This Assignment and Assumption Agreement involves
Title: ASSIGNMENT AND ASSUMPTION AGREEMENT
Governing Law: New York Date: 5/10/2016
Industry: Biotechnology and Drugs Law Firm: Schiff Hardin;Skadden Arps Sector: Healthcare
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is entered into on this 6th day of May, 2016 by and among PROGENICS PHARMACEUTICALS, INC., a Delaware corporation ("Assignor") and REGENERON PHARMACEUTICALS, INC., a New York corporation ("Assignee").
Assignor and BMR-Landmark at Eastview LLC ("Landlord") are parties to that certain Amended and Restated Agreement of Lease dated as of October 28, 2009 between Landlord and Assignor for premises at 771 Old Saw Mill River Road, Tarrytown, New York, as amended by that certain First Amendment to Amended and Restated Agreement of Lease dated as of June 1, 2010 between Landlord and Assignor, by that certain Second Amendment to Amended and Restated Agreement of Lease dated as of November 19, 2010 between Landlord and Assignor, that certain Third Amendment to Amended and Restated Lease dated as of January 23, 2012 between Landlord and Assignor, that certain Letter Agreement dated as of February 6, 2012 between Landlord and Assignor, and that certain Fourth Amendment to Amended and Restated Agreement of Lease dated as of May 30, 2013 between Landlord and Assignor, as amended by Subordination, Non-Disturbance and Attornment Agreement dated January 27, 2016 by and among Citigroup Global Markets Realty Corp. (together with its successors and/or assigns, "Citi") and Goldman Sachs Mortgage Company (together with its successors and/or assigns, "GS" and together with Citi, collectively, "Lender"), Assignor, Landlord and Lender (collectively, the "Lease"), with respect to approximately 72,894 square feet of rentable area in the premises at 771 Old Saw Mill River Road, Tarrytown, New York (the "Premises"), located on (a) the first floor of the Building, containing approximately 52,420 square feet of rentable area (the "771 First Floor Premises"), and (b) the lower level of the Building, containing approximately 20,474 square feet of rentable area (the "771 Lower Level Premises", and, together with the 771 First Floor Premises, collectively, the "Premises"). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Lease.
1. Assignment . Subject to the consent of Landlord ("Landlord's Consent"), in consideration of the mutual promises and covenants set forth herein, Assignor hereby assigns and transfers to Assignee, effective as of the Commencement Date (as hereinafter defined) all right, title and interest of Assignee, as Tenant in and to the Lease, and Assignee accepts from Assignor, effective as of the Commencement Date, all right, title, and interest of Assignor in and to the Lease.
2. Assumption of Lease Obligations . Assignee hereby assumes and agrees to fulfill, from and after the Commencement Date, all of the terms, covenants, conditions and obligations required to be performed and fulfilled by the Assignor, as Tenant under the Lease, including, without limitation, the making, from and after the Commencement Date, of all payments due or payable on behalf of Tenant under the Lease that first accrue or arise and are due and payable from and after the Commencement Date, as such payments become due and payable. Assignor and Assignee acknowledge and agree that Assignee is paying no consideration for the assignment of the Lease or the Included Property (as hereinafter defined) other than assuming Assignor's obligations under the Lease as set forth herein.
3. Commencement Date . Assignor has entered into a lease of space in New York, New York (the "New Progenics Lease") as to which Assignor anticipates the demised premises thereunder (the "New Progenics Headquarters") will be available for occupancy on or about August 1, 2016. The effective date of this Assignment will be the date (the "Commencement Date") which is the latest to occur of (a) ten (10) days after notice from Assignor to Assignee of the date on which possession of the space under Progenics New Lease is delivered to Assignor, (b) the date vacant, broom clean possession of the Premises is delivered by Assignor to Assignee free of all occupants and tenancies and with the conditions for the occurrence of the Commencement Date under this Assignment satisfied in full, (c) Landlord's consent to this Assignment and (d) Landlord entering into the Modification with Assignee. Assignor will use commercially reasonable efforts to cause the space under Progenics New Lease to be delivered at the earliest practicable date. Assignor agrees to give Assignee thirty (30) days' prior notice of its relocation to the space under the Progenics New Lease.
4. Modification of Certain Lease Terms . As a condition to the effectiveness of this Assignment, the "Effective Date" under a modification of lease in the form attached hereto as Exhibit A has occurred (the "Modification").
5. Decommissioning, Etc. . Prior to the Commencement Date (and as a condition thereof), Assignor shall (a) comply with the decommissioning requirements of Section 18 of the Third Amendment of the Lease, (b) decommission the rest of the labs, if any, located in the Premises from a chemical/biological safety perspective (including, without limitation, the cleaning of all lab surfaces, benches, inside cabinets, drawers, hoods and duct work and, if a sink is located in such labs, all sink traps must be swiped and tested during the decommissioning process) and (c) be responsible for all costs and remediation relating to the foregoing. Promptly upon receipt thereof, Assignor will provide complete copies of all decommissioning reports to Assignee. Without limiting the generality of Section 2, above, Assignee shall comply with such Section 18 with respect to any use of laboratories in the Premises arising from and after the Commencement Date. Prior to the Commencement Date (and as a condition thereof) Assignor shall terminate any pending permits related to Assignor's particular operations (as opposed to certificates of occupancy required for the building and similar permits held by Landlord), if any, with respect to the Premises and provide evidence thereof to Assignee or represent and warrant that there are no such permits. On or prior to the Commencement Date, Assignor, at Assignor's expense, shall remove all signage of Assignor to the condition required under the terms of the Lease (as if the expiration date under the Lease had occurred). The parties' respective obligations under this Section shall survive the Commencement Date.
6. Intentionally Omitted .
7. Apportionments . The following apportionments shall be made between the Assignor and Assignee as of the close of business on the day prior to the Commencement Date and paid on the Commencement Date: Fixed Rent, Tenant's Tax Payment and Tenant's Operating Payment. Such apportionments shall be made based upon the actual number of days in the calendar month in which the Commencement Date shall occur, with Assignor entitled to a reimbursement for such amounts prepaid and Assignee entitled to payment for any such amounts in arrears owed to Landlord (the net amount of such reimbursement to Assignor or payment to Assignee. the "Apportionment Amount"). The apportionment amount may be paid by good corporate check of the party required to pay same. Assignee shall, within ten (10) days of receipt, provide a copy of any notices from Landlord (i) adjusting Taxes or Tenant's Tax Payment which relate to Taxes for the Tax Year in which the Commencement Date occurs or (ii) related to an overpayment or underpayment of Taxes with respect to such Tax Year. To the extent that there is an overpayment of Taxes to Landlord with respect to the Tax Year in which the Commencement Date occurs, the portion of any overpayment attributable to the period prior to the Commencement Date shall be paid by Assignee to Assignor promptly after receipt (whether in cash, by rent credit or otherwise) by Assignee. To the extent that there is an underpayment of Taxes to Landlord with respect to the Tax Year in which the Commencement Date occurs, the portion of any underpayment attributable to the period prior to the Commencement Date shall be paid by Assignor to Assignee promptly after Assignee's delivery to Assignor of a copy of Landlord's demand therefor. Assignee shall, within ten (10) days of receipt, provide to Assignor a copy of Landlord's Operating Statement with respect to the Operating Year in which the Commencement Date occurs. To the extent that there is an overpayment of Tenant's Operating Payments to Landlord with respect to the Operating Year in which the Comm