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Exhibit
10.7
EXECUTION
COPY
LEASE
AGREEMENT
between
ABRAXIS BIOSCIENCE,
LLC
and
APP PHARMACEUTICALS,
LLC
LEASE
AGREEMENT
THIS LEASE AGREEMENT (this
“Lease”), dated effective the 13 th day of November, 2007 (the
“Effective Date”), is made by and between Abraxis
BioScience, LLC, a Delaware limited liability company
(“LESSOR”), and APP Pharmaceuticals, LLC, a Delaware
limited liability company (“LESSEE”).
RECITALS
WHEREAS, LESSOR and LESSEE
(and their respective parent companies) have entered into a
Separation and Distribution Agreement dated as of the Effective
Date (the “Separation Agreement”);
WHEREAS, simultaneously
herewith, New Abraxis, Inc., to be renamed Abraxis BioScience,
Inc., parent company of LESSOR, and LESSEE are entering into a
Manufacturing Agreement (the “Manufacturing
Agreement”);
WHEREAS, LESSOR and LESSEE
have entered into a lease dated as of the date hereof for the
property located at 2020 Ruby Street, Melrose Park, Illinois (the
“Ruby Street Lease”);
WHEREAS, the LESSOR is the
owner of that certain improved real property located at and
commonly known as the Cornell warehouse facility indicated as
“Phase 1a RMD Warehouse W-300”, “Phase 1b
Warehouse 2 W-200”, and “Phase 1c Warehouse 1
W-300” in Exhibit A (together with all buildings,
structures, fixtures and improvements and betterments thereon and
appurtenances thereto other than the Machinery and Equipment (as
defined in the Separation Agreement) of LESSOR) thereon attached
hereto and made a part hereof (the
“Property”);
WHEREAS, notwithstanding that
LESSOR owns the Property and this Lease, LESSEE is, and remains,
the owner of the Contributed Machinery and Equipment (as defined in
the Separation Agreement) of LESSEE; and
WHEREAS, LESSOR desires to
lease to LESSEE, and LESSEE desires to lease from LESSOR,
(i) the Property, (ii) all improvements at any time
existing thereon and (iii) all fixtures, equipment, furniture
and machinery, excluding, for all purposes, the Machinery and
Equipment of LESSOR (collectively, the
“Premises”).
NOW, THEREFORE, in
consideration of the mutual promises and premises hereinafter
contained, it is hereby mutually agreed as follows:
ARTICLE I
Definitions
1.1 All capitalized terms
used in this Lease and not defined herein shall have the meaning
ascribed to such terms in the Separation Agreement.
ARTICLE II
Property
2.1 Lease . LESSOR
hereby leases to LESSEE the LESSEE’s share of the Premises,
hereinafter referred to as the “LESSEE Premises,” and
LESSEE leases, hires and takes from LESSOR the LESSEE Premises.
LESSEE has inspected the Premises and accepts the same “As
Is.” The LESSEE Premises consists of approximately 71,000
square feet of warehouse space and shall include the right to use
and obligation to share (as applicable) any common
areas.
ARTICLE III
Term
3.1 Term . The term of
this Lease shall commence on the Effective Date (the
“Commencement Date”) and end on December 31, 2011
(the “Term”), unless earlier terminated in accordance
with the provisions of this Lease.
3.2 Lease Extension
Option .
(a) LESSEE may elect to
extend the Term of this Lease until December 31, 2012 provided
that the Ruby Street Lease is extended pursuant to Section 3.2
of that lease.
(b) For any extension, the
base rent shall be the base rent of the immediately preceding lease
year plus three percent (3%).
3.3 Holding Over . If
LESSEE retains possession of the Premises or any part thereof after
the termination of this Lease or expiration of the Term, LESSEE
shall pay to LESSOR a monthly Rent equal to 2.00 times the monthly
Rent in effect as of the last month of the Term. This charge shall
not limit LESSOR’s right to seek such other remedy as may be
available to it at law or equity.
ARTICLE IV
Rent
4.1 Rent . During the
Term, LESSEE covenants and agrees to pay LESSOR, as annual rent for
the Premises, the aggregate amount of $852,000, which shall be paid
monthly ( i.e. , $71,000) on the 1 st day of each month during the Term at the
LESSOR’s address for notice hereunder or otherwise as LESSOR
may designate (the “Rent”).
ARTICLE V
Services and
Utilities
5.1 Services and
Utilities . During the Term, LESSOR shall be solely responsible
for and shall pay expenses for all utilities used or consumed at
the Premises, including but not limited to all water, gas, heat,
light, power, telephone and other utilities and services
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supplied to the Premises together with
any taxes thereon. If LESSEE desires to install any equipment which
shall require additional utility facilities or utility facilities
of a greater capacity than the facilities existing on the Effective
Date, such installation shall be subject to LESSOR’s prior
written approval (such approval not to be unreasonably withheld,
conditioned, denied or delayed) of LESSEE’s plans and
specifications therefor.
5.2 LESSOR Not Responsible
For Interruption of Service . LESSOR shall in no way be liable
or responsible for any loss, damage or expense that LESSEE may
sustain or incur by reason of any change, failure, interference,
disruption or defect in the supply or character of the utilities
furnished to the Premises, or if the quantity or character of the
utilities supplied to the Premises are no longer available or
suitable for LESSEE’s requirements, and no such change,
failure, defect, unavailability or unsuitability shall constitute
an actual or constructive eviction in whole or in part, or entitle
LESSEE to any abatement or diminution of rent or additional rent,
or relieve LESSEE from any obligations under the Lease; provided,
however, if any service failure arises from the gross negligence or
willful misconduct of LESSOR, then (a) the Rent and any
additional rent payable under this Lease shall abate in proportion
to the fraction of the total rentable area of the Premises that is
materially affected by such service failure and (b) LESSEE
shall have the right to pursue any and all remedies available at
law or in equity.
ARTICLE VI
Repairs and
Maintenance
6.1 LESSEE’s
Obligations .
(a) Except for Capital
Repairs (as hereinafter defined), LESSEE shall be responsible for
(i) all repairs (including replacements) necessary to maintain
the Premises in substantially the same condition as exists on the
Effective Date, normal wear and tear and damage by fire or other
casualty and eminent domain excepted. LESSEE shall not be
responsible for any maintenance, repairs or replacement in or
affecting any portions of the Premises occupied by any tenant or
occupant other than LESSEE. In the event that LESSEE has not
performed such repairs and LESSOR elects to perform the repair,
after written notice and a reasonable opportunity to cure, LESSEE
shall reimburse LESSOR the repair costs within thirty
(30) days following LESSEE’s receipt of LESSOR’s
written demand and evidence of payment therefor.
(b) LESSEE shall also be
responsible for making any repairs to the Property caused by any
act, omission or negligence of LESSEE or its employees, agents,
invitees, licensees, subtenants, or contractors and shall indemnify
and save harmless LESSOR from any and all expenses, liens, claims,
or damages to either persons or property arising out of, or
resulting from the failure to make such repairs; provided, however,
LESSEE shall not be obligated to make any repairs to the Property
if the need for such repairs is caused by LESSOR or its agents,
contractors, employees, guests or invitees. LESSOR shall have the
right to make any repairs that are the responsibility of LESSEE
under this Section 6.1(b) at LESSEE’s sole cost and
expense after written notice and reasonable opportunity to make the
repair, and LESSEE shall reimburse LESSOR the repair costs within
thirty (30) days following LESSEE’s receipt of
LESSOR’s written demand and evidence of payment
therefor.
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(c) All repairs conducted by
LESSEE shall be accomplished promptly with first class materials,
in a good and workmanlike manner, in compliance with all applicable
laws of all governmental authorities and in a style, character and
quality conforming to the existing construction of the
Premises.
6.2 LESSOR’s
Obligations . For the purposes of this Lease, “
Capital Repairs ” shall mean (i) any maintenance,
repairs or replacements to the roof, foundation and structural
elements of the Premises, (ii) any maintenance, repairs or
replacements to the Premises’ systems (which shall include
the heating, ventilating, air-conditioning, plumbing, electrical,
mechanical and other systems and equipment serving the Premises
generally), the common areas or the exterior of the Premises and
(iii) maintenance, repairs or replacements to the Premises
required to comply with any laws applicable to the Premises (to the
extent not relating to LESSEE’s use or occupancy of the
Premises) enacted or promulgated after the date of this Lease, in
each case, the cost of which is properly characterized as property,
plant and equipment according to generally accepted accounting
practices. LESSOR, at its expense (subject to reimbursement by
LESSEE to the extent provided in Section 6.1 (b)), shall be
responsible for all Capital Repairs necessary to keep the Premises
in as good condition as exists as of the Effective Date or to
comply with any laws applicable to the Premises (to the extent not
relating to LESSEE’s use or occupancy of the Premises)
enacted or promulgated after the Effective Date. LESSOR shall
complete such repairs in a good and workmanlike manner consistent
with normal and customary industry standards for buildings similar
to the Premises and in compliance with all applicable
laws.
ARTICLE VII
Alterations, and
Additions
7.1 Alterations and
Additions . LESSEE shall have the right, from time to time,
without LESSOR’s consent, to make interior alterations,
improvements and/or additions in and to the Premises that will have
no effect on the roof, foundation or other structural elements of
the Premises (the “Building Structure”) and will have
no adverse effect on the heating, ventilating, air-conditioning,
plumbing, electrical, mechanical and other systems and equipment
serving the Premises generally (the “Building
Systems”). LESSEE may make alterations, improvements and/or
additions that affect the exterior of the Premises or may have a
material adverse effect on the Building System only after first
obtaining the prior written consent of LESSOR, which consent shall
not be unreasonably withheld, conditioned, delayed or denied. All
such approved additions, alterations or improvements shall be in
accordance to plans and specifications prepared by a duly qualified
architect or engineer who shall submit such plans and
specifications to LESSOR for written approval, not to be
unreasonably withheld, conditioned, delayed or denied. All
alterations, improvements, and additions to the Premises shall be
made in accordance with all applicable laws and shall at once when
made or installed be deemed to have attached to the freehold and to
have become the property of LESSOR and shall remain for the benefit
of LESSOR at the end of the Term or other earlier termination of
this Lease. Any equipment installed by LESSEE during the Term shall
at LESSEE’s election be removed at the expiration or
termination of this Lease or shall remain at the Premises. In the
event of making such alterations, improvements, and/or additions as
herein provided, LESSEE shall indemnify and save harmless LESSOR
from any and all expenses, liens, claims, or damages to either
persons or Premises arising out of, or resulting from the
undertaking or making of said alterations, additions, and
improvements. Notwithstanding anything to the contrary set forth
herein, LESSEE shall have the right, without LESSOR’s consent
or approval, to make non-structural alterations of less than
$50,000 in any instance.
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ARTICLE
VIII
Taxes
8.1 Payment of Taxes .
LESSOR shall pay all real property taxes applicable to the
Premises. LESSOR’s obligations under this Section 8.1
shall survive the expiration or termination of this
Lease.
8.2 Definition of Real
Property Tax . As used herein, the term “real property
tax” shall include any form of fee or tax imposed by any
authority having the direct or indirect power to tax or assess,
including any city, county, state or federal government, any
school, agricultural, lighting, drainage or other improvement
district thereof, or any private owners association created by
covenants, conditions and restrictions binding on the Premises, as
against any legal or equitable interest of LESSOR in the Premises,
or as against LESSOR’s business of leasing the Premises. The
term “real property tax” shall also include any tax,
fee, levy, assessment or charge, or any increase therein, imposed
by reason of events occurring during the Term, including, but not
limited to, a change in the ownership of the Premises.
Notwithstanding the foregoing, “real property tax”
shall not include: (i) all excess profits taxes, franchise
taxes, succession taxes, estate taxes, capital stock taxes,
inheritance taxes, gift taxes, mortgage taxes, federal and state
income taxes or any other taxes imposed upon or measured by
LESSOR’s gross income or profits unless the same is
specifically imposed in lieu of real estate taxes or ad valorem
taxes; (ii) penalties for late payments; (iii) special
assessments; and (iv) transfer taxes imposed upon any transfer
of the Premises or any interest therein.
8.3 Personal Property
Taxes .
(a) LESSEE shall pay prior to
delinquency all taxes assessed against and levied upon
LESSEE’s trade fixtures, furnishings, Machinery and Equipment
of LESSEE and all other personal property of LESSEE contained in
the Premises or otherwise owned or operated by LESSEE at the
Premises. When possible, LESSEE shall cause said trade fixtures,
furnishings, Machinery and Equipment of LESSEE and all other
personal property to be assessed and billed separately from the
real property of LESSOR.
(b) If any of LESSEE’s
personal property shall be assessed and billed with LESSOR’s
real property, LESSEE shall pay LESSOR the taxes attributable to
LESSEE within thirty (30) days after receipt of a written
statement setting forth the taxes applicable to LESSEE’s
property.
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ARTICLE IX
Indemnification;
Insurance
9.1 Indemnity . LESSEE
shall indemnify, defend and hold harmless LESSOR (solely with
respect to LESSOR’s position as the owner of the Premises and
the landlord under this Lease) from and against any and all claims
arising from LESSEE’s use of the Premises, or from the
conduct of LESSEE’s business or from any activity, work or
things done, permitted or suffered by LESSEE in or about the
Premises or elsewhere, and shall further indemnify, defend and hold
harmless LESSOR (solely with respect to LESSOR’s position as
the owner of the Premises and the landlord under this Lease) from
and against any and all claims arising from any breach or default
in the performance of any obligation on LESSEE’s part to be
performed under the terms of this Lease or arising from any
negligence of LESSEE, or any of LESSEE’s agents, contractors
or employees, and from and against all costs, attorneys’
fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon; provided,
however, LESSEE shall not indemnify, defend or hold harmless LESSOR
from and against any claim, liability, expense, lawsuit, cost, loss
or other damage, including reasonable attorneys’ fees, which
arise from or are caused by or in anyway connected to the
negligence or willful misconduct of LESSOR, its employees, agents,
contractors, guests or invitees. Subject to Section 9.2 below,
LESSOR shall indemnify, defend and hold harmless LESSEE (solely
with respect to LESSEE’s position as the tenant under this
Lease) from and against any and all claims arising from
LESSOR’s use of or entry onto the Premises, and shall further
indemnify, defend and hold harmless LESSEE (solely with respect to
LESSEE’s position as the tenant under this Lease) from and
against any and all claims arising from any breach or default in
the performance of any obligation on LESSOR’s part to be
performed under the terms of this Lease or arising from any gross
negligence or willful misconduct of LESSOR, or any of
LESSOR’s agents, contractors or employees and from and
against all costs, attorneys’ fees, expenses and liabilities
incurred in the defense of any such claim or any action or
proceeding brought thereon; provided, however, LESSOR shall not
indemnify, defend or hold harmless LESSEE from and against any
claim, liability, expense, lawsuit, cost, loss or other damage,
including reasonable attorneys’ fees, which arise from or are
caused by or in anyway connected to the negligence or willful
misconduct of LESSEE, its employees, tenants, agents, guests or
invitees.
9.2 Exemption of LESSOR
From Liability .
(a) Except to the extent
caused by the gross negligence or willful misconduct of LESSOR, its
employees, agents, guests or invitees, LESSEE hereby agrees that
LESSOR and its agents shall not be liable for injury to
LESSEE’s business or any loss of income therefrom or for
damage to the goods, wares, merchandise or other property of
LESSEE, LESSEE’s employees, invitees, customers or any other
person in or about the Premises, nor shall LESSOR be liable for
injury to the person of LESSEE, LESSEE’s employees, agents or
contractors, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction, or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning, light
fixtures or from any other cause whether said damage or injury
results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part, or from
other sources or places, and regardless of whether the cause of
such damage or injury or the means of repairing the same is
inaccessible to LESSEE. LESSOR shall not be liable for any damages
arising from any act or neglect of any other lessee, if any, of the
building in which the Premises are located.
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(b) No directors, officers,
employees or agents of LESSOR or individual, member of a joint
venture, tenancy in common, firm or partnership, general or
limited, which may be LESSOR or any successor in interest, shall be
subject to personal liability with respect to any of the covenants
or conditions of this Lease. LESSEE will not seek recourse against
the directors, officers, employees or agents of LESSOR or an
individual, member of a joint venture, tenancy in common, firm or
partnership, general or limited, which may be LESSOR or any
successor-in-interest or any of their personal assets for such
satisfaction. It is mutually agreed that this clause is and shall
be considered an integral part of this Lease.
(c) No directors, officers,
employees or agents of LESSEE or individual, member of a joint
venture, tenancy in common, firm or partnership, general or
limited, which may be LESSEE or any successor in interest, shall be
subject to personal liability with respect to any of the covenants
or conditions of this Lease. LESSOR will not seek recourse against
the directors, officers, employees or agents of LESSEE or an
individual, member of a joint venture, tenancy in common, firm or
partnership, general or limited, which may be LESSEE or any
successor-in-interest or any of their personal assets for such
satisfaction. It is mutually agreed that this clause is and shall
be considered an integral part of this Lease.
(d) Remedies and limitations
thereon set forth in this Lease shall only apply in this
Lease.
9.3 Insurance
.
(a) LESSOR shall obtain and
maintain “all risk” property and casualty insurance on
the Property, including the Premises. LESSEE shall pay the cost of
the premiums for said insurance pertaining to the Premises or, if
LESSOR consents, obtain Property & General Liability
coverage of its own on the Premises, with LESSOR as loss payee on
the Property and as additional named insured on the general
liability policy. LESSEE shall carry and maintain at all times
throughout the Term, at its expense, insurance with terms, coverage
and companies satisfactory to LESSOR:
(i) commercial
(comprehensive) liability insurance, with coverage against assumed
or contractual liability under this Lease, with respect to
liability arising out of ownership, use, occupancy or maintenance
of the Premises and all areas appurtenant thereto, to afford
protection with respect to personal injury, loss of life and
property damage, of not less than $2,000,000 per occurrence
combined single limit subject to a $2,000,000 general
aggregate;
(ii) “all risk”
property insurance, including boiler and machinery comprehensive
form, if applicable, covering damage to or loss of any of
LESSEE’s personal property, fixtures, equipment and
alterations, including electronic data processing equipment (and
coverage for the full replacement cost thereof, including business
interruption of LESSEE), together with, if the property of
LESSEE’s invitees is to be kept in the Premises,
warehouser’s legal liability or bailee customers insurance
for the full replacement cost of the property belonging to invitees
and located in the Premises; and
(iii) worker’s
compensation insurance and employer’s liability insurance in
amounts required by applicable law or statute covering all persons
employed in connection with LESSEE.
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(b) LESSEE’s
Contractor Insurance . LESSEE shall require any contractor of
LESSEE performing work on the Premises to carry and maintain, at no
expense to LESSOR:
(i) worker’s
compensation insurance in form and amounts required by law;
and
(ii) public liability
insurance insuring LESSEE and LESSOR as additional insured, against
liability which may arise on account of any alteration, addition,
improvement or construction, written on a claims occurrence basis
with minimum limits of $1,000,000/occurrence (it being understood
that this is public liability insurance and not product liability
insurance).
(c) Insurance
Companies . Insurance required to be maintained by LESSEE shall
be written by companies licensed to do business in the state in
which the Premises are located and having, at the time the initial
policies are issued, a General Policyholders Rating of at least
“A-/VII” (or such higher rating as may be required by a
lender having a lien on the Premises) as set forth in the most
current issue of “Best’s Insurance
Guide.”
(d) Policy
Requirements . Comprehensive commercial liability and
“all risk” property insurance policies evidencing such
insurance shall, with respect to comprehensive commercial liability
policies, name LESSOR and/or its designee(s) as additional insured
and, with respect to “all risk” property insurance
policies, name LESSOR and/or its designee(s) as loss payee, shall
be primary and noncontributory and shall contain a provision, by
means of endorsement or otherwise, whereby the insurer agrees that
such policy shall not be cancelled, materially changed or not
renewed without at least thirty (30) days advance written
notice to LESSOR (except in case of cancellation for non-payment of
premium, in which case ten (10) days advance written notice
shall be sufficient) at the address set forth herein, or to such
other party or address as may be designated by LESSOR or its
designee from time to time. Such commitment to provide prior notice
of cancellation, modification or non-renewal shall be without
qualifications. All liability insurance policies shall be written
on a claims occurrence basis and have a separation of insureds
endorsement.
(e) Certificates of
Insurance . Prior to the Commencement Date and thereafter on
the anniversary of the issuance of each p
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