SECOND AMENDMENT TO LEASE
Exhibit 10.3
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this “Amendment”) is entered into as of this 30th day
of September, 2008, by and between BMR-LANDMARK AT EASTVIEW LLC, a Delaware limited liability
company (“Landlord”), and REGENERON PHARMACEUTICALS, INC., a New York corporation
(“Tenant”).
RECITALS
A. WHEREAS, Landlord and Tenant entered into that certain Lease dated as of December 21, 2006,
as amended by that certain First Amendment to Lease dated as of October 24, 2007 (collectively, the
“Lease”), whereby Tenant leases certain premises (the “Premises”) from Landlord at
735, 745 and 000 Xxx Xxx Xxxx Xxxxx Xxxx in Tarrytown, New York (the “Building”);
B. WHEREAS, Landlord and Tenant have also entered into the Old Lease (as such term is defined
in the Lease);
C. WHEREAS, Tenant desires to lease additional premises from Landlord; and
D. WHEREAS, Landlord and Tenant desire to modify and amend the Lease and the Old Lease only in
the respects and on the conditions hereinafter stated.
AGREEMENT
NOW, THEREFORE, Landlord and Tenant, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, agree as follows:
1. Definitions. For purposes of this Amendment, capitalized terms shall have the
meanings ascribed to them in the Lease unless otherwise defined herein. The Lease, as amended by
this Amendment, is referred to herein as the “Amended Lease.”
2. Additional Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, as of the Additional Premises Commencement Date (as defined below), approximately
ninety-one thousand three hundred sixty-eight (91,368) rentable square feet of space located on the
S-Level, C-Level and G-Level of Building 777, as shown on Exhibit A attached hereto (the
“Additional Premises”). From and after the Additional Premises Commencement Date, the term
“Premises,” as used in the Lease, shall mean the Premises plus the Additional Premises.
3. Tenant’s Pro Rata Shares. From and after the Additional Premises Commencement Date
(as such term is defined below), Section 2.2 of the Lease is hereby replaced in its
entirety with the following:
The Premises, the Buildings, and certain related terms are defined as follows. In
these definitions, each Rentable Area is expressed in rentable square footage.
Rentable Area and Tenant’s Pro Rata Shares are all subject to adjustment under this
Lease, including under Section 9.2.
| Means the Following (As | ||||
| of the Additional | ||||
| Premises Commencement | ||||
| Definition or Provision | Date) | |||
“Premises”
|
Retained Premises, New Premises and Additional Premises | |||
“Buildings”
|
735 Building, 745 Building, 765 Building and 777 Building | |||
Rentable Area of Premises
|
348,032 | |||
Rentable Area of Buildings
|
117,935 for 735 Building 111,708 for 745 Building 177,203 for 765 Building 311,104 for 777 Building |
|||
Rentable Area of Existing Project
|
751,648 | |||
Rentable Area of New Project
|
360,520 | |||
Rentable Area of Entire Project
|
1,112,168 | |||
Tenant’s Pro Rata Share of Buildings
|
100% of Building 735 100% of Building 745 15.25% of 765 Building 23.37% of 777 Building |
|||
Tenant’s Pro Rata Share of the Existing
Project (Based on Retained Premises and
Additional Premises only)
|
15.75% | |||
Tenant’s Pro Rata Share of the New Project
(Based on New Premises only)
|
63.70% | |||
Tenant’s Pro Rata Share of the Entire Project
|
31.29% | |||
4. Basic Annual Rent. Initial Annual (and Monthly Rental Installments) of Basic
Annual Rent for the Additional Premises (“Additional Premises Basic Annual Rent”) only
(starting as of the Additional Premises Commencement Date (as defined below)) shall be as follows:
| Per Rentable s.f. | ||||||||||||
| Rentable s.f. | Annually | Total Annual | Total Monthly | |||||||||
91,368 |
$ | 28 | $ | 2,558,304 | $ | 213,192 | ||||||
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Starting on the Additional Premises Commencement Date (as defined below) and continuing throughout
the Term, Tenant shall pay to Landlord the Additional Premises Basic Annual Rent as set forth in
this Section. The Additional Premises Basic Annual Rent shall be paid in equal monthly
installments, each in advance on the first day of each and every calendar month during the Term.
The Basic Annual Rent for the Additional Premises shall be subject to an annual upward adjustment
of two and one-half percent (2.5%) of the then-current Basic Annual Rent (as adjusted under this
Section 4). The first such adjustment shall become effective commencing on the first
(1st) annual anniversary of the Additional Premises Commencement Date. Subsequent
adjustments shall become effective on every successive annual anniversary of the Additional
Premises Commencement Date (except the first day of any Term extension pursuant to an Option) for
so long as the Amended Lease continues in effect. In addition to Additional Premises Basic Annual
Rent, Tenant shall pay to Landlord as Additional Rent at times specified in the Amended Lease: (a)
Tenant’s Pro Rata Share of Operating Expenses as provided in Article 8 of the Amended Lease
with respect to the Additional Premises and (b) any other amounts that Tenant assumes or agrees to
pay under the provisions of the Amended Lease that are owed to Landlord, including, without
limitation, any and all other sums that may become due by reason of any default of Tenant or
failure on Tenant’s part to comply with the agreements, terms, covenants and conditions of the
Amended Lease to be performed by Tenant, after notice and the lapse of any applicable cure periods.
5. Premises Term Commencement Date. Notwithstanding anything in the Amended Lease to
the contrary, the parties agree and confirm that: (a) Landlord’s Work shall be deemed Substantially
Complete as of June 30, 2008, and (b) the Term Commencement Date with respect to the New Premises
and the Retained Premises is July 1, 2008.
6. Premises Rent Commencement Dates. Notwithstanding anything in the Amended Lease to
the contrary, the Rent Commencement Date with respect to the New Premises is July 1, 2009;
provided that Tenant shall not be liable for Basic Annual Rent or TI Rent with respect to
the New Premises until August 1, 2009; and the Rent Commencement Date with respect to the Retained
Premises is July 1, 2008.
7. Amendments to Old Lease. Notwithstanding anything in the Old Lease or the Lease to
the contrary, the parties agree that, as of the date hereof, (a) the expiration date for the
Premises under the Old Lease shall be July 31, 2009, and (b) Tenant shall not be obligated to pay
Fixed Rent under the Old Lease, to the extent it may otherwise be required to do so, for the period
commencing on July 1, 2009, and ending on July 31, 2009. The parties further agree that Tenant
shall pay Fixed Rent and any other charges owed to Landlord pursuant to the terms of the Old Lease,
notwithstanding expiration of the Old Lease, should Tenant occupy the Premises or any portion
thereof on or after August 1, 2009. Tenant shall pay Fixed Rent and any other changes on a pro
rata basis of the amount of the Premises actually occupied by Tenant on or after August 1, 2009,
until such time as Tenant has vacated the entire Premises in accordance with the
terms of the Old Lease. Nothing in this Section 7 shall be construed as Landlord
granting Tenant the right to retain possession of any Premises under the Old Lease after July 31,
2009, and shall
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not limit Landlord’s rights under the Old Lease, at law or in equity, except with
regards to the limiting of Tenant’s obligation to pay rent on such Premises as stated in this
Section. As used in this Section 7, the terms “Premises” and “Fixed Rent” shall have the
meanings given to such terms in the Old Lease.
8. Additional Premises Term Commencement Date. The Term Commencement Date and Rent
Commencement Date are the same for the Additional Premises and shall be July 1, 2009 (the
“Additional Premises Commencement Date”).
9. Additional Premises Term Expiration Date. The Term Expiration Date for the
Additional Premises shall be the same as the Term Expiration Date for the New Premises, subject to
Tenant’s option to extend the Term of the Lease as provided in Article 44 of the Lease.
Notwithstanding the foregoing, Tenant shall have the right, upon eighteen (18) months’ prior
written notice to Landlord, to terminate the Lease with respect to either (a) all of the Additional
Premises or (b) any one (or a combination) of the following three (3) components of the Additional
Premises, as each is depicted on Exhibit B attached hereto: (i) “Termination Component
One,” consisting of 35,681 rentable square feet, (ii) “Termination Component Two,”
consisting of 46,706 rentable square feet, and (iii) “Termination Component Three,”
consisting of 8,981 rentable square feet (each such portion of terminated Premises, a
“Terminated Component”). Tenant may terminate any or all of the Terminated Components (to
the extent not previously terminated) on each of following dates (each such date, a
“Termination Date”): (x) June 30, 2014, upon payment to Landlord no later than the
Termination Date of a penalty of $29.45 per rentable square foot of the applicable Terminated
Component(s), (y) December 31, 2015, upon payment to Landlord no later than the Termination Date of
a penalty of $20.02 per rentable square foot of the applicable Terminated Component(s), or (z)
December 31, 2016, upon payment to Landlord no later than the Termination Date of a penalty of
$10.50 per rentable square foot of the applicable Terminated Component(s). Time is of the essence
with respect to this Section. In the event that Tenant does not timely exercise its termination
right or timely make payments in accordance with this Section, this Section shall be void and of no
further force or effect.
10. Tenant Improvements: Landlord shall make available to Tenant a Tenant Improvement
allowance of Ten Dollars ($10) per rentable square foot of Additional Premises (the “Additional
Premises TI Allowance”) in order to finance appropriate improvements (“Additional Premises
Tenant Improvements”) to the Additional Premises consistent with the Permitted Use and subject
to Landlord’s reasonable prior written approval. Tenant shall be responsible for performing and
completing the Additional Premises Tenant Improvements in accordance with the applicable terms of
the Lease and the Work Letter with respect to the Tenant Improvements for the New Premises, and
Tenant shall pay Landlord a construction management fee of two and one-half percent (2.5%) for
Landlord’s oversight role related to the Additional Premises Tenant Improvements. Landlord shall
disburse the Additional Premises TI Allowance in accordance with the applicable terms of the Lease
and the Work Letter.
11. Condition of Premises: Tenant acknowledges that (a) it is possession of and is
fully familiar with the condition of the Additional Premises, (b) notwithstanding anything
contained in the Lease or this Amendment to the contrary, it agrees to take the Additional
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Premises in its condition “as is” as of the first day of the Term with respect to the Additional Premises,
and (c) Landlord shall have no obligation to alter, repair or otherwise prepare the Additional
Premises for Tenant’s occupancy or to pay for any improvements to the Additional Premises, except
as may be expressly provided in the Lease or in the Section entitled “Tenant Improvements” above.
For purposes of determining Landlord’s and Tenant’s repair and maintenance obligations with respect
to the Additional Premises, the Additional Premises shall be considered Retained Premises under the
Lease.
12. Security Deposit. No later than the Additional Premises Commencement Date, Tenant
shall deliver to Landlord an increase in the Security Deposit in the amount of Six Hundred
Thirty-Nine Thousand Five Hundred Seventy-Six Dollars ($639,576) for the Additional Premises.
13. Broker. Each of Landlord and Tenant represents and warrants that it has not dealt
with any broker or agent in the negotiation for or the obtaining of this Amendment, other than
Xxxxxxx (“Broker”), and agrees to indemnify, defend and hold the other harmless from any
and all costs or liabilities for compensation claimed by any such broker or agent, other than
Broker, employed or engaged by it or claiming to have been employed or engaged by it. Broker is
entitled to a leasing commission in connection with the making of this Amendment, and Landlord
shall pay such commission to Broker pursuant to a separate agreement between Landlord and Broker, a
copy of which has been provided to Tenant.
14. Parking. The parties confirm that, as of the Additional Premises Commencement
Date, Tenant’s parking rights shall automatically adjust so that Tenant shall have a non-exclusive,
revocable license to use, in common and on an unreserved basis with the other tenants of the
buildings comprising the Additional Premises: (i) four (4) parking spaces per one thousand (1,000)
rentable square feet of Additional Premises (“777 North Parking”) leased to Tenant in
Building 777 (“777 North”), and (ii) with respect to the remainder of the Additional
Premises not located in 777 North, Tenant’s pro rata share of the parking facilities serving the
buildings comprising such Additional Premises. The parties agree that Tenant is leasing
thirty-five thousand two hundred fifty-six (35,256) rentable square feet in 777 North pursuant to
this Amendment. The 777 North Parking shall include the five (5) reserved parking spaces currently
used by Tenant. The 777 North Parking shall be at locations reasonably satisfactory to Landlord and
reasonably near 777 North and the remainder of the parking that Tenant is permitted to use
hereunder shall be at locations reasonably satisfactory to Landlord and reasonably near the
remainder of the Additional Premises.
15. No Default. Each of Landlord and Tenant represents, warrants and covenants that,
to the best of its respective knowledge, neither Landlord nor Tenant is in default of any of its
respective obligations under the Lease and no event has occurred that, with the passage of time or
the giving of notice (or both) would constitute a default by either Landlord or Tenant thereunder.
16. Effect of Amendment. Except as modified by this Amendment, the Lease and all the
covenants, agreements, terms, provisions and conditions thereof shall remain in full force and
effect and are hereby ratified and affirmed. The covenants, agreements, terms, provisions and
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conditions contained in this Amendment shall bind and inure to the benefit of the parties hereto
and their respective successors and, except as otherwise provided in the Lease, their respective
assigns. In the event of any conflict between the terms contained in this Amendment and the Lease,
the terms herein contained shall supersede and control the obligations and liabilities of the
parties. From and after the date hereof, the term “Lease” as used in the Lease shall mean the
Lease, as modified by this Amendment.
17. Miscellaneous. This Amendment becomes effective only upon execution and delivery
hereof by Landlord and Tenant. The captions of the paragraphs and subparagraphs in this Amendment
are inserted and included solely for convenience and shall not be considered or given any effect in
construing the provisions hereof. All exhibits hereto are incorporated herein by reference.
18. Counterparts. This Amendment may be executed in one or more counterparts that,
when taken together, shall constitute one original.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands as of the date and year
first above written, and acknowledge that they possess the requisite authority to enter into this
transaction and to execute this Amendment.
| LANDLORD: BMR-LANDMARK AT EASTVIEW LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxx Xxxx | |||
| Name: | Xxxx Xxxx | |||
| Title: | CEO | |||
| TENANT: REGENERON PHARMACEUTICALS, INC., a New York corporation |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | General Counsel | |||
EXHIBIT A
ADDITIONAL PREMISES
[IMAGE]
EXHIBIT B
ADDITIONAL PREMISES
[IMAGE]
