Exhibit 10.9
TARRYTOWN SUBLEASE AGREEMENT
THIS AGREEMENT, made as of the 13th day of July, 1988, between UNION
CARBIDE CORPORATION, a New York corporation having offices at 00 Xxx Xxxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000 (hereinafter called "Landlord"), and
PROGENICS PHARMACEUTICALS, INC., a New York corporation having offices at 000
Xxxxxxx Xxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
"Tenant"),
WITNESSETH:
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WHEREAS, by lease dated December 31, 1985, as modified by amendments dated
February 28, 1986, August 1, 1986 and March 21, 1988 (said lease, as amended,
being hereinafter called the "Prime Lease"), Landlord has leased from Keren
Limited Partnership (hereinafter called the "Overlandlord") certain space
within the real property of Overlandlord situated along Saw Mill River Road,
partly in the Town of Greenburgh and partly in the Town of Mount Pleasant,
County of Westchester and State of New York, as more particularly identified
in the Prime Lease (hereinafter called the "Site" ); and
WHEREAS, Tenant wishes to sublease from Landlord certain office and
laboratory space, consisting of approximately 3,804 rentable square feet, as
more particularly shown in Exhibit A-1 attached hereto (hereinafter called
the "Premises"), in the Silicones Building located upon the Site, as more
particularly
identified in Exhibit A-2 attached hereto (hereinafter called the "Silicones
Building"); and
WHEREAS, Landlord is willing to sublease the Premises to Tenant upon the
terms and conditions as set forth below;
NOW, THEREFORE, in consideration of the rents reserved hereunder and the
mutual undertakings hereinafter set forth, Landlord and Tenant hereby
covenant and agree as follows:
ARTICLE 1 - LEASED PREMISES
1.1 Landlord hereby subleases to Tenant and Tenant hereby takes and hires
from Landlord, upon and subject to the terms, covenants, conditions and
provisions of this Agreement, the Premises and together with the right to
use, in common with Landlord and other tenants of the Site, at Tenant's sole
risk, (i) access roads, sidewalks and parking areas adjoining the Silicones
Building; (ii) lobby, stairways, elevators, hallways, loading docks,
lavatories, and other common areas of the Silicones Building; and (iii) one
conference room within the Silicones Building, as designated from time to
time by Landlord, subject to its right to schedule any use thereof. Any
exercise of the aforesaid use rights shall be subject to the provisions of
Article 12 as though such facilities were part of the Premises and to any
reasonable and non-discriminatory rules, regulations or restrictions
promulgated from time to time by Landlord for the safety, security,
convenience and operation of the Silicones Building or the Site.
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1.2 Tenant's rights to the possession, occupation and use of the Premises
shall be subject to Landlord's exception and reservation from the Premises of
access and other necessary rights to operate, maintain and repair any utility
or building systems servicing the Silicones Building, whether now existing or
hereafter installed upon the Premises, including without limitation the right
to maintain, repair, replace, change the size of and remove the same;
provided, however, that in exercising any such rights Landlord shall not
unreasonably interfere with Tenant's use of the Premises and Landlord shall
repair and replace the Premises to substantially the same condition existing
prior to any exercise of Landlord's rights.
ARTICLE 2 - TERM OF LEASE
2.1 The term of this Agreement shall commence on August 1, 1988 and shall
expire on July 31, 1991, unless it is sooner terminated as otherwise provided
herein. Prior to said commencement date, Tenant shall have the right to use
any part of the Premises from which Landlord has removed its equipment,
provided that any such use shall be subject to all of the terms, covenants,
conditions and provisions of this Agreement, except the payment of rent.
2.2 Tenant shall have the option to extend the term of this Agreement for
one (1) period of three (3) years, commencing August 1, 1991, upon the same
terms, covenants, conditions and provisions contained herein, except that
there
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exercises said option by written notice given to Landlord not later than
March 31, 1991.
ARTICLE 3 - RENT
3.1 Tenant shall pay to Landlord without notice or demand, in advance on
the first day of each calendar month during the term hereof, without any setoff,
counterclaim or deduction for any reason whatsoever, rent in the amount of
Nine Thousand Five Hundred and Ten Dollars ($9,510.00).
3.2 As of August 1, 1989 and each annual anniversary of said date during
the term of this Agreement and any extension period, the rent as payable
pursuant to Article 3.1 shall be revised and increased in the same proportion
as the increase, if any, in the Consumer Price Index, All Urban Consumers, New
York, New York - Northeastern New Jersey, All Items, issued by the United States
Department of Labor, Bureau of Labor Statistics (hereinafter called the
"CPI") for June immediately preceding such date over the CPI for June, 1988,
by multiplying the rent as set forth in Article 3.1 by a fraction, the
denominator of which shall be the CPI for June 1988 and the numerator of
which shall be the CPI for June immediately preceding such date. In no event
shall the rent for any period as so adjusted be less than the rent for the
immediately preceding period. If the CPI is revised or discontinued, Landlord
shall substitute such other appropriate government shall be no further
extension options, provided that Tenant
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index to obtain insofar as is practicable the same result as would have been
obtained if the CPI had not been revised or discontinued.
3.3 Upon the execution hereof, Tenant shall deliver to Landlord the rent
for August 1988, together with Nineteen Thousand and Twenty Dollars ($19,020.00)
as security for Tenant's full and faithful performance of its obligations
under this Lease. In the event that Tenant fails to fulfill any such
obligations, Landlord shall have the right to apply any or part of said
security deposit against such obligation. Promptly under Landlord's demand,
Tenant shall make any further deposits which may be necessary in order to
replenish any part of the aforesaid security deposit so applied by Landlord.
Upon the expiration of this Agreement, Landlord shall refund to Tenant the
security deposit, without interest, less any deductions heretofore made
hereunder.
ARTICLE 4 - USE
4.1 Tenant may use and occupy the Premises for executive and sales office
and pharmaceutical development purposes, involving protein chemistry, molecular
genetics and cellular biophysics, and for any other lawful purpose incidental
thereto, but for no other purpose. Notwithstanding the aforesaid, in no event
shall Tenant (i) bring or use any AIDS viruses on the Premises or perform any
confirmatory or
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conclusory testing of any drugs or other substances containing such viruses
in connection therewith, (ii) keep any animals upon the Premises except
appropriate facilities for laboratory mice (not exceeding 100 mice at
anytime) in compliance with all governmental requirements or (iii) perform
any work classified as more hazardous than NIH Biohazard Level 2 or without
full compliance with applicable National Institutes of Health and Center for
Disease Control (Atlanta) guidelines and recommended safeguards. Tenant shall
not cause or permit any dangerous, harmful or unhealthful condition or
nuisance to arise or be maintained in, at or on the Premises.
4.2 In its occupation and use of the Premises, Tenant shall comply
fully with all applicable local, State and Federal laws, ordinances, orders,
directives, rules and regulations. Tenant shall not by reason of its use of
the Premises at any time throughout the term of this Agreement violate or
cause to be violated any laws, ordinances, orders, directives or rules or
regulations of any local, State or Federal authorities having jurisdiction
thereof and the reasonable rules and regulations of the carriers insuring the
Premises, or the Board of Fire Underwriters or their equivalent, and such
compliance and observation shall be at Tenant's sole cost and expense. Tenant
shall indemnify and hold harmless Landlord from any
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claims, damages, loss, liability and obligation due to any violation of this
Article 4.2.
4.3 Tenant shall not produce, generate, emit, treat, recycle, store or
dispose of any hazardous or toxic materials, substances or wastes upon the
Premises, except generation and storage of small quantities of hazardous
wastes and the use of low level radioactive materials, all in accordance with
applicable local, State and Federal requirements; provided, however, that any
hazardous wastes shall not be stored upon the Premises for more than ninety
(90) days in any instance so that Tenant shall remain a ninety (90) days
exempt generator.
4.4 Tenant shall not dispose through the Site sewage system any hazardous
or toxic substances, materials or wastes, as determined pursuant to Federal,
State or local statutes, ordinances, regulations or restrictions, which
violate any governmental restrictions imposed upon Landlord's sewage
discharge or which Landlord or Overlandlord reasonably determines to be
harmful to the Site sewage system. In any event, Tenant shall not dispose of
any wastes in the Site sewer system, except in accordance with the
restrictions and limitations set forth in Wastewater Discharge Permit No.
3927 dated May 15, 1987, issued by the County of Westchester Department of
Environmental Facilities, and any amendments, modifications and replacements
thereof.
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4.5 Tenant shall not produce any toxic chemicals for commercial
purposes upon the Premises and shall maintain in place at all times such
procedures as may be required to remove from the Premises any toxic chemicals
produced thereon in a manner which complies with all applicable governmental
laws, ordinances and regulations.
4.6 In its occupation and use of the Premises, Tenant shall comply at a
minimum with any health, safety or operating regulations imposed by Landlord
with respect to the Silicones Building and other areas of the Site under
Landlord's control. Tenant shall be solely and exclusively liable to obtain
any zoning or other local permits necessary for its use of the Premises.
4.7 Landlord reserves the right (i) to require appropriate
identification, including the wearing or possession of prescribed
identification badges, at all times by employees, agents, contractors and
invitees of Tenant upon the Premises; (ii) to restrict entry to the Premises
during periods other than 7 a.m. to 6 p.m., Monday through Friday, except
for laboratory or development work or pursuant to prior written request; and
(iii) to impose such other security measures as may be appropriate.
Notwithstanding the aforesaid, Tenant shall remain solely and exclusively
liable for the security and protection of any property, including
confidential information
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and data, located upon the Premises; provided, however, that the parties
shall cooperate to maintain security and confidentiality within the Silicones
Building.
ARTICLE 5 - REPAIRS AND MAINTENANCE
5.1 Tenant shall take good care of the Premises and, at its sole cost and
expense, shall keep and maintain the interior of the Premises in a clean and
orderly condition and perform all necessary or required maintenance and
repairs thereto, except to the extent any condition is caused by the willful
act or gross negligence of Landlord. Tenant shall not cause or permit any
waste (other than reasonable wear and tear), damage or disfigurement to the
Premises, or any overloading of the floors of the Premises.
5.2 Except with respect to any damage or destruction arising out of the
negligence or willful misconduct of Tenant, its employees, agents or
contractors, Landlord shall make or cause Overlandlord to make all necessary
repairs to the Premises and any Site utility systems servicing the same and
shall perform any necessary snow removal.
ARTICLE 6 - ALTERATIONS
6.1 Tenant shall not make, or permit to be made, any alterations,
additions, installations, substitutions or improvements (hereinafter
collectively called the "Alterations") in or to the Premises without on each
occasion
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first obtaining the prior written consent of Landlord and Overlandlord,
except for (a) minor non-structural changes, not exceeding Two Thousand
Dollars ($2,000.00) in any instance, which will not reduce the value of the
Silicones Building, adversely affect any utility systems, or impair the
building structural integrity, and (b) addition of trade fixtures and
equipment which do not damage the Premises. In performing any work upon the
Premises; Tenant shall comply with all governmental requirements and shall
cause its contractor to maintain builder's risk insurance and such other
insurance (including, without limitation, worker's compensation insurance) as
is then customarily maintained for such work, all with insurers licensed by
the State of New York. Landlord shall not unreasonably withhold its consent
to any non-structural Alterations.
6.2 Any Alterations to the Premises performed pursuant to Article 6.1
shall become part of the Premises and shall not be removed or subsequently
altered; provided, however, that Tenant shall retain title to, including the
right, subject to the provisions of Article 8.2, to remove from the Premises
at any time during the term hereof, any such trade fixtures or equipment used
in Tenant's business which are not necessary for the structural integrity of
the Silicones Building or the operation of the building utility systems.
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ARTICLE 7 - SERVICES AND TAXES
7.1 Landlord shall cause Overlandlord to provide from 8 a.m. to 5 p.m.,
Monday through Friday, except Site holidays, heat, ventilation, air
conditioning, electricity, water, compressed air and distilled water to the
Premises (hereinafter individually and collectively called the "Services")
and such Services at other times as may be necessary for laboratory or
development work. Landlord shall furnish electricity to the Premises
sufficient for normal lighting and operation of light office and laboratory
equipment and in the event that Tenant uses any equipment having a heavy
usage of electricity or otherwise consumes an excessive amount of electricity
on a sustained basis, Landlord reserves the right to increase the rent set
forth in Article 3.1 to reflect any increased power consumption as determined
by a consultant mutually acceptable to the parties and to adjust such
increase periodically in proportion to any electric rate increases.
7.2 Landlord will provide the Services solely in conjunction with the
demise of the Premises and as necessary in order to permit Tenant to enjoy
the full use and occupation thereof. Tenant shall not make available or
resell any Services delivered hereunder to any other party. The Services
provided by Landlord shall not be deemed evidence that it is operating or
holding itself out as a public utility or that it will make available the
Services to any other party.
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7.3 Landlord shall not be liable to Tenant for any claims, damages,
loss or liability due to (i) Landlord's inability or failure to furnish any
of the Services on account of any force majeure occurrence as described in
Article 21.1, (ii) any failure of Overlandlord's utility suppliers to provide
adequate and reliable service which affects Landlord's ability to provide any
of the Services, or (iii) any inability, interruption or curtailment of any
of the Services due to equipment, labor or other problems which do not arise
out of the gross negligence or willful misconduct of Landlord, its employees,
agents or contractors. In no event shall Landlord be liable to Tenant for any
special, indirect, incidental or consequential damages due to any inability,
interruption or curtailment of any of the Services.
7.4 Tenant shall reimburse Landlord, as they become due, for any taxes,
excises or other governmental impositions payable by Landlord (other than
those as measured by net income) which arise due to any payments of rent,
additional rent or other amounts made hereunder.
7.5 Tenant shall pay and discharge when due all income, business, Social
Security and other taxes, levies, impositions and contributions required by
any Federal, State or local authority applicable to Tenant's business
conducted upon the Premises. Tenant shall indemnify and hold harmless Landlord
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from any liability for such taxes, levies, impositions and contributions.
7.6 All payments required to be made by Tenant to Landlord under this
Article 7 shall be payable as additional rent within ten (10) days after
written demand therefor and shall be payable even though the term hereof
(including any extensions) has expired.
ARTICLE 8 - TERMINATION OF LEASE
8.1 At the expiration or earlier termination of the term hereof, Tenant
shall promptly vacate and yield up the Premises, broom clean and in the same
condition of order and repair in which they are required to be kept
throughout the term hereof, reasonable wear and tear excepted.
8.2 Upon the termination of this Agreement, Tenant shall remove all
personal property and any trade fixtures or equipment belonging to Tenant
which it is permitted to remove pursuant to Article 6.2; provided, however,
that in performing such work Tenant shall not impair the structural integrity
or the utility systems of the Silicones Building and that in each instance
Tenant repairs any damages to the Premises due to the installation or removal
of such property. Any trade fixtures, equipment or other property of Tenant
remaining upon the Premises at the expiration or termination of this
Agreement shall be deemed abandoned and may be removed or otherwise
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disposed of by Landlord without any notice or liability or obligation to
Tenant, but Tenant shall remain liable to reimburse Landlord for the cost of
performing any such work.
8.3 Anything to the contrary contained herein notwithstanding, upon the
expiration or other termination of this Agreement, Tenant shall remain liable
at its sole expense: (i) to make any repairs to the Premises as required
hereunder, (ii) to remove and dispose of properly any waste or other debris,
and (iii) to eliminate any nuisances or dangerous, harmful or unhealthful
conditions arising out of Tenant's use of the Premises or the removal of any
property therefrom. In the event that Tenant does not promptly perform any
such work as requested by Landlord, Tenant shall be liable to reimburse
Landlord the cost of so doing.
8.4 Upon the termination of this Agreement, Tenant shall deliver to
Landlord a certificate executed by Tenant's chief executive officer
confirming that Tenant has performed all necessary or appropriate
decontamination procedures upon the Premises so that it will be fit for
general use and occupancy without any exposure to conditions which could
constitute a danger, threat or hazard of bodily injury, sickness or disease.
ARTICLE 9 - SIGNS AND PROPERTY LOSS
9.1 Tenant may, subject to the prior written consent of the Landlord
(which consent shall not be unreasonably withheld) and Overlandlord, install,
at Tenants own cost and expense,
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such signs as it may require to identify Tenant's occupancy of the Premises.
Tenant shall be responsible to repair any damage to the Premises caused by
such installation, and Tenant shall remove such signs at the expiration or
other termination of the term hereof and repair any damage caused by such
removal. Tenant shall fully comply with all requirements of law pertaining to
installation and use of such signs.
9.2 In no event shall Landlord be liable for any loss, theft, or
destruction of any property located upon the Premises or any bodily injury,
death, sickness or disease of any employees, agents, contractors or invitees
of Tenant from any cause whatsoever, including without limitation, the
leakage or escape of any steam, electricity, gas, water, sewage, compressed
air or other utility service, the state of repair of the Plant Site or the
Premises or any latent defect therein; and Tenant shall release and indemnify
and hold harmless Landlord from all claims, damages, losses and liability of
Tenant and its employees, agents, contractors and invitees on account of such
matters, unless such matters are due to the willful act or gross negligence
of Landlord.
ARTICLE 10 - INSPECTION BY LANDLORD
10.1 During normal business hours upon reasonable notice and at any
time in the event of emergency, Tenant shall permit Landlord and Overlandlord
and the agents and contractors of Landlord and Overlandlord to enter the
Premises for the purpose of (i) inspecting the same, (ii) showing the
Premises to any
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prospective tenants or purchasers, or (iii) performing any work as provided
under Article 10.2.
10.2 Landlord, on behalf of itself and Overlandlord, reserves the right
at any time to enter upon the Premises and to make any necessary repairs
thereto, including without limitation any repairs to steam or utility lines,
to maintain a fire watch for insurance purposes or to take any other actions
as may be necessary or appropriate to eliminate any nuisances or any
dangerous, harmful or unhealthful conditions existing thereon. The
reservation of such rights shall not be deemed to be an acknowledgment of or
imply any duty or obligation on the part of Landlord to perform any such
actions, except where the obligation to do so is otherwise specifically set
forth herein. Tenant shall be solely liable for the condition and upkeep of
the Premises.
ARTICLE 11 - ASSIGNMENT AND SUB-LETTING
11.1 Tenant shall not assign this Agreement, sublet all or any part of
the Premises or grant any licenses or other third-party rights in or to the
Premises, without the prior written consent of Landlord and Overlandlord. Any
such assignment, sublease, license or other agreement made without such
consent shall be void. Landlord shall not unreasonably withhold its consent
to any assignment of this Agreement.
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ARTICLE 12 - INDEMNIFICATION AND INSURANCE
12.1 Tenant hereby releases and shall indemnify and hold harmless
Landlord from all claims, damages, loss and liability, including reasonable
attorneys' fees, on account of any bodily injury, sickness, disease, death,
property damage, contamination, pollution or environmental damage or
condition arising out of the occupation, operation or use of the Premises or
the adjoining streets, access roads, parking areas, passageways and loading
docks by Tenant, its employees, agents, contractors, customers or invitees.
12.2 It is understood that Tenant shall be responsible for obtaining or
maintaining insurance coverage for any personal property or fixtures
maintained upon the Premises. Tenant shall release and indemnify and hold
harmless Landlord and Overlandlord from any claims, damages, loss or
liability arising as a result of damage or destruction to such property or
fixtures in the event of a fire or other occurrence or any other condition
now existing or hereafter arising upon the Premises. Tenant shall obtain from
its insurance carriers a waiver of the right of subrogation against Landlord
for any loss or damage by fire or any other cause within the scope of said
fire and extended coverage insurance policies. If after using its best
efforts, Tenant is unable to obtain a waiver of subrogation from any of its
insurers, it shall give written
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notice thereof to Landlord and shall have no further obligation with respect
to obtaining a waiver of subrogation with respect to the applicable insurance
policy until it is replaced.
12.3 At its sole cost and expense, Tenant shall maintain and keep in
effect throughout the term of this Agreement, insurance against claims for
bodily injury (including sickness, disease and death) and property damage
occurring upon, in or about the Premises and the adjoining streets, access
roads, parking areas and passageways, under policies of comprehensive public
liability insurance, including broad form contractual liability and
automobile insurance, with limits of not less than THREE MILLION DOLLARS
($3,000,000) per occurrence for one (1) person, THREE MILLION DOLLARS
($3,000,000) per occurrence for two (2) or more persons, and THREE MILLION
DOLLARS ($3,000,000) for property damage. The aforesaid minimum insurance
limits shall in no way limit or diminish Tenant's liability to Landlord
pursuant to Article 12.1.
12.4 At its sole cost and expense, Tenant shall maintain and keep in
effect during the term hereof worker's compensation and employer's liability
insurance in the minimum amounts as required by law.
12.5 Upon the execution hereof, Tenant shall furnish to Landlord
certificates of insurance as evidence of the insurance coverage required
under Articles 12.2, 12.3 and 12.4, and each
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such policy of insurance shall provide that it shall not be amended, modified
or cancelled, except upon thirty (30) days' prior written notice to Landlord.
12.6 In no event shall Landlord be liable to Tenant for any special,
indirect, incidental or consequential damages on account of any default by
Landlord under this Agreement or any claims, damages or losses of Tenant
arising out of its possession, occupation, operation or use of the Premises.
ARTICLE 13 - DEFAULT
13.1 Each of the following shall be deemed a default by Tenant and a
breach of this Agreement:
(a) (i) filing of a petition for adjudication as a bankrupt, or for
reorganization, which is not dismissed within ninety (90) days or for an
arrangement under any Federal or State statute;
(ii) dissolution or liquidation of Tenant, without the transfer to
and assumption by a financially responsible third-party of this Agreement;
(iii) appointment of a permanent or temporary receiver or a
permanent or temporary trustee of all or substantially all the property of
Tenant;
(iv) taking possession of the property of Tenant by a governmental
officer or agency pursuant to statutory authority for dissolution,
rehabilitation, reorganization or liquidation; and
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(v) making by Tenant of an assignment for the benefit of
creditors.
If any event mentioned in this subdivision (a) shall occur, Landlord may
thereupon or at any time thereafter elect to cancel this Agreement upon
twenty (20) days' prior written notice to Tenant and this Agreement shall
terminate on the day in such notice specified with the same force and effect
as if that date were the date herein fixed for the expiration of the term of
this Agreement.
(b) (i) Default in the payment of the rent or additional rent
herein reserved or any part thereof for a period of ten (10) days
after receipt of written notice concerning such default.
(ii) Default in the performance of any other covenant or condition
of this Agreement on the part of Tenant to be performed for a period of
twenty (20) days after written notice from Landlord specifying the nature
of such default. For purposes of this subdivision (b)(ii), no default
on the part of Tenant in performance of work required to be performed or
acts to be done shall be deemed to exist if after receipt of the aforesaid
notice Tenant diligently takes action to rectify the same and prosecutes
such action to completion with reasonable diligence, subject, however, to
unavoidable delays.
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13.2 In case of any such default under Article 13.1(b) and at any time
thereafter following the expiration of the respective grace periods
above-mentioned, Landlord may serve a notice upon the Tenant electing to
terminate this Agreement upon a specified date not less than ten (10) days
after the date of serving such notice and this Agreement shall expire on the
date so specified as if that date had been originally fixed as the expiration
date of the term herein granted and all rent and additional rent applicable
to the balance of the term hereof shall thereupon become due and payable.
However, a default under Article 13.1(b) shall be deemed waived if such
default is cured before the date specified for termination in the notice of
termination served on Tenant pursuant to this Article 13.2.
13.3 In the event this Agreement shall be terminated pursuant to this
Article 13, or by summary proceedings or otherwise, Landlord may, in its own
name and in its own behalf, relet the whole or any portion of the Premises,
for any period equal to or greater or less than the remainder of the then
current term for any sum which it may deem reasonable, to any Tenant which it
may deem suitable and satisfactory, and for any use and purpose which it may
deem appropriate, and in connection with any such lease Landlord may make
such changes in the character of the improvements on the Premises as
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Landlord may determine to be appropriate or helpful in effecting such lease
and may grant concessions or free rent. However, in no event shall Landlord
be under any obligation to relet the Premises, or to pay Tenant any surplus
of any sums received by Landlord on a reletting of the Premises in excess of
the rent reserved in this Agreement.
13.4 All remedies specified in this Article 13 shall be non-exclusive
and Landlord's reliance upon such remedies shall not preclude it from
availing itself of any other rights or remedies which it may have at law or
in equity.
ARTICLE 14 - FIRE AND CASUALTY
14.1 In the event of any fire or other casualty which damages or
destroys less than fifty percent (50%) of the usable area of the Silicones
Building, including any part of the Premises, then, upon receipt of insurance
proceeds (whether or not the same are sufficient to pay for such repair and
reconstruction) by Overlandlord or the denial of liability by its applicable
insurer, Landlord shall cause Overlandlord to promptly repair and restore the
Premises pursuant to the Prime Lease, and the rent and additional rent shall
be equitably reduced as to such portion of the Premises which shall be
untenantable or unfit for occupancy by Tenant in the conduct of its business,
from the date of such destruction until the completion of such repairs and
reconstruction.
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14.2 In the event of any fire or other casualty which damages or
destroys more than fifty percent (50%) of the usable area of the Silicones
Building, including any part of the Premises, then (i) upon the receipt of
insurance proceeds by Overlandlord or the denial of liability by its
insurance carrier, Landlord shall seek to have Overlandlord promptly repair
and restore the Silicones Building; and (ii) if Overlandlord fails or refuses
to perform such work, Landlord shall have the right to cancel and terminate
this Agreement by written notice given to Tenant within sixty (60) days after
such casualty. If Landlord does not duly exercise such termination right,
Landlord and Tenant shall cooperate in good faith to repair and restore such
damage or destruction, including, without limitation, obtaining
Overlandlord's approval for any repair or restoration work, and to the extent
Overlandlord's insurance proceeds are not available. Tenant shall bear any
costs associated with repair and restoration of the Premises.
14.3 In the event that any repair or restoration work undertaken
pursuant to Article 14.1 or 14.2 cannot be completed within ninety (90) days
after the appliable casualty, and provided that (i) the Premises have been
rendered substantially untenantable by such casualty, and (ii) said casualty
has not arisen out of the willful act or negligence Of Tenant, its
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employees, agents or contractors, then Tenant shall have the right to cancel
and terminate this Agreement by written notice given to Landlord within ten
(10) days after the expiration of the aforesaid ninety (90) day period.
14.4 Except as otherwise specifically provided in this Article 14, in
no event shall Landlord have any liability or obligation to Tenant with
respect to the repair or restoration of the Premises or any other property of
Tenant located upon the Premises due to any fire or other occurrence, nor
shall any damage to or destruction of the Premises or the Silicones Building
cause any reduction or abatement of rent or additional rent. In the event
this Agreement is cancelled pursuant to Article 14.2 or 14.3, then Tenant
shall remain obligated promptly to remove or eliminate any nuisance or
dangerous, harmful or unhealthful condition then existing on or about the
Premises due to its use thereof.
ARTICLE 15 - CONDEMNATION
15.1 If due to any condemnation or taking by any public or quasi-public
authority or other party having the right of eminent domain, more than fifty
percent (50%) or more of the usable area of the Silicones Building is taken,
then Landlord (including Overlandlord pursuant to the Prime Lease) or Tenant
may terminate this Agreement by giving written notice to Tenant within
forty-five (45) days after Landlord receives notice of such taking. Rent and
additional rent shall be apportioned to the date title vests in the taking
authority.
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15.2 In the event of any partial taking which does not cause a
termination of this Agreement pursuant to Article 15.1, then the rent and
additional rent shall xxxxx in the same proportion that the area of the
Premises taken bears to the area of the Premises prior to such condemnation.
15.3 Subject to the rights of the holder of any first mortgage then
encumbering the Silicones Building and the cooperation of Overlandlord,
Landlord and Tenant shall be entitled to share any separate condemnation
award for relocation and moving costs in the same proportion which the
respective space taken controlled by each bears to the total rentable area of
the Silicones Building.
ARTICLE 16 - RELATIONSHIP OF PARTIES
16.1 The execution of this Agreement shall not be deemed to create a
partnership, agency or other business relationship between Landlord and
Tenant, other than the tenancy created hereunder, and Tenant shall be solely
and exclusively liable for all claims, damages, losses, liabilities and
obligations arising out of the conduct of its business upon the Premises,
including the payment of all taxes with respect thereto.
ARTICLE 17 - NOTICES
17.1 Any notices or communications required or permitted hereunder
shall be deemed sufficiently given if sent by commercial courier service or
United States Postal Service, certified mail, postage prepaid, return receipt
requested, to
- 25 -
the respective parties at the following addresses:
if to Landlord:
Union Carbide Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: Director, Corporate Real Estate
with a copy to:
Union Carbide Corporation
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Site Administrator
if to Tenant:
Progenics Pharmaceuticals, Inc.
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: President
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party may change the persons or addresses to which notice or other
communications are to be sent to it by giving written notice of any such
changes in the manner provided herein for giving notice.
ARTICLE 18 - COVENANT AGAINST LIENS; SUBORDINATION
18.1 Tenant shall not encumber, or suffer or permit to be encumbered,
the Premises, the Silicones Building or the Site by any lien, charge or
encumbrance, and Tenant shall have no authority to mortgage or hypothecate
this Agreement in any way
- 26 -
whatsoever. The violation of this Article shall be considered a breach of
this Agreement. Within thirty (30) days after notice thereof, Tenant shall
satisfy or otherwise caused to be removed of record any mechanic's,
materialmen's or other lien or encumbrance filed against the Premises arising
out of its occupancy and use thereof.
18.2 This Agreement shall be subject and subordinate to the Prime Lease
and all mortgages, now or hereafter affecting the Silicones Building or the
underlying land (such lease and all of such mortgages being hereinafter
collectively referred to as "Superior Mortgages"). Tenant shall execute and
deliver any instrument confirming such subordination which Landlord or the
holders of any Superior Mortgages reasonable request. Upon any termination of
the Prime Lease, at the request of Overlandlord, Tenant shall attorney to and
recognize Overlandlord as landlord hereunder. Except as otherwise provided in
the immediately preceding sentence, any termination of the Prime Lease shall
cause a simultaneous termination of this Agreement. Except in the event
Landlord exercises its termination rights as provided in Articles 2.2, 14.1
or Article 15.1, Landlord shall not surrender or voluntarily terminate the
Prime Lease and shall duly perform its obligations thereunder other than
those obligations which Tenant is obligated to perform pursuant to this
Agreement.
- 27 -
ARTICLE 19 - CONDITION OF PREMISES
19.1 Tenant has inspected the Premises and accepts the same "as is,"
without any reliance upon any representation, warranty or guarantee, either
express or implied, by Landlord, its employees or agents as to the condition or
state of repair of the Premises, except as set forth in Article 19.3. For all
purposes hereunder, the Premises shall include any furniture or equipment as
identified in Exhibit B attached hereto.
19.2 Except as otherwise specifically set forth herein, LANDLORD MAKES NO
REPRESENTATIONS, WARRANTIES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO
THE PREMISES OR ANY PROPERTY OR FIXTURES OF LANDLORD LOCATED THEREON. NO
WARRANTY OR GUARANTEE SHALL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM
COMMERCIAL CODE (OTHER THAN THE WARRANTY OF TITLE AS PROVIDED UNDER THE
UNIFORM COMMERCIAL CODE) OR OTHERWISE AS TO THE PREMISES OR ANY PROPERTY OR
FIXTURES OF LANDLORD LOCATED UPON THE PREMISES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OR MERCHANTABILITY OR WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE.
19.3 Tenant hereby ratifies and confirms that (i) the Silicones Building
contains asbestos as more particularly disclosed in Exhibit C attached
hereto, (ii) it is willing to accept and assume any risk of exposure to
asbestos by its employees, agents, contractors, customers and invitees while
they are in the Premises and/or the Silicones Building, and
- 28 -
(iii) it will release and indemnify and hold harmless Landlord from all
claims, damages, loss and liability, including reasonable attorneys' fee, on
account of any bodily injury, sickness, disease or death arising out of said
exposure. Tenant shall have the right to cancel and terminate this Agreement
within thirty (30) days from the date hereof upon presentation to Landlord of a
certification from a duly qualified consultant that conditions within the
Premises or the Building are not within the permissible exposure limits to
asbestos of the Federal Occupational Health and Safety Administration.
ARTICLE 20 - TENANT'S CERTIFICATE
20.1 Tenant shall, at any time and from time to time, within ten (10)
days after Landlord's written request, execute, acknowledge and deliver to
Landlord a written instrument in recordable form certifying that this
Agreement is in full force and effect, and if modified, stating the
modifications and the dates to which the rent and additional rent and other
charges have been paid in advance, if any, and stating whether or not to the
best knowledge of Tenant, Landlord is in default in the performance of any
covenant, agreement or condition contained in this Agreement and, if so,
specifying each such default of which Tenant may have knowledge. Tenant shall
be entitled to receive a similar certificate from Landlord according to the
provisions of this Article 20.1, MUTATIS MUTANDIS.
- 29 -
ARTICLE 21 - FORCE MAJEURE
21.1 Except for the obligations of Tenant to pay rent, additional rent and
other charges as in this Agreement provided, the period of time during which
Landlord or Tenant is prevented from performing any act required to be
performed under this Agreement by reason of fire, flood, hurricanes, strikes,
lock-outs or other industrial disturbances, explosions, civil commotion, acts
of God or the public enemy, government prohibitions or preemptions,
embargoes, inability to obtain material or labor, the act of default of the
other party, or other events beyond the reasonable control of Landlord or
Tenant, as the case may be, and which event makes performance hereunder
commercially impracticable, shall be added to the time for performance of
such act.
ARTICLE 22 - QUIET ENJOYMENT
22.1 If and so long as Tenant shall pay the rent and additional rent
reserved hereunder and shall perform and observe all the terms, covenants and
conditions on the part of Tenant to be performed and observed, Landlord
covenants that Tenant shall lawfully and quietly hold, occupy and enjoy the
Premises, subject, however, to the provisions of this Agreement.
ARTICLE 23 - WAIVER
23.1 No consent or waiver, express or implied, by Landlord
- 30 -
to or of any breach or default in the performance by Tenant of Tenant's
obligations hereunder shall be deemed or construed to be a consent or waiver
of any other breach or default in the performance by Tenant of the same or
any other obligations of Tenant hereunder. Failure on the part of Landlord to
complain of any act or failure to act of Tenant or to declare Tenant in
default, irrespective of how long such act or failure continues, shall not
constitute a waiver by Landlord of its rights hereunder.
ARTICLE 24 - SUBSTITUTED SPACE; EXPANSION RIGHTS
24.1 Landlord reserves the right, upon not less than thirty (30) days'
prior written notice, to substitute for any part of the Premises other office
or laboratory space within the Silicones Building having total rentable area
equivalent to the total rentable area of that part of Premises so replaced
and Landlord and Tenant shall promptly execute a suitable amendment to this
Agreement modifying the Premises to reflect such substitution for all
purposes hereunder. In no event shall any such substitution affect less than
2,000 rentable square feet of space or occur more than twice during the term
of this Agreement, including any extension terms. Landlord shall bear any
moving expenses, including without limitation telecommunications cost,
associated with such substitution of space.
- 31 -
24.2 Upon not less than sixty (60) days' prior written notice from Tenant
to Landlord, given from time to time during the term hereof, including any
extension periods, advising Landlord of the type and quantity of space
required, Landlord shall designate, subject to availability, up to a
cumulative total of 5,000 rentable square feet in the Silicones Building for
future use by Tenant. By written notice to Landlord given within thirty (30)
days after receipt of notice of such designation, and subject to the prompt
execution of a suitable amendment to this Agreement, Tenant may sublease such
designated space at the then effective rental rate hereunder and subject to
all other terms, covenants, conditions and provisions of this Agreement.
ARTICLE 25 - BROKERAGE FEES
25.1 Landlord and Tenant acknowledge that no real estate broker or agent
or other party is entitled to any brokerage fee, commission or other
compensation on account of this Agreement or any transaction contemplated
hereunder. Tenant shall indemnify and hold harmless Landlord from all claims,
damages, loss or liability of Landlord for any brokerage fee, commission or
other compensation owing to any party claiming to represent Tenant hereunder.
Landlord shall indemnify and hold harmless Tenant from all claims, damages,
loss or liability of Tenant for any brokerage fee, commission or other
compensation owing to any party claiming to represent Landlord hereunder.
- 32 -
ARTICLE 26 - CAPTIONS
26.1 The captions of the Articles of this Agreement are for the
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
ARTICLE 27 - GOVERNING LAW
27.1 The validity, interpretation and performance of this Agreement shall
be governed according to the laws of the State of New York applicable to
agreements made and to be performed entirely in that state, without reference
to any conflict of laws rules or principles.
ARTICLE 28 - CONSENT OF OVERLANDLORD
28.1 This Agreement shall not become effective unless and until Overland
consents hereto and Landlord shall use reasonable, diligent efforts to obtain
Overlandlord's consent; provided, however, that any such consent shall be
deemed retroactive to the date hereof and that as between Landlord and Tenant
this Agreement shall govern their respective rights and obligations for any
period during which Tenant remains in possession of the Premises.
ARTICLE 29 - SERVICES
29.1. Landlord, at its expense, shall furnish janitorial services
commensurate with normal office use. Tenant shall reimburse Landlord,
promptly upon demand, for any additional expense for janitorial services
incurred by Landlord as a
- 33 -
result of any neglect or unusual use of the Premises by Tenant.
29.2. Landlord shall provide to Tenant and its employees, as applicable,
those services as set forth in Exhibit D attached hereto (hereinafter called
the "Miscellaneous Services"). Within ten (10) days after the presentation of
an invoice therefor, Tenant shall reimburse Landlord for the Miscellaneous
Services based upon the rates and charges set forth in Exhibit D. Landlord
shall have no liability to Tenant or its employees with respect to the
Miscellaneous Services furnished pursuant hereto and Tenant shall indemnify
and hold harmless Landlord from any claims or damages of Tenant's employees
arising out of their use of any of the Miscellaneous Services. Landlord
reserves the right to cancel or terminate any of the Miscellaneous Services
at any time upon thirty (30) days' prior written notice and in such event
Landlord shall not be liable to Tenant for any claims of default, partial or
constructive eviction or otherwise.
29.3. Landlord shall make available to Tenant UNICOM telephone services in
the Premises and Tenant shall reimburse Landlord within ten (10) days after
presentation of an invoice therefor (including suitable documentation) for
the cost of such services based upon the designated rental charges per
instrument, actual unit charges for local, toll and other calls and
applicable taxes.
- 34 -
29.4. Landlord shall not be liable to Tenant for interruption or
curtailment of any services to be furnished by Landlord under this Agreement,
resulting partly or wholly from any cause beyond Landlord's reasonable
control or by reason of repairs to or changes in the Silicones Building which
Landlord is required to make or deems necessary.
ARTICLE 30 - ENTIRE AGREEMENT
30.1 This Agreement contains all the promises, agreements, conditions
and understandings between Landlord and Tenant with respect to the subleasing
of the Premises and there are no promises, agreements, conditions or
understandings, either written or oral, between them concerning the
subleasing of the Premises other than as set forth herein. No amendment,
modification or addition to this Agreement shall be effective unless it is
contained in a written agreement executed by authorized representatives of
both parties.
30.2 The covenants, conditions and agreements contained in this Agreement
shall bind and inure to the benefit of the
- 35 -
parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be
executed by their duly authorized representatives as of the day and year
first above written.
UNION CARBIDE CORPORATION
By /s/ X.X. Xxxxxx
--------------------------------
Title DIRECTOR GENERAL SERVICES
-----------------------------
PROGENICS PHARMACEUTICALS, INC.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title PRESIDENT
-----------------------------
- 36 -
EXHIBIT A-1
The Premises shall consist of those offices and laboratories located upon
the third floor in the Silicones Building as shown by striations on the diagram
attached hereto.
[FLOORPLAN]
Silicones Building
Third Floor
EXHIBIT A-2
[MAP]
EXHIBIT B
Furniture and Equipment
Three (3) desks
Three (3) desk chairs
Three (3) credenzas
Three (3) file cabinets
Six (6) arm chairs
EXHIBIT C
Asbestos Disclosure
Silicones Building:
Steam and hot water pipes are asbestos covered and
pipes are encapsulated. All structural steel in the building
is sprayed with asbestos insulation and not encapsulated, with
some overspraying on concrete surface. In addition, in the
Silicones Building many of the offices have a dropped ceiling
consisting of one foot squares using styletone BHAF ceiling
tiles. These ceiling tiles are solid but may have asbestos.
EXHIBIT D
Miscellaneous Services
Service Charges
------------------------------- -------
Cafeteria (Breakfast and Lunch) Published rates based on usage.
Xxxxxx and Maintenance Published rates based on usage.
Conference Dining Published rates based on usage.
Lobby Receptionist None.
Site Technical Library None.
(visiting privileges only)
Amendment of Sublease
THIS AMENDMENT OF LEASE dated November 17, 1988,
between UNION CARBIDE CORPORATION, a New York corporation
having an office at 00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx
00000-0000 (the "Landlord"), and PROGENICS PHARMACEUTICALS,
INC., a New York corporation having an office at
Old Saw Mill River Rd. X.X. Xxx #000 Xxxxxxxxx, XX 00000
(the "Tenant").
RECITALS
1. Reference is made to that certain Tarrytown Sublease
Agreement, dated as of July 13, 1988, between Landlord and
Tenant (the "Sublease") (capitalized terms not otherwise
defined herein have the meanings ascribed to them in the
Sublease).
2. Landlord and Tenant wish to amend the Sublease to
lease additional space to Tenant for additional consideration
all as provided in this Agreement.
AGREEMENT
In consideration of the rent reserved hereunder and the
mutual covenants and undertakings provided for herein Landlord
and Tenant hereby agree as follows:
1. ADDITIONAL LEASED SPACE. The Premises are hereby
amended to comprise that space which is particularly identified
on Exhibit A hereto.
2. INCREASE IN RENT. The monthly rent payable by Tenant
pursuant to Section 3.1 of the Sublease is hereby increased to
Ten Thousand One Hundred Sixty-Five Dollars ($10,165.00).
-2-
3. EFFECTIVE DATE OF THIS AGREEMENT. This Agreement shall
become effective as of 12.01 a.m. on December 1, 1988, subject,
however, to the granting by Overlandlord of its consent to this
Agreement.
4. RATIFICATION. As amended hereby, Landlord and Tenant
hereby ratify and confirm all of the terms and provisions of
the Sublease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Agreement as of the day and year first above written.
UNION CARBIDE CORPORATION
By: /s/ X.X. XXXXXX
-------------------------------
Name: X.X. Xxxxxx
---------------------------
Title: Director, General Services
---------------------------
PROGENICS PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------
Title: President
---------------------------
EXHIBIT A
The Premises shall consist of those offices, laboratories
and closet located on the third floor in the Silicones Building
as shown by striations on the floor plan attached hereto and
made a part hereof.
[Chart]
CONSENT
Keren Limited Partnership, as landlord under that certain
Lease, dated December 31, 1985 (as modified by amendments dated
February 28, 1986, August 1, 1986 and March 21, 1988), between
Keren Limited Partnership, as landlord, and Union Carbide
Corporation, as tenant, hereby consents to all of the terms and
provisions of that certain Amendment of Sublease,
dated November 17, 1988, between Union Carbide Corporation,
as landlord, and Progenics Pharmaceuticals, Inc., as tenant.
KEREN LIMITED PARTNERSHIP
By: /s/ X.X. Xxxxx
---------------------------
Name: X.X. Xxxxx
------------------------
Title: Executive Vice President
------------------------
AMENDMENT OF SUBLEASE
THIS AMENDMENT OF LEASE dated June 1, 1989, between UNION
CARBIDE CORPORATION, a New York corporation having an office at
00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000 (the
"Landlord"), and PROGENICS PHARMACEUTICALS, INC., a New York
corporation having an office at Old Saw Mill River Road,
X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (the "Tenant").
RECITALS
1. Reference is made to that certain Tarrytown Sublease
Agreement, dated as of July 13, 1988 (as modified by Amendment
dated November 17, 1988) between Landlord and Tenant (the
"Sublease") (capitalized terms not otherwise defined herein
have the meanings ascribed to them in the Sublease).
2. Landlord and Tenant wish to amend the Sublease to lease
additional space to Tenant for additional consideration all as
provided in this Agreement.
AGREEMENT
In consideration of the rent reserved hereunder and the mutual
covenants and undertakings provided for herein, Landlord and Tenant
hereby agree as follows:
1. ADDITIONAL LEASED SPACE. The Premises are hereby amended to
comprise that space which is particularly identified on
Exhibit A hereto (4,334 square feet).
2. INCREASE IN RENT. The monthly rent payable by Tenant pursuant
to Section 3.1 of the Sublease is hereby increased to
Ten Thousand Eight Hundred Thirty Five Dollars ($10,835)
monthly.
3. EFFECTIVE DATE OF THIS AGREEMENT. This Agreement shall become
effective as of 12:01 a.m. on June 1, 1989, subject, however,
to the granting by Overlandlord of its consent to this
Agreement.
4. RATIFICATION. As amended hereby, Landlord and Tenant hereby
ratify and confirm all of the terms and provisions of the
Sublease.
-2-
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Agreement as of the day and year first above written.
UNION CARBIDE CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director, Corporate Real Estate
PROGENICS PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-3-
EXHIBIT A
The Premises shall consist of those offices, laboratories, and
closet located on the third floor in the Silicones Building as
shown by striations on the floor plan attached hereto and made a
part hereof.
-4-
AMENDMENT OF SUBLEASE
UNION CARBIDE CORPORATION (Landlord)
PROGENICS PHARMACEUTICALS, INC. (Tenant)
[Chart]
-5-
CONSENT
Keren Limited Partnership, as landlord under that certain
Lease dated December 31, 1985 (as modified by Amendments dated
February 28, 1986; August 1, 1986; March 21, 1988; and August 1,
1988) between Keren Limited Partnership, as landlord, and Union
Carbide Corporation, as tenant, hereby consents to all of the
terms and provisions of that certain Amendment of Sublease, dated
June 1, 1989, between Union Carbide Corporation, as landlord, and
Progenics Pharmaceuticals, Inc., as tenant.
KEREN LIMITED PARTNERSHIP
By:
-----------------------------
Name: X. X. Xxxxxxxx
Title: Executive Vice President
-6-
THIRD AMENDMENT OF SUBLEASE
THIS AMENDMENT OF SUBLEASE dated December 1, 1989, between
UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC. (formerly Union
Carbide Corporation), a New York corporation having an office at 00
Xxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000 (the
"Landlord"), and PROGENICS PHARMACEUTICALS, INC., a New York
corporation having an office at Old Saw Mill River Road, X.X. Xxx
000, Xxxxxxxxx, Xxx Xxxx 00000 (the "Tenant").
RECITALS
1. Reference is made to that certain Tarrytown Sublease Agreement,
dated as of July 13, 1988, as modified by Amendment dated
November 17, 1988 and June 1, 1989, between Landlord and Tenant
(the "Sublease") (capitalized terms not otherwise defined herein
have the meanings ascribed to them in the Sublease).
2. Landlord and Tenant wish to amend the Sublease to lease
additional space to Tenant for additional consideration all as
provided in this Amendment.
AGREEMENT
In consideration of the rent reserved hereunder and the
mutual covenants and undertakings provided for herein, Landlord and
Tenant hereby amend the Sublease as follows:
1. ADDITIONAL LEASED SPACE. The Premises are hereby amended to
include Laboratories #312 and #331, containing 1,720 square
feet, in the Silicones Building as more particularly shown on
Exhibit A attached hereto. Tenant shall use such space for
storage purposes only.
2. EFFECTIVE DATE OF THIS AGREEMENT. This Agreement shall
become effective as of 12:01 a.m. on December 15, 1989,
subject, however, to the granting by Overlandlord of its
consent to this Amendment. Notwithstanding the lack of
required consent, for any period during which Tenant remains
in possession of the Premises, this Amendment shall be an
effective agreement between Landlord and Tenant.
3. PARTIAL TERMINATION. Either party shall have the right to
terminate the Sublease with respect to Laboratories #312 and
#331 upon not less than forty-five (45) days' prior written
notice to the other party. Upon the expiration of said
notice period (the "Termination Date"), Tenant shall have no
further rights with respect to Laboratories #312 and #331 and
Landlord shall have the right to enter such laboratories, to
take possession thereof, to remove Tenant's property
therefrom and to dispose of such property at Tenant's
expense, which shall be payable as additional rent under the
Sublease.
4. SURRENDER. Prior to the Termination Date, Tenant shall
vacate and surrender Laboratories #312 and #331 pursuant to
the provision of Article 8 of the Sublease as though the
Sublease had terminated and perform any necessary
decontamination work pursuant to Section 8.4.
5. RATIFICATION. As amended hereby, Landlord and Tenant hereby
ratify and confirm all of the terms and provisions of the
Sublease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Amendment as of the day and year first above written.
UNION CARBIDE CHEMICALS AND
PLASTICS COMPANY INC.
BY: /s/ XXXXXX X. XXXXXXX
-------------------------------
NAME: Xxxxxx X. Xxxxxxx
TITLE: Director, Corporate Real Estate
PROGENICS PHARMACEUTICALS, INC.
BY: /s/ XXXXXXX X. XXXXXXX
--------------------------------
NAME: Xxxxxxx X. Xxxxxxx
TITLE: Executive Vice President
"EXHIBIT A"
THIRD
AMENDMENT OF SUBLEASE
UNION CARBIDE CORPORATION (Landlord)
PROGENICS PHARMACEUTICALS, INC. (Tenant)
December 1, 1989
[Chart]
FOURTH AMENDMENT OF SUBLEASE
THIS AMENDMENT, made as of November 20, 1991, between UNION
CARBIDE CHEMICALS AND PLASTICS COMPANY INC. (formerly Union
Carbide Corporation), a New York corporation having an office
at 00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000
("Landlord"), and PROGENICS PHARMACEUTICALS, INC., a New York
corporation having an office at Old Saw Mill River Road, X.X.
Xxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Tenant").
RECITALS
1. Reference is made to that certain Tarrytown Sublease
Agreement dated as of July 13, 1988, as modified by Amendment
of Sublease dated November 17, 1988, Second Amendment of
Sublease dated June 1, 1989 and Third Amendment of Sublease
dated December 1, 1989 (said sublease, as amended, being called
the "Sublease") between Landlord and Tenant.
2. Tenant has vacated and surrendered the laboratory
space added to the Sublease under the Third Amendment.
3. Landlord and Tenant wish to amend the Sublease to
lease additional space to Tenant for additional consideration,
all as provided in this Amendment.
AGREEMENT
In consideration of the rent reserved hereunder and the
mutual covenants and undertakings provided for herein,
effective January 1, 1992, Landlord and Tenant hereby amend the
Sublease as follows:
1. ADDITIONAL LEASED SPACE. The Premises shall be
enlarged to include the following space (approximately 5,759
rentable square feet), which space shall increase the area of
the Premises to 10,093 total rentable square feet, and which
space shall be used only for the purposes set forth below and
in accordance with the further restrictions of Article 4 of the
Lease:
(i) Laboratories 311, 312, 331 and 333 on the Third
Floor of the Silicones Building as shown on
Exhibit A attached hereto, which shall be used
for laboratory purposes.
(ii) Office 320 on the Third Floor and Office 244,
246, 247, 251 and 255 on the Second Floor of the
Silicones Building as shown on Exhibit A attached
hereto, which shall be used for office purposes
only.
It is understood and agreed that the additional lab and office
space on the said Third Floor will be made available to Tenant
effective January 1, 1992, and that the additional office space
on the said Second Floor will be made available to Tenant
effective April 1, 1992.
2. INCREASE IN RENT. The rent payable pursuant to
Article 3.1 of the Lease shall be increased effective April 1,
1992 by $16,917.06 so that as of said date $29,648.19 shall be
payable as rent as of the first day of each month during the
term hereof.
3. OPTION TO EXTEND. Landlord hereby grants to Tenant
the option to extend the term of the Lease for the Premises (as
modified by this Fourth Amendment of Lease) for the period from
- 2 -
August 1, 1994 through December 30, 1997 upon the same terms
and conditions as set forth in the Lease, as modified hereby,
provided that (i) Tenant is not in default beyond the
applicable cure period at the time it exercises said option,
and (ii) Tenant exercises said option by written notice given
to Landlord on or before April 1, 1994.
4. SUBSTITUTED SPACE; EXPANSION RIGHTS. Articles 24.1 and
24.2 are hereby deleted from the Lease.
5. RELEASE. To the extent it may validly be able to do
so, and without recourse against Landlord, Landlord hereby
assigns to Tenant the benefit of Overlandlord's release as set
forth in Paragraph 8(d) of the Prime Lease, subject, however,
to the provisions thereof.
6. LEASEHOLD IMPROVEMENTS. Tenant, at its sole cost and
expense, shall have the right to make non-structural
improvements and alterations to the Premises pursuant to
Article 6 of the Sublease.
7. EFFECTIVENESS OF THIS AGREEMENT. This Amendment shall
become effective as of 12:01 a.m. on January 1, 1992, subject,
however, to Overlandlord's consent to this Amendment.
Notwithstanding the lack of required consent, for any period
during which Tenant remains in possession of the space added to
the Premises under this Amendment, this Amendment shall be an
effective agreement between Landlord and Tenant.
- 3 -
8. RATIFICATION. As amended hereby, Landlord and Tenant
hereby ratify and confirm all of the terms and provisions of
the Sublease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Amendment as of the day and year first above written.
UNION CARBIDE CHEMICALS AND
PLASTICS COMPANY INC.
By /s/ R.E. XXXXXXX
---------------------------------
R.E. Xxxxxxx, Director,
Corporate Real Estate
PROGENICS PHARMACEUTICALS, INC.
By /s/ XXXXXXX XXXXXXX
---------------------------------
Title President
1/25/91
- 4 -
EXHIBIT A
[Chart]
EXHIBIT A
[Chart]
CONSENT
Keren Limited Partnership, as landlord under that certain
Lease, dated December 31, 1985, as amended, between Keren
Limited Partnership, as landlord, and Union Carbide Corporation
(now Union Carbide Chemicals and Plastics Company Inc.), as
tenant, hereby consents to all of the terms and provisions of
that certain Fourth Amendment of Sublease, dated November 20,
1991, between Union Carbide Chemicals and Plastics Company
Inc., as landlord, and Progenics Pharmaceuticals, Inc., as
tenant.
KEREN LIMITED PARTNERSHIP
By: NAME ILLEGIBLE
------------------------------
Name:
Title: Executive Vice President
FIFTH AMENDMENT OF SUBLEASE
THIS AMENDMENT, made as of June 9, 1994, between UNION
CARBIDE CHEMICALS AND PLASTICS COMPANY INC. (formerly Union Carbide
Corporation), a New York corporation having an office at 00 Xxx Xxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called "Landlord"), and PROGENICS
PHARMACEUTICALS, INC., a New York corporation having an office at Old Saw Mill
River Road, X.X. Xxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter called
"Tenant").
WITNESSETH;
WHEREAS, Landlord and Tenant have executed a Tarrytown Sublease
Agreement dated July 13, 1988, as amended by Amendment of Sublease dated
November 17, 1988, Second Amendment of Sublease dated June 1, 1989, Third
Amendment of Sublease dated December 1, 1989, and Fourth Amendment of Sublease
dated November 20, 1991 (said sublease, as amended, being hereinafter
collectively called the "Sublease"); and
WHEREAS, Tenant wishes to amend certain terms of the Sublease, and Landlord
is agreeable thereto.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
contained herein, Landlord and Tenant hereby amend and revise the Sublease as
follows:
1. PREMISES
Effective July 1, 1994 (the "Revision Date"), the Premises shall be revised
and enlarged to a total of 22,925 rentable square feet, which Premises shall
be defined to be only those areas in the Silicones Building described
below, and which Premises shall be used only for the purposes set forth
below and in accordance with the further restrictions of Article 4 of the
Sublease:
(a) 3rd floor North lab wing, comprised of 9,135 rentable square feet as
outlined on Exhibit A attached hereto and made a part hereof, which
shall be used for laboratory purposes.
(b) 4th floor North lab wing, comprised of 9,135 rentable square feet as
outlined on Exhibit A attached hereto and made a part hereof, which
shall be used for laboratory purposes.
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(c) 4th floor office wing, comprised of 4,655 rentable square feet as
outlined on Exhibit A attached hereto and made a part hereof, which
shall be used for office purposes.
Effective as of the Revision Date, Tenant shall surrender to Landlord the
2nd floor office space currently occupied by Tenant in accordance with the
terms of the Sublease, including but not limited to Article 8, as though the
Sublease had terminated with respect to such space.
In the event that the Leasehold Improvements planned for the 4th floor
office wing as described in paragraph 5 hereof have not been completed
by July 1, 1994, the Revision Date and Tenant's obligation to pay Rent for
such office space shall be postponed until the date that the 4th floor
office wing has been so prepared for Tenant's occupancy.
2. TERM
The Term of the Sublease shall be extended for an additional term of three
(3) years and five (5) months, and shall now expire on December 30, 1997.
3. RENT
Effective as of June 30, 1994, Article 3.1 of the Lease shall be deleted in
its entirety and the following paragraph shall be inserted in its stead:
"3.1 Tenant shall pay to Landlord without notice or
demand, in advance on the first day of each calendar
month during the term hereof, without any setoff,
counterclaim or deduction for any reason whatsoever,
rent in accordance with the schedule as set forth in
Exhibit B attached to and made a part of the Fifth
Amendment of Sublease."
4. RENT ESCALATION
Effective as of June 30, 1994, Article 3.2 of the Lease shall be deemed null
and void, and after such date Tenant shall have no liability or obligation to
pay increases in Rent arising out of said Article, except for any such
increases in Rent arising prior to June 30, 1994.
5. LEASEHOLD IMPROVEMENTS
Landlord shall, at its expense, install leasehold improvements in the 4th
floor office space as outlined on Exhibit A, including but not limited to new
carpet and painting of all walls. Additionally, Landlord shall, at its
expense, (i) paint the painted surfaces on the 4th floor North lab wing
before Tenant's occupancy; (ii) paint the painted surfaces in the 3rd floor
North lab wing as and when Tenant makes each room available and free of
equipment and furniture to permit such painting; and (iii) provide the
existing lab benches and hooded vents in the 4th floor North lab wing in
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good working order. Lastly, Landlord shall pay the reasonable expenses
for the moving of Tenant's office furniture, equipment, data lines and
telephone system from the 2nd floor of the building to the 4th floor office
wing.
6. OPTION TO CANCEL FIFTH AMENDMENT
In the event that Tenant has not, within ten (10) days after the date of this
Fifth Amendment, executed with Keren Limited Partnership a suitable
Option to Lease Agreement for Tenant's leasing of space at the Landmark
at Eastview complex after January 1, 1998, then Tenant may cancel this
Fifth Amendment by giving written notice of such cancellation to Landlord
no later than fifteen (15) days after the date of this Fifth Amendment. The
failure by Tenant to timely notify Landlord of Tenant's election to cancel
the Fifth Amendment under the terms of this paragraph 6 shall result in
Tenant's waiver of this option to cancel this Fifth Amendment.
In the event that Tenant duly cancels this Fifth Amendment pursuant to the
terms of this paragraph 6, then in such event (i) the Sublease shall
continue in full force and effect in accordance with its current terms and
conditions, and (ii) Tenant shall have the right to exercise the Option to
Extend as provided for under paragraph 3 of the aforementioned Fourth
Amendment of Sublease, provided Tenant so notifies Landlord in writing
no later than twenty-five (25) days after the date of this Fifth Amendment.
7. DELETED ARTICLES
Paragraph 3 (Option to Extend) of the aforementioned Fourth Amendment
of Sublease, and paragraph 3 and 4 of the aforementioned Third
Amendment of Sublease, shall be deleted in their entirety effective as of the
date of this Fifth Amendment.
8. RIGHT OF FIRST REFUSAL
Tenant shall have, during the Term of the Sublease and in accordance with
the terms of this paragraph 8, the right of first refusal to sublease
additional office or laboratory space (the "Additional Space") in the
Silicones Building when and as any such space becomes available. Tenant's
right to sublease Additional Space shall be subject to rights to sublease
Additional Space granted to OSi Specialties, Inc. prior to the date of
this Fifth Amendment.
In the event Landlord receives an offer to sublease available space in the
Silicones Building from a third party tenant, Landlord shall give Tenant
written notice thereof and Tenant shall respond to Landlord in writing within
ten (10) days from the receipt of Landlord's notice if Tenant wishes to
sublease the subject available space. The failure by Tenant to timely notify
Landlord of Tenant's election to so sublease Additional Space shall result
3
in Tenant's waiver of its right to sublease that particular unit of
available space.
In the event Tenant so elects to sublease Additional Space under the terms
of this paragraph 8, then in such event: (i) Tenant shall designate the
commencement date for the subleasing of the Additional Space, which
date shall not be later than sixty (60) days after the date of Tenant's
notice hereunder, (ii) said Additional Space shall be subleased by Tenant in
its "as-is" condition, (iii) said Additional Space shall be added to the
Premises for the remaining term of the Sublease and shall be subleased by
Tenant in accordance with the terms and conditions of the Sublease, with
Rent for the enlarged Premises being proportionately increased based upon
the square footage of the Additional Space using the Rent Rates listed on
Exhibit B for the respective Periods of the Sublease term, and (iv) Tenant
shall pay the reasonable costs for any refurbishments required for the
Additional Space, and the costs of demising the Additional Space should
such separation from other space be necessary.
9. BROKERS
Landlord and Tenant each represent and warrant that there were no real
estate brokers or agents involved in this transaction. Tenant shall
indemnify and hold harmless Landlord against any and all claims for real
estate commissions or finder's fees from any real estate brokers, including
but not limited to CB Commercial Real Estate Group, Inc., claiming to be
involved with this transaction through the acts of Tenant.
10. OVERTIME AIR CONDITIONING
With reference to Article 7.1 of Tenant's Tarrytown Sublease Agreement
dated July 13, 1988, Landlord shall cause Overlandlord to provide, free of
additional charge, heat, ventilation and air conditioning ("HVAC") to the
3rd and 4th floor lab space included in the Premises at the frequency of
approximately twelve (12) air changes per hour from 7:00 a.m. to
8:00 p.m., Monday through Friday, except Site holidays (hereinafter called
"Business Hours"), and at the frequency of approximately six (6) air
changes per hour at all other times (hereinafter called "After-Hours"). In
the event Tenant should request increased HVAC service to part or all of its
lab space during After-Hours at a frequency of approximately twelve (12) air
changes per hour, Tenant shall pay Landlord on a monthly basis the
additional costs for such increased HVAC service to the affected lab
space. Currently, the additional cost for such increased HVAC service is
$0.00069/usable square foot/hour as indicated by the calculations
outlined on Exhibit C attached hereto and made a part hereof. Landlord
and Tenant acknowledge that this cost factor will vary from time to time
dependent upon utility costs.
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11. ENTIRE AGREEMENT
Except as modified herein, all other terms and conditions of the Sublease
shall remain in full force and effect. This Fifth Amendment shall be subject
to the consent of Overlandlord. Notwithstanding the lack of required
consent, for any period during which Tenant remains in possession of the
Premises as revised under this Amendment, this Amendment shall be an
effective agreement between Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first above written.
UNION CARBIDE CHEMICALS AND
PLASTICS COMPANY INC.
By /s/ X.X. XXXXXX
-------------------------------
X.X. Xxxxxx
Director, General Services
PROGENICS PHARMACEUTICALS, INC.
By /s/ XXXXXX X. XXXXXXXX
-------------------------------
Title Vice President
---------------------------
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EXHIBIT B
RENT SCHEDULE
Period Rent Rate Monthly Rent
------ --------- ------------
7/1/94 - 7/31/94 Not Applicable $40,640/month
8/1/94 - 6/30/95 $26.00/sq. ft./yr. $49,671/month
7/1/95 - 6/30/96 $27.50/sq. ft./yr. $52,537/month
7/1/96- 6/30/97 $28.50/sq. ft./yr. $54,447/month
7/1/97-12/30/97 $30.00/sq. ft./yr $57,313/month
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EXHIBIT A
PAGE 1 OF 3
[Chart]
EXHIBIT A
PAGE 2 OF 3
[Chart]
EXHIBIT A
PAGE 3 OF 3
[Chart]
EXHIBIT C
ANNUAL HVAC COST FOR LABORATORY IN SILICONES BUILDING:
$490,092.00 TOTAL SQ FT 58,600 SQ FT
COST PER HOUR LABOR ONLY:
DAYTIME - 12 CHANGES 5 DAYS 52 WEEKS 13 HOURS = 3,380 HRS
NITETIME - 6 CHANGES 5 DAYS 52 WEEKS 11 HOURS + SATURDAY
AND SUNDAY = 5,356 HRS
$490,092.00 / (3,380 HRS X 2 *) + 5,356 HRS = $40.45/HR
DAYTIME - $40.45 X 2 * = $80.90 PER HR
NITETIME - $40.45/HR
COST PER SQUARE FOOT
DAYTIME - $80.90 / 58,600 SQ FT = $.00138 SQ FT./HR
NITETIME - $40.45 / 58,600 SQ FT = $.00069 SQ FT./HR
OCTANT COST PER HOUR
5,825 SQ FT X $.00069 = S4.02 PER HOUR NITETIME
5,825 SQ FT X $.00138 = $8.03 PER HOUR DAYTIME
* DAYTIME IS DOUBLE NITETIME FACTOR
OCTANT WITH NIGHT CUTBACK
DAYTIME - 3,380 HOURS X $8.03 = $27,141.40
NITETIME 5,356 HOURS X $4.02 = $21,531.12
----------
HVAC COST = $48,672.52 PER YEAR
OCTANT WITHOUT NIGHT CUTBACK
DAYTIME - 3,380 HOURS X $8.03 = $27,141.40
NITETIME - 5,356 HOURS X $8.03 = $43,008.68
----------
$70,150.08 PER YEAR
$70,150.08
$48,672.52
----------
ANNUAL DIFF. = $21,477,56
Rev1 8/7/94
ACCEPTANCE OF PREMISES
SUBLESSEE: PROGENICS PHARMACEUTICALS, INC.
SUBLESSOR: UNION CARBIDE CORPORATION
SUBLEASE
AMENDMENT DATE: June 9, 1994
PREMISES: Approximately 22,925 square feet of office and
laboratory space located on the 3rd and 4th
floors of the Silicones Building, situated at
the Landmark at Eastview complex in Greenburgh
and Mount Pleasant, New York.
The above described Premises is hereby accepted by Sublessee under the terms
of the Sublease Agreement, as amended, for occupancy and commencement
effective July 1, 1994.
PROGENICS PHARMACEUTICALS, INC.
By: /s/ XXXXXX X. XXXXXXXX
---------------------------
Title: Vice President
-----------------------
Date: August 16, 1994
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