THIRD AMENDMENT TO LEASE BETWEEN
SCIENCE PARK DEVELOPMENT CORPORATION
and
GENAISSANCE PHARMACEUTICALS, INC.
Date: June 1, 2000
This Third Amendment to Lease (this "Third Amendment") is made and
entered into as of the first day of June, 2000 by and between SCIENCE PARK
DEVELOPMENT CORPORATION, a Connecticut corporation having a principal place of
business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein
referred to as "LANDLORD") and GENAISSANCE PHARMACEUTICALS, INC., a Delaware
corporation having a principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein referred to as "TENANT").
WHEREAS, Landlord and Tenant are parties to a certain Lease dated as of
September 15, 1998 (the "ORIGINAL LEASE") as amended by First Amendment to Lease
(the "FIRST AMENDMENT") and Second Amendment to Lease (the "SECOND AMENDMENT"),
each dated December 1, 1999 (collectively, the Original Lease, the First
Amendment and the Second Amendment shall hereinafter be referred to as the
"LEASE");
WHEREAS, pursuant to the Lease, Tenant leases from Landlord certain
space in the buildings known as Building 5 North and Building 5 South in Science
Park, New Haven, Connecticut;
WHEREAS, Tenant has requested to lease from Landlord: (i) approximately
6,470 rentable square feet of space on the East wing of the first floor of
Building 5 North as shown on the floor plan attached hereto as EXHIBIT A-1; (ii)
approximately 9,112 rentable square feet of space on the East wing of the first
floor of Building 5 South as shown on the floor plan attached hereto as EXHIBIT
A-1 (the space referred to in clauses (i) and (ii) above is herein referred to
collectively as the "1ST FLOOR EAST WING SPACE"); (iii) approximately 4,083
rentable square feet of space on the West wing of the third floor of Building 5
North as shown on the floor plan attached hereto as EXHIBIT A-2 (herein referred
to as the "PENTHOUSE"); (iv) 185 rentable square on the third floor of Building
5 South as shown on the floor plan attached hereto as EXHIBIT A-3 (the "THIRD
FLOOR SPACE"); and (v) the walkway connector between the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇ Wing Space and the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Wing Space, if it
is built by Tenant, as shown on the floor plan attached hereto as EXHIBIT A-1
(herein referred to as the "FIRST FLOOR WALKWAY") (collectively, the 1st Floor
East Wing Space, the Penthouse, the Third Floor Space and the First Floor
Walkway shall herein be referred to as the "ADDITIONAL SPACE"; the Additional
Space, excluding the First Floor Walkway, is herein referred to as the "EXISTING
ADDITIONAL SPACE"), upon and subject to the terms, covenants and conditions
contained in the Lease as modified by this Third Amendment; and
WHEREAS, Landlord and Tenant desire to amend the Lease in certain
respects;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each of the parties, Landlord and Tenant
hereby agree as follows (capitalized terms used herein which are not otherwise
defined herein shall have the meaning given to such terms in the Lease):
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1. REPRESENTATION AS TO CONDITION OF EXISTING ADDITIONAL SPACE; DELIVERY
OF POSSESSION OF EXISTING ADDITIONAL SPACE. Landlord represents that
Landlord has (i) caused to be removed from the Existing Additional
Space all asbestos, which removal was performed in compliance with all
applicable Environmental Laws and Title 19a ("Public Health and
Well-Being") of the Connecticut General Statutes, including but not
limited to Sections 19c-332 through 332e, concerning asbestos, and any
regulations promulgated thereunder, (ii) caused to be removed from the
Existing Additional Space all lead-based paint, which removal has been
performed in compliance with applicable laws, such that as a result of
the removal, no occupants of Building 5 North or South were exposed to
airborne lead at levels over the action level, as defined in 29 CFR
Section 1910.1025, and (iii) otherwise prepared the Existing Additional
Space for delivery of same to Tenant in a vacant, broom clean
condition, free of all furnishings, equipment, litter and debris.
Subject to the foregoing representation, upon the execution and
delivery of this Third Amendment, Landlord shall deliver to Tenant and
Tenant shall accept from Landlord possession of the Existing Additional
Space in its present as-is condition.
2. REMOVAL OF SHED. The parties acknowledge and agree that, Landlord, at
its expense, has (i) obtained required demolition permits and
demolished that certain "shed" structure located in the intended area
of the First Floor Walkway (the "Shed") , (ii) caused to be removed
from the Shed prior to its demolition all asbestos, which removal was,
to the best knowledge of Landlord, performed in compliance with all
applicable Environmental Laws and Title 19a ("Public Health and
Well-Being") of the Connecticut General Statutes, including but not
limited to Sections 19c-332 through 332e, concerning asbestos, and any
regulations promulgated thereunder, (iii) caused to be removed from the
Shed all lead-based paint, which removal was, to the best knowledge of
Landlord, performed in compliance with applicable laws, such that as a
result of the removal no occupants of Building 5 North or South have
been exposed to airborne lead at levels over the action level, as
defined in 29 CFR Section 1910.1025.
3. THIRD FLOOR SPACE.
A. The text of Section 2 of the Second Amendment is hereby
deleted and substituted therefor is the following:
"The rentable area of the Third Floor Space on the third floor
of Building 5 South is deemed to be 185 rentable square feet.
Tenant shall have exclusive possession of the Third Floor
Space."
B. The fourth sentence of Section 7 of the Second Amendment is
hereby deleted.
C. The Third Floor Space (as defined herein) is contiguous to the
Third Floor Space (as defined in the Second Amendment),
however, for purposes of the Lease and this Amendment,
including without limitation, for purposes of calculating all
rentable obligations under the Second Amendment and under this
Third Amendment, they shall be treated as separate spaces
constituting 185 rentable square feet each.
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4. DEFINITION OF INTERIOR WORK. Pursuant to the provisions of Sections
2.4B, 2.4E - H and 2.6 of the Original Lease, Landlord at its expense
shall undertake all of the Work described on EXHIBIT B-1 hereof (the
"INTERIOR WORK"). Landlord hereby agrees to complete the Interior Work
in a good and workmanlike fashion, otherwise Tenant relies on no
warranties or representations, express or implied, of Landlord or any
agent or other party associated with Landlord as to its condition or
repair, or as to taxes or any other matter relating to the Additional
Space, except as otherwise expressly provided in the Lease, as modified
by this Third Amendment. In addition, Landlord's representation
regarding compliance with laws set forth in the second sentence of
Section 8.1 of the Original Lease is hereby deemed repeated with regard
to the Interior Work, as is the limitation on Tenant's remedy set forth
in the balance of said Section 8.1.
5. INTERIOR WORK.
A. Landlord, at its expense, shall use its best efforts to
substantially complete the Interior Work so it does not delay
Tenant's completion of the Tenant's Work (as hereinafter
defined), but in any event, no later than four (4) months
following the Existing Additional Space Lease Commencement
Date (as hereinafter defined). In addition, Landlord
represents that all electrical, mechanical, plumbing and other
building systems serving the Additional Space will be in
working order on the Additional Space Rent Commencement Date
(as hereinafter defined).
B. Landlord and Tenant shall each use its best efforts to
collectively cause ▇▇▇▇▇ Corporation and Svigals Associates to
coordinate the Interior Work with the Tenant's Work (as
defined in Section 15 of this Third Amendment) with respect to
the Additional Space in order not to delay completion of the
Tenant's Work with respect to the Additional Space.
6. EXISTING ADDITIONAL SPACE LEASE COMMENCEMENT DATE. Landlord hereby
agrees to lease to Tenant and Tenant hereby agrees to lease from
Landlord the Additional Space, upon and subject to the terms of the
Lease, as modified by this Third Amendment. Landlord shall deliver, and
Tenant shall accept, exclusive possession of the Existing Additional
Space on the date of this Third Amendment first written above, which
date shall be deemed to be the Lease Commencement Date with respect to
the Existing Additional Space (the "EXISTING ADDITIONAL SPACE LEASE
COMMENCEMENT DATE"). Landlord's delivery of exclusive possession shall
be subject to entries by the Landlord and its contractors into the 1st
Floor East Wing Space and the Third Floor Space only as necessary to
complete the Interior Work prior to the date Tenant first occupies such
portions of the Additional Space for its business purposes (the
"OCCUPANCY DATE"). Because Tenant will not have exclusive possession of
the 1st Floor East Wing Space or the Third Floor Space until the
Occupancy Date, the parties hereby agree that the provisions of
Sections 5.1, 7.2, 7.4, 7.5, 12,1E and 23.1 of the Original Lease shall
not apply to Tenant with regard to the 1st Floor East Wing Space or the
Third Floor Space until the Occupancy Date.
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7. EXISTING ADDITIONAL SPACE. Commencing on the Existing Additional Space
Lease Commencement Date, the Leased Premises shall be deemed to include
the Existing Additional Space for all purposes under the Lease, and the
terms, covenants and conditions of the Lease, as modified by this Third
Amendment, shall govern the rights, obligations and liabilities of
Landlord and Tenant with respect to the Existing Additional Space. The
Leased Premises, as described in Section 1.1(a) of the Original Lease
and as shown on Exhibits A-1 and A-2 of the Original Lease, are
sometimes referred to in this Third Amendment as the "ORIGINAL LEASED
PREMISES".
8. CONFIRMATION OF TERMS. The Expiration Date of the initial 5-year Term
of the Lease, as hereby amended, with respect to the entire Leased
Premises, including without limitation, the Additional Space, is
February 29, 2004. The date February 28, 2004 as it appears in the
first sentence of Section 5 of the First Amendment and in the first
sentence of Section 9 of the Second Amendment is hereby deleted and
"February 29, 2004" is substituted therefor in each sentence. The two
5-year Extension Options granted in Section 2.2 of the Original Lease
shall apply to the entire Leased Premises, including without
limitation, the Additional Space. The First Amendment Space Lease
Commencement Date (as defined in the First Amendment) occurred on
January 14, 2000, and the Additional Space Lease Commencement Date (as
defined in the Second Amendment) occurred on February 7, 2000. Tenant
may not exercise an Extension Option with respect to less than the
entire Leased Premises.
9. RENT COMMENCEMENT DATE.
A. 1ST FLOOR EAST WING SPACE. Subject to extensions pursuant to
Sections 2.3B. and 2.3C. of the Original Lease, the Rent
Commencement Date with respect to the 1st Floor East Wing
Space and the Third Floor Space (the "1ST FLOOR EAST WING RENT
COMMENCEMENT DATE ") shall mean the earlier of: (i) the date
of the issuance of a temporary or permanent certificate of
occupancy for all or any portion of the 1st Floor East Wing
Space and the Third Floor Space, or (ii) four (4) months after
the date of this Third Amendment first written above.
B. PENTHOUSE. Subject to extensions pursuant to Sections 2.3B.
and 2.3C. of the Original Lease, the Rent Commencement Date
with respect to the Penthouse (the "PENTHOUSE RENT
COMMENCEMENT DATE") shall mean May 9, 2000.
C. INTERPRETATION. In interpreting the provisions of Sections
2.3B and 2.3C of the Lease to this Third Amendment, the term,
"Interior Work" as used therein shall mean "Interior Work" as
defined herein, and the term, "Rent Commencement Date" as used
therein shall mean (i) with respect to the 1st Floor East Wing
Space and the Third Floor Space, the "1st Floor East Wing Rent
Commencement Date", and (ii) with respect to the Penthouse,
the "Penthouse Rent Commencement Date", as defined herein. At
the request of either Landlord or Tenant, Landlord and Tenant
shall execute and deliver to each other a writing confirming
the First Floor Walkway Rent Commencement Date (as hereinafter
defined), the 1st Floor East Wing Rent Commencement Date, and
the Penthouse Rent Commencement Date.
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10. RENT.
A. Because Tenant will bear the cost of building the First Floor
Walkway if it is built, Tenant shall pay Additional Rent, but
shall have no obligation to pay Base Rent, for the First Floor
Walkway during the Term or any Extension Term. Tenant's
obligation to pay Additional Rent with respect to the First
Floor Walkway shall commence on the date of the issuance of a
temporary or permanent certificate of occupancy for the First
Floor Walkway ("FIRST FLOOR WALKWAY RENT COMMENCEMENT DATE"),
and continue thereafter until the Expiration Date of the
Lease.
B. 1ST FLOOR EAST WING SPACE BASE RENT - INITIAL TERM. In
accordance with the provisions of this Third Amendment, Tenant
shall pay to Landlord Base Rent with respect to the 1st Floor
East Wing Space and the Third Floor Space at the rate of Nine
Dollars and Fifty Cents ($9.50) per rentable square foot of
the 1st Floor East Wing Space per annum commencing on the 1st
Floor East Wing Rent Commencement Date, and continuing
thereafter until February 29, 2004. Landlord and Tenant hereby
stipulate to the rentable area of the 1st Floor East Wing
Space as set forth in the third Whereas clause to this Third
Amendment.
PENTHOUSE BASE RENT - INITIAL TERM. In accordance with the
provisions of this Third Amendment, Tenant shall pay to
Landlord Base Rent with respect to the Penthouse at the rate
of Fourteen and 56/100 Dollars ($14.56) per rentable square
foot of the Penthouse per annum commencing on the Penthouse
Rent Commencement Date, and continuing thereafter until
February 29, 2004. Landlord and Tenant hereby stipulate to the
rentable area of the Penthouse as set forth in the third
Whereas clause to this Third Amendment.
BASE RENT - EXTENSION TERMS. Notwithstanding Section 3.1C. of
the Original Lease or anything else to the contrary contained
in the Lease, during the first 5-year Extension Term,
commencing on March 1, 2004 and ending on February 28, 2009,
if any, and the second 5-year Extension Term (commencing on
March 1, 2009 and ending on February 28, 2014), if any,
respectively, with respect to the Existing Additional Space
only, Tenant shall pay to Landlord a Base Rent equal to ninety
percent (90%) of the then fair market value rent for the
Existing Additional Space as determined by mutual agreement
between the parties, or if the parties fail to agree, as shall
be determined by arbitration in accordance with the Rules of
Commercial Arbitration of the American Arbitration Association
then in effect. In the event arbitration is necessary,
Landlord and Tenant shall each select one arbitrator, each of
whom shall be a commercial real estate broker with at least
ten (10) years of experience in the New Haven commercial real
estate market. If the two arbitrators are unable to agree on
the fair market value rent within fifteen days of their
selection, they shall appoint a third arbitrator and the
determinations of fair market value rent by the third
arbitrator so selected shall be final. The decision of the
arbitrators shall be binding on the parties. Each party shall
pay the fees and expenses of the arbitrator it selects and
the fees and
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expenses of the third arbitrator, if one is necessary, shall
be shared equally by the parties.
C. ADDITIONAL RENT. Notwithstanding anything to the contrary
contained herein, for purposes of calculating each and every
instance where Additional Rent is payable hereunder with
regard to the Additional Space, the Additional Space shall be
deemed to include 100% of the rentable area of the Existing
Additional Space and the First Floor Walkway, if it is built,
as determined in accordance with the provisions of Section 16
hereof. With respect to: (i) the 1st Floor East Wing Space and
the Third Floor Space, commencing on the 1st Floor East Wing
Space Rent Commencement Date, (ii) the Penthouse, commencing
on the Penthouse Rent Commencement Date, and (iii) the First
Floor Walkway, commencing on the First Floor Walkway Rent
Commencement Date, and, in each case, continuing thereafter
until the Expiration Date of the Lease, Tenant shall: (i) pay
for electricity and gas consumed in the portion of the
Additional Space in question in accordance with Section 3.4 of
the Original Lease, (ii) pay Additional Rent with respect to
the portion of the Additional Space in question in accordance
with Section 3.5 of the Original Lease, as modified by this
Third Amendment.
D. OPERATING EXPENSE PAYMENTS. In addition to Base Rent and other
Additional Rent due and payable by Tenant pursuant to the
other provisions of this Lease, Tenant shall pay to Landlord,
as Additional Rent, commencing on the 1st Floor East Wing Rent
Commencement Date (with respect to the 1st Floor East Wing
Space and the Third Floor Space), and commencing on the First
Floor Walkway Rent Commencement Date (with respect to the
First Floor Walkway), an amount equal to Tenant's OE Share (as
herein defined) of Operating Expenses paid or incurred by
Landlord during the Term of this Lease or any Extension Term,
regardless of whether any Operating Expense Year occurs in
whole or in part during the Term or any Extension Term;
provided, however, that for purposes of calculations made
under this Paragraph 10.D., in no event shall Landlord charge
Tenant more than Tenant's OE Share of 100% of the actual cost
of Operating Expenses incurred by Landlord.
ESTIMATED OE PAYMENTS. Additional Rent due and payable by
Tenant to Landlord pursuant to this Paragraph 10. D. shall be
paid in the following manner:
(a) Landlord shall reasonably estimate in
advance the amounts Tenant shall owe under this Article for
any full or partial Operating Expense Year. Beginning in the
first Operating Expense Year, Tenant shall pay such estimated
amounts, on a monthly basis, on or before the first day of
each calendar month during the first and each following
Operating Expense Year. Such estimate may be reasonably
adjusted from time to time by Landlord.
(b) Within 120 days after the end of each
Operating Expense Year, or as soon thereafter as practicable,
Landlord shall provide a statement (the "STATEMENT") to Tenant
showing: (i) the amount of actual Operating Expenses
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for such Operating Expense Year, with a listing of amounts for
major categories of Operating Expenses, (ii) any amount paid
by Tenant towards Additional Rent payable under this Article
during such Operating Expense Year on an estimated basis,
(iii) any revised estimate of Tenant's obligations for
Operating Expenses for the current Operating Expense Year, and
(iv) a calculation of whether the Operating Expense Cap has
been exceeded.
(c) If the Statement shows that the estimated
payments made by Tenant during the Operating Expense Year were
less than Tenant's actual obligations for the payment of
Additional Rent under this Paragraph 10. D. for such Year,
Tenant shall pay the difference. If the Statement shows an
increase in Tenant's estimated payments for the current
Operating Expense Year, Tenant shall pay the difference
between the new and former estimates, for the period from the
first day of the then-current Operating Expense Year through
the month in which the Statement is sent. Tenant shall make
such payments within thirty (30) days after the Statement is
deemed to have been given under the terms of this Lease.
(d) If the Statement shows that Tenant's
estimated payments exceeded Tenant's actual obligations for
the payment of Operating Expenses under this Paragraph 10. D.,
then Tenant shall receive a credit for the difference against
payments of rent next due. If the Term shall have expired and
no further rent shall be due, Tenant shall receive a refund of
such difference, within sixty (60) days after Landlord sends
the Statement.
(e) No delay by Landlord of nine (9) months or
less in providing the Statement (or separate statements) shall
be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations under this
Article. After such nine (9) month period, Landlord shall be
estopped from billing for past Operating Expenses.
BOOKKEEPING AND AUDITING. Landlord shall maintain records
respecting Operating Expenses and determine the same in
accordance with sound accounting and management practices,
consistently applied. Tenant or its representative shall have
the right to examine those books and records of Landlord and
any managing agent reasonably necessary for purposes of
auditing the Statement in question, provided Tenant gives
Landlord reasonable prior notice specifying the particular
respects in which the Statement is claimed to be incorrect.
Such examination shall take place during normal business hours
at the place or places where such records are normally kept
with forty-five (45) days following such notice from Tenant.
Each Statement shall be considered final, except as to matters
to which exception is taken after examination of Landlord's
records in the foregoing manner and within the foregoing
times. If Tenant takes exception to any matter contained in
the Statement as provided herein, Landlord shall refer the
matter to an independent certified public accounting firm
having a national practice, whose certification as to the
proper amount shall be final and conclusive as between
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Landlord and Tenant. Tenant shall promptly pay the cost of
such certification unless such certification determines that
Tenant was overbilled by more than two (2%) percent. Pending
resolution of any such exceptions in the foregoing manner,
Tenant shall continue paying, without prejudice to Tenant's
position, Tenant's OE Share of Operating Expenses paid or
incurred during the applicable Operating Expense Year in the
amounts determined by Landlord, subject to adjustment after
any such exceptions are resolved.
SURVIVAL. The parties' obligations set forth in this Paragraph
10. D shall survive the expiration or earlier termination of
this Lease for a period of one year, but such survival shall
not be deemed to effect the waiver set forth in subparagraph
10.D(e) hereof.
For purposes of this Paragraph 10.D., "Operating Expenses"
shall have the meaning given to such term in Paragraph 37.1
(e) of the Lease, as qualified by Paragraph 37.1 (f) of the
Lease. The Operating Expense Cap, as defined in Paragraph 37.1
(h) of the Lease, shall not apply to the 1st Floor East Wing
Space, the Third Floor Space or the First Floor Walkway (if it
is built), as defined herein.
For purposes of this Paragraph 10.D., "Building" shall have
the meaning given to such term in Paragraph 37.1 (c) of the
Lease.
For purposes of this Paragraph 10.D., "Operating Expense Year"
shall mean calendar year 2000 and each calendar year
thereafter any portion of which occurs during the Term of the
Lease. Notwithstanding the foregoing, the first Operating
Expense Year shall commence on the 1st Floor East Wing Rent
Commencement Date (with respect to the 1st Floor East Wing
Space and the Third Floor Space), and shall commence on the
First Floor Walkway Rent Commencement Date (with respect to
the First Floor Walkway) and shall end on December 31, 2000,
and the last Operating Expense Year shall end on the last day
of the Term or the last day of any Extension Term. Tenant's
obligation under this Paragraph 10.D. to pay estimated and
actual amounts towards Operating Expenses for the first and
last Operating Expense Year shall be prorated by multiplying
the total estimated or actual (as the case may be) Operating
Expenses paid or incurred during the first or last (as the
case may be) Operating Expense Year, by a fraction, the
numerator of which shall be the number of days in the first or
last (as the case may be) Operating Expense Year, and the
denominator of which shall be 365.
For purposes of this Paragraph 10.D., "Tenant's OE Share"
shall mean a fraction, the numerator of which shall be the
total number of rentable square feet in the First Floor East
Wing Space plus the Third Floor Space (185 rentable square
feet) and the denominator of which shall be the total number
of rentable square feet in the Building. If the First Floor
Walkway is built, the rentable square footage of the Building
and the 1st Floor East Wing Space shall be deemed for purposes
of calculating Tenant's OE Share to include the rentable
square footage of the First Floor Walkway, as the case may be.
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For purposes of this Paragraph 10.D., "Park Expenses" shall
have the meaning given to such term in Paragraph 37.1 (j) of
the Lease.
GROSS UP PROVISION. If the Building is not fully occupied
during all or a portion of any Operating Expense Year,
Landlord may, in accordance with sound accounting and
management practices, determine the amount of Operating
Expenses actually paid or incurred by Landlord that would have
been included in Operating Expenses had the Building been
fully occupied and the amount so determined shall be deemed to
have been the amount of Operating Expenses for such year,
subject to the first sentence of this Section 10D.
E. OPERATING EXPENSES FOR PENTHOUSE.
Tenant's obligation to pay Operating Expenses for the
Penthouse shall be governed by the provisions of Section 17 of
the Second Amendment except that:
(a) With respect to the Penthouse, "BASE EXPENSE
YEAR" shall mean the twelve (12) month period commencing on
the Penthouse Rent Commencement Date.
(b) With regard to the Penthouse, "TENANT'S OE
SHARE" shall mean a fraction, the numerator of which shall be
the total of the rentable area of the Penthouse and the
denominator of which shall be the total number of rentable
square feet in the Building 5 North and Building 5 South, plus
the rentable area of the Bridge and/or the First Floor
Walkway, if either is built.
(c) Tenant's obligation to begin paying
Operating Expenses with respect to the Penthouse shall not
commence until the first Operating Expense Year occurring
immediately following the Base Expense Year attributable to
the Penthouse.
(d) On or before the first day of each Operating
Expense Year following the Base Expense Year attributable to
the Penthouse, Landlord shall give Tenant statements of the
estimated amount of increase in Operating Expenses that Tenant
will owe with respect to such space for ensuing Operating
Expense Year, and Tenant shall make payments monthly in
accordance with such statement.
11. DEFINITIONS. The first sentence of Section 4.1(d) of the Original
Lease, Section 8(b) of the First Amendment and Paragraph 12 of the
Second Amendment are hereby deleted and substituted therefor is the
following:
"Tenant's Pro-Rata Share" shall mean a fraction, the numerator
of which shall be the total number of rentable square feet in
the Leased Premises (taking into account that the rentable
area of the Additional Space, as defined in the Second
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Amendment, shall be calculated in accordance with the
provisions of Section 11(b) of the Second Amendment and the
Additional Space, as defined in the Third Amendment, shall be
calculated in accordance with the provisions of Paragraph 16
of the Third Amendment), as the same may increase or decrease
from time to time, and the denominator of which shall be the
total number of rentable square feet in Building 5 North and
Building 5 South combined, as same may increase or decrease
from time to time, plus (i) the rentable area of the First
Floor Walkway, if it is built, and (ii) the rentable area of
the Bridge (as such term is defined in the Second Amendment),
if it is built; Landlord represents that as of the date hereof
the combined area of Building 5 North and Building 5 South,
excluding the Bridge and the First Floor Walkway, measured in
rentable square feet is approximately 102,938 rentable square
feet.
12. TAX PAYMENT.
A. Commencing on the 1st Floor East Wing Rent Commencement Date,
Paragraph 13 of the Second Amendment is hereby deleted and
substituted therefor is the following:
"Commencing on the 1st Floor East Wing Rent Commencement Date
(as defined in the Third Amendment), Tenant shall pay to
Landlord as Additional Rent due hereunder, for any Tax Year,
any part of which occurs after the 1st Floor East Wing Rent
Commencement Date and during the Term or any Extension Term,
an amount (the "TAX PAYMENT") equal to: (i) Tenant's Pro-Rata
Share (as defined in the Third Amendment) of the Taxes
attributable to the Base Building, plus (ii) 100% of the Taxes
attributable to Tenant's Work (which for purposes of the
balance of this Article 4 shall mean collectively Tenant's
Work as defined under the Original Lease, the First Amendment,
the Second Amendment and the Third Amendment)."
B. It is the parties' intent that the provisions of Sections
9(a)(iii), 9(b) and 9(c) of the First Amendment apply
generally to the Second Amendment and this Third Amendment and
govern specifically the parties' rights and obligations with
respect to Tax Payments, Enterprise Zone benefits and
apportionment of both hereunder.
13. PARKING. The rental of the Additional Space will include the use of
forty-seven (47) parking spaces in addition to the eighty (80) parking
spaces provided for under the Original Lease, the twenty-five (25)
parking spaces provided for under the First Amendment and the fifty
(50) parking spaces provided for under the Second Amendment. The term
"TENANT'S PARKING SPACES" shall be amended to include such additional
forty-seven (47) parking spaces, bringing the total of Tenant's Parking
Spaces to two hundred and two (202). Ten (10) of said additional
forty-seven (47) parking spaces shall be made available to Tenant
upon the execution and delivery of this Third Amendment, twenty (20) of
said additional forty-seven (47) parking spaces shall be made available
to Tenant
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as of the date Tenant takes occupancy of the 1st Floor East Wing
Space for the purpose of conducting its business therein, and the
remaining seventeen (17) parking spaces shall be made available to
Tenant as of the date which is six (6) months after the date of this
Third Amendment first written above. All of Tenant's Parking Spaces
shall be located within the areas shown on EXHIBIT A-4 at all times
during the Term or any Extension Term.
14. AS-IS CONDITION. Subject to completion of the Landlord's obligations
set forth in this Third Amendment, including without limitation,
removal of the Shed and completion of the Interior Work, Landlord shall
tender Tenant possession of the Additional Space in its then "as is"
condition and Tenant agrees to accept possession of the Additional
Space in its then "as is" condition, broom clean.
15. TENANT'S WORK. Tenant, at Tenant's expense, agrees to make improvements
to the Additional Space pursuant to plans and specifications approved
by Landlord. Such improvements shall be deemed "TENANT'S WORK" and such
plans and specifications shall be deemed "TENANT'S PLANS", and the
terms of Section 2.7(a) of the Original Lease shall govern the approval
of same. It is currently Tenant's intention that the Tenant's Work will
include the construction of the First Floor Walkway. Tenant shall not
be penalized in any manner if Tenant does not build the First Floor
Walkway as part of the Tenant's Work. Tenant shall proceed with
reasonable due diligence to perform Tenant's Work following funding of
Tenant's new loan from Connecticut Innovations, Inc. (the "NEW CII
LOAN") and the issuance of a building permit therefor.
16. THE FIRST FLOOR WALKWAY. If Tenant builds the First Floor Walkway, then
for all purposes under the Lease, the First Floor Walkway shall be
deemed a part of the Leased Premises, except that Tenant shall not be
required to pay Base Rent with respect to the First Floor Walkway. The
rentable area of the First Floor Walkway shall be remeasured by Svigals
Associates at Tenant's expense promptly after construction and included
as part of the Leased Premises for purposes of calculating Tenant's
Pro-Rata Share and for purposes of calculating Tenant's OE Share (as
both terms are defined in this Third Amendment). The parties agree that
the usable area and the rentable area of the First Floor Walkway will
be the same. Similarly, if the First Floor Walkway is not constructed,
the rentable area of the Leased Premises for purposes of calculating
Additional Rent shall not include the rentable area of the First Floor
Walkway. Tenant shall have no obligation to remove or restore the First
Floor Walkway upon surrender of the Leased Premises to Landlord,
notwithstanding the provisions of Section 6.2 of the Original Lease.
17. LOBBY AND BATHROOMS. For all purposes under the Lease, the lobby and
bathrooms between the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Wing Space and
the ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Wing Space shall not be deemed a
part of the Additional Space and have not been and shall not be
included in the calculation of Base Rent Tenant is obligated to pay
hereunder. In addition, the rentable square footage of the said lobby
and bathrooms shall not be included in the calculation of Tenant's
Pro-Rata Share of Taxes under Article 4 of the Lease, as amended by
this Third Amendment, and for purposes of calculating Tenant's OE Share
as defined in Section 12 hereof.
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18. SUBORDINATION AND NON-DISTURBANCE. As used herein, the term "LANDLORD'S
LENDER" shall mean and refer to the Connecticut Housing Finance
Authority ("CHFA"), the Connecticut Development Authority ("CDA") and
each future lender who may from time to time extend credit to Landlord
which extensions of credit may be secured in whole or in part by a
mortgage, deed of trust, ground lease or other security interest
affecting the real property of which the Additional Space is a part.
Tenant's obligations under this Third Amendment are subject to receipt
of non-disturbance agreements from CDA and CHFA, both of which shall be
substantially similar in form and content to the form of
Non-Disturbance, Subordination and Attornment received from CDA and
CHFA in connection with the execution of the First Amendment and the
Second Amendment. Provided CHFA and CDA execute and deliver said
non-disturbance agreements, the Lease, as modified by this Third
Amendment, shall be subject and subordinated to: (a) all security
interests in favor of CHFA and CDA affecting the Leased Premises,
including without limitation the Additional Space, or the property of
which the Leased Premises are a part, and (b) all present and future
mortgages, deeds of trust and other security interests, including
leasehold mortgages, granted by Landlord in favor of CHFA and CDA and
affecting the Leased Premises, including without limitation the
Additional Space, or the property of which the Leased Premises are a
part. Tenant agrees to execute, at no expense to Landlord, any
instrument which may reasonably be deemed necessary or desirable by
Landlord, CHFA or CDA or to further effect the subordination of the
Lease, as modified by this Third Amendment to Lease, to any such
security interest, provided however, Tenant's non-disturbance rights
are not affected. The Tenant's failure to strictly comply with this
section will constitute an Event of Default under this Lease.
19. NEW CII LOAN.
A. Section 15.1B of the Original Lease is hereby modified to
permit Tenant to assign its right, title and interest in and
to this Third Amendment without Landlord's consent to CII as
collateral security for the New CII Loan, or to any Tenant's
Lender as collateral security for a similar loan to Tenant.
Tenant's Lender, including, without limitation, CII shall be
entitled to assign its rights under this Third Amendment or to
sublet the Additional Space to any entity, subject to the
provisions set forth in subsections 15.1B(a)-(d) of the
Original Lease.
B. Upon at least five (5) business days notice, Landlord, at its
expense, hereby agrees to enter into a new Consent and
Intercreditor Agreement in form and content acceptable to CDA,
CII, CHFA and Landlord but relating to the New CII Loan and
this Third Amendment. Landlord hereby agrees to work with the
CDA, CII and CHFA to facilitate full execution of the new
Consent and Intercreditor Agreement by Landlord's Lenders. In
addition, Landlord hereby agrees that it will not raise
objection to any provisions in the new Consent and
Intercreditor Agreement that are substantially similar to the
original or amended Consent and Intercreditor Agreements
signed in connection with the Original Lease and the First and
Second Amendments, respectively.
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C. Upon the closing of the New CII Loan, Landlord agrees to
execute and deliver an affidavit (a) verifying the
nonexistence of any tenants' rights in the Additional Space,
(b) verifying the nonexistence of any security interests in
personal property and fixtures that form a part of the
Additional Space, other than the rights therein, if any, of
the CDA and CHFA as the current Landlord's Lenders, and United
States Department of Commerce, Economic Development
Administration and (c) that Landlord has no notice of any
facts or circumstances not of record which could give rise to
the claim of any third party to rights of adverse possession
or use over the Additional Space or any part thereof in
derogation of Landlord's title. Upon the execution of this
Third Amendment, Landlord further agrees to obtain and deliver
a subordination of mechanic's liens, subordinated as to the
lien in favor of CII, executed by any contractor(s) who have
furnished any labor, services or materials in connection with
construction or repair work to the Building on behalf of
Landlord and would have a right to file a mechanic's lien that
would have priority over the mortgage filed in connection with
the New CII Loan.
20. AMENDED NOTICE OF LEASE. Article 30 of the Original Lease is hereby
amended to provide that at the request of either party, the notice of
lease relating to the Original Lease shall be amended to reflect the
addition of the Additional Space.
21. EFFECT. The Lease, as modified by this Third Amendment, remains in full
force and effect.
22. MERGER. All understandings, letters of intent or agreements between
Tenant and Landlord, which predate this Third Amendment are merged
herein. No oral statements or representations or prior written
communications by or between the parties dealing with the subject
matter of this Third Amendment shall be binding or effective. This
Third Amendment and the Lease are the sole and complete expression of
the agreement between Landlord and Tenant as to the subject matter
thereof.
23. SEVERABILITY. If any of the provisions of this Third Amendment, or its
application, is held by any court or in arbitration to be invalid or
inapplicable, such decision shall not affect any other term, provision,
covenant or condition of this Third Amendment. Notwithstanding the
foregoing, if the invalid provision has the effect of reducing the rent
to be paid by Tenant, Landlord may cancel the Lease.
24. GOVERNING LAW. The laws of the State of Connecticut will govern the
interpretation of this Third Amendment.
25. BINDING NATURE AND TIME IS OF THE ESSENCE. This Third Amendment shall
be binding upon the parties hereto and upon their heirs,
administrators, executors, successors and assigns, and shall not be
construed against the party that drafted it. The paragraph headings are
for the parties' convenience and shall not be deemed to effect the
meaning of this Third Amendment or otherwise. Time is of the essence
with respect to all dates and
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time periods set forth in this Third Amendment.
14
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals as of the day and year first above written.
SCIENCE PARK DEVELOPMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Director of Development
Duly Authorized
GENAISSANCE PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President
Duly Authorized
15
Pursuant to Section 34.2 of the Lease dated September 15, 1998 by and
between Science Park Development Corporation and Genaissance Pharmaceuticals,
Inc., the undersigned hereby consent to the foregoing Third Amendment to Lease.
CONNECTICUT DEVELOPMENT AUTHORITY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date: 7/26/00
----------------------------- ------------------------
Print Name:
Print Title:
THE CONNECTICUT HOUSING FINANCE AUTHORITY
By: /s/ ▇▇▇▇ ▇. Claford Date: 7/24/00
----------------------------- ------------------------
Print Name:
Print Title:
CONNECTICUT INNOVATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Date: 7/25/00
----------------------------- ------------------------
Print Name:
Print Title:
16
EXHIBIT ▇-▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ WING SPACE
AND PROPOSED FIRST FLOOR WALKWAY
1
EXHIBIT A-2
FLOOR PLAN OF PENTHOUSE
1
EXHIBIT A-3
THIRD FLOOR SPACE
1
EXHIBIT A-4
DESIGNATED PARKING AREAS
2
EXHIBIT B-1
INTERIOR WORK
1. Piping and supply of chilled and hot water sufficient to operate
Tenant's HVAC system will be installed up to the Additional Space.
2. Modifications and/or upgrades to fire alarm system and sprinkler system
if required by fire marshal.
3. Installation of hot water supply and return.
4. Installation of baseboard heating system.
5. Window replacement work.
3
