exv10w1



 





Exhibit 10.1




SECOND AMENDMENT TO LEASE




     THIS SECOND AMENDMENT TO LEASE (hereinafter referred to as the “Amendment”) dated as of June
6, 2006 by and among Danbury Buildings, Inc., a Florida corporation acting as agent for Danbury
Buildings Co., L.P., a Delaware limited partnership having offices c/o Sunbelt Investment Holdings,
Inc., 220 Congress Park Drive, Delray Beach, FL 33445 (hereinafter referred to as “Overlandlord”),
Union Carbide Corporation, a New York corporation having offices at 400 West Sam Houston Parkway
South, Houston, TX 77042 (hereinafter referred to as the “Landlord”), and Penwest Pharmaceuticals
Co., a Washington corporation having offices at 39 Old Ridgebury Road, Danbury, CT 06810
(hereinafter referred to as the “Tenant”).



WITNESSETH




     Whereas, Overlandlord’s predecessor corporations and Landlord executed that certain Lease
Agreement dated as of December 29, 1986, as amended thereafter, for the building now known as
Corporate Center (hereinafter referred to as the “Prime Lease”); and



     Whereas, Landlord and Tenant executed that certain Lease Agreement dated as of February 3,
2003, which Lease Agreement was amended by Lease Amendment and Attornment Agreement dated as of
March 15, 2004, (said Lease Agreement as so amended is hereinafter referred to as the “Lease”) to
sublease office space at the building commonly known as Corporate Center in Danbury Connecticut;
and



     Whereas, the Lease provides Tenant with certain Renewal Options, as therein defined, to extend
the Term of the Lease and by Letter dated March 17, 2006 from Tenant to Overlandlord, the Tenant
has elected to exercise its first Renewal Option to extend the term of the Lease for one (1) year;
and



     Whereas, the parties wish to amend the Lease accordingly;



     Now, Therefore, in consideration of the mutual covenants and obligations contained herein,
Landlord and Tenant hereby amend the Lease as follows:



     1.      Incorporation and Definitions. The foregoing Recitals are hereby incorporated
into and made an integral part of this Amendment as if fully set forth herein. Capitalized terms
used in this Amendment which are not defined herein shall have the meanings ascribed to such terms
in the Lease.



     2.      Term. The Lease shall be amended to provide that the Term of the Lease
(hereinafter referred to as the “Term”) shall be extended to and including December 31, 2007 and
the termination date of the Lease (hereinafter referred to as the “Termination Date”) shall be
December 31, 2007.



 









 





     3.      Base Rent. During the period commencing on December 31, 2006 through December 31,
2007 Tenant shall pay Base Rent (hereinafter referred to as the “Base Rent”) in the amount of Five
Hundred Thirty Seven Thousand One Hundred Seventy Five Dollars and No Cents ($537,175.00), payable
in equal monthly installments in the amount of Forty Four Thousand Seven Hundred Sixty Four Dollars
and Fifty Eight Cents ($44,764.58) which Base Rent monthly installments shall be paid in advance on
the first day of January, 2007 and on the first day of each and every month thereafter during the
Term. All Rent is payable without notice, set-off or demand.



     4.      Condition of Premises. Tenant hereby acknowledges and agrees as of the date hereof
that it is in full possession of the Premises, that Tenant is satisfied with and accepts the
condition of the Premises existing as of the date hereof, that Landlord has performed all of its
obligations under the Lease and that Landlord has no obligation to improve or repair the Premises,
or to pay for or reimburse Tenant for any such improvements or repairs.



     5.      Broker. Landlord, Overlandlord and Tenant each represent and warrant that there
were no real estate brokers or agents involved in connection with the Lease, as amended hereby,
except for Cushman & Wakefield Inc. who represented the Tenant and Grubb & Ellis Company who
represented the Landlord and Overlandlord. Overlandlord agrees to pay any fee or commission owed
to Grubb & Ellis Company and to Cushman & Wakefield, Inc. in connection with the Lease as amended
hereby. Landlord and Overlandlord, on the one hand, and Tenant, on the other hand, each indemnify
and hold harmless the other against any and all claims for real estate commissions or finder’s fees
due to their respective brokers and from any other brokers incurred as a result of the acts of the
indemnifying party.



     6.      Continuing Effect. Except as expressly modified and amended by this instrument,
the terms, covenants and conditions of the Lease are hereby ratified and confirmed, and remain in
full force and effect. In the event of any conflict between the terms of the Lease and of this
Amendment, the terms of this Amendment shall control.



     7.      Estoppel. As an inducement to Landlord and Overlandlord to enter into this
Amendment the Tenant hereby warrants and represents to Landlord and Overlandlord that: (i) the
Lease as amended hereby, has not been assigned or any of the Premises sublet; (ii) the Lease as
amended hereby, is in full force and effect and has not been modified, supplemented, or amended;
(iii) to the knowledge of Tenant, Landlord is not in default under the Lease and Tenant has no
defenses, setoffs, claims or counterclaims against Landlord arising out of the Lease, as amended
hereby, or in any way relating thereto; (iv) Tenant has not paid any rentals more than one (1)
month in advance; (v) Tenant has accepted and is in full and complete occupancy and possession of
all of the Premises demised pursuant to the Lease, as amended hereby, and the improvements and
space required to be furnished according to the Lease have been satisfactorily completed in all
respects and Landlord has fulfilled all of its duties of an inducement nature required to have been
fulfilled to date; (vi) to the knowledge of Tenant, no payments, reimbursements, credits or offsets
are due from Landlord to Tenant under the Lease, as amended hereby, and no work is required to be
done by Landlord to any of the premises demised under



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said Lease. As an inducement to Tenant to enter into this Amendment the Landlord and Overlandlord
hereby warrant and represent to Tenant that: (i) the Lease as amended hereby, is in full force and
effect and has not been modified, supplemented, or amended; (ii) to the knowledge of Landlord and
Overlandlord, Tenant is not in default under the Lease.



     8.      Binding Effect. The terms, conditions and covenants of the Lease, as modified
hereby, shall be binding upon and inure to the benefit of Landlord, Tenant and their respective
successors and permitted assigns.



     9.      Headings. The paragraph headings herein contained are for convenience and shall not
be deemed to govern or control the substance hereof.



     10.    Governing Law. This Amendment shall be governed and construed under the laws of
the State of Connecticut.



     11.    Authority. Landlord, Overlandlord and Tenant represent, each for themselves and
with respect only to themselves, that; (i) they have full authority to enter into this Amendment,
are validly formed and in good standing under the laws of the state in which they were formed and
the State of Illinois; (ii) that this Amendment has been duly approved by all necessary corporate
action and that the person or persons signing on their behalf are duly authorized to execute this
Amendment with binding effect upon Landlord, Overlandlord and Tenant; (iii) this Amendment
constitutes the legal, valid and binding obligations of Landlord, Overlandlord and Tenant,
enforceable in accordance with its terms; (iv) the execution and delivery of this Amendment does
not and will not: (a) contravene any provision of the organizational documents comprising Landlord,
Overlandlord or Tenant; or (b) require consent by a third party or such consent has, as of the
date hereof, been obtained; and the consummation by Landlord, Overlandlord and Tenant of this
Amendment will not result in a breach of any of the terms of any agreement or instrument to which
Landlord, Overlandlord or Tenant are a party or by which such entities are bound.



     12.    Counterparts. This Amendment may be executed in two or more counterparts, all of
which, when taken together, shall constitute a single instrument.



     IN WITNESS WHEREOF, the parties hereto have signed and delivered this Amendment as of the date
first above written.



	 	 	 	 	 	 	 
	LANDLORD:	 	 	 	UNION CARBIDE CORPORATION, 
a New York corporation
	 
	 	 	 	 	 	 
	WITNESSES:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Charles B. Kendall
	 

	 	 	 	 	 	 
	/s/ [Illegible]

	 	 	 	Name:
	 	Charles B. Kendall
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Authorized Representative
	 

	 	 	 	 	 	 
	/s/ [Illegible]

	 	 	 	 	 	 
	 

	 	 	 	 	 	 





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	TENANT:	 	 	 	PENWEST PHARMACEUTICALS CO.,
a Washington corporation
	 
	 	 	 	 	 	 
	WITNESSES:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ Pamela A. Masella

	 	 	 	By:
	 	/s/ Frank Muscolo
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Frank Muscolo
	 

	 	 	 	 	 	 
	/s/
Kara Winters

	 	 	 	Title:
	 	Controller
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	OVERLANDLORD:	 	 	 	DANBURY BUILDINGS CO. L.P., 
a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	DANBURY BUILDINGS, INC.
	 

	 	 	 	Its:
	 	General Partner
	 
	 	 	 	 	 	 
	WITNESSES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ [Illegible]

	 	 	 	By:
	 	/s/ Richard Reeves
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Richard Reeves
	/s/ [Illegible]

	 	 	 	Title:
	 	Authorized Signatory
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Raymond Gardner
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Raymond Gardner
	 

	 	 	 	Title:
	 	Authorized Signatory
	 
	 	 	 	 	 	 
	 	 	 	 	DANBURY BUILDINGS, INC., 
a Florida corporation
	 
	 	 	 	 	 	 
	WITNESSES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	/s/ [Illegible]

	 	 	 	By:
	 	/s/ Richard Reeves
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Richard Reeves
	/s/ [Illegible]

	 	 	 	Title:
	 	Authorized Signatory
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Raymond Gardner
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Raymond Gardner
	 

	 	 	 	Title:
	 	Authorized Signatory







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THIRD AMENDMENT TO LEASE




     THIS THIRD AMENDMENT TO LEASE (hereinafter referred to as the “Amendment”) dated as of April
13, 2007 by and among Danbury Buildings Co., L.P., a Delaware limited partnership having offices
c/o Sunbelt Investment Holdings, Inc., 220 Congress Park Drive, Delray Beach, FL 33445 (hereinafter
referred to as “Landlord”), and Penwest Pharmaceuticals Co., a Washington corporation having
offices at 39 Old Ridgebury Road, Danbury, CT 06810 (hereinafter referred to as the “Tenant”).



WITNESSETH




     Whereas, Union Carbide Corporation, a New York corporation (hereinafter referred to as the
“UCC”), and Tenant executed that certain Lease Agreement dated as of February 3, 2003, (hereinafter
referred to as the “Original Lease “) which Original Lease was amended by Lease Amendment and
Attornment Agreement dated as of March 15, 2004, (hereinafter referred to as the “First
Amendment”) and by Second Amendment to Lease dated as of June 6, 2006 by and among Landlord, Tenant
and UCC (hereinafter referred to as the “Second Amendment”, the Original Lease as amended by the
First Amendment and the Second Amendment are hereinafter collectively referred to as the “Lease”)
with respect to certain office space at the building commonly known as Corporate Center in Danbury
Connecticut; and



     Whereas, Landlord has succeeded to the interest of Dow under the Lease; and



     Whereas, the parties wish to further amend the Lease as herein set forth



     Now, Therefore, in consideration of the mutual covenants and obligations contained herein,
Landlord and Tenant hereby amend the Lease as follows:



     1. Incorporation and Definitions. The foregoing Recitals are hereby incorporated
into and made an integral part of this Amendment as if fully set forth herein. Capitalized terms
used in this Amendment which are not defined herein shall have the meanings ascribed to such terms
in the Lease.



     2. Term. The Lease shall be amended to provide that the Term of the Lease shall be
extended for a two (2) year period commencing on January 1, 2008 and ending on December 31, 2009
(said period is hereinafter referred to as the “Extended Term”) and the termination date of the
Lease (hereinafter referred to as the “Termination Date “) shall be December 31, 2009.



     3. Base Rent. During the Extended Term pay Base Rent (hereinafter referred to as the
“Base Rent”) in the amount of One Million One Hundred Seventeen Thousand Three Hundred Twenty Four
Dollars and No Cents ($1,117,324.00), payable in equal monthly installments in the amount of Forty
Six Thousand Five Hundred Fifty Five Dollars and Seventeen Cents ($46,555.17) which Base Rent
monthly installments shall be paid in advance on the first day of January, 2008 and on the first
day of each and every month thereafter during the Extended Term. All Rent is payable without
notice, set-off or demand.



     4. Electricity Rent. In addition to all other sums required to be paid under
the Lease, Tenant shall pay Landlord Electricity Charges with in the monthly amount of Two Thousand
Six Hundred Eighty Five Dollars and Eighty Eight Cents ($2,685.88) payable on the first day of each
and every month during the term hereof. Such Electricity Charges shall be increased from time to
time upon notice from Landlord to Tenant by an amount equal to the percentage increase in the cost
per kilowatt hour charged Landlord by the utility



 









 







company providing electricity to the Building over the cost per kilowatt hour charged Landlord
during the month of April, 2007.



     5. Renewal. Landlord hereby grants to Tenant the conditional right, exercisable at
Tenant’s option, (hereinafter referred to as the “Renewal Option”) to renew the term of this Lease
for two (2) terms of six (6) months each (each such term is hereinafter referred to as the
“Renewal Term”). If exercised, and if the conditions applicable thereto have been satisfied, each
Renewal Term shall commence immediately following the end of the Term, as so extended. The rights
of renewal herein granted shall be applicable only to the entire Premises then leased by Tenant and
shall be subject to all of the terms and conditions contained in this Lease, except this Paragraph
5 and except that the Base Rent for each six (6) month Renewal Term shall be Two Hundred Eighty
Four Thousand Seven Hundred Two Dollars and Seventy Five Cents ($284,702.75) payable in equal
monthly installments in the amount of Forty Seven Thousand Four Hundred Fifty Dollars and Five
Cents ($47,450.05) on the first day of each Renewal Term and on the first day of each and every
month thereafter in each applicable Renewal Term. The rights of renewal herein granted are in lieu
of any rights of renewal, extension and expansion contained in the Lease, and except as set forth
in this Paragraph 5, Tenant agrees that it shall have no other rights to extend the Term or lease
additional premises. The rights of renewal herein granted to Tenant shall be subject to, and shall
be exercised in accordance with, the following terms and conditions:




	 	A.	 	Tenant shall exercise its right of renewal with respect to the Renewal Term by
giving Landlord written notice (hereinafter referred to as the
“Renewal Notice ”)
thereof not later than three (3) months prior to the expiration of the then-current
Term of this Lease.
	 
	 	B.	 	The Renewal Option herein granted shall automatically terminate upon the
earliest to occur of: (i) the expiration or termination of this Lease; (ii) the
termination of Tenant’s right to possession of the premises; (iii) the assignment of
this Lease or subletting by Tenant of any portion of the Premises; or (iv) the failure
of Tenant to timely or properly exercise the Renewal Option.
	 
	 	C.	 	If an Event of Default exists under this Lease on the date Tenant sends a
renewal notice or any time thereafter until the applicable Renewal Term is to commence,
then, at Landlord’s election, the Renewal Term shall not commence and the term of this
Lease shall expire at the expiration of the then-current term of this Lease.
	 
	 	D.	 	Tenant agrees to accept the premises to be covered by this Lease during the
Renewal Term in an “as is” physical condition and Tenant shall not be entitled to
receive any allowance, credit, concession or payment from Landlord for the improvement
thereof.





     6. Broker. Landlord and Tenant each represent and warrant that there were no real
estate brokers or agents involved in connection with the Lease, as amended hereby, except for
Cushman & Wakefield Inc. who represented the Tenant and Grubb & Ellis Company who represented the
Landlord. Landlord agrees to pay any fee or commission owed to Grubb & Ellis Company and to
Cushman & Wakefield, Inc. in connection with this Amendment. Landlord and Tenant, indemnify and
hold harmless the other against any and all claims for real estate commissions or finder’s fees due
to their respective brokers and from any other brokers incurred as a result of the acts of the
indemnifying party.



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     7. Continuing Effect. Except as expressly modified and amended by this instrument,
the terms, covenants and conditions of the Lease are hereby ratified and confirmed, and remain in
full force and effect. In the event of any conflict between the terms of the Lease and of this
Amendment, the terms of this Amendment shall control.



     8. Estoppel. Tenant hereby warrants and represents to Landlord that: (i) the Lease as
amended hereby, has not been assigned or any of the Premises sublet; (ii) the Lease as amended
hereby, is in full force and effect and has not been modified, supplemented, or amended; (iii) to
the knowledge of Tenant, Landlord is not in default under the Lease and Tenant has no defenses,
setoffs, claims or counterclaims against Landlord arising out of the Lease, as amended hereby, or
in any way relating thereto; (iv) Tenant has not paid any rentals more than one (1) month in
advance; (v) Tenant has accepted and is in full and complete occupancy and possession of all of the
Premises demised pursuant to the Lease, as amended hereby, and the improvements and space required
to be furnished according to the Lease have been satisfactorily completed in all respects and
Landlord has fulfilled all of its duties of an inducement nature required to have been fulfilled to
date; (vi) to the knowledge of Tenant, no payments, reimbursements, credits or offsets are due from
Landlord to Tenant under the Lease, as amended hereby, and no work is required to be done by
Landlord to any of the premises demised under said Lease. As an inducement to Tenant to enter into
this Amendment the Landlord hereby warrant and represent to Tenant that: (i) the Lease as amended
hereby, is in full force and effect and has not been modified, supplemented, or amended; (ii) to
the knowledge of Landlord Tenant is not in default under the Lease.



     9. Binding Effect. The terms, conditions and covenants of the Lease, as modified
hereby, shall be binding upon and inure to the benefit of Landlord, Tenant and their respective
successors and permitted assigns.



     10. Headings. The paragraph headings herein contained are for convenience and shall
not be deemed to govern or control the substance hereof.



     11. Governing Law. This Amendment shall be governed and construed under the laws of
the State of Connecticut.



     12. Authority. Landlord and Tenant represent, each for themselves and with respect
only to themselves, that; (i) they have full authority to enter into this Amendment, are validly
formed and in good standing under the laws of the state in which they were formed and the State of
Connecticut; (ii) that this Amendment has been duly approved by all necessary corporate action and
that the person or persons signing on their behalf are duly authorized to execute this Amendment
with binding effect upon Landlord and Tenant; (iii) this Amendment constitutes the legal, valid
and binding obligations of Landlord and Tenant, enforceable in accordance with its terms; (iv) the
execution and delivery of this Amendment does not and will not: (a) contravene any provision of the
organizational documents comprising Landlord or or Tenant; or (b) require consent by a third party
or such consent has, as of the date hereof, been obtained; and the consummation by Landlord and
Tenant of this Amendment will not result in a breach of any of the terms of any agreement or
instrument to which Landlord or Tenant are a party or by which such entities are bound.



     13. Counterparts. This Amendment may be executed in two or more counterparts, all of
which, when taken together, shall constitute a single instrument.



     IN WITNESS WHEREOF, the parties hereto have signed and delivered this Amendment as of the date
first above written.



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	TENANT:	 	PENWEST PHARMACEUTICALS CO., a Washington corporation
	 
	 	 	 	 
	WITNESSES:
	 	 	 	 
	/s/ Richard Meyer

	 	By:
	 	/s/ Jennifer L. Good
	 

	 	 	 	 
	 

	 	Name:
	 	Jennifer L. Good
	 

	 	 	 	 
	/s/ Pamela A. Masella

	 	Title:
	 	President & CEO
	 

	 	 	 	 





	 	 	 
	LANDLORD:

	 	DANBURY BUILDINGS CO. L.P., a Delaware limited partnership
	 
	 	 
	 

	 	By: DANBURY BUILDINGS, INC.
	 

	 	Its: General Partner






	 	 	 	 	 
	WITNESSES
	 	 	 	 
	 
	 	 	 	 
	/s/ [Illegible]

	 	By:
	 	/s/ Richard Reeves
	 

	 	 	 	 
	 

	 	 	 	Name: Richard Reeves
	/s/ [Illegible]

	 	Title:
	 	Authorized Signatory
	 


	 	 	 	 
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William J. Ghory
	 

	 	 	 	 
	 

	 	Name:
	 	William J. Ghory
	 

	 	Title:
	 	Authorized Signatory







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