SIXTH AMENDMENT TO LEASE
Exhibit 10.1
SIXTH AMENDMENT TO
LEASE
THIS SIXTH AMENDMENT TO LEASE
(this “Sixth Amendment”) is entered into as of this 4th day of June, 2010
(“Execution Date”), 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 (the
“Original Lease”), as amended by that certain First Amendment
to Lease dated as of October 24, 2007 (the “First Amendment”), that certain Second Amendment to Lease
dated as of September 30, 2008 (the “Second Amendment”), that certain Third Amendment to Lease
dated as of April 29, 2009 (the “Third Amendment”), that certain Fourth Amendment to Lease
dated as of December 3, 2009 (the “Fourth Amendment”), and that certain Fifth Amendment to Lease
dated as of February 11, 2010 (the “Fifth Amendment” and, collectively with the Original Lease
and the First Amendment, Second Amendment, Third Amendment, Fourth Amendment and
as the same may have been further amended, supplemented or otherwise modified
from time to time, the “Lease”), whereby Tenant leases certain premises
(the “Premises”) from Landlord at 735, 745, 755, 765 and 000
Xxx Xxx Xxxx Xxxxx Xxxx in Tarrytown, New York (collectively, the “Buildings”, and each a “Building”);
B. WHEREAS, Tenant desires
to lease from Landlord and Landlord desires to lease to Tenant approximately six
thousand eight hundred thirty-eight (6,838) rentable square feet of additional
space in the 765 Building, consisting of approximately two thousand six hundred
ninety-one (2,691) rentable square feet (“Phase 1”, and generally a “Phase”) and approximately four thousand one hundred
forty-seven (4,147) rentable square feet (“Phase 2”, and generally a “Phase”), all as shown on Exhibit A attached hereto (Phase 1 and Phase 2 are
collectively referred to herein as the “765 Expansion Premises”); and
C. WHEREAS, Landlord and
Tenant desire to modify and amend the 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 Sixth Amendment,
capitalized terms shall have the meanings ascribed to them in the Lease unless
otherwise defined herein. The Lease, as amended by this Sixth Amendment, is
referred to herein as the “Amended Lease.”
2. 765 Expansion Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord the 765 Expansion Premises, effective as of
Landlord’s delivery to Tenant of the applicable Phase thereof. Landlord shall
use commercially reasonable efforts to deliver Phase 1 to Tenant on the Execution Date, or as soon
as reasonably practicable thereafter, and Phase 2 on or before November 30,
2010. Landlord shall provide Tenant with sixty (60) days prior notice of
delivery of Phase 2. The Term for the 765 Expansion Premises shall expire on the
Term Expiration Date for the New Premises, subject to (a) Tenant’s option to
extend the Term of the Lease as provided in Article 44 of the Amended Lease, and (b) Tenant’s
termination option set forth in Section 7 below. Upon delivery of Phase 1 to Tenant,
the total rentable square feet of space of the Premises located within Building
765 shall be one hundred six thousand eight hundred ninety (106,890) rentable
square feet of space and upon delivery of Phase 2 to Tenant the total rentable
square feet of space of the Premises located within Building 765 shall be one
hundred eleven thousand thirty-seven (111,037) rentable square feet of space.
3. Tenant’s Pro Rata Shares. From and after the delivery of Phase 1, (a)
the Premises shall be deemed to include Phase 1, (b) Tenant’s Pro Rata Share of
the 765 Building shall increase from 58.80% to 60.23%, (c) Tenant’s Pro Rata
Share of the Existing Project shall increase from 23.50% to 23.83%, (d) Tenant’s
Pro Rata Share of the New Project shall remain at 100%, and (e) Tenant’s Pro
Rata Share of the Entire Project shall increase from 48.30% to 48.52%. From and
after the delivery of Phase 2, (v) the Premises shall be deemed to include the
entire 765 Expansion Premises, (w) Tenant’s Pro Rata Share of the 765 Building
shall increase from 60.32% to 62.48%, (x) Tenant’s Pro Rata Share of the
Existing Project shall increase from 23.85% to 24.36%, (y) Tenant’s Pro Rata
Share of the New Project shall remain at 100%, and (z) Tenant’s Pro Rata Share
of the Entire Project shall increase from 48.54% to 48.88%. Effective as of the
delivery of Phase 1, Section 2.2 of the Lease is hereby deleted in its
entirety and replaced with the following:
2.2 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.
Definition or Provision | Means the Following: |
“Premises” | Retained Premises, New Premises, Modified Additional Premises, Swap Premises, 755 Premises, Swing Premises, and Phase 1 (of the 765 Expansion Premises) |
“Buildings” | 735 Building, 745 Building, 755 Building, 765 Building and 777 Building |
Rentable Area of Premises | 539,822 square feet |
Rentable Area of Buildings | 117,935 for 735 Building 111,708 for 745 Building 130,877 for 755 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 |
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Definition or Provision | Means the Following: |
Rentable Area of Entire Project | 1,112,168 |
Tenant’s Pro Rata Share of Buildings | 100% of 735 Building 100% of 745 Building 100% of 755 Building 60.23% of 765 Building 23.28% of 777 Building |
Tenant’s Pro Rata Share of the Existing Project (Based on Retained Premises, Modified Additional Premises, Swap Premises, Swing Premises and Phase 1 Premises only) | 23.83% |
Tenant’s Pro Rata Share of the New Project (Based on the New Premises and the 755 Premises) | 100% |
Tenant’s Pro Rata Share of Entire Project | 48.52% |
Effective as of the
delivery of Phase 2, Section 2.2 of the Lease is hereby deleted in its
entirety and replaced with the following:
2.2 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.
Definition or Provision | Means the Following: |
“Premises” | Retained Premises, New Premises, Modified Additional Premises, Swap Premises, 755 Premises, Swing Premises, and 765 Expansion Premises |
“Buildings” | 735 Building, 745 Building, 755 Building, 765 Building and 777 Building |
Rentable Area of Premises | 543,969 square feet |
Rentable Area of Buildings | 117,935 for 735 Building 111,708 for 745 Building 130,877 for 755 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 |
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Definition or Provision | Means the Following: |
Rentable Area of Entire Project | 1,112,168 |
Tenant’s Pro Rata Share of Buildings | 100% of 735 Building 100% of 745 Building 100% of 755 Building 62.48% of 765 Building 23.28% of 777 Building |
Tenant’s Pro Rata Share of the Existing Project (Based on Retained Premises, Modified Additional Premises, Swap Premises, Swing Premises and 765 Expansion Premises only) | 24.36% |
Tenant’s Pro Rata Share of the New Project (Based on the New Premises) | 100% |
Tenant’s Pro Rata Share of Entire Project | 48.88% |
4. Rent.
a. Basic Annual Rent. Commencing as of the dates set forth below
and continuing through the Term, and subject to the provisions of Section 7 hereof, Tenant shall pay Landlord Basic
Annual Rent for the 765 Expansion Premises in accordance with the following
schedule (in addition to Rent otherwise due under the Lease) and in accordance
with the terms for payment of Basic Annual Rent set forth in the Lease. Basic
Annual Rent for the 765 Expansion Premises shall increase annually every July
1st by two and
one-half percent (2.5%) of the then-current applicable Basic Annual Rent,
commencing as of July 1, 2011.
Portion of | Applicable Basic Annual | Rentable | Initial Basic | Total Annual Basic | Total Monthly |
Premises | Rent Commencement | s.f. of 765 | Annual Rent | Annual Rent | |
Date | Expansion | Per Rentable | |||
Premises | s.f. | ||||
Annually | |||||
Phase 1 | Upon delivery of | 2,691 | $27.00 | $72,657 | $6,054.75 |
Phase 1 | (to be prorated) | ||||
Phase 1 and | Upon delivery of | 6,838 | $27.00 | $184,626 | $15,385.50 |
Xxxxx 0 | Xxxxx 0 | (xx xx prorated) |
b. Operating Expenses.
i. In addition to Basic
Annual Rent, commencing as of the delivery date of the applicable Phase, Tenant
shall pay to Landlord as Additional Rent, at times specified in the Amended
Lease, Tenant’s Pro Rata Share of Operating Expenses with respect to the 765
Expansion Premises, or Phase thereof, delivered to Tenant.
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ii. For the avoidance of doubt (i) HVAC for the 765 Expansion Premises, or
either Phase thereof, shall be calculated in the same manner as provided in the
Amended Lease with respect to the Retained Premises, and (ii) the 765 Expansion
Premises, or either Phase thereof, shall be treated as Retained Premises for the
purposes of allocation of the CAM Pool Charges in accordance with Exhibit O of the Amended Lease (in each case, as of the
applicable commencement date for each such portion of the
Premises).
5. Tenant Improvements. Landlord shall make available to Tenant a
tenant improvement allowance equal to One Hundred Seventy Thousand Nine Hundred
Fifty Dollars (($170,950), based on Twenty-Five Dollars ($25) per rentable
square foot of the 765 Expansion Premises) (the “765 Expansion Allowance”). The 765 Expansion Allowance shall be
disbursed in the same manner as the Base TI Allowance under the applicable
provisions of Article 5 of the Lease, including, without limitation,
the Disbursement Conditions, in order to finance improvements to the 765
Expansion Premises consistent with the provisions of the Lease and the Permitted
Use (such improvements, the “765 Expansion Improvements”). Tenant shall be responsible for performing
and completing the 765 Expansion Improvements. Tenant shall pay Landlord a
construction oversight fee of two and one-half percent (2.5%) of the total cost
of the Tenant Improvements, including, without limitation, the 765 Expansion
Allowance to the extent disbursed to Tenant, which construction oversight fee
may be paid out of the 765 Expansion Allowance.
6. Parking. The parties acknowledge that, in accordance
with the Lease, Tenant shall be entitled to its pro rata share of unreserved
parking spaces with respect to the 765 Expansion Premises.
7. Termination Option. Tenant shall be entitled to terminate the
Lease with respect to the entire 765 Expansion Premises effective as of January
1, 2017; provided that (a) Tenant provides Landlord with no less than nine (9)
months’ prior written notice and (b) concurrently with such notice, Tenant pays
to Landlord an amount equal to One Hundred Twenty-Nine Thousand, Nine Hundred
Forty-Two Dollars (($129,942) based on Nineteen Dollars ($19) per rentable
square foot of the 765 Expansion Premises). If Tenant timely exercises its
option to terminate the Lease with respect to the 765 Expansion Premises, then
Tenant shall surrender the applicable Premises to Landlord on the applicable
surrender date in the condition required by the Amended Lease for surrendering
Premises upon the expiration. Time is of the essence with respect to the
exercise of the termination option granted in this Section.
8. Lease Extension Options. From and after the Execution Date, the first
paragraph of Article 44 of the Lease is hereby deleted and replaced
with the following:
44. Option to Extend Term. Tenant shall have three (3) options (each,
an “Option”) to extend the Term of this Lease (and, in
each case, the Term Expiration Date) by five (5) years, in each case on the same
terms and conditions as this Lease, except as provided below. If Tenant desires
to exercise any Option, Tenant must do so by giving Landlord written notice of
such exercise at least one (1) year before the Term would otherwise expire.
Tenant may exercise its Option to extend the Term only as to any one or more of
the following: (a) the entire Retained Premises, (b) the entire New Whole
Building Premises, (c) the entire New Multiple Tenant Building Premises, (d) the
Modified Additional Premises, (e) the Swap Premises, (f) the Swing Premises, (g)
each full floor of the 755 Premises, and (h) the 765 Expansion Premises. If
Tenant fails to exercise an Option with respect to less than all of the Premises
and the time to do so has lapsed (or if a Retained Premises Early Termination or
a termination pursuant to a Swap Premises Termination Option has occurred), then
Tenant shall no longer have an Option with respect to those portions of the
Premises for which it failed to exercise an Option. Tenant’s Options for the
remaining Premises shall remain in full force and effect.
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9. Condition of Premises. Except as otherwise provided herein, Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the condition of the 765 Expansion
Premises with respect to the suitability of the same for the conduct of Tenant’s
business. Tenant acknowledges that (a) it is generally familiar with the
condition of the 765 Expansion Premises, notwithstanding anything contained in
the Amended Lease to the contrary, agrees to take the 765 Expansion Premises in
its condition “as is” as of the applicable delivery date. Tenant’s taking of
possession of the 765 Expansion Premises shall, except as otherwise agreed to in
writing by Landlord and Tenant, conclusively establish that the same were at
such time in good, sanitary and satisfactory condition and repair.
Notwithstanding the foregoing, Landlord represents and warrants that the
Building Systems in the 765 Expansion Premises (and each Phase thereof) are, and
will be, as of the applicable commencement date for each Phase thereof, in good
working condition and that the 765 Expansion Premises (and each Phase thereof)
are adequately serviced by Utilities and other base building
services.
10. Insurance. From and after the Execution Date, the
provisions of Section 22 of the Lease shall apply to all Buildings in
which the Premises are located at any time during the Term.
11. Hazardous Materials. From and after the Execution Date, the
second to last sentence of Section 40.1 of the Lease shall be deleted and replaced in
its entirety with the following:
Landlord acknowledges that Tenant shall not be
responsible for environmental conditions or contamination now or hereafter
existing on, under or in the Entire Project, in the New Whole Building, in the
New Multiple Tenant Building, in the Retained Premises, in the Modified
Additional Premises, in the Swap Premises, in the 755 Premises, in the Swing
Premises, or in the 765 Expansion Premises caused by Landlord or tenants other
than Tenant or by third parties in the Entire Project prior to the Execution
Date or after such date, or for environmental conditions or contamination coming
from off-site so long as Tenant, Tenant’s Affiliates, its permitted sublessees
or its agents did not cause or contribute to such environmental conditions or
contamination.
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12. Broker. Each of Landlord and Tenant represents and
warrants to the other that it has not dealt with any broker or agent in the
negotiation for or the obtaining of this Sixth Amendment, other than Xxxxxxx
(“Broker”) on behalf of Tenant, and each agrees to
indemnify, defend and hold the other harmless from any and all cost or liability
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 this Sixth
Amendment, and Landlord shall pay such commission to Broker pursuant to a
separate agreement between Landlord and Broker, which commission shall be
calculated on the rentable square footage of the 765 Expansion Premises only.
13. No Default; Authority;
Non-Contravention. 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. Each of Landlord and Tenant further
represents, warrants and covenants that it has the full power and authority to
execute, deliver and comply with the terms of this Sixth Amendment, and doing so
will not conflict with or result in the violation of or default under any
provision of any agreement or other instrument to which it is a party.
14. Effect of Amendment. Except as modified by this Sixth 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 conditions contained
in this Sixth 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 Sixth 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 Sixth Amendment.
15. Miscellaneous. This Sixth Amendment becomes effective only
upon execution and delivery hereof by Landlord and Tenant. The captions of the
paragraphs and subparagraphs in this Sixth Amendment are 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.
16. Counterparts. This Sixth 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 Sixth Amendment to Lease.
LANDLORD: | |||||
BMR-LANDMARK AT EASTVIEW LLC, | |||||
a Delaware limited liability company | |||||
By: | /s/ Xxxxxxx XxXxxxxx | ||||
Name: | Xxxxxxx X. XxXxxxxx | ||||
Title: | EVP, Real Estate | ||||
TENANT: | |||||
REGENERON PHARMACEUTICALS, INC., | |||||
a New York corporation | |||||
By: | /s/ Xxxxxx Xxxxxxxx | ||||
Name: | Xxxxxx X. Xxxxxxxx | ||||
Title: | Senior Vice President, Finance & Administration and Chief Financial Officer |
EXHIBIT A
765 Expansion
Premises
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