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Exhibit 10.3
LEASE
LEASE, dated as of September 24, 1997, between DURAMED
PHARMACEUTICALS, INC., an Ohio corporation ("Landlord"), and XXXXXX-XXXXXXX
COMPANY, a Delaware corporation ("Tenant").
W I T N E S S E T H :
ARTICLE 1
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PREMISES, TERM, RENT
Section 1.1 PREMISES. (a) Landlord is the owner of the real
property described in EXHIBIT A attached hereto and incorporated herein (the
"LANDLORD'S LAND") and the buildings and ancillary improvements and personal
property located thereon (the Landlord's Land and such buildings, improvements
and personal property are collectively known as the "LANDLORD'S FACILITIES").
Subject to the other terms and conditions contained in this Lease, Landlord
hereby demises and leases to Tenant:
(i) the premises (the "PREMISES") which shall be comprised of
(w) the space marked in blue in EXHIBIT B-1 (the "WARNER SPACE") and
(x) the space marked in green in EXHIBIT B-2 (the "MAIN BUILDING
PREMISES") which space includes the space labeled "Solvent Storage"
(the "SHED PREMISES") and the space labeled "2nd Floor Plan Utility
Support" (the "SECOND FLOOR HIGH CONTAINMENT MANUFACTURING PREMISES")
of the building (the "HIGH CONTAINMENT MANUFACTURING BUILDING") in
which the Warner Space is located (the Main Building Premises, the
Second Floor High Containment Manufacturing Premises and the Shed
Premises are sometimes collectively herein referred to as the "SHARED
SPACE");
(ii) the right to use, in common with Landlord and its
successors and assigns, for vehicular and pedestrian traffic and
parking, the driveways, access roads, rights of way and parking areas
(as the same exist from time to time) now or hereafter serving the
Landlord's Facilities (the "ACCESS AND PARKING FACILITIES");
(iii) the right to use, in common with Landlord and its
successors and assigns, (x) steam produced at Landlord's Facilities,
(y) water and sewer services now or hereafter provided to or servicing
the Landlord's Facilities by public utilities and (z) all transmission
facilities with respect to the services described in clauses (x) and
(y) (the shared utility services are hereinafter referred to as the
"COMMON UTILITIES");
(iv) the right to use, in common with Landlord and its
successor and assigns, the common areas, including, without limitation,
corridors, hallways, elevators, lavatories, stairwells, and loading
docks located in each of the High Containment Manufacturing Building
and the Main Building Premises (collectively, the "Buildings");
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(v) the right to use, in common with Landlord and its
successors and assigns, the cafeteria facility located in Main Building
in accordance with Landlord's reasonable rules and regulations,
provided that the same are similar in nature (including pricing) as
those that apply to Landlord's employees; and
(vi) the right to locate a construction office type trailer on
Landlord's Land in the area on the eastern side of the High Containment
Manufacturing Building and to connect to the utility lines servicing
Landlord's Facilities.
and Tenant hereby hires, takes and leases all of the foregoing (collectively,
the "LEASED PROPERTY") from the Landlord, for the term, at the rental and on the
terms and conditions set forth in this Lease, subject only to the exceptions to
title described in EXHIBIT C attached hereto and incorporated herein (the
"PERMITTED ENCUMBRANCES").
(b) In addition, Landlord covenants and agrees that it will
cooperate with Tenant and the applicable utility company with respect to
granting, and hereby does grant to Tenant, a nonexclusive easement, over the
Landlord's Land and for the benefit of Tenant, the Leased Property and such
utility company, for the purpose of providing electrical power and other
required utilities to the Leased Property.
(c) (i) Landlord reserves a nonexclusive easement for the use of
the Shared Space for the purpose of manufacturing pharmaceuticals. In using such
easement, Landlord shall not interfere with Tenant's use of the Shared Space for
the purpose of manufacturing that certain product (the "PRODUCT") identified in
a certain new drug application to be submitted by Tenant to the U.S. Food and
Drug Administration. Landlord and Tenant shall communicate and cooperate from
time to time to facilitate the use by Landlord of the Shared Space for
pharmaceutical manufacturing purposes in a manner that does not interfere with
Tenant's use of the Shared Space for the manufacture of the Product.
(ii) Landlord may only use the Second Floor High Containment
Manufacturing Premises for such uses as are in compliance with all applicable
laws and do not interfere with Tenant's use thereof.
(iii) Landlord reserves the right, exercising its reasonable
discretion, to promulgate, modify and enforce from time to time regulations for
the use of the Shared Space and the portion of the Landlord's Facilities that
Tenant is granted the right under Section 1.1 hereof to use for the purpose of
facilitating the use of Landlord's Facilities for manufacture of pharmaceutical
and other products for itself and third parties. Landlord may not, however,
interfere with the manufacturing of the Product in the Shared Space.
(iv) In exercising its rights to use parts of the Shared Space
and Landlord's Facilities under Section 1.1, Tenant shall not interfere with
Landlord's use of the Shared Space or such Landlord's Facilities for
manufacturing purposes, and in exercising its rights to use parts of the Shared
Space as permitted in Section 1.1, Landlord shall not interfere with Tenant's
use of the Shared Space for the purposes permitted under this Lease.
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(v) Neither party shall be deemed to have defaulted in the
performance of its obligations under this Lease to the extent that the act or
neglect of the other party has prevented such performance.
Section 1.2 TERM. (a) The term of this Lease, for which the Leased
Property is leased, shall be deemed, for the purposes of this Lease, to commence
on September 24, 1997 (the "COMMENCEMENT DATE"), and shall end at midnight on
September 23, 2007, which ending is hereinafter called the "EXPIRATION DATE", or
shall end on such earlier date upon which the term of this Lease shall expire or
be cancelled or terminated, pursuant to any of the provisions of this Lease or
pursuant to law.
(b) Tenant may extend the term of this Lease for all or any
portion of the Premises on the same terms and conditions of this Lease for two
successive renewal terms of two years each, provided only that (i) notice is
given not less than 30 days prior to the Expiration Date (as the same may have
been extended by any prior renewals) by Tenant to Landlord of its desire to so
renew and (ii) no default on the part of Tenant (after receipt of any required
notice and the passage of any grace period) shall have occurred or be continuing
either at the time of exercise or such extension option or at the time when the
term would have expired but for such exercise.
Section 1.3 RENT. (a) The rents reserved under this Lease for the
term hereof (the "RENTS"), except as hereinafter otherwise provided, shall be
and consist of "FIXED RENT" in an amount equal to $1,200,000 per annum which
shall be payable in equal monthly installments of $100,000 in advance on the
first day of each calendar month during the term of this Lease from and after
the Commencement Date, subject to adjustment as provided in Section 1.3(c)
hereof which shall be paid to Landlord at Landlord's office, or such other
place, or to such agent and at such place as Landlord may designate by notice to
Tenant, in lawful money of the United States of America.
(b) If the Commencement Date occurs on a day other than the first
day of a calendar month, the fixed rent for such calendar month shall be
prorated according to the number of days in such month.
(c) The fixed rent for the first full calendar year during the
term of this Lease and thereafter shall be adjusted at the end of each such
calendar year by an amount equal to the average percentage increase in the
Producer Price Index as published by the United States Department of Labor,
Bureau of Labor Statistics but not greater than two percent (2%) per annum (the
"PPI ADJUSTMENT"). The PPI Adjustment will be an amount equal to the average
increase in the PPI over the immediately preceding calendar year. If the PPI is
not available for any period, the most similar available index shall be used.
(d) The fixed rent has been based on the fair rental value of the
Premises, which includes all operating costs with respect to Landlord's
Facilities, costs of electricity, real estate taxes, all utilities and all other
related costs and expenses to operate the Landlord's Facilities not specifically
enumerated herein as additional rent, as the same may increase over
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the term of this Lease. Thus, this Lease does not provide for separate payment
of these costs and expenses or any increase with respect thereto, except as
specified herein.
ARTICLE 2
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CERTAIN DEFINITIONS AND CONSTRUCTIONS
Section 2.1 DEFINITIONS. For the purpose of this Lease and all
agreements supplemental to this Lease, and all communications between the
parties with respect to the Lease, unless the context otherwise requires:
"BUILDINGS" shall mean the two buildings comprising a part of
Landlord's Facilities in which the Warner Space and the Main Building
Premises, respectively, are located and the Shed Premises.
"DEFAULT RATE" shall mean a per annum rate equal to 3% over the
prime rate of The Chase Manhattan Bank, as announced from time to time.
"LANDLORD" shall mean the landlord herein named or mortgagee or
successor landlord in possession of the Landlord's Facilities, or so much
thereof as shall include the Leased Property, at any given time.
"PERMITTED MORTGAGES" shall mean the mortgage and other security
documents described on EXHIBIT D attached hereto which create a lien on
all or part of Landlord's Facilities and any subsequent refinancing of
such mortgage.
"PERMITTED MORTGAGEE" shall mean the holder of the indebtedness
secured by, and the beneficiary of, the Permitted Mortgage.
"PERSON" shall include an individual, corporation, partnership,
association, trust or other business entity.
"TENANT" shall mean Tenant herein named or any assignee or other
successor in interest (immediate or remote) of Tenant herein named, when
Tenant herein named or such assignee or other successor in interest, as
the case may be, is in possession of the Leased Property, as owner of the
estate and interest granted by this Lease.
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ARTICLE 3
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USE
Section 3.1 USE. (a) Tenant may only use the Leased Property for
the manufacturing of the Product.
(b) Tenant shall not suffer or permit the Premises or any part
thereof to be used in any manner, or anything to be done therein, or suffer or
permit anything to be brought into or kept therein, which would in any way (i)
subject to the provisions of Section 6.2 hereof, violate any laws or
requirements of public authorities, with respect to the use of the Buildings,
(ii) make void or voidable any standard form of fire or liability insurance
policy then in force with respect to the Buildings, (iii) cause structural
injury to the Buildings or any part thereof or (iv) violate any of Tenant's
other obligations under this Lease.
ARTICLE 4
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PERMITTED MORTGAGES
Section 4.1 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. Tenant
and The Provident Bank, as a condition to Tenant entering into this Lease, have
entered into a Subordination, Non-Disturbance and Attornment Agreement, the form
of which is attached hereto as Exhibit E.
Section 4.2 PERMITTED MORTGAGES. This Lease shall be superior to
any Permitted Mortgages entered into after the date hereof, unless Tenant and
any future Permitted Mortgagees enter into a Subordination, Non-Disturbance and
Attornment Agreement substantially similar to that attached as EXHIBIT E.
Section 4.3 LANDLORD'S COVENANT TO COMPLY. Landlord covenants to
comply with all of the terms and provisions of, and make all payments due under,
any Permitted Mortgage and the indebtedness secured thereby so as to not permit
a default to occur thereunder.
ARTICLE 5
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ASSIGNMENT AND SUBLETTING
Section 5.1 PROHIBITION. Except as provided in Section 5.3, this
Lease shall not be assigned, mortgaged, pledged, encumbered or transferred, and
the Leased Property shall not be sublet, without the prior written consent of
Landlord.
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Section 5.2 NO RELEASE. If this Lease be assigned, whether or not
in violation of the provisions of this Lease, Landlord may collect rent from the
assignee and Tenant shall not be released from its obligations hereunder.
Section 5.3 RELATED TRANSACTIONS. Tenant may, upon prior notice to
Landlord, but without Landlord's consent:
(a) assign this Lease to a corporation or other business entity
(herein sometimes called a "SUCCESSOR CORPORATION") into or with which
Tenant shall be merged, or consolidated, or to which substantially all of
the assets of Tenant may be transferred, provided that the successor
corporation shall have effectively assumed substantially all of the
obligations and liabilities of Tenant under this Lease, by operation of
law or appropriate instruments of merger, consolidation or transfer;
(b) assign this Lease or sublet any part or parts of the Leased
Property to a corporation or other business entity (herein called a
"RELATED CORPORATION") which shall control, be controlled by or be under
common control with Tenant, to use the Leased Property for any of the
purposes permitted to Tenant as used herein in defining a related
corporation, control shall be deemed established by effective control,
direct or indirect, of the controlled corporation or other business
entity); and
(c) permit any related corporation of tenant or any joint venture
or other business entity of which Tenant is a joint venturer or
participant with at least a 10% interest, to use the Leased Property, or
any part thereof, for any of the purposes permitted to Tenant.
With respect to any assignment made pursuant to this Section 5.3, Tenant shall
remain primarily liable under this Lease.
ARTICLE 6
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COMPLIANCE WITH LAW AND REQUIREMENTS OF PUBLIC AUTHORITIES
Section 6.1 COMPLIANCE. Tenant at its expense shall comply with
all laws and requirements of public authorities which shall be applicable to the
alterations of the Premises resulting from Tenant's Changes, or Tenant's use or
occupancy thereof. However, Tenant shall not be so required to comply with such
laws and requirements which shall require an alteration or other change to the
Premises, unless such change is required by reason of Tenant's use or occupancy
of the Premises for other than the manufacturing of products relating to hormone
replacement and other uses associates with such manufacturing. Tenant need not
comply with any such law or requirement of public authority so long as Tenant
shall be contesting the validity or the applicability thereof to the Premises in
accordance with Section 6.2. In no event shall Tenant be required to comply with
any such law or requirement of public authority if the violation of same is the
result of the Buildings not being in compliance with such law or requirement as
of the date hereof, nor shall Tenant be
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required to make any structural or other change in the Premises because of a
requirement of law or public authority becoming effective after the Commencement
Date which shall be applicable to the uses of the Buildings generally. Landlord
shall comply with all laws and public authority relating to the Landlord's
Facilities which are not the specific requirements of Tenant.
Section 6.2 CONTEST. Either party may, at its expense (and, if
necessary, in the name of the other but without expense to the other) contest by
appropriate proceedings prosecuted diligently and in good faith, the validity or
applicability to the Premises, the Landlord's Land or the Leased Property, of
any such law or requirement, and the parties shall cooperate with each other in
such proceedings (except that the non-contesting party shall not be obliged to
incur any liability or expense in connection with such contest), provided that:
(a) the non-contesting party shall not be subject to criminal penalty or to
prosecution nor shall the Landlord's Land or Landlord's Facilities, the Premises
or any part thereof be subject to being condemned or vacated by reason of
non-compliance or otherwise by reason of such contest; (b) the contesting party
shall defend, indemnify and hold harmless the non-contesting party against all
liability, losses, costs or damage that the non-contesting party may suffer or
incur by reason or such noncompliance or contest, including reasonable
attorney's fees and other reasonable expenses incurred by the non-contesting
party; and (c) the contesting party shall keep the non-contesting party advised
as to the status of such proceedings.
ARTICLE 7
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INSURANCE
Section 7.1 COMPLIANCE WITH LANDLORD'S POLICIES. Tenant shall not
commit or permit any violation of the policies of insurance carried by Landlord,
and shall not do, or permit anything to be done, or keep or permit anything to
be kept in the Premises which would result in the termination of such policies.
Section 7.2 RELEASES. Each party hereby releases the other party
with respect to any claim (including a claim for negligence) which it might
otherwise have against the other party for loss, damage or destruction with
respect to its property or bodily injury (including rental value or business
interest) occurring during the term of this Lease and with respect and to the
extent to which it is insured, or if and to the extent that it is a self-insurer
as to all or any portion, including any deductible amount, with respect and to
the extent to which it could have obtained insurance for the casualty involved
from responsible insurers at normal rates.
Section 7.3 TENANT'S INSURANCE. (a) Tenant shall obtain and
maintain at all times during the term of this Lease, insurance (subject to
reasonable deductibles) against loss or damage by fire and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies covering Tenant's Property.
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(b) Tenant shall obtain and maintain at all times during the term
of this Lease a commercial general liability insurance policy protecting
Landlord and Tenant against liability, occasioned by any occurrence on or about
the Premises, which shall be in an amount not less than $1,000,000 for bodily
and personal injury and in respect of property damage together with excess
liability insurance of at least $3,000,000, or in such greater amounts as
Landlord reasonably determines from time to time are generally required by
landlords of commercial buildings in the Cincinnati metropolitan area.
(c) The insurance required to be maintained by Tenant pursuant to
this Section 7.4 may be carried under a blanket policy covering the Premises and
other locations.
Section 7.4 LANDLORD'S INSURANCE. Landlord shall obtain and
maintain at all times during the term of this Lease the insurance of the type
and amount as required to be carried pursuant to the Permitted Mortgage, subject
to the requirements of this Article 7 which shall include, in addition to the
fire and casualty insurance with respect to the Landlord's Facilities, a
commercial general liability insurance policy protecting Landlord and Tenant
against liability, occasioned by any occurrence on or about the Landlord's
Facilities, which shall be in an amount not less than $1,000,000 for bodily and
personal injury and in respect of property damage, together with excess
liability insurance of at least $5,000,000.
ARTICLE 8
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TENANT'S CHANGES
Section 8.1 (a) CHANGES. Subject to Landlord's reasonable
approval, Tenant may, at any time and from time to time during the term of this
Lease, at its expense, make such alterations, additions, installations,
substitutions, improvements and decorations (hereinafter collectively called
"CHANGES" and, as applied to changes provided for in this Article, "TENANT'S
CHANGES") in and to the Premises, as Tenant may reasonably consider necessary
for the conduct of its business in the Premises, on the following conditions:
(i) the outside appearance of the Buildings shall not be affected
and the strength of the Buildings or of any of its structural parts shall
not be adversely affected;
(ii) no part of the Buildings outside of the Premises shall be
adversely affected;
(iii) the proper functioning of any of the mechanical, electrical,
sanitary, water and other service systems of the Buildings shall not be
adversely affected;
(iv) before proceeding with any such Tenant's Change, Tenant shall
give Landlord reasonable advance notice thereof; and
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(v) before proceeding with any structural change, or with any
other Tenant's Change which affects the services provided in the
Buildings by Landlord or the basic architecture of the Buildings, Tenant
shall submit to Landlord plans and specifications for the work to be
done, for Landlord's approval, which shall not be unreasonably withheld.
(b) Any Tenant's Change shall become the property of Landlord when
made. Landlord may reasonably withhold or condition its approval of any Tenant's
Change on the basis of how the making of such Tenant's Change may affect the
ability of Landlord to use the Landlord's Facilities and the Landlord's Land,
including the Shared Space, for purpose of manufacturing pharmaceuticals for
itself and third parties. Landlord may condition any approval of a Tenant's
Change on the Tenant not interfering with such manufacturing activity by
Landlord.
Section 8.2 GOVERNMENT APPROVALS. Tenant, to the extent necessary
and at its expense, shall obtain all governmental permits and certificates for
the commencement and prosecution of Tenant's Changes and for final approval
thereof upon completion, and shall cause Tenant's Changes to be performed in
compliance therewith and with all applicable laws and requirements of insurance
bodies, and in good and workmanlike manner. Tenant's Changes shall be performed
in such manner as not unreasonably to interfere with or to delay, or to impose
any additional expense upon Landlord in the construction, maintenance or
operation of the Buildings.
ARTICLE 9
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TENANT'S PROPERTY
All of Tenant's personal property, furnishing, furniture,
equipment and trade fixtures ("TENANT'S PROPERTY") shall be and shall remain the
property of Tenant and may be removed by it at any time during the term of this
Lease; provided that, if any of Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Premises or to the
Buildings resulting from such removal.
ARTICLE 10
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REPAIRS AND MAINTENANCE
Section 10.1 TENANT'S OBLIGATIONS. Tenant, at its expense,
shall promptly make all repairs, in and about the Premises, as shall be required
by reason of (i) the performance or existence of Tenant's Changes, (ii) the
installation, use or operation of Tenant's Property in the Premises, (iii) the
moving of Tenant's Property in or out of the Buildings, or (iv) the misuse or
neglect of Tenant or any of its employees, agents, or contractors.
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Section 10.2 LANDLORD'S OBLIGATIONS. Landlord, at its sole cost
and expense, shall cause the Buildings to be operated and maintained in a
first-class manner. Landlord, at its expense, shall keep and maintain the
Buildings (including, without limitation, their roofs) and its fixtures,
appurtenances, systems and facilities serving the Premises, in good working
order, condition and repair, structural or otherwise, and shall make all
repairs, structural and otherwise, interior and exterior, as and when needed in
or about the Premises, except for those repairs for which Tenant is responsible
pursuant to any other provisions of this Lease and except to the extent such
obligations may be limited in Article 14 and 15 hereof.
ARTICLE 11
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UTILITIES
Section 11.1 ELECTRICITY. (a) Landlord shall furnish the electric
energy that Tenant shall require in the Premises (including with respect to the
Steam Facility), at Landlord's cost, on a rent inclusion basis, that is, the
cost of electricity is included in the fixed rent.
(b) Tenant, at its election, may engage to receive electricity
with respect to the Warner Space directly from the utility providing electricity
to the Buildings and Landlord shall cooperate with Tenant and make available to
Tenant the necessary power lines within Landlord's Facilities to make the
electricity available to the Premises in such capacity as Tenant shall
reasonably require. If Tenant exercises such option, Tenant shall pay for the
cost of doing so and for the cost of all utilities and services so furnished to
it, but the fixed rent shall be reduced by an amount equal to Landlord's cost in
providing such utilities and services to the Premises.
Section 11.2 PUBLIC UTILITIES. Tenant may contract directly for
all utilities and services, including, without limitation, steam, gas and
telephone service, and Landlord shall cooperate with Tenant and make the Common
Utilities available with respect thereto. If Tenant exercises such option,
Tenant shall pay for the cost of doing so and for the cost of all utilities and
services so furnished to it, but the fixed rent shall be reduced by an amount
equal to Landlord's cost in providing such utilities and services to the
Premises.
ARTICLE 12
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HEAT, VENTILATION AND AIR-CONDITIONING
Landlord, at its expense, shall cause the heating, ventilating and
air-conditioning systems (HVAC Systems) serving the Premises to be operated so
as to furnish heat, ventilation and air-conditioning (hereinafter collectively
called "AIR-CONDITIONING SERVICE") in the Premises, in compliance with the
performance specifications hereinafter set forth on a twenty-four hour, seven
days a week basis. The HVAC System serving the
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Warner Space is designed to maintain average temperatures and relative humidity
within the Premises of 70(degree) F. +/- 5% F. and 40% humidity +/- 5%.
ARTICLE 13
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LANDLORD'S OTHER SERVICES
Section 13.1 WATER. Landlord, at its expense, shall furnish
adequate U.S.P. hot and cold water to the Premises for drinking, pantry,
lavatory, manufacturing and cleaning purposes.
Section 13.2 COMPRESSED AIR. Landlord, at its expense, shall
provide compressed air to the Premises for use therein on a twenty-four hour,
seven days a week basis.
Section 13.3 STEAM FACILITY. Tenant, at its expense, shall have
the right to install its own boiler for the generation of steam for utilization
in the HRT Premises (together with all transmission pipes and power service, the
"STEAM FACILITY") to be installed as part of Tenant's Changes and to be operated
and maintained by Tenant. If and to the extent that parts of the Steam Facility
are required to be placed outside of the Premises or outside the Buildings,
Landlord agrees to cooperate with Tenant in ascertaining appropriate locations
therefor and in obtaining any consents or approvals required for such placement.
Tenant may, at its expense, connect the Steam Facility to the Buildings'
electrical and water distribution system.
Section 13.4 SECURITY. Landlord shall provide the security with
respect to the Premises and those parking areas of the Landlord's Facilities
used by Tenant as described in EXHIBIT F attached hereto.
ARTICLE 14
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DESTRUCTION OR DAMAGE
Section 14.1 LANDLORD'S OBLIGATION TO RESTORE. If the Buildings or
the Premises shall be partially or totally damaged or destroyed by fire or other
casualty, then, whether or not the damage or destruction shall have resulted
from the neglect or other fault of Tenant, or its employees, agents or visitors,
and if this Lease shall not have been terminated as in this Article hereinafter
provided, Landlord shall, at its expense, repair the damage and restore and
rebuild the Buildings and the Premises as nearly as may be reasonably
practicable to their condition and character immediately prior to such damage or
destruction, with reasonable dispatch after notice to it of the damage or
destruction; PROVIDED, HOWEVER, that Landlord shall not be required to repair or
replace any of Tenant's Property.
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Section 14.2 RENT STATEMENT. If the Buildings or the Premises
shall be partially damaged or partially destroyed by fire or other casualty
(including water or smoke damage), or in the event of a damage or destruction
described in Section 14.1 hereof, the rents payable hereunder shall be abated to
the extent that the Premises shall have been rendered untenantable for the
period from the date of such damage or destruction to the date the damage shall
be repaired or the destruction restored and the Premises are made available to
Tenant in tenantable condition.
Section 14.3 TERMINATION. If either Buildings shall be so damaged
or destroyed by fire or other casualty (whether or not the Premises are damaged
or destroyed) as to require a reasonably estimated expenditure of more than 50%
of the full insurable value of such Buildings, immediately prior to the
casualty, to repair or restore the Buildings, Landlord may terminate this Lease
by giving Tenant notice to such effect within 60 days after the date of the
casualty.
ARTICLE 15
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EMINENT DOMAIN
Section 15.1 SUBSTANTIAL CONDEMNATION. If the whole of either of
the Buildings or a part thereof which includes substantially the entire Premises
located in such Building shall be lawfully taken by condemnation or in any other
manner for any public or quasi-public use or purpose, this Lease with respect to
that portion of the Premises located in such Building shall terminate as of the
date of vesting of title on such taking or the date of taking of possession,
whichever is earlier (such earlier date being hereinafter referred to as the
date of the taking), and the rents hereunder shall be prorated and adjusted as
of the date of taking.
Section 15.2 PARTIAL CONDEMNATION. If any part of either of the
Buildings which does not include substantially the entire Premises, shall be so
taken, this Lease shall be unaffected by such taking, except that the rents
apportioned to the part taken shall be prorated and adjusted as of the date of
taking and from such date the fixed rent shall be reduced according to the
reduction in rentable area of the Premises resulting from such taking.
Section 15.3 AWARD. Except as expressly otherwise provided,
Landlord shall be entitled to receive the entire award in any proceeding with
respect to any taking provided for in this Article, without deduction therefrom
for any estate vested in Tenant by this Lease and Tenant shall receive no part
of such award and Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award. However, to the extent permitted
by applicable law, Tenant shall be entitled to appear, claim, prove and receive
in the proceedings relating to any taking mentioned in the preceding Sections of
this Article, compensation for the value of Tenant's Property and for its moving
expenses, and for business interruption.
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ARTICLE 16
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SURRENDER
Section 16.1 On the date of termination of this Lease, or upon any
re-entry by Landlord upon the Premises, Tenant, at its expense, shall quit and
surrender the Premises to Landlord in good order, condition and repair, except
for ordinary wear and tear and any damage or destruction by fire or other
casualty or the elements or any other cause beyond Tenant's reasonable control.
Tenant shall not be obligated, at or before quitting and surrendering the
Premises, to restore the Premises or any part thereof to the state or condition
of the Premises, or of such part, existing at any time prior to the completion
of the initial preparation of the Premises for tenant occupancy, except that at
the request of Landlord, Tenant at Tenant's expense shall remove any of Tenant's
Changes specified by Landlord and repair any damage caused by such removal.
ARTICLE 17
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CONDITIONS OF LIMITATION
Section 17.1 BANKRUPTCY. This Lease and the term and estate hereby
granted are subject to the limitation that whenever Tenant shall make an
assignment of the property of Tenant for the benefit of creditors, or shall file
a voluntary petition under any bankruptcy or insolvency law, or an involuntary
petition alleging an act of bankruptcy or insolvency shall be filed against
Tenant under any bankruptcy or insolvency law, or whenever a petition shall be
filed by or against Tenant under the reorganization provisions of any law of
like import, or whenever a petition shall be filed by Tenant under the
arrangement provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a permanent receiver of Tenant
or of or for the property of Tenant shall be appointed, or, if Tenant shall then
be a banking organization, whenever Tenant shall file an application for
voluntary liquidation and/or dissolution under any law applicable to banking
organizations, then, if and to the extent they are permitted by law, Landlord
(a) at any time after receipt of notice of the occurrence of any such event or
(b) if such event occurs without the acquiescence of Tenant, at any time after
the event continues unstayed for 180 days, may give Tenant a notice of intention
to end the term of this Lease at the expiration of ten (10) days from the date
of service of such notice of intention to end the term of this Lease and, upon
the expiration of said ten (10) day period this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for rents to the date of termination and for damages
as provided in Articles 18 and 19.
Section 17.2 FURTHER LIMITATIONS. This Lease and the term and
estate hereby granted are subject to the further limitation that:
(a) whenever Tenant shall default in the payment of an installment
of fixed rent or additional rent on any date upon which the same ought to
be paid, and such
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default shall continue for ten (10) business days after Landlord, shall
have given Tenant a notice specifying such default in respect of fixed
rent or shall continue for thirty (30) days after Landlord, shall have
given Tenant a notice specifying such default in respect of additional
rent, or
(b) whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied
by Tenant within 60 days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of 60 days if
Tenant shall not duly institute as promptly as may be practicable after
receipt of such notice and thereafter diligently prosecute to completion
all steps necessary to remedy the same,
then in any of such cases set forth in the foregoing Subsections (a) and (b)
Landlord may give Tenant a notice of intention to end the term of this Lease at
the expiration of ten (10) days from the date of such notice of intention, and
upon the expiration of said ten (10) days this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for rent to the date of such termination and for
damages as provided in Article 19.
ARTICLE 18
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RE-ENTRY BY LANDLORD
Section 18.1 If Tenant shall default in the payment of any
installment of fixed rent or additional rent, on any date upon which the same
ought to be paid, and if such default shall continue for ten (10) business days
after Landlord shall have given Tenant a notice specifying such default in
respect of base rent, or shall continue for thirty (30) days after Landlord
shall have given Tenant a notice specifying such default in respect of
additional rent, or if this Lease shall terminate as in Article 17 provided,
Landlord or Landlord's agents may immediately or at any time thereafter re-enter
the Premises or any part thereof, by summary dispossess proceedings or any other
action or proceeding, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the Premises again as and of its
first estate and interest therein. The word re-enter, as herein used, is not
restricted to its technical legal meaning. In the event of any termination of
this Lease under the provisions of Article 17, or if Landlord or its agent shall
re-enter the Premises under the provisions of this Article, or in the event of
the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
or its agent the fixed rent and additional rent due up to the time of such
termination of this Lease, or of such recovery of possession of the Premises by
Landlord or its agents and shall also pay to Landlord damages as provided in
Article 19.
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ARTICLE 19
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DAMAGES
Section 19.1 DAMAGES. If this Lease is terminated under the
provisions of Article 17, or in the event of the termination of this Lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of
(1) the aggregate of the fixed rent and the additional rent
payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was
payable for the year immediately preceding such termination of
this Lease or the date of any such re-entry, as the case may be,
and ending with the Expiration Date) had this Lease not so
terminated or had Landlord not so re-entered the Premises, over
(2) the aggregate rental value of the Premises for the same
period, both discounted to present worth at 7% per annum, or
(b) sums equal to the fixed rent and the additional rent payable
hereunder which would have been payable by Tenant had this Lease not so
terminated, or had Landlord not so re-entered the Premises, payable upon
the due dates therefor specified herein following such termination or
such entry and until the Expiration Date less such sums, if any, as shall
have been received by Landlord for use and occupation; PROVIDED, HOWEVER,
that if Landlord shall relet the Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, as and when received by Landlord, after deducting therefrom
the expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Premises and in securing possession thereof, as well as
the expenses of reletting, including altering and preparing the Premises
for new tenants, brokers' commissions, and all other expenses properly
chargeable against the Premises and the rental therefrom; it being
understood that any such reletting may be for a period shorter or longer
than the remaining term of this Lease; but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by
Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit
for the collection of damages pursuant to this Subsection to a credit in
respect of any net rents from a reletting, except to the extent that such
net rents are actually received by Landlord.
Section 19.2 CUMULATIVE REMEDIES. All remedies of Landlord herein
created and any other remedies otherwise existing at law or equity are available
to Landlord and are cumulative, and the exercise of one or more rights or
remedies shall not be taken to exclude
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or waive the right to the exercise of any other. All such rights and remedies
may be exercised and enforced concurrently and whenever and as often as Landlord
shall deem necessary.
Section 19.3 LANDLORD'S RIGHTS. Actions for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone action until the date when the term of this Lease would
have expired if it had not been so terminated under the provisions of Article
17, or under any provision of law, or had Landlord not re-entered the Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove for and obtain
as liquidated damages by reason of the termination of this Lease or re-entry on
the Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the bankruptcy, reorganization, insolvency or other like proceedings
in which, such damages are to be proved whether or not such amount be greater,
equal to, or less than any of the sums referred to in Section 19.1.
ARTICLE 20
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NO OTHER WAIVERS OR MODIFICATIONS
Section 20.1 The failure of either party to insist in any one or
more instances upon the strict performance of any one or more of the obligations
of this Lease, or to exercise any election herein contained, shall not be
construed as a waiver or relinquishment for the future of the performance of
such one or more obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. No executory agreement
hereafter made between Landlord and Tenant shall be effective to change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such executory agreement is in writing, refers
expressly to this Lease and is signed by the party against whom enforcement of
the change, modification, waiver, release, discharge or termination or
effectuation of the abandonment is sought.
ARTICLE 21
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CURING LANDLORD'S DEFAULTS, OFF-SET
Section 21.1 PERFORMANCE AND SELF-HELP. If Landlord shall default
in the performance or payment of any of Landlord's obligations under this Lease,
Tenant, without thereby waiving such default, may (but shall not be obligated
to) perform or pay the same for the account and at the expense of Landlord,
without notice, in a case of emergency, and in
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any other case, only if such default continues after the expiration of 15 days
from the date Tenant gives Landlord notice of intention so to do. Tenant or a
designee may enter the other parts of the Buildings as and when reasonably
required to cure such defaults. Bills for any reasonable expenses actually
incurred by Tenant in connection with any such performance or payment by it for
the account of Landlord, as well as bills for any property, material, labor or
services provided, furnished, or rendered, by Tenant, may be sent by Tenant to
Landlord monthly, or immediately, at Tenant's option, and, shall be due and
payable within 10 days after rendition. If not paid in this such 10 day period,
Tenant may offset such amounts, with interest thereon at the default rate,
against payment of rent.
Section 21.2 RENT STATEMENT. If Landlord shall default in the
performance of any of Landlord's obligations under this Lease such that the
Premises shall be untenantable, in addition to its rights under Section 21.1,
Tenant shall have the right to xxxxx the rent until such defaults have been
cured.
ARTICLE 22
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NOTICES
Section 22.1 Any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made,
if delivered in person, if sent by recognized overnight delivery service that in
the ordinary course of its business requires a signature from the addressee at
the time of delivery, or if sent by registered or certified mail, return receipt
requested, addressed, if to Tenant at 000 Xxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx
00000, Attention: ZP Pharmaceutical Manufacturing, with a copy, Attention: Vice
President and General Counsel; if to Landlord, at Duramed Pharmaceuticals, Inc.,
0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: President and CEO, and
shall be deemed to have been given, rendered or made by the sender on the day so
mailed or delivered to a recognized overnight delivery service, and shall be
deemed to have been received by the addressee upon the date of its signature of,
or its refusal to sign, the requested receipt. Either party may, by notice as
aforesaid, designate a different address or attention designation for notices,
statements, demands or other communications intended for it.
ARTICLE 23
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ESTOPPEL CERTIFICATE, MEMORANDUM
Section 23.1 ESTOPPEL CERTIFICATE. Each party agrees, at any time
and from time to time, as requested by the other party, upon not less than 10
days notice, to execute and deliver to the other a statement certifying that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as
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modified and stating the modifications), certifying the dates to which the fixed
rent and additional rent have been paid, and stating whether or not, to the best
knowledge of the signer, the other party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such default of
which the signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by others with whom the party
requesting such certificate may be dealing.
Section 23.2 MEMORANDUM OF LEASE. At the request of either party,
Landlord and Tenant shall promptly execute, acknowledge and deliver a memorandum
with respect to this Lease and any supplement thereto and modification thereof
sufficient for recording. Such memorandum shall not in any circumstances be
deemed to change or otherwise affect any of the obligations or provisions of
this Lease as the same may be so supplemented and/or modified. If the term of
this Lease terminates for any reason, Tenant shall file for recording in the
office of the Recorder of Xxxxxxxx County, Ohio a cancellation of the term of
this Lease.
ARTICLE 24
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QUIET ENJOYMENT
Section 24.1 QUIET ENJOYMENT. Landlord covenants that, so long as
this Lease is in full force and effect, Tenant shall peaceably and quietly have,
hold and enjoy the Premises, in accordance with the terms of this Lease, free
and clear of the claims of those claiming by, from or through Landlord or the
Permitted Encumbrances. Landlord represents and warrants that it owns the
Landlord's Facilities free and clear of all liens and encumbrances other than
the Permitted Encumbrances.
Section 24.2 COVENANT TO PAY TAXES. Landlord covenants to pay when
due all real estate taxes and assessments with respect to Landlord's Facilities
and, upon the request of Tenant, will submit to Tenant promptly after payment
evidence thereof.
ARTICLE 25
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GOVERNING LAW
This Lease shall be governed in all respects by the laws of the
State of Ohio.
ARTICLE 26
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TERMINATION RIGHTS
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Landlord and Tenant each have the right to terminate this Lease
pursuant to the terms and provisions of Section 19.3 of the Manufacturing
Agreement dated as of September 24, 1997 between Landlord and Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed
this Lease as of the date above.
Signed and acknowledged
in the presence of: DURAMED PHARMACEUTICALS,
INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ -----------------------
Printed name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
As to Landlord Title: Vice President
XXXXXX-XXXXXXX COMPANY
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Wild
------------------------------ -----------------------
Printed name: Xxxxxxxx Xxxxxxx Name: Xx. Xxxxxxx X. Wild
As to Tenant Title: Vice President and
President Pharmaceutical
Sector
/s/ J. R. Shilakes
------------------------------
Printed name: J. R. Shilakes
As to Tenant:
