EXHIBIT 10.12
ASSIGNMENT AND SECOND MODIFICATION OF LEASE AGREEMENT
THIS ASSIGNMENT AND SECOND MODIFICATION OF LEASE AGREEMENT
("Modification"), Made this 30th day of June, 1996, by and between OAKWOOD
BUSINESS CENTER LIMITED PARTNERSHIP, a Delaware limited partnership, as
successor to STS Buildings Associates, L.P., a Delaware limited partnership,
(hereinafter referred to as "LANDLORD"), KOS HOLDINGS, INC., a Florida
corporation, (formerly Kos Pharmaceuticals, Inc.) (hereinafter referred to as
"ASSIGNOR") and KOS PHARMACEUTICALS, INC., a Florida corporation, which is a
wholly owned subsidiary of KOS Holdings, Inc. hereinafter referred to as
"ASSIGNEE".
WITNESSETH:
WHEREAS, STS Building Associates, L.P. and KOS Pharmaceuticals, Inc.,
did heretofore on the 2nd day of May, 1991 enter into a certain Lease Agreement
for premises located at Xxx Xxxxxxx Xxxxxxxxx, XXXXX 000, Xxxxxxxxx, Xxxxxxx
00000; which said Lease Agreement was amended by that Modification and Extension
Agreement dated June 6, 1996, (collectively sometimes hereinafter the "Lease
Agreement"); and
WHEREAS, Assignor and Assignee have represented to Landlord that KOS
Pharmaceuticals, Inc. changed its name to KOS Holdings, Inc., and that
thereafter KOS Holdings, Inc., formed a wholly-owned subsidiary known as KOS
Pharmaceuticals, Inc., the proposed Assignee herein, and based solely upon such
representations, Landlord herein agrees as follows; and
WHEREAS, the parties hereto desire to further modify said Lease
Agreement upon certain terms and conditions as more fully set forth hereinafter.
NOW, THEREFORE, in consideration of the promises, covenants and
undertakings hereinafter set forth and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. RECITATIONS: The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. CONFLICTS: In the event of a conflict between any of the terms,
conditions and/or provisions of this Modification and any of the terms,
conditions and/or provisions of the Lease Agreement, the terms, conditions
and/or provisions of this Modification shall prevail.
3. DEFINED TERMS: Except as otherwise provided in this Modification,
all defined terms shall have the meanings such defined terms have in the Lease
Agreement.
4. TERM: The Termination Date of the Lease Agreement as set forth in
Section 3 of the Lease Agreement and modified in Section 3 of the Modification
and Extension Agreement dated June 6, 1996, shall be further modified to provide
for a Termination Date of November 30, 1998.
5. BASE RENT: The Annual Base Rent as set forth in Section 5 of the
Lease Agreement shall be paid as follows:
PERIOD PERIOD ANNUAL MONTHLY
COMMENCING ENDING BASE RENT BASE RENT
---------- ------ --------- ---------
10/1/96 11/30/96 $60,173.88 $5,014.49
12/1/96 11/30/97 $63,178.32 $5,264.86
12/1/97 11/30/98 $66,311.40 $5,525.95
6. OPTION TO EXTEND THE LEASE TERM: Tenant shall have the option with
one hundred and twenty (120) days prior written notice to Landlord to extend the
Term of the Lease for a period of time not less then twelve (12) months nor
longer than twenty-four (24) months ("Option Term"). The Base Rent for the
Option Term shall be as follows:
PERIOD PERIOD ANNUAL MONTHLY
COMMENCING ENDING BASE RENT BASE RENT
---------- ------ --------- ---------
12/1/98 11/30/99 $68,963.88 $5,746.99
12/1/99 11/30/00 $71,441.64 $5,953.47
7. USE: Provided Assignee obtains and pays for all applicable licenses,
permits, approvals and zoning/land use variances/changes, then Assignee shall be
allowed to conduct commercial manufacturing in the Demised Premises in addition
to the other uses set forth under the Lease Agreement.
8. CONSTRUCTION: Landlord agrees to allow Tenant to make interior
improvements to the Demised Premises. Said improvements shall be built in
substantial compliance with the plans and specifications described in Exhibit
"A" attached hereto. All work shall be performed by Tenant and at Tenant's sole
cost and expense.
Landlord and Tenant agree that upon Tenant's vacating and
Demised Premises and upon Landlord's written request, Tenant shall be
responsible for returning the Demised Premises to the condition as requested by
Landlord which shall include as follows:
(a) VENTS/EXHAUST DUCTS: Remove all vents and exhaust ducts and cap at
roof. Repair dropped ceiling as necessary.
(b) PLUMBING: (1) Cut off all plumbing at partitions, cap and cover
with face plate (2) cap and cover all floor drains.
(c) FLOORING: (1) Remove all raised flooring and beams at lab area and
return to original concrete flooring grade.
(d) ELECTRIC: Cap all electric connections at partitions and cover with
face plate.
(e) PARTITIONS: Patch all damaged drywall partitions and repaint
accordingly.
9. ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT: Assignor for and in
consideration of the sum of Ten and No/100 ($10.00) Dollars and the
considerations set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged has transferred and
assigned, and by these presents does transfer and assign unto Assignee that
certain Lease Agreement between Assignor, as "Lessee", and Landlord as "Lessor",
dated May 2, 1991, as amended or modified, for certain Premises located at Xxxxx
000, Xxx Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx 00000 ("Premises" or "Demised
Premises"), together with all of the rights, interests and deposits of Assignor
thereunder,
Assignee hereby assumes and agrees to observe and perform each and
every duty and obligation on the part of the "Lessee" to be observed and
performed pursuant to said Lease, and Assignee recognizes and attorns to
Landlord and "Lessor" under the Lease Agreement.
Landlord hereby acknowledges and consents to this Assignment of Lease
from Assignor to Assignee and to the assumption by Assignee of the "Leasee's"
duties and obligations thereunder.
Nothing contained herein shall release, relieve or in any manner modify
the duties and obligations of Assignor under the Lease Agreement, and Assignor
shall remain fully liable for the payment and performance of each and every duty
and obligation on the part of the "Lessee" to be observed and performed pursuant
to the Lease Agreement, whether accruing prior to or subsequent to this
Modification.
The consent by Landlord to this Modification shall not constitute a
waiver of the necessity for such consent to any subsequent assignment.
Assignor hereby represents and warrants to Assignee as follows:
A. That Assignor and Landlord agree that Assignor has not deposited a
Security with Landlord.
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B. That the Lease has not been modified or amended in any way except as
set forth above and a true and correct copy of the Lease Agreement is attached
hereto.
C. That Assignor has made no prior outstanding transfer, assignment,
hypothecation or pledge of the Lease Agreement, except as indicated herein.
10. RATIFICATION AND CONFIRMATION: Except as specifically modified and
assigned hereby , all of the terms, provisions and conditions of the Lease
Agreement of May 2nd, 1991, as extended and amended (or modified), shall remain
in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Modification
of Lease Agreement the day and year first above written.
Executed this ___day of _____________ 1996.
WITNESSES: LANDLORD
OAKWOOD BUSINESS CENTER LIMITED PARTNERSHIP,
a Delaware Limited partnership
By: OBC Genpar, Inc.
Its: General Partner
__________________________ By:____________________________________
Its:
__________________________
As to LANDLORD
Executed this ___ day of _____________ 1996.
WITNESSESS: ASSIGNOR
KOS HOLDINGS, INC.,
a Florida corporation
/S/ XXXXXXX XXXXXXX By:/S/ XXXXXXX XXXXXXX
-------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
/S/ XXXXX XXXXXXX Attest:/S/ XXXX X. XXXXXXXXX
------------------ ----------------------
As to TENANT Name: Xxxx X. Xxxxxxxxx
Title: Controller
(CORPORATE SEAL)
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Executed this ___day of _____________ 199__.
WITNESSES: ASSIGNEE
KOS PHARMACEUTICALS, INC.,
a wholly owned subsidiary of
Kos Holdings, Inc.
/S/ XXXXXXX XXXXXXX By:/S/ XXXXXX X. XXXX
-------------------- -------------------------------
Name: Xxxxxx X. Xxxx
Title: President
/S/ XXXXX XXXXXXX Attest: /S/ XXXX X. XXXXXXXXX
-------------------- ----------------------
As to TENANT Name: Xxxx X. Xxxxxxxxx
Title: Controller
(CORPORATE SEAL)
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