EXHIBIT 10.22
SUBLEASE AGREEMENT
SUBLEASE AGREEMENT ('Sublease'), made as of January 27, 1998 by and between
WITCO CORPORATION, a Delaware corporation ('Sublandord') having an address at
Xxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000-0000, and PROGENICS
PHARMACEUTICALS, INC., a Delaware corporation ('Subtenant') having an address at
000 Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000.
R E C I T A L S:
A. Keren Limited Partnership, a Delaware limited partnership ('Prime
Landlord') and Sublandlord have entered into a Lease, dated as of December 8,
1997 (the 'Prime Lease'), covering certain premises more fully described therein
(collectively, the 'Premises'), in, among others, the buildings known as
Building 769 or The Silicones Building (the 'Silicones Building'), the 771
Building (the '771 Building'), the Autoclave Building (the 'Autoclave
Building'), and the Annex Building (the 'Annex Building'), each located along
Old Saw Mill River, in that complex known as The Landmark at Eastview (the
'Complex'), partly in the Town of Greenburgh and partly in the Town of Mount
Pleasant, in the County of Westchester and State of New York.
B. Sublandlord desires to sublease to Subtenant, and Subtenant desires to
sublease from Sublandlord, a portion (the 'Sublease Premises') of the Premises
leased by Sublandlord under the Prime Lease, and constituting a total of
approximately 22,651 rentable square feet of office and laboratory space,
located on portions of the third and fourth floors of the Silicones Building,
plus a total of approximately 1,216 rentable square feet of storage space
located on the third floor of the Silicones Building, all as outlined on the
attached Exhibit A.
A G R E E M E N T:
In consideration of $10.00 and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Sublandlord and
Subtenant agree as follows:
1. Demise. Subject to obtaining the requisite consents, if any, of Prime
Landlord and Prime Landlord's mortgagee(s), Sublandlord hereby leases to
Subtenant, and Subtenant hereby hires and takes from Sublandord, the Sublease
Premises.
2. Term: Extension Right; Recapture/Cancellation Right.
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2.1. The term ('Term') of this Sublease (i) shall commence on the date (the
'Commencement Date') which is the later of (a) February 1, 1998; and (b) the
earliest applicable commencement date of the Prime Lease occurs; and (c), the
earliest date on which Subtenant's current lease extension with Prime Landlord
for space at the Complex effectively terminates (which termination Subtenant and
Sublandlord agree to pursue diligently and in good faith with Prime Landlord,
and which termination shall, in any event, be deemed to have occurred, for
purposes of this Sublease, no later than the April 30, 1998 expiration of such
extension, regardless of whether or not such termination has actually occurred),
and (ii) shall expire on December 31, 1999 (the 'Expiration Date'), unless
sooner terminated pursuant to the terms and conditions of this Sublease or
pursuant to law, or unless otherwise extended pursuant to Section 2.2 hereto.
The Term shall include any Additional Term(s) (as hereinafter defined) to the
extent duly exercised by Subtenant. Subtenant agrees to promptly execute and
deliver to Sublandlord any reasonable Commencement Date Agreement prepared by
Sublandlord, provided same accurately fixes such Commencement Date in accordance
with the foregoing.
2.2. Subtenant shall have the option to extend the Term for up to three (3)
additional period(s) (each individually, an 'Additional Term') of one (1) year
each, the first Additional Term, if exercised, commencing on January 1, 2000,
the second Additional Term, if exercised, commencing on January 1, 2001, and the
third Additional Term, if exercised, commencing on January 1, 2002, subject,
however, to the following conditions:
(i) Subtenant shall give notice ('Extension Notice') to Sublandlord of its
election to extend the Term at least eight (8) months prior to the start of the
applicable Additional Term, with respect to which notification, time is of the
essence;
(ii) Sublandlord shall not have given notice ('Recapture Notice') to
Subtenant within thirty (30) days after receiving Subtenant's Extension Notice,
with respect to which notification, time is of the essence, stating that
Sublandlord elects, at Sublandlord's sole option to take back the Sublease
Premises and have this Sublease terminate and expire at the end of the Term
(Sublandlord hereby acknowledging that Sublandlord's right to exercise such
recapture/termination and give such Recapture Notice shall only apply to the
second Additional Term and third Additional Term, respectively); and
(iii) this Sublease shall be in full force and effect and Subtenant shall
not be in default of any of the terms, covenants and conditions of this Sublease
at the date of the Extension Notice or upon the commencement of the applicable
Additional Term.
2.3. In the event Subtenant shall have elected to extend for the Additional
Term in accordance with Section 2.2 (and Sublandlord shall not have given its
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Recapture Notice), all then applicable terms, covenants and conditions of this
Sublease shall apply to the Additional Term except that Subtenant shall have no
further option to extend the Term beyond the three (3) successive Additional
Terms specified above.
3. Fixed Rent. Subtenant shall pay to Sublandlord for each year during the Term
annual fixed minimum rent as provided below ('Fixed Rent'):
3.1. Commencing on the Commencement Date and continuing thereafter
throughout the Term, Subtenant shall pay to Sublandlord Fixed Rent at the rate
of THREE HUNDRED EIGHTY SIX THOUSAND THREE HUNDRED NINETY SIX DOLLARS AND 50/100
($386,396.50) per year (or THIRTY TWO THOUSAND ONE HUNDRED NINETY NINE AND
71/100 DOLLARS ($32,199.71) per month).
3.2. Fixed Rent shall be payable without demand, abatement, offset,
counterclaim, or set off, in equal monthly installments on the first day of each
and every calendar month during the Term from and after the Commencement Date
except that Fixed Rent for the month in which the Commencement Date occurs
shall be pro-rated on a per diem basis if the Commencement Date is not the
first day of such month and Fixed Rent for the last month of the Term shall be
likewise pro-rated if the Expiration Date is not the last day of a month.
Notwithstanding the foregoing sentence, Subtenant shall pay $32,199.71 to
Sublandlord upon execution of this Sublease, which sum shall be credited against
the first monthly installment(s) of Fixed Rent due hereunder.
3.3. In addition to the Fixed Rent herein described, Subtenant shall pay
all Escalation Rent (as such term is defined in Article 4 hereof) under and
in accordance with the provisions of this Sublease, appropriately pro-rated
if any of the foregoing relates to a period subsequent to the Expiration Date
or prior to the Commencement Date.
4. Additional Rent.
4.1. For the period from the Commencement Date through and including
December 31, 1999, Subtenant shall pay Sublandlord, without demand, abatement,
offset, counterclaim or setoff, in equal monthly installments on the first day
of each calendar month, 'Pass-through Rent' at the rate of TWO HUNDRED SIXTY TWO
THOUSAND EIGHT HUNDRED SIXTY SEVEN DOLLARS ($262,867.00) per year or TWENTY ONE
THOUSAND NINE HUNDRED FIVE DOLLARS AND 58/100 ($21,905.58)) per month.
Thereafter, for each Operating Year (as hereinafter defined), or a portion
thereof, all or a portion of which occurs after December 31, 1999, Subtenant
shall pay, as Escalation Rent, within the applicable time periods set forth for
the relevant additional rent and escalation rent payments in the Prime Lease, an
amount equal to Subtenant's Proportionate Share (as hereinafter defined) of all
of the additional and escalation rents as are required to be paid by
Sublandlord, as Tenant, with respect to such Operating Year,
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under each and every one of the provisions of the Prime Lease, including,
without limitation, Articles 4 and 5 of the Prime Lease (such amount(s) as
Sublandlord is required to pay to Prime Landlord under the Prime Lease being
hereinafter referred to as 'Additional Rent(s)' and Subtenant's Proportionate
Share of Additional Rent(s), or any other charge(s) required to be paid by
Subtenant hereunder, except Fixed Rent, being hereinafter referred to as
'Escalation Rent(s)'), it being the intention and agreement of the parties
hereto that Sublandlord's payment obligation with respect to the same shall
pass to Subtenant, and Subtenant shall be obligated to pay to Sublandlord so
much of all of the Additional Rent and charges required to be paid under the
Prime Lease as is equivalent to Subtenant's Proportionate Share thereof, except
that Subtenant shall not be obligated to pay any portion of any Additional Rent
or charges arising out of special services furnished by Prime Landlord directly
to Sublandlord but not to Subtenant or arising out of any default by Sublandlord
under the Prime Lease not caused by a default by Subtenant (or by any parties
holding by or under Subtenant) hereunder.
4.2. From and after January 1, 2000, Sublandlord shall furnish to
Subtenant, on a monthly basis or otherwise during each Operating Year, a written
statement, based upon a comparable statement received by Sublandlord from Prime
Landlord (together with a copy of such Prime Landlord's statement, with any
non-relevant items, which Sublandlord determines to be confidential, redacted)
setting forth Sublandlord's determination of the Escalation Rents for that month
(any one or more of which Sublandlord-issued statements being hereinafter called
the 'Operating Statement(s)'), which Operating Statements shall constitute a
final determination as between Sublandlord and Subtenant of Escalation Rent for
the period represented thereby, except that if Sublandlord receives a refund
from Prime Landlord, or there shall be a deficiency in the payment of Additional
Rent pursuant to the provisions of the Prime Lease, in the case of a refund,
Sublandlord shall pay to Subtenant an amount equal to the amount which
represents Subtenant's Proportionate Share of such refund for any period for
which Subtenant has paid Escalation Rent (including any interest on such sum
received by Sublandlord pursuant to the Prime Lease), and in the case of a
deficiency, Subtenant shall pay to Sublandlord, on demand, an amount equal to
the amount which represents Subtenant's Proportionate Share of such deficiency.
Sublandlord agrees, upon the request of Subtenant, to furnish to Subtenant a
copy of the statement from Prime Landord upon which any Operating Statement was
based, provided Sublandlord may delete therefrom any information which is not
relevant to the determination of the amount of Escalation Rents payable
hereunder.
4.3. Sublandlord's failure during the Term to prepare and/or deliver, or
any error made by Sublandlord in the preparation of, any Operating Statements or
bills, or Sublandlord's failure to make a demand, under this Article 4 or any
other provision of this Sublease, shall not in any way be deemed to be a waiver
of, or cause Sublandlord to forfeit or surrender, its rights to collect any
portion of Escalation Rent which may have become
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due. Subtenant's liability for the amounts due under this Sublease shall survive
the expiration or sooner termination of this Sublease.
4.4. In no event shall any adjustment of the payments made or to be made on
account of the Escalation Rent result in a decrease in Fixed Rent, it being
agreed that the payment of Escalation Rent pursuant to this Article is an
obligation supplemental to the obligation to pay Fixed Rent hereunder.
4.5. For the purposes of determining Escalation Rents, the following terms
shall have the definitions set forth below:
(1) "Operating Year" shall mean the calendar year 2000 and each calendar
year or portion thereof following thereafter during the Term.
(ii) "Subtenant's Proportionate Share" shall mean 13.07% of Sublandlord's
share attributable to the Premises. Subtenant's Proportionate Share is based
upon an agreed aggregate rentable area of 23,897 square feet for the Sublease
Premises and an agreed rentable area (for purposes of Sublandlord's Tax
payments and Operating Expense payments under the Prime Lease) of 182,829
square feet for the Premises. Subtenant's Proportionate Share shall be subject
to equitable and proportional change to the extent Sublandlord's rentable area
of the Premises changes during the Term (due to, by way of example and not by
way of limitation, casualty or condemnation losses or expansions or relocations
pursuant to the terms of the Prime Lease.)
4.6. Notwithstanding anything to the contrary contained in this Article 4,
Subtenant, on demand of Sublandlord, shall pay any out-of-pocket costs or
charges, incurred by Sublandlord in connection with, any special or unusual
requirements relating to Subtenant's occupancy of the Sublease Premises and/or
the providing of services with respect thereto, whether same arise as a result
of Subtenant's fit-up or alterations, Subtenant's increased or unusual occupancy
requirements, Subtenant's negligence or misconduct or other cause, event or
circumstance brought about by the use, actions or omissions of Subtenant or
Subtenant's agents, employees, contractors, licensees or invitees.
4.7. Notwithstanding anything to the contrary set forth in this Article 4,
if any time of Additional Rent is payable under the Prime Lease in fewer days
after notice, demand or receipt of a xxxx therefor than the period provided
herein following Sublandlord's notice, then in such event the lesser number of
days of notice shall be deemed applicable hereto and controlling.
4.8. With respect to electricity and other utilities allocable to the
Sublease Premises, charges for such items through and including December 31,
1999 are
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included in Subtenant's Pass-Through Rent referred to in Section 4.1 hereof.
From and after January 1, 2000, however, Subtenant shall pay Sublandlord
monthly, in advance, as Escalation Rent, 100% of any and all electricity charges
and utilities costs payable by Sublandlord under the Prime Lease with regard to
the Sublease Premises.
5. Rental. All of the amounts payable by Subtenant pursuant to this Sublease,
including, without limitation, Fixed Rent, Pass-Through Rent and Escalation
Rent, (collectively, 'Rental'), shall constitute rent under this Sublease and,
in the event of Subtenant's failure to pay any item of Rental when due,
Sublandlord shall have all of the rights and remedies provided for herein or by
law in the case of nonpayment of rent. Subtenant's obligation to pay Rental
shall survive the expiration or earlier termination of this Sublease.
6. Late Charges. Consistent with Section 1.08 of the Prime Lease, if Subtenant
shall fail to pay any installment of Fixed Rent, Escalation Rent or any other
Rental for more than five (5) days after the same is due and payable hereunder,
Subtenant shall pay to Sublandlord, in addition to the sum not timely paid, a
late charge equal to five percent (5%) of the amount of such late payment and,
in addition, interest on such late installment at the "Lease Interest Rate" (as
such term is defined in Section 1.08 of the Prime Lease. Such payments shall be
made without prejudice to any of Sublandlord's rights and remedies hereunder or
at law or in equity for nonpayment or late payment of Rental, and shall be in
addition thereto.
7. Incorporation of, and Subordination to, Terms of Prime Lease.
7.1. All of the terms, provisions, covenants, stipulations, conditions,
rights, obligations, remedies and agreements contained in the Prime Lease are
incorporated herein by reference, and shall, as between Sublandlord and
Subtenant (as if they were the Landlord and Tenant, respectively, under the
Prime Lease and as if the Sublease Premises being sublet hereby were the
"Premises", as such term is defined in the Prime Lease and as if the Escalation
Rent payable hereunder were the Additional Rent payable under the Prime Lease),
constitute the terms of this Sublease except to the extent they do not relate to
the Sublease Premises or are inapplicable or inappropriate or inconsistent with,
or modified by Article 14 hereof or any other provision of this Sublease.
7.2. This Sublease is in all respects subject and subordinate to the terms
and conditions of the Prime Lease, Sublandlord represents that a true and
complete copy of the Prime Lease has previously been furnished by Sublandlord to
Subtenant, after deletion of certain financial terms, and Subtenant acknowledges
that it has received and reviewed the same. Subtenant agrees that in the event
of a termination, re-entry or dispossess by Prime Landlord under the terms of
the Prime Lease, Prime Landlord, at its option, may take over all of the right,
title and interest of Sublandlord as Sublandlord
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hereunder and, in such event, Subtenant shall attorn to Prime Landlord pursuant
to the then executory provisions of this Sublease, except that Prime Landlord
shall not (i) be liable for any previous act, omission or negligence of
Sublandlord, (ii) be subject to any counterclaim defense or offset not
expressly provided in this Sublease which theretofore accrued to Subtenant
against Sublandlord, (iii) be bound by any previous modification or amendment
of this Sublease or by any previous prepayment of more than one month's Fixed
Rent, Escalation Rent, or any other Rental unless such modification or
prepayment shall have been approved in writing by Prime Landlord, or (iv) be
obligated to perform any work in the Sublease Premises or the Building or to
prepare them for occupancy beyond Prime Landlord's obligations under the
Prime Lease. Subtenant agrees to promptly execute and deliver to Prime Landlord
any instruments Prime Landlord may reasonably request to evidence and confirm
such attornment.
7.3. Notwithstanding anything to the contrary contained in the Prime Lease,
this Sublease is in all respects subject and subordinate to all of the
provisions of the Prime Lease and to all matters to which the Prime Lease is or
shall be subject and subordinate (hereinafter collectively referred to as
"Superior Mortgages"). This Article shall be self-operative and no further
instrument of subordinations shall be required by any party. In confirmation of
such subordination, Subtenant shall execute promptly any certificate that
Sublandlord or Prime Landlord may reasonably request. Provided Subtenant is not
in breach of its obligations under this Sublease, Sublandlord agrees to request
a non-disturbance agreement protecting Subtenant's subtenancy hereunder from the
holder of any Superior Mortgage granting to Sublandlord a non-disturbance
agreement, but Sublandlord shall in no way be liable (nor shall Subtenant's
obligations herein be affected) by any refusal or failure by such holder to
grant Subtenant any such non-disturbance agreement.
8. Subtenant's Obligations. Except as otherwise specifically provided herein,
all acts and obligations to be performed and all of the terms, provisions,
covenants, stipulations, rights, obligations, remedies, agreements and
conditions be observed by, and inuring to the benefit of, Sublandlord as Tenant
under the Prime Lease with respect to the Premises shall be performed and
observed by, and shall inure to the benefit of, Subtenant but solely to the
extent each of same relates Subtenant's occupancy or its use and enjoyment of
the Sublease Premises, and Subtenant's obligations shall run to Sublandlord or
Prime Landlord, as Sublandlord may reasonably determine to be appropriate or
required by the respective interests of Sublandlord and Prime Landlord.
Subtenant hereby agrees to idemnify, defend and hold Sublandlord harmless from
and against, all claims, damages, costs, expenses and liabilities (including,
but not limited to, reasonable attorney's fees and disbursements) relating to
the Sublease Premises, pursuant to (and in accordance with the terms of)
Sublandlord's indemnity of Prime Landlord contained in Section 20.03 of the
Prime Lease, said Section 20.03 being incorporated herein by reference and being
applicable from Subtenant to (and for the benefit of) Sublandlord. In
furtherance of the
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foregoing, Subtenant shall not (i) do or permit to be done anything prohibited
under the Prime Lease or the Superior Mortgages, (ii) take any action or do or
permit to be done anything which would result in any additional cost or expense
or other liability being incurred by Sublandlord under the provisions of the
Prime Lease, or (iii) do or permit to be done by Subtenant's contractors,
agents, employees, invitees, guests or licensees or any other person or entity,
anything which would cause Sublandlord, as Tenant under the Prime Lease, to
be in default thereunder. Subtenant's obligations under this Article shall
survive the expiration or earlier termination of this Sublease. In the event
that any term or condition of this Sublease confers any rights which, if
exercised hereunder, would constitute a default under or breach of the Prime
Lease or any Superior Mortgages, this Sublease shall be deemed amended to
comply or be consistent with the Prime Lease or any such Superior Mortgages,
or both. Subtenant shall not take or suffer any action in connection with its
use and enjoyment of the Sublease Premises which would constitute a default
under, or be a violation of, the Prime Lease or any Superior Mortgages, or both.
9. Sublandlord's Obligations. Subtenant agrees that, notwithstanding anything
to the contrary contained in this Sublease or in the Prime Lease, Sublandlord
is not hereby assuming any responsiblity or obligation in connection with, or
for any of the representations made by, Prime Landlord under the Prime Lease,
nor shall Sublandlord be required to provide any of the services or make any
of the alterations, installations, repairs or restorations or take any other
actions that Prime Landlord has agreed to provide, to make, to take or to
cause to be provided or made or taken under the provisions of the Prime Lease
and Subtenant shall rely upon, and look solely to Prime Landlord for the
provisions or making thereof. If Prime Landlord shall default in the performance
of any of its obligations under the Prime Lease, Subtenant shall not have the
right to proceed in Sublandlord's name to enforce Prime Landlord's obligations,
provided, however, that if Prime Landlord shall have defaulted in the
performance of any obligation under the Prime Lease, which default materially
adversely affects the Sublease Premises, Subtenant's use thereof, or the
services required to be provided to the Sublease Premises under this Sublease,
then, provided Subtenant is in compliance with its obligations hereunder,
Sublandlord agrees, upon the reasonable request of Subtenant and at Subtenant's
sole cost and expense, to make, demand or institute any proceeding or action
appropriate under the Prime Lease for the enforcement or performance of said
obligation. If requested by Sublandlord, and as a condition to Sublandlord
making, demanding, instituting or continuing any proceeding or action
contemplated by the prior sentence, Subtenant shall provide a cash deposit
or other assurances reasonably satisfactory to Sublandlord for the payment
of the costs and expenses anticipated by Sublandlord in connection with such
dispute, including, without limitation, resonable attorney's fees. If such
proceedings or action shall also seek enforcement or performance of
obligations for the benefit of portions of the Premises other than the Sublease
Premises, Sublandlord shall pay Sublandlord's equitable share of the cost
and expense of such proceeding or action, including, without limitation,
reasonable attorney's fees.
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10. Default by Subtenant. If Subtenant shall be in default of any convenant,
term or condition of this Sublease which causes a default under any of the
provisions of the Prime Lease (any of the foregoing being a "Default"),
Sublandlord, on giving the notice required under the Prime Lease and subject to
the right, if any, of Subtenant to cure any such default as may be provided to
Sublandlord in the Prime Lease and as incorporated herein by reference, shall
have available to it all of the rights and/or remedies available to Prime
Landlord under the Prime Lease as if Sublandlord had caused the corresponding
default or failure to occur under the Prime Lease (collectively, the "Basic
Remedies"). In the event there occurs any other default under this Sublease
which does not cause a Default, and if (i) with respect to a non-monetary
default, Subtenant fails to cure such default within ten (10) days after
Sublandlord's notice to Subtenant (or if such default is remediable but not
reasonably capable of being remedied within such ten (10) day period, Subtenant
has failed to commence remedy within such ten (10) day period, or, if so
commenced has failed to diligently prosecute such remedy to completion within a
reasonable period (not to exceed (45) days after expiration of such ten day
period), or (ii) Subtenant fails to cure such default with five (5) days after
Sublandlord's notice to Subtenant with respect to the failure to make payment of
any item of Rental, Sublandlord may pursue any of the Basic Remedies. The Basic
Remedies shall be in addition to all other rights and/or remedies available to
Sublandlord at law or in equity.
11. Quiet Enjoyment. As long as Subtenant is not in default under any of the
terms of this Sublease beyond any applicable grace period and performs and
observes all of the obligations, terms and conditions herein contained and
contained in the Prime Lease as herein incorporated, Subtenant shall peaceably
and quietly have, hold and enjoy the Sublease Premises, subject to the terms and
conditions of this Sublease and the Prime Lease.
12. Alterations. Subject to the provisions of Articles 14, 17 and 22 hereof,
Sublandlord hereby confers upon Subtenant all of the rights, privileges,
obligations and restrictions of Sublandlord, as Tenant under the Prime Lease,
with respect to alterations, additions or improvements in or to the Sublease
Premises performed subsequent to Sublandlord's initial fit-up, provided that
such alterations, additions and improvements shall be subject to the prior
written approval of Prime Landlord, if required by the Prime Lease, and of
Sublandlord, in each instance.
13. Destruction, Fire and Other Casualty; Condemnation. Notwithstanding anything
to the contrary contained in this Sublease or the provisions of the Prime Lease
incorporated herein by reference:
13.1. If the Sublease Premises shall be damaged or destroyed in whole or in
part as a result of any fire or other casualty, Subtenant shall have no right to
terminate or
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otherwise cause the Term to expire or be forfeited except to the extent
Sublandlord has an express right (and Sublandlord exercises such right) to
terminate the Prime Lease;
13.2. If the whole or a part of the Sublease Premises shall be condemned or
taken in any manner for any public or quasi-public use, Subtenant shall have no
right to terminate this Sublease or otherwise cause the Term to expire or be
forfeited, except to the extent Sublandlord has an express right (and
Sublandlord exercises such right) to terminate the Prime Lease;
13.3. If Sublandlord shall receive an abatement of Fixed Rent and/or
Additional Rent pursuant to the provisions of the Prime Lease as a result of
damage or destruction to the Sublease Premises, or a condemnation of the
Sublease Premises, or with respect to services to be furnished to the Sublease
Premises, Subtenant shall be entitled to receive a corresponding abatement of
Fixed Rent and/or Escalation Rent, as the case may be (provided Subtenant is in
compliance with its obligations under this Sublease); and
13.4. Sublandlord shall have no obligation to make repairs or restore the
Sublease Premises and Subtenant shall be entitled only to such repairs or
restoration of the Sublease Premises as may be provided by Prime Landlord under
the Prime Lease.
14. Modification of the Prime Lease. For the purposes of this Sublease, the
terms of the Prime Lease which are incorporated by reference are incorporated
subject to the following modifications:
14.1. In all provisions of the Prime Lease requiring the approval or
consent of the "Landlord",Subtenant shall be required to obtain the approval or
consent of Sublandlord and Prime Landlord. In all provisions of the Prime Lease
requiring that notice be given to the "Landlord", Subtenant shall be required to
give notice to Prime Landlord and Sublandlord;
14.2. The following provisions of the Prime Lease do not apply, are deemed
to be deleted from the Prime Lease and shall be of no force and effect with
respect to this Sublease: Sections 3.04 (Allowance); 3.05 (Elevator Work and
Allowance); 3.07 (Benches and Hoods); 3.08 (Arbitration; Fit-Up); 5.05 (Audit
and Arbitration); 8.16 (Assignment/Subletting Profits); 9.02 (Compliance
Contests); 12.05 (Certain Alterations); 18.12 (Restricting Access); 20.04
(Indemnity); Article 30 (Brokerage); Article 31 (Notices); Article 35 (Parking);
Sections 36.02 and 36.03; Second Sentence of Section 37.01 (Exterior Signage);
Section 37.02 (Tenant's Directory); Section 41.01(b) (Representations); Article
42 (Options); Article 43 (Communications Dish); and Article 44 (Cabling).
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14.3. Any reference to the term "Landlord" in Article 10 of the Prime Lease
in connection with insurnace coverage is hereby modified to mean Sublandlord and
Prime Landlord.
15. Termination of Prime Lease. If for any reason whatsoever other than due to
Sublandlord's default under the Prime Lease (excluding any such default caused
by Subtenant), the term of the Prime Lease is terminated prior to the Expiration
Date, then this Sublease shall thereupon automatically be terminated, as if the
Expiration Date were one day prior to the date of termination under the Prime
Lease, and Sublandlord shall not be liable to Subtenant by reason thereof. Upon
such termination of this Sublease, Sublandlord shall return to Subtenant that
portion of the Fixed Rent and Escalation Rent which has been paid in advance by
Subtenant hereunder, if any, prorated as of the date of such termination.
Sublandlord reserves the right to transfer and assign its interest in and to
this Sublease.
16. Liability of Sublandlord. Subtenant shall look only to Sublandlord's estate
and interest in the Sublease Premises for the satisfaction of Subtenant's
remedies for the collection of any judgment (or other judicial process)
requiring the payment of money by Sublandlord in the event of any default by
Sublandlord under this Sublease, and no other property or other assets of
Sublandlord shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Subtenant's remedies under or with respect to this
Sublease, the relationship of Sublandlord and Subtenant hereunder or
Subtenant's use and occupancy of the Sublease Premises. However, nothing
contained in this Article shall be construed to permit Subtenant to offset
against any Rental due hereunder.
17. Condition of the Sublease Premises. Subject to any fit-up work to be
performed by Prime Landlord under the Prime Lease with regard to the Sublease
Premises (including any replacement of any loose or damaged floor tiles and
any damaged or discolored ceiling tiles), and to any preparation work to be
performed by Sublandlord as specifically provided in Exhibit B attached hereto,
Subtenant acknowledges that it has examined and inspected the Sublease Premises
and is fully familiar with the physical condition thereof, and agrees to accept
and take possession of the Sublease Premises "as is". Subtenant further
acknowledges that, as an occupant of the Complex, it is generally familiar with
the condition of the Complex, including, without limitation, the conditions
listed as Exhibit N of the Prime Lease. Sublandlord does not make any
representation or warranty as to the physical condition of the Sublease
Premises or Complex, the use to which the Sublease Premises or Complex may be
put or any other matter or thing affecting or relating to the Sublease Premises
except as specifically set forth in this Sublease. Notwithstanding the
immediately preceding sentence, Sublandlord and Subtenant each represents to
the other that, to the best of their respective knowledge, Prime Landlord's
representations made in Article 41 and Section 36.03(a) of the Prime Lease are
true and accurate as of the date hereof. Sublandlord shall have no obligation
whatsoever to alter, improve, decorate or otherwise prepare the Sublease
Premises for Subtenant's occupancy, except as may be
12
specifically provided in Exhibit B. Subtenant acknowledges that it presently
occupies, and has been in occupancy of, portions of the Sublease Premises.
18. Consents. If, as required by the terms of this Sublease, Subtenant seeks
Sublandlord's consent or approval, Sublandlord's refusal to grant such consent
or approval shall be deemed reasonable if Sublandlord is required under the
Prime Lease to obtain such consent or approval of Prime Landlord and Prime
Landlord has refused or failed to grant such consent or approval. Sublandlord
agrees to forward any such good faith, reasonable request for Prime Landlord's
consent or approval to Prime Landlord promptly after receipt therefor from
Subtenant. The provisions of this Article shall not be construed to limit the
grounds on which Sublandlord may refuse to grant consent or approval in any
instance.
19. Cleaning/Maintenance and Security. Subject to and in accordance with the
terms of the Prime Lease, Subtenant shall receive Prime Landlord's cleaning,
maintenance and security services to the Sublease Premises.
20. Assignment and Subletting.
20.1. Subtenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not directly or indirectly assign, mortgage or encumber
this Sublease, nor underlet, or suffer or permit the Sublease Premises or any
part thereof to be used by any other parties.
20.2. Notwithstanding anything to the contrary contained in Section 20.1,
Subtenant shall have the right, subject to the prior written consent of
Sublandlord, in each instance, which consent shall not be unreasonably withheld,
and the prior written consent of Prime Landlord, in each instance, (i) to assign
this Sublease or sublet a portion of the Sublease Premises to a "related
corporation" of Subtenant, as such term is defined in the Prime Lease or (ii) to
assign this Sublease to any corporation which is a successor to Subtenant by
merger or consolidation, unless the principal purpose of such merger or
consolidation is the acquisition of Subtenant's interest in this Sublease,
provided in each instance that the Sublease Premises shall not be divided.
Subtenant shall, within ten (10) days after execution thereof, deliver to
Sublandlord (a) a duplicate original instrument of assignment in form and
substance reasonably satisfactory to Sublandlord, duly executed by Subtenant,
(b) an instrument in form and substance reasonably satisfactory to Sublandlord,
duly executed by the assignee, in which such assignee shall individually assume
the observance and performance of, and agree to be personally bound by, all of
the terms, covenants and conditions of this Sublease on Subtenant's part to be
observed and performed and (c) any instrument required by Prime Landlord in
connection with its consent to such transaction, if granted. Except as set
forth above, a transfer of a controlling interest in the shares of Subtenant
at any one time or over a period of time through a series of transfers, shall
be deemed an assignment of this Sublease and shall be subject to all of
13
the provisions of this Article 20, including, without limitation, the
requirement that Subtenant obtain Sublandlord's and Prime Landlord's prior
consents thereto. The transfer of shares of Subtenant for purposes of this
Section 20.2 shall not include the sale of shares by persons other than those
deemed 'insiders' within the meaning of the Securities Exchange Act of 1934, as
amended, which sale is effected through the 'over-the-counter market' or through
any recognized stock exchange.
20.3. Nothwithstanding any assignment and assumption of the obligations of
Subtenant hereunder, whether or not the consent of Sublandlord has been
obtained, Subtenant herein named, and each immediate or remote successor in
interest of Subtenant herein named, shall remain liable jointly and severally
(as a primary obligor) with Subtenant's assignee and all subsequent assignees
(as permitted hereunder) for the performance of Subtenant's obligations under
this Sublease, and, without limiting the generality of the foregoing, shall
remain fully and directly responsible and liable to Sublandlord for all acts and
omissions on the part of any such assignee.
20.4. The consent by Sublandlord to any subletting or assignment shall not
relieve Subtenant from obtaining the express consent in writing of Sublandlord
and Prime Landlord to any other or further subletting or assignment nor shall
any subletting or assignment release Subtenant's obligations hereunder.
20.5. If Subtenant's interest in this Sublease be assigned, Sublandlord may
collect rent from the assignee and apply the net amount collected to the Fixed
Rent and Escalation Rent herein reserved, but no such assignment or collection
shall be deemed a waiver of the provisions of this Article or of any default
hereunder or the acceptance of the assignee as Subtenant, or a release of
Subtenant from the further observance or performance by Subtenant of all of the
covenants, conditions, terms and provisions on the part of Subtenant to be
performed or observed hereunder.
20.6. Subtenant agrees that it shall be liable for the reimbursement of all
of Sublandlord's and Prime Landlord's expenses (including, without limitation,
reasonable attorneys' fees and disbursements) incurred in connection with the
review, processing and/or acceptance or rejection, as the case may be, of any
Subtenant request to sublet the Sublease Premises or assign the Sublease.
20.7. Nothwithstanding anything to the contrary herein, Sublandlord shall
have the right, to be exercised by written notice to Subtenant given within
thirty (30) days after Sublandlord's receipt of written notice of any desire or
proposal to sublet the Sublease Premises or transfer or assign this Sublease, to
recapture all or those portion(s) of the Sublease Premises affected by such
proposal, and to terminate this Sublease with respect to same.
14
20.8. Sublandlord shall have the right to 100% of any and all profits
arising from any subleases or assignments by Subtenant or by any parties holding
by or under Subtenant.
21. Brokerage. Sublandlord and Subtenant represent and warrant to each other
that they have dealt with no brokers in connection with this Sublease.
Sublandlord and Subtenant each agrees to indemnify and hold harmless the other
from and against all loss, cost, liability and expense (including, but not
limited to, attorneys fees and disbursements) arising out of the breach of the
representation and warranty made by such party in this Article. In the event any
claim shall be made by any such other broker with whom Sublandlord has not dealt
who shall claim to have negotiated this Sublease on behalf of Subtenant or to
have introduced Subtenant to Sublandlord, Subtenant shall defend any such action
by counsel selected by Subtenant and approved by Sublandlord.
22. Surrender. On the Expiration Date or upon the sooner termination of this
Sublease, Subtenant shall, at its sole cost and expense, quit, surrender, vacate
and deliver the Sublease Premises to Sublandlord 'broom clean' and in good
order, condition and repair except for ordinary wear and tear and damage by fire
or other casualty. Subject to the terms of the Prime Lease, Subtenant shall
retain title to, including the right to remove from the Sublease Premises at any
time during the Term hereof, any movable trade fixtures or equipment paid for
and installed by Subtenant (without contribution by either Sublandlord or Prime
Landlord) used in Subtenant's business which are not necessary for the
structural integrity of the Silicones Building or the operation of any building,
mechanical or utility systems or equipment. Upon the expiration or sooner
termination of this Sublease, Subtenant shall, at its sole cost and expense,
remove all personal property and any movable trade fixtures or equipment
belonging to Subtenant which it is permitted to move pursuant to this Section,
provided, however, that in each instance Subtenant repairs any damage to the
Sublease Premises or the Silicones Building due to the installation or removal
of such property. Any trade fixtures, equipment or other property of Subtenant
remaining at the Sublease Premises after the expiration of this Sublease shall
be deemed abandoned and may be removed or otherwise disposed of by Sublandlord
without any notice, liability or obligation to Subtenant, but Subtenant shall
remain liable to reimburse Sublandlord for the cost of performing any such
work, said reimbursement to be made within ten (10) days after Sublandlord
submits bills therefor. Subtenant agrees to indemnify, defend and save
Sublandlord harmless from and against any and all loss, cost, expense or
liability resulting from the failure of, or the delay by, Subtenant in so
surrendering the Sublease Premises, including,without limitation, any claims
made by Prime Landlord or any succeeding Subtenant founded on such failure or
delay.
23. Notices. Notices and other communications desired or required to be given
hereunder shall be in writing and shall be given or made by personal delivery on
a business day or by certified or registered mail, return receipt requested (or
by reputable, overnight
15
express courier, such as Federal Express or UPS), addressed, in the case of
Sublandlord, to the address set forth on the first page of this Sublease, to
the attention of General Counsel, and, in the case of Subtenant, to the Sublease
Premises to the attention of Xxxxxx X. XxXxxxxx, or to any other party(ies)) or
address(es) which either party may hereafter designate respectively for such
purpose by a written notice. Copies of any notices to Sublandlord shall likewise
be sent to: Dr. E.L. Xxxxxxx, Vice President, Research and Development,
OrganoSilicones Group, Witco Corporation, 000 Xxx Xxx Xxxx Xxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000, until further notice from Sublandlord.
24. No Waivers. Failure by Sublandlord or Subtenant in any instance to insist
upon the strict performance of any one or more of the obligations of the other
party under this Sublease, or to exercise any election herein contained, shall
in no manner be or be deemed to be a waiver by Sublandlord or Subtenant, as the
case may be, of any of the other party's defaults or breaches hereunder or of
any of its rights and remedies by reason of such defaults or breaches, or a
waiver or relinquishment for the future of the requirement of strict performance
of any and all of the other party's obligations hereunder. Further, no payment
by Subtenant or receipt by Sublandlord of a lesser amount than the correct
amount or manner of payment of Fixed Rent and Escalation Rent due hereunder
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed to effect or evidence an accord and satisfaction, and Sublandlord may
accept any checks or payments as made without prejudice to Sublandlord's right
to recover the balance or pursue any other remedy in this Sublease or otherwise
provided at law or equity.
25. Miscellaneous.
25.1. The terms of this Sublease may not be changed or otherwise modified
except by an instrument in writing signed by each of the parties hereto.
25.2. The parties confirm Prime Landlord's consent to this Sublease
pursuant to Section 8.01 of the Prime Lease. This Sublease is conditioned upon
receipt of any consent required under a Superior Mortgage, to the extent not
already given under or pursuant to or in connection with the Prime Lease.
Sublandlord and Subtenant agree to cooperate with each other in order to obtain
such consent(s), if applicable. Sublandlord may cancel this Sublease by written
notice given to Subtenant at any time after the expiration of forty-five (45)
days after the date of this Sublease, if applicable, if such consent(s),
has/have not been obtained but prior to the granting of such required
consent(s). Upon such cancellation, Sublandlord shall refund to Subtenant any
Rental paid in advance by Subtenant hereunder.
25.3. It is understood and agreed that all understandings and agreements
heretofore had between the parties hereto with respect to the subject matter of
this Sublease
16
are merged in this Sublease (including the Exhibits attached hereto and made a
part hereof), which alone fully and completely expresses their agreement, and
that the same is entered into after full investigation, neither party relying
upon any statement, representation or warranty made by the other not embodied in
this Sublease. This Sublease shall not be binding on Sublandlord unless and
until Sublandlord shall have executed and delivered a fully executed counterpart
of this Sublease to Subtenant.
25.4. As of the date hereof, Sublandlord represents that (a) the Prime
Lease has been executed and delivered; and (b) Sublandlord has not received a
notice of default under the Prime Lease.
25.5. Sublandlord and Subtenant each represents that it has full right and
power to execute and perform this Sublease, subject to the terms of the Prime
Lease and consents of Prime Landlord (and any required Superior Mortgagee), if
applicable.
25.6. This Sublease shall insure to the benefit of and shall be binding
upon the parties hereto and their respective successors and assigns, as same are
permitted hereunder.
25.7. The paragraph headings appearing herein are for purposes of
convenience only and are not deemed to be a part of this Sublease.
25.8. This Sublease shall be governed by and construed in accordance with
the laws of the State of New York.
25.9. Miscellaneous Services. Provided Subtenant is not in breach or
default of its obligations under this Sublease, Sublandlord shall provide
certain services to Subtenant and to various portions of the Sublease Premises
on a periodic basis (but solely to the extent Sublandlord provides such services
generally to the Premises) specified as follows: standard reception services to
the lobby of the Silicones Building; standard air balancing services; standard
fire extinguisher inspection and maintenance; standard safety shower and eyewash
station maintenance; periodic, standard painting maintenance; standard plumbing
and electrical maintenance; standard, initial changing of certain lock
mechanisms; and making available, on a non-exclusive basis, a certain receiving
area in the Silicones Building or Building 771 (or alternatively, at
Sublandlord's option, pursuant to separate agreement with Subtenant, certain
standard shipping and receiving services); provided, however, that Sublandlord
shall have no obligation to provide any of the aforesaid services above and
beyond the levels to which Sublandlord provides such services to its own
business operations; and provided further, that Subtenant pays Sublandlord's
standard charges for providing such services as and when billed as Additional
Rent, said charges to be based on Sublandlord's actual cost, without profit or
markup.
17
25.10. Parking. Subject to and in accordance with the terms of the Prime
Lease, Sublandlords shall provide Subtenant with twenty-two (22) unreserved,
outside parking spaces, plus an additional seven (7) reserved, outside parking
spaces, out of Sublandlord parking space allowance under the Prime Lease. A
diagram of the general location of such parking space area(s) is attached as
Exhibit C hereto.
25.11. Relocation and Substitution. Notwithstanding anything to the
contrary contained in this Sublease, if Sublandlord shall be requested to
relocate any portions of the Premises pursuant to the Prime lease, Sublandlord
shall have the right, at its option and upon at least ninety (90) days prior
notice to Subtenant, to relocate portion(s) of Subtenant's business operations
from the Sublease Premises to reasonably equivalent space elsewhere in the
Silicones Building. Sublandlord shall pay for Subtenant's reasonable,
out-of-pocket costs incurred to move such operations to such substitute
premises. The parties shall execute and deliver documentation, upon
Sublandlord's written request, reasonably confirming such relocation and
substitution.
25.12. Drainage Agreement. Notwithstanding anything to the contrary
contained in this Sublease, Subtenant shall, simultaneously with its execution
and delivery of this Sublease, execute and deliver to Sublandlord that certain
Drainage Agreement of even date herewith in the form of Exhibit D attached
hereto and made a part hereof.
18
IN WITNESS WHEREOF, this Sublease has been duly executed as of the day and
year first above set forth.
PROGENICS PHARMACEUTICALS, WITCO CORPORATION, Sublandlord
INC., Subtenant
By: Xxxxxx X. XxXxxxxx By: Xxxxx X. Xxxxxx
------------------------ ----------------------
Name: Xxxxxx X. XxXxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Group Vice President
19
STATE OF CONNECTICUT )
) ss: GREENWICH
COUNTY OF FAIRFIELD )
On this 27th day of January, 1998, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did say that (s)he resides at
_______________ that (s)he is the Group V.P. of WITCO CORPORATION, the
corporation described in and which executed the foregoing instrument; and that
(s)he signed his/her name thereto by order of the board of directors of said
corporation.
Giu A. Matuer
--------------------------------------
Notary Public
My Commission Expires May 31, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF WESTCHESTER )
On this 27th day of January, 1998, before me personally came
_______________,to me known, who, being by me duly sworn, did say that (s)he
resides at _______________ that (s)he is the _______________of PROGENICS
PHARMACEUTICALS, INC., the corporation described in and which executed the
foregoing instrument; and that (s)he signed his/her name thereto by order of the
board of directors of said corporation.
Xxxxxx Xxxxx
--------------------------------------
Notary Public
XXXXXX XXXXX
Notary Public, State of New York
No. 4895173
Qualified in Westchester County
Commission Expires May 18, 1999
Exhibit A
Subtenant Premises
[GRAPHIC]
Exhibit A
Subtenant Premises
[GRAPHIC]
21
Exhibit B
[Sublease Premises Fit-up Work by Sublandlord]
Subject to any delays or conditions beyond Sublandlord's reasonable control,
Sublandlord agrees to provide, promptly following the Commencement Date, the
following work to the Sublease Premises:
1. Sublandlord shall repaint the interior painted walls of the Sublease Premises
with a single coat of Sublandlord's Building-standard paint in areas (and with a
color) to be mutually agreed to by the parties.
Subtenant shall reasonably cooperate with Sublandlord and Sublandlord's
contractors and subcontractors in connection with Sublandlord's performance of
such work, and Subtenant shall, at Subtenant's cost and expense, coordinate and
perform the moving of any furniture, equipment and personalty within the
Sublease Premises to accommodate such painting. Subtenant acknowledges that
Sublandlord's work herein may be performed during Subtenant's occupancy of the
Sublease Premises, and in no event shall Sublandlord be required to use overtime
labor in connection with such work unless Subtenant pays for same.
22
PARKING AREA
Exhibit C
[GRAPHIC]
23
Exhibit D
[Drainage Agreement]
WITCO CORPORATION
XXX XXXXXXXX XXXX
XXXXXXXXX, XXXXXXXXXXX 00000-0000
Dated as of January 1, 1998
Progenics Pharmaceuticals, Inc.
The Landmark at Eastview
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Re: Agreement between Witco Corporation ('Witco') and Progenics
Pharmaceuticals, Inc. ('Progenics'), concerning a certain shared
septic and drainage system (collectively, the 'Drainage System')
located at that certain office complex (the 'Complex') known as
The Landmark at Eastview, in Tarrytown, New York
Ladies and Gentlemen:
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Witco and Progenics, intending to be legally bound
hereby, hereby agree as follows, effective as of the date hereof:
1. Background. Witco and Progenics each hereby respectively acknowledges
that: (a) Progenics and Witco are tenants at the Complex; (b) Progenics
discharges wastewater into the Drainage System at the Complex; (c) Union Carbide
Corporation (and/or its subsidiary(ies) or affiliate(s) (herein, 'Carbide')) has
been the holder of a certain Wastewater Discharge Permit No. 3927, dated May 15,
1987, issued by the County of Westchester, Department of Environmental
Facilities (said Permit, and any amendments, modifications, extensions and
replacements thereof, collectively, the 'Discharge Permit'); and (d) Witco will
now become the holder of such Discharge Permit; (e) as an inducement for Witco
to become the holder of the Discharge Permit and as a condition precedent to
permit Progenics to continue to discharge its wastewater into the Drainage
System, Witco and Progenics hereby agree to the terms of this Agreement, which
24
Agreement is based on similar terms in previous agreements between Carbide and
Witco, and Carbide and Progenics, respectively.
2. Term; Mutual Termination. The term of this Agreement (the 'Term') shall
commence as of January 1, 1998 (the 'Commencement Date') and shall continue
through and expire on December 31, 2007 (the 'Expiration Date'), unless sooner
terminated as specifically provided herein or by operation of law. Each party
hereto shall have the right to terminate this Agreement upon at least sixty (60)
days prior written notice to the other party (which notice specifies such
effective termination date), provided that such terminating party is not in
default hereunder, and further provided, that such terminating party shall
remain liable for all of its unperformed covenants and obligations under this
Agreement accruing up to and including the date of such early termination.
Notwithstanding the foregoing, upon the expiration or termination of this
Agreement, Progenic's rights to further discharge into such Drainage System
shall simultaneously cease and terminate.
3. Drainage System Provisions.
(a) Progenics hereby agrees to indemnify, defend and hold Witco harmless
from and against any and all claims, damages, losses, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs)
due to any violation of this Agreement by Progenics or Progenic's agents,
employees, contractors, licensees or invitees.
(b) Progenics shall not treat, recycle, store, bury or dispose of upon
any portion of the Complex any hazardous or toxic substances, materials or
wastes, as determined pursuant to Federal, State or local statutes, ordinances,
laws, rules or regulations.
(c) Subject to receipt of any necessary governmental approvals,
Progenics shall have the right to discharge through the Drainage System lawful
laboratory wastes generated in its research and development activities performed
at the Complex which are of similar character and quantity to those lawful
laboratory wastes generated in the research development activities carried out
by Progenics within the previous five (5) years.
(d) Notwithstanding the foregoing, Progenics shall not dispose of,
through the Drainage System or otherwise (i) any hazardous or toxic substances,
materials or wastes, as determined pursuant to Federal, State or local statutes,
ordinances, laws, rules or regulations, which violate any governmental
restrictions imposed upon the Complex or Witco or the owner of the Complex, or
which Witco or the owner of the Complex
25
reasonably determines to be harmful to the Drainage System, and (ii) any wastes
except in accordance with the restrictions and limitations set forth in the
Discharge Permit.
(c) Any costs, claims, losses or penalties with respect
to the violation of the Discharge Permit which are attributable to Progenics or
Progenic's agents, employees, contractors, licenses or invitees shall be borne
entirely by Progenics. The parties agree that it may be possible to determine
which parties disposing of wastewater through the Drainage System is responsible
for a violation. In such event, Progenics agrees to pay its proportionate share
of the amount equal to the costs, claims, losses and/or penalties incurred
(based on the number of parties discharging through the outfall in question of
the Complex Drainage System, and such parties' relevant square footage of
Complex space under lease, sublease and/or license.)
(f) Progenics shall not produce any chemicals for
commercial purposes (i.e., routine production for sale) upon any portions of the
Complex and shall maintain in place at all times such procedures as may be
required to remove from the Complex any chemicals produced thereon in a manner
which complies with all applicable governmental statutes, ordinances, laws,
rules and regulations.
(g) Without thereby establishing minimum standards for
Progenic's business at the Complex, Progenics shall comply in its occupation and
use of space at the Complex with any and all reasonable health, safety of
operating regulations established by Witco or the owner of the Complex and
applicable as well to other tenants at the Complex.
4. Notices. Any notice or other communication required or given
hereunder shall be in writing and sent to the relevant address set forth above
(or to such other addressess as the parties may respectively designate by notice
given in accordance with this Section) and shall be delivered personally or sent
by reputable, overnight courier service or by certified mail, postage prepaid,
return receipt requested, and shall be deemed given when so delivered personally
or when indicated to have been delivered by signed receipt for such overnight or
certified mail. Copies of any notices sent to Witco shall simultaneously be
sent to Dr. E.L. Xxxxxxx, Witco Corporation, OrganoSilicones Group, Research and
Development Department, 000 Xxx Xxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx, 00000.
5. Miscellaneous. This Agreement shall bind and enure to the benefit
of the parties hereto and their respective successors and assigns. This
Agreement represents the final and complete agreement between the parties
concerning the subject matters set forth herein, and this Agreement may not be
changed except by a writing signed by the parties hereto. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York. Each of the parties hereto represents and warrants
26
to the other that it is the full right, power and authority to execute and
deliver this Agreement. Notwithstanding anything to the contrary contained
herein, this Agreement shall not be binding on Witco unless and until Witco
receives an executed counterpart of this Agreement from Progenics and Witco
signs the signature provision on this Agreement and returns a fully executed
counterpart of this Agreement to Progenics.
If the foregoing terms accurately reflect the agreement between the
parties hereto and meets with your approval, kindly have this Agreement signed
and returned to us at your earliest convenience. We will then have the Agreement
reviewed and, if acceptable, countersigned on behalf of Witco and return to you
a fully executed counterpart for your files.
Sincerely,
Dr. E.L. Xxxxxxx
Witco Corporation
OrganoSilicones Group
Vice President, Research and Development
Agreed to and accepted as of January 1, 1998:
WITCO CORPORATION
By ___________________________________
Name _______________________________
Its________________, duly authorized
PROGENICS PHARMACEUTICALS, INC.
By ___________________________________
Name _______________________________
Its________________, duly authorized
