EXHIBIT 10.8
Exhibit "A"
SUBLEASE
This SUBLEASE (the "SUBLEASE") is dated as of the 12th day of December,
2003 by and between PREDIX PHARMACEUTICALS HOLDINGS, INC., a Delaware
Corporation, Successor to PHYSIOME SCIENCES, INC., having a principal place of
business at 10K Gill, Woburn, MA 01801 ("SUBLANDLORD"), and NOVO NORDISK
PHARMACEUTICALS, INC., a Delaware Corporation, having a principal place of
business at 100 College Road West, Princeton, NJ 08540 ("SUBTENANT").
RECITALS
WHEREAS, pursuant to that certain Lease dated the 21st day of December,
2000 by and between 150 COLLEGE ROAD, LLC, a Delaware limited liability company
("PRIME LANDLORD"), as landlord, and PHYSIOME SCIENCES, INC., a Delaware
corporation ("PHYSIOME"), as tenant, a copy of which Lease is attached hereto as
EXHIBIT A, Physiome leased from Prime Landlord certain premises (the "ORIGINAL
PREMISES") consisting of the entire third floor located at 150 College Road
West, Plainsboro Township (Middlesex County), New Jersey 08540, which Original
Premises contains 25,338 rentable square feet of space, as more fully described
in the Prime Lease; and
WHEREAS, Subtenant desires to sublease from Sublandlord the Original
Premises (the "SUBLEASED PREMISES"), and Sublandlord is willing to sublease the
Subleased Premises to Subtenant on the provisions, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants made herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, Sublandlord hereby subleases to
Subtenant, and Subtenant hereby takes and hires from Sublandlord the Subleased
Premises, on the terms and conditions set forth below:
1. DEFINED TERMS. All terms defined in the Prime Lease and used herein
shall, unless otherwise defined herein, have the meanings ascribed to such terms
in the Prime Lease.
2. TERM. The term of this Sublease shall commence on the later to occur
of a) December 15, 2003 or b) obtaining of Prime Landlord's written consent to
the within Sublease pursuant to Paragraph 9.1, ASSIGNMENT OR SUBLEASE BY TENANT,
of the Prime Lease ("SUBLEASE COMMENCEMENT DATE"), and shall continue through
September 30, 2010, unless sooner terminated in accordance with the provisions
of this Sublease (the "SUBLEASE TERM").
3. DELIVERY. The Subleased Premises shall be delivered to Subtenant on
the Sublease Commencement Date, broom-clean, free of all occupants and free of
all furniture and tangible property but otherwise "as-is, where-is and with all
faults," without representation or warranty, express or implied, and Subtenant
hereby waives, disclaims and renounces any representation or warranty. Neither
Prime Landlord nor Sublandlord shall have any obligation to make any
improvements in or to the Subleased Premises nor to obtain any permits, licenses
or
certificates of occupancy. Subtenant shall not make any improvements to the
Subleased Premises without first having obtained Prime Landlord's and
Sublandlord's consent thereto, it being understood that Prime Landlord and
Sublandlord may, in their sole discretion, withhold such consents but not
unreasonably.
4. BASIC RENT. Subtenant shall pay to Sublandlord, in advance, monthly
installments, Base Rent of $46,453.00 beginning on the Sublease Term
Commencement Date (the "RENT COMMENCEMENT DATE"). The first payment is to be
made concurrent with the execution of the within Sublease. Base Rent for any
partial calendar months at the beginning or end of the Sublease Term shall be
prorated on a daily basis. Subtenant acknowledges that Sublandlord's payments of
Base Rent for the Original Premises are paid to Prime Landlord on the first day
of each calendar month during the Term and Subtenant therefore covenants and
agrees that its payments of Base Rent hereunder shall be paid to Sublandlord at
least five (5) business days prior to the first of each calendar month.
5. ADDITIONAL RENT. Subtenant acknowledges that pursuant to Paragraph
2.2, Additional Rental of the Prime Lease, Sublandlord is obligated to pay to
Prime Landlord additional rent on account of Operating Expenses and Real Estate
Taxes for the Building, as more particularly described in such Paragraph.
Subtenant shall pay to Sublandlord, with its monthly payment of Base Rent from
and after the Rent Commencement Date, Subtenant's proportionate share of
Sublandlord's additional rent obligations under the Prime Lease, such
proportionate share being fixed at 35.76% (referred to hereinafter as
"SUBTENANT'S PROPORTIONATE SHARE") provided that, for the purpose of this
Sublease, the Subtenant's Base Year shall be the 2004 calendar year. Sublandlord
shall deliver to Subtenant promptly after receipt thereof any documentation and
statements of Operating Expenses or Real Estate Taxes delivered to Sublandlord
by Prime Landlord. Additional Rent payable hereunder for any partial calendar
month at the beginning or end of the Sublease Term shall be pro-rated on a daily
basis. Upon Subtenant's written request, and subject to the terms and conditions
of the Prime Lease, Sublandlord shall cause an audit to be conducted of Prime
Landlord's books and records. Said audit shall be conducted at the sole cost and
expense of Subtenant.
6. USE. The Subleased Premises shall be used solely for the use set
forth in Paragraph 1.5, Use of the Prime Lease, which use by Subtenant, however,
is and shall be expressly subject to all applicable zoning ordinances, rules and
regulations of any governmental boards or bureaus having jurisdiction thereof.
7. PRIME LEASE. Subtenant agrees that it will do nothing in, on or
about the Subleased Premises which would result in the breach by Sublandlord of
its undertakings and obligations under the Prime Lease. Except as expressly set
forth herein, the Sublease shall be subject to and on all of the terms and
conditions as are contained in the Prime Lease and the provisions of the Prime
Lease are hereby incorporated into this Sublease as if Sublandlord were the
landlord thereunder and Subtenant the tenant thereunder. Where appropriate,
references to "Landlord" in the Prime Lease shall be deemed to mean
"Sublandlord" hereunder and references to "Tenant" in the Prime Lease shall be
deemed to mean "Subtenant" hereunder, it being understood and agreed that
Sublandlord will not be acting as, or assuming any of the responsibilities of
Prime Landlord, and all references in the Prime Lease to Landlord-provided
services or Landlord insurance requirements, and any other references which by
their nature
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relate to the owner or operator of the Subleased Premises, rather than to a
tenant of the Subleased Premises subleasing space to a subtenant shall continue
to be references to Prime Landlord and not to Sublandlord. Without limiting the
foregoing, Subtenant expressly agrees that it does not have any right to expand
the premises or extend the term under either the Sublease or the Prime Lease and
that it is not entitled to any expenditure or allowance by Sublandlord or Prime
Landlord with respect to improvements to the Subleased Premises, except as
expressly set forth herein.
8. SUBTENANT'S COVENANTS. Subtenant covenants to Sublandlord to perform
all of the covenants and obligations to be performed by Sublandlord as Tenant
under the Prime Lease as the same relate to the Subleased Premises and to comply
with this Sublease and the applicable provisions of the Prime Lease, as modified
by this Sublease, in all respects (including, without limitation, complying with
all OSHA, environmental and other applicable laws, regulations and standards).
If Subtenant shall fail to make any payment or perform any act required to be
made or performed by Subtenant under the Prime Lease pursuant to Subtenant's
assumption of Sublandlord's obligations thereunder as they relate to the
Subleased Premises, and such default is not cured by Subtenant at least three
(3) business days prior to the expiration of such Prime Lease cure period,
Sublandlord, without waiving or releasing any obligation or default hereunder,
may (but shall be under no obligation to) make such payment or perform such act
for the account and at the expense of Subtenant, and may take any and all such
actions as Sublandlord in its sole discretion deems necessary or appropriate to
accomplish such cure. If Sublandlord shall reasonably incur any expense in
remedying such default, Sublandlord shall be entitled to recover such sums upon
demand from Subtenant as Additional Rent under this Sublease.
9. SUBLANDLORD'S COVENANTS. Sublandlord covenants to Subtenant to
perform all of the terms and provisions required of it under the Prime Lease and
to promptly pay when due all rents due and accruing to Prime Landlord.
Sublandlord will use reasonable efforts to enforce on behalf of Subtenant
Sublandlord's rights under the Prime Lease. Nothing contained in this Sublease
shall be construed as a guarantee by Sublandlord of any of the obligations,
covenants, warranties, agreements or undertakings of Prime Landlord in the Prime
Lease, nor as an undertaking by Sublandlord to Subtenant on the same or similar
terms as are contained in the Prime Lease.
10. INDEMNIFICATION AND INSURANCE.
A. Subtenant shall indemnify Prime Landlord and Sublandlord
and hold them harmless from and against any and all claims,
demands suits, judgments, liabilities, costs and expenses,
including reasonable attorneys fees, arising out of or in
connection with Subtenant's use and possession of the
Subleased Premises, or arising out of the failure of
Subtenant, is agents, contractors or employees to perform
any covenant, term or condition of this Sublease or of the
Prime Lease to be performed by Subtenant hereunder.
Sublandlord shall indemnify Subtenant and hold Subtenant
harmless from and against any and all claims, demands,
suits, judgments, liabilities, costs and expenses,
including reasonable attorneys fees, arising out of the
failure of Sublandlord to perform any covenant, term or
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condition of this Sublease or the Prime Lease to be
performed by Sublandlord hereunder.
B. Subtenant shall comply with all of the insurance
provisions, as set forth in Paragraphs 7.1 and 7.2 of the
Prime Lease, required of Sublandlord and shall name Prime
Landlord and Sublandlord as additional insureds.
11. ASSIGNMENT AND SUBLETTING. Subtenant shall not be permitted to
assign this Sublease in whole or in part or sublet the Subleased Premises in
whole or in part; however, Subtenant shall be permitted to sub-sublease the
Subleased Premises subject to the terms of the Prime Lease, the Sublease, and
further providing Subtenant remains primarily responsible with respect to any
such subletting.
12. SECURITY DEPOSIT. Deleted Prior to Execution.
13. BROKERS. Sublandlord and Subtenant each represents and warrants to
the other that it has not dealt with any broker in connection with this
Sublease, except Buschman Partners and each agrees to indemnify, defend and hold
the other harmless from and against any breach of said representation and
warranty. Sublandlord shall pay the commissions of Buschman Partners by separate
agreement. Sublandlord and Subtenant agree to indemnify and hold Prime Landlord
harmless from and against any and all claims, demands, lawsuits, judgments,
liabilities, cost and expenses, including reasonable attorney's fees, which may
be made or asserted by Buschman Partners against Prime Landlord on account of
any commissions due to Bushman Partners in connection with this Sublease. This
indemnification shall survive the termination of this Sublease.
14. UTILITIES. Subtenant shall be responsible for all utilities
(including, but not limited to, light, plug and HVAC, electricity) in the
Subleased Premises.
15. PARKING AND SIGNAGE. Subtenant shall be entitled to use Subtenant's
then applicable Proportionate Share of the parking spaces allocated to
Sublandlord under the Prime Lease, on a non-exclusive basis. Sublandlord shall
have no obligation to police the parking areas or enforce Subtenant's parking
rights hereunder. Subtenant shall be entitled to its pro-rata share of signage
rights under the Prime Lender.
16. MISCELLANEOUS.
A. COUNTERPARTS. This instrument may be signed in counterpart
originals, which, taken together, shall constitute a single
original instrument.
B. NOTICES. Notices to Sublandlord or Subtenant required or permitted
hereunder shall be sent in the manner prescribed in the Prime Lease
to the respective addresses set forth above.
C. AMENDMENTS. This Sublease may not be changed or terminated orally
but only by an agreement in writing signed by both Sublandlord and
Subtenant.
D. ESTOPPEL CERTIFICATES AND PROOF OF RENT PAYMENT. Sublandlord and
Subtenant each agree to furnish within twenty (20) days after
written request therefor by the
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other, a certificate stating (i) that this Sublease is in full
force and effect and has not been amended or modified (or
describing such amendment or modification, if any); (ii) the dates
through which Basic Rent and additional rent have been paid
hereunder; and (iii) that there are no defaults under this Sublease
known to the signer of the certificate (or specifying such
defaults, if known). In addition, Sublandlord shall provide to
Subtenant a copy of each rent payment by the tenth of day of each
calendar month of the Sublease Term.
E. NO WAIVER. The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise any
option contained herein, shall not be construed as a waiver of such
covenant, condition or option in any other instance.
F. MEMORANDUM OF LEASE. Subtenant shall not record this Sublease or
any memorandum hereof.
G. GOVERNING LAW. The parties agree that the rights and obligations of
the parties under this Sublease shall be governed and construed in
accordance with the laws of the State of New Jersey.
H. SEVERABILITY. The invalidity of any of the provision of this
Sublease will not impair or affect in any manner of the validity,
enforceability or effect of the rest of this Sublease.
I. ENTIRE AGREEMENT. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged in
this Sublease, which alone fully and completely expresses the
agreement between Sublandlord and Subtenant. Further, Exhibit A and
all of its rights, duties and obligations of the parties thereto
shall be incorporated herein.
J. RELATIONSHIP BETWEEN THE PARTIES. This Sublease does not create the
relationship of principal and agent, nor does it create any
partnership, joint venture, or any association or relationship
between Sublandlord and Subtenant other than as and other than as
and to the extent specifically provided in this Sublease, the sole
relationship of Sublandlord and Subtenant being that of sublandlord
and subtenant as provided in this Sublease. This Sublease shall not
create any relationship between Prime Landlord and Subtenant.
K. REMEDIES CUMULATIVE. Except as specifically provided herein, all
rights and remedies of Sublandlord under this Sublease shall be
cumulative and none shall exclude any other rights and remedies
allowed by law.
L. CONDITION PRECEDENT. The effectiveness of this Sublease is
expressly subject to and conditional upon the conditions set forth
in Paragraph 9.1 of the Prime Lease. Sublandlord agrees to promptly
notify the Prime Landlord of this proposed Sublease in accordance
with Paragraph 9.1 of the Prime Lease. Sublandlord and Subtenant
shall cooperate in seeking to obtain the required consent of the
Prime Landlord. The submission by Sublandlord to Subtenant of this
Sublease shall have no binding force or effect, shall not
constitute an option for the leasing of the
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Subleased Premises, nor confer any rights or impose any obligations
upon either party until the execution thereof by Sublandlord and
Subtenant and the delivery of an executed original copy thereof to
Sublandlord.
M. LIMITATION ON LIABILITY. Notwithstanding any provision of this
Sublease to the contrary, Subtenant's recourse hereunder shall be
solely to the assets of the Sublandlord, and no partner, member,
shareholder, joint venture partner, retired and withdrawn partner,
retired or withdrawn member, retired or withdrawn shareholder,
directly or indirectly, of the Sublandlord (the "EXCULPATED
PARTIES") shall be personally liable for the payment or performance
of any of Sublandlord's obligations under this Sublease or to
satisfy a monetary judgment for Sublandlord's failure to make any
such payment or perform any obligation hereunder. Subtenant shall
not seek any monetary damages against any of the Exculpated Parties
in connection with this Sublease.
IN WITNESS WHEREOF, the parties have executed this Sublease as an
instrument under seal as of the date first written above.
WITNESS/ATTEST:
SUBLANDLORD:
PREDIX PHARMACEUTICALS HOLDINGS, INC.
Successor to Physiome Sciences, Inc.
/s/ MICHAEL G. KAUFFMAN
---------------------------------------
/s/ NIK HAYES
- ---------------
Nik Hayes Secretary Name: Michael Kauffman
Title: Chief Executive Officer
SUBTENANT:
NOVO NORDISK PHARMACEUTICALS, INC.
/s/ ILLEGIBLE
_____________________________ ---------------------------------------
Secretary Name:
Title:
6
FIRST AMENDMENT TO SUBLEASE
THIS FIRST AMENDMENT TO SUBLEASE ("FIRST AMENDMENT") is executed on the
14th day of January, 2004, by and between PREDIX PHARMACEUTICALS HOLDINGS, INC.,
a Delaware Corporation, Successor to PHYSIOME SCIENCES, INC., having a principal
place of business at 10K Gill, Woburn, MA 01801 ("SUBLANDLORD"), and NOVO
NORDISK PHARMACEUTICALS, INC., a Delaware Corporation, having a principal place
of business at 100 College Road West, Princeton, NJ 08540 ("SUBTENANT").
RECITALS
WHEREAS, pursuant to that certain Sublease, dated December 12, 2003, by
and between Sublandlord and Subtenant ("SUBLEASE"), Subtenant subleased from
Sublandlord certain premises consisting of the entire third floor located at 150
College Road West, Plainsboro Township (Middlesex County), New Jersey 08540,
which premises contains 25,338 rentable square feet of space ("SUBLEASED
PREMISES").
WHEREAS, Sublandlord and Subtenant are desirous of amending the
Sublease;
NOW THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants made herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, Sublandlord and Subtenant agree the
Sublease shall be amended to provide as follows:
1. Paragraph 3, DELIVERY of the Sublease, specifically the last sentence
shall be qualified as follows.
The Prime Landlord is obligated not to unreasonably withhold its
consent solely with respect to non-structural alterations.
2. Notwithstanding anything to the contrary which may be set forth in
Paragraph 7, PRIME LEASE, of the Sublease, both the Sublease and all
the rights of the Subtenant thereunder are subject and subordinate in
all respects to the Prime Lease and all of the terms, covenants and
conditions contained therein.
3. Paragraph 7, PRIME LEASE of the Sublease is hereby supplemented to
confirm that, for purposes of incorporation of the provisions of the
Prime Lease into the Sublease, the term "Mortgage Documents" shall be
deemed to include both the Prime Lease and all of the mortgages, deeds
of trust and security agreements to which the Prime Lease is subject
and subordinate, and the term "Interest Holder" shall be deemed to
include both the Prime Landlord and the mortgagees, trustees,
beneficiaries and secured parties under the Mortgage Documents.
4. Subtenant acknowledges that the terms, covenants and conditions of
Section 11.1 SUBORDINATION, Subparagraph (c) of the December 21, 2000
Lease between Landlord and Sublandlord specifically and expressly shall
not apply to the Subtenant and the Prime
Landlord has no obligation, in the Prime Lease or otherwise to enter
into any non-disturbance agreement with Subtenant.
5. All remaining terms, covenants, conditions and provisions of the
Sublease shall remain in full force and effect except as hereinabove
modified.
WITNESS/ATTEST:
SUBLANDLORD:
PREDIX PHARMACEUTICALS HOLDINGS, INC.
Successor to Physiome Sciences, Inc.
By: /s/ NJG HAYES
_____________________________ ------------------------------------
Secretary Name: NJG Hayes
Title: SVP Finance
SUBTENANT:
NOVO NORDISK PHARMACEUTICALS, INC.
By: /s/ ILLEGIBLE
_____________________________ ------------------------------------
Secretary Name:
Title:
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SECOND AMENDMENT TO SUBLEASE
THIS SECOND AMENDMENT TO SUBLEASE ("SECOND AMENDMENT") is executed on
the ____ day of June, 2004, by and between PREDIX PHARMACEUTICALS HOLDINGS,
INC., a Delaware Corporation, Successor to PHYSIOME SCIENCES, INC., having a
principal place of business at 10K Gill, Woburn, MA 01801 ("SUBLANDLORD"), and
NOVO NORDISK PHARMACEUTICALS, INC., a Delaware Corporation, having a principal
place of business at 100 College Road West, Princeton, NJ 08540 ("SUBTENANT").
RECITALS
WHEREAS, pursuant to that certain Sublease, dated December 12, 2003, by
and between Sublandlord and Subtenant ("SUBLEASE"), Subtenant subleased from
Sublandlord certain premises consisting of the entire third floor located at 150
College Road West, Plainsboro Township (Middlesex County), New Jersey 08540,
which premises contains 25,338 rentable square feet of space ("SUBLEASED
PREMISES");
WHEREAS, Sublandlord and Subtenant entered into a First Amendment to
Sublease on January 14, 2004 ("FIRST AMENDMENT");
WHEREAS, Sublandlord and Subtenant arc desirous of further amending the
Sublease;
NOW THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants made herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, Sublandlord and Subtenant agree the
Sublease shall be amended to provide as follows:
Paragraph 2, TERM, of the Sublease, shall be amended to provide that
the Sublease Term shall continue through June 30, 2011.
All remaining terms, covenants, conditions and provisions of the
Sublease and first Amendment shall remain in full force and effect, except as
hereinabove modified.
SIGNATURES ON FOLLOWING PAGE
WITNESS/ATTEST:
SUBLANDLORD:
PREDIX PHARMACEUTICALS HOLDINGS, INC.
Successor to Physiome Sciences, Inc.
/s/ CHEN SCHOR By: /s/ MICHAEL G. KAUFFMAN
_____________________________ ________________________________________
Chen Schor, Secretary Name: Michael Kauffman, MD
Title: President and CEO
SUBTENANT:
NOVO NORDISK PHARMACEUTICALS, INC.
By: /s/ ILLEGIBLE
_____________________________ ________________________________________
Secretary Name:
Title: President
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PREDIX PHARMACEUTICALS HOLDINGS, INC.
10K GILL STREET
WOBURN, MASSACHUSETTS 01801
as of September 30, 2004
Novo Nordisk Pharmaceuticals, Inc.
100 College Road West
Princeton, New Jersey 08520
Re: Sublease dated as of December 12, 2003, by and between Predix
Pharmaceuticals Holdings, Inc., as sublandlord, and Novo Nordisk
Pharmaceuticals, Inc., as subtenant, as amended by a First
Amendment to Sublease dated January 14, 2004 and a Second
Amendment to Sublease dated August, 2004 (collectively, the
"SUBLEASE")
Gentlemen:
Reference is hereby made to the provisions of the Sublease, pursuant to
which Predix Pharmaceuticals Holdings, Inc. ("SUBLANDLORD") leased to Novo
Nordisk Pharmaceuticals, Inc. ("SUBTENANT") the entire third (3rd) floor (the
"PREMISES") of the building known as 150 College Road West, Plainsboro Township
(Middlesex County), New Jersey.
Subtenant has requested Sublandlord's consent to a further subletting
of the entire Premises by Subtenant to ZS Associates, Inc. ("UNDERTENANT")
pursuant to the provisions contained in a certain secondary sublease dated
contemporaneously herewith (the "SECONDARY SUBLEASE"), a copy of which is
attached to this letter as EXHIBIT A. Subtenant has further requested
Sublandlord's consent to the making of certain alterations in and to the
Premises by or on behalf of Undertenant in order to prepare the Premises for
Undertenant's use and occupancy, which alterations (the "INITIAL ALTERATIONS")
are more particularly described in the plans and specifications listed on
EXHIBIT B hereto.
Sublandlord hereby consents to the further subletting of the Premises
by Subtenant to Undertenant pursuant to the provisions contained in the
Secondary Sublease and the performance of the Initial Alterations, which
consent, however, is granted subject to receipt by Sublandlord of a consent to
both the Secondary Sublease and the Initial Alterations from New Valley
Corporation ("LANDLORD"), the current owner of the building of which the
Premises form a part. In connection therewith, the parties agree to the
following terms, covenants and conditions:
1. Neither the granting of such consents, nor anything contained in
this letter, shall be deemed or construed to:
(a) modify, waive, impair, or affect any of the covenants,
agreements, terms, provisions, or conditions contained in the Sublease
(including, without limitation, the provisions of Paragraph 6 thereof
regarding the permitted use of the Premises);
(b) waive any breach of any such covenants, agreements, terms,
provisions, or conditions, or any rights or remedies of Sublandlord against any
person, firm, association, or corporation liable or responsible for the
performance thereof; or
(c) enlarge or increase Sublandlord's or Subtenant's
obligations, or decrease Sublandlord's or Subtenant's rights, under the
Sublease,
and all of the covenants, agreements, terms, provisions and conditions of the
Sublease shall be, and continue to be, in full force and effect. Without
intention to limit the generality of the foregoing in any respect, the
provisions of Paragraph 11 of the Sublease shall continue to apply to any
assignment of the Sublease and/or any further subletting thereunder, as well as
to any assignment of the Secondary Sublease. For purposes hereof, any
modification or amendment of the Secondary Sublease shall be deemed to
constitute a new subletting under the Sublease, as to which Sublandlord's prior
written consent (not to be unreasonably withheld, delayed, or conditioned) shall
be required.
2. Subtenant shall be and remain liable and responsible for the due
keeping, performance and observance of all of the covenants, agreements, terms,
provisions and conditions set forth in the Sublease on the part of Subtenant to
be kept, performed and observed, including, without limitation, the full payment
of the "Base Rent" and "Additional Rental" (as such terms are defined in the
Sublease) now and/or hereafter becoming payable under the Sublease (expressly
including as such, without limitation, adjustments of rent, and any and all
charges for any property, material, labor, utility, or other similar or
dissimilar services or materials rendered, supplied, or furnished by Sublandlord
in, or in connection with, the Premises or any part thereof, whether for, or at
the request pursuant to Paragraph 5 below of, Undertenant), regardless of
whether the corresponding base rent or additional rental (if any) paid or
payable by Undertenant to Subtenant under the Secondary Sublease shall be
greater or less than that payable by Subtenant to Sublandlord under the
Sublease. Without intention to limit the generality of the foregoing in any
respect, any breach, default, or violation of any of such covenants, agreements,
terms, provisions and/or conditions committed or suffered by Undertenant shall
be deemed to have been also committed or suffered by Subtenant, for which
breach, default, or violation Sublandlord shall have all of the same rights and
remedies against Subtenant as Sublandlord would have had if such breach,
default, or violation had been committed or suffered by Subtenant directly.
3. Subtenant shall indemnify, defend and hold Sublandlord, its
partners, directors and/or officers and their affiliates and/or subsidiaries
harmless from and against any claims, liability, losses, or expenses (including,
without limitation, attorneys' fees, court costs and disbursements incurred by
Sublandlord during settlement, at trial, or on appeal) in connection with any
claim for commission and/or fees by any broker or agent in connection with the
Secondary Sublease and/or any of the transactions provided for therein.
4. Subtenant shall hold any and all payments received under the
Secondary Sublease as a trust fund, to be applied first to the satisfaction of
all of Subtenant's obligations under the Sublease before using any part thereof
for any other purpose.
5. Subtenant hereby delegates to Undertenant and relinquishes for
itself, for so long as the Secondary Sublease shall be in full force and effect,
the authority to make requests or demands upon Landlord for, or in connection
with, the providing of those services that are both:
(a) required or permitted to be provided by Landlord to Tenant
and/or the Premises pursuant to the Lease dated December 21, 2000,
originally by and between 150 College Road, LLC, as landlord, and
Physiome Sciences, Inc., as tenant, as supplemented by a Commencement
Date Agreement dated July 18, 2001 and amended by a First Amendment to
Lease Agreement dated January 7, 2002 and a Second Amendment to Lease
Agreement dated December 31, 2003 (collectively, the "Lease"),
including, without limitation, those services described in Sections
3.1, 3.4, 5.5, 12.1 and 12.2 thereof and/or Exhibits F, K and N
thereto; and
(b) required or permitted to be provided by Subtenant to
Undertenant and/or the Premises pursuant to the Secondary Sublease,
as well as to enforce the aforesaid provisions of the Lease (and only such
provisions of the Lease) against Landlord in the event of a breach of the same.
Sublandlord hereby consents to such delegation, for so long as the Secondary
Sublease shall be in full force and effect, pursuant to the provisions of the
Secondary Sublease. Landlord's recognition of, and compliance with, the
foregoing delegation of authority shall not be deemed or construed to create any
privity between Landlord and Subtenant and/or between Landlord and Undertenant,
other than strictly for purposes of the implementation and/or enforcement of the
foregoing provisions of, and/or the foregoing exhibits to, the Lease, nor shall
the same impair the Sublease in any manner or respect and/or affect any of the
rights of Sublandlord, or any of the obligations of Subtenant, thereunder.
6. The parties acknowledge and agree that, pursuant to the
corresponding consent dated contemporaneously herewith, given by Landlord to
Tenant in connection with the Secondary Sublease and the Initial Alterations,
Landlord agreed that neither Sublandlord nor any person or entity claiming by,
through, or under Sublandlord shall have any obligation to remove any
alterations theretofore made to the Premises (including, without limitation, the
Initial Alterations), regardless of whether made by Sublandlord, Subtenant, or
Undertenant, or to restore the Premises with respect thereto. Relying upon such
covenant, Sublandlord agrees that, at the expiration or sooner termination of
the term of the Sublease, neither Subtenant nor any person or entity claiming
by, through, or under Subtenant shall have any obligation to remove any
alterations theretofore made to the Premises (including, without limitation, the
Initial Alterations), regardless of whether made by Subtenant or Undertenant, or
to restore the Premises with respect thereto.
7. Subtenant shall. pay directly to Sublandord's attorneys, within
fifteen (15) days after receipt of a reasonably detailed invoice therefor, the
legal fees and disbursements charged by such attorneys in connection with the
granting of this consent, which legal fees and disbursements shall not exceed
$5,000 in the aggregate. The obligation to pay such legal fees shall be
considered to be additional rent payable by Subtenant under the Sublease.
Kindly sign this letter below to confirm your agreement to the foregoing terms,
covenants and conditions.
Sublandlord hereby confirms that the provisions of Section 11.4 of the
Lease have become inapplicable pursuant to subsection (e) thereof, and that such
provisions are therefore not incorporated by reference into the Sublease.
This letter may be signed in counterpart originals, all of which, when
taken together, shall constitute but one document. This letter may also be
signed by fax transmission.
Very truly yours,
PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ CHEN SCHOR
------------------------------------
Name: Chen Schor
Title: SVP
Agreements, representations and warranties confirmed:
NOVO NORDISK PHARMACEUTICALS, INC.
By: /s/ ILLEGIBLE
-------------------------
Name:
Title:
EXHIBIT A
SECONDARY SUBLEASE
THIS SECONDARY SUBLEASE (the "Secondary Sublease") is dated as of the
30th day of September 2004, by and between NOVO NORDISK PHARMACEUTICALS, INC., a
Delaware corporation, having its address at 100 College Road West, Princeton,
New Jersey 08540 ("Underlandlord"), and ZS ASSOCIATES, INC., having its address
at 100 College Road West, Suite 250, Princeton, New Jersey 08540
("Undertenant").
RECITALS
1. Physiome Sciences, Inc. ("Original Tenant") entered into a lease
with 150 College Road, LLC ("Original Landlord") dated December 21, 2000 (the
"Prime Lease") for commercial office space located in the building known and
designated as 150 College Road West in Village South at Princeton Forrestal
Center, Princeton, New Jersey (the "Building"). The Prime Lease was supplemented
by a Commencement Date agreement dated July 18, 2001 and amended by the parties
thereto by First Amendment to Lease Agreement dated January 7, 2002 (the "First
Amendment"). The leased premises consisted of 25,338 rentable square feet of
commercial office space, and comprises the entire third (3rd) floor of the
Building (the "Leased Premises").
2. Sometime prior to December 2003, New Valley Corporation ("Landlord")
succeeded to the interests of the Original Landlord (hereafter the Landlord and
the Original Landlord shall be referred to as the "Prime Landlord"). Sometime
prior to December 2003, Predix Pharmaceuticals Holdings, Inc. ("Tenant")
succeeded to the interests of the Original Tenant. The Prime Lease was amended
by Prime Landlord and Tenant by a Second Amendment to Lease Agreement dated
December 31, 2003 (the "Second Amendment"). (The Prime Lease, First Amendment
and Second Amendment shall hereafter in the aggregate be referred to as the
"Lease", and a copy of each such document is attached hereto as Exhibits A, B
and C, respectively.)
3. By Sublease dated as of December 12, 2003 (the "Sublease"), Tenant
(as sublandlord) subleased the entire Leased Premises to Underlandlord (as
subtenant). The Sublease was amended by the parties thereto by a First Amendment
to Sublease dated January 14, 2004 (the "First Amendment to Sublease"). The
Sublease was further amended by a Second Amendment to Sublease dated August,
2004 (the "Second Amendment to Sublease"). (The Sublease, the First Amendment to
Sublease and Second Amendment to Sublease shall hereafter be referred to as the
"Prime Sublease", and a copy of each such document is attached hereto as
Exhibits D, E and F respectively). Prime Landlord consented to the Sublease by
letter agreement dated January 22, 2004 (the "Landlord Sublease Consent") and is
attached hereto as Exhibit G.
4. Underlandlord presently has all rights to occupy and use the Leased
Premises pursuant to the terms of the Sublease. Undertenant desires to sublease
the Leased Premises (the "Subleased Premises") from Underlandlord pursuant to
certain terms and conditions of this Secondary Sublease, set forth hereafter.
5. The terms of the Lease require the approval and consent of Prime
Landlord to any sublease of any portion of the Leased Premises by Underlandlord.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual
covenants made herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged and agreed, Underlandlord hereby subleases to
Undertenant and Undertenant hereby leases from Underlandlord the Subleased
Premises, on the terms and conditions set forth below:
1. DEFINED TERMS. All terms defined in the Lease and Sublease and used
herein shall, unless otherwise defined herein, have the meanings ascribed to
such terms in the Lease and Sublease.
2. TERM.
2.1 The term ("Term") of this Secondary Sublease shall commence on
the earlier of (a) the date Undertenant begins occupancy for the purpose of
conducting its business in the Subleased Premises; (b) ten (10) business days
following the date Undertenant receives a temporary or permanent certificate of
occupancy (or equivalent) allowing Undertenant to legally occupy the entire
Subleased Premises, or (c) January 17, 2005 (the "Commencement Date") and shall
expire on June 30, 2011 (the "Expiration Date"), unless sooner terminated
pursuant to the terms hereof or of the Secondary Sublease. Provided, however,
that the Commencement Dates set forth in (b) and (c) above shall be subject to:
(i) theft, fire, act of God, public enemy, riot, strike,
insurrection, war, court order, requisition or order of any governmental
authority or governmental body, or any other cause beyond the control of
Undertenant ("force majeure" ), and/or
(ii) any wrongful act or wrongful omission to act of
Underlandlord that reasonably causes delay ("Underlandlord Delay")
then, and in any such event or events the Commencement Date shall be deemed to
be postponed, for purposes of determining when the Commencement Date shall
occur, by one day for each day of such delay. Similarly, in the event that
Undertenant shall be delayed beyond the timeframe set forth per subparagraph (b)
hereinabove by reason of force majeure or Underlandlord Delay, then and in any
such event or events, the Commencement Date shall be deemed to be postponed, for
purposes of determining when the Commencement Date shall occur, by one day for
each day of such delay.
2.2 Notwithstanding the foregoing, it is expressly understood and
agreed by Undertenant that this Secondary Sublease is subject to approval of
Prime Landlord pursuant to Paragraph 9.1 of the Prime Lease, which approval is
being given simultaneously herewith. In the event this Secondary Sublease is not
approved by Prime Landlord, Underlandlord shall not be liable to Undertenant for
any costs, expenses (including, without limitation, attorneys fees and expenses)
or for any damages in any manner whatsoever, except for Paragraph 3 in
Underlandlord and Undertenant's Letter of Intent dated August 5, 2004, and this
Secondary Sublease shall be null and void and of no force and effect ab initio.
3. DELIVERY. The Subleased Premises shall be delivered to Undertenant
on the Commencement Date, subject to the following:
3.1 Prior to the Commencement Date of this Secondary Sublease,
Undertenant has been afforded the right by Underlandlord to effect certain
renovations, alterations and improvements to the Subleased Premises (the
"Renovations"). Undertenant is and shall be responsible for and in full control
of the Renovations.
3.2 Undertenant accepts the Subleased Premises in their "as-is,
where-is and with all faults" condition as of the Commencement Date. Undertenant
acknowledges that it is not relying on any representation or warranty whatsoever
of Underlandlord or its agents and/or employees as to the condition,
sufficiency, size, measurement or permitted uses of the Subleased Premises. Upon
the expiration or earlier termination of the Term, Undertenant shall, at its
sole cost and expense, quit and surrender the Subleased Premises in as good a
condition as when possession was delivered to Undertenant, reasonable wear and
tear excepted.
4. BASE RENT.
4.1 Undertenant shall pay to Underlandlord, in advance, monthly
installments of base rent (the "Base Rent") each in the amount of Forty Six
Thousand Four Hundred Fifty Three and No/00 Dollars ($46,453.00) beginning on
the Commencement Date (the "Rent Commencement Date") and continuing through
December 7, 2010. This Base Rent is based on an annual rate of $22.00 per square
foot and is in the total amount of $557,436.00 annually. Undertenant shall pay
to Underlandlord, in advance, monthly installments of Base Rent each in the
amount of Forty Seven Thousand Eight Hundred Forty Six and Fifty-Nine/00
($47,846.59) beginning on December 8, 2010 and continuing through June 30, 2011.
This Base Rent is based on an annual rate of $22.66 per square foot and is in
the total amount of $574,159.08 annually.
4.2 The Undertenant shall pay the Base Rent in monthly installments
in advance on the first (1st) day of each month commencing on the first day of
the first full calendar month from the Commencement Date, without credits (other
than the Undertenant Credit as provided for in Section 4.4 hereafter), offset,
deduction, or abatement and without notice. All sums to be paid by Undertenant
hereunder other than Base Rent shall be payable as additional rent ("Additional
Rent") (collectively herein "Base Rent" and "Additional Rent" are referred to as
"Rent").
4.3 Undertenant shall pay the Base Rent and any Additional Rent to
Underlandlord in U.S. funds by check or by regularly scheduled electronic
interbank funds transfer, at Undertenant's discretion, on or before the
Commencement Date and thereafter on or before the first day of each calendar
month thereafter. Underlandlord will provide Undertenant appropriate banking
instructions to permit for this electronic funds transfer, which instructions
may be periodically modified by Underlandlord in the event of subsequent changes
in its banking relationships or accounts.
Undertenant shall tender all rent payments, until notified otherwise in
writing by Underlandlord by wire to the following bank account:
Bank: CitiBank
111 Wall Street
New York, New York 10005-3509
ABA Number: 021000089
Account of: Novo Nordisk Pharmaceuticals, Inc.
Account number: [ACCOUNT NUMBER]
4.4 Subject to the conditions set forth herein, from the
Commencement Date through December 7, 2010, Undertenant shall be entitled to a
credit from Underlandlord against the Base Rent otherwise due under Section 4.1
above (the "Undertenant Credit' ). The Undertenant Credit shall be in an amount
calculated at One Dollar and no/100 ($1.00) per year per rentable square foot of
the Subleased Premises (i.e., 25,338 rentable square feet) and shall be accorded
to Undertenant by Underlandlord on a prorated monthly basis against Rent then
becoming otherwise due and owing. Provided, however, that the Undertenant Credit
shall be provided to Undertenant only so long as: (a) Undertenant occupies the
Subleased Premises, (b) Undertenant is not in uncured default of the Secondary
Sublease, and (c) the food service facility and physical fitness facility
presently located in the building located at 100 College Road West, Plainsboro
Township, New Jersey continue to be operational.
5. ADDITIONAL RENT. Undertenant acknowledges that pursuant to Paragraph
2.2, Additional Rental, of the Prime Lease, Tenant is obligated to pay to Prime
Landlord additional rent on account of Operating Expenses and Real Estate Taxes
for the Building, as more particularly described in such Paragraph. Additionally
Undertenant acknowledges that pursuant to Paragraph 5, Additional Rental, of the
Sublease, Underlandlord is obligated to pay to Tenant additional rent on account
of the same Operating Expenses and Real Estate Taxes for the
Building. Undertenant shall pay to Underlandlord, with its monthly payment of
Base Rent from and after the Rent Commencement Date, Undertenant's proportionate
share (being fixed at 35.41%), provided that, for the purpose of this Secondary
Sublease, the Undertenant's Base Year shall be the 2004 calendar year.
Underlandlord shall deliver to Undertenant promptly after receipt thereof, any
documentation and statement of Operating Expenses or Real Estate Taxes delivered
to Underlandlord by Tenant or Prime Landlord. Additional Rent payable hereunder
for any partial calendar month at the beginning or end of the Secondary Sublease
Term shall be pro-rated on a daily basis. Upon Undertenant's written request,
and subject to the terms and conditions of the Prime Lease, Underlandlord shall
cause an audit to be conducted of Prime Landlord's books and records. Said audit
shall be conducted at the sole cost and expense of Undertenant. All demands made
by Underlandlord for payment of additional rent by Undertenant hereunder, shall
be accompanied by appropriate supporting documentation, to the extent such
supporting documentation is provided to Underlandlord.
6. RENT ABATEMENT.
If any rent abatement is available to Underlandlord on account of the
failure of Prime Landlord to perform any obligation pursuant to the Prime Lease
or Prime Sublease, then the parties shall share the rent abatement as set forth
in this Section. Undertenant shall receive a rent abatement first, up to the
amount of rent and additional rent then payable. In the event the total
abatement exceeds the amount of rent and additional rent then payable by
Undertenant, Underlandlord shall receive any remaining monthly rent abatement
amount. In the event that Underlandlord receives any other abatement, reduction
or diminution of rent or additional rent from Prime Landlord or Tenant that
relates to the Subleased Premises, in whole or in part, Undertenant shall be
entitled to the same share of the abatement, reduction or diminution of rent or
additional rent under this Secondary Sublease to the extent of rent and
additional rent then payable and Underlandlord shall be entitled to any balance
thereafter.
7. USE. The Subleased Premises shall be used solely for the use set
forth in Paragraph 1.5, Use, of the Prime Lease, which use by Undertenant,
however, is and shall be expressly subject to all applicable zoning ordinances,
rules and regulations of any governmental boards or bureaus having jurisdiction
thereof.
8. PRIME LEASE AND SUBLEASE. Undertenant agrees that it will do nothing
in, on or about the Subleased Premises which would result in a breach by
Underlandlord of its undertakings and obligations under the Sublease, or which
would result in a breach by Tenant of its undertakings and obligations under the
Lease. Except as expressly set forth herein, this Secondary Sublease shall be
subject to and on all of the terms and conditions as are contained in the Lease
and the Sublease, and the provisions of the Lease and Sublease are incorporated
into this Secondary Sublease as if Prime Landlord and/or Tenant were the
landlord thereunder and Undertenant the direct tenant or subtenant thereunder.
Where appropriate, references to "Landlord" in the Lease and "Sublandlord" in
the Sublease shall be deemed to mean Underlandlord hereunder and references to
"Tenant" in the Lease and "Subtenant" in the Sublease shall be deemed to mean
Undertenant hereunder, it being understood and agreed that Underlandlord will
not be acting as, or assuming any responsibilities of, Prime Landlord, and all
references in the Lease to Prime Landlord-provided services or Prime Landlord
insurance requirements, and any other references which by their nature relate to
the owner or operator of the Subleased Premises, rather than to a tenant of the
Subleased Premises subleasing space to a
subtenant, shall continue to be references to the Landlord and not to Tenant or
Underlandlord. Without limiting the foregoing, Undertenant expressly agrees that
it does not have any right to expand the Subleased Premises or extend the term
under either the Secondary Sublease, Sublease or Lease and that it is not
entitled to any expenditure or allowance by Underlandlord, Tenant or Prime
Landlord with respect to improvements to the Subleased Premises, except as
expressly set forth herein.
9. UNDERTENANT'S COVENANTS. Undertenant covenants to Underlandlord to
perform all of the covenants and obligations to be performed by Underlandlord as
Subtenant under the Sublease, as the same relate to the Subleased Premises and
to comply with this Secondary Sublease and the applicable provisions of the
Sublease and the Lease, as modified by this Secondary Sublease, in all respects
(including, without limitation, complying with all OSHA, environmental and other
applicable laws, regulations and standards). If Undertenant shall fail to make
any payment or perform any act required to be made or performed by Underlandlord
as Subtenant under the Sublease pursuant to Undertenant's assumption of
Underlandlord's obligations thereunder as they relate to the Subleased Premises,
and such default is not cured by Undertenant at least three (3) business days
prior to the expiration of such Lease cure period, Underlandlord, without
waiving or releasing any obligation or default hereunder, may (but shall be
under no obligation to) make such payment or perform such act for the account
and at the expense of Undertenant, and may take any and all such actions as
Underlandlord in its sole discretion deems necessary or appropriate to
accomplish such cure. If Underlandlord shall reasonably incur any expense in
remedying such default, Underlandlord shall be entitled to recover such sums
upon demand from Undertenant as Additional Rent under this Secondary Sublease.
10. UNDERLANDLORD'S COVENANTS. Underlandlord covenants to Undertenant
to perform all of the terms and provisions required of Underlandlord under the
Sublease and Lease and to promptly pay when due all rents due and accruing to
Tenant. Underlandlord will use reasonable efforts to enforce on behalf of
Undertenant the Tenant's rights under the Sublease and Lease. Nothing contained
in this Secondary Sublease shall be construed as a guarantee by Underlandlord of
any of the obligations, covenants, warranties, agreements or undertakings of
Tenant in the Sublease or Prime Landlord in the Lease, nor as an undertaking by
Underlandlord to Undertenant on the same or similar terms as are contained in
the Sublease or Lease.
Underlandlord covenants and agrees that, as long as this Secondary
Sublease is in full force and effect, Undertenant shall peaceably and quietly
have, hold and enjoy the Subleased Premises during the term hereof, without
molestation or hindrance by Underlandlord subject to the terms, covenants,
conditions, conditions, provisions and agreements of this Secondary Sublease.
Underlandlord further represents to the best of its knowledge to
Undertenant, the following:
(i) the Prime Sublease is in full force and effect in
accordance with, and subject to, all of the terms, covenants, conditions,
provisions and agreements contained therein;
(ii) the Prime Sublease has not been modified, amended or
supplemented, except as set forth herein;
(iii) Underlandlord has not given or received any notice of
any default under the Prime Sublease, which default remains uncured, and, to the
best of its knowledge, no event has occurred or failed to occur which with the
passage of time and/or the giving of notice would ripen into such a default;
(iv) Underlandlord has not received written notice of any
violation of applicable laws or insurance requirements (including, without
limitation, environmental laws); and
(v) Underlandlord shall not (1), except as expressly provided
hereunder, cancel, surrender or terminate the Prime Lease or Prime Sublease, or
(2) amend or modify the Prime Lease or Prime Sublease, the result of which would
materially or adversely affect Undertenant's rights or obligations hereunder or
the Subleased Premises, and any such cancellation, surrender, termination
(except as expressly provided hereunder), amendment or modification of the Prime
Sublease made without Undertenant's written consent shall not be binding on
Undertenant to the extent the same materially decreases the rights or materially
increases the obligations of Undertenant with respect to the Subleased Premises
or this Secondary Sublease.
11. UNDERLANDLORD DEFAULT.
A. If Underlandlord shall fail to perform any of the terms,
covenants, conditions, provisions or agreements of the Prime
Lease and Prime Sublease on its part to be performed, which
failure constitutes a default under the Prime Lease or Prime
Sublease, then Undertenant may, at its option, perform any such
term, covenant, condition, provision or agreement, and the full
cost and expense incurred by Undertenant shall immediately be
due and owing by Underlandlord or Prime Landlord to Undertenant.
B. If Underlandlord shall fail to perform any of the terms,
covenants, conditions, provisions or agreements contained in
this Secondary Sublease, then Undertenant may, at its option,
perform any such term, covenant, condition, provision or
agreement, and the full cost and expense incurred by Undertenant
shall immediately be due and owing by Underlandlord to
Undertenant.
12. ENFORCEMENT OF PRIME LEASE. If Prime Landlord shall default in any
of its obligations to Underlandlord with respect to the Subleased Premises,
Underlandlord shall use its best efforts to enforce its rights against Prime
Landlord, and Undertenant shall be entitled to participate with Underlandlord in
the enforcement of Underlandlord rights against Prime Landlord. If, after
written requests from Undertenant, Underlandlord shall fail or refuse within ten
(10) days thereafter to take appropriate action for the enforcement of
Underlandlord's rights against Prime Landlord with respect to the Subleased
Premises, Undertenant shall have the right to take such action in its own name,
and for that purpose and only to such extent, all of the rights of Underlandlord
under the Prime Lease and Prime Sublease, respectively, with respect to the
Subleased Premises are hereby conferred upon and assigned to Undertenant.
Underlandlord agrees to cooperate with Undertenant in connection with the
enforcement by Undertenant of such rights.
13. INDEMNIFICATION AND INSURANCE.
A. Undertenant shall indemnify Underlandlord, Tenant and Prime
Landlord and hold them harmless from and against any and all
claims, demands, suits, judgments, liabilities, costs and
expenses, including reasonable attorneys fees, arising out of or
in connection with Undertenant's use and possession of the
Subleased Premises, or arising out of the failure of
Undertenant, its agents, contractors or employees to perform any
covenant, term or condition of this Secondary Sublease or of the
Lease or Sublease to be performed by Undertenant hereunder.
Underlandlord shall indemnify Undertenant and hold Undertenant
harmless from and against any and all claims, demands, suits,
judgments, liabilities, costs and expenses, including reasonable
attorneys fees, arising out of the failure of Underlandlord to
perform any covenant, term or condition of this Secondary
Sublease or of the Lease or Sublease to be performed by
Underlandlord hereunder. Underlandlord shall not amend or modify
the Prime Sublease, the result of which would materially or
adversely affect Undertenant's rights or obligations hereunder
or the Subleased Premises.
B. Undertenant shall comply with all of the insurance provisions,
as set forth in Paragraphs 7.1 and 7.2 of the Lease, required of
the Tenant (and required of the Underlandlord pursuant to
Paragraph 10B of the Sublease); and shall name Prime Landlord,
Tenant and Underlandlord as additional insureds.
14. ASSIGNMENT AND SUBLETTING. Undertenant shall not be permitted to
assign this Secondary Sublease in whole or in part or sublet the Subleased
Premises in whole or in part; however, Undertenant shall be permitted to
sub-sublease the Subleased Premises subject to the terms of the Lease, the
Sublease, the Secondary Sublease and further providing Undertenant remains
primarily responsible with respect to any such sub-subletting.
15. SECURITY DEPOSIT. Undertenant shall, concurrent with execution of
this Secondary Sublease, deliver to Underlandlord a security deposit ("Deposit")
in the amount of Forty-Six Thousand Four Hundred Sixty-Three and No/00 Dollars
($46,453.00) representing one (1) month Base Rent. The Deposit shall be held by
Underlandlord to insure Undertenant's performance of all of its obligations
under the Secondary Sublease. Underlandlord shall have the right from time to
time without prejudice to any other remedy Underlandlord may have on account
hereof, to apply the Deposit, or any part thereof, to Underlandlord's damages
arising from any uncured default on the part of Undertenant. Provided
Undertenant shall have fully and timely complied with all of the terms,
covenants and conditions of this sublease, Underlandlord shall return the
Deposit, or remainder thereof not previously applied, to Undertenant on the
expiration or earlier termination of the Term and surrender by Undertenant of
the Subleased Premises to Underlandlord. Underlandlord may hold the Deposit
without any obligation to pay interest thereon and may commingle the Deposit
with Underlandlord's other funds. If Underlandlord conveys Underlandlord's
interest under this Secondary Sublease, the Deposit, or any part thereof not
previously applied, may be turned over by Underlandlord to Underlandlord's
grantee, whereupon, Undertenant agrees to look solely to such grantee for
application and return of the Deposit in accordance herewith.
16. BROKERS. Underlandlord and Undertenant each represents and warrants
to the other that it has not dealt with any broker in connection with this
Secondary Sublease, except Cushman & Wakefield of New Jersey, Inc. (hereafter,
"C&W"), and each agrees to indemnify, defend and hold the other harmless from
and against any breach of said representation and warranty. Underlandlord shall
be responsible for the commissions of C&W in an amount equal to three percent
(3%) of the Base Rent for that part of the Sublease Term from the Commencement
Date through June 30, 2011. Underlandlord will pay the amount of the commission
to Undertenant, who in turn shall pay C&W. Underlandlord and Undertenant agree
to indemnify and hold Prime Landlord and Tenant harmless from and against any
and all claims, demands, lawsuits, judgments, liabilities, cost and expenses,
including reasonable attorney's fees, which may be made or asserted by C&W
against Prime Landlord or Tenant on account of any commissions due to C&W in
connection with this Secondary Sublease. This indemnification shall survive the
termination of this Secondary Sublease.
17. UTILITIES. Undertenant shall be responsible for all utilities
(including, but not limited to light, plug and HVAC, electricity) in the
Subleased Premises.
18. FOOD SERVICE AND PHYSICAL FITNESS FACILITIES. Undertenant will
continue to have unrestricted access to the food service and physical fitness
facilities in 100 College Road West, Princeton, New Jersey so long as same is in
operation and Undertenant is not in monetary default, beyond applicable notice,
grace and cure periods, under this Secondary Sublease.
19. PARKING AND SIGNAGE. Undertenant shall be entitled to use of
Underlandlord's then applicable Proportionate Share of the parking spaces
allocated to Tenant under the Lease (and to which Underlandlord is entitled
under the Sublease) on a non-exclusive basis. Underlandlord shall have no
obligation to police the parking areas or enforce Undertenant's parking rights
hereunder. Undertenant shall be entitled to its pro-rata share of signage rights
under the Lease and Sublease.
20. MISCELLANEOUS.
A. Counterparts. This instrument may be signed in counterpart
originals, which taken together, shall constitute a single
original instrument.
B. Notices. All notices to be sent pursuant to this Secondary
Sublease shall be in writing and delivered to the Parties at the
following addresses:
If to Undertenant: If to Underlandlord
ZS Associates, Inc. Novo Nordisk Pharmaceuticals, Inc.
150 College Road West 100 College Road West
Princeton, New Jersey 08540 Princeton, New Jersey 08540
Attn:Craig Stinebaugh, Attn: Director of Facilities
Managing Principal - Princeton
With copy to: General Counsel
With copy to:
Cole, Schotz, Meisel, Forman Same address
& Leonard, P.A.
Court Plaza North
25 Main Street
Hackensack, New Jersey 07602
Attn: Jan Alan Lewis, Esq.
It is agreed that the parties shall, promptly following receipt thereof, deliver
to each other a copy of any notice received by it which would have any effect
upon the interests of the other under the Prime Sublease and Secondary Sublease;
C. Amendments. This Secondary Sublease may not be changed or
terminated orally but only by an agreement in writing signed by
both Underlandlord and Undertenant.
D. Estoppel Certificates and Proof of Rent Payment. Underlandlord
and Undertenant each agree to furnish within twenty (20) days
after request by the other, a certificate stating (i) that this
Secondary Sublease and Sublease are in full force and effect and
has not been amended or modified (or describing such amendment
or modification, if any); (ii) the dates through which Base Rent
and additional rent have been paid hereunder; and (iii) that
there are no defaults under this Secondary Sublease known to the
signer of the certificate (or specifying such defaults, if
known). In addition, Underlandlord shall provide to Undertenant
a copy of each rent payment by the tenth day of each calendar
month of the Secondary Sublease Term.
E. Attorney's Fees. if either party institutes any action or
proceeding against the other for the violation of any of the
terms, covenants, conditions, provisions or agreements of this
secondary sublease, and if either party shall be successful in
such action or proceeding, then other party, as applicable,
shall be obligated to pay or reimburse the other for reasonable
attorneys' fees incurred by winning party of such action or
proceeding.
F. No Waiver. The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise
any option contained herein, shall not be construed as a waiver
of such covenant, condition or option in any other instance.
G. Memorandum of Lease. The Parties shall not record this Secondary
Sublease or any memorandum thereof.
H. Governing Law. The parties agree that the rights and obligations
of the parties under this Secondary Sublease shall be governed
and construed in accordance with the laws of the State of New
Jersey.
I. Severability. The invalidity of any of the provisions of this
Secondary Sublease will not impair or affect in any manner the
validity, enforceability or effect of the rest of this Secondary
Sublease.
J. Entire Agreement. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged
in this Secondary Sublease, which alone fully and completely
expresses the agreement between Underlandlord and Undertenant.
Further, all the Exhibits hereto and all of the respective
rights, duties and obligations of the parties therein shall be
incorporated herein.
K. Relationship Between the Parties. This Secondary Sublease does
not create the relationship or principal and agent, nor does it
create any partnership, joint venture, or any association or
relationship between Underlandlord and Undertenant other than as
and to the extent specifically provided in this Secondary
Sublease, the sole relationship of Underlandlord and Undertenant
being that of Underlandlord and Undertenant as provided in the
Secondary Sublease. This Secondary Sublease shall not create any
relationship between Prime Landlord and/or Tenant and the
Undertenant, except Undertenant has the authority to make
requests or demands upon Prime Landlord for, or in connection
with, the providing of those services that are both: (a)
required or permitted to be provided by Prime Landlord to
Original Tenant and/or the Premises pursuant to the Prime Lease
(including, without limitation, those services described in
Sections 3.1, 3.4, 5.5, 12.1 and 12.2 of the Prime Lease and/or
Exhibits F, K and N thereto); and (b) required or permitted to
be provided by Original Tenant to Underlandlord and/or the
Premises pursuant to the Sublease, as well as to enforce the
aforesaid provisions of the Lease against Prime Landlord in the
event of a breach of the same.
Undertenant shall not be deemed to be making any representations
and warranties which were made by Underlandlord in the Prime
Sublease.
L. Remedies Cumulative. Except as specifically provided herein, all
rights and remedies of the Parties under this Secondary Sublease
shall be cumulative and none shall exclude any other rights and
remedies allowed by law.
M. Conditions Precedent. The effectiveness of this Secondary
Sublease is expressly subject to and conditioned upon the
conditions set forth in Paragraph 9.1 of the Prime Lease.
Underlandlord and Undertenant shall cooperate in seeking to
obtain the required consents of Prime Landlord and Tenant. The
submission by Underlandlord to Undertenant of this Secondary
Sublease shall have no binding force or effect, shall not
constitute an option for the leasing of the Subleased Premises,
nor confer any rights or impose any obligations upon either
party until the execution thereof by Underlandlord and
Undertenant and the delivery of an executed original copy
thereof to Underlandlord.
N. Limitation on Liability. Notwithstanding any provision of this
Secondary Sublease to the contrary, Undertenant's recourse
hereunder shall be solely to the assets of Underlandlord, and no
partner, member, shareholder, joint venture partner, retired or
withdrawn partner, retired or withdrawn member, retired or
withdrawn shareholder, directly or indirectly, of Underlandlord
(the "Exculpated Parties") shall be personally liability for the
payment or performance of any of Underlandlord's obligations
under this Secondary Sublease or to satisfy a monetary judgment
for Underlandlord's failure to make any such payment or perform
any obligation hereunder. Undertenant shall not seek any
monetary damages against any of the Exculpated Parties in
connection with this Secondary Sublease.
O. Fees and Costs. Underlandlord and Undertenant will each be
solely responsible for and bear all of their own respective
costs and expenses, including, without limitation, expenses of
legal counsel, accountants and other advisors, incurred at any
time in connection with pursuing or consummating matters
contemplated in this Secondary Sublease except for the terms
addressed in Paragraphs 3 and 4 in Underlandlord and
Undertenant's Letter of Intent dated August 5, 2004, which terms
and conditions are incorporated herein by reference and which
become
effective upon the execution and delivery of this Secondary
Sublease.
IN WITNESS WHEREOF, the parties have executed this Secondary Sublease
as an instrument under seal as of the date first written above.
UNDERLANDLORD:
NOVO NORDISK PHARMACEUTICALS, INC.
_________________________ __________________________________
Witness By: Martin Soeters, President
UNDERTENANT:
ZS ASSOCIATES, INC.
_________________________ __________________________________
Witness By: Craig Stinebaugh
Managing Principal - Princeton
EXHIBIT A
PRIME LEASE
EXHIBIT B
FIRST AMENDMENT TO LEASE
EXHIBIT C
SECOND AMENDMENT TO LEASE
EXHIBIT D
PRIME SUBLEASE
EXHIBIT E
FIRST AMENDMENT TO SUBLEASE
EXHIBIT F
SECOND AMENDMENT TO SUBLEASE
EXHIBIT G
LANDLORD SUBLEASE CONSENT
EXHIBIT H
SUBLEASED PREMISES
EXHIBIT B
PLANS AND SPECIFICATIONS FOR INITIAL ALTERATIONS
The following drawings issued by Aztec Architects, PC, Woodbridge Place,
517 Route One South, Iselin, New Jersey, 08830:
Drawing Initial Drawing Last Revision
Number Drawing Title Date Date
- --------- ----------------------------------------------------------------- --------------- -------------
SP-A3-6 Space Plan June 11, 2004 N/A
ITL-2/0.1 Title Sheet June 22, 2004 July 23, 2004
DPL-4/3.1 Demolition Plan June 22, 2004 July 23, 2004
DPL-4/3.2 Reflected Ceiling Demolition Plan June 22, 2004 July 23, 2004
CPL-5/3.1 Construction Plan June 22, 2004 July 23, 2004
RCF-6/3.1 Reflected Ceiling Plan June 22, 2004 July 23, 2004
ETD-7/3.1 Telephone/Elec/Data Plan June 22, 2004 July 23, 2004
FNP-8/3.1 Finish Plan June 22, 2004 July 23, 2004
DET-9/3.1 Details June 22, 2004 July 23, 2004
DET-9/3.2 Casework, Elevations & Reception Wall Elevations June 22, 2004 July 23, 2004
DET-9/3.3 Partial Plan & Details June 22, 2004 July 23, 2004
DET-9/3.4 Elevations at Elevators & Details, Partial Reflected Ceiling Plan June 22, 2004 July 23, 2004
E-1 Electrical Specifications July 21, 2004 N/A
E-2 Electrical General Information July 21, 2004 N/A
E-3 Electrical Lighting Demolition Plan July 21, 2004 N/A
E-4 Electrical Power & Fire Alarm System Demolition Plan July 21, 2004 N/A
E-5 Electrical Lighting Plan July 21, 2004 N/A
E-6 Electrical Power Plan July 21, 2004 N/A
E-7 Electrical Fire Alarm Plan July 21, 2004 N/A
E-8 Electrical Single Line Diagram July 21, 2004 N/A
E-9 Electrical Schedule & Details July 21, 2004 N/A
1
Drawing Initial Drawing Last Revision
Number Drawing Title Date Date
- -------- ----------------------------------------------------------------- --------------- -------------
FP-I Fire Protection Demolition Plan July 21, 2004 N/A
FP-2 Fire Protection Ceiling Plan July 21, 2004 N/A
FP-3 Fire Protection Specifications July 21, 2004 N/A
M-1 Partial Mechanical Demo. Plan July 21, 2004 N/A
M-2 Partial Mechanical Demo. Plan July 21, 2004 N/A
M-3 Partial Mechanical Plan July 21, 2004 N/A
M-4 Partial Mechanical Plan July 21, 2004 N/A
M-5 Mechanical Symbols, Schedules and Details July 21, 2004 N/A
M-6 Mechanical Specifications and Notes July 21, 2004 N/A
P-1 Plumbing Demolition Plan July 21, 2004 N/A
P-2 Plumbing Part Plan July 21, 2004 N/A
P-3 Plumbing Schedules, Details and Specifications July 21, 2004 N/A
2