EXHIBIT 10.1
SUBLEASE
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This SUBLEASE (the "Sublease") is dated as of the 23rd day of May, 2002 by and
between XXXX AND XXXX LLP, a Massachusetts limited liability partnership having
a principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
("Sublandlord"), and CYTOGEN CORPORATION, a Delaware corporation having a
principal place of business at 000 Xxxxxxx Xxxx Xxxx, XX 5308, Xxxxxxxxx, XX
00000 ("Subtenant").
R E C I T A L S
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WHEREAS, pursuant to that certain Lease dated as of August 19, 1998 by and
between 000 XXXXXXX XXXX ASSOCIATES, L.P. ("Prime Landlord"), as landlord, and
Xxxxxxxx Ingersoll Professional Corporation ("BIPC"), as tenant, as amended by
Amendments Number One and Two to Lease Agreement dated as of, respectively, May
23, 2000 and December 1, 2000 (collectively, the "Prime Lease"), a copy of which
Lease and Amendments are attached hereto as Exhibit A, BIPC leased from Prime
Landlord certain premises (the "Original Premises") located on the third and
fourth floors in the building at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000 (the
"Building"), which Original Premises contain approximately 68,437 rentable
square feet of space, as more fully described in the Prime Lease; and
WHEREAS, the Prime Lease has been assigned to and assumed by Sublandlord by
Assignment and Assumption Agreement dated February 15, 2001; and
WHEREAS, Subtenant desires to sublease from Sublandlord a portion of the
Original Premises containing 11,493 rentable square feet on the third floor and
more particularly shown crosshatched on the floor plan attached hereto as
Exhibit B (the "Subleased Premises"), and Sublandlord is willing to sublease the
Subleased Premises to Subtenant on the provisions, covenants and conditions
hereinafter set forth.
A G R E E M E N T
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NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the mutual covenants
made herein, and other consideration, the receipt and sufficiency of which are
hereby acknowledged and agreed, Sublandlord hereby subleases to Subtenant and
Subtenant hereby takes and hires from Sublandlord the Subleased Premises, on the
terms and conditions set forth below:
1. Defined Terms. All terms defined in the Prime Lease and used
herein shall, unless otherwise defined herein, have the meanings ascribed to
such terms in the Prime Lease.
2. Term. The term of this Sublease (the "Sublease Term") shall commence on
August 1, 2002 (the "Sublease Term Commencement Date"), and shall continue until
July 31, 2005 unless sooner terminated in accordance with the provisions of this
Sublease. In addition, the Subtenant shall have a one time right to exercise an
option to extend the term of the Sublease Term for a two (2) year period of
time, commencing August 1, 2005 and terminating July 31, 2007. The monthly Base
Rent for each month of the renewal term shall be $23,129.66. Subtenant must
provide Sublandlord with written notice of Subtenant's exercise of the two (2)
year option, which written notice must be delivered to Sublandlord no later than
January 1, 2005, time being made specifically and expressly hereby of the
essence for the delivery of said notice by Subtenant to Sublandlord. It is also
a precondition to the exercise of the two (2) year option period that Subtenant
be and remain current in the payment and performance of all obligations of the
Sublease, both at the time of delivery of the notice to exercise the option
period and at the commencement date of the option period.
3. Delivery. The Subleased Premises shall be delivered to Subtenant on the
Sublease Term Commencement Date, broom-clean and free of all occupants but
otherwise "as-is, where-is and with all faults," without representation or
warranty, express or implied, and Subtenant hereby waives, disclaims and
renounces any representation or warranty. Neither Prime Landlord nor Sublandlord
shall have any obligation to make any improvements in or to the Subleased
Premises. Subtenant shall not make any improvements to the Subleased Premises
without first having obtained Prime Landlord's and Sublandlord's consent
thereto, it being understood that Prime Landlord and Sublandlord may, in their
sole discretion, withhold such consents.
4. Base Rent. Subtenant shall pay to Sublandlord, in advance, monthly
installments, without withholding, offset or reduction, Base Rent of $22,028.25
per month commencing one month after the Sublease Term Commencement Date (the
"Rent Commencement Date"). Base Rent for any partial calendar months at the
beginning or end of the Sublease Term shall be prorated on a daily basis.
Subtenant acknowledges that Sublandlord's payments of Base Rent for the Original
Premises are paid to Prime Landlord on the first day of each calendar month
during the Term and Subtenant therefore covenants and agrees that its payments
of Base Rent hereunder shall be paid to Sublandlord at least five (5) business
days prior to the first of each calendar month.
5. Additional Rent. Subtenant acknowledges that pursuant to Paragraph 3 (b)
of the Prime Lease, Sublandlord is obligated to pay to Prime Landlord additional
rent on account of operating costs, insurance and real estate taxes for the
Building, as more particularly described in such Paragraph. Subtenant shall pay
to Sublandlord, with its monthly payment of Base Rent from and after the Rent
Commencement Date, Subtenant's proportionate share of Sublandlord's additional
rent obligations under the Prime Lease, such proportionate share being fixed at
16.9% (the number of rentable square feet in the Subleased Premises expressed as
a percentage of the number of rentable square feet in the Original Premises);
(referred to hereinafter as "Subtenant's Proportionate Share") provided that,
for the purpose of this Sublease, the Subtenant's Base Year shall be the 2001
calendar year. Sublandlord shall deliver to Subtenant promptly after receipt
thereof any documentation and statements of operating costs, insurance or real
estate taxes delivered to Sublandlord by Prime Landlord. Additional Rent payable
hereunder for any partial calendar month at the beginning or end of the Sublease
Term shall be pro-rated on a daily basis. Upon Subtenant's written request, and
subject to the terms and conditions of the Prime Lease, Sublandlord shall cause
an audit to be conducted of Prime Landlord's books and records. Said audit shall
be conducted at the sole cost and expense of Subtenant.
6. Use. The Subleased Premises shall be used solely for general office
use and for uses ancillary thereto, but for no other uses.
7. Prime Lease. Subtenant agrees that it will do nothing in, on or about
the Subleased Premises which would result in the breach by Sublandlord of its
undertakings and obligations under the Prime Lease. Except as expressly set
forth herein, this Sublease shall be subject to and on all of the terms and
conditions as are contained in the Prime Lease and the provisions of the Prime
Lease are hereby incorporated into this Sublease as if Sublandlord were the
landlord thereunder and Subtenant the tenant thereunder. Where appropriate,
references to "Landlord" in the Prime Lease shall be deemed to mean
"Sublandlord" hereunder and references to "Tenant" in the Prime Lease shall be
deemed to mean "Subtenant" hereunder, it being understood and agreed that
Sublandlord will not be acting as, or assuming any of the responsibilities of,
Prime Landlord, and all references in the Prime Lease to Landlord-provided
services or Landlord insurance requirements, and any other references which by
their nature relate to the owner or operator of the Building, rather than to a
tenant of the Building subleasing space to a subtenant, shall continue to be
references to Prime Landlord and not to Sublandlord. Without limiting the
foregoing, Subtenant expressly agrees that it does not have any right to expand
the premises or extend the term under either the Sublease or the Prime Lease and
that it is not entitled to any expenditure or allowance by Sublandlord or Prime
Landlord with respect to improvements to the Subleased Premises, except as
expressly set forth herein.
8. Subtenant's Covenants. Subtenant covenants to Sublandlord to perform all
of the covenants and obligations to be performed by Sublandlord as Tenant under
the Prime Lease as the same relate to the Subleased Premises and to comply with
this Sublease and the applicable provisions of the Prime Lease, as modified by
this Sublease, in all respects (including, without limitation, complying with
all OSHA, environmental and other applicable laws, regulations and standards).
If Subtenant shall fail to make any payment or perform any act required to be
made or performed by Subtenant under the Prime Lease pursuant to Subtenant's
assumption of Sublandlord's obligations thereunder as they relate to the
Subleased Premises, and such default is not cured by Subtenant at least three
(3) business days prior to the expiration of such Prime Lease cure period,
Sublandlord, without waiving or releasing any obligation or default hereunder,
may (but shall be under no obligation to) make such payment or perform such act
for the account and at the expense of Subtenant, and may take any and all such
actions as Sublandlord in its sole discretion deems necessary or appropriate to
accomplish such cure. If Sublandlord shall reasonably incur any expense in
remedying such default, Sublandlord shall be entitled to recover such sums upon
demand from Subtenant as Additional Rent under this Sublease.
9. Sublandlord's Covenants. Sublandlord covenants to Subtenant to perform
all of the terms and provisions required of it under the Prime Lease and to
promptly pay when due all rents due and accruing to Prime Landlord. Sublandlord
will use reasonable efforts to enforce on behalf of Subtenant Sublandlord's
rights under the Prime Lease. Nothing contained in this Sublease shall be
construed as a guarantee by Sublandlord of any of the obligations, covenants,
warranties, agreements or undertakings of Prime Landlord in the Prime Lease, nor
as an undertaking by Sublandlord to Subtenant on the same or similar terms as
are contained in the Prime Lease.
10. Indemnification. Subtenant shall indemnify Prime Landlord and
Sublandlord and hold them harmless from and against any and all claims, demands
suits, judgments, liabilities, costs and expenses, including reasonable
attorneys fees, arising out of or in connection with Subtenant's use and
possession of the Subleased Premises, or arising out of the failure of
Subtenant, its agents, contractors or employees to perform any covenant, term
or condition of this Sublease or of the Prime Lease to be performed by Subtenant
hereunder. Sublandlord shall indemnify Subtenant and hold Subtenant harmless
from and against any and all claims, demands, suits, judgments, liabilities,
costs and expenses, including reasonable attorneys fees, arising out of the
failure of Sublandlord to perform any covenant, term or condition of this
Sublease or of the Prime Lease to be performed by Sublandlord hereunder.
11. Assignment and Subletting. Subtenant shall not assign this Sublease in
whole or in part or sublet the Subleased Premises in whole or in part without
the prior written consent of both Prime Landlord and Sublandlord, which consents
shall be specifically and expressly controlled by the terms of the Prime Lease.
If, as to any sublease or assignment for which Sublandlord's consent is
necessary, Subtenant receives rent or other consideration in excess of the Base
Rent and Additional Rent payable under this Sublease, Subtenant shall pay to
Sublandlord one-half of such excess, after deducting Subtenant's reasonable
legal and brokerage expenses and fit-up expenses paid for by Subtenant at the
time of such subleasing or assignment. Amounts received by Sublandlord under the
immediately preceding sentence shall, after deducting Sublandlord's reasonable
legal expenses incurred in connection therewith, be divided evenly between Prime
Landlord and Sublandlord. If Sublandlord and Prime Landlord consent to any such
assignment or subletting, Subtenant shall remain fully and primarily liable to
Sublandlord, in all respects, under the Sublease.
12. Security Deposit. Upon the commencement of the lease, Subtenant has
delivered to Sublandlord an evergreen letter of credit issued by a federally
chartered banking institution ("Institution") in the amount of $44,056.50
("Subtenant's Security"), such letter to be held by Sublandlord as security for
the performance of Subtenant's obligations under this Sublease. Upon the
occurrence of any default by Subtenant hereunder, Subtenant agrees that
Sublandlord may draw upon all or any part of Subtenant's Security and apply the
same to any obligation of Subtenant hereunder. If all or any portion of
Subtenant's Security is applied by Sublandlord against any of Subtenant's
obligations hereunder, Subtenant shall promptly restore Subtenant's Security to
its original amount. The letter of credit shall provide, among other items, that
the Institution shall provide Sublandlord with forty-five (45) days written
notice of any election not to renew and that Sublandlord may then draw upon the
letter of credit if no suitable letter of credit is provided at least thirty
(30) days prior to expiration of the existing letter of credit.
13. Brokers. Each of Sublandlord and Subtenant represents and warrants to
the other that it has not dealt with any broker in connection with this
Sublease, and each agrees to indemnify, defend and hold the other harmless from
and against any breach of said representation and warranty.
14. Utilities. Subtenant shall be responsible for all utilities (including
light, plug and HVAC electricity) in the Subleased Premises, to be paid by
Subtenant to Sublandlord within ten (10) days after billing therefor.
Subtenant's payment obligation hereunder shall be equal to the utility costs for
the third floor of the Building (which third floor is separately metered) times
the then effective Subtenant's Proportionate Share. Subtenant shall be permitted
the use of heating and air conditioning 24 hours per day, 7 days per week,
conditioned upon Subtenant complying with the terms and conditions of the Prime
Lease including, but not limited to, Paragraph 6, Services and Utilities,
Subparagraph (e).
15. Parking and Signage. Subtenant shall be entitled to use Subtenant's
then applicable Proportionate Share of the parking spaces allocated to
Sublandlord under the Prime Lease, on a non-exclusive basis. Sublandlord shall
have no obligation to police the parking areas or enforce Subtenant's parking
rights hereunder. Subtenant shall be entitled to its pro-rata share of signage
rights under the Prime Lease.
16. Miscellaneous.
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A. Counterparts. This instrument may be signed in counterpart
originals, which, taken together, shall constitute a single
original instrument.
B. Notices. Notices to Sublandlord or Subtenant required or
permitted hereunder shall be sent in the manner prescribed in the
Prime Lease to the respective addresses set forth above to the
attention of Xxxx X. Xxxxxxxx, Xx., Chairman, in the case of
notices to Sublandlord and of H. Xxxxxx Xxxxxx, President and
Chief Executive Officer, in the case of notices to Subtenant.
C. Amendments. This Sublease may not be changed or terminated orally
but only by an agreement in writing signed by both Sublandlord
and Subtenant.
D. Estoppel Certificates. Sublandlord and Subtenant each agree to
furnish within twenty (20) days after written request therefor by
the other, a certificate stating (i) that this Sublease is in
full force and effect and has not been amended or modified (or
describing such amendment or modification, if any); (ii) the
dates through which Base Rent and additional rent have been paid
hereunder; and (iii) that there are no defaults under this
Sublease known to the signer of the certificate (or specifying
such defaults, if known).
E. No Waiver. The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise
any option contained herein, shall not be construed as a waiver
of such covenant, condition or option in any other instance.
F. Memorandum of Lease. Subtenant shall not record this Sublease or
any memorandum hereof.
G. Governing Law. The parties agree that the rights and obligations
of the parties under this Sublease shall be governed and
construed in accordance with the laws of the State of New Jersey.
H. Severability. The invalidity of any of the provisions of this
Sublease will not impair or affect in any manner the validity,
enforceability or effect of the rest of this Sublease.
I. Entire Agreement. All understandings and agreements, oral or
written, heretofore made between the parties hereto are merged in
this Sublease, which alone fully and completely expresses the
agreement between Sublandlord and Subtenant.
J. Relationship Between the Parties. This Sublease does not create
the relationship of principal and agent, nor does it create any
partnership, joint venture, or any association or relationship
between Sublandlord and Subtenant other than as and to the extent
specifically provided in this Sublease, the sole relationship of
Sublandlord and Subtenant being that of sublandlord and subtenant
as provided in this Sublease.
K. Remedies Cumulative. Except as specifically provided herein, all
rights and remedies of Sublandlord under this Sublease shall be
cumulative and none shall exclude any other rights and remedies
allowed by law.
L. Condition Precedent. The effectiveness of this Sublease is
expressly subject to and conditional upon the conditions set
forth in Section 17 of the Prime Lease. Sublandlord agrees to
promptly notify the Prime Landlord of this proposed Sublease in
accordance with Paragraph 17 of the Prime Lease. Sublandlord and
Subtenant shall cooperate in seeking to obtain the required
consent of the Prime Landlord. The submission by Sublandlord to
Subtenant of this Sublease shall have no binding force or effect,
shall not constitute an option for the leasing of the Subleased
Premises, nor confer any rights or impose any obligations upon
either party until the execution thereof by Sublandlord and
Subtenant and the delivery of an executed original copy thereof
to Sublandlord.
M. Limitation on Liability. Notwithstanding any provision of this
Sublease to the contrary, Subtenant's recourse hereunder shall be
solely to the assets of the Sublandlord, and no partner, member,
shareholder, joint venture partner, retired and withdrawn
partner, retired or withdrawn member, retired or withdrawn
shareholder, directly or indirectly, of the Sublandlord (the
"Exculpated Parties") shall be personally liable for the payment
or performance of any of Sublandlord's obligations under this
Sublease or to satisfy a monetary judgment for Sublandlord's
failure to make any such payment or perform any obligation
hereunder. Subtenant shall not seek any monetary damages against
any of the Exculpated Parties in connection with this Sublease.
IN WITNESS WHEREOF, the parties have executed this Sublease as an instrument
under seal as of the date first written above.
SUBLANDLORD:
XXXX AND XXXX LLP
By: /s/ Xxxx X. Xxxxxxxx, Xx.
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Xxxx X. Xxxxxxxx, Xx.
Chairman
SUBTENANT:
CYTOGEN CORPORATION
By: /s/ H. Xxxxxx Xxxxxx
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H. Xxxxxx Xxxxxx
President and Chief Executive Officer
