Exhibit 10.18(b)
SECOND AMENDMENT OF LEASE
(PARTIAL TERMINATION AND SURRENDER AGREEMENT)
THIS AGREEMENT (this "Agreement") is made as of the 31st day of March, 2000
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between EASTVIEW HOLDINGS LLC ("Landlord"), a Delaware limited liability
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company, having an address at c/o LCOR Asset Management L.P., Xxx Xxxx Xxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, and EMISPHERE TECHNOLOGIES, INC.
("Tenant"), a Delaware corporation, having an address at 000 Xxx Xxx Xxxx Xxxxx
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Xxxx, Xxxxxxxxx, Xxx Xxxx 00000.
W I T N E S S E T H :
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WHEREAS, Landlord's predecessor-in-interest and Tenant entered into a Lease
dated as of March 31, 1997 (the "Original Lease"), for certain premises shown on
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Exhibit A of the Original Lease (the "Original Premises") in the Linde Building
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(765 Old Saw Mill River Road) (the "Linde Building") and the Spine Building (777
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Old Saw Mill River Road) (the "Spine Building") located within the project known
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as The Landmark at Eastview, in the Towns of Mt. Pleasant and Greenburgh, New
York, as the Original Lease was amended by the Amendment of Lease dated as of
January 31, 1999 (the "First Amendment") (as amended, the "Lease");
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WHEREAS, the First Amendment of Lease added approximately 2359 rentable
square feet of space in the mezzanine level of the Linde Building (the
"Mezzanine Space") to the Original Premises; and
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WHEREAS, Tenant wishes to surrender, and to be released from certain of its
obligations under the Lease with respect to, the entire Mezzanine Space (the
"Surrender Space", which Surrender Space is more particularly shown hatched on
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Schedule A attached to this Agreement), and Landlord is willing to grant such
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release and accept such surrender of the Surrender Space, upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. All capitalized terms not otherwise defined in this Agreement shall have
the meanings ascribed to them in the Lease.
2. On or before December 31, 2000 (the "Surrender Date") Tenant shall
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vacate and surrender possession of the Surrender Space to Landlord and shall
surrender all of Tenant's right, title and interest in and to the Surrender
Space under the Lease, with the intent and purpose that the Term of the Lease
with respect to the Surrender Space shall be extinguished in the same manner and
with the same effect as if the Term of the Lease had expired on the Surrender
Date.
3. Tenant shall pay all Fixed Rent and Additional Charges accruing under
the Lease with respect to the Surrender Space through and including the
Surrender Date in accordance with the Lease.
4. On the Surrender Date, Tenant shall deliver the Surrender Space to
Landlord vacant, broom clean and free and clear of all tenancies, subtenancies
and occupancies, and otherwise in the condition in which the Premises are
required to be surrendered to Landlord under the terms of the Lease (as amended
by this Agreement) upon the expiration of the Term of the Lease, and otherwise
in accordance with the terms of the Lease (as amended by this Agreement),
including, without limitation, Articles 12 and 13 of the Lease.
5. On the Surrender Date, Landlord shall accept the surrender of the
Surrender Space and release Tenant from its obligations under the Lease with
respect only to the Surrender Space, except that Tenant shall continue to remain
liable thereafter: (a) for Landlord's liabilities, costs and expenses of every
nature occasioned by Tenant's failure to surrender the Surrender Space to
Landlord in accordance with the terms of the Lease, as amended by this Agreement
(including, without limitation, reasonable attorneys' fees and disbursements and
reasonable attorneys' fees and disbursements incurred in establishing liability
under this Paragraph 5 and in collecting amounts payable hereunder); (b) for all
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liabilities and claims incurred by or made against Landlord and/or Tenant for
labor and materials asserted to have been furnished to Tenant or anyone claiming
by, through or under Tenant with respect to the Surrender Space, up to and
including the Surrender Date; (c) for any claims by Landlord against Tenant for
contribution or indemnification or both arising out of third-party claims
against Landlord to the extent provided for in the Lease, as amended by this
Agreement; (d) for all obligations and liabilities of Tenant with respect to the
Surrender Space accruing on or prior to the Surrender Date; and (e) for all
other obligations of Tenant with respect to the Surrender Space expressly
provided in the Lease to survive the termination or expiration of the Lease.
6. Effective on the Surrender Date, Tenant releases Landlord and its
successors and assigns from and against any and all claims, obligations and
liabilities of every kind or nature whatsoever thereafter arising out of or in
connection with the Surrender Space.
7. Effective on the Surrender Date, the Lease shall be amended as follows
in order to reflect the Surrender of the Surrender Space: (a) "Tenant's
Proportionate Share" under the Lease shall mean 9.03% (subject to change as set
forth in Sections 4.01(c) and 4.06 of the Original Lease); (b) the "Fixed Rent"
as defined in Section 1.04 of the Original Lease shall be reduced by $23,590 per
annum, and effective September 1, 2003, the Fixed Rent, as decreased pursuant to
this sentence, shall be reduced by an additional $4,718 per annum. From and
after the Surrender Date, all references in the Lease to "Exhibit B" shall be
deemed to mean Exhibit B as modified by this Paragraph 7.
8. Except as expressly set forth in this Agreement, nothing contained in
this Agreement shall affect Tenant's obligations and liabilities with respect to
the remainder of the Premises other than the Surrender Space demised to Tenant
under the Lease (the "Remaining Premises"), which obligations and liabilities
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shall continue under the Lease (as amended by this Agreement) as if this
Agreement had not been made. From and after the Surrender Date, the term
"Premises" under the Lease (and all references in the Lease thereto) shall be
deemed to mean only the Remaining Premises.
9. Landlord shall have no obligation to perform any work in, or to
otherwise alter or improve the Remaining Premises (or to pay Tenant any sum
toward any such work, alterations or improvements), in order to separately
demise the Remaining Premises or otherwise, in connection with, or as a result
of, this Agreement.
10. Tenant represents and warrants on behalf of itself and its successors
and assigns, that it has not done or suffered to be done (and Tenant agrees that
it will not do or suffer to be done) anything whereby the Surrender Space or any
alteration, decoration, installation or improvement in and to the Surrender
Space (collectively, the "Improvements") has or will become encumbered in any
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way whatsoever and that no one other than Tenant has acquired or will acquire
through or under Tenant any right, title or interest in, to or under the
Surrender Space or the Improvements. This Paragraph 10 shall survive the
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termination or expiration of the Lease and this Agreement.
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11. Simultaneously with the execution and delivery of this Agreement,
Landlord and Tenant shall execute a New York State Combined Real Estate Transfer
Tax Return and Credit Line Mortgage Certificate (the "TP-584"). Tenant shall
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file the TP-584 on or before the date required by law with the New York State
Department of Taxation and Finance and shall give Landlord written notice of
such filing. Although Landlord and Tenant do not anticipate that any New York
State Real Estate Transfer Tax ("State Transfer Tax") will be payable in
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connection with this Agreement or the transaction contemplated hereby, to the
extent any State Transfer Tax is due and payable by Tenant as transferor, Tenant
shall pay same as and when due and shall also pay any and all late fees,
penalties and interest assessed for failure to pay same when due. Tenant shall
indemnify and hold harmless Landlord for, from and against any and all
liabilities, losses, claims, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements and reasonable attorneys' fees and
disbursements incurred in establishing liability, and in collecting amounts
payable, under this Paragraph 11) arising from a breach of Tenant's obligations
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under this Paragraph 11 or incurred in connection with any State Transfer Tax
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and/or any other real estate or real property transfer tax that is or may
become, or may be asserted to be or become, due, owing or imposed in connection
with this Agreement or the surrender of the Surrender Space now or hereafter by
the State of New York or any agent or instrumentality of such State, including,
without limitation, any late charges, penalties and interest imposed or to be
imposed in connection therewith. Tenant shall file such other returns,
affidavits and/or other documents, if any, that may be required in connection
with such other taxes and Landlord shall sign such returns, affidavits and
documents as required by law and otherwise cooperate with Tenant in making any
filing required in connection with such taxes. This Paragraph 11 shall survive
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the termination or expiration of the Lease and this Agreement.
12. Landlord and Tenant each represents and warrants to the other that it
has not dealt with any broker in connection with this Agreement other than LCOR
Asset Management L.P. (the "Broker"). The execution and delivery of this
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Agreement by each party shall be conclusive evidence that such party
acknowledges that the other party has relied upon the foregoing representation
and warranty. Landlord and Tenant shall indemnify and hold harmless the other
from and against any and all claims for commission, fee or other compensation by
any person (other than the Broker with respect to Tenant's indemnity to
Landlord), who claims to have dealt with such party in connection with this
Agreement and for any and all costs incurred by the indemnified
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party in connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. This Paragraph 12 shall survive the
expiration or earlier termination of the Lease or this Agreement.
13. This Agreement shall not be binding upon or enforceable against
Landlord or Tenant unless and until Landlord and Tenant shall have each executed
and unconditionally delivered to the other an executed counterpart of this
Agreement.
14. This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
15. This Agreement shall be governed by, and construed and interpreted in
accordance with, New York law, without regard to conflicts of law principles.
16. Except as amended by this Agreement, the Lease is ratified and
confirmed and remains in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Agreement
as of the day and year first written above.
LANDLORD:
EASTVIEW HOLDINGS LLC
By: EASTVIEW SPE INC.,
its managing member
By:______________________
Name:
Title:
TENANT:
EMISPHERE TECHNOLOGIES, INC.
By:___________________________
Name:
Title:
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____ in the year 2000 before me, the undersigned,
personally appeared _______________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _____ in the year 2000 before me, the undersigned,
personally appeared _______________________, personally known to me or proved to
me on the basis of satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity (ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
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Notary Public
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SCHEDULE A
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Surrender Space
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A-1
