LEASE TERMINATION
AGREEMENT
THIS LEASE
TERMINATION AGREEMENT (this “Agreement”) is entered
into as of this 29 th day of April, 2009 (the “ Execution
Date ”) , by and between BMR-LANDMARK AT EASTVIEW LLC, a
Delaware limited liability company (“ Landlord
”), as successor-in-interest to Keren Limited Partnership
(“ Original Landlord ”), and EMISPHERE
TECHNOLOGIES, INC., a Delaware corporation (“ Tenant
”).
A. WHEREAS,
Original Landlord and Tenant entered into that certain Lease dated
as of March 31, 1997 (the “ Original Lease
”), as amended by that certain Amendment of Lease dated as of
January 31, 1999; that certain Second Amendment of Lease dated
as of July 31, 2000 (the “ Second Amendment
”); that certain Third Amendment of Lease dated as of
July 31, 2000; the certain Fourth Amendment of Lease dated as
of May 30, 2001; that certain Fifth Amendment of Lease dated
as of February 11, 2002; that certain Sixth Amendment of Lease
dated as of January 24, 2003; that certain Seventh Amendment
of Lease dated as of September 23, 2003 (the “
Seventh Amendment ”); that certain Eighth Amendment of
Lease dated as of August 22, 2006; that certain Ninth
Amendment to Lease dated as of September 26, 2006; that
certain Tenth Amendment to Lease dated as of October 31, 2006;
that certain Eleventh Amendment to Lease dated as of November 30,
2006; that certain Twelfth Amendment to Lease dated as of
February 7, 2007; that certain Thirteenth Amendment to Lease
dated as of May 31, 2007, and that certain Fourteenth
Amendment to Lease dated as of November 30, 2007
(collectively, and as the same may have been further amended,
supplemented or otherwise modified from time to time, the “
Lease ”), whereby Tenant leases certain premises (the
“ Premises ”) from Landlord in two (2) of
the buildings at 765 and 777 Old Saw Mill River Road in Tarrytown,
New York:
B. WHEREAS,
Tenant and PsychoGenics Inc., a Delaware corporation (“
PsychoGenics ”), entered into that certain Sublease
Agreement dated as of January ___ [sic], 2008 (the “
PsychoGenics Sublease ”), for a portion of the
Premises (such portion, the “ PsychoGenics Premises
”), and Landlord consented to the PsychoGenics Sublease
pursuant to that certain Consent to Sublease dated as of
January 31, 2008 (the “ PsychoGenics Consent
”), by and among Landlord, Tenant and
PsychoGenics:
C. WHEREAS,
Tenant and Regeneron Pharmaceuticals, Inc., a Delaware corporation
(“ Regeneron ”), entered into that certain
Sublease Agreement dated as of April 15, 2008 (the “
Regeneron Sublease ”, and together with the
PsychoGenics Sublease, the “ Subleases ”) for a
portion of the Premises, and Landlord consented to the Regeneron
Sublease pursuant to that certain Consent to Sublease dated as of
May 16, 2008 (together with the PsychoGenics Consent, the
“ Sublease Consents ”), by and between Landlord,
Tenant and Regeneron; and
D. WHEREAS,
Landlord and Tenant desire to terminate the Lease in accordance
with the following provisions.
NOW, THEREFORE,
Landlord and Tenant, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, agree as follows:
1.
Termination Date . Landlord and Tenant hereby terminate the
Lease as of April 1, 2009 (the “ Termination Date
”). As of the Termination Date, the Lease shall be fully and
finally surrendered and terminated and shall no longer be of any
force or effect, except for Article 20 and
Section 36.01 of the Original Lease.
Sections 10 and 11 of the Second Amendment, and
Sections 10 and 11 of the Seventh Amendment, as
each such Article or Section may have been amended from time to
time. Notwithstanding the above, Landlord shall permit Tenant entry
and access to the Premises from April 1, 2009 until
April 30, 2009 (the “ Vacate Date ”), for
the sole purpose of Tenant winding down its operations in the
Premises, removing the Tenant Property and decommissioning the
Premises. Such right of entry shall be subject to all the terms of
the Lease, with the exception of the requirement to pay Fixed Rent.
Taxes or Operating Expenses, and is immediately revocable without
right of notice and cure by Landlord in the event of any breach of
this Agreement or the Lease.
2.
Termination Consideration . Landlord and Tenant acknowledge
that the early termination of the Lease will result in certain
losses and liabilities for Landlord (including, without limitation,
loss of income; a negative impact on Landlord’s ability to
sell, finance or refinance the Property; and increased costs
associated with securing a replacement tenant(s)), and therefore
agree that Tenant shall make the following payments to Landlord in
immediately available funds as fair and reasonable consideration
for Landlord’s agreement to terminate the Lease prior to its
natural expiration: (a) One Million Dollars ($1,000,000),
payable on the Execution Date, (b) Five Hundred Thousand Dollars
($500,000), payable on the date that is six (6) months after
the Execution Date, and (c) Seven Hundred Fifty Thousand
Dollars ($750,000), payable on the date that is twelve
(12) months after the Execution Date. Any payments that are
not timely paid shall accrue interest at the lesser of (y) one
and five tenths percent (1.5%) per month and (b) the maximum
rate permitted by applicable laws. Landlord acknowledges that
Landlord shall have no right to collect Furniture Payments from
Progenics Pharmaceuticals, Inc. (“ Progenics
”).
3.
Release of Liability . Tenant hereby fully and
unconditionally releases, cancels, annuals, rescinds, discharges,
disclaims, waives and releases any and all rights and benefits it
may have under the Lease or Sublease Consents, any right to inspect
Landlord’s records for Taxes, Insurance and Operating
Expenses; any claims of credit for overpaid Fixed Rent or
Additional Charges or any other amounts paid to Landlord; and the
right to collect any amounts under the Subleases arising from and
after the Termination Date; provided that Tenant may pursue
any Furniture Payments to which it may be entitled from Progenics.
Tenant acknowledges that as of the Termination Date
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