FIRST AMENDMENT TO LEASE
Exhibit 10.33
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE dated as of March 12, 2007 (this “Amendment”) between RCPI
LANDMARK PROPERTIES, L.L.C., a Delaware limited liability company having an office c/o Tishman
Speyer Properties, L.P., 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Landlord”), and OMRIX
BIOPHARMACEUTICALS INC., a Delaware corporation having an office at 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease dated as of September 19, 2006
(the “Original Lease”), covering a portion of the 22nd floor (the “Original
Premises”) of the building known as 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, all as more
particularly described in the Original Lease; and
WHEREAS, Landlord and Tenant desire to modify the Original Lease to (i) provide for the
leasing by Tenant of a portion of the 23rd floor of the building known as Xxx
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (“One Rockefeller Plaza”), designated as Suite ‘D’ and being
more particularly shown on Exhibit A attached hereto (the “Additional Premises”)
and (ii) otherwise modify the terms and conditions of the Original Lease, all as hereinafter set
forth (the Original Lease, as modified by this Amendment, the “Lease”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. Capitalized Terms. All capitalized terms used and not otherwise defined in this
Amendment shall have the respective meanings ascribed to them in the Original Lease.
Amendment shall have the respective meanings ascribed to them in the Original Lease.
2. Lease of Additional Premises, (a) Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord the Additional Premises for a term commencing on the
date that Landlord delivers possession of the Additional Premises to Tenant free of all
tenancies and occupants with the work set forth on Exhibit B (“Landlord’s Additional Premises
Work”) having been Substantially Completed (the “Additional Premises Commencement Date”) and
ending on the date which is the last day of the month in which the ten year and two (2) month
anniversary of the Additional Premises Commencement Date occurs (the “One Rockefeller
Plaza Expiration Date”), or such earlier date upon which the term of the Lease may
expire or be terminated pursuant to any of the conditions of limitation or other provisions of the Lease or
pursuant to law, upon all of the terms and conditions of the Original Lease, as modified by
this Amendment,
(b) Landlord shall not be liable for failure to deliver possession of the Additional Premises
to Tenant on any specified date, and such failure shall not impair the validity of this Amendment.
Landlord shall be deemed to have delivered possession of the Additional Premises to Tenant upon
the giving of notice by Landlord to Tenant stating that the Additional Premises are vacant and
available for Tenant’s occupancy and in the condition required by this Amendment. There shall be
no postponement of the Additional Premises Commencement Date or the Additional Premises Rent
Commencement Date (as hereinafter defined) for any delay in the delivery of possession of the
Additional Premises to Tenant that
results from any Tenant Delay. The provisions of this paragraph are intended to constitute
“an express provision to the contrary” within the meaning of Section 223-a of the New York Real
Property Law or any successor Requirement,
(c) Effective as of the Additional Premises Commencement Date, Tenant
shall lease the Additional Premises upon all of the terms and conditions of the Original
Lease, except as follows:
(i) The Fixed Rent payable under the Lease with respect to the Additional Premises
shall be an amount equal to (A) $791,632.50 per annum ($65,969.38 per month) for the period
commencing on the Additional Premises Commencement Date and ending on the day preceding the
5-year anniversary of the Additional Premises Commencement Date, both dates inclusive, and
(B) $854,247.50 per annum ($71,187.29 per month) for the period commencing on the 5-year
anniversary of the Additional Premises Commencement Date and ending on the One Rockefeller
Plaza Expiration Date, both dates inclusive, payable at the times and in the manner
specified in the Lease for the payment of Fixed Rent.
(ii) The Additional Premises shall be deemed to consist of 8,945 rentable square feet
for all purposes of the Lease.
(iii) Tenant shall pay all Additional Rent payable pursuant to the Original Lease,
including Article 7 thereof, except with respect to the Additional Premises only,
(A) “Base Tax Year” shall mean the calendar year 2007 (i.e., the second half of the Tax
Year commencing on July 1, 2006 and ending on June 30, 2007 and the first half of the Tax
Year commencing on July 1, 2007 and ending on June 30, 2008), (B) “Base Expense Year” shall
mean the calendar year commencing on January 1, 2007 and ending on December 31, 2007, (C)
“Tenant’s Area” shall mean 8,945 rentable square feet, and (D) “Comparison Year” shall mean
(i) with respect to Taxes, each calendar year commencing subsequent to the first day of the
2006/2007 Tax Year, and (ii) with respect to Operating Expenses, each calendar year
commencing subsequent to the first day of the Base Expense Year.
(iv) Notwithstanding the foregoing, provided that Tenant shall not be in default
beyond the expiration of any applicable notice and cure periods set forth in the Lease of
any of the terms, conditions or covenants contained in the Lease, Tenant’s obligation to
pay Fixed Rent in respect of the Additional Premises only shall be abated for the period
commencing on the Additional Premises Commencement Date and ending on the date which is 59
days following the Additional Premises Commencement Date, both dates inclusive. The date
which is 60 days following the Additional Premises Commencement Date shall be referred to
herein as the “Additional Premises Rent Commencement Date”.
(d) Tenant has inspected the Additional Premises and agrees (A) to accept
possession of the Additional Premises in the “as is” condition existing on the Additional
Premises Commencement Date, (B) that neither Landlord nor Landlord’s agents have made any
representations or warranties with respect to the Additional Premises or One Rockefeller Plaza
except as expressly set forth herein, and (C) except for Landlord’s Additional Premises Work
(as defined above and in Exhibit B). Landlord has no obligation to perform any work, supply any
materials, incur any expense or make any alterations or improvements to the Additional
Premises to prepare the Additional Premises for Tenant’s occupancy. Tenant’s occupancy of
any part of the Additional Premises shall be conclusive evidence, as against Tenant, that (1)
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Landlord has Substantially Completed Landlord’s Additional Premises Work, (2) Tenant has
accepted possession of the Additional Premises in their then current condition, and (3) the
Additional Premises and the Building are in a good and satisfactory condition as required by this
Amendment.
(e) (i) Tenant shall, upon execution of this Amendment, deliver to Landlord as additional
security for the faithful performance and observance by Tenant of the terms, covenants and
conditions of the Lease, a clean, irrevocable, non-documentary and unconditional letter of credit
(the “Additional Letter of Credit”) in the amount of $950,406.25, which Additional Letter
of Credit shall satisfy all of the requirements for letters of credit set forth in Article
27 of the Original Lease. Landlord shall hold the Additional Letter of Credit, and shall be
entitled to draw upon the Additional Letter of Credit, in accordance with the provisions of
Article 27 of the Original Lease. Upon the delivery thereof, the Additional Letter of
Credit shall be deemed to be part of the Letter of Credit pursuant to the provisions of Article
27 of the Original Lease for all purposes of the Lease. In furtherance of the foregoing,
Landlord may apply the Letter of Credit provided pursuant to the Original Lease and/or the
Additional Letter of Credit (or the cash proceeds of either) in any priority or combination as it
sees fit in its sole and absolute discretion, with respect to the Original Premises and/or the
Additional Premises, in any event in accordance with the provisions of Article 27 of the Original
Lease. Notwithstanding the foregoing, upon execution of this Amendment, Tenant shall be permitted
to deposit a cash security deposit in the amount of $950,406.25 (the “Cash Security”) with Landlord
in lieu of the Additional Letter of Credit, which Landlord shall hold as security for the faithful
performance and observance by Tenant of the terms, covenants and conditions of the Lease. On or
before 45 days after the date hereof, Tenant shall deliver the Additional Letter of Credit to
Landlord in the form required by this Amendment. Upon receipt of the Additional Letter of Credit,
Landlord shall promptly return the Cash Security to Tenant. In the event that Tenant fails to
timely replace the Cash Security with the Additional Letter of Credit, Landlord shall continue to
hold the Cash Security as security under the Lease, and may, at its option, deem such failure to be
an Event of Default under the Lease. Landlord shall not be required to deposit the Cash Security
into an interest bearing account.
(ii) If (A) Tenant has not previously defaulted in its obligation to pay Rent to Landlord
within the time periods set forth in the Lease and (B) no Event of Default then exists, then,
provided that Tenant complies with the provisions of this
Section 2(e)(ii), on the
2nd anniversary of the Additional Premises Commencement Date, the amount of the
Additional Letter of Credit or cash proceeds of the Additional Letter of Credit shall be reduced
to $760,325.00. The Additional Letter of Credit or cash proceeds of the Additional Letter of
Credit shall be reduced as follows: (1) if in the form of cash proceeds, Landlord shall, within 10
Business Days following notice by Tenant to Landlord that Tenant is entitled to reduce the amount
thereof pursuant to this Section 2(e)(ii), deliver to Tenant the amount by which the cash
proceeds are reduced, or (B) if in the form of the Additional Letter of Credit, Tenant shall
either (x) deliver to Landlord a consent to an amendment to the Additional Letter of Credit (which
amendment must be reasonably acceptable to Landlord in all respects), reducing the amount of the
Additional Letter of Credit by the amount of the permitted reduction, and Landlord shall execute
such consent and such other documents as are reasonably necessary to reduce the amount of the
Additional Letter of Credit in accordance with the terms hereof, or (y) deliver a substitute
Additional Letter of Credit in compliance with this Section 2(e) and Article 27 of
the Original Lease which Landlord will simultaneously exchange for the existing Additional Letter
of Credit and Landlord shall consent to the cancellation of such existing Additional Letter of
Credit. If Tenant delivers to Landlord a consent to an amendment to the Additional Letter of
Credit in accordance with the terms hereof, Landlord shall, within 10 Business Days after delivery
of such
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consent, either (1) provide its reasonable objections to such amendment or (2) execute such
consent in accordance with the terms hereof.
(f) Landlord shall redistribute or furnish electricity to or for the use of Tenant
in the Additional Premises for the operation of Tenant’s electrical systems and equipment in
the Additional Premises in accordance with Section 10.1 of the Original Lease, except that
with respect to the Additional Premises only, the “Electrical Inclusion Factor” shall be
$31,307.50 per annum, which estimated charge for such electricity is included in Fixed Rent with respect to
the Additional Premises on a so-called “rent inclusion” basis (subject to adjustment as provided
in Section 10.1 of the Original Lease).
(g) Section 4.2 and Article 28 of the Original Lease shall be deemed not
applicable to the leasing of the Additional Premises.
(i) Except as provided in this Amendment, all references in the Original Lease to the
“Premises” shall be deemed to include the Additional Premises for all purposes of the Lease. With
respect to the Additional Premises only, all references in the Original Lease to “Term” or “term of
this Lease” or words of similar import shall be deemed to refer to the term of the leasing of the
Additional Premises, all references to the “Expiration Date” or words of similar import shall be
deemed to refer to the One Rockefeller Plaza Expiration Date, and all references to “the Building”
shall be deemed to refer to One Rockefeller Plaza. Each reference in the Original Lease to “this
Lease”, “herein”, “hereunder” or words of similar import shall be deemed to refer to the Lease.
3. Brokerage. Each of Landlord and Tenant represents and warrants to the other
that it has not dealt with any broker in connection with this Amendment other than Tishman
Speyer Properties, L.P. and Xxxxxxx & Xxxxxxxxx, Inc. (collectively, the “Brokers”) and that,
to the best of its knowledge, no other broker negotiated this Amendment or is entitled to any fee
or commission in connection herewith. Landlord shall pay the Brokers any commission which may
be due in connection with this Amendment pursuant to separate agreements. Each of Landlord
and Tenant shall indemnify, defend, protect and hold the other party harmless from and against
any and all losses, liabilities, damages, claims, judgments, fines, suits, demands, costs,
interest and expenses of any kind or nature (including reasonable attorneys’ fees and disbursements)
incurred in connection with any claim, proceeding or judgment and the defense thereof which
the indemnified party may incur by reason of any claim of or liability to any broker, finder
or like agent (other than the Brokers) arising out of any dealings claimed to have occurred between
the indemnifying party and the claimant in connection with this Amendment, or the above
representation being false. The provisions of this Section 3 shall survive the
expiration or earlier termination of the term of the Lease.
4. Representations and Warranties. Tenant represents and warrants to Landlord
that, as of the date hereof, (a) the Original Lease is in full force and effect and has not
been modified except pursuant to this Amendment; (b) there are no defaults existing under the
Lease; (c) there exist no valid abatements, causes of action, counterclaims, disputes, defenses,
offsets, credits, deductions, or claims against the enforcement of any of the terms and conditions of
the Lease; (d) this Amendment has been duly authorized, executed and delivered by Tenant and
constitutes the legal, valid and binding obligation of Tenant; (e) Landlord has paid all
amounts and performed all work required to be paid or performed under the Lease in connection with
Tenant’s initial occupancy of the Original Premises under the Lease; and (f) Landlord is not
in default of any of its obligations or covenants under the Lease.
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5. Miscellaneous. (a) Except as set forth herein, nothing contained in this
Amendment shall be deemed to amend or modify in any respect the terms of the Original Lease and
such terms shall remain in full force and effect as modified hereby. If there is any inconsistency
between the terms of this Amendment and the terms of the Original Lease, the terms of this
Amendment shall be controlling and prevail.
(b) This Amendment contains the entire agreement of the parties with
respect to its subject matter and all prior negotiations, discussions, representations,
agreements and understandings heretofore had among the parties with respect thereto are merged herein.
(c) This Amendment may be executed in duplicate counterparts, each of
which shall be deemed an original and all of which, when taken together, shall constitute one
and the same instrument.
(d) This Amendment shall not be binding upon Landlord or Tenant unless
and until Landlord shall have delivered a fully executed counterpart of this Amendment to
Tenant.
(e) This Amendment shall be binding upon and inure to the benefit of
Landlord and Tenant and their successors and permitted assigns.
(f) This Amendment shall be governed by the laws of the State of New York
without giving effect to conflict of laws principles thereof.
(g) The captions, headings, and titles in this Amendment are solely for
convenience of reference and shall not affect its interpretation.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the day
and year first above written.
| LANDLORD: RCPI LANDMARK PROPERTIES, X.XX. |
||||
| By: | Tishman Speyer Properties, L.P., its Agent | |||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Senior Managing Director | ||||
| TENANT: OMRIX BIOPHARMACEUTICALS INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxxx | ||||
| Title: | EVP & CFO | |||
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