TherapeuticsMD, Inc. 10-Q

Exhibit 10.1

THIRD AMENDMENT TO LEASE

THIS THIRD AMENDMENT TO LEASE (the “Third Amendment”) is made and entered into as of the Effective Date hereof, by and between 6800 BROKEN SOUND LLC, a Florida limited liability company and its successors or assigns (“Landlord”), and THERAPEUTICSMD, INC., a Nevada corporation authorized to do business in Florida (“Tenant”).

RECITALS:

A.          Landlord and Tenant have entered into that certain Lease with the Effective Date of May 13, 2013 (the “First Lease”) for the Lease of that certain Premises described within the Lease as the entire third floor of the Building located at 6800 Broken Sound Parkway, Boca Raton, Florida (“First Premises”).

B.          Subsequently, Landlord and Tenant entered into that certain First Amendment to Lease dated February 19, 2015 (“First Amendment”), which, among other things, modified the Premises to also include Suite 100 of the Building (as defined in the Lease) (the “Second Premises”).

C.          Subsequently, Landlord and Tenant entered into that certain Second Amendment to Lease effective as of April 26, 2016 (“Second Amendment”, and together with the First Lease and the First Amendment, the “Original Lease”; the Original Lease, as modified by this Third Amendment, is referred to herein as the “Lease”), which among other things, modified the Premises to also include Suite 125 of the Building (as defined in the Lease) (the “Third Premises” and together with the First Premises and the Second Premises, the “Original Premises”).

Landlord and Tenant desire to modify and amend the Original Lease to expand the Premises to include Suite 150 of the Building, which suite consists of approximately 8,363 rentable square feet, and to modify such other terms and conditions of the Original Lease consistent with the addition of the additional rentable square footage.

D.          Landlord and Tenant desire to enter into such other terms, conditions, and amendments to the Lease as are more specifically set forth herein.

NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, and for separate consideration, the receipt and sufficiency of which is hereby acknowledged and agreed to by the parties hereto, the Landlord and Tenant do hereby agree as follows:

“B.          Premises: The entire third floor of the Building as outlined on the floor plan attached to the Lease as Exhibit “A”, that certain space designated as Suite 100 located at the Building, that certain space designated as Suite 125 located at the Building, and that certain space designated as Suite 150 located at the Building.”

For all purposes of the Original Lease and this Third Amendment, commencing upon the Additional Premises Commencement Date, where the defined term “Premises” is used the same shall be defined as the entire third floor of the Building as outlined on Exhibit “A” to the Lease, Suite 100, Suite 125, and Suite 150. Where the defined term “Additional Premises” is used in this Third Amendment, the same shall be defined solely as Suite 150 at the Building, and where the defined term “Original Premises” is used herein the same shall be defined solely as the entire third floor of the Building together with Suite 100 of the Building and Suite 125 of the Building.

“I.          Tenant’s Share of Taxes: Commencing on the Additional Premises Commencement Date, Tenant’s Share of Taxes shall be 65.19% subject to Article 4 and Article 32 of the Lease. To the extent required for any calculation the Tenant’s Share attributable to the Additional Premises shall be 16.46%.”

“J.          Tenant’s Share of Expenses: Commencing on the Additional Premises Commencement Date, Tenants share of Expenses shall be 65.19% subject to Article 4 and Article 32 of the Lease. To the extent required for any calculation the Tenant’s Share attributable to the Additional Premises shall be 16.46%.”

Schedule of Base Rent

*Tenant shall pay all legally required sales tax together with each payment of Rent. 

⁺With respect to the First Premises, the installments of Rent qualified by this symbol are subject to the Rent Maximum Payment Ceiling set forth in the chart below. If the Monthly Base Rent plus the Monthly CAM (referred to as “Expenses” in the Original Lease) exceed the applicable monthly Rent Maximum Payment Ceiling set forth below, then the Rent due for the applicable month shall be the applicable monthly Rent Maximum Payment Ceiling set forth below. Notwithstanding any term or condition of the Lease, the Second Premises, Third Premises and/or Additional Premises Base Rent, Taxes, Expenses and/or other amounts due shall not be subject to, or used in any manner in calculating the Rent Maximum Payment Ceiling pursuant to the Lease; the Rent Maximum Payment Ceiling shall only apply to the Rent due with respect to the First Premises (and not the Second Premises, the Third Premises or the Additional Premises). Further, the Rent Maximum Payment Ceiling shall cease to apply to the First Premises starting on October 1, 2018.

Rent Maximum Payment Ceiling Schedule

*Tenant shall pay all legally required sales tax together with each payment of Rent.

*Tenant shall pay all legally required sales tax together with each payment of Rent.

Except as expressly set forth herein, nothing contained in this Third Amendment shall diminish or reduce in any manner all amounts due and owing pursuant to the Original Lease for the Original Premises.

Mail service shall be deemed effective upon the earlier of either seventy-two (72) hours after deposit in the U.S. mail, in accordance herewith, or upon receipt or refusal to accept receipt by a reputable courier service. Either party by written notice to the other may designate additional parties to receive copies of notices sent to it. Such designees may be changed by written notice. Either party may at any time, in the manner set forth for giving notice to the other, designate a different address to which notices, communication and statements to it shall be sent.

[Signature Page to Follow]

IN WITNESS WHEREOF, the parties have executed this Lease as of the last date set forth below.

LANDLORD ACKNOWLEDGMENT

The foregoing instrument was acknowledged before me this   4th  day of   October    , 2016 by Marc Bell, as Manager of 6800 Broken Sound LLC, a Florida limited liability company, on behalf of the company. He/she personally appeared before me, is personally known to me or produced _______________________ as identification.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

[Tenant Signature Page to Follow]

TENANT ACKNOWLEDGMENT

The foregoing instrument was acknowledged before me this 3rd day of October   , 2016 by   Robert Finizio   as     CEO      of TherapeuticsMD, Inc., a Nevada corporation authorized to do business in Florida, on behalf said _______________________. He/she personally appeared before me, is personally known to me or produced _______________________ as identification.

IN WITNESS WHEREOF, I hereunto set my hand and official seal. 

                                                                                                                                                                  /s/ Giuseppina N. Gamby

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