Unassociated Document


     

    Exhibit
      10.2


    

      EXECUTION
        FORM

       

    

    AMENDMENT
      NO. 1 TO LEASE

     

    THIS
      AMENDMENT NO. 1 TO LEASE (this
      “Agreement”) is dated and effective as of December 21, 2005, by and between
VALLEY
      DRUG COMPANY, an
      Ohio
      corporation with its
      principal place of business in
      New
      Castle, Pennsylvania (“Tenant”), and BECAN
      DEVELOPMENT LLC,
      a
      Pennsylvania limited liability company (“Landlord”).

     

    WHEREAS,
      Tenant
      and Landlord are parties to a Commercial Lease dated January 1, 2004 (the
“Lease”), with respect to Tenant’s distribution facility located at 209 Green
      Ridge Road, New Castle, Pennsylvania (the “Facility”); and 

     

    WHEREAS,
      Tenant
      and Landlord have agreed to certain modifications to the Lease to become
      effective upon the execution and delivery of this Agreement.

     

    NOW,
      THEREFORE,
      in
      consideration of the premises and the mutual covenants contained herein, and
      other good and valuable consideration, the receipt and sufficiency of which
      are
      hereby acknowledged by the parties, the parties agree as follows: 

     

    1. Amendments
      to Lease.
      The
      parties agree that, effective as of the date hereof, the Lease shall be amended
      as follows:

     

    (a) Section
      2
      of the Lease is hereby amended and restated as follows:

     

    “2. PREMISES.
      Landlord hereby leases to Tenant and Tenant leases from Landlord upon all of
      the
      conditions set forth herein, that certain real property situated at 209 Green
      Ridge Road, New Castle, PA, 16105, and described as a 45,000 square foot
      building as described in Exhibit “A” attached hereto and made a part hereof.
      Said real property, including the land, all improvements thereon and all
      fixtures purchased and installed thereon by Landlord, is herein called the
      “Property”“.

     

    (b) Section
      3.1 of the Lease is hereby amended and restated as follows:

     

    “3.1 Initial
      Term; Renewal Terms.
      The
      initial term hereof shall be for five (5) years commencing on December 21,
      2005
      (the “Initial Term”), unless terminated sooner pursuant to any provision hereof.
      The Tenant shall have the right to extend the term of this Lease for two (2)
      consecutive five-year renewal terms (collectively, the “Renewal Term”) by
      sending written notice of its election to renew to Landlord not later than
      six
      (6) months prior to the end of the then existing term of the
      Lease.”

     

    (c) The
      following new Section 48 is hereby added to the Lease:

     

    “48. Purchase
      Option.
      The
      Tenant shall have the option, exercisable at any time on or after December
      21,
      2008, to purchase the Property from the Landlord. The Tenant shall exercise
      the
      purchase option by sending written notice of its election to purchase to
      Landlord. The notice of election to purchase shall specify a closing date for
      the purchase and sale which closing date shall be not less than sixty (60)
      nor
      more than ninety (90) days from the date of the notice of purchase. The purchase
      price shall be the “fair market value” of the Property determined as set forth
      below. The purchase price shall be paid in full in immediately available funds
      at closing. The closing shall be conducted, and all closing adjustments shall
      be
      made in accordance with, the local customs for commercial real estate
      transactions in New Castle, Pennsylvania.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    The
“fair
      market value” of the Property shall be determined as follows: Within ten (10)
      days of the exercise of the purchase option by Tenant, each of Landlord and
      Tenant shall engage, at its own expense, a licensed independent appraiser
      experienced in commercial real estate appraisals. Such appraisers shall conduct
      appraisals of the Property to be completed within thirty (30) days of their
      engagement. Upon receipt of the appraisals, the Landlord and Tenant shall share
      with one another the appraisal reports. In the event the fair market value
      of
      the Property as determined by Landlord’s and Tenant’s independent appraisers
      does not vary by more than ten percent (10%) of the lower of the appraised
      fair
      market values, the fair market value for purposes of this Lease shall be the
      average of the two appraised values. In the event the fair market value of
      the
      Property as determined by Landlord’s and Tenant’s independent appraisers varies
      by more than ten percent (10%) of the lower of the appraised fair market values,
      then both appraisals shall be disregarded and the two independent appraisers
      shall appoint a third independent appraiser to determine the appraised fair
      market value of the Property. The fair market value as determined by the third
      appraiser shall be binding upon Landlord and Tenant. The expenses of the third
      appraiser shall be borne equally by Landlord and Tenant.”

     

    (d) The
      following new Section 49 is hereby added to the Lease:

     

    “49. Right
      of First Refusal.
      Tenant
      shall have a right of first refusal to purchase the Property upon the terms
      and
      subject to the conditions set forth herein. In the event that Landlord receives
      a bona fide offer from a third-party (the “Buyer Party”) to purchase the
      Property, and prior to its acceptance of any such bona fide offer, the Landlord
      shall promptly (but in any event within five (5) business days) notify Tenant
      in
      writing of such offer, including but not limited to: (i) the amount and the
      form
      of consideration proposed to be paid by the Buyer Party for the Property, (ii)
      the proposed closing date for such purchase and sale of the Property, and (iii)
      any material conditions to the closing of the purchase and sale of the Property
      (the “Sale Notice”). Within ten (10) business days from receipt of the Sale
      Notice, Tenant shall inform Landlord in writing of its desire to purchase the
      Property on terms and conditions identical to those offered by the Buyer Party
      and described in the Sale Notice (the “Purchase Notice”). In the event that
      Tenant delivers a Purchase Notice to Landlord within the ten-day period,
      Landlord shall be obligated to sell the Property to the Tenant upon the terms
      and subject to the conditions described in the Sale Notice, and Landlord shall
      promptly decline the offer from the Buyer Party. Notwithstanding the foregoing,
      nothing herein is intended to or shall prohibit a transfer of membership
      interests between the members of Landlord without first offering such membership
      interests to Tenant. 

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    


    In
      the
      event that Tenant fails to deliver a Purchase Notice within such ten-day period,
      or in the event Tenant sooner notifies Landlord in writing that it does not
      desire to purchase the Property on the terms set forth in the Sale Notice,
      Landlord may proceed without further restriction to sell the Property to the
      Buyer Party on the terms and conditions set forth in the Sale Notice;
provided,
      that
      such Buyer Party shall purchase the Property subject to this Lease, which shall
      remain in full force and effect in accordance with the terms hereof, except
      that
      the purchase option granted to Tenant by Landlord pursuant to Section 48 and
      the
      right of first refusal granted to Tenant by Landlord in this Section 49 shall
      automatically be extinguished and terminated.”

    


    2. Consent
      to Assignment.
      Landlord hereby acknowledges that Tenant is party to a certain Asset Purchase
      Agreement, dated as of the date hereof, with Rochester Drug Cooperative, Inc.,
      a
      New York corporation (“RDC”), for the sale of certain of Tenant’s assets to RDC
      (the “Purchase Agreement”). Landlord further acknowledges that following the
      closing of the transactions contemplated by the Purchase Agreement, Tenant
      shall
      sublease the Facility to RDC on the same terms and conditions as are set forth
      in the Lease (as amended hereby) so that RDC may conduct certain business
      operations from the Facility. Landlord further acknowledges that it is the
      intention of Tenant and RDC that, upon the satisfaction of certain conditions
      set forth in the Purchase Agreement, Tenant shall assign the Lease (as amended
      hereby) to RDC, and RDC shall assume the Lease from Tenant, and the sublease
      of
      the Facility shall then be terminated (the “Lease Assignment”). Landlord
      consents to the sublease and the Lease Assignment, and in furtherance thereof
      Landlord hereby covenants and agrees to use best efforts to obtain, within
      sixty
      (60) days from the date hereof, the written consent of The Pennsylvania
      Industrial Development Authority (or any successor thereto, “PIDA”) and National
      City Bank (the “Bank”) to the Lease Assignment and this Agreement. Tenant shall
      cooperate with Landlord and use its own reasonable efforts to assist Landlord
      in
      obtaining the necessary consents from PIDA and the Bank.

     

    3. No
      Other Changes.
      Except
      as expressly provided in this Agreement, the Lease shall remain in full force
      and effect.

     

    4. Binding
      Effect.
      This
      Agreement and all of the provisions hereof shall be binding upon and inure
      to
      the benefit of the parties hereto and their respective successors and permitted
      assigns, but neither this Agreement nor any of the rights, interests or
      obligations hereunder shall be assigned or assignable by either of the parties
      hereto without the prior written consent of the other party (except as
      contemplated by the Lease Assignment). Any assignment in violation of this
      Agreement shall be null and void.

     

    5. Governing
      Law; Counterparts.
      This
      Agreement shall be governed by and construed and enforced in accordance with
      the
      laws of the Commonwealth of Pennsylvania, without regard to its principles
      of
      conflict or choice of law. This instrument may be executed in two or more
      counterparts, including by way of facsimile, each of which shall be deemed
      an
      original, but all of which together shall constitute the same
      instrument.

     

    [THE
      NEXT PAGE IS THE SIGNATURE PAGE]

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

       

    

    IN
      WITNESS WHEREOF,
      the
      parties hereto, intending to be legally bound, have caused this Amendment No.
      1
      to Lease to be duly executed and delivered on their behalf by their duly
      authorized representatives as of the day and date first above
      written.

     

    
      	 	 	 
	 	TENANT:
	 	 
	 	VALLEY DRUG COMPANY
	 
 	 
 	 
 
	 	By:  	/s/
              Edgardo A. Mercadante
	 	
              
Name:
              Edgardo A. Mercadante
	 	Title:
              President & CEO


    

    


    
      	 	 	 
	 	LANDLORD:
	 	 
	 	BECAN DEVELOPMENT
              LLC
	 
 	 
 	 
 
	 	By:  	/s/
              Philip Laird
	 	
              
Name:
              Philip Laird 
	 	Title: