August, 2016 between NEW BOSTON HARRIS CORNERS LLC, a Delaware limited liability company with a principal place of business at 75 State Street, Suite 1410, Boston, Massachusetts 02109 (“Landlord”) and PHENOGEN SCIENCES, INC., a Delaware corporation with a principal place of business at 9115 Harris Corners Parkway, Charlotte, North Carolina 28269 (“Tenant”).

 

WHEREAS,  Landlord is the owner of the building known as 9115 Harris Corners Parkway (a/k/a Two Harris Corners), Charlotte, North Carolina (the “Building”);

 

WHEREAS,  pursuant to a Lease Agreement dated as of August 17, 2010 by and between Landlord’s predecessor in interest, HC 9115 LLC, and Tenant, as amended by a First Amendment to Lease Agreement dated August 17, 2012, as further amended by a Second Amendment to Lease Agreement dated as of October 11, 2013, as further amended by a Third Amendment to Lease Agreement dated as of October 24, 2014 by and between Landlord and Tenant, and as further amended by a Fourth Amendment to Lease Agreement dated as of September 29, 2015 (as so amended, the “Lease”) Tenant leases approximately 1,610 square feet of net rentable area on the third floor of the Building (the “Premises”);  and

 

WHEREAS,  Landlord and Tenant desire to extend the term of the Lease and to modify certain other provisions thereof;

 

NOW, THEREFORE,  in consideration of the Lease, the mutual covenants therein and hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

 

1.                                      Terms. All capitalized terms used herein and not defined herein shall have the meanings ascribed to such terms in the Lease.

 

2.                                      Lease Term. Notwithstanding anything to the contrary contained in the Lease, the Lease Term shall be extended for an additional period of twelve (12) months commencing on November 1, 2016 and expiring on October 31, 2017 (the “Fourth Extended Term”).

 

3.                                      Monthly Base Rent. Tenant shall pay Monthly Base Rent during the Fourth Extended Term as set forth below:

 

	
Lease Period
    	
 
    	
Monthly Base Rent
    	
 
    
	
November 1, 2016 – October 31, 2017
    	
 
    	
$
    	
2,918.13
    	
 
    
					


 

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4.                                      Other Agreements.

 

(a)                                 Security Deposit. Landlord shall continue to hold the security deposit in the amount of $2,595.00 delivered by Tenant pursuant to the Lease, as security for the payment of Tenant’s obligations under the Lease.

 

(b)                                 Brokerage. Each of Landlord and Tenant represents and warrants to the other that it has dealt with no broker, other than Trinity Partners, in connection with this Amendment, and agrees to indemnify, defend and hold harmless from and against any loss, cost, claims, and expenses, including attorneys’ fees, arising from a breach of this representation.

 

5.                                      General Provisions.

 

(a)                                 Liability. The obligations contained herein on the part of Landlord are solely those of New Boston Harris Corners LLC and no trustee, agent, employee, member, beneficiary, partner, general or limited, shall have any liability on account thereof.

 

(b)                                 Effect of Amendment. Except as modified herein, all terms and conditions of the Lease remain in full force and effect and are hereby ratified and confirmed. In the event the terms and conditions of this Amendment conflict with the terms of the Lease, the terms and conditions of this Amendment shall prevail and be controlling. From and after the effectiveness of this Amendment, the term “this Lease” when used in the Lease shall mean the Lease as modified by this Amendment.

 

(c)                                  Counterpart Execution. This Amendment may be executed simultaneously in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

 

(d)                                 Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of North Carolina.

 

[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.

SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGE.]

 

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IN WITNESS WHEREOF,  the parties hereto have caused this Amendment to be executed by their duly authorized representatives as of the day and year first above written.

 

	
 
    	
LANDLORD:
    
	
 
    	
 
    
	
 
    	
NEW BOSTON HARRIS CORNERS LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
New Boston   Fund, Inc.,
    
	
 
    	
 
    	
Its Manager
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jonathan D. Gillman
    
	
 
    	
 
    	
Name: Jonathan D.   Gillman
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
hereunto duly   authorized
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
TENANT:
    
	
 
    	
 
    
	
 
    	
PHENOGEN SCIENCES, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kevin Fischer
    
	
 
    	
 
    	
Name: Kevin Fischer
    
	
 
    	
 
    	
Title : CFO/Secretary
    
				


 

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