exv10w1



 





Exhibit 10.1




FIRST AMENDMENT TO LEASE




     THIS FIRST AMENDMENT TO LEASE (“Amendment”) made as of the 26th day of
February, 2004, by and between LASALLE BANK NATIONAL ASSOCIATION, as successor
trustee (“Trustee”) to AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as
Trustee under Trust Agreement (“Trust”) dated January 1, 1991 and known as
Trust No. 113370-03 (“Landlord”) and BIOSANTE PHARMACEUTICALS, INC. (“Tenant”).



W I T N E S S E T H:



     WHEREAS, Landlord and Tenant entered into that certain Lease dated
December 19, 2003 (the “Lease”), which Lease demised to Tenant a portion of the
2nd floor, known as Suite 280 (“Premises”) of the building known as 111 Barclay
Boulevard, Lincolnshire, Illinois (“Building”); and



     WHEREAS, the parties hereto desire to relocate the Premises to another
part of the Building and to amend the Lease in certain other respects.



     NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the Lease is hereby further amended as follows:



     1. New Premises. As of March 19, 2004 (“Availability Date”), Tenant shall
be entitled to full and unencumbered possess of the space containing 6,801
rentable square feet on the 2nd floor described on attached Exhibit A and now
commonly known as Suite 210 (“New Premises”), with the Landlord’s Work (as
defined hereafter) completed. Between the Availability Date and April 1, 2004,
Tenant shall vacate and deliver possession of the Premises containing 4,034
rentable square feet (“Old Premises”) to Landlord and Tenant shall fully take
possession of the New Premises (the date on which Tenant fully vacates the Old
Premises and takes possession of the new Premises is the “Relocation Date”).
From and after the Relocation Date, all references to the “Premises” under the
Lease shall mean the New Premises and the New Premises shall be known as Suite
280 in the Building. If Tenant does not vacate the Old Premises within ten
(10) business days after April 1, 2004, Tenant shall be deemed in default under
the Lease, and Landlord shall have all of its remedies under the Lease. Tenant
shall remain liable for the full and faithful performance of its obligations
and for payment of all amounts which may be due and payable under the Lease for
the Old Premises through the Relocation Date. Notwithstanding anything
contained in the Lease to the contrary, but subject to the provisions of
Section 7 of the Lease, Tenant shall have no duty to restore the condition (or
pay for the restoration) of the Old Premises prior to, or after, Tenants
vacation of same.



     2. Landlord’s Work and Condition of New Premises. Prior to the
Availability Date, Landlord shall clean the carpeting in the New Premises, and
shall arrange for a third party contractor to paint and drywall a portion of
the New Premises near the reception area (collectively “Landlord’s Work”).
Landlord shall, at Landlords’ sole cost and expense, and not as an Expense, pay
for the cleaning of the carpeting in the New Premises. Tenant shall reimburse
Landlord for the cost of painting and installing the aforementioned drywall in
the New Premises, the sum of Sixteen Thousand Two Hundred Forty Six and no/100
Dollars ($16,246.00) within thirty (30) days after receiving an invoice
therefor from Landlord. Such sum shall be



 









 







deemed to be Additional Rent under the Lease. Tenant has inspected the
New Premises and agrees, except for Landlord’s Work, to accept possession of
the New Premises in current “as is” condition. If delivery of possession is
delayed and the Availability Date is other than March 19 2004, Landlord shall
give Tenant written confirmation of the Availability Date once possession is
delivered.



     3. Amended Term. The term of the Lease is hereby amended so that the term
shall expire on the later to occur (“Termination Date”) of (i) March 18, 2005,
or (ii) one (1) year after the Relocation Date, unless sooner terminated
pursuant to the terms of the Lease.



     4. Base Rent. As of the Relocation Date, the Base Rent payable under the
Lease shall be as follows:



	 	 	 	 	 	 	 	 	 
	 	 	Annual	 	Monthly
	 Period
	 	Base Rent
	 	Installment

	Relocation Date -
	 	$	88,413.00	 	 	$	7,367.75	 
	Termination Date
	 	 	 	 	 	 	 	 







     5. 2004 Additional Rent Adjustment. Notwithstanding anything in the Lease
to the contrary, but expressly subject to the terms of Section 1 hereof, Tenant
shall continue to pay the Additional Rent to be paid by Tenant pursuant to
Section 2 of the Lease solely for the Old Premises until the Relocation Date.
Thereafter, Tenant shall pay the Additional Rent to be paid by Tenant pursuant
to Section 2 of the Lease solely for the New Premises until the Termination
Date.



     6. Tenant’s Proportionate Share. As of the Relocation Date, Tenant’s
Proportionate Share shall increase from 5.16% to 8.698%. For the purposes of
the Lease, the “Rentable Area of the Building” shall mean 78,182 stipulated
rentable square feet.



     7. Security Deposit. As of the Relocation Date, Tenant’s Security Deposit
shall increase from $7,113.29 to $11,992.43.



     8. Real Estate Brokers. Tenant represents that it has dealt with, and only
with, Van Vlissingen and Co., as broker in connection with this Amendment, and
that, insofar as Tenant knows, no other broker negotiated this Amendment or is
entitled to any commission in connection therewith. Tenant agrees to indemnify
and hold Landlord harmless from all damages, liability and expense (including
reasonable attorneys’ fees) arising from any claims or demands of any other
broker or brokers or finders in connection with its participating with Tenant
in the negotiating of this Amendment.



     9. Lease in Full Force and Effect. Except for the provisions of this
Amendment, all the terms, covenants and conditions of the Lease and all the
rights and obligations of Landlord and Tenant thereunder, shall remain in full
force and effect, and are not otherwise altered, amended, revised or changed.



     10. Estoppel. Tenant and Landlord hereby each acknowledge that as of the
date hereof, they have no claims arising under the Lease against the other
party or its agents, or any one or more of the foregoing, and that neither
knows of any default or failure on the part of the other



 









 







party to keep or perform any covenant, condition or undertaking to be kept
or performed by such other party under the Lease.



     11. Exculpatory Provisions. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings, and agreements
of such Landlord are nevertheless each and every one of them made and intended,
not as personal representations, warranties, covenants, undertakings, and
agreements by such Landlord or for the purpose or with the intention of binding
such Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord’s interest in the Building, the Land and the Premises
to the terms of this Amendment and for no other purpose whatsoever, and in case
of default hereunder by any Landlord (or default through, under, or by any of
its agents or representatives), the Tenant shall look solely to the interests
of such Landlord in the Building and Land; that neither Landlord nor LaSalle
Bank National Association, as Successor Trustee of Trust No 113370-03 shall
have any personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained and no
liability or duty shall rest upon any Landlord which is a land trust to
sequester the trust estate or the rents, issues and profits arising therefrom,
or the proceeds arising from any sale or other disposition thereof; that no
personal liability or personal responsibility of any sort is assumed by, nor
shall at any time be asserted or enforceable against, Landlord, LaSalle Bank
National Association, as Successor Trustee under Trust No. 113370-03 or any
beneficiaries under any land trust which may become the owner of the Building,
on account of this Amendment or on account of any representation, warranty,
covenant, undertaking or agreement of Landlord in this Amendment contained,
either express or implied, all such personal liability, if any, being expressly
waived and released by Tenant and by all persons claiming by, through, or under
Tenant; and that this Amendment is executed and delivered by the undersigned
Landlord not in its own right, but solely in the exercise of the powers
conferred upon it as such Successor Trustee.



 









 





     IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
on the date first above written



	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 
	 	 	LASALLE BANK
NATIONAL

ASSOCIATION, as successor trustee to

AMERICAN NATIONAL BANK AND

TRUST COMPANY OF CHICAGO, as

Trustee under Trust No. 113370-03
and not personally
	ATTEST:
	 	 	 	 
	 
	 	 	 	 
	Attestation not required by LaSalle Bank

National Association Bylaws

	 	By:
	 	  /s/ Kathleen E. Shuide


	

	 	Its:
	 	  Trust Officer
	 
	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 
	 	 	BIOSANTE PHARMACEUTICALS, INC.
	ATTEST:
	 	 	 	 
	 
	 	 	 	 
	

	 	By:
	 	  /s/ Phillip B. Donenberg


	/s/ Stephen M. Simes


	 	Its:
	 	  CFO







 









 






EXHIBIT A




[Diagram of 111 Barclay Boulevard, Suite 210]