EXHIBIT 10.12
CONSENT TO SUB-SUBLET
MACK-CALI CAMPUS REALTY L.L.C. ("Lessor") and The Ayco Company, L.P.
("Sublessor") hereby consent to the Sub-Sublease dated July 3, 2001
("Sub-Sublease") by PARSON GROUP, LLC ("Sub-Sublessor"), to ENDEAVOR
PHARMACEUTICALS, INC. ("Sub-Sublessee") for a term commencing on June 25, 2001
and ending on March 30, 2004 of a portion of the third (3rd) floor ("Sublet
Space") in the building known as 8 Campus Drive, Parsippany, New Jersey (the
"Building"), which Sublet Space is the premises (the "Premises") now leased, and
demised by Lessor to Sublessor by that certain lease now between Lessor's
predecessor in interest, Mack-Cali Realty, L.P., and Sublessor dated September
30, 1998, as amended by First Amendment to Lease dated August 4, 1999 and Second
Amendment to Lease dated April 4, 2000 (which lease, as the same may have been
and may hereafter be amended, is hereinafter called the "Lease"), and subleased
by Sublessor to Sub-Sublessor, such consent being subject to and upon the
following terms and conditions, to each of which Sub-Sublessor and Sub-Sublessee
consent and agree to be bound:
1. The Sub-Sublease is subordinate to, and Sub-Sublessee accepts
the Sub-Sublease subordinate to, the Lease, the Sublease, and the matters to
which the Lease and Sublease are subordinate. The Sub-Sublease is also
subordinate to, and Sub-Sublessee accepts the Sub-Sublease subordinate to, any
amendments to the Lease hereafter made between Lessor and Sublessor. Copies of
the documents comprising the Lease have been delivered to and reviewed by
Sub-Sublessee. Sub-Sublessee acknowledges that neither Sublessor nor
Sub-Sublessor can convey to Subtenant any greater estate than either has been
granted pursuant to the Lease or the Sublease.
The provisions of the Lease are incorporated in the Sub-Sublease by
reference with the same force and effect as if they were fully set forth
therein, except as otherwise specifically provided herein.
Sub-Sublessee covenants that it will not do anything in or with
respect to the Premises or omit to do anything which it is obligated to do under
the terms of the Sub-Sublease which would constitute a default under the Lease
or Sublease or might cause the Lease, Sublease or the rights of Lessee or
Sub-Sublessor thereunder to be canceled, terminated or forfeited or might make
Sublessor or Sub-Sublessor liable for any damages, claims or penalties.
2. Lessor, Sublessor, and Sub-Sublessor shall not be liable for
any damages to property or injury persons sustained by Sub-Sublessee or
others, caused by conditions or activities on the Sublet Space. Sub-Sublessee
shall indemnify the Lessor, Sublessor and Sub-Sublessor against all claims
arising therefrom and shall carry liability insurance as required by the
Sub-Sublease.
3. Sub-Sublessee shall look only to Sub-Sublessor for any
services to be furnished to Sub-Sublessee in accordance with the Sub-Sublease.
4. Sub-Sublessee shall not make any alterations, additions or
improvements upon or to the Sublet Space without the prior written consent of
Lessor, Sublessor and Sub-Sublessor. Any permitted alterations, additions and
improvements shall be made at the sole cost of the Sub-Sublessee and shall
become the property of Lessor and shall remain on and be surrendered with the
Sublet Space at the termination of the Sub-Sublease, or removed if so requested
by Sublessor at the time that Sublessor provides its written consent.
Sub-Sublessee shall deliver up the same, at the expiration or sooner termination
of the term of the Sub-Sublease, in as good condition as they were at the
beginning of the Term, reasonable wear and damage by fire, the elements,
casualty or other cause not due to the misuse or neglect by Sub-Sublessee or its
agents, servants, visitors or licensees excepted.
5. At all reasonable hours, the Sublet Space shall be open to
Lessor, Sublessor and Sub-Sublessor, their agents and representatives for
inspecting or for repairs, additions or alterations by such party.
6. Sub-Sublessor and Sub-Sublessee (individually hereafter,
"Indemnitor") each warrant and represent that it has dealt with no broker or any
other person who would legally claim to be entitled to receive a brokerage
commission or finder's or consultant's fee from the Lessor or Sublessor with
respect to this transaction, except Peter Elliot, New Jersey, LLC and
Newmark/JGT, New Jersey, LLC (the "Brokers"). Indemnitor shall indemnify Lessor
and Sublessor against the claim of any person, firm or corporation arising out
of any inaccuracy or alleged inaccuracy of the above representation.
Sub-Sublessee and Sub-Sublessor shall indemnify, defend and hold Lessor and
Sublessor harmless against any claims by the Brokers in connection with the
Sub-Sublease.
7. Sub-Sublessee covenants to hire said premises and to pay the
rent therefore as aforesaid, that it will commit no waste, nor suffer the same
to be committed thereon, nor injure nor misuse the same; and also that it shall
not make alterations therein, nor use the same for any purpose but that
hereinbefore authorized. Sub-Sublessee has inspected the Sublet Space and
accepts same in its present condition, without any warranties or representations
(express or implied) being relied upon and is relying upon its own inspection.
Sub-Sublessee further covenants that the Sub-Sublease shall not be assigned,
encumbered or otherwise transferred, the Sublet Space shall not be further
sublet by Sub-Sublessee, in whole or in part, and Sub-Sublessee shall neither
suffer nor permit any of the Sublet Space to be used or occupied by others
without the prior consent of Lessor, Sublessor and Sub-Sublessor in each
instance.
8. In the event of a default by Sublessor under the Lease which
results in termination of such Lease, or in the event of a default by
Sub-Sublessor under the Sublease which results in a termination of the Sublease,
the Sub-Sublease shall, at the option of the Lessor or Sublessor, as applicable,
remain in full force and effect and the Sub-Sublessee shall attorn to and
recognize Lessor as Landlord under the Sub-Sublease and shall promptly upon such
Lessor's request, execute and deliver all instruments necessary or appropriate
to confirm such attornment and recognition. The Sub-Sublessee hereby waives all
rights under any present or future law or otherwise to elect, by reason of the
termination of the Lease, to terminate the Sub-Sublease or surrender possession
of the premises demised thereby.
9. This Consent shall not be construed as a consent by Lessor or
Sublessor to, or as permitting, any other or further licensing, subletting or
assignment by Sub-Sublessor or Sub-Sublessee or any amendment of the Sublease.
10. Although duplicate originals of the Sub-Sublease has been
delivered to Lessor and Sublessor for their information, Lessor and Sublessor
are not a party thereto and are not bound by its provisions; however, any
modification or amendment to the Sub-Sublease without the prior written consent
of Lessor and Sublessor in each instance, shall be deemed a default under the
Lease and the Sublease. Nothing contained herein shall be construed as a consent
to or approval or ratification by Lessor or Sublessor of, any of the particular
provisions of the Sub-Sublease of any of the particular provisions of the
Sub-Sublease or as a representation or warranty by Lessor or Sub-Lessor.
11. Sub-Sublessee represents that Sub-Sublessee is financially
responsible, of good reputation and is engaged in a business which meets the
standard set by Lessor for the Building and its tenants. Sub-Sublessee will use
the Sublet Space for general office purposes, and for no other purposes.
12. Sub-Sublessee and Sub-Sublessor agree that the liability of
Lessor under the Lease, Sublease, Sub-Sublease and this Consent and all matters
pertaining to or arising out of the tenancy and the use and occupancy of the
Premises and the Sublet Space shall be limited to Lessor's interest in the
Building and in no event shall Sub-Sublessee and Sub-Sublessor make any claim
against or seek to impose any personal liability upon any general or limited
partners of Lessor, or any principal of any firm or corporation that may
hereafter be or become the Lessor.
13. Sub-Sublessor shall continue during the term of the Lease or
any renewals thereof to be liable and responsible for the due performance of all
of the covenants, agreements, terms, provisions and conditions set forth in the
Sublease or the Sub-Sublessor's part to be performed including but not limited
to its obligation to pay all charges or payments which shall be come due to
Lessor from Sub-Sublessee by reason of its occupancy of the Sublet Space.
Nothing herein contained is intended to waive or shall be construed to waive any
breach of the Lease or Sublease or any right of the Lessor or Sublessor against
any person, firm, association, corporation or entity liable or responsible for
the performance of the Lease of Sublease or to enlarge or increase Lessor's or
Sublessor's obligations thereunder, and all provisions, consents, agreements,
terms and conditions of the Lease and the Sublease are hereby declared to be in
full force and effect.
14. If any provisions of this Consent shall be at variance with
the provisions of the Sub-Sublease, the provisions of this Consent shall
prevail. This Consent shall not be changed orally but only by an agreement in
writing signed by the party against whom the enforcement of such change is
sought. Nothing contained herein shall be deemed to modify the terms of the
Lease.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the 12th day of July, 2001.
SUBLESSOR: SUB-SUBLESSOR:
THE AYCO COMPANY, L.P. PARSON GROUP, LLC
By: Hambre, Inc., General Partner
By: /s/ Peter R. Martin By: /s/ C. Joseph
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Name: Peter R. Martin Name: C. Joseph
Title: Vice President Title: CFO
LESSOR: SUB-SUBLESSEE:
MACK-CALI CAMPUS REALTY L.L.C. ENDEAVOR PHARMACEUTICALS, INC.
By: Parsippany Office Associates L.L.C.
By: Mack-Cali Realty, L.P., member
By: Mack-Cali Realty Corporation,
its general partner
By: /s/ Michael K. Nevins By: /s/ Stephen F. Rizzo
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Michael K. Nevins Stephen F. Rizzo
Vice President of Leasing Vice President