Exhibit 10.11.1
SECOND AMENDMENT TO LEASE
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1. PARTIES
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1.1 THIS AGREEMENT made the 19th day of December, 2002 is between 300 XXXX
REALTY ASSOCIATES L.L.C. ("Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
PAR PHARMACEUTICAL, INC. ("Lessee"), whose address is 000 Xxxx
Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000.
2. STATEMENT OF FACTS
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2.1 Lessor and Lessee previously entered into a Lease dated May 24, 2002,
as amended by First Amendment to Lease dated August 5, 2002, (the
"Lease") covering approximately 10,420 gross rentable square feet on
the second (2nd) floor (hereinafter referred to as the "Existing
Premises") in the building located at 000 Xxxx Xxxxxxxxx, Xxxxxxxxx
Xxxx, Xxx Xxxxxx ("Building"); and
2.2 The Term of the Lease currently expires on January 31, 2010
("Expiration Date"); and
2.3 Lessee desires to expand the Existing Premises by leasing
approximately 25,656 gross rentable square feet on the third (3rd)
floor of the Building ("Expansion Premises"), as shown on Exhibit A
attached hereto and made a part hereof and by leasing two (2) storage
units in the garage, consisting of Unit A of approximately 350 gross
rentable square feet and Unit B of approximately 308 gross rentable
square feet (the "Storage Space") as shown on Exhibit A-1 attached
hereto and made a part hereof; and
2.4 The parties desire to extend the Term of the Lease for a period to
commence on February 1, 2010; and
2.5 The parties desire to amend certain terms of the Lease as set forth
below.
3. AGREEMENT
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NOW, THEREFORE, in consideration of the terms, covenants and
conditions hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 All capitalized and non-capitalized terms used in this Agreement which
are not separately defined herein but are defined in the Lease shall
have the meaning given to any such term in the Lease.
3.3 The Term applicable to the Expansion Premises and Storage Space shall
commence on the Effective Date (as defined below) and shall terminate
at 11:59 p.m. on the last day of the month during which the eight (8)
year anniversary of the Effective Date occurs.
3.4 The effective date applicable to the Expansion Premises (the
"Effective Date") shall be the earlier of (i) the day Lessor
substantially completes the improvements to be made to the Expansion
Premises in accordance with Exhibit B attached hereto and made part
hereof or (ii) the date Lessee or anyone claiming under or through
Lessee shall occupy the Expansion Premises. The Storage Space shall be
delivered in "as is" condition and therefore the Effective Date
applicable to the Storage Space shall be upon its delivery to Lessee.
3.5 From and after the Effective Date, the following shall be effective:
a. Lessor shall lease to Lessee and Lessee shall hire from Lessor
the Expansion Premises as shown on Exhibit A attached hereto and
made part hereof and Storage Space as shown on Exhibit A-1
attached hereto and made part hereof.
b. The Premises shall be defined as approximately 36,734 gross
rentable square feet consisting of approximately 10,420 gross
rentable square feet on the second (2nd) floor and approximately
25,656 gross rentable square feet on the third (3rd) floor of the
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Building and approximately 658 gross rentable square feet of
Storage Space in the garage and Paragraph 7 of the Preamble to
the Lease shall be deemed amended accordingly.
c. In addition to the Fixed Basic Rent payable applicable to the
Existing Premises, Lessee shall pay Lessor Fixed Basic Rent
applicable to the Expansion Premises and Storage Space which
shall accrue as follows and Paragraph 10 of the Preamble to the
Lease shall be deemed amended accordingly:
A. Fixed Basic Rent for the Expansion Premises:
(i) Commencing on the Effective Date through and including the
last day of the month in which the five (5) year anniversary
of the Effective Date occurs, the Fixed Rent for the
Expansion Premises only shall be SEVEN HUNDRED FIVE THOUSAND
FIVE HUNDRED FORTY AND 00/100 DOLLARS ($705,540.00) per
annum, payable in advance in equal monthly installments of
FIFTY EIGHT THOUSAND SEVEN HUNDRED NINETY FIVE AND 00/100
DOLLARS ($58,795.00) each;
(ii) For the next three (3) years through and including the
expiration Date, the Fixed Rent for the Expansion Premises
only shall be SEVEN HUNDRED THIRTY ONE THOUSAND ONE HUNDRED
NINETY SIX AND 00/100 DOLLARS ($731,196.00) per annum,
payable in advance in equal monthly installments of SIXTY
THOUSAND NINE HUNDRED THIRTY THREE AND 00/100 DOLLARS
($60,933.00) each.
B. Fixed Basic Rent for the Storage Space:
Commencing on the Effective Date through and including the
expiration, the Fixed Rent for the Storage Space only shall
be EIGHT THOUSAND TWO HUNDRED TWENTY FIVE AND 00/100 DOLLARS
($8,225.00) per annum, payable in advance in equal monthly
installments of SIX HUNDRED EIGHTY FIVE AND 42/100 DOLLARS
($685.42) each.
d. Lessee's Percentage applicable to the Expansion Premises
shall be 11.15%. Lessee's Percentage applicable to the
Storage Space shall be .29%.
e. Lessee shall pay Lessor, as Additional Rent, Lessee's
Percentage applicable to the Expansion Premises of the
increased cost to Lessor for each of the categories set
forth in Article 23 ADDITIONAL RENT over the Base Period
Costs set forth below.
f. Base Period Costs applicable to the Expansion Premises shall
be as follows and Paragraph 2 of the Preamble to the Lease
shall be deemed amended accordingly:
(A) Base Operating Costs: Those costs incurred for the
Building and Office Building Area during the Calendar
Year 2003.
(B) Base Real Estate Taxes: Those Real Estate Taxes
incurred for the Building and Office Building Area
during Calendar Year 2003.
(C) Insurance Cost Expense Stop: $32,630.00.
(D) Utility and Energy Costs Expense Stop: $230,000.00.
g. Lessee shall pay Lessor the cost of electricity consumed
within the Expansion Premises in accordance with Article 22
of the Lease BUILDING STANDARD OFFICE ELECTRICAL SERVICE.
h. The number of parking spaces as set forth in Paragraph 14 of
the Preamble to Lease shall be increased to a total of one
hundred forty five (145) spaces as follows:
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Assigned: thirty -four (34) spaces located in the garage
Unassigned: one hundred eleven (111) spaces in the outdoor
parking lot
3.6 The Term applicable to the Existing Premises shall be extended for a
period commencing on February 1, 2010 and expiring at 11:59 p.m. on
the last day of the month during which the eight (8) year anniversary
of the Effective Date (as defined herein) occurs ("Extension Term")
and Paragraphs 9 and 17 of the Preamble to the Lease shall be deemed
amended accordingly.
3.7 Lessor hereby leases to Lessee and Lessee hereby hires from Lessor the
Existing Premises in its "AS-IS" condition for the Extension Term, as
defined herein, under the terms and conditions set forth herein.
Lessor shall have no obligation to perform any tenant improvement work
in the Existing Premises except as set forth on Exhibit B.
3.8 Commencing on February 1, 2010 and during the Extension Term, the
following shall be effective:
a. The Fixed Basic Rent applicable to the Existing Premises shall
continue at the rate of TWO HUNDRED NINETY SIX THOUSAND NINE
HUNDRED SEVENTY AND 00/100 DOLLARS ($296,970.00) per annum,
payable in advance in equal monthly installments of TWENTY FOUR
THOUSAND SEVEN HUNDRED FORTY SEVEN AND 50/100 DOLLARS
($24,747.50) per month and Paragraph 10 of the Preamble shall be
deemed supplemented accordingly.
b. Lessee shall continue to pay Lessor, as Additional Rent, Lessee's
Percentage applicable to the Existing Premises of the increased
cost to Lessor for each of the categories set forth in Article 23
of the Lease Additional Rent over the Base Period Costs set forth
in Paragraph 3.5 f. of this First Amendment and Paragraph 2 of
the Preamble to Lease shall be amended accordingly.
c. Lessee shall continue to pay Lessor the cost of electricity
consumed within the Existing Premises in accordance with Article
22 of the Lease BUILDING STANDARD OFFICE ELECTRICAL SERVICE.
3.9 Article 15 SUBORDINATION OF LEASE shall be amended by deleting said
Article in its entirety and substituting the following in its place:
"SUBORDINATION OF LEASE: This Lease shall, at Lessor's option, or at
the option of any holder of any underlying lease or holder of any
mortgages or trust deed, be subject and subordinate to any such
underlying leases and to any such mortgages or trust deed which may
now or hereafter affect the real property of which the Premises form a
part, and also to all renewals, modifications, consolidations and
replacements of said underlying leases and said mortgages or trust
deed provided, that Lessor shall obtain a non-disturbance agreement
from the future holder of any such underlying lease, mortgage or trust
deed in said lender's standard form. Lessee will execute and deliver
such further instruments confirming such subordination of this Lease
as may be desired by the holders of said mortgages or trust deed or by
any of the lessor's under such underlying leases, provided the
requirements of the preceding sentence are met. If any underlying
lease to which this Lease is subject terminates, Lessee shall, on
timely request, attorn to the owner of the reversion.
Lessor represents that there currently is no mortgage encumbering the
Building."
3.10 Article 52 LESSEE'S EXPANSION/RELOCATION shall be deleted in its
entirety.
3.11 A new Article 56 RIGHT OF FIRST OFFER shall be added to the Lease as
follows:
"56. RIGHT OF FIRST OFFER:
a. i. Subject to the provisions of this Article, Lessee shall have
the option to lease from Lessor space on the third (3rd) floor
contiguous to the Expansion Premises ("Additional Space") at the
expiration of the existing space lease for such Additional Space,
subject to Lessor's right to renew such lease. If the Term of
this Lease shall be in full force and effect on the expiration or
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termination date of the existing space lease for the Additional
Space, subject to Lessor's right to renew such lease, and the
date upon which Lessee shall exercise the option hereinafter
referred to, Lessee shall have the option to lease all, but not
less than all of the Additional Space on an as-is basis, provided
Lessee gives Lessor written notice of such election within ten
(10) days after Lessee shall receive Lessor's notice that such
Additional Space is available for leasing to Lessee. If Lessee
fails or refuses to exercise this option within the time period
set forth above (TIME BEING OF THE ESSENCE), then and in such
event Lessee shall have no further rights under this Section with
respect to such Additional Space. If Lessee shall elect to lease
said Additional Space: (v) said Additional Space shall be deemed
incorporated within and part of the Premises on the date that
Lessor shall notify Lessee that such Additional Space is ready
for occupancy by Lessee and shall expire on the Expiration Date
of this Lease, (x) the Fixed Basic Rent payable under this Lease
shall be increased by an amount such that during the balance of
the term of this Lease (A) if the Commencement Date applicable to
the Additional Space occurs before the three (3) year anniversary
of the Effective Date, the Fixed Basic Rent for said Additional
Space shall, on a per square foot basis, be equal to the Fixed
Basic Rent, on a per square foot basis, as same is increased
after the 5th year anniversary hereunder, payable by Lessee for
the Premises, and Lessee shall receive an allowance in an amount
not to exceed $10.00 per square foot in the Additional Premises
toward the cost of work to be performed by Lessee in the
Additional Space, which allowance shall be prorated based upon
the number of full months remaining in the term divided by 96
months, Lessee's Percentage shall be proportionately increased,
and all other terms and provisions set forth in this Lease shall
apply or (B) if the Commencement Date applicable to the
Additional Space occurs on or after the three (3) year
anniversary of the Effective Date, the Fixed Basic Rent for said
Additional Space shall be the then fair market rent for the
Additional Space, as determined in the manner set forth in clause
(ii) below, Lessee's Percentage shall be proportionately
increased, and all other terms and provisions set forth in this
Lease shall apply, except that Lessor not be required to perform
any work with respect to said Additional Space and Lessee shall
not be entitled to any allowance.
The parties shall promptly execute an amendment of this Lease
confirming Lessee's election to lease said Additional Space and
the incorporation of said Additional Space into the Premises.
If prior to the expiration of the existing space lease for such
Additional Space Lessor shall receive notice from the tenant
thereof that the Additional Space or portion thereof shall be
offered for sublease, then Lessor shall so advise Lessee and
Lessor agrees to explore in good faith with Lessee and the tenant
under said existing space lease, the terms and provisions of a
recapture of said space by Lessor and a lease of said space to
Lessee on mutually acceptable terms. Neither party shall have any
obligation to enter into said expansion of lease or liability for
failure to do so.
ii. Lessor and Lessee shall use their best efforts, within thirty
(30) days after Lessor receives Lessee's notice of its election
to lease said Additional Space, ("Negotiation Period") to agree
upon the Fixed Basic Rent to be paid by Lessee for said
Additional Space. If Lessor and Lessee shall agree upon the Fixed
Basic Rent, the parties shall promptly execute an amendment to
this Lease stating the Fixed Basic Rent for the Additional Space.
If the parties are unable to agree on the Fixed Basic Rent for
said Additional Space during the Negotiation Period, then within
fifteen (15) days notice from the other party, given after
expiration of the Negotiation Period, each party, at its cost and
upon notice to the other party, shall appoint a person to act as
an appraiser hereunder, to determine the fair market rent for the
Additional Space. Each such person shall be a real estate broker
or appraiser with at least ten (10) years' active commercial real
estate appraisal or brokerage experience (involving the leasing
of similar space as agent for both landlords and tenants) in
Bergen County. If a party does not appoint a person to act as an
appraiser within said fifteen (15) day period, the person
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appointed by the other party shall be the sole appraiser and
shall determine the aforesaid fair market rent. Each notice
containing the name of a person to act as appraiser shall contain
the person's address. Before proceeding to establish the fair
market rent, the appraisers shall subscribe and swear to an oath
fairly and impartially to determine such rent.
If the two appraisers are appointed by the parties as stated in
the immediately preceding paragraph, they shall meet promptly and
attempt to determine the fair market rent. If they are unable to
agree within forty-five (45) days after the appointment of the
second appraiser, they shall attempt to select a third person
meeting the qualifications stated in the immediately preceding
paragraph within fifteen (15) days after the last day the two
appraisers are given to determine the fair market rent. If they
are unable to agree on the third person to act as appraiser
within said fifteen (15) day period, the third person shall be
appointed by the American Arbitration Association, upon the
application of Lessor or Lessee to the office of the Association
nearest the Building. The person appointed to act as appraiser by
the Association shall be required to meet the qualifications
stated in the immediately preceding paragraph. Each of the
parties shall bear fifty percent (50%) of the cost of appointing
the third person and of paying the third person's fees. The third
person, however selected, shall be required to take an oath
similar to that described above.
The three appraisers shall meet and determine the fair market
rent. A decision in which two of the three appraisers concur
shall be binding and conclusive upon the parties. In deciding the
dispute, the appraisers shall act in accordance with the rules
then in force of the American Arbitration Association, subject
however, to such limitations as may be placed on them by the
provisions of this Lease.
After the Fixed Basic Rent for the Additional Space has been
determined by the appraiser or appraisers and the appraiser or
appraisers shall have notified the parties, at the request of
either party, both parties shall execute and deliver to each
other an amendment of this Lease stating the Fixed Basic Rent for
the Additional Space.
If the Fixed Basic Rent for said Additional Space has not been
agreed to or established prior to the incorporation of said
Additional Space in the Premises, then Lessee shall pay to Lessor
an annual rent ("Temporary Rent") which Temporary Rent on a per
square foot basis shall be equal to the Fixed Basic Rent, on a
per square foot basis, then being paid by Lessee for the
Premises.
Thereafter, if the parties shall agree upon a Fixed Basic Rent,
or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent (i) if
such Fixed Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between the Fixed
Basic Rent determined by agreement or the appraisal process and
the Temporary Rent, or (ii) if such Fixed Basic Rent is less than
the Temporary Rent, Lessor shall credit to Lessee's subsequent
monthly installments of Fixed Basic Rent the difference between
the Temporary Rent and the Fixed Basic Rent determined by
agreement or the appraisal process.
In determining the fair market rent for said Additional Space,
the appraiser or appraisers shall be required to take into
account the rentals at which leases are then being concluded for
comparable space in the Building and in comparable buildings in
the County of Bergen, New Jersey and the fact that Lessor is not
required to perform any work with respect to said Additional
Space. In no event shall the Fixed Basic Rent for the Additional
Space, on a per square foot basis, be less than the Fixed Basic
Rent for the Premises, on a per square foot basis.
b. The option granted to Lessee under this Article 56 may be
exercised only by Lessee, its permitted successors and assigns,
and not by any subtenant or any successor to the interest of
Lessee by reason of any action under the Bankruptcy Code, or by
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any public officer, custodian, receiver, United States Trustee,
trustee or liquidator of Lessee or substantially all of Lessee's
property. Lessee shall have no right to exercise any of such
options subsequent to the date Lessor shall have the right to
give the notice of termination referred to in Article 13.
Notwithstanding the foregoing, Lessee shall have no right to
exercise the option granted to Lessee hereunder if, at the time
it gives notice of such election (i) Lessee or an affiliate of
Lessee shall not be in occupancy of substantially all of the
Premises or (ii) the Premises or any part thereof shall be the
subject of a sublease other than to an affiliate of Lessee. If
Lessee shall have elected to exercise its option hereunder, such
election shall be deemed withdrawn if, at any time after the
giving of notice of such election and prior to the occupancy of
the Additional Space, Lessee shall sublease all or any part of
the Premises.
3.12 The Option to Extend as set forth in Article 55 of the Lease shall
continue in full force and effect and shall be applicable to both the
Existing Premises and the Expansion Premises.
3.13 No later than thirty (30) days after the determination of the
Effective Date, the parties shall agree to memorialize the Effective
Date in writing.
3.14 Lessee and Lessor each represents and warrants to the other that no
broker brought about this transaction except Strategic Alliance
Partners, LLC, and each party agrees to indemnify, defend and hold the
other harmless from any and all claims of any broker claiming to have
dealt with such party arising out of or in connection with
negotiations of, or entering into of, this Agreement.
3.15 Lessee hereby represents to Lessor that (i) there exists no default
under the Lease either by Lessor or Lessee; (ii) Lessee is entitled to
no credit, free rent or other offset or abatement of the rents due
under the Lease; and (iii) there exists no offset, defense or
counterclaim to Lessee's obligation under the Lease.
3.16 Except as expressly amended herein, the Lease dated May 24, 2002, as
amended herein, shall remain in full force and effect as if the same
had been set forth in full herein, and Lessor and Lessee hereby ratify
and confirm all of the terms and conditions thereof.
3.17 This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors
and permitted assigns.
3.18 Each party agrees that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that
the Lease or this Agreement is invalid or unenforceable due to any
failure of this document to comply with ministerial requirements
including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements,
and each party hereby waives the right to assert any such defense or
make any claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written, and acknowledge one to the other
that they possess the requisite authority to enter into this transaction and to
sign this Agreement.
LESSOR: LESSEE:
300 XXXX REALTY ASSOCIATES L.L.C. PAR PHARMACEUTICAL, INC.
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By: Xxxx-Xxxx Realty, L.P.
Member
By: Xxxx-Xxxx Realty Corporation,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: Xxxxxx X'Xxxxxx
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Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X'Xxxxxx
Executive Vice President Title:VP-CFO
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EXHIBIT B
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LESSOR'S WORK
RE: Workletter Agreement for office space on the third floor at 000 Xxxx
Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx.
December 19, 2002
PAR PHARMACETICAL, INC., LESSEE
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease amendment ("Lease"), covering the space
referred to above, as more particularly described in the Lease ("Expansion
Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessee shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout to be
supplied to Lessor by Lessee.
1. Architectural drawings and specifications for Lessee's partition
layout, reflected ceiling, placement of electrical outlets and other
installations for the work to be done by Lessor.
2. Mechanical plans and specifications where necessary for installation
of air conditioning systems, ductwork and heating.
All such plans and specifications are expressly subject to Lessor's written
approval, which Lessor covenants it will not unreasonably withhold.
2. Upon approval of the plans by Lessor, Lessor shall file said plans with the
appropriate governmental agencies.
3. Lessor agrees to do the work in the Premises per the drawings stated above
and per the terms and conditions of this Exhibit C which shall hereinafter
be referred to as "The Work". "Building Standard" shall mean the type and
grade of material, equipment and/or device designated by Lessor as standard
for the Building. All items are Building Standard unless otherwise noted.
The provisions of Article 6 of the Lease shall apply to any alterations
made to the Premises after the initial work to be performed herein.
4. Lessor shall deliver to Lessee within fifteen (15) days after the date on
which the conceptual plan is delivered to Lessor, a statement including
Lessor's 7% supervision plus 7% overhead charges ("Lessor's Estimate")
which specifies in detail Lessor's good faith estimate of the total "Lessee
Improvement Costs". The "Lessee Improvement Costs" shall be defined as any
and all reasonable costs, including hard and soft costs, which are expected
to be incurred by Lessor in connection with the construction of The Work.
Lessor's Estimate shall be subject to the review and written approval of
Lessee, such approval not to be unreasonably withheld. Such approval shall
be deemed given if Lessee does not disapprove the same in writing within
ten (10) days after its receipt of Lessor's Estimate.
Lessor agrees to fund up to TWO HUNDRED FIFTY SIX THOUSAND FIVE HUNDRED
SIXTY And 00/100 dollars ($256,560.00) (hereinafter referred to as "Lessor
Contribution") for the Lessee Improvement Costs. In the event that the
Lessor's Estimate as approved by Lessee, indicates that the Lessee
Improvement Costs will exceed the Lessor Contribution, then;
Lessee shall pay the "Cost in Excess" (defined as that portion of the
Lessee Improvement Costs which exceed the Lessor Contribution) to Lessor
prior to occupancy of the Expansion Premises, and will notify Lessor of its
intention to do so within fifteen (15) days after Lessee's approval of
Lessor's Estimate.
5. All low partitioning, work station modules, bankscreen partitions and
prefabricated partition systems shall be furnished and installed by Lessee.
6. The installation or wiring of telephone and computer (data) outlets is not
part of The Work. Lessee shall bear the responsibility to provide its own
telephone and data systems and any associated municipal permits and
Exhibit B - Page 1
inspections, if required, at Lessee's sole cost and expense. Upon
expiration or sooner termination of the Lease, Lessee shall remove all
telephone and data equipment and wiring from the Expansion Premises and the
Building risers prior to vacation of same.
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after submission of Lessee's final approved sketch layout, and
without invalidating any part of the Lease or Workletter Agreement, by
written agreement between Lessor and Lessee hereinafter referred to as a
Change Order. Each Change Order shall be prepared by Lessor and signed by
both Lessee and Lessor stating their agreement upon all of the following:
1. The scope of the change in The Work; and
2. The cost of the change; and
3. Manner in which the cost will be paid or credited.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 7% supervision plus 7%
overhead charge will be added to the cost of any Change Order. If Lessee
shall fail to approve any such Change Order within one (1) week, the same
shall be deemed disapproved in all respects by Lessee and Lessor shall not
be authorized to proceed thereon. Any increase in the cost of The Work or
the change in The Work stated in a Change Order which results from Lessee's
failure to timely approve and return said Change Order shall be paid by the
Lessee. Lessee agrees to pay to Lessor the cost of any Change Order
promptly upon receipt of an invoice for same.
8. If Lessee elects to use the architect suggested by Lessor, this architect
becomes the Lessee's agent solely with respect to the plans, specifications
and The Work. If any change is made prior to completion of schematic
drawings and final construction documents which result in a Change Order
and additional costs, such costs shall be the responsibility of the Lessee.
Similarly, any cost savings resulting from such Change Order(s) shall be
credited to Lessor's Allowance.
9. Prior to Lessee's occupancy of the Expansion Premises, Lessee shall
identify and list any portion of The Work which does not conform to this
Workletter Agreement ("Punch List"). The Lessor shall review with the
Lessee all of the items so listed and correct or complete any portion of
The Work which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the work
to be performed by Lessor on Lessee's behalf. If the architectural drawings
are in conflict with the terms of the Lease, then the Lease shall be deemed
the controlling document.
11. All materials and installations constructed for the Lessee within the
Expansion Premises shall become the property of the Lessor upon
installation. No refund, credit or removal of said items is to be permitted
at the termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under this
provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for the
Effective Date, the term shall not commence until Lessor has "substantially
completed" all work to be performed by Lessor as hereinbefore set forth in
Paragraph 3 above and as set forth in the Lease; provided, however, that if
Lessor shall be delayed in substantially completing said work as a result
of:
1. Lessee's failure to approve the plans and specifications in accordance
with Paragraph 2 hereof; or
2. Lessee's failure to furnish interior finish specifications, i.e.,
paint colors, carpet selection, etc., to Lessor by the fifth (5th)
working day after Lessor has approved the plans and specifications
submitted by Lessee referred to in Paragraph 2 hereof; or
3. Lessee's request for materials, finishes or installations other than
Lessor's Building Standard; or
Exhibit B - Page 2
4. Lessee's changes in The Work; or
5. The performance of a person, firm, partnership or corporation employed
by Lessee and the completion of the said work by said person, firm,
partnership or corporation;
then the Effective Date of the term of said Lease shall be accelerated by
the number of days of such delay and Lessee's obligation to pay Fixed Basic
Rent and Additional Rent shall commence as of such earlier date.
13. Lessor shall permit Lessee and its agents to enter the Expansion Premises
prior to the Effective Date in order that Lessee may perform through its
own union contractors such other work and decorations as Lessee may desire
at the same time Lessor's contractors are working in the Expansion
Premises. The foregoing license to enter prior to the Effective Date,
however, is conditioned upon:
1. Lessee's workmen and mechanics working in harmony and not interfering
with the labor employed by Lessor, Lessor's mechanics or contractors
or by any other Lessee or its mechanics or contractors; and
2. Lessee providing Lessor with evidence of Lessee's contractors and
subcontractors carrying such worker's compensation, general liability,
personal and property insurance as required by law and in amounts no
less than the amounts set forth in Article 30 of the Lease. If at any
time such entry shall cause disharmony or interference therewith, this
license may be withdrawn by Lessor upon forty-eight (48) hours written
notice to Lessee. Such entry shall be deemed controlled by all of the
terms, covenants, provisions and conditions of said Lease, except as
to the covenant to pay Fixed Basic Rent and Additional Rent. Lessor
shall not be liable in any way for any injury, loss or damage which
may occur to any of Lessee's decorations or installations so made
prior to the Effective Date, the same being solely at Lessee's risk.
14. No part of the Expansion Premises shall be deemed unavailable for occupancy
by the Lessee, or shall any work which the Lessor is obligated to perform
in such part of the Expansion Premises be deemed incomplete for the purpose
of any adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of which
does not materially interfere with the Lessee's use of such part of the
Expansion Premises.
15. Lessee is responsible for all costs related to the repairs and maintenance
of any additional or supplemental HVAC systems, appliances and equipment
installed to meet Lessee's specific requirements. Lessee shall purchase a
service contract for this equipment so that the equipment is covered by
such service contract each year of the term of the Lease.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not be
limited to the following:
1. cost of construction workers time wasted; and
2. cost of any overtime work necessary to meet schedule deadlines; and
3. any other costs associated with delays in final completion.
17. With respect to the construction work being conducted in or about the
Expansion Premises, each party agrees to be bound by the approval and
actions of their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: Xxxxx Xxxx FOR LESSEE: Xxxx Xxxxxxxxxx
c/o Xxxx-Xxxx Realty Corporation Par Pharmaceutical, Inc.
00 Xxxxxxxx Xxxxx 0 Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
If the foregoing correctly sets forth our understanding, kindly sign this letter
agreement where indicated.
Exhibit B - Page 3
LESSOR: LESSEE:
300 XXXX REALTY ASSOCIATES L.L.C. PAR PHARMACEUTICAL, INC.
By: Xxxx-Xxxx Realty, L.P.
Member
By: Xxxx-Xxxx Realty Corporation,
General Partner
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxx X'Xxxxxx
----------------------- -------------------
Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X'Xxxxxx
Executive Vice President Title:VP-CFO
Exhibit B - Page 4
