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Exhibit 10.22
LEASE AGREEMENT
DATE OF LEASE EXECUTION: MAY 10, 1996.
1. DEFINITIONS.
1.1 DEFINITIONS OF BASIC LEASE TERMS. WHEN USED
HEREIN, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
LANDLORD: PRESBYTERIAN HEALTH FOUNDATION
LANDLORD'S ADDRESS: 000 XXXXXXX X. XXXXX XXXXXXXXX
XXXXXXXX XXXX, XX 00000
TENANT: ZYMETX, INC.
TENANT'S ADDRESS:
BUILDING: 000 X. XXXXXXXX XXXXXXX, XXXXXXXX XXXX, XX 00000.
APPROXIMATE RENTABLE AREA OF
THE LEASED PREMISES: 10,000. HOWEVER, TENANT WILL PAY RENT BASED ON THE ACTUAL
RENTABLE AREA OCCUPIED. FINAL SQUARE FOOTAGE TO BE MODIFIED
BASED ON A FINAL SPACE PLAN OF THE PREMISES.
ANNUAL RENT: YEARS 1&2 - $0.00; YEARS 3-10 -
$150,000.00
MONTHLY RENT: MONTHS 1-24 - $0.00; MONTHS 25- 120 - $12,500.00
RATE PER RENTABLE
SQUARE FOOT ANNUALLY: YEARS 1&2 - $0.00; YEARS 3-10 -$15.00
PRELIMINARY PLAN
DELIVERY DATE: N/A
SCHEDULED
COMMENCEMENT DATE: DECEMBER 1, 1996
TERM: 120 MONTHS
SECURITY DEPOSIT: $12,500.00
CONTINGENCY SPACE: APPROXIMATELY 1,500 RENTABLE SQUARE FEET OF THE LEASED
PREMISES MAY BE LEASED BY UROCOR AT ANY TIME BY UROCOR GIVING
LANDLORD A MINIMUM OF 90 DAYS WRITTEN NOTICE.
PERMITTED USE: MEDICAL RESEARCH LABORATORY AND RELATED FACILITIES
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1.2 Other Definitions. When used herein the
following terms shall have the following meanings:
(a) Building Regulations - The
reasonable rules and regulations adopted and published from time to time by
Landlord to promote the convenience, peace, safety and welfare of tenants of
the Building and to govern the use of the Building and related facilities and
the distribution of services. The initial Building Regulations are set forth
on Exhibit C.
(b) Commencement Date - The date on
which the term of this Lease commences. The parties anticipate that the
Commencement Date will be near the Scheduled Term Commencement Date, but the
actual Commencement Date will be determined pursuant to paragraph 3.
(c) Common Areas - Hallways, elevators,
walkways, plazas, driveways, public parking areas located on the Real Estate,
lobbies, and other parts of the Building designated by Landlord from time to
time as intended for use by the public and other tenants of the Building.
(d) Encumbrance - Any mortgages, deeds
of trust, security agreements, collateral assignments, and other encumbrances
which may now or hereafter affect Landlord's interest in this Lease, the
Building, the Real Estate, or any portion thereof, or any other property
associated therewith.
(e) Lease - This Lease Agreement as it
may from time to time be amended or supplemented by written agreement.
(f) Lease Term - The term of this Lease
Agreement, as set forth in paragraph 3.
(g) Leased Premises - Certain space in
the Building, as more particularly described on Exhibit B and the Leasehold
Improvements located therein.
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(h) Leasehold Improvements - All
improvements to be installed or constructed in or on the Leased Premises in
addition to the Building shell, and all subsequent alterations or additions
thereto, excluding moveable personal property and furniture placed in or on the
Leased Premises by Tenant.
(i) Monthly Rent - For any calendar
month shall include, in addition to the Monthly Rent specified herein, the
product of (i) Operating Costs for such month determined on an accrual basis in
accordance with generally accepted accounting principles consistently applied,
and (ii) Tenant's Share.
(j) Operating Costs - The actual
expenses incurred by Landlord of every kind and nature with respect to
operation, maintenance, and management of the Building (including Common Areas)
and all other improvements located on the Real Estate in excess of $4.50 per
rentable square foot. Operating costs include, without limitation: (i) wages,
salaries (and taxes imposed upon employers with respect to such wages and
salaries), worker's compensation insurance premiums, and fringe benefits paid
to persons employed by Landlord for rendering service in the normal operation,
maintenance and repair of such improvements; (ii) contract costs of independent
contractors hired for the operation, maintenance, management and repair of such
improvements (which contractors may include affiliates of Landlord provided
fees payable under such contracts did not exceed the prevailing fees for
similar services); (iii) costs of electricity, steam, water, sewer, and other
utilities chargeable to operation and maintenance of such improvements; (iv)
cost of insurance for such improvements; including but not limited to fire and
extended coverage, elevator, boiler, sprinkler leakage, water damage, public
liability and property damage, plate glass, and rent protection, but excluding
any charge for increased premiums due to acts or omissions of the other
occupants giving rise to extra risks for which Landlord is reimbursed by such
other occupants; (v) fuel; (vi) supplies; (vii) the cost, amortized over a
reasonable period, and associated financing costs, of any capital improvement
made after the completion of the Building if such improvement directly results
in a cost saving in operations; (viii) real and personal property ad valorem
taxes and special assessments imposed by any federal, state or local
governmental authority on the Real Estate or on the Building or any of the
other improvements now or hereafter located on the Real Estate, or on the
ownership, operation, or maintenance of all or any part thereof, together with
expenses of any proceedings for abatement of any such taxes or assessments on a
fully assessed
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basis; provided, any such ad valorem taxes or special assessments imposed or
assessed upon the Leased Premises shall be allocated to Tenant if they are a
direct result of Tenant's occupancy of the Leased Premises; (ix) all other
reasonable and necessary expenses incurred in connection with the cleaning,
operating, managing, maintaining, and repairing of such improvements; and (x)
Costs of replacement of landscaping on the Real Estate. Operating Costs shall
not include: (i) The cost of redecorating or special cleaning or other
services, the cost of which is paid by an individual tenant or tenants, (ii)
wages, salaries or fees paid to executive and accounting personnel of Landlord
or Landlord's managing agent; (iii) except as herein provided, the cost of any
repair or replacement item which, by standard accounting practice, should be
capitalized; (iv) depreciation; (v) leasing commissions; or (vi) costs of
services not provided to all tenants of the Building.
(k) Real Estate - The tract of real
property, together with all improvements thereon and appurtenances thereto
belonging, on which the Building is to be located, more particularly described
on Exhibit A.
(l) Rent - All sums to be paid by Tenant
to Landlord pursuant to paragraph 4 of this Lease, and all other amounts as are
required to be paid pursuant to the terms hereof.
(m) Rentable Area - The Rentable Area of
the Building shall be the sum of the Rentable Areas of all offices, research
laboratories, and laboratory support spaces, in the Building shall be the sum
of the Rentable Areas of all in the Building. The Rentable Area of offices
shall include area occupied by the tenant which shall be computed by measuring
to the center line of corridors or permanent partitions, to the center of
partitions that separate such office from adjoining space, and to the center
line of the permanent outer Building walls or to the center line of exterior
glass walls (with no deduction for columns or projections necessary to the
Building, and including corridors, elevator lobbies, restrooms, and janitorial
closets, to the extent included in the space occupied by the tenant, but
excluding stairs and elevator shafts).
(n) Substantial Completion - The date,
as certified by Landlord's architect, upon which construction of the Building
and the Leasehold Improvements is complete to the extent that the same can be
occupied for normal usage as a medical office.
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(o) Tenant Improvements - Those
Leasehold Improvements to be installed pursuant to the Working Drawings and
Specifications. The Tenant Improvements will be installed at the sole cost of
Tenant.
(p) Tenant's Share - A fraction, having
as its numerator the Rentable Area of the Leased Premises and as its
denominator the Rentable Area of the Building.
(q) Working Drawings and Specifications
- The plans, specifications and drawings for construction of the Leasehold
Improvements, to be prepared in accordance with Exhibit D.
(r) Year - With reference to the Term or
any year of this Lease, refers to a twelve-month period commencing on the
Commencement Date and ending on each annual anniversary of the Commencement
Date.
2. Lease. Landlord hereby leases and rents to Tenant,
and Tenant hereby leases and rents from Landlord, the Leased Premises.
3. Term.
3..1 Length of Term. The term of this Lease shall
begin on the earlier of (a) the date on which Tenant occupies all or any part
of the Leased Premises; (b) the date of Substantial Completion; provided, if
Tenant fails to perform any of its obligations as set forth in Exhibit D or the
construction contract described therein, then the term shall begin earlier than
the date determined in accordance with the preceding provision by the number of
days of delay caused by such failure of the Tenant. Unless earlier terminated
in accordance with the terms hereof or under law, the term of this Lease shall
end on March 31, 2006, on which date the tenancy created hereunder shall
terminate without notice.
3..2 Preparation for Occupancy. Landlord agrees
to use its best efforts to have the Leased Premises ready for occupancy on or
before the Scheduled Term Commencement Date, which shall, however, be extended
for a period equal to the period of any delays due to unusual weather
conditions, governmental regulations, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or other causes
reasonably beyond Landlord's control. In the event the construction should not
reach
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Substantial Completion on or before the Scheduled Term Commencement Date,
Landlord shall not be liable or responsible for any claims, damages or
liabilities by reason thereof, and this Lease will continue in full force and
effect. If Landlord is unable to deliver possession of the Leased Premises to
Tenant on or before 180 days following the Scheduled Term Commencement Date,
then, Landlord may, by written notice to Tenant, terminate this Lease in which
event, upon return of any deposit made hereunder, neither party shall have any
liability to the other. If Landlord is unable to deliver possession of the
Leased Premises to Tenant on or before 180 days following the Scheduled Term
Commencement Date, then Tenant may, by written notice to Landlord, terminate
this Lease in which event, upon return of any deposit made hereunder, neither
party shall have any liability to the other.
4. Rent.
4.1 Rent. Tenant agrees and promises to pay the
Annual Rent in monthly installments of Monthly Rent for the use of the Leased
Premises each month during the Term. Tenant shall pay the Monthly Rent on or
before the first day of each month, without deduction or setoff.
4.2 Fractional Periods. If the Lease Term shall
begin on a date other than the first day of a calendar month, the Rent due
under this paragraph for such calendar month shall be prorated to the last day
of such month and such Rent shall be due and payable on the first day of the
Lease Term. If the Lease Term ends on a date other than the last day of a
calendar month, the Rent due under this paragraph for such calendar month shall
be prorated through the last day of the Lease Term.
4.3 Delinquent Rent. If Rent or any other amount
due from Tenant to Landlord shall not be paid within ten days from the date on
which it is due, Tenant shall pay, in addition to such amount, interest on such
amount at the rate of 1- 1/2% per month from the date on which it was due until
paid. The amounts payable hereunder shall be in addition to, and not in
limitation of, other remedies available hereunder or under law.
5. Construction of Leasehold Improvements. All
Leasehold Improvements will be constructed in accordance with the procedures,
terms, and provisions of Exhibit D. All Leasehold Improvements shall remain
the property of Landlord.
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6. Use of Leased Premises. The Tenant will not use or
permit any portion of the Leased Premises to be used for any purpose other than
the Permitted Use and any purpose or use incidental thereto, nor shall the
Leased Premises be used for any purpose which is unlawful, disreputable,
adversely affects the Landlord's leasing of the Building, or increases the risk
of casualty or the rate of fire or casualty insurance covering the Building or
its contents, or any portion thereof. The Tenant will conduct the Tenant's
business and will control the Tenant's agents, employees and invitees in such a
manner as not to create any nuisance or interfere with, annoy or disturb other
tenants of the Building. The Tenant will comply with all requirements of all
governmental authorities having jurisdiction over the Leased Premises,
including requirements under the Americans With Disabilities Act, and cause the
Tenant's agents, employees and invitees to comply fully with the Building
Regulations. Without limitation of the foregoing, Tenant agrees that it will
not overload, damage, or deface the Leased Premises or the Building or do any
act which might make void or voidable any insurance on the Leased Premises, the
Building, or the Real Estate or which may result in an increase or extra
premium payable for insurance. Without prejudice to any other right or remedy
which may be available to Landlord hereunder or under law, Landlord shall have
the right to collect from Tenant upon demand any increase in any insurance
premium resulting from any use of the Leased Premises by Tenant.
7. Hours of Operation and Landlord's Services. So long
as Tenant is not in default hereunder and subject to the limitations prescribed
by the Building Regulations, Landlord agrees that it will operate the Building
and provide services as follows:
7.1 Building Hours. Landlord will keep the
Building open from 7:00 a.m. to 6:00 p.m. Monday through Friday (holidays
excepted), and 7:00 a.m. to 1:00 p.m. Saturdays. Tenant and its employees and
agents shall have access to the Leased Premises during all other hours, subject
to compliance with such security measures as shall from time to time be in
effect for the Building.
7.2 Heating and Air Conditioning. Landlord will
furnish heat and air conditioning necessary, in Landlord's reasonable judgment,
for comfortable occupancy of the Leased Premises, during regular building
hours. Landlord will also furnish, but Tenant will be charged for, heat and
air conditioning during
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Tenant's use of the Leased Premises outside of regular building hours of the
Building.
7.3 Elevators. Landlord will provide passenger
elevator service to the Leased Premises during regular building hours with one
elevator subject to call at all other times.
7.4 Janitorial Services. Landlord will provide
normal janitorial service to the Leased Premises. Any and all additional or
specialized janitorial service desired by Tenant shall be contracted for by
Tenant directly, at Landlord's option, with Landlord's janitorial agent, and
the cost and payment thereof shall be and remain the sole responsibility of
Tenant.
7.5 Structural Repairs. Landlord will perform
all necessary maintenance to the Building, including the mechanical, electrical
and plumbing systems in the Leased Premises, excluding maintenance of Leasehold
Improvements. In the event that any repair or replacement is required by
reason of the negligence or abuse of Tenant or its agents, employees or
invitees, or of any other person using the Leased Premises with Tenant's
consent, express or implied, Landlord may make such repair and following notice
thereof to Tenant add the cost thereof to the first installment of Monthly Rent
thereafter becoming due unless Landlord shall have actually recovered such cost
through insurance proceeds.
7.6 Water. Landlord will provide water for
drinking, lavatory and toilet, research laboratory, and research laboratory
support purposes drawn through fixtures installed by Landlord.
7.7 Electricity. Landlord will furnish the
Leased Premises with electric current for lighting, normal research facility
use, heating and air conditioning, and replace building standard light bulbs
and tubes in building standard fixtures when required. Tenant's use of
electric energy in the Premises shall not at any time exceed the capacity of
any of the electrical conductors and equipment in or otherwise serving the
Premises. Landlord shall also furnish emergency backup electrical power in
order to allow for continuous use of the Premises in the event of failure of
regular power supply.
7.8 Repair. The Landlord will use reasonable
diligence to repair any malfunction of the Building or any of the services to
be provided, but neither the failure to any extent to
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furnish, or any stoppage or interruption of, the foregoing services resulting
from any cause whatsoever, nor any "surges" or similar irregularities in the
electrical current will render the Landlord liable in any respect for damages
to the Tenant or any other person or be construed as an eviction of the Tenant.
If the services to be provided under paragraphs 7.2, 7.6 or 7.7 are interrupted
through no fault of Tenant or Tenant's agents or employees for a period of at
least seven (7) business days, Tenant shall be entitled to an abatement of Rent
until such service resumes.
7.9 Additional Services. In the event the Tenant
desires services in excess of those required for normal office and research
laboratory usage or in excess of or at times other than the services regularly
provided by the Landlord to other tenants of the Building, Tenant shall request
such services in advance and, although Landlord shall have no obligation to
provide such services (other than those identified in paragraphs 7.2, 7.6 and
7.7), if it agrees to do so, the Tenant agrees to pay to the Landlord such
charges as the Landlord might from time to time prescribe for such additional
services, which charges shall be a reflection of the actual costs thereof to
Landlord.
8. Quiet Enjoyment. The Landlord agrees that if the
Tenant pays the Rent and performs all other obligations of the Tenant
hereunder, the Tenant will peacefully hold the Leased Premises, free of
interference from any person, firm, or corporation claiming by, through, or
under Landlord, subject to any underlying leases, mortgages, deeds of trust and
other encumbrances now or hereafter affecting the Leased Premises and any
applicable zoning ordinances, laws, and regulations affecting the use thereof.
9. Insurance.
9.1 Hazard Insurance. Tenant will maintain, at
Tenant's expense, throughout the Lease Term, a policy or policies of insurance
insuring Tenant and Landlord against all risks of direct physical loss, subject
to standard exclusions acceptable to Landlord, covering all Leasehold
Improvements and all contents of, improvements and betterments to the Leased
Premises, to the extent of not less than 90% of the full insurable value of
such property. Such policy shall name Tenant and Landlord as insureds, as
their interests may appear, with Landlord named as loss payee, and shall be
maintained with an insurance company or companies authorized to do business in
the State of Oklahoma and otherwise satisfactory to Landlord.
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9.2 Liability Insurance. The Tenant will
maintain, at Tenant's expense, throughout the Lease Term, a policy or policies
of insurance insuring the Tenant and the Landlord against all liability for
injury to or death of any person occasioned by or arising out of or in
connection with the occupancy of the Leased Premises, such policy or policies
to have not less than $1,000,000 combined single limit coverage. Such
insurance shall name Tenant as the insured and Landlord as an additional
insured and shall be maintained with an insurance company or companies
authorized to do business in the state of Oklahoma and otherwise satisfactory
to Landlord.
9.3 Policies. The Tenant will furnish evidence
satisfactory to the Landlord of the maintenance of all insurance required by
this paragraph, including certificates of such insurance and evidence of the
payment of premiums therefor, and will obtain a written obligation on the part
of each insurance company to notify the Landlord at least thirty (30) days
prior to cancellation or material change of any such insurance.
9.4 Subrogation. The Tenant hereby waives any
cause of action which the Tenant or anyone claiming by through, or under it, by
subrogation or otherwise, might now or hereafter have against the Landlord on
account of any loss or damage which is insured against under any insurance
policy which names the Tenant as a party insured. Tenant agrees to provide
Landlord a waiver of subrogation endorsement, satisfactory to Landlord, to all
policies of insurance maintained pursuant to this Lease.
10. Alterations and Repairs. The Tenant will make no
material alterations or additions to the Leased Premises without the prior
written consent of the Landlord, which consent shall not be unreasonably
withheld or delayed. Any additions to the Leased Premises made with Landlord's
consent shall become Landlord's property upon installation, unless at the time
of such installation Landlord notifies Tenant that such additions shall remain
the property of Tenant, with respect to which Tenant shall, upon the
termination of this Lease, remove such property and repair any damage to the
Leased Premises caused by such removal.
11. Maintenance. The Tenant will, at the Tenant's
expense, maintain the Leased Premises and all Leasehold Improvements in sound
condition and good repair. Tenant will repair or replace, with material of the
same quality as that to be repaired or replaced, any damage done to the
Building or the Leased Premises by
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the Tenant or the Tenant's agents, employees or invitees. The Tenant will not
commit or allow any waste or damage to be committed on any portion of the
Leased Premises.
12. Tenant's Personal Property. Tenant shall be solely
responsible for all personal property, furniture, or fixtures placed in or on
the Leased Premises by Tenant. Tenant shall not install or operate in the
Leased Premises any equipment (other than equipment normally used in modern
offices or as may be required in connection with the Permitted Use of the
Leased Premises), without the prior written consent of the Landlord. Tenant
shall be liable for all taxes levied or assessed against personal property,
furniture, or fixtures placed or installed by Tenant in the Leased Premises.
If any such taxes are levied or assessed against Landlord or Landlord's
Property, and, if Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property, furniture,
or fixtures placed by Tenant in the Leased Premises, and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord, upon demand,
that portion of such taxes attributable to such property of Tenant.
13. Costs of Alterations, Equipment. Any alterations or
equipment permitted by Landlord under the preceding paragraphs hereof shall be
made or installed by persons approved in advance by Landlord. Such work,
including all costs of modifications to the Building or the Building's heating,
ventilating, air conditioning, electrical, plumbing, or other mechanical
systems necessary, as determined by Landlord, to accommodate such alterations
or equipment without interference with the normal operation of the Building,
shall be performed at the sole cost of Tenant.
14. Additional Taxes. If, during the term of this Lease,
or any renewal or extension thereof, any taxes are imposed upon the privilege
of renting or occupying the Leased Premises, or upon the amount of rent
collected therefor, Tenant will pay each month, as additional Rent, a sum equal
to such tax or charge that is imposed for such month, but nothing herein shall
require Tenant to pay any income, estate, excess profits, excise, or franchise
tax imposed upon Landlord.
15. Delivery upon Termination. On the termination of
this Lease, the Tenant will remove all moveable personal property and furniture
of Tenant and those claiming under it and deliver the Leased Premises and the
Leasehold Improvements (except those Leasehold Improvements to be removed by
Tenant in accordance with this
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Lease) to the Landlord in the condition which existed at the beginning of the
Lease Term, ordinary wear and tear excepted. Tenant shall repair any damage to
the Leased Premises caused by the removal of such property.
16. Signs. Tenant will not place signs on the Leased
Premises, the Building or the Real Estate. Landlord will place Tenant's name
on the entrance doors to the Leased Premises or the accompanying sidelights,
with lettering specified by Landlord. Identification of Tenant and Tenant's
location will also be provided in a directory located in the Building lobby,
the size and design of which shall be determined by Landlord, at Landlord's
expense.
17. Assignment and Subletting. The Tenant will not
assign or encumber this Lease, or any interest herein, or sublet the Leased
Premises, in whole or in part or suffer any other person to occupy the Leased
Premises, or any portion thereof, without the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, and any such
assignment, encumbrance, subletting or occupancy without such consent will be
void. Any sale, encumbrance, or other transfer of a majority of the issued and
outstanding stock of Tenant (if Tenant is a corporation) or a majority of the
interest in the Tenant (if Tenant is a partnership or limited liability
company) shall constitute an assignment of this Lease within the meaning of the
foregoing sentence. If the Tenant desires to assign this Lease, or sublet the
Leased Premises or any part thereof, the Tenant will give the Landlord written
notice of such desire, specifying the name of the proposed assignee or
sublessee and all of the terms of the proposed assignment or sublease, at least
thirty (30) days in the case of an assignment, and at least ten (10) days in
the case of a sublease, prior to the date such assignment or sublease is
proposed to be effective. Notwithstanding any consent granted by the Landlord,
the Tenant, each Guarantor, and each assignee of Tenant will at all times
remain fully liable for the payment of Rent and for the performance of the
Tenant's obligations hereunder, unless Landlord expressly and in writing agrees
otherwise. No consent granted by the Landlord will constitute a waiver of the
provisions of this Lease except as to the specific instance covered thereby.
18. Tenant's Acceptance of Leased Premises. By taking
possession of the Leased Premises, the Tenant will be deemed to have accepted
the Leased Premises as suitable for the purposes for
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which they are leased, except as specified in a punchlist prepared by Landlord
and Tenant upon Tenant's occupancy.
19. Indemnification. Tenant agrees to indemnify, defend
and hold harmless Landlord, Landlord's building manager, and their respective
directors, trustees, officers, employees and agents, from any and all suits,
actions, damages, liability, claims and expenses arising from the occupancy or
use of the Leased Premises, the Building, the Real Estate and other
improvements on the Real Estate by Tenant, its agents, employees and invitees
unless the same is the result of the willful and gross negligence of Landlord,
its building manager or their respective directors, trustees, officers,
employees and agents, and Landlord and its building manager and their
respective directors, trustees, officers, employees and agents shall not be
liable to Tenant for any such damage or loss, whether or not the result of
their willful and gross negligence, to the extent Tenant is compensated
therefor by insurance. If the Landlord is made a party to any action commenced
by or against the Tenant with respect to a claim against which Landlord is
indemnified hereunder, the Tenant agrees to protect and hold the Landlord
harmless therefrom and to pay all loss, expenses and the reasonable attorney's
fees of the Landlord incurred in connection therewith.
20. Condemnation. If all of the Leased Premises or the
Building, or such portion thereof as to unreasonably interfere with Tenant's
use of the Leased Premises, is taken or condemned for any public use or purpose
by right of eminent domain, or is transferred by agreement in lieu of or under
threat of condemnation, this Lease will terminate as of the date Tenant is
required to yield possession thereof. If only a portion of the Leased Premises
or the Building is so taken or condemned, so as to not unreasonably interfere
with Tenant's use of the Leased Premises, then, at Landlord's option, to be
exercised by written notice to Tenant no later than thirty (30) days prior to
the date possession thereof will be delivered to such condemning authority or
transferee, this Lease will terminate as of the date possession is so delivered
or will continue unaffected. If the Landlord elects that this Lease shall
continue unaffected, there shall be no reduction or abatement of Rent or other
obligations of Tenant hereunder except the Tenant's Share shall be revised to
reflect the resulting changes in the Rentable Area of the Building and the
Leased Premises. The Landlord will receive the entire award from any such
taking (or the entire compensation paid on account of any transfer by
agreement) and the Tenant will have no claim thereto; provided, the Tenant may
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at its option seek relocation expenses from the condemning authority.
21. Casualty. If the Leased Premises are damaged by fire
or other casualty and such damage cannot be repaired within one hundred eighty
(180) days from the date of occurrence (as estimated by either party in good
faith as soon as reasonably practicable after the occurrence of such damage),
then either party may terminate this Lease by giving written notice thereof to
the other party within thirty (30) days after the occurrence of such damage,
will terminate as of the date such notice is given. On any such termination
the Tenant will pay Rent and all other obligations of the Tenant apportioned to
the date on which such damage occurs and will immediately surrender the Leased
Premises to the Landlord. If the damage can be repaired within one hundred
eighty (180) days, or if the damage cannot be repaired within one hundred
eighty (180) days but neither party exercises the option to terminate this
Lease, the Landlord shall proceed to repair, restore and rebuild the Leased
Premises and the Building to their former condition and complete such work with
reasonable promptness, and this Lease will continue in effect; but the Rent
shall xxxxx from the date of the fire or other casualty until the repairs,
restoration and rebuilding are completed. To the greatest extent possible, the
costs of such repairs, restoration and rebuilding shall be satisfied from
insurance proceeds received under all insurance policies insuring against the
losses and damages incurred and naming either the Landlord, the Tenant or both
of them as parties insured. To the extent, however, that the costs of such
repairs, restoration and rebuilding are not satisfied through insurance
proceeds, such costs will be borne by the parties hereto as follows: (a) the
costs of repairing, restoring or replacing the Tenant's personal property
located in the Leased Premises shall be borne solely by the Tenant; and (b) all
other costs incurred in repairing, restoring and replacing the Leased Premises
and the Building shall be borne solely by the Landlord.
22. Notice of Accidents and Defects. Tenant shall give
to Landlord immediate notice of any accident occurring in the Leased Premises
and of any defects in the Leased Premises, including, without limitation, fire,
accident involving a person, and accident to or defects in the water pipes,
electric wires, elevator and heating and cooling apparatus.
23. Entry. The Landlord and the Landlord's agents,
employees and contractors will have the right to enter the Leased
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Premises at all reasonable hours (or, in any emergency, at any hour), to
inspect, clean, repair or alter the Leased Premises as the Landlord may deem
necessary, so long as Tenant's Permitted Use is unaffected, and the Tenant will
not be entitled to any abatement or reduction of Rent by reason thereof.
Without limitation of the foregoing, Tenant agrees that during the 12 month
period prior to the expiration of the Lease Term, Landlord may exhibit the
Leased Premises to prospective tenants.
24. Holding Over. Unless Landlord expressly agrees
otherwise in writing, Tenant shall pay Landlord 200% of the amount of Rent then
applicable prorated on per diem basis for each day Tenant shall retain
possession of the Premises or any part thereof after expiration or earlier
termination of this Lease, together with all damages sustained by Landlord on
account thereof. The foregoing provisions shall not serve as permission for
Tenant to hold-over, nor serve to extend the Term although Tenant shall remain
bound to comply with all provisions of this lease until Tenant vacates the
Premises. Notwithstanding the foregoing to the contrary, at any time before or
after expiration or earlier termination of the Lease, landlord may serve notice
advising Tenant of the amount of Rent and other terms required, should Tenant
desire to enter a month-to-month tenancy (and if Tenant shall hold over more
than one full calendar month after such notice, Tenant shall hereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not
be entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto.
25. Landlord's Lien. As security for the performance of
the obligations of the Tenant under this Lease, the Tenant hereby grants the
Landlord a security interest in all equipment, inventory, fixtures, furniture,
and all other property now owned or hereafter acquired by the Tenant which is
located in the Leased Premises, and all proceeds and products thereof. The
Tenant will not remove any of such personal property from the Leased Premises
until all of the Tenant's obligations under this Lease have been satisfied in
full. Without excluding any other manner of notice, any requirement for
reasonable notice to the Tenant of the Landlord's intention to dispose of any
property pursuant to the enforcement of such security interest will be met if
such notice is given at least ten (10) days before the time of such
disposition. Any sale made pursuant to the enforcement of such security
interest will be deemed to have been a public sale conducted in a commercially
reasonable manner if held at the Leased Premises after
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advertisement of the time, place, method of sale and a general description of
the property to be sold in a daily newspaper published in Oklahoma County,
Oklahoma, for five (5) consecutive days before the date of sale. The Tenant
agrees to execute and deliver to the Landlord such financing statements,
continuation statements and other instruments which might reasonably be
required to perfect, protect or continue the foregoing security interest within
ten (10) days after written request therefor.
26. Responsibility for Hazardous Material.
26.1 Definitions. As used in this paragraph,
the following terms shall have the following meanings:
(a) "Hazardous Material" means any
substance, material or waste which is reasonably considered by Landlord to be
posing an actual or potential threat to the health or safety of persons
entering the Property or which is or at any time hereafter becomes regulated as
"hazardous," "toxic" or under any other similar designation by any local, state
or federal governmental authority. Such term includes, without limitation, (i)
asbestos, (ii) any material, substance or waste defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act (42
U.S.C. Section 6901, et seq.), (iii) any material, substance or waste defined
as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601, et seq.), (iv) any petroleum product, or (v) any material, substance or
waste defined as a "regulated substance" pursuant to Subchapter IX of the Solid
Waste Disposal Act (42 U.S.C. Section 6991, et seq.).
(b) "Indemnified Person" means the
Landlord and any director, trustee, officer, employee or agent of Landlord.
26.2 Notices. Tenant shall promptly notify
Landlord in the event Tenant becomes aware of the presence of any Hazardous
Material or any underground storage tank on the Real Estate or in the Leased
Premises.
26.3 Indemnification. Tenant agrees that it
will not bring onto the Real Estate any Hazardous Material other than
inventory, cleaning supplies and other materials in normal quantities
ordinarily used in the operation of its business, and that it will not permit
any employee, agent, officer, director or invitee of Tenant or any person
occupying the Leased Premises, or any
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portion thereof, by, through or under Tenant to bring any Hazardous Material
onto the Real Estate. Tenant hereby indemnifies each Indemnified Person from
and against any and all loss, cost, damage and expense arising from the
introduction of any Hazardous Material onto the Leased Premises by Tenant, any
employee, agent, officer, director or invitee of Tenant or any other person
occupying the Leased Premises, or any portion thereof, by, through or under
Tenant.
26.4 Remedies of Landlord. If Landlord becomes
aware of the presence or suspected presence of any Hazardous Material brought
onto the Leased Premises in violation of this paragraph, Landlord may so notify
the Tenant and request that Tenant institute remedial action. Tenant will,
within ten days of receipt of such notice, at its sole cost and expense,
commence such action as is specified by Landlord to remove all such Hazardous
Material from the Leased Premises and will diligently pursue such action to
completion. Such work will be performed in accordance with all applicable,
laws, ordinances and regulations governing such work. If Tenant fails to
undertake the work required by this paragraph, Landlord may, at its option to
be exercised by notice to Tenant (i) undertake such work, in which event Tenant
shall reimburse Landlord for all costs and expenses, including the fees of
attorneys, engineers and other consultants, incurred by Landlord in such work,
or (ii) terminate this Lease, without prejudice to any claim for damages
resulting from Tenant's breach hereof. However, Landlord shall not be under
any obligation to exercise either of the remedies specified in the preceding
sentence, and the remedies provided in this paragraph shall not be considered
exclusive or preclude any claim for damages or any other remedy which may be
available under this Lease or under law.
27. Security Deposit. The Tenant shall deposit with the
Landlord simultaneously with the execution of this Lease the Security Deposit.
Such deposit will be held by the Landlord throughout the Lease Term without
liability for interest and as security for the performance by the Tenant of all
the Tenant's obligations under this Lease, it being expressly understood that
the deposit will not be considered an advance payment of Rent or a measure of
the Landlord's damages for any default by Tenant. The Landlord may commingle
the deposit with the Landlord's other funds and may, from time to time, without
prejudice to any other remedy, use the deposit to satisfy any obligation of the
Tenant hereunder. Following any such application of the deposit, the Tenant
will pay to the Landlord, on demand, the amount so applied and restore the
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deposit to its original amount. If the Tenant is not in default at the
termination of this Lease, the balance of the deposit remaining after any such
application will be returned by the Landlord to the Tenant. If the Landlord
transfers the Landlord's interest in the Leased Premises during the Lease Term,
the Landlord will assign the deposit to the transferee and thereafter the
transferor will have no further liability with respect to such deposit.
28. Abandoned Property. All personal property not
removed by the Tenant from the Leased Premises within five (5) days after the
expiration or earlier termination of the Lease Term will be conclusively
presumed to have been abandoned by the Tenant and the Landlord may, at the
Landlord's option,hereafter take possession of such property and either declare
the same to be the property of the Landlord or, at the expense of the Tenant,
dispose of such property in any manner and for such consideration the Landlord,
in the Landlord's sole discretion, deems advisable.
29. Default. The following events will be deemed to be
events of default by the Tenant under this Lease: (a) failure to pay any Rent
or other sum payable by the Tenant hereunder when such sum becomes due, and
such failure continues for ten (10) days following written notice of such
default given by the Landlord to the Tenant; (b) failure to comply with any
term of this Lease or the Building Regulations, and such failure continues for
ten (10) days following written notice of such default given by the Landlord to
the Tenant; (c) the filing by or against the Tenant, or any Guarantor, of any
proceedings under the federal bankruptcy act or any similar law; (d) the
adjudication of the Tenant or any Guarantor as bankrupt or insolvent in
proceedings filed under the federal bankruptcy act or any similar law; (e) the
insolvency of the Tenant, or any Guarantor, or the making by Tenant or any
Guarantor of a transfer in fraud of creditors or an assignment for the benefit
of creditors; or (f) the appointment or a receiver or trustee for the Tenant,
any Guarantor or any of the assets of the Tenant.
30. Remedies. On the occurrence of any event of default,
the Landlord will have the option to do the following, without any notice or
demand, in addition to and not in limitation of any other remedy permitted by
law or by this Lease:
30.1 Termination. The Landlord may terminate
this Lease, in which event the Tenant will immediately surrender the Leased
Premises to the Landlord, but if the Tenant fails to do so,
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the Landlord may, without notice and without prejudice to any other remedy the
Landlord might have, enter and take possession of the Leased Premises and
remove the Tenant and the Tenant's property therefrom without being subject to
any claim for damages therefor. Tenant shall pay Landlord all costs incurred
by Landlord in any such action, including the costs of taking possession of and
repairing any damage to the Leased Premises and all other damages caused by
Tenant's default.
30.2 Reletting. If Landlord does not terminate
this Lease, Landlord may, at its option, reenter the Leased Premises and remove
any personal property of the Tenant, forcibly, if necessary, without being
guilty of trespass, and relet the Leased Premises for the benefit of Tenant, in
which event the Tenant shall pay the Landlord all costs incurred by Landlord in
such action including, without limitation, the reasonable costs of taking
possession of and repairing the Leased Premises, the reasonable cost of
preparing the Leased Premises for reletting, attorneys' fees, brokerage
commissions, and all other damages caused by Tenant's default, and shall, in
addition, remain obligated to Landlord for the difference between any rent
received by Landlord as a result of such reletting and the Rent for which
Tenant is obligated hereunder. Landlord shall have no duty to relet the Leased
Premises, and the failure of Landlord to relet the Leased Premises will not
release or affect the Tenant's liability for Rent or for damages. In the event
any such reletting results in payment of rent thereunder to Landlord in excess
of the Rent for which Tenant is obligated hereunder, Landlord shall retain such
excess.
30.3 Election not to Relet. If the Landlord
elects not to terminate this Lease and does not relet the Leased Premises for
the benefit of Tenant, Tenant shall remain obligated to Landlord for all Rent
for which it is obligated hereunder for the remainder of the Lease Term,
together with all damages caused by Tenant's default.
30.4 Option to Perform. The Landlord may
perform or cause to be performed the unperformed obligations of the Tenant
under this Lease and may enter the Leased Premises to accomplish such purpose
without being liable to any claim for damages therefor. The Tenant agrees to
reimburse the Landlord on demand for any reasonable expense which the Landlord
might incur in effecting compliance with this Lease on behalf of the Tenant,
and the Tenant further agrees that the Landlord will not be liable for
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any damages resulting to the Tenant from such action, whether caused by the
negligence of the Landlord or otherwise.
31. Waiver of Default. No action by the Landlord during
the Lease Term will be deemed an acceptance of an attempted surrender of the
Leased Premises and no agreement to accept a surrender of the Leased Premises
will be valid unless made in writing and signed by the Landlord. No reentry or
taking possession of the Leased Premises by the Landlord will be construed as
an election by the Landlord to terminate this Lease, unless a written notice of
termination is given to the Tenant. The failure of the Landlord to enforce the
Building Regulations against the Tenant or any other tenant in the Building
will not be deemed a waiver thereof.
32. Attorneys' Fees. In any action by one party against
the other to enforce this Lease, the prevailing party may recover reasonable
attorney's fees and other expenses incurred by such party in connection
therewith.
33. Mechanic's and Materialmen's Liens. If any
mechanic's or materialmen's liens shall at any time be filed against the Leased
Premises, or any part thereof, by reason of any work, labor, services,
materials, or equipment furnished to or for Tenant, Tenant, within thirty (30)
days after notice of the filing thereof shall cause the same to be fully
satisfied by bond or otherwise. Nothing herein shall be deemed or construed in
any way as constituting the consent or the request of Landlord, express or
implied, to any contractor, subcontractor, laborer or materialmen for the
performance of any labor or the furnishing of any materials for any
improvement, alteration or repair of the Leased Premises, or any part thereof,
nor as giving the Tenant any right, power, authority to contract for or permit
the rendering of any services or the furnishing of any materials that would
give rise to the filing of any lien against the Leased Premises, or any part
thereof.
34. Landlord's Transfer. In the event the Landlord
transfers the Landlord's interest in the Building, the Landlord will thereby be
released from any obligation hereunder accruing from and after such transfer,
including any claims with respect to any security deposit delivered to such
transferee, and the Tenant agrees to attorn to and look solely to the
transferee for the performance of such obligations. The agreement of the
Tenant to attorn to the transferee of the Landlord will survive any termination
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of rights of the Landlord in the Building and the Tenant agrees to execute and
deliver to the transferee of the Landlord from time to time, within ten (10)
days after written request therefor, all instruments which might be required by
the Landlord to confirm such attornment. Any transferee of Landlord shall
acquire Landlord's interest in the Building subject to this Lease.
35. Subordination. Subject to the conditions set forth
in this paragraph, this Lease and all rights of the Tenant hereunder shall, at
the option of the Landlord, be subject and subordinate to any future mortgage
or other Encumbrance held by a lending institution which may hereafter affect
the Building, the Real Estate or any other property associated therewith; and
the Tenant agrees to execute and deliver to the Landlord from time to time,
within ten (10) days after written request by the Landlord, any and all
instruments which may be required by the Landlord to confirm such
subordination. As express conditions to this Lease being subordinated to any
such future mortgage or other Encumbrance, the holder of such mortgage or other
Encumbrance shall provide the Tenant with a written agreement, in form and
content satisfactory to the Tenant, to the effect that so long as no event of
default by the Tenant has occurred and is continuing under this Lease, then:
(a) Tenant shall not be named as a party defendant or otherwise joined in any
foreclosure action or other proceeding which may be taken or instituted by the
then holder of the mortgage or other Encumbrance by reason of a default under
such mortgage or other Encumbrance; and (b) this Lease shall not be terminated,
nor shall Tenant's use, possession or enjoyment of the Leased Premises be
interfered with, nor shall any of Tenant's rights under this Lease be affected
in any other manner, by reason of a default under such mortgage or other
Encumbrance or by reason of any foreclosure proceeding or other action
instituted as a result of such default. With respect to any existing mortgages
or other Encumbrances presently covering the land upon which the Building is to
be located, the execution and delivery to the Tenant of a written agreement to
the above effect by the holder of each such mortgage or other Encumbrance shall
be a condition precedent to the effectiveness of this Lease.
36. Estoppel Certificate or Three-Party Agreement. Upon
the commencement of the Lease Term, Tenant will execute and deliver to Landlord
and any Mortgagee a tenant's acceptance letter in the form of Exhibit E. At
Landlord's request, Tenant will execute any other estoppel certificate
addressed to Landlord and any mortgagee or any three-party agreement among
Landlord, Tenant and any mort-
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gagee certifying to such facts (if true) and agreeing to such notice provisions
and other matters as such persons may reasonably require. Such agreement may
contain, without limitation, an agreement by the Tenant with such mortgagee
that after the date of such certificate, the Tenant will not pay any Rent more
than thirty (30) days in advance of its due date or surrender or consent to the
modification or termination of this Lease by the Landlord. Tenant agrees that
in the event of any default by Landlord hereunder, Tenant shall take no action
to terminate this Lease or pursue any other remedies which may be available to
it without first providing to each mortgagee known to Tenant notice of such
default and a reasonable time of not less than thirty (30) days in which to
cure such default.
37. Building Name. The Landlord reserves the right at
any time to name the Building and to change the Building name without liability
to the Tenant.
38. Brokerage. The Tenant warrants that the Tenant has
had no dealings with any broker in connection with the execution of this Lease
and the Tenant agrees to indemnify and hold the Landlord harmless from all
claims for commissions or other compensation asserted by any person employed or
retained by Tenant with respect to this Lease.
39. Recording. The Landlord and the Tenant agree that
this Lease will not be recorded, but that a memorandum hereof in substantially
the form set forth at Exhibit F will be executed and delivered within (10) days
after the written request of either party, which memorandum may be recorded in
the Office of the County Clerk of Oklahoma County, Oklahoma.
40. Landlord's Liability. Anything herein contained to
the contrary notwithstanding, the obligations of Landlord under this Lease
shall be binding upon and enforceable only out of Landlord's interest in the
Real Estate, the Building and other improvements thereon, and not upon or out
of any other assets of Landlord.
41. Notices.
41.1 Form of Notice. All notices, requests,
demands, instructions, or other communications called for hereunder or
contemplated hereby shall be in writing and shall be deemed to have been given
if personally delivered in return for receipt or if
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mailed, first class, postage prepaid, by registered or certified mail, return
receipt requested, to the parties at the address as set forth below. Either
party may change the address to which notices are to be given hereunder by
giving notice in the matter herein provided.
41.2 Notices to Landlord. Notices to Landlord
shall be addressed to the Landlord at the Landlord's Address.
41.3 Notices to Tenant. Notices to Tenant shall
be addressed to the Tenant at the Tenant's Address.
42. Joint and Several Liability. If the Tenant is more
than one person, the Tenant's obligations hereunder are joint and several. If
there is a Guarantor, the Tenant's obligations hereunder are joint and several
obligations of the Tenant and the Guarantor, and the release, forbearance or
discharge of any Guarantor will not relieve the Tenant from the performance of
the Tenant's obligations hereunder.
43. Severability. If any clause or provision of this
Lease is illegal, invalid or unenforceable under any present or future law, the
remainder of this Lease will not be affected thereby.
44. Binding Effect. The provisions of this Lease will be
binding on and inure to the benefit of the Landlord and the Tenant and their
respective personal representatives, successors and permitted assigns.
45. Time of the Essence. Time shall be the essence with
respect to the performance by the parties of their respective obligations
hereunder. If the time for performance of any obligation hereunder falls on a
Saturday, Sunday, or legal holiday, such time shall be extended to the next
succeeding business day.
46. Consent to Breach. Any assent, express or implied,
to any breach of any covenant or condition herein contained shall operate as
such only in the specific instance and shall not be construed as an assent or
waiver of any condition or covenant generally, or any subsequent breach
thereof.
47. Remedies Cumulative. The various rights, powers
elections and remedies of the parties hereto shall be considered as cumulative,
and no one of them is exclusive of the others or exclu-
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sive of any right or power allowed by law, and no right shall be exhausted by
being exercised on one or more occasions.
48. Substitution. The Landlord has the right to
substitute for the Premises other premises (herein referred to as the "new
premises") at the Building, or another comparable building, provided: (i) the
new premises shall be similar to the Premises in area, (ii) Landlord shall give
Tenant at least thirty (30) days written notice before making such change, and
the parties shall execute an amendment to the Lease confirming the change
within thirty (30) days after either party shall request the same; and (iii) if
Tenant shall already have taken possession of the Premises: (a) Landlord shall
pay the direct, out-of-pocket, reasonable expenses of Tenant in moving from the
Premises to the new premises and improving the new premises so that they are
reasonably similar to the Premises, and, (b) such move shall be made during
evenings, weekends, or otherwise so as to incur the least inconvenience to
Tenant.
49. Arbitration. Any claim, controversy or dispute
arising out of or relating to this Agreement, except as set forth herein, shall
be settled by arbitration in Oklahoma City, Oklahoma, in accordance with the
rules for arbitration of the American Arbitration Association. Any arbitration
shall be undertaken pursuant to the Federal Arbitration Act, where possible,
and the decision of the arbitrators shall be final, binding, and enforceable in
any court of competent jurisdiction. In any dispute in which a party seeks in
excess of $50,000 in damages, three arbitrators shall be employed. Otherwise,
a single arbitrator shall be employed. All costs relating to the arbitration
shall be borne equally by the parties, other than their own attorneys' and
experts' fees. The parties will bear their own attorneys' and experts' fees.
The arbitrators will not award punitive, consequential or indirect damages.
Each party hereby waives the right to such damages and agrees to receive only
those actual damages directly resulting from the claim asserted. In resolving
all disputes between the parties, the arbitrators will apply the laws of the
State of Oklahoma. Except as needed for presentation in lieu of a live
appearance, depositions will not be taken. The parties will be entitled to
conduct document discovery by requesting production of documents. The
arbitrators will resolve any discovery disputes by such prehearing conferences
as may be needed. Either party may be entitled to pursue such remedies for
emergency or preliminary injunctive relief in any court of competent
jurisdiction, provided that each party agrees that it will consent to the stay
of such
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judicial proceedings on the merits of both this Agreement and the related
transactions pending arbitration of all underlying claims between the parties
immediately following the issuance of any such emergency or injunctive relief.
50. Entire Agreement. The Tenant agrees that there are no
representations, understandings, stipulations, or other agreements relating to
the Leased Premises which are not incorporated herein. This Lease may not be
altered, waived, amended or extended, except by a written agreement signed by
the Landlord and the Tenant.
LANDLORD: PRESBYTERIAN HEALTH FOUNDATION
ATTEST:
By /s/ Xxxxxx XxXxxxx
-------------------------- ---------------------------------
Secretary Vice President
[SEAL]
TENANT: ZYMETX, INC.
ATTEST:
By /s/ Xxxxx Xxxxxxxxxx
-------------------------- ---------------------------------
Secretary Xxxxx Xxxxxxxxxx, President
[SEAL]
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STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ____
day of ______________________, 19__, by ___________________, as
________________________ of Presbyterian Health Foundation, an Oklahoma not for
profit corporation, on behalf of such corporation.
-----------------------
Notary Public
My Commission Expires:
----------------------
[SEAL]
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
The foregoing instrument was acknowledged before me this ____
day of ________________, 19__, by _________________________, as
________________ of _____________________________________, an Oklahoma
_______________, on behalf of such ___________________.
-----------------------
Notary Public
My Commission Expires:
----------------------
[SEAL]
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EXHIBITS
A - Legal Description
B - Leased Premises
C - Building Rules and Regulations
D - Completion of Space
E - Estoppel Certificate
F - Memorandum of Lease
Addendum
