EXHIBIT 10.27
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COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of the date set forth below
between SPC PROPERTIES LIMITED, and Ohio limited liability company, hereafter
referred to as "Lessor" and SUPERIOR PHARMACEUTICAL COMPANY, an Ohio corporation
hereinafter referred to as "Lessee":
WITNESSETH
1. LEASE PREMISES: In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets, and demises to Lessee the
following described premises:
Approximately 37,323 square feet office/warehouse building
(Building) comprising 100% of Lessor's building (Lessee's
Percentage) situated on a 6.93 +/- acre parcel located at 0000
Xxxxxx Xxxxxx Xxxxx, in the City of Forest Park, Xxxxxxxx County,
Ohio, and being further described as follows:
Lot. Xx. 0 xx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxx "B", recorded in
Plat Book 312, Page 36, of the Xxxxxxxx County, Ohio Plat Records,
and being subject to all legal highways, easements and restrictions
of record.
2. INITIAL TERM: Subject to and upon the conditions set forth below, the term of
this Lease shall commence upon, issuance of a certificate of occupancy
("Commencement Date"). The Lease shall terminate on the last day of the 241st
month thereafter.
3. RENT: (a) Base Rent: Lessee agrees to pay monthly as Base Rental during the
term of this Lease the sums as indicated on the attached "Base Rent Schedule"
(Exhibit B), which amounts shall be payable to Lessor at the address shown below
on the first day of the month. One monthly installment of rent shall be due and
payable on the day of execution of this Lease by Lessee for the first month's
rent and a like monthly installment shall be due and payable on or before the
first day of each calendar month, as indicated on the Rent Schedule, during the
demised term; provided, that if the "Commencement Date" should be a date other
than the first day of a calendar month, the monthly rental set forth above shall
be pro-rated to the end of that calendar month, and all succeeding installments
of rent shall be payable on or before the first day of each succeeding calendar
month during the demised term. Lessee shall pay, as additional rental, all other
sums due under this Lease.
(b) Insurance Premiums: Lessor shall provide and Lessor shall pay
for the All Risk Fire and Extended Coverage Insurance for the Building with loss
of rent endorsement. However, at Lessee's option and subject to Lessor's review
and approval as to form, content and carrier, Lessee may provide the Building
insurance to Lessor at Lessee's expense. The costs associated with said
insurance coverage shall be included in the Base Rent as indicated on the
attached "Base Rent Schedule" (Exhibit B). If, however, the lessee pays for the
cost of the insurance then the lessee shall receive a credit on the Base Rent
for the actual amount paid.
(c) Real Estate Tax: The total rental to be paid under this Lease
shall also include all real estate taxes and assessments levied on the Leased
Premises. Such payments be included in the Base Rent as indicated on the
attached "Base Rent Schedule" (Exhibit B).
(d) Service Charge: Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor, or if
any other payment due Lessor by Lessee is not received by Lessor on or before
the fifth (5th) day after it is due, a service charge of five percent (5%) of
such past due amount shall become due and payable in addition to such amounts
owed under this Lease.
It is the Lessee's responsibility to pay on a timely basis all costs associated
with the use and occupancy of the Leased Premises including , but not limited
to, all taxes, other than Real Estate Taxes and assessments, maintenance,
repairs, grounds keeping and snow removal.
4. USAGE: Lessee warrants and represents to Lessor that the Leased Premises
shall be used and occupied only for the purposes of the "Lessee" as
office/warehouse space. Lessee shall occupy the Leased Premises, conduct its
business and control its agents, employees, invitees and visitors in such a way
as is lawful, reputable and will not create any nuisance or otherwise interfere
with, annoy or disturb any property owner in Xxxxxx Meadow Business Center in
its normal business operations or Lessor in its management of the Premises.
Lessee shall not commit, or suffer to be committed, any waste on the Leased
Premises.
5. INSURANCE: Use of Premises. Lessee shall not permit the Leased Premises to be
used in any way which could be extra hazardous on account of fire or otherwise
which would in any way increase or render void the fire insurance on the
Building or any part thereof or any contents in the Building belonging to or
used by Lessor. If at any time during the term of this Lease the State Board of
Insurance or other insurance authority disallows any of Lessor's sprinkler
credits or imposes an additional penalty or surcharge in Lessor's insurance
premiums because of Lessee's original or subsequent placement or use of storage
racks or bins, method of storage or nature of Lessee's inventory or any other
act of Lessee, Lessee agrees to pay as additional rental the increase in
Lessor's insurance premiums.
Lessee shall carry, at its expense, liability insurance on the
Premises throughout the Lease Term covering both Lessee and Lessor as named
insureds and if Lessor elects, any owner and/or Lessee of the land upon which
the building is located, as additional named insured, with terms and companies
satisfactory to Lessor and having a combined single limit, providing both bodily
injury, including death resulting therefrom, and property damage coverage, to
the extent of $2,000,000.00, arising out of the ownership, maintenance or use of
the Leased Premises. Lessee shall also carry insurance against fire and such
other risks as are from time to time included in standard extended coverage
insurance, insuring the full replacement cost of all leasehold improvements paid
for by Lessee, including wall coverings, carpeting, furnishings and equipment.
All such policies shall be cancelable only upon ten (10) days prior written
notice to Lessee and Lessor. Prior to the Commencement Date and within fifteen
(15) days prior to the expiration of each such policy, Lessee shall furnish
Lessor with copies of such policies or certificates evidencing that such
insurance is in full force and effect and stating the terms thereof.
6. UTILITY SERVICE: Lessor shall provide the normal utility service connection
into the Leased Premises as indicated on approved construction plans. Lessee
shall pay the cost of all utility services, including, but not limited to, all
charges for gas, water and electricity used on the Leased Premises. Lessee shall
pay all costs caused by Lessee introducing excessive pollutants or solids other
than ordinary human waste into the sanitary sewer system, including permits,
fees and charges levied by any governmental subdivision for any such pollutants
or solids. Lessee shall be responsible for the installation and maintenance of
any dilution tanks, settling tanks, sewer sampling devices, sand traps, grease
traps or similar devices as may be required by any governmental subdivision for
Lessee's use of the sanitary sewer system. Lessor shall not be required to pay
for any utility services, supplies or upkeep in connection with the Leased
Premises.
7. REPAIRS AND MAINTENANCE: (a) Lessor's Obligations Unless otherwise expressly
provided, Lessor shall not be required to make any improvements, replacements or
repairs of any kind or character to the Leased Premises during the term of this
Lease except such repairs as are set forth in this subparagraph. Lessor shall
maintain only the foundation and the structural soundness of the roof, slab and
exterior walls (excluding all windows, window glass, plate glass and all doors)
of the Building in good repair and condition except for reasonable wear and
tear. Lessor will pass through any manufacturing warranties on building
components for benefit of Lessee. Lessee shall repair and pay for
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any damage caused by the negligence or default of Lessee or Lessee's agents and
employees. Lessee shall immediately give written notice to Lessor of the need
for repairs, which repairs shall be made by Lessor beginning not more than
fifteen (15) days after written notice by Lessee. Lessor shall not be liable to
Lessee, except as expressly provided in the Lease, for any damage or
inconvenience, and Lessee shall not be entitled to any abatement or reduction of
rent by reason of any repairs, alterations or additions made by Lessor under
this Lease except as provided for in Paragraph 13.
(b) Lessee Obligations (i) Except as indicated hereinabove, Lessee
shall, at its own cost and expense, maintain all parts of the Building and other
Improvements on the Leased Premises in good repair and condition (including all
necessary replacements), including, but not limited to, dock bumpers, pest
control and extermination, and regular removal of debris. Lessee shall enter
into a service contract for maintenance of the heating, ventilating and cooling
systems with a qualified mechanical contractor providing for complete
maintenance service at six (6) month intervals.
(ii) Lessee shall not allow any damage to be committed on any portion of the
Leased Premises, and at the termination of this Lease, by lapse of time or
otherwise, Lessee shall deliver the Leased Premises to Lessor in as good
conditions as existed at the Commencement Date of this Lease, ordinary wear and
tear excepted. The cost and expense of any repairs necessary to restore the
condition of the Leased Premises shall be borne by Lessee, and if Lessor
undertakes to restore the Leased Premises it shall have a right of reimbursement
against Lessee.
8. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Lessee, at Lessee's expense,
shall comply with all laws, ordinances, orders rules, regulations and other
requirements of state, federal, municipal or other agencies or bodies having
jurisdiction relating to the use, condition and occupancy of the Leased
Premises. Lessee shall not erect any exterior signs without the prior written
approval of Lessor, which shall not be unreasonably withheld.
9. LESSOR IMPROVEMENTS: If construction to the Leased Premises is to be
performed by Lessor prior to the Lessee's occupancy, Lessor will, at its
expense, commence and/or complete the construction of the improvements
constituting the Leased Premises, including partitions, in accordance with the
plans and specifications agreed to by the parties and made a part of this Lease
by reference. The plans and specifications shall be approved and signed by the
parties. Any changes or modifications to the approved plans and specifications
shall be made and accepted by written change order signed by Lessor and Lessee
and shall constitute an amendment to this Lease. Upon completion of the Building
and other improvements in accordance with the plans and specifications, Lessee
agrees to execute and deliver to Lessor a letter accepting delivery of the
Leased Premises.
In the event the Premises shall not be substantially completed and ready for
occupancy on the date above fixed for the commencement of the term of this
Lease, this Lease shall nevertheless continue in full force and effect, and no
liability shall arise against Lessor out of any such delay beyond the abatement
of rent until the Premises are ready for occupancy; provided, however, there
shall be no abatement of rent if the space is not substantially completed to
permit occupancy because of the failure of Lessee to submit Lessee Plans to
Lessor on a timely basis and, further, there shall be no abatement of rent
should Lessee unreasonably delay in authorizing Lessor to commence the
installation of Lessee's work or should Lessee request any changes of Lessee
work in progress if, in Lessor's opinion, such change may be a cause for the
extension of the date of substantial completion. If Lessee shall enter
possession of all or any part of the Premises and commence its business from the
Premises prior to the date fixed above for the first day of the term, all of the
covenants and conditions of this lease shall be binding upon the parties hereto
in respect of such possession the same as if the first day of the term had been
fixed as of the date which Lessee entered such possession and Lessee shall pay
to Lessor as rent for the period prior to the first day of the term of this
Lease a proportionate amount of the rent set forth in the Rent Schedule.
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10. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make or allow to be made any
alterations or physical additions in or to the Leased Premises without first
obtaining the written consent of Lessor which shall not be unreasonably
withheld. Any alterations, physical additions or Improvements to the Leased
Premises made by Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease. Lessor, at its option,
may require Lessee to remove any physical additions and/or repair any
alterations in order to restore the Leased Premises to the condition existing at
the time Lessee took possession, all costs of removal and/or alterations to be
borne by Lessee. This clause shall not apply to moveable equipment or furniture
owned by Lessee which may be removed by Lessee at the end of the term of this
Lease if Lessee is not then in default and if such equipment and furniture is
not then subject to any other rights, liens and interest of Lessor.
11. LIENS: Lessee shall not permit any lien or claim for any lien of any
mechanic, laborer or supplier or any other lien to be filed against the
Building, the land on which the Building is located, the Leased Premises, or any
part thereof arising out of work performed, or alleged to have been performed
by, or at the direction of, or on behalf of Lessee. If any such lien or claim
for lien is filed, Lessee immediately either shall have such lien or claim for
lien released of record or shall deliver to Lessor either: (i) a bond form,
content, amount, and issued by surety, satisfactory to Lessor, indemnifying
Lessor and others designated by Lessor against all costs and liabilities
resulting from such lien or claim for lien and the foreclosure or attempted
foreclosure thereof, or (ii) endorsements to the title policies of Lessor and
Lessor's mortgagee "Insuring Over" such liens satisfactory to Lessor and
Lessor's mortgagee, respectively. If Lessee fails to have such lien or claim for
lien so released or to deliver such a bond or title endorsements to Lessor,
Lessor, without investigating the validity of such lien, may pay or discharge
the same and Lessee shall reimburse Lessor upon demand for the amount so paid by
Lessor, including Lessor's expenses and attorney's fees. At Lessee's request,
Lessor will grant a waiver of lien rights to Lessee's inventory.
12. CONDEMNATION: (a) Substantial Taking If, during the term (or any extension
or renewal) of this Lease, all or a substantial part of the Leased Premises are
taken for any public or quasipublic use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
such taking or purchase would prevent or materially interfere with the use of
the Leased Premises for the purpose for which they are then being used, this
Lease shall terminated and the rent shall be abated during the unexpired portion
of this Lease effective on the date physical possession is taken by the
condemning authority. Lessee shall have no claim to the condemnation award or
any part thereof, unless some portion of the award is specifically allocated to
Lessee. Lessee can pursue its own claims.
(b) Partial Taking In the event a portion of the Leased Premises
shall be taken for any public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and this Lease is not terminated as provided in subparagraph (a) above,
Lessor may, at Lessor's sole risk and expense, restore and reconstruct the
Building and other Improvements on the Leased Premises to the extent necessary
to make it reasonably tenantable. The rent payable under this Lease during the
unexpired portion of the term shall be adjusted to such an extent as may be fair
and reasonable under the circumstances. Lessee shall have no claim to the
condemnation award or any part thereof, unless some portion of the award is
specifically allocated to Lessee. Lessee can pursue its own claims.
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13. FIRE AND CASUALTY: (a) Substantial Damage If the Leased Premises should be
totally destroyed by fire or other casualty, or if the Leased Premises should be
so damaged so that rebuilding cannot reasonably be completed within one hundred
and eighty (180) working days after the date of written notification by Lessee
to Lessor of the destruction, this Lease shall terminate, and if such damage
shall not have been caused by the fault or neglect of Lessee, its agents,
employees, invitees, or those for whom Lessee is responsible, the rent shall be
abated for the unexpired portion of the Lease, effective as of the date of the
written notification.
(b) Partial_ Damage If the Leased Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within one hundred and eighty (180) working days from the date of
written notification by Lessee to Lessor of the destruction, this Lease shall
not terminate, but Lessor may proceed with reasonable diligence to rebuild or
repair the Building or other improvements to substantially the same conditions
in which they existed prior to the damage. If the Leased Premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Lessee, its agents, employees, invitees or those for whom Lessee
is responsible, the rent payable under this Lease during the period for which
the Leased Premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances and mutually agreed upon by both
the Lessee and Lessor. In event that Lessor fails to complete the necessary
repairs or rebuilding within one hundred and eighty (180) working days from the
date of written notification by Lessee to Lessor of the destruction, Lessee may
at its option terminate this Lease by delivering written notice of termination
to Lessor, whereupon all rights and obligations under this Lease shall cease to
exist.
14. PROPERTY INSURANCE: Lessor shall at all times during the term of this Lease
maintain a policy or policies of insurance with the premiums paid in advance,
issued by and binding upon a solvent insurance company, insuring the Building
against all risk of direct physical loss in an amount equal to 100% of the full
insurable value of the Building structure and its improvements (exclusive of
excavation and foundation costs and costs of conduits, pilings and other similar
underground items and costs of parking lot paving and landscaping) as of the
date of the loss, provided, that Lessor shall not be obligated in any way or
manner to insure any personal property (including, but not limited to, any
furniture, machinery, goods or supplies) of Lessee or which Lessee may have upon
or within the Leased Premises or any fixtures, installed machinery, goods or
supplies of Lessee or which Lessee may have upon or within the Leased Premises
or any fixtures installed by or paid for by Lessee upon or within the Leased
Premises or any additional Improvements which Lessee may construct on the Leased
Premises.
15. WAIVER OF SUBROGATION: Anything in this Lease to the contrary
notwithstanding, to the extent that Lessor or Lessee shall be or have the right
to be reimbursed by insurance, Lessor and Lessee hereby waive and release each
other of and from any and all rights of recovery, claim, action or cause of
action, against each other, their agents, officers and employees, for any loss
or damage that may occur to the Leased Premises, Improvements to the Building of
which the Leased Premises are a part, or personal property (Building Contents)
within the Building, by reason of fire or the elements regardless of cause or
origin. Because this paragraph will preclude the assignment of any claim
mentioned in it by way of subrogation or otherwise to an insurance company or
any other person, each party to this Lease agrees immediately to give to each
insurance company which has issued to it policies of insurance covering all risk
of direct physical loss, written notice of the terms of the mutual waivers
contained in this paragraph, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverages
by reason of the mutual waivers contained in this paragraph.
16. HOLD HARMLESS: Lessor shall not be liable to Lessee's employees, agents,
invitees, licensees or visitors, or to any other person, for any injury to
person or damage to property on or about the Leased premises caused by the
negligence or misconduct of Lessee, its agents, servants or employees, or of any
other person entering upon the Leased Premises under express or implied
authority of Lessee.
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Lessee agrees to indemnify and hold harmless Lessor of and from any loss,
attorney's fees, expenses or claims arising out of any such damage or injury.
17. QUIET ENJOYMENT: Lessor warrants that it has full right to execute and to
perform this Lease and to grant the estate demised and that Lessee, upon payment
of the required rents and performing the terms, conditions, covenants and
agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Leased Premises during the full term of this Lease as well as any
extension or renewal thereof. Lessor shall not be responsible for the acts or
omissions of any other Lessee or third party that may interfere with Lessee's
use and enjoyment of the Leased Premises.
18. LESSOR'S RIGHT OF ENTRY: Lessor shall have the right, upon 24 hours prior
notice, at all reasonable hours, to enter the Leased Premises for the following
reasons: inspection; cleaning or making repairs; showing the Leased Premises to
prospective tenants or purchasers; determining Lessee's use of the Leased
Premises, or determining if an act of default under this Lease has occurred.
Lessee may escort Lessor or its agents while on Lease Premises.
19. ASSIGNMENT AND SUBLETTING: (a) Lessor's Rights Lessor shall have the right
to transfer and assign, in whole or in part, its rights and obligations in the
Building and property that are the subject of this Lease.
(b) Lessee's Restrictions. (i) Without the prior written consent of
Lessor, which shall not be unreasonably withheld, Lessee may not sublease,
assign, mortgage, pledge, hypothecate or otherwise transfer or permit the
transfer of this lease or the interest of Lessee in this Lease, in whole or in
part, by operation of law or otherwise. If Lessee desires to enter into any
sublease of the Leased Premises, Lessee shall deliver written notice thereof to
Lessor, together with financial and other information sufficient for Lessor to
make an informed judgment with respect to such proposed sublease. Any approved
sublease shall be expressly subject to the terms and conditions of this Lease.
In the event of any assignment or subletting, Lessee shall never the less at all
times remain fully responsible and liable for the payment of the rent and
compliance with all of its other obligations under the terms, provisions, and
covenants of this Lease. Upon the occurrence of an "Event of Default" as defined
below, if all or any part of the Leased Premises are then assigned or sublet,
Lessor, in addition to any other remedies provided by this Lease or provided by
law, may at its option, collect directly from the assignee or subtenant all
rents becoming due to Lessee by reason of the assignment or sublease, and Lessor
shall have a security interest in all properties on the Leased Premises to
secure payment of such sums. Any collection directly by Lessor from the Assignee
or subtenant shall not be construed to constitute a novation or a release of
Lessee from the further performance of its obligations under the Lease.
(ii) In the event Lessee desires to enter into any sublease of
the Leased Premises, Lessor shall have the option to exclude from the Leased
Premises covered by the Lease, the space proposed to be sublet by Lessee,
effective as of the proposed Commencement Date of sublease of said space by
Lessee. Lessor may exercise said option after Lessee notifies Lessor of the
proposed sublease. In the event Lessor exercises said option, Lessee shall
surrender possession of the proposed sublease space to Lessor on the effective
date of exclusion of said space from the Leased Premises covered by this Lease,
and neither party hereto shall have any further rights or liabilities with
respect to said space under this Lease.
20. DEFAULT BY LESSEE: The following shall be deemed to be Events of Default by
Lessee under this Lease:
(a) Delinquent Rent Lessee shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease and
such failure to pay continues for five days from date of notice;
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(b) Abandonment Lessee shall abandon any substantial portion of the
Leased Premises;
(c) Other Defaults Lessee shall fail to comply with any term,
provision or covenant of this Lease, other than the payment or rent, and the
failure is not cured within ten (10) days after written notice to Lessee;
(d) Bankruptcy Lessee shall file a petition or be adjudged bankrupt
or insolvent under the National Bankruptcy Act, as amended, or any similar law
or statute of the United State or any state; or a receiver or trustee shall be
appointed for all or substantially all of the assets of Lessee; or Lessee shall
make a transfer in fraud of creditors or shall make an assignment for benefit of
creditors; or
(e) Liens Lessee shall do or permit to be done any act which results
in a lien being filed against the Leased Premises or the Building and/or Project
of which the Leased Premises are a part.
21. REMEDIES FOR LESSEE'S DEFAULT: Upon the occurrence of any event of default
set forth in this Lease, Lessor shall have the option to pursue any one or more
of the following remedies without any notice or demand:
(a) Termination. Terminate this Lease, in which event Lessee shall
immediately surrender the Leased Premises to Lessor, and if the Lessee fails to
surrender the Leased Premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the Leased Premises, by picking or changing locks if necessary and
lock out, expel, or remove Lessee and any other person who may be occupying all
or any part of the Leased Premises without being liable for prosecution of any
claim for damages. Lessee agrees to pay on demand the amount of all loss and
damage which Lessor may suffer by reason of the termination of the Lease under
this subparagraph, whether through inability to relet the Leased Premises on
satisfactory terms or otherwise.
(b) Entry and Reletting. Enter upon and take possession of the
Leased Premises by picking or changing lock if necessary, and lock out, expel or
remove Lessee and any other person who may be occupying all or any part of the
Leased Premises without being liable for any claim or damages, and relet the
Leased Premises on behalf of Lessee and receive directly the rent by reason of
the reletting
(c) Entry and Performing Lessee's Obligations. Enter upon the Leased
Premises, by picking or changing locks if necessary; without being liable for
prosecution or any claim for damages, and do whatever Lessee is obligated to do
under the terms of this Lease. Lessee agrees to reimburse Lessor on demand for
any expenses which Lessor may incur in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this subparagraph caused by negligence of Lessor or
otherwise.
22. WAIVER OF DEFAULT OR REMEDY: Failure of Lessor to declare an event of
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of the
default, but Lessor shall have the right to declare the default at any time and
take such action as is lawful or authorized under this Lease. Pursuit of any one
or more of the remedies set forth in Paragraph 21 above shall not preclude
pursuit of any one or more of the other remedies provided elsewhere in this
Lease or provided by law, nor shall pursuit of any remedy provided constitute
forfeiture or waiver of any rent or damages accruing to Lessor by reason of the
violation of any of the terms, provisions or covenants of this Lease. Failure by
Lessor to enforce one or more of the remedies provided upon an event of default
shall not be deemed or construed to constitute a waiver of the
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default or of any other violation or breach of any of the terms, provisions or
covenants contained in this Lease.
23. ACTS OF GOD: Lessor shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Lessee, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
by or prevented by an Act of God or Force Majeure.
24. ATTORNEY'S FEES: Lessee shall pay upon demand, all costs and expenses,
including reasonable attorney's fees, incurred by Lessor in enforcing the
observance and performance by Lessee of all covenants, conditions provisions of
this Lease or resulting from Lessee's default under this Lease. In the event of
default by Lessor, Lessee shall be entitled to attorney's fees required to
enforce any remedies resulting from such default.
25. SURRENDER OF PREMISES: Upon expiration or termination of this Lease or
termination of Lessee's right of possession of the Leased Premises Lessee shall
vacate the Leased premises. Lessee shall immediately deliver possession thereof
to Lessor in a clean, good and tenantable condition, ordinary wear and tear
accepted. Upon any termination which occurs other than by reason of Lessee's
default, Lessee shall be entitled to remove from the Leased Premises all movable
personal property of Lessee's provided Lessee immediately shall repair all
damage resulting from such removal and shall restore the Leased Premises to
tenantable condition. In the event possession of the Leased Premises is not
immediately delivered to Lessor or if Lessee shall fail to remove all of
Lessee's movable property as aforesaid, Lessor may remove any of such property
therefrom without any liability of Lessor to Lessee or any other party. All
movable property which may be removed from the Leased Premises by Lessor shall
be conclusively presumed to have been abandoned by Lessee and title thereto
shall pass to Lessor without any cost or credit therefore and Lessor may at its
option and at Lessee's expense, store and/or dispose of such property.
26. HOLDING OVER: In the event of holding over by Lessee after the expiration or
termination of this Lease, the hold over shall be as a tenant at will and all of
the terms and provisions of this Lease shall be applicable during that period.
Lessee shall pay Lessor as rental for the period of such hold over an amount
equal to one and one-half (1 1/2) of the rent which would have been payable by
Lessee had the hold over period been a part of the original term of this Lease.
Lessee agrees to vacate and deliver the Leased Premises to Lessor upon Lessee's
receipt of notice from Lessor to vacate. The rental payable during the hold over
period shall be payable to Lessor on demand. No holding over by Lessee, whether
with or without consent of Lessor, shall operate to extend this Lease except as
otherwise expressly provided.
27. RIGHTS OF FIRST AND SECOND MORTGAGEE: Lessee accepts this Lease subject and
subordinate to any recorded first and second mortgage or deed of trust lien
presently existing or hereafter created upon the Leased Premises. Lessor is
hereby irrevocably vested with full power and authority to subordinate Lessee's
interest under this Lease to any first and second mortgage or deed of trust lien
hereafter placed on the Leased Premises, and Lessee agrees upon demand to
execute additional instruments subordinating this Lease as Lessor may require.
If the interests of Lessor under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first or second mortgage
or deed of trust on the Leased Premises, Lessee shall be bound to the transferee
(sometimes called the "Purchaser"), at the option of the Purchaser, under the
terms, covenants and conditions of this Lease for the balance of the term
remaining, and any extensions or renewals, with the same force and effect as if
the Purchaser were Lessor under this Lease, and, if requested by the Purchaser,
Lessee agrees to atone to the Purchaser, including the first and second
mortgagee under any such mortgage if it be the Purchaser, as its Lessor. The
transfer of any interest of Lessor under this Lease shall not diminish Lessee's
rights under the Lease as long as it is not in default hereunder.
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28. ESTOPPEL CERTIFICATES: Lessee agrees to furnish promptly from time to time,
upon request of Lessor or Lessor's mortgagee, a statement certifying, if
applicable, that Lessee is in possession of the Leased premises; the Leased
Premises are acceptable; the Lease is in full force and effect; the Lease is
unmodified; Lessee claims no present charge, liens or claim of offset against
rent; the rent is paid for the current month, but is not prepaid for more than
one month and will not be prepaid for more than one month in advance; there is
no existing default by reason of some act or omission by Lessor; and such other
matters as may be reasonably required by Lessor or Lessor's mortgagee.
29. SUCCESSORS: Subject to Paragraphs 20 and 21 hereof, this Lease shall be
binding upon and insure to benefit of Lessor and Lessee and their respective
heirs, personal representatives, successors and assigns, and if Lessor's
interest in the Leased Premises cease to exist for any reason during the term of
this lease, then, notwithstanding the happening of such event, this Lease
nevertheless shall remain unimpaired and in full force and effect and Lessee
hereunder agrees to atone to the then owner of the Leased Premises.
30. RENT TAX: If applicable in the jurisdiction where the Leased Premises are
situated, Lessee shall pay and be liable for all rental, sales and use taxes or
other similar taxes, related to the leased Premises, levied or imposed by any
city, state, or county or other governmental body having authority, such
payments to be in addition to all other payments required to be paid to Lessor
by Lessee under the terms of this Lease. Any such payment shall be paid
concurrently with the payment of the rent upon which the tax is based as set
forth above.
31. DEFINITIONS: The following definitions apply to the terms set forth below as
used in this Lease:
(a) "Abandon" means the vacating of all or a substantial portion of
the Leased Premises by lessee, whether or not Lessee is in default of the rental
payments due under this Lease.
(b) An "Act of God" or "Force Majeure" is defined for purposes of
this Lease as strikes, lockouts, sit-downs, material or labor restrictions by
any governmental authority, unusual transportation delays, riots, floods,
washouts, explosions, earthquakes, fire, storms weather (including wet ground or
inclement weather which prevents enemy, wars, insurrections and any control of
Lessor and which by the is unable, wholly or in part, to construction), acts of
the public other cause not reasonably within exercise of due diligence Lessor
prevent or overcome.
(c) The "Completion Date" shall be the date on which the
Improvements erected and to be erected upon the Leased Premises shall have been
substantially completed in accordance with the plans and specifications referred
to in Paragraph 9.
(d) "Real Estate Tax" means all school, city, state and county taxes
and assessments including special district taxes or assessments.
(e) "Square Feet" or "Square Foot" as used in this Lease includes
the area contained within the space occupied by Lessee.
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32. MISCELLANEOUS: The captions, headings, and titles appearing in this Lease
are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such paragraph. If any provision of
this Lease or the application thereof to any person or circumstance shall be
invalid or unenforceable to any extent, the remainder of this Lease and the
application of such provision to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by Law.
33. NOTICE AND PAYMENTS: (a) Payments by Lessee All rent and other payments
required to be made by Lessee shall be payable to Lessor at the address set
forth below.
(b) Payments by Lessor All payments required to be made by Lessor to
Lessee shall be payable to Lessee at the address set forth below, or at any
other address with the United States as Lessee may specify from time to time by
written notice.
(c) Notice Any notice or document required or permitted to be
delivered by this Lease shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties at the respective
addresses set out below:
LESSOR: LESSEE:
0000 Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxx 00000 Xxxxxx Xxxx, Xxxx 00000
or to such other address as Lessor or Lessee may specify by a notice given in
the foregoing manner. All notices, demands, and requests shall be effective upon
being deposited in the United States Mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of the notice, demand or request sent.
34. REAL ESTATE BROKERS: Lessee represents that Lessee has not dealt with any
real estate broker, salesperson, or finder in connection with this Lease, and no
such person initiated or participated in the negotiation of this Lease, or
showed the Premises to Lessee. Lessee agrees to indemnify and hold Lessor
harmless from any claim or claims, as well as costs and expenses including
attorney's fees incurred by Lessor in conjunction with any such claim or claims,
of any broker or brokers, claiming to have interested Lessee in the Building or
Leased Premises or claiming to have caused Lessee to enter into this Lease.
35. SECURITY DEPOSIT: Lessor has received from Lessee the sum of $10,000.00 as
security for the performance of all of Lessee's obligation hereunder including
the payment of rent. In the event of any default by Lessee, Lessor may at it
option apply such part of the deposit as may be necessary to cure the default,
and if Lessor does so, Lessee shall upon demand make such additional deposit as
may be required to maintain the sum of $10,000.00 on hand. Upon the termination
of this Lease, Lessor shall, provided the Lessee is not in any default, refund
to Lessee the balance held by Lessor without interest. In the event of a sale of
the Land and Building of which the Leased premises are a part, Lessor shall have
the right to transfer the deposit and Lessee agrees to look to the new purchaser
solely for the return of said deposit.
35. SEVERABILITY: If any provision of this Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
validate or render unenforceable any other provision hereof.
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36. APPLICABLE LAW: This Lease shall be governed by the applicable laws of the
State of Ohio.
37. LESSEE COVENANTS: Lessee agrees, covenants, represents and warrants that:
1) as of the date of execution hereof, Lessee is not in default
of any of its obligations or agreements with its creditors.
2) Upon request, Lessee will provide Lessor financial
information or sureties satisfactory to Lessor and Lessor's first mortgagee.
3) All obligations of Lessee shall be guaranteed by all
Shareholders of Lessee pursuant to a Lease Guaranty Agreement of even date
herewith.
38. ENTIRE AGREEMENT AND LIMITATION OF WARRANTIES; IT IS EXPRESSLY AGREED BY
LESSEE, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS
LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE
ENTIRE AGREEMENT OF THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL
REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES PERTAINING TO THIS LEASE OR THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC
DOCUMENTS NOT INCORPORATED IN WRITING IN THIS LEASE. LESSOR AND LESSEE EXPRESSLY
AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES WHICH EXTEND BEYOND
THOSE EXPRESSLY SET FORTH IN THIS LEASE. IT IS LIKEWISE AGREED THAT THIS LEASE
MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY BOTH LESSOR AND LESSEE.
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Signed at Cincinnati, Ohio, this 9th day of March, 1995.
LESSEE: SUPERIOR PHARMACEUTICAL COMPANY
Witnesseth:
Xxxxxx X. Xxxx By: Xxxxxx X. Xxxxx
------------------------------------ ------------------------------------
Illegible By: Xxxx X. Xxxxxxxxxxx
------------------------------------ ------------------------------------
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
I HEREBY CERTIFY, that on this 9th day of March, 1995, before me the
subscriber, a Notary Public of the State of Ohio, in and for said County of
Xxxxxxxx, aforesaid personally appeared XXXXXX X. XXXXX, the President, and XXXX
X. XXXXXXXXXXX, the Vice-President of SUPERIOR PHARMACEUTICAL COMPANY, the
Lessee in the foregoing Lease, who being duly authorized by its Board of
Directors and acting in order to and with the express intent of binding said
corporation acknowledged the signing of the foregoing Lease Agreement as the
free and voluntary corporate act of Tenant and the free and voluntary act and
deed of said officers for an on behalf of said corporation for the uses of
purposes therein mentioned.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal at Cincinnati,
Ohio.
Xxxxxx X. Xxxx
----------------------------------------
Notary Public
Witnesseth:
Xxxxxx X. Xxxx By: illegible
------------------------------------ ------------------------------------
Illegible By: Xxxx X. Xxxxxxxxxxx
------------------------------------ ------------------------------------
By: Xxxxxx X. Xxxxx
------------------------------------ ------------------------------------
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
I HEREBY CERTIFY, that on this 9th day of March, 1995, before me the
subscriber, a Notary Public of the State of Ohio, in and for said County of
Xxxxxxxx, aforesaid personally appeared XXXXXX X. XXXXX, XXXX X. XXXXXXXXXXX,
and XXXXXX X. XXXXXXX, all of the members of SPC Properties Limited, the Lessor
in the foregoing Lease Agreement as his free and voluntary act for the uses and
purposes therein mentioned.
IN TESTIMONY WHEREOF, I hereunto set my hand and official seal at
Cincinnati, Ohio.
Xxxxxx X. Xxxx
----------------------------------------
Notary Public
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