EXHIBIT 10.25
SEVENTH AMENDMENT OF LEASE
(PARTIAL TERMINATION AND SURRENDER AGREEMENT)
THIS AGREEMENT (this "Agreement") is made as of the 23rd day of
September 2003 between EASTVIEW HOLDINGS LLC ("Landlord"), a Delaware limited
liability company, having an address at c/o LCOR Asset Management L.P., One Penn
Plaza, Suite 3310, New York, New York 10119, and EMISPHERE TECHNOLOGIES, INC.
("Tenant"), a Delaware corporation, having an address at 765 Old Saw Mill River
Road, Tarrytown, New York 10591.
W I T N E S S E T H :
WHEREAS, Landlord's predecessor-in-interest and Tenant entered into a
Lease dated as of March 31, 1997 (the "Original Lease"), for certain premises
shown on Exhibit A of the Original Lease in the Linde Building (765 Old Saw Mill
River Road) (the "Linde Building") and the Spine Building (777 Old Saw Mill
River Road) (the "Spine Building") located within the project (the "Project")
known as The Landmark at Eastview, in the Towns of Mt. Pleasant and Greenburgh,
New York, as the Original Lease was amended by the Amendment of Lease dated as
of January 31, 1999, as further amended by the Second Amendment of Lease
(Partial Termination and Surrender Agreement) dated as of July 31, 2000, as
further amended by the Third Amendment of Lease dated as of July 31, 2000, as
further amended by the Fourth Amendment of Lease dated as of May 30, 2001 (the
"Fourth Amendment"), as further amended by the Fifth Amendment of Lease dated as
of February 11, 2002 and as further amended by the Sixth Amendment of Lease
dated as of January 24, 2003 (collectively, as amended, the "Lease"), which
Lease covers certain premises in the Linde Building and the Spine Building as
more particularly described in the Original Lease and the amendments thereto
(collectively, the "Premises"); and
WHEREAS, Tenant wishes to surrender, and to be released and excused from
performing certain of its obligations under the Lease with respect to certain
spaces located in the Spine Building and the Linde Building (collectively, the
"Surrender Space"), which Surrender Space is comprised of the following spaces:
(i) approximately 13,912 r.s.f. of space on the first floor of the Spine
Building and approximately 7,222 r.s.f. of space on the Mezzanine level of the
Linde Building as such spaces are shown on Schedules A-1 and A-2 attached hereto
(collectively, "Surrender Space A"); (ii) approximately 7,888 r.s.f. of space on
the first floor of the Spine Building as shown on Schedule B attached hereto
("Surrender Space B") and (iii) approximately 2,056 r.s.f. of space on the first
floor of the Spine Building as shown on Schedule C attached hereto ("Surrender
Space C"). Landlord is willing to grant such release and accept such surrender
of the Surrender Space, upon the terms and conditions set forth in this
Agreement.
WHEREAS, Landlord and Tenant desire to amend the Lease to add
approximately 3,000 rentable square feet of space on the C-level of the Spine
Building substantially as shown hatched on the floor plan annexed hereto as
Schedule D (the "Additional Premises No. 6") to the Premises and otherwise amend
the Lease, all on the terms and conditions provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. All capitalized terms not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Lease.
2. (a) On or before the dates set forth below, (each such date, a
"Surrender Date") Tenant shall vacate and surrender possession of the applicable
Surrender Space to Landlord and shall surrender all of Tenant's right, title and
interest in and to such Surrender Space under the Lease, (except to the extent
Tenant is required to re-let all or a portion of the Surrender Space as set
forth in Paragraph 13 below) with the intent and purpose that the Term of the
Lease with respect to such Surrender Space shall be extinguished in the same
manner and with the same effect as if the Term of the Lease with respect to such
Surrender Space had expired on such Surrender Date.
Surrender Space Surrender Date
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Surrender Space A: October 23, 2003
Surrender Space B: December 15, 2003
Surrender Space C: March 1, 2004
Tenant acknowledges that Progenics shall be deemed a third party
beneficiary of Tenant's agreement with Landlord to surrender the Surrender Space
on the dates provided for herein, and Progenics shall have the right to bring an
action for monetary damages if tenant fails to vacate the Surrender Space on or
before the applicable Surrender Dates.
(b) Notwithstanding the foregoing, in the event Tenant
surrenders Surrender Space B and/or Surrender Space C in the condition required
hereunder prior to the foregoing Surrender Date with respect to such Surrender
Space and has delivered to Landlord written notice of Tenant's intention to
surrender such Surrender Space at least 15 days prior to the date such Surrender
Space is surrendered, the Surrender Date for such space shall be deemed to be
the date such Surrender Space is actually surrendered.
(c) Tenant acknowledges and agrees that this Agreement is
being entered into by the parties in connection with a lease of the Surrender
Space (the "Progenics Lease") to Progenics Pharmaceuticals, Inc. ("Progenics").
The effectiveness of this Agreement is conditioned upon the execution and
delivery of the Progenics Lease by Progenics and Landlord. In the event the
Progenics Lease has not been executed and delivered by Progenics and Landlord on
or before the earliest Surrender Date, the earliest Surrender Date (and any
later Surrender Date that shall have occurred) shall be postponed until such
time as Progenics and Landlord have executed and delivered the Progenics Lease.
In the event the Progenics Lease has not been executed and delivered by Landlord
and Progenics by November 15, 2003, either party may terminate this Agreement
upon five (5) days prior written notice to the other party. In the event the
Progenics Lease has been signed by the parties but Progenics terminates the
Progenics Lease as to all or a part of the Surrender Space as a result of
Tenant's failure to surrender all or any part of the Surrender Space upon the
Surrender Dates set forth above, this Agreement shall terminate and be of no
further force or effect with respect to such portion of the Surrender Space that
Progenics is not obligated to lease. It is the intention of the parties hereto
that there shall be no lapse in time between the date the Lease terminates as to
all or any portion of the Surrender Space and the date the Progenics Lease
commences as to such Surrender Space and Tenant shall be obligated to pay all
Fixed Rent and Additional Rent payable under the Lease to the extent such lapse
in time shall have occurred.
3. Tenant shall pay all Fixed Rent and Additional Charges accruing
under the Lease with respect to the Surrender Space through and including the
applicable Surrender Date in accordance with the Lease.
4. On each applicable Surrender Date, Tenant shall deliver the
Surrender Space to Landlord vacant, broom clean and free and clear of all
tenancies, subtenancies and occupancies, and otherwise in the condition in which
the Premises are required to be surrendered to Landlord under the terms of the
Lease (as amended by this Agreement) upon the expiration of the Term of the
Lease, and otherwise in accordance with the terms of the Lease (as amended by
this Agreement), including, without limitation, Articles 12 and 13 of the Lease.
Notwithstanding the foregoing, Landlord acknowledges and agrees that Progenics
has agreed to accept the Surrender Space in "as is" condition, subject to Tenant
removing any Tenant's Property which Progenics has not agreed to use during the
term of their Lease. Therefore, Landlord agrees to accept the Surrender Space in
the same condition as Progenics agrees to accept it.
5. On each applicable Surrender Date, Landlord shall accept the
surrender of such Surrender Space and release Tenant from its obligations under
the Lease with respect only to such Surrender Space, except that Tenant shall
continue to remain liable thereafter: (a) for Landlord's liabilities, costs and
expenses of every nature occasioned by Tenant's failure to surrender the
Surrender Space to Landlord in accordance with the terms of the Lease, as
amended by this Agreement (including, without limitation, reasonable attorneys'
fees and disbursements and reasonable attorneys' fees and disbursements incurred
in establishing liability under this Paragraph 5 and in collecting amounts
payable hereunder); (b) for all liabilities and claims incurred by or made
against Landlord and/or Tenant for labor and materials asserted to have been
furnished to Tenant or anyone claiming by, through or under
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Tenant with respect to such Surrender Space, up to and including the applicable
Surrender Date; (c) for any claims by Landlord against Tenant for contribution
or indemnification or both arising out of third-party claims against Landlord to
the extent provided for in the Lease, as amended by this Agreement; (d) for all
obligations and liabilities of Tenant with respect to such Surrender Space
accruing on or prior to the applicable Surrender Date; and (e) for all other
obligations of Tenant with respect to such Surrender Space expressly provided in
the Lease to survive the termination or expiration of the Lease.
6. Effective on each applicable Surrender Date, Tenant releases
Landlord and its successors and assigns from and against any and all claims,
obligations and liabilities of every kind or nature whatsoever thereafter
arising out of or in connection with the applicable Surrender Space except any
claim relating to the current audit involving taxes, operating expenses and
utility charges for Operating Years 2002 and 2003.
7. Effective on each applicable Surrender Date, the Lease shall be
deemed amended as follows in order to reflect the Surrender of the applicable
Surrender Space:
(a) "Tenant's Proportionate Share" as defined in Section
4.0(c) of the Original Lease, as last amended in Paragraph 5 of the Fourth
Amendment, shall be reduced as follows with respect to each Surrender Space:
Surrender Space A: 2.85%
Surrender Space B: 1.06%
Surrender Space C: .28%
Upon the surrender of all of the Surrender Space, the "Tenant's Proportionate
Share" shall mean 11.35% (subject to change as set forth in Sections 4.01(c) and
4.06 of the Original Lease).
(b) The "Fixed Rent" as defined in Section 1.04 of the
Original Lease, as amended, shall be reduced by the following amounts:
Surrender Space A: $453,583 per annum ($37,798.59 per month)
Surrender Space B: $173,536 per annum ($14,461.33 per month)
Surrender Space C: $45,232 per annum ($3,769.33 per month)
From and after the Surrender Date, all references in the Lease to "Exhibit B",
as amended, shall be deemed to mean Exhibit B as modified by this Paragraph
7(b).
(c) The number of parking spaces Tenant may use on a
non-exclusive basis as set forth in Section 35.01 and Exhibit D of the Original
Lease shall be decreased by 70 and the total number of parking spaces Tenant may
use on a non-exclusive basis as set forth in Section 35.01 and Exhibit D of the
Original Lease shall be 280.
8. Except as expressly set forth in this Agreement, nothing
contained in this Agreement shall affect Tenant's obligations and liabilities
with respect to the remainder of the Premises, other than the Surrender Space,
demised to Tenant under the Lease (the "Remaining Premises"), which obligations
and liabilities shall continue under the Lease (as amended by this Agreement) as
if this Agreement had not been made. From and after each applicable Surrender
Date, the term "Premises" under the Lease (and all references in the Lease
thereto) shall be deemed to mean only the Remaining Premises.
9. Landlord shall have no obligation to perform any work in, or to
otherwise alter or improve the Remaining Premises (or to pay Tenant any sum
toward any such work, alterations or improvements), in order to separately
demise the Remaining Premises or otherwise, in connection with, or as a result
of, this Agreement.
10. Tenant represents and warrants on behalf of itself and its
successors and assigns, that it has not done or suffered to be done (and Tenant
agrees that it will not do or suffer to be done) anything whereby the
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Surrender Space or any alteration, decoration, installation or improvement in
and to the Surrender Space (collectively, the "Improvements") has or will become
encumbered in any way whatsoever and that no one other than Tenant has acquired
or will acquire through or under Tenant any right, title or interest in, to or
under the Surrender Space or the Improvements. This Paragraph 10 shall survive
the termination or expiration of the Lease and this Agreement.
11. Simultaneously with the execution and delivery of this
Agreement, Landlord and Tenant shall execute a New York State Combined Real
Estate Transfer Tax Return and Credit Line Mortgage Certificate (the "TP-584").
Tenant shall file the TP-584 on or before the date required by law with the New
York State Department of Taxation and Finance and shall give Landlord written
notice of such filing. Although Landlord and Tenant do not anticipate that any
New York State Real Estate Transfer Tax ("State Transfer Tax") will be payable
in connection with this Agreement or the transaction contemplated hereby, to the
extent any State Transfer Tax is due and payable by Tenant as transferor, Tenant
shall pay same as and when due and shall also pay any and all late fees,
penalties and interest assessed for failure to pay same when due. Tenant shall
indemnify and hold harmless Landlord for, from and against any and all
liabilities, losses, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements and reasonable attorneys' fees and
disbursements incurred in establishing liability, and in collecting amounts
payable, under this Paragraph 11) arising from a breach of Tenant's obligations
under this Paragraph 11 or incurred in connection with any State Transfer Tax
and/or any other real estate or real property transfer tax that is or may
become, or may be asserted to be or become, due, owing or imposed in connection
with this Agreement or the surrender of the Surrender Space now or hereafter by
the State of New York or any agent or instrumentality of such State, including,
without limitation, any late charges, penalties and interest imposed or to be
imposed in connection therewith. Tenant shall file such other returns,
affidavits and/or other documents, if any, that may be required in connection
with such other taxes and Landlord shall sign such returns, affidavits and
documents as required by law and otherwise cooperate with Tenant in making any
filing required in connection with such taxes. This Paragraph 11 shall survive
the termination or expiration of the Lease and this Agreement.
12. Landlord acknowledges that Progenics and Tenant have agreed in a
separate agreement that, prior to August 31, 2005, Progenics will not make any
structural changes to the Surrender Premises without first obtaining Tenant's
consent which consent shall not be unreasonably withheld or delayed and shall be
granted or denied within 10 days of the date Progenics delivers notice of such
alteration to Tenant, which notice shall include a copy of the plans for such
alteration that are delivered to Landlord under the terms of the Progenics
Lease. Tenant acknowledges and agrees that Progenics intends to change the use
of some or all of the office space to laboratory space (including the
installation of a bio-reactor and ancillary facilities in Surrender Space B).
13. In the event that Progenics should vacate or surrender any of
the Surrender Space on or before August 31, 2005 (such space being hereinafter
referred to as the "Put Space"), Tenant shall be required to re-let such space
that has been vacated or surrendered by Progenics under the terms and conditions
set forth in the Lease upon thirty (30) days written notice to Tenant. Fixed
rent and additional rent for the Put Space shall commence thirty (30) days after
the delivery of such notice to Tenant. The space to be re-let by Tenant pursuant
to this Paragraph must be an entire Surrender Space, and not a portion of the
Surrender Space, so that Tenant is obligated only to re-let the Surrender Space
shown on Schedules "A-1", "A-2", "B" or "C" and not a portion of any of those
four separate areas of space. In the event Tenant is required to re-let
Surrender Space C, Tenant shall be permitted to surrender to Landlord the new
archival space that will be constructed by Tenant to replace Surrender Space C.
The Fixed Rent, Tenant's Proportionate Share and number of parking space shall
be adjusted to reflect the addition of the Put Space. Upon notice from Landlord
that Progenics has vacated or surrendered any Put Space, such space shall
automatically be deemed part of the Premises without any further action, though
the parties agree to sign an agreement memorializing the addition of the Put
Space to the Premises, however, a failure by either party to sign such an
agreement shall not affect the addition of the Put Space to the Premises.
Landlord shall not be required to furnish any materials or perform any work to
prepare the Put Space for Tenant's occupancy (except the Put Space shall be
delivered vacant and in "broom clean" condition) and Landlord shall not be
required to reimburse Tenant for any alterations made or to be made by Tenant to
the Put Space.
14. (a) Provided (i) the Lease is in full force and effect and there
shall not then be existing a default continuing beyond all notice and grace
periods under the Lease and (ii) Tenant is actually occupying the entire
Remaining Premises, if after August 31, 2005 any of the Surrender Space becomes
available for rental (which for
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purposes of this Paragraph shall mean an entire Surrender Space as shown on
Schedules "A-1", "A-2", "B" or "C" and not a portion of such four Surrender
Spaces), after taking into account any right of Progenics (and it successors
and/or assigns) to extend or renew its lease (such available portion of the
Surrender Space being hereinafter referred to as the "Available Space"),
Landlord shall deliver a written notice (the "Offer Notice") to Tenant offering
to lease to Tenant the Available Space upon the same terms as set forth in the
Lease for similar space, and Landlord shall not lease the Available Space to any
person or entity unless and until Landlord has complied with the provisions of
this Paragraph 14(a). The Offer Notice shall specify the approximate square
footage of the Available Space, the rate of Fixed Rent per rentable square foot,
and the date the Available Space will become available for lease (the "Option
Space Commencement Date"). Fixed Rent shall be defined for purposes of this
Paragraph as the rent for the period ending December 31, 2007 as set forth under
the terms of the Lease, (i.e., $23.00 per rsf NNN), and for the period ending
December 31, 2009 as the rent to be paid under the Progenics Lease for such
Surrender Space. Thereupon, Tenant shall have one option exercisable within, but
in no event later than, thirty (30) days after the giving of the Offer Notice to
elect by notice (the "Acceptance Notice") given to Landlord within said thirty
(30) day period to lease the entire Available Space upon the terms and
conditions set forth in the Offer Notice and otherwise on the terms contained in
the Lease.
(b) If Tenant shall duly exercise its option to lease the
Available Space within the time and in the manner specified in Paragraph 14(a)
above, and there shall not then be existing a default continuing beyond all
notice and grace periods under the Lease, then automatically on the Option Space
Commencement Date, Landlord shall deliver to Tenant vacant possession of the
Available Space and the Available Space shall automatically be deemed and added
to and form part of the Premises under the Lease upon all of the same terms and
conditions as are contained in the Lease except that:
(i) The Fixed Rent payable by Tenant under the Lease
shall be increased by the Fixed Rent for the Available Space (as determined in
Paragraph 14(a) above).
(ii) Tenant's Proportionate Share shall be increased
to reflect the addition of the Available Space to the Premises.
(iii) The number of parking spaces allocated for
Tenant's use shall be increased by 3 spaces for each 1000 rentable square feet
in the Available Space.
(c) It is an express condition of the option granted to
Tenant pursuant to the terms of this Paragraph 14 that time is of the essence
with respect to Tenant's exercise of its option within the period above
provided.
(d) Tenant shall have only one first refusal option with
respect to the Available Space (whether or not it elects to exercise such
option), and after Landlord offers to lease to Tenant any Available Space and
Tenant fails to exercise its option to lease the Available Space, Tenant shall
have no further first refusal option with respect to the Available Space.
However, Tenant shall continue to have a first refusal option to lease any
portion of the Surrender Space that was not the subject of an Offer Notice.
15. (a) The Additional Premises No. 6 is hereby added to, and
shall be considered a part of, the Premises effective on the date Tenant
surrenders Surrender Space C (the "Additional Premises No. 6 Commencement
Date"). The leasing of the Additional Premises No. 6 shall be upon all of the
terms, conditions and provisions of the Lease, except as otherwise provided in
this Agreement. After the Additional Premises No. 6 Commencement Date, all
references in the Lease to the "Premises" or the "demised premises" shall be
deemed to include the Additional Premises No. 6, unless the context requires
otherwise and except as otherwise provided in this Agreement.
(b) Tenant shall accept possession of the Additional
Premises No. 6 in "as is" condition on the Additional Premises No. 6
Commencement Date and Landlord shall have no obligation to perform any work or
make any installations in order to prepare the Additional Premises No. 6 for
Tenant's occupancy. Tenant, at Tenant's sole cost and expense, shall build the
demising wall in the Additional Premises No. 6. The taking of
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occupancy of the whole or any part of the Additional Premises No. 6 by Tenant
shall be conclusive evidence, as against Tenant, that Tenant accepts possession
of the same and that the Additional Premises No. 6 were in good and satisfactory
condition at the time such occupancy was so taken and that the Additional
Premises No. 6 were substantially as shown on Schedule D. The parties agree to
have the rentable square footage of the Additional Premises No. 6 measured by an
independent architect selected by Landlord using BOMA standards (which includes
the loss factor for the Building) after Tenant has constructed the demising wall
in the Additional Premises No. 6. The Fixed Rent for Additional Premises No. 6
and Office Tenant's Proportionate Share (as hereinafter defined) shall be
determined using such measurement.
(c) Effective on the Additional Premises No. 6 Commencement
Date, the per annum Fixed Rent under the Lease shall be increased on account of
Additional Premises No. 6 by an amount equal to the product of (x) the number of
rentable square feet in Additional Premises No. 6 (as determined in Paragraph
15(b) above) and (y) $20. In the event the number of rentable square feet in the
Additional Premises No. 6 has not been determined by the Additional Premises No.
6 Commencement Date, Tenant shall pay the Fixed Rent based on 3,000 r.s.f.. Upon
obtaining the correct measurement of the Additional Premises No. 6 the parties
shall adjust the Fixed Rent accordingly and either Landlord shall credit Tenant
for any overpayment or Tenant shall pay Landlord for any underpayment within 30
days of the date such measurement is obtained.
(d) Notwithstanding anything to the contrary in the Lease,
the Additional Premises No. 6 shall only be used for general administrative and
executive offices and/or archival space.
(e) For the purpose of this Agreement, the following terms
shall have the following meanings:
(i) "Electric Inclusion Amount" shall mean the
amount equal to the product of (x) the number of rentable square feet in
Additional Premises No. 6 (as determined in Paragraph 15(b) above) and (y)
$2.25.
(ii) "Office Tenant's Proportionate Share" shall mean
the quotient obtained by dividing the number of rentable square feet in the
Additional Premises No. 6 (as determined in Paragraph 15(b) above) by 741,495,
subject to any changes as a result of the applicable provisions in Sections
4.01(c) and 4.06 of the Original Lease.
(iii) "Base Tax Factor" shall mean the Taxes payable
for the Tax Year beginning January 1, 2004.
(iv) "Base Operating Factor" shall mean the Operating
Expenses paid or incurred with respect to the Operating Year beginning January
1, 2004.
(f) The first sentence of Section 4.03 of the Original Lease
shall not apply to Additional Premises No. 6. In lieu thereof, the following
provision shall apple: For each Tax Year, any part of which shall occur during
the Term, Tenant shall pay to Landlord an amount (prorated to the extent
provided in Section 4.05 of the Original Lease, if applicable) (herein called
"Office Tenant's Tax Payment") equal to Office Tenant's Proportionate Share of
the amount by which the Taxes for such Tax Year are greater than the Base Tax
Factor. Office Tenant's Tax Payment shall be added to and deemed part of the Tax
Payment and paid in accordance with the payment terms in Section 4.03 of the
Original Lease.
(g) Section 5.02 of the Original Lease shall not apply to
Additional Premises No. 6. In lieu thereof, the following provision shall apply:
For each Operating Year, any part of which occurs during the Term, Tenant shall
pay to Landlord an amount (prorated to the extent provided in Section 5.6 of the
Original Lease, if applicable) (herein called "Office Tenant's Operating
Payment") equal to Office Tenant's Proportionate Share of the amount by which
Operating Expenses for such Operating Year are greater than the Base Operating
Factor. Office Tenant's Operating Payment shall be added to and deemed part of
the Operating Payment and said payments shall be made as provided in Section 5.3
of the Original Lease.
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(h) Electricity shall be supplied to the Additional Premises
No. 6 by Landlord in accordance with the terms set forth in Schedule F attached
hereto and made a part hereof.
16. Landlord and Tenant each represents and warrants to the other
that it has not dealt with any broker in connection with this Agreement other
than Insignia/ESG and LCOR Asset Management L.P. (collectively, the "Brokers").
The execution and delivery of this Agreement by each party shall be conclusive
evidence that such party acknowledges that the other party has relied upon the
foregoing representation and warranty. Landlord and Tenant shall indemnify and
hold harmless the other from and against any and all claims for commission, fee
or other compensation by any person (other than the Brokers), who claims to have
dealt with such party in connection with this Agreement and for any and all
costs incurred by the indemnified party in connection with such claims,
including, without limitation, reasonable attorneys' fees and disbursements.
This Paragraph 16 shall survive the expiration or earlier termination of the
Lease or this Agreement. Landlord and Tenant shall each pay Insignia/ESG a
portion of the total commission due in connection with this Agreement and the
Lease of the Surrender Space to Progenics pursuant to separate agreements with
Insignia/ESG. Landlord shall pay any commission due LCOR Asset Management L.P.
pursuant to a separate agreement. Notwithstanding anything to the contrary in
this Paragraph 16, Tenant shall indemnify and hold harmless Landlord from and
against any and all claims for a commission, fee or other compensation by
Insignia/ESG (and its successors and assigns) arising out of this Agreement and
the lease to Progenics through the period ending August 31, 2007 (but not
including (i) any claim for the commission due on the Progenics Lease for the
portion of the lease term after August 31, 2007 and (ii) any claim for a
commission under any written agreement between Insignia/ESG and Landlord).
17. (a) Landlord and Tenant acknowledge and agree that, under
the terms of the Lease between Landlord and Progenics, the fixed rent includes
certain amounts, as such amounts are shown on Schedule E attached hereto, which
are attributable to the use of certain furniture and equipment in Surrender
Space A and Surrender Space B. For purposes of this Agreement, the payment by
Progenics of the fixed rent attributable to the use of such furniture and
equipment is hereinafter referred to as the "Furniture Payment." Landlord agrees
to pay to Tenant, or credit Tenant's Fixed Rent, an amount equal to the
Furniture Payment, but only to the extent the Furniture Payment is paid to
Landlord by Progenics. Such payment or credit to Tenant by Landlord shall be
made within thirty (30) days of the date Landlord receives the Furniture Payment
from Progenics. If Landlord decides to credit Tenant (instead of making a
payment to Tenant for the Furniture Payment) and Landlord informs Tenant that it
intends to credit Tenant's rent payment such amount, and in reliance thereon
Tenant pays to Landlord its rental payment (less the anticipated Furniture
Payment credit), Tenant shall not be charged a late charge, interest or
penalties with respect to such monthly payment, notwithstanding that such credit
was actually given after the date Tenant's rental payment was due. If Tenant is
no longer a tenant at the Premises, the Furniture Payment due Tenant shall be
mailed within thirty (30) days of receipt of payment by Landlord to Tenant at an
address designated by Tenant. Except as set forth herein, Landlord shall have no
liability to Tenant for Progenics' failure to pay to Landlord the Furniture
Payment. Landlord agrees to give Tenant notice of Progenics' failure to pay the
fixed rent (or any portion thereof) to Landlord if such payment is not received
within 30 days after the date such payment is due. If Landlord does not receive
all or a portion of the fixed rent from Progenics within 20 days of the date
such payment is due, Landlord agrees to demand such Furniture Payment from
Progenics by letter, a copy of which is to be delivered to Tenant. Tenant shall
be deemed a third party beneficiary to the agreement by Progenics to pay
Landlord the Furniture Payment, and Tenant shall have the right to bring an
action against Progenics to enforce Progenics obligation to pay the Furniture
Payment to Landlord. Landlord agrees to cooperate with Tenant in the enforcement
of Tenant's rights as a third party beneficiary under this Agreement, as well as
any rights Tenant may seek to assert under any other additional documents
executed or instruments filed with respect to the Furniture Payment.
(b) If an "Event of Default" occurs under the Progenics
Lease as a result of Progenics' failure to pay the fixed rent due thereunder (a
"Progenics Rent Default"), and as a result thereof Landlord fails to pay to or
credit Tenant the Furniture Payment, Landlord agrees to bring a legal action
against Progenics in order to enforce the terms of the Progenics Lease (taking
into consideration that Landlord cannot bring a separate action if Progenics
files for bankruptcy). Landlord agrees to give Tenant notice of the nature of
the legal action taken against Progenics promptly after such action is taken and
Landlord shall deliver to Tenant copies of all legal documents served upon
Progenics in connection with such action. In the event Landlord fails to take
any legal action against Progenics, to the extent required by the prior
sentence, within 60 days after the date such Event of Default shall have
occurred, Landlord shall be obligated to pay to or credit Tenant the Furniture
Payments coming due after the
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expiration of such 60 day period until Landlord commences such legal action
against Tenant (but only to the extent such payments have not been made to
Tenant through a draw down on the Progenics LC (as hereinafter defined)). In
addition to the foregoing, if a Progenics Rent Default occurs, Landlord shall be
required to draw down on the Letter of Credit held by Landlord under the
Progenics Lease (the "Progenics LC"), in one or more draws, within forty (40)
days after a Progenics Rent Default, in the amounts necessary to pay the
Furniture Payment and to pay such drawn down amount to Tenant as the Furniture
Payment come due, provided however, the maximum amount of the Progenics LC that
will be applied to the Furniture Payment is $50,000. Nothing in the foregoing
sentence is intended to restrict Landlord from drawing down the entire amount of
the Progenics LC, provided that $50,000 of the proceeds thereof are, to the
extent necessary, used as provided in the prior sentence. Prior to August 31,
2012, Landlord shall not be permitted to apply $50,000 of the Security Deposit
for any purpose other than to pay Tenant the Furniture Payment as provided
herein in the event Progenics defaults in making such payments. The forgoing
sentence shall not apply if Tenant and Progenics agree to an earlier termination
of the Furniture Payments at which point Tenant shall no longer have any
interest in the Progenics LC or the proceeds thereof.
(c) If less than 100% of the fixed rent payable by Progenics
is paid for any month, and such partial fixed rent payment is not due to a rent
abatement or setoff by Progenics due to Tenant's failure to provide HVAC Service
as provided in Paragraph 18 below, Landlord and Tenant shall share such partial
fixed rent payment based on each parties' pro rata share of the fixed rent
payable by Progenics. Notwithstanding anything to the contrary herein, if
Progenics abates the portion of its fixed rent attributable to the Furniture
Payment as a result of Tenant's failure to provide the HVAC Service, as such
abatement is provided for in Section 28.1(F) of the Progenics Lease, Landlord
shall (i) not be required to bring a legal action against Progenics for such
abated rent and (ii) not be liable to pay to or credit Tenant the Furniture
Payment to the extent Progenics has abated the fixed rent allocated to the
Furniture Payment. Any sums recovered by Landlord as a result of a legal action
against Progenics as provided under this Paragraph 16 shall be shared by
Landlord and Tenant based on each parties pro rata share of the fixed rent under
the Progenics Lease, after first deducting Landlord's legal fees and expenses
incurred in connection with obtaining such recovery.
18. Tenant acknowledges and agrees that the air-handler unit (the
"Air Handler") that provides heating and air conditioning service (the "HVAC
Service") to Surrender Space B is operated and maintained by Tenant and that
Tenant is required to continue to provide HVAC Service to Surrender Space B
during the term of Tenant's Lease in quantities necessary to provide for the
comfortable occupancy of Surrender Space B by the occupants of such space.
Tenant shall continue to be liable to Landlord for the cost of all of the
electric power used by the Air Handler as provided in the Lease. Landlord and
Tenant acknowledge and agree that, under the terms of the Lease between Landlord
and Progenics, Progenics has agreed to pay to Landlord an amount equal to
Progenics' pro rata share of the cost of providing the HVAC service to Surrender
Space B based on a measurement of the airflow provided to the Surrender Space B.
Such payments are hereinafter referred to as the "HVAC Payment". Landlord agrees
to pay to Tenant or credit Tenant's Fixed Rent an amount equal to the HVAC
Payment, but only to the extent the HVAC Payment is paid to Landlord by
Progenics. Such payment or credit to Tenant by Landlord shall be made within
thirty (30) days of the date Landlord receives the HVAC Payment from Progenics.
Landlord shall have no liability to Tenant for Progenic's failure to pay to
Landlord the HVAC Payment, however, Landlord agrees to give Tenant notice of
Progenics' failure to pay the HVAC Payment to Landlord if such payment is not
received within 30 days after the date such payment is due. If Landlord does not
receive the HVAC Payment within 20 days of the date such payment is due,
Landlord agrees to demand such HVAC Payment from Progenics by letter, a copy of
which is to be delivered to Tenant. Tenant shall be deemed a third party
beneficiary to the agreement by Progenics to pay Landlord the HVAC Payment, and
Tenant shall have the right to bring an action against Progenics to enforce
Progenics obligation to pay the HVAC Payment to Landlord. Tenant shall indemnify
and hold harmless Landlord from and against any and all costs and expenses,
including reasonable attorneys fees and expenses, arising out of or related to
any action commenced by Tenant against Progenics with respect to the HVAC
Payment, and all cost and expenses, including reasonable attorneys fees and
expenses, in connection with enforcing this indemnification. At Tenant's
expense, Landlord agrees to cooperate with Tenant in the enforcement of Tenant's
rights as third party beneficiary under this Agreement, as well as any rights
Tenant may seek to assert under any other additional documents executed or
instruments filed with respect to the HVAC Payment. Progenics shall be deemed a
third party beneficiary to Tenant's obligation to provide HVAC Service to
Surrender Space B.
E-8
19. Landlord acknowledges and agrees that, pursuant to the terms of
a separate agreement between Tenant and Progenics, Tenant's IT/telecom personnel
shall have access to the satellite closets located in Surrender Space A until
such time as Tenant has surrendered Surrender Space B. Tenant has agreed to
access such satellite closets during business hours on telephonic notice to
Progenics. Landlord shall have no liability to Tenant in the event Progenics
breaches its agreement to provide the foregoing access. In addition, Progenics
has agreed in a separate agreement with Tenant to permit Tenant to have access
through Surrender Space A in order to access Surrender Space C until such time
as Surrender Space C is delivered to Progenics.
20. This Agreement shall not be binding upon or enforceable against
Landlord or Tenant unless and until Landlord and Tenant shall have each executed
and unconditionally delivered to the other an executed counterpart of this
Agreement. This Agreement may not be amended, modified or changed except in
writing executed by both parties.
21. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
22. This Agreement shall be governed by, and construed and
interpreted in accordance with, New York law, without regard to conflicts of law
principles.
23. Except as amended by this Agreement, the Lease is ratified and
confirmed and remains in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Agreement as of the day and year first written above.
LANDLORD:
EASTVIEW HOLDINGS LLC
By: EASTVIEW SPE INC., its managing member
By: /S/ David W. Klock
Name:
Title: SVP
TENANT:
EMISPHERE TECHNOLOGIES, INC.
By: /S/ Shepard M. Goldberg
Name:
Title: SVP, Operations
E-9
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of Sept. in the year 2003 before me, the undersigned,
personally appeared David W. Klock, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/S/ Alicia M. Thomas
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of September in the year 2003 before me, the
undersigned, personally appeared Shepard Goldberg, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/S/Loretta Miraglia
Notary Public
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SCHEDULE A-1
Surrender Space A (Spine Building)
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A-1
SCHEDULE A-2
Surrender Space A (Linde Building)
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A-2
SCHEDULE B
Surrender Space B
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B-1
SCHEDULE C
Surrender Space C
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C-1
SCHEDULE D
Additional Premises No. 6
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D-1
SCHEDULE E
Furniture Payment
(a) $158,505 per annum ($13,208.75 per month) from the Commencement Date to
and including August 31, 2007; and
(b) $105,670.00 per annum ($8,805.84 per month) from September 1, 2007 to
and including December 31, 2009.
(c) $63,402 per annum ($5,283.50 per month) from January 1, 2010 to and
including August 31, 2012.
(d) $0 after August 31, 2012 (even if Progenics extends the term of its
Lease).
E-1
SCHEDULE F
Electricity Provisions for Addition Premises No. 6
1. Landlord shall furnish the electric energy that Tenant reasonably
requires in the Additional Premises No. 6 on a rent inclusion basis.
That is, the Fixed Rent for the Additional Premises No. 6 includes the
"Electric Inclusion Amount" (as adjusted pursuant to this Schedule F),
which the parties have agreed is the reasonable value to Tenant of
normal electric service for lighting, light office equipment and the
usual small business machines during Operating Hours. Accordingly, there
shall be no charge to Tenant for such electric energy by way of
measuring the same on any meter or otherwise, such electric energy being
included in Landlord's services which are covered by the Fixed Rent.
Landlord shall not be liable in any way to Tenant for any interruption
or failure of or defect in the supply or character of electric energy
furnished to the Additional Premises No. 6 or for any loss, damage or
expense Tenant may sustain if either the quantity or character of
electric service is changed or is no longer suitable for Tenant's
requirements, whether by reason of any requirement, act or omission of
the public utility or other provider serving the Building with
electricity or for any other reason, except for the gross negligence or
willful misconduct of Landlord.
2. Tenant shall at all times comply with the rules, regulations, terms and
conditions applicable to service, equipment, wiring and requirements of
the public utility or other provider supplying electricity to the
Building. Tenant agrees that at no time will the electrical demand load
in the Additional Premises No. 6 exceed in the aggregate eight (8) watts
per usable square foot of the Additional Premises No. 6. Tenant shall
not, without Landlord's prior written consent in each instance, connect
any fixtures, machinery, appliances or equipment to the Building
electric distribution system or make any alteration or addition to
Tenant's machinery, appliances or equipment, or the electric system of
the Additional Premises No. 6, if the effect thereof would be to
increase the electrical load in the Additional Premises No. 6 over the
load specified in this Paragraph 2 or in Paragraph 4 below. Should
Landlord grant such consent, all additional risers or other equipment
required therefor shall be provided by Tenant at Tenant's sole cost and
expense.
3. If the public utility (or other provider) rate schedule for the supply
of electric energy to the Building and/or the surcharge for fuel cost or
any other charge made by the public utility or other provider supplying
electric energy to the Building and/or the taxes payable by Landlord
with respect to such electric energy are increased or decreased after
the date of this Lease and/or the service classification at which
Landlord purchases electric energy is changed after the date of this
Lease resulting in an increase or decrease in the cost to Landlord of
electrical energy, the Fixed Rent shall be increased or decreased by an
amount equal to the product of (i) the then-existing Electric Inclusion
Amount and (ii) the percentage increase or decrease in such public
utility (or other provider) rate schedule, fuel adjustment or other
charge, taxes or cost. Any such increase or decrease shall be effective
as of the date of such increase or decrease and shall be made
retroactively if necessary. Upon the request of either party, Landlord
and Tenant shall execute a supplementary agreement confirming the
increase or decrease. In no event shall the provisions of this Paragraph
3 operate to reduce the Fixed Rent for the Addition Premises No. 6 below
the amount stated in this Agreement nor the Electric Inclusion Amount
below the amount stated in the this Agreement.
4. The Electric Inclusion Amount is based upon Landlord's assumption that
Tenant's initial electrical installation will not result in a total
demand electrical load for lighting and equipment in excess of eight (8)
watts per usable square foot made available for the Additional Premises
No. 6 and that Tenant will, except for the purpose of office cleaning,
use electrical energy only during Operating Hours. Accordingly, if
Tenant's initial electrical installation exceeds such criteria, or if
from time to time Tenant makes material use of electricity during hours
other than Operating Hours, or if from time to time Tenant after
completion of its initial installation adds or changes any machinery,
appliances or equipment which materially increases the aggregate
electrical load in the Additional Premises No. 6, the Electric Inclusion
Amount and the Fixed Rent shall from time to time be equitably adjusted
to reflect the resulting increase in such use. Landlord shall furnish a
statement of Landlord's determination as to the amount of the
adjustment, and the same shall become binding upon the parties unless,
within thirty (30) days, Tenant notifies Landlord that it disputes the
amount of such adjustment, in which event the parties shall in good
faith make reasonable attempts to come to agreement, and, if Landlord
and Tenant cannot agree thereon, the amount of such adjustment shall be
determined, based on standard practices, by an independent electrical
consultant selected by Landlord.
Tenant shall permit such consultant to have access to the Additional
Premises No. 6 and Tenant's electrical facilities for the foregoing
purpose at all reasonable times. The fee of such consultant shall be
paid by Tenant unless such consultant finds that Tenant's use does not
justify an increase in Fixed Rent, in which case the fee shall be paid
by Landlord. When the amount of such adjustment is so determined,
Landlord and Tenant shall execute a supplementary agreement to reflect
such adjustment, which shall be effective from the date of the increase
of such usage as determined by such electrical consultant and be made
retroactively if necessary. Any adjustment shall be effective even if
such supplementary agreement is not executed and delivered. Pending the
determination of the adjustment, Tenant shall pay to Landlord the amount
of such adjustment as specified in Landlord's statement. Thereafter if
it is determined that Tenant has overpaid, Tenant shall receive a credit
against Fixed Rent in the amount of the overpayment, said credit to be
applied against the next accruing installment(s) of Fixed Rent.
5. Landlord reserves the right to discontinue furnishing electric energy to
the Additional Premises No. 6 at any time upon not less than sixty (60)
days notice to Tenant, but in any event, not sooner than Tenant is able
to arrange for alternative electric energy. If Landlord exercises such
right of termination, this Lease shall continue in full force and effect
and shall be unaffected thereby, except only that, from and after the
effective date of such discontinuance, Landlord shall not be obligated
to furnish electric energy to Tenant and the Fixed Rent payable under
this Lease shall be reduced by the Electric Inclusion Amount then in
effect. If Landlord voluntarily discontinues furnishing electric energy
to Tenant, Landlord shall, prior to the effective date of such
discontinuance, at Landlord's expense, make such changes in panel
boards, feeders, risers, wiring and other conductors and equipment to
the extent required to permit Tenant to obtain electric energy directly
from the public utility company or other provider. If, on the other
hand, Landlord is required by any law, rule, regulation or requirements
to discontinue furnishing electric energy to Tenant, Tenant shall
reimburse Landlord promptly upon demand for the cost incurred by
Landlord in making such changes in panel boards, feeders, risers, wiring
and other conductors and equipment in order to permit Tenant to obtain
electric energy direct from the public utility company or other
provider.
6. If any tax is imposed upon Landlord with respect to electrical energy
furnished as a service to Tenant by any government authority, Tenant
agrees that, where permitted by law or applicable regulations, Tenant's
pro rata share of such taxes shall be reimbursed by Tenant to Landlord
upon demand.
7. Landlord shall have the option of installing submeters at Landlord's
expense to measure Tenant's consumption of electrical energy. If
Landlord exercises such option, the Fixed Rent shall be reduced by an
amount equal to the then Electric Inclusion Amount with such reduction
to be effective as of the commencement of the operation of such
submeters and, commencing at such time, Tenant shall pay to Landlord, as
additional rent, on demand made from time to time but no more frequently
than monthly, for its use of electrical energy in the Additional
Premises No. 6, based upon both consumption and demand factors, at the
seasonally adjusted rate then payable by Landlord to the utility company
or other provider, plus an amount equal to five (5%) percent thereof to
reimburse Landlord for its overhead, administration and supervision in
connection therewith. For the purpose of this Paragraph 7 the rate to be
paid by Tenant in the event of submetering shall include any taxes,
energy charges, demand charges, fuel adjustment charges, rate adjustment
charges, or other charges actually imposed in connection therewith. If
any tax is imposed upon Landlord's receipts from the sale or resale of
electrical energy to Tenant by any federal, state, city or local
authority, the pro rata share of such tax allocable to the electrical
energy service received by Tenant shall be passed on to and paid by
Tenant as additional rent if and to the extent permitted by law.
F-2