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EXHIBIT 10.1
THIS CONTRACT CONTAINS INDEMNIFICATION PROVISIONS. READ IT CAREFULLY.
OFFICE BUILDING LEASE AGREEMENT
BASIC LEASE INFORMATION
LEASE DATE: OCTOBER 16 , 1996
TENANT: ILEX ONCOLOGY, INC., A DELAWARE CORPORATION
TENANT ADDRESS: 00000 XX 00 XXXX, XXXXX 000
XXX XXXXXXX, XXXXX 00000
CONTACT: XXXXX XXXX TELEPHONE: (000) 000-0000
LANDLORD: N.W.A. LIMITED PARTNERSHIP
LANDLORD'S ADDRESS: 00000 XX 00 XXXX , XXXXX 000
XXX XXXXXXX, XXXXX 00000
CONTACT: BUILDING MANAGER TELEPHONE: (000) 000-0000
PREMISES: Suite No. 300 deemed to contain 21,036 square feet
of Rentable Area (as hereinafter defined), the same
being of 18,291 square feet of Usable Area (as
hereinafter defined); and
Effective July 1, 1997, Suite 170 deemed to contain
2,962 square feet of Rentable Area (as hereinafter
defined), the same being of 2,576 square feet of
Usable Area (as hereinafter defined).
Suites 300 and 170 are outlined on the plan attached
to the Lease as Exhibit A, and are located in the
office building (the "Building") located on the land
described as, NCB 17442, XXX 0, XXX 0, XX XXXXXX
XXXX XX-0, XXXXX XXXXXX, XXXXX and known as
XXXXXXXXX XXXXXX XXXXXX XXXXXXXX, 00000 XX- 00 XXXX
xxxxxx (xxx "Xxxx").
TERM: The period of sixty (60) months commencing JANUARY
1, 1997 (the "Commencement Date") and ending at 5:00
p.m. DECEMBER 31, 2001 subject to adjustment or
earlier termination as provided in the Lease.
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BASIC RENTAL: Basic Rental shall be payable in monthly
installments, and subject to escalation's (if any),
as follows:
MONTHLY MONTHLY MONTHLY
PERIOD BASE RENTAL RATE/RSF
-----------------------------------------------------
1-12
THRU 6/30/97 $21,456.72 $1.02
7/1/97 & THEREAFTER $24,477.96 $1.02
13-24 $25,677.86 $1.07
25-36 $26,877.76 $1.12
37-48 $28.077.66 $1.17
49-60 $29,277.56 $1.22
EXPENSE STOP: $5.89 per RSF (which is applicable to the
calculation of Excess Oprating Expense [hereinafter
defined] payable by Tenant)
SECURITY DEPOSIT: $27,275.54
RENT: Basic Rental and all other sums that Tenant may owe
to Landlord under the Lease.
PERMITTED USE: GENERAL BUSINESS OFFICES
TENANTS FROM THE COMMENCEMENT DATE THROUGH JUNE 30, 1997:
PROPORTIONATE
SHARE 22.76% which is the percentage obtained by dividing
(i) 21,036 the square feet of Rentable Area in the
Premises by (ii) the total 92,410 square feet of
Rentable Area in the Building.
BEGINNING JULY 1, 1997:
25.97 % which is the percentage obtained by dividing
(i) 23,998 square feet of Rentable Area in the
Premises by (ii) the total 92,410 square feet of
Rentable Area in the Building.
APPURTENANT
FACILITIES: The parking areas, driveways, landscaping,
sidewalks, and other facilities now or hereafter
located on the Land (other that the Building) which
are used in connection with the operation of the
Building.
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BROKER: RFM Commercial, Inc. and Mission City Properties,
Inc.
SPECIAL PROVISIONS: The Parties hereto understand and agree that the
formula specified in other provisions of this lease
would yield a Rentable Area of more than
23,998square feet due to the number of square feet
occupied by the atrium in the Building. Nonetheless,
the parties have agreed that, notwithstanding any
other provisions in this lease to the contrary, the
Rentable Area shall for all purposes, be deemed to
be 21,036 square feet for Suite 300 and 2,962 square
feet for Suite 170 for a total of 23,998 square
feet.
Tenant shall have 30 days from the date of the
execution of the Lease to measure the Usable Area
and the Rentable Area and to check the Tenant's
Proportionate Share. If Tenant does not protest in
writing within 30 days of the date of this Lease the
Usable Area, Rentable Area and/or the Tenant's
Proportionate share, specified in this Lease, then
Tenant has agreed to the same and may not thereafter
raise any issue regarding the correctness of the
same.
Subject to Landlord's approval, Tenant may select
the local exchange supplier to supply its
telecommunication needs. Tenant shall have the right
to install a satellite dish on the existing poles on
the roof of the Building and to employ the
mechanical chases of the Building to the Premises
provided that: (i) the dish shall not exceed
thirty-six inches in diameter; and (ii) the dish
shall be located and screened so as not to be
visible from adjoining properties.
Prior to the Commencement Date, Landlord agrees to
repair and repaint the water- stained area below the
top of the atrium of the Building.
Landlord represents that to the best of its actual
knowledge, the Building is structurally sound.
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THE FOREGOING BASIC LEASE INFORMATION IS INCORPORATED INTO AND MADE A PART OF
THE LEASE, BUT DOES NOT CONSTITUTE THE ENTIRE LEASE. TENANT ACKNOWLEDGES THAT
IT HAS READ ALL OF THE PROVISIONS CONTAINED IN THE ENTIRE LEASE AND ALL
EXHIBITS WHICH ARE A PART THEREOF AND AGREES THAT THIS LEASE , INCLUDING THE
BASIC LEASE INFORMATION AND ALL EXHIBITS, REFLECT THE ENTIRE UNDERSTANDING AND
REASONABLE EXPECTATIONS OF LANDLORD AND TENANT REGARDING THE PREMISES. IN THE
EVENT ANY CONFLICT EXISTS BETWEEN ANY BASIC LEASE INFORMATION AND THE LEASE,
THEN THE LEASE SHALL CONTROl.
N.W.A. LIMITED PARTNERSHIP ILEX ONCOLOGY, INC., a Delaware Corp.
(Landlord) (Tenant)
By: By:
---------------------------------- ---------------------------------
XXXX X. XXXXXXX
VICE PRESIDENT OF ITS ---------------------------------
GENERAL PARTNER Printed Name
XXXXXX INVESTMENT GROUP, INC.
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Title
EXHIBITS:
Exhibit "A" Outline of Premises
Exhibit "B" Building Rules and Regulations
Exhibit "C" Workletter for Suite 300
Exhibit "D" Parking Agreement
Exhibit "E" Workletter for Suite 170
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OFFICE BUILDING LEASE AGREEMENT
THIS OFFICE BUILDING LEASE AGREEMENT (the "Lease") is entered
into as of October 16, 1996, between NWA Limited Partnership
("Landlord"), and ILEX Oncology, Inc., a Delaware Corporation
, ("Tenant").
DEFINITIONS
AND BASIC
PROVISIONS 1. a. BASIC LEASE INFORMATION. The definitions and basic
provisions set forth in the Basic Lease Information ( "Basic
Lease Information") executed by Landlord and Tenant
contemporaneously herewith are incorporated herein by
reference for all purposes.
b. RENTABLE AREa. "Rentable Area" refers to the
square footage or areas within the Building determined by
adding the following: (i) the Usable Area (as defined below)
of the area being measured, (ii) the portion of the
Building-Shared Areas (as defined below) allocable to the
area being measured, and (iii) the portion of the
Floor-Shared Areas (as defined below) allocable to the area
being measured.
c. USABLE AREa. "Usable Area" means the square
footage of the areas in the Premises (including areas for the
specific use of "Tenant" and installed at the request of
"Tenant" such as special stairs or elevators) or other areas
held for lease measured from the inside surface of the outer
glass, finished column or exterior wall of the Building
enclosing the Premises (a) to the inside surface of the
opposite outer glass, finished column or exterior wall, or
(b) to the mid-point of the demising walls separating the
Premises from: (i) areas leased to or held for lease to other
tenants, (ii) Building-Shared Areas, (iii) Floor-Shared
Areas, and (iv) Service Areas (as defined below), as the case
may be. No deductions from Usable Area shall be made for
columns or projections necessary to the Building.
d. SERVICE AREAS. "Service Areas" means the square
footage of the areas within (and measured from the mid-point
of the walls enclosing) the Building stairs, fire towers,
elevator shafts, flues, vents, stacks, pipe shafts, vertical
ducts and other vertical penetrations. Areas for the specific
use of a tenant and installed at the request of a tenant such
as special stairs or elevators are not included within the
definition of Service Areas, and such areas will be included
in the Usable Area of the space being measured.
e. BUILDING-SHARED AREAS. "Building-Shared Areas"
means the square footage of the areas within (and measured
from the mid-point of the walls enclosing) the Building
elevator, machine rooms, main mechanical and electrical
rooms, public lobbies, and other areas not leased or held for
lease within the Building and not included in Service Areas
or Floor-Shared Areas, but which are necessary or desirable
for the proper utilization of the Building or to provide
customary services to the Building. The allocation to the
Premises of the Building-Shared Areas shall be equal to the
total Building-Shared Areas within the Building multiplied by
a fraction, the numerator of which is the Usable Area of the
Premises and the denominator of which is the total Usable
Area of the Building.
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f. FLOOR-SHARED AREAS. "Floor-Shared Areas" means
the square footage of the areas within (and measured from the
mid-point of the walls enclosing) public corridors, elevator
foyers, rest rooms, mechanical rooms, janitor closets,
telephone and equipment rooms, and other similar facilities
for the use of all tenants on the floor on which the Premises
are located and which are not included in Service Areas or
Usable Area of a particular tenant. In the case of a floor
leased to more than one tenant, the allocation to the
Premises of the Floor-Shared Areas on said floor shall be
equal to the total Floor-Shared Areas on said floor
multiplied by a fraction, the numerator of which is the
Usable Area of the Premises located on said floor and the
denominator of which is the total Usable Area of said floor.
g. STIPULATIONS AS TO AREa. Landlord and Tenant
hereby agree that the Rentable Area of the Premises has been
calculated on the basis of the foregoing definitions to be
the number of square feet of Rentable Area for the Premises
set forth in the Basic Lease information.
LEASE
GRANT 2. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises for the
Term (as same may be renewed as set forth herein). In
addition, Tenant shall have the non-exclusive right, along
with Landlord and all other tenants in the Building and their
invitees, to use areas designated by Landlord to be the
common areas in the Building and the Appurtenant Facilities,
except any portions thereof designated for the use of
specific tenants, such as the portion of the corridor on the
northern one-half of the third (3rd) floor that is set aside
for Tenant, as set out in the Plans. Tenant and Landlord
agree that Tenant may establish a card access system to the
corridor on the North Side of the Third Floor and exclude
other tenants and invitees of the Building from such space
without same being deemed a part of the Premises for the
purposes of calculations of rent or of Tenant's Proportionate
Share.
COMMENCEMENT
DATE 3. If the Commencement Date is not the first day of a
calendar month, then the Term shall be extended by the time
between the Commencement Date and the first day of the next
month. In the event Tenant occupies the Premises prior to the
scheduled Commencement Date, the Commencement Date shall be
defined as the date such occupancy commences. If this Lease
is executed before the Premises become vacant or otherwise
available and ready for occupancy by Tenant, or if any
present occupant of the Premises holds over and Landlord
cannot acquire possession of the Premises before the
Commencement Date, then (a) Tenant's obligation to pay Rent
hereunder shall be waived until Landlord tenders possession
of the Premises to Tenant, (b) the Term shall be extended by
the time between the scheduled Commencement Date and the date
on which Landlord tenders possession of the Premises to
Tenant (which date will then be defined as the Commencement
Date), (c) Landlord shall not be in default hereunder or be
liable for damages therefor, and (d) Tenant shall accept
possession of the Premises when Landlord tenders possession
thereof to the Tenant. With the exception of the Temporary
Space, by occupying the Premises, Tenant shall be deemed to
have accepted the Premises in their condition as of the date
of such occupancy, subject to the performance of punch-list
items that remain to be performed by Landlord, if any,
Landlord shall have the right, but not the
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obligation, to deliver to Tenant a letter (the "Confirmation
Letter" ) confirming (i) the Commencement Date, (ii) that
Tenant has accepted the Premises, and (iii) that Landlord has
performed all of its obligations, if any, with respect to the
condition of the Premises (except for punch-list items
specified in such Confirmation Letter). All information set
forth in the Confirmation Letter shall be deemed correct and
binding on both Landlord and Tenant, unless Tenant objects to
any such information in writing to Landlord within ten (10)
days of Tenant's receipt of the Confirmation Letter. If
requested by Landlord, Tenant shall execute and deliver to
Landlord, within ten (10) days after Landlord has requested
same, a copy of the Confirmation Letter, although Tenant's
failure to execute or deliver the same shall not limit the
binding nature thereof if Tenant fails to object in writing
to any information set forth therein within the time period
provided in this Section 3.
RENT 4. a. PAYMENT. Tenant shall timely pay to Landlord the
Basic Rental and all additional sums to be paid by Tenant to
Landlord under this Lease, including the amounts set forth in
Section 4b., without notice, demand, counterclaim, set-off or
abatement, at Landlord's Address (or such other address as
Landlord may from time to time designate in writing to
Tenant). Basic Rental, adjusted as herein provided, shall be
payable monthly in advance. The first monthly installment of
Basic Rental shall be payable contemporaneously with the
execution of this Lease, and a like monthly installment of
Basic Rental shall be due on the first day of the second full
calendar month of the Term and continuing thereafter on the
first day of each succeeding calendar month during the Term.
Basic Rental for any fractional month at the beginning of the
Term shall be prorated and shall be due on the Commencement
Date. In the event the Commencement Date is not the first day
of a calendar month, Tenant shall pay as Basic Rental for any
such partial month a prorated rental in an amount equal to
$715.22 for each day remaining in said month. Tenant's
obligation to pay Rent hereunder is an independent covenant.
b. OPERATING EXPENSE ESCALATOR. Tenant shall pay an
amount equal to the excess ("Excess Operating Expense") of
Tenant's Proportionate Share of the actual Operating Expenses
for each calendar year or part thereof during the Term, over
the Expense Stop. Landlord may collect such amount in a lump
sum, to be due within thirty (30) days after Landlord
furnishes to Tenant the annual statement of actual Operating
Expenses. Alternatively, Landlord may make a good faith
estimate of the Excess Operating Expenses to be due by Tenant
for any calendar year or part thereof during the Term, and,
unless Landlord delivers to Tenant a revision of the
estimated Excess Operating Expense, Tenant shall pay to
landlord, on the Commencement Date and on the first day of
calendar month thereafter, an amount equal to the estimated
Excess Operating Expense for such calendar year or part
thereof divided by the number of months in such calendar year
during the Term. From time to time during any calendar year,
Landlord may estimate and re-estimate the Excess Operating
Expense to be due by Tenant for the calendar year and deliver
a copy of the estimate or re-estimate to Tenant. Thereafter,
the monthly installments of Excess Operating Expense payable
by Tenant shall be appropriately adjusted in accordance
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with the estimations so that, by the end of the calendar year
in question, Tenant shall have paid all of the Excess
Operating Expense as estimated by Landlord. Any amounts paid
based on such an estimate shall be subject to adjustment
pursuant to Section 4d. when actual Operating Expenses are
available of each calendar year.
c. OPERATING EXPENSES. For the purposes of this
Section 4, the term "Operating Expenses" shall mean all
expenses and disbursements of every kind (subject to the
limitations set forth below) which Landlord incurs, pays or
becomes obligated to pay in connection with the ownership,
operation, and maintenance of the Building and Appurtenant
Facilities, determined in accordance with generally accepted
accounting principles consistently applied, including but not
limited to the following:
(i) The costs (including wages and salaries and the
taxes, insurance and benefits relating thereto) of
those employees of the Building or Landlord who are
engaged in the operation, repair, replacement,
maintenance, and security of the Building and
Appurtenant Facilities, including management fees;
(ii) All tools, equipment, supplies and materials
used in the operation, maintenance, repair,
replacement, and security of the Building and
Appurtenant Facilities;
(iii) Actual cost of all capital improvements made
to the Building and Appurtenant Facilities which
although capital in nature can reasonably be
expected to reduce the normal operating costs of the
Building and Appurtenant Facilities, as well as all
capital improvements made in order to comply with
any law hereafter promulgated by any governmental
authority relating to energy, conservation, public
safety or security. Provided, however, the amount of
such costs that may be included as operating costs
in any one year is limited to the ratio of one
divided by the useful economic life of such
improvements as determined by Landlord in its
reasonable discretion (without regard to the period
over which such improvements may be depreciated or
amortized for federal income tax purposes) times the
cost of the item;
(iv) Cost of all utilities for the Building and
Appurtenant Facilities, including the cost of water,
sewer and power for heating, lighting, air
conditioning and ventilating (excluding those costs
billed to specific tenants);
(v) Cost of any Insurance or Insurance related
expense applicable to the Building and Appurtenant
Facilities and Landlord's personal property used in
connection therewith;
(vi) All taxes and assessments and governmental
charges whether federal, state, county or municipal,
and whether they be by taxing authorities presently
taxing or by others subsequently created or
otherwise, and any other taxes and assessments
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directly attributable to the Land, Building,
Appurtenant Facilities or rents from the operation
and leasing thereof, exclusive of Direct Taxes
(defined in 4e, below) federal or state income
taxes, or taxes that are imposed on Landlord by
reason of its form of organization (collectively,
"Taxes"). If the present method of taxation changes
such that in lieu of the whole or any part of ad
valorem taxes, there is imposed on owners of real
property a tax or taxes assessed and levied that
such tax is directly attributable to the Land, the
Building, the Appurtenant Facilities or the rental
from the operation or leasing thereof, the amount of
such tax so attributable shall be included as part
of the Taxes to be included as Operating Expenses to
be reimbursed by the Tenants of the Building.
(vii) Cost of repairs, replacements, and general
maintenance of the Building and Appurtenant
Facilities; and
(viii) Cost of service or maintenance contracts with
independent contractors for the operation,
maintenance, repair, replacement, or security of the
Building and Appurtenant Facilities (including,
without limitation, alarm service, window cleaning,
and elevator maintenance).
There are specifically excluded from the definition of the
term "Operating Expenses" costs (1) for capital improvements
made to the Building, other than capital improvements
described in subparagraph (iii) above and except for items
which, though capital for accounting purposes, are properly
considered maintenance and repair items, such as painting of
common areas, replacement of carpet in elevator lobbies,
corridors and the like; (2) for repair, replacements and
general maintenance paid by proceeds of insurance or by
Tenant or other third parties, and alterations attributable
solely to tenants of the Building other than Tenant; (3) for
interest, amortization or other payments on loans to
Landlord; (4) for depreciation of the Building; (5) for
leasing commissions; (6) for legal fees other than those
incurred for the purpose of reducing Operating Expenses
(e.g., legal fees incurred in contesting the assessment of
Taxes); (7) for renovating or otherwise improving space for
occupants of the Building or vacant space in the Building;
(8) for correcting defects in the construction of the
Building, such as any repairs or modifications arising out of
foundation problems; and (9) for federal income taxes imposed
on or measured by the income of landlord from the operation
of the Building. Tenant, at Tenant's sole cost and expense,
shall have the right to audit Landlord's books and records
relating to Operating Expenses and Landlord agrees to make
available to Tenant, upon at least ten (10) days proper
written notice from Tenant to Landlord, its books and records
relevant to such an audit.
d. ADJUSTMENT. The annual cost statement shall
include a statement of Landlord's actual Operating Expenses
for the previous year. If the annual cost statement reveals
that Tenant paid more for Operating Expenses than the actual
Excess Operating Expense in the year for which such statement
was prepared, then Landlord, shall credit
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against future Excess Operating Expenses or, upon notice from
Tenant, Landlord shall reimburse Tenant for such excess;
likewise, if Tenant paid less than the actual Excess
Operating Expense, then Tenant shall pay Landlord such
deficiency either of such payments to be made within thirty
(30) days after delivery of such annual cost statement.
e. DIRECT TAXES. At the same time and in the same
manner as the payment of Basic Rental hereunder, Tenant shall
pay any gross revenue tax, sales tax, excise tax, value-added
tax, privilege tax, or similar tax imposed by any government
or governmental agency upon Tenant on account of the Lease or
the payment of Rent hereunder ("Direct Taxes").
f. SURVIVABILITY OF OBLIGATIONS. All obligations of
Tenant to pay Rent accrued prior to termination of this Lease
shall survive such termination.
DELINQUENT
PAYMENT,
LATE
CHARGES 5. a. All Rent to be paid by Tenant to Landlord shall
be in lawful money of the United States of America and shall
be paid without deduction or offset, prior notice or demand,
at the address set forth in the Basic Lease Information, or
at such other places as may be designated from time to time
by Landlord. In the event a check is submitted by Tenant for
payment, and is returned for insufficient funds, a $25.00
handling fee will be assessed by Landlord. If thereafter a
second check is returned for insufficient funds, another
handling fee in the amount of $25.00 will be assessed, and
all future payments thereafter must be made in cash or by
cashier's or certified check. In the event any Rent is not
received within ten (10) days after its due date for any
reason whatsoever, then in addition to the past due amount
Tenant shall pay to Landlord interest on the Rent then past
due at a rate equal to the lesser of (i) 18% per annum, or
(ii) the maximum contractual rate which could legally be
charged in the event of a loan of such Rent to Tenant, such
interest to accrue continuously on any unpaid balance due to
Landlord by Tenant during the period commencing with the Rent
due date and terminating with the date on which Tenant makes
full payment of all amounts owing to Landlord at the time of
said payment. Any such late charge or interest payment shall
be payable as additional Rent under this Lease and shall be
payable immediately on demand. In no event, however, shall
the charges permitted under this Section 5 or elsewhere in
this Lease, to the extent the same are considered to be
interest under applicable law, exceed the maximum lawful
contract rate of interest.
SECURITY
DEPOSIT 6. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord, in immediately available funds,
the Security Deposit, which shall be held by Landlord without
liability for interest and as security for the performance by
Tenant of its obligations under this Lease. The Security
Deposit is not an advance payment of Rent or a measure or
limit of Landlord's damages upon an Event of Default (defined
below). Landlord shall not be obligated to hold the Security
Deposit as a separate fund, but may commingle it with other
funds. Landlord may, from time to time and without prejudice
to any other remedy, use all or a part of the Security
Deposit to perform any obligation which Tenant was obligated,
but failed, to perform hereunder.
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Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original
amount. Within a reasonable time after the Term ends,
provided Tenant has performed all of its obligations
hereunder, Landlord shall return to Tenant the balance of the
Security Deposit not applied to satisfy Tenant's obligations.
If Landlord transfers its interest in the Premises, then
Landlord may assign the Security Deposit to the transferee
and Landlord thereafter shall have no further liability for
the return of the Security Deposit.
LANDLORD'S 7. a. SERVICES. Provided no Event of Default exists,
Landlord shall use reasonable efforts OBLIGATIONS to furnish
to Tenant (i) water (hot and cold) at those points of supply
provided for general use of tenants of the Building, as
modified by the work to be performed in accordance with
Tenant's Final Plans; (ii) heated and refrigerated air
conditioning as appropriate, at such times as Landlord
normally furnishes these services to all tenants of the
Building, and at such temperatures and in such amounts as are
reasonably considered by Landlord to be standard; (iii)
janitorial service to the Premises five nights a week except
on Holidays (Landlord reserves the right to xxxx Tenant
separately for extra janitorial service required for
non-standard installations) and such window washing as may
from time to time in Landlord's judgment be reasonably
required; (iv) elevators for ingress and egress to the floor
on which the Premises are located, in common with other
tenants, provided that Landlord may reasonably limit the
number of elevators to be in operation at times other than
during normal business hours and on holidays; (v) replacement
of Building-standard light bulbs and fluorescent tubes; and
(vi) electrical current during normal business hours other
than for equipment whose electrical energy consumption
exceeds normal office usage, Landlord agrees that the
electrical energy consumption needs depicted on Tenant's
Final Plans does not exceed normal office usage. Landlord
shall maintain the common areas of the Building first quality
condition (Tenant agrees that the Building is in first
quality condition as of the Commencement Date), except for
damage occasioned by Tenant, or its employees, agents or
invitees. Landlord and Tenant disclaim all implied warranties
that the premises are suitable for Tenant's intended
commercial use. If Tenant desires any of the services
specified in this Section 7a. at any time other than times
herein designated (or as specified as normal business hours
in rules and regulations attached hereto), Landlord shall use
reasonable efforts to supply such services to Tenant upon the
written request of Tenant delivered to Landlord before 3:00
p.m. on the business day for which such extra usage is
requested, or before 3:00 p.m. on Fridays for weekend use and
3:00 p.m. on the last business day before Holiday use. Within
ten (10) days after Landlord has delivered an invoice
therefor, Tenant shall pay to Landlord the actual cost
incurred by Landlord for such services.
b. EXCESS UTILITY USE. If Tenant's requirements for
or consumption of electricity exceed the electricity to be
provided by Landlord as described in Section 7a.,
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Landlord shall, at Tenant's expense, make reasonable efforts
to supply such service through the then-existing feeders and
risers serving the Building and the Premises, and Tenant
shall pay to Landlord the cost of such service within ten
(10) days after Landlord has delivered to Tenant an invoice
therefor. Tenant shall not install any electrical equipment
requiring special wiring or requiring voltage in excess of
110 volts or otherwise exceeding Building capacity unless
approved in advance by Landlord. The use of electricity in
the Premises shall not exceed the capacity of existing
feeders and risers to or wiring in the Premises. Any riders
or wiring required to meet Tenant's excess electrical
requirements shall, upon Tenant's written request, be
installed by landlord, at Tenant's cost, if, in Landlord's
sole and absolute judgment, the same are necessary and shall
not cause permanent damage or injury to the Building or the
Premises, cause or create a dangerous or hazardous condition,
entail excessive or unreasonable alterations, repairs, or
expenses, or interfere with or disturb other tenants of the
Building. If Tenant uses machines or equipment in the
Premises which require additional air conditioning capacity
above that provided by the Building standard system, Tenant
shall pay the costs of additional air conditioning
installation and operating costs.
c. DISCONTINUANCE. Landlord's obligation to
furnish utility services under Section 7a. shall be subject
to the rules and regulations of the supplier of such services
and governmental rules and regulations.
d. RESTORATION OF SERVICES; ABATEMENT. Landlord shall
use reasonable efforts to restore any service that becomes
unavailable; however, such unavailability shall not render
Landlord liable for any damages caused thereby, be a
constructive eviction of Tenant, constitute a breach of any
implied warranty, or entitle Tenant to any abatement of
Tenant's obligations hereunder, including but not limited to
Tenant's obligation to pay Rent.
e. Since Suite 170 may experience differential
shifting, Landlord agrees that any cosmetic repairs required
due to shifting will be made by Landlord throughout the Term
of the Lease.
IMPROVEMENTS;
ALTERATIONS;
REPAIRS; 8. a. IMPROVEMENTS; ALTERATIONS. Except as otherwise
specified in this Lease or in any Exhibit hereto,
improvements to the Premises shall be installed at the
expense of Tenant only in accordance with plans and
specifications which have been previously submitted to and
MAINTENANCE approved in writing by Landlord. After the
initial Tenant improvements are made (if any), no alterations
or physical additions in or to the Premises may be made
without Landlord's prior written consent. Tenant shall not
paint or install lighting or decorations, signs, window or
door lettering, or advertising media of any type on or about
the Premises that is visible to the
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common areas of the Building without the prior written
consent of Landlord. All alterations, additions, or
improvements, (whether temporary or permanent in character,
and including without limitation all air-conditioning
equipment and all other equipment that is in any ;manner
connected to the Building's plumbing system) made in or upon
the Premises either by Landlord or Tenant, shall be
Landlord's property at the end of the Term and shall remain
on the Premises without compensation to Tenant; provided,
however, that if Tenant is not then in default hereunder and
Tenant repairs any damage caused by such removal, Tenant may
remove its trade fixtures at the end of the Term. Approval by
Landlord of any of Tenant's drawing and plans and
specifications prepared in connection with any improvements
in the Premises shall not constitute a representation or
warranty of Landlord as to the adequacy or sufficiency of
such drawings, plans and specifications, or the improvements
to which they relate, for any use, purpose, or condition, but
such approval shall merely be the consent of Landlord as
required hereunder. To the best of Landlord's actual
knowledge, the Building is substantially in compliance with
applicable local, state and federal laws, rules, regulations
and decrees.
b. REPAIRS; MAINTENANCE. Tenant shall maintain the
Premises in a clean, safe, operable, attractive condition,
and shall not permit or allow to remain any waste or damage
to any portion of the Premises. Landlord shall, at its own
expense (but subject to Landlord's right to reimbursement for
maintenance expenses constituting Operating Expenses),
maintain the exterior walls and the structure, electrical,
plumbing and mechanical systems of the Building provided that
Tenant shall repair or replace, subject to Landlord's
direction and supervision, any damage to the Building or any
of its systems caused by Tenant or Tenant's agents,
contractors, or invitees. If Tenant fails to make such
repairs or replacements within thirty (30) days after the
occurrence of such damage or if such damage cannot be
repaired within such thirty (30) day period for non-monetary
reasons only, if Tenant does not commence to make such
repairs and thereafter diligently prosecute such repairs
within such thirty (30) day period, then Landlord may make
the same at Tenant's cost. Such cost shall be limited to only
reasonable cost, but which may include an additional fee
equal to 15% of the cost for Landlord's overhead expense if
Landlord serves as the general contractor on such repair, and
shall be payable to Landlord within ten (10) days after
Landlord has delivered to Tenant an invoice therefor.
c. PERFORMANCE OF WORK. All work described in this
Section 8 shall be performed only by Landlord or by
contractors and subcontractors approved in writing by
Landlord. Tenant shall cause all contractors and
subcontractors to procure and maintain insurance coverage
against such risks, in such amounts, and with such companies
as Landlord may reasonably require. In addition, for
contracts for work with a cost of more than $20,000.00, at
Landlord's request,
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Tenant shall cause all contractors and subcontractors to
procure payment and performance bonds reasonably satisfactory
to Landlord covering the cost of the work. All such work
shall be performed in accordance with all legal requirements
and in a good and workmanlike manner so as not to damage the
Premises, the primary structure or structural qualities of
the Building, or plumbing, electrical lines, or other utility
transmission facility.
d. MECHANIC'S LIENS. Tenant shall not permit any
mechanic's liens to be filed against the Premises or the
Building for any work performed, materials furnished, or
obligation incurred by or at the request of Tenant. If such a
lien is filed, then Tenant shall, within ten (10) days after
Landlord has delivered notice of the filing to Tenant, either
pay the amount of the lien or diligently contest such lien
and deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant elects to contest such
lien and if a statutory proceeding exists for the release of
the lien by the posting of a bond, Tenant shall immediately
proceed to obtain a release of said lien in accordance with
such statute. If Tenant fails either to timely pay the lien
amount or diligently contest such lien and deliver the
required bond or security, then Landlord may pay the lien
claim without inquiry as to the validity thereof, and any
amounts so paid, including expenses and interest, shall be
paid by Tenant to Landlord within ten (10) days after
Landlord has delivered to Tenant an invoice therefor. Nothing
contained in this Lease will be deemed the consent or
agreement of Landlord, nor shall Tenant be deemed to have any
authority, to subject Landlord's interest in the Premises or
the Building to the imposition of any lien, or otherwise to
liability, under any mechanics' or other lien law.
USE 9. a. PERMITTED USE / COMPLIANCE WITH LAWS. Tenant
shall continuously occupy and use the Premises only for the
Permitted Use and shall comply with all laws, orders, rules,
and regulations relating to the use, condition, and occupancy
of the Premises. Landlord covenants that it will comply with
all laws, rules, regulations, ordinances and decrees of
local, state or federal authorities applicable to the
Building as a whole. Tenant shall comply with any direction
of any governmental authority having jurisdiction over the
Premises, which shall by reason of the nature of Tenant's use
or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or the occupancy
thereof. Tenant shall not do or permit anything to be done
which would invalidate or increase the cost of any fire,
extended coverage, or any other insurance policy covering the
Building. Notwithstanding the foregoing and without limiting
the remedies of Landlord for a violation of the provisions of
this Section 9a., Tenant shall promptly, upon demand
reimburse Landlord for the full amount of any additional
premium charged for such policy by reason of Tenant's failure
to comply with the provisions of this Section 9a. Tenant
shall not in any way obstruct or interfere with the rights or
other
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tenants or occupants of the Building, or use or allow the
Premises to be used for any improper, immoral or
objectionable purpose nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises.
b. HAZARDOUS MATERIALS. The Premises shall not be
used for any use which is disreputable or creates
extraordinary fire hazards or results in an increased rate of
insurance on the Building or its contents or the storage of
any Hazardous Materials (as defined below). Without limiting
the foregoing, Tenant shall not cause or permit any Hazardous
Material to be brought upon, kept or used in or about the
Premises or Building or Appurtenant Facilities or the Land by
Tenant, its employees, agents, contractors or invitees. As
used herein, the term "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste, including
but not limited to, those substances, materials and wastes
now or hereafter listed in the United States Department of
Transportation Hazardous Materials Table or by the
Environmental Protection Agency as hazardous substances, or
such substances, materials and wastes that are or become
regulated under any applicable federal, state or local law,
exclusive of solvents and chemicals customarily used and
consumed in an office building. Tenant expressly covenants
that Tenant will advise Landlord immediately upon learning
that any Hazardous Material has been brought upon the
Premises or Building or Appurtenant Facilities or the Land,
whether or not caused or permitted by Tenant and regardless
of who shall have brought such Hazardous Materials thereon.
If Tenant permits any Hazardous Material to be brought upon,
kept or used in or about the Premises or Building or
Appurtenant Facilities or the Land, then Tenant shall take
all steps reasonably necessary to safeguard against their
discharge and Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses,
including but not limited to, diminution in value of the
Premises or Building or Appurtenant Facilities or the Land,
damages for loss or restriction on use of rentable or usable
space or of any amenity in the Premises or Building or
Appurtenant Facilities or the Land, damages arising from any
adverse impact on marketing of the Premises or Building or
Appurtenant Facilities or the land, and sums paid in
settlement of claims, attorneys' fees, consulting fees and
expert fees, which arise during or after the Term as a result
of such contamination. This indemnification of Landlord by
Tenant includes but is not limited to costs incurred in
connection with any investigation of sight conditions or
clean-up, remedial removal or restoration work required by
any federal, state or local government agency or political
subdivision because of Hazardous Material present in the
Premises or Building or Appurtenant Facilities or the Land,
or the soil or ground water on which the Building is located.
Without limiting the foregoing, if the presence of any
Hazardous Material on the Premises or Building or Appurtenant
Facilities or the Land caused or permitted by Tenant results
in any contamination of the Premises or Building or
Appurtenant Facilities or the Land, Tenant shall, upon
request by Landlord, promptly take all
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actions at its sole expense that are necessary to return the
Premises or Building or Appurtenant Facilities or the Land to
the condition existing prior to the introduction or exposure
of any Hazardous Material in the Premises or Building or
Appurtenant Facilities or the Land. The indemnity provision
set forth in this Section 9b. shall survive termination or
expiration of this Lease.
ASSIGNMENT
AND
SUBLETTING 10. a. ASSIGNMENT OR SUBLEASE. Except as provided in
paragraph (e) below, without the prior written consent of
Landlord, which will not be unreasonable withheld or delayed,
Tenant shall not assign this Lease or sublet the Premises or
any part thereof. Any attempted assignment or sublease by
Tenant in violation of the terms and conditions of this
paragraph shall be void and of no effect. If Tenant desires
to assign this Lease or sublet the Premises or any part
thereof, Tenant shall deliver to Landlord written notice
thereof (together with all of the terms of the proposed
assignment or sublease, the identify of the proposed
transferee and sufficient financial information regarding the
proposed transferee to permit Landlord to evaluate the
creditworthiness thereof) at lease sixty (60) days in advance
of the date on which Tenant desires to make such assignment
or sublease. Landlord shall have thirty (30) days following
receipt of such notice and information within which to notify
Tenant in writing that Landlord elects either to (i) permit
Tenant to assign this Lease or sublet such space; or (ii)
refuse to consent to such assignment or sublease and to
continue this Lease in full force and effect as to the entire
Premises. If Landlord fails to notify Tenant of its election
within such thirty (30) day period, Landlord shall be deemed
to have elected option (ii) above. Anything to the contrary
notwithstanding, Tenant shall have the right to assign or
sublease the Premises to any legal entity which is a wholly
owned subsidiary, or an affiliate, a successor corporation or
legal entity or which is the surviving entity following a
merger, consolidation or reorganization of its form of
organization (a "Permitted Assignee") without prior consent
of the Landlord, but with thirty (30) days prior written
notice to Landlord so long as such Permitted Assignee assumes
the obligations of Tenant hereunder and Tenant either agrees
to remain liable hereunder or, if Tenant seeks to be released
of its obligations hereunder, provides evidence at the time
it notifies Landlord of its intent to assign or sublet the
Premises that the Permitted Assignee is of equal or greater
creditworthiness.
b. CONSENT. The consent by Landlord to a particular
assignment or sublease shall not be deemed consent to any
other assignment or sublease. If Landlord consents to a
proposed assignment or sublease, then the proposed transferee
shall deliver to Landlord a written agreement whereby it
expressly assumes the Tenant's obligations hereunder;
however, any transferee of less than all of the space in the
Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the
assignment of sublease, and only to the extent of the rent it
has agreed to pay Tenant therefor.
c. ADDITIONAL COMPENSATION. Tenant shall pay
Landlord, immediately upon
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receipt thereof, all compensation received by Tenant for an
assignment or sublease that exceeds the Rent allocable to the
portion of the Premises covered thereby.
d. CONTINUED LIABILITY. Tenant shall, despite any
permitted assignment or sublease, remain directly and
primarily liable for the performance of all of the covenants,
duties, and obligations of Tenant hereunder, and Landlord
shall be permitted to enforce the provisions of this Lease
against Tenant or any assignee or sublessee without demand
upon or proceeding in any way against any other person.
e. TRANSFER OF CONTROLLING INTEREST. So long as
Tenant is a privately held corporation (and except with
respect to: (i) a sublease or assignment to a Permitted
Assignee; or (ii) in connection with (a) an offering of
securities made pursuant to exemption from registration under
federal or state securities laws and rules; (b) an offering
of securities registered in compliance with federal or state
securities law; (c) entry into voting trust or similar
covenants or agreements executed in connection with loan or
other venture capital arrangements or as a result of the
exercise of rights or remedies of the holders or
beneficiaries of such securities, covenants or agreements).,
any change in a majority of the voting rights or other
controlling rights or interests of Tenant shall be deemed an
assignment for the purposes hereof. If Tenant should become a
public company, the shares of which are traded on a
recognized stock exchange in the United States or automated
quotation dealer system or that is required to register its
stock with the United States Securities and Exchange
Commission under Section 12(g) of the Securities and Exchange
Act of 1934, this provision 10e shall no longer be effective.
INSURANCE;
WAIVERS;
SUBROGATION
INDEMNITY. 11. a. INSURANCE. Tenant shall at its expense procure
and maintain throughout the Term the following insurance
policies; (i) comprehensive general liability insurance in
amounts of not less than a combined single limit of
$1,000,000.00 or such other amounts as Landlord may from time
to time (but not more frequently then once per calendar year
and by notice given at least ninety (90) days prior to an
anniversary of the Commencement Date) reasonably require,
insuring Tenant, Landlord, and Landlord's agents against all
liability for injury to or death of a person or persons or
damage to property arising from the use and occupancy of the
Premises, Building, Appurtenant Facilities or Land, and which
shall name Landlord as an additional insured, (ii)
contractual liability insurance coverage in amounts of not
less than a combined single limit of $1,000,000.00 or such
other amounts as Landlord may from time to time reasonably
require to cover Tenant's indemnity obligations hereunder,
(iii) if Tenant operates owned, leased, hired or non-owned
vehicles on the Premises, comprehensive automobile liability
insurance at a limit of liability not less than $1,000,000.00
combined bodily injury and property damages, (iv) insurance
covering the full value of Tenant's property and
improvements, and other property (including property
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of others), in the Premises, and (v) workers compensation
insurance with an endorsement to waive subrogation in favor
of Landlord. Tenant's insurance shall provide primary
coverage to landlord when any policy issued to Landlord
provides duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over Tenant's
policy. Tenant shall furnish certificates of such insurance
(including all endorsements) and such other evidence
satisfactory to Landlord of the maintenance of all insurance
coverage required hereunder, and Tenant shall obtain a
written obligation on the part of each insurance company to
notify Landlord at least 30 days before cancellation or a
material change of any such insurance. All such insurance
policies shall be in form, and issued by companies licensed
in the State of Texas and rated not lower than A-, Class X,
by Best's rating service. Tenant may carry such insurance
under a blanket policy, provided such insurance has a
landlord's protective liability endorsement attached thereto.
If Tenant fails to procure and maintain said insurance,
Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant. No policy shall
be cancelable or subject to reduction of coverage except
after thirty (30) days prior written notice to Landlord.
b. WAIVER; NO SUBROGATION. LANDLORD SHALL NOT BE
LIABLE TO TENANT OR THOSE CLAIMING BY, THROUGH, OR UNDER
TENANT FOR ANY INJURY TO OR DEATH OF ANY PERSON OR PERSONS OR
THE DAMAGE TO OR THEFT, DESTRUCTION, LOSS, OR LOSS OF USE OF
ANY PROPERTY (A "LOSS") CAUSED BY CASUALTY, THEFT, FIRE, OR
THIRD PARTIES, OR BY ANY OTHER MATTER BEYOND THE REASONABLE
CONTROL OF LANDLORD, OR FOR ANY INJURY OR DAMAGE OR
INCONVENIENCE WHICH MAY ARISE THROUGH REPAIR OR ALTERATION OF
ANY PART OF THE BUILDING, OR FAILURE TO MAKE REPAIRS, OR FROM
ANY OTHER CAUSE, EXCEPT IF SUCH LOSS IS CAUSED BY LANDLORD'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TENANT WAIVES ANY
CLAIM IT MIGHT HAVE AGAINST LANDLORD FOR ANY DAMAGE TO OR
THEFT, DESTRUCTION, LOSS, OR LOSS OF USE OF ANY PROPERTY, TO
THE EXTENT THE SAME IS INSURED AGAINST UNDER ANY INSURANCE
POLICY THAT COVERS THE BUILDING, THE PREMISES, LANDLORD'S OR
TENANT FIXTURES, PERSONAL PROPERTY, LEASEHOLD IMPROVEMENTS,
OR BUSINESS, OR IS REQUIRED TO BE INSURED AGAINST UNDER THE
TERMS HEREOF, REGARDLESS OF WHETHER THE NEGLIGENCE OR FAULT
OF THE OTHER PARTY CAUSED SUCH LOSS. Landlord and Tenant
shall cause their property and casualty insurance carrier to
endorse all applicable policies waiving the carrier's rights
of recovery under subrogation or otherwise against the other.
c. INDEMNITY. Subject to Section 11b., Tenant shall
defend, indemnify, and hold harmless Landlord and its agents
from and against all claims, demands, liabilities, causes of
action, suits, judgments, and expenses (including attorney's
fees) for any Loss arising from any occurrence on the
Premises, Building, Appurtenant Facilities or Land, or from
Tenant's failure to perform its obligations under this Lease
(other than a Loss arising from the sole or gross negligence
of Landlord or its agents), even though caused or alleged to
be
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caused by the joint, comparative, or concurrent negligence or
fault of Landlord or its agents, and even though any such
claim, cause of action, or suit is based upon or alleged to
be based upon the strict liability of Landlord or its agents.
This indemnity provision is intended to indemnify Landlord
and its agents against the consequences of their own
negligence or fault as provided above when Landlord or its
agents are jointly, comparatively, or concurrently negligent
with Tenant. This indemnity provision shall survive
termination or expiration of this Lease. The indemnity
obligations in this paragraph 11(c) are limited to the extent
of the greater of (i) the coverage and dollar limits of
insurance which Tenant has obtained or (ii) the coverage and
dollar limits of insurance which Tenant is obligated to
obtain pursuant to the provisions of this Lease.
SUBORDINATION
ATTORNMENT;
NOTICE TO 12. a. SUBORDINATION. This Lease shall be and is hereby
made subordinate to any deed of trust, mortgage, or other
security instrument (a "Mortgage"), or any ground lease,
master lease, LANDLORD'S or primary lease (a "Primary
Lease"), that now or hereafter covers all or any part of the
MORTGAGEE Premises (the mortgagee under any Mortgage or the
lessor under any Primary Lease is referred to herein as
"Landlord's Mortgagee").
b. ATTORNMENT. Tenant shall attorn to any party
succeeding to Landlord's interest in the Premises, whether by
purchase, foreclosure, deed in lieu of foreclosure, power of
sale, termination of lease, or otherwise, upon such party's
request, and shall execute such agreements confirming such
Attornment as such party may reasonably request provided that
in such agreement the succeeding party agrees not to disturb
Tenant's right to possession of the Premises so long as
Tenant is not in default hereunder. In the event of such
request upon Tenant's Attornment as aforesaid, Tenant will
automatically become the tenant of the successor to
Landlord's interest without change in the terms or provisions
of this Lease; provided, however, that such successor to
Landlord's interest shall not be bound by (a) any payment of
Rent for more than one month in advance (except prepayments
for security deposits, if any), (b) any amendments or
modifications of this Lease made without the prior written
consent of Landlord's Mortgagee if Tenant was advised of the
interest of the same, or (c) any credits, offsets, defenses
or claims which Tenant may have against Landlord.
c. NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not
seek to enforce any remedy it may have for any default on the
part of the Landlord without first giving written notice by
certified mail, return receipt requested, specifying the
default in reasonable detail, to any Landlord's Mortgagee
whose address has been given to Tenant, and affording such
Landlord's Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
d. CERTIFICATES REQUESTED BY LANDLORD'S MORTGAGEE.
From time to time, Tenant shall furnish to any Landlord's
Mortgagee, within 10 days after a request therefor, such
estoppel certificates, non-disturbance and attornment
agreements, or other certificates as Landlord's Mortgagee may
reasonably request, so long as the same are accurate.
RULES AND
REGULATIONS 13. Tenant shall comply with the rules and regulations of
the Building which are attached hereto as Exhibit b. Landlord
may, from time to time, change such rules and regulations for
the safety, care, or cleanliness of the Building and related
facilities, provided that such changes are generally
applicable to all tenants of the Building and will not
unreasonably interfere with Tenant's use of the Premises.
Tenant shall be responsible for the compliance with such
rules and regulations by its employees, agents, and invitees.
Landlord shall not be responsible to Tenant for the failure
or refusal by any tenant or other
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person in the Building or Appurtenant Facilities to comply
with the rules and regulations established by Landlord.
CONDEMNATION
14. If all or substantially all of the Premises and/or
parking area shall be taken by condemnation or conveyed in
lieu thereof (hereafter for the purposes of this provision, a
"taking"), this Lease shall terminate as of the date
possession is taken by the condemning authority and all rent
and other charges payable by Tenant shall be prorated as of
such date. All compensation paid for such taking (other than
amounts specifically paid for Tenant's leasehold
improvements) shall be the property of Landlord. Any amounts
specifically awarded for Tenant's leasehold improvements
shall be Tenant's property. If a portion of the Premises
and/or parking area is taken, but Tenant is still able,
reasonably, to use the remainder for the purposes for which
the same is leased pursuant to this Lease, then this Lease
shall remain in full force and effect, but rent shall be
equitably adjusted based upon the portion of the Premises
taken and the loss of utility thereof. If such a substantial
portion of the Premises and/or parking area is taken such
that Tenant may not reasonably use the Premises for the
purposes for which they are leased, then this Lease shall
terminate as provided above. For the purposes of this
paragraph, Landlord and Tenant agree that (i) a taking of
12.5% or more of the Premises or (ii) a taking which results
in a 12.5% or more reduction in the number of parking spaces
which Landlord can provide to Tenant on the Land or in close
proximity to the Land, will result in Tenant not being able
to reasonably use the Premises for the purposes for which
they are leased.
FIRE OR 15. a. REPAIR ESTIMATE. If the Premises or the Building
OTHER are damaged by fire or other casualty (a "Casualty"),
Landlord shall, within thirty (30) days after such Casualty,
deliver CASUALTY to Tenant a good faith estimate (the "Damage
Notice") of the time needed to repair the damage caused by
such Casualty (such estimate shall take into consideration
the estimated time to resolve any insurance claim and to
obtain the approval of Landlord's Mortgagee to the
application of insurance proceeds to the reconstruction of
the Building and Premises) and whether Landlord has
alternative space that might be occupied by Tenant during
reconstruction.
b. LANDLORD'S AND TENANT'S RIGHTS. If a material portion of
the Premises or the Building are damaged by Casualty such
that Tenant is prevented from conducting its business in the
Premises in a manner reasonably comparable to that conducted
immediately before such Casualty, the Damage Notice which the
Landlord delivers to Tenant shall include the Landlord's
statement that either (a) the Lease is terminated if, in
Landlord's judgment, any one or more of the following is
true: (i) the damage cannot be repaired within 180 days after
the date of the casualty, (ii) the expected insurance
settlement, together with other money the Landlord is willing
to commit to the rebuilding is insufficient to accomplish the
restoration of the building, or (iii) the Landlord's
mortgagee is unwilling to permit Landlord to use the
insurance proceeds for the restoration and the Landlord is
unwilling or unable to provide other funds for that purpose,
or (b) Landlord intends to continue the Lease if one or more
of the
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following is true: (i) Landlord has alternate space within
the building sufficient to provide for the Tenant's needs and
agrees that Tenant can occupy this space for the longer of
the time required for restoration or the balance of the then
term or renewal term of this Lease; or (ii) the repairs can
reasonably be expected to be accomplished within 180 days
after the date of the casualty based on the estimate of a
reputable contractor , the Landlord has received reasonable
assurance from its insurance carrier that the casualty claim
will be timely processed for payment and either Landlord's
mortgagee has agreed to the application of the insurance
proceeds to the restoration of the building or Landlord has
other funds available . Within fifteen days of the Damage
Notice Tenant may terminate the Lease only if; (i) as to a
Landlord notice described in b(ii) above, Tenant reasonably
believes the repairs cannot be completed within 180 days
after the date of the Casualty, or (ii) as to a Landlord
notice described in b(i) above, Tenant has reasonably
concluded that the alternate space is not reasonably
acceptable to Tenant. If the Lease is terminated, the rent
and other charges shall be abated as of the date of the
Casualty. If alternate space is to be provided, the rental
for same should be equitably adjusted and paid in lieu of
rent on the Premises.
c. REPAIR OBLIGATION. If neither party elects to
terminate this Lease following a Casualty, then Landlord
shall, within a reasonable time after such Casualty, commence
to repair the Building and the Premises and shall proceed
with reasonable diligence to restore the Building and
Premises to substantially the same condition as they existed
immediately before such Casualty; however, Landlord shall not
be required to repair or replace any part of the furniture,
equipment, fixtures, and other improvements which may have
been placed by, or at the request of, Tenant or other
occupants in the Building or the Premises, and Landlord's
obligation to repair or restore the Building or Premises
shall be limited to the extent of the insurance proceeds
actually received by Landlord for the Casualty in question.
TAXES 16. Tenant shall be liable for all taxes levied and assessed
against personal property, furniture, or fixtures, or above
Building standard tenant improvements, placed by Tenant in
the Premises following the work to be performed pursuant to
Tenant's Final Plans attached, and all taxes relating to the
operation of Tenant's business in the Premises including,
without limitation, all withholding taxes and sales and use
taxes. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord
elects to pay the same, or if the assessed value of
Landlord's property is increased by inclusion of such
personal property, furniture or fixtures, or above Building
standard tenant improvements, and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to
Landlord, upon demand, that part of such taxes for which
Tenant is primarily liable hereunder.
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EVENTS OF
DEFAULT 17. Each of the following occurrences shall constitute an
"Event of Default":
a. Tenant's failure to pay Rent to Landlord under
the Lease when due; provided that Landlord shall not exercise
any remedies with respect to such Event of Default unless the
same remains uncured for a period of five (5) days after
Landlord has delivered written notice thereof; provided
further, however, that Landlord may exercise any such
remedies without any obligation of Landlord to give any
notice if Landlord has given Tenant written notice under this
Section 17a. on more than two (2) occasions during the
12-month interval preceding such failure by Tenant;
b. Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant under
this Lease; provided that Landlord shall not exercise any
remedies with respect to such Event of Default unless the
same remains uncured for a period of twenty (20) days after
Landlord delivers to Tenant written notice thereof or, if
such non-monetary default is of a type that cannot be cured
within such twenty (20) day period, and Tenant fails to
commence to cure such default within such twenty (20) day
period and thereafter diligently prosecute the cure of such
default;
c. The filing of a petition by or against Tenant
(the term "Tenant" shall include, for the purpose of this
Section 17c, any guarantor of the Tenant's obligations
hereunder) (i) in any bankruptcy or other insolvency
proceeding; (ii) seeking any relief under any state or
federal debtor relief law; (iii) for the appointment of a
liquidator or receiver for all or substantially all of
Tenant's property or for Tenant's interest in this Lease; or
(iv) for the reorganization or modification of Tenant's
capital structure; provided, however, if such petition is
filed against Tenant, then such filing shall not be an Event
of Default unless Tenant fails to have the proceedings
initiated by such petition dismissed within sixty (60) days
after the filing thereof; and provided further, however, that
an event described in this Section 17c. shall not constitute
an Event of Default if applicable law provides that such
event cannot be the basis of default hereunder;
d. Tenant shall vacate or abandon any portion of the
Premises and discontinue the payment of Basic Rental therefor;
e. The admission by Tenant that it cannot meet its
obligations as they become due or the making by Tenant of an
assignment for the benefit of its creditors; or
f. Any representation or warranty made by Tenant, or
made by any guarantor of Tenant's obligations hereunder, was
materially false or inaccurate when made.
REMEDIES 18. Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or
by law or equity, take any of the following actions:
a. Terminate this Lease by giving Tenant written
notice thereof, in which event,
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Tenant shall pay to Landlord the sum of (i) all Rent accrued
hereunder through the date of termination, (ii) all amounts
due under Section 19a., and (iii) an amount equal to (a) the
total Rent that Tenant would have been required to pay for
the remainder of the Term discounted to present value at a
per annum rate equal to the "Prime Rate" as published on the
date this Lease is terminated by The Wall Street Journal in
its listing of "Money Rates", minus (b) the then present fair
rental value of the Premises for such period, similarly
discounted; or
b. Terminate Tenant's right to possession of the
Premises without terminating this Lease by giving written
notice thereof to Tenant, in which event Tenant shall pay to
Landlord (i) all Rent and other amounts accrued hereunder to
the date of termination of possession, (ii) all amounts due
from time to time under Section 19a., and (iii) all Rent and
other sums required hereunder to be paid by Tenant during the
remainder of the Term, diminished by any net sums thereafter
received by Landlord through reletting the Premises during
such period. To the extent required by law, Landlord shall
use reasonable efforts to relet the Premises on such terms
and conditions as Landlord in its sole discretion may
determine (including a term different from the Term,
reasonable rental concessions, and reasonable alterations to,
and reasonable improvement of, the Premises); however,
Landlord shall not be obligated to relet or attempt to relet
the Premises before leasing other portions of the Building.
Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, Landlord's
failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any
consideration obtained by reletting over the Rent due
hereunder. Reentry by Landlord in the Premises shall not
affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring action against
Tenant to collect amounts due by Tenant, without the
necessity of Landlord's waiting until the expiration of the
Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this
Lease, all actions taken by Landlord to exclude or dispossess
Tenant of the Premises shall be deemed to be taken under this
Section 18b. If Landlord elects to proceed under this Section
18b., it may at any time elect to terminate this Lease under
Section 18a.
c. Additionally, unless otherwise required by
applicable law, Landlord may, without notice, enter upon the
Premises and alter locks or other security devices at the
Premises to deprive Tenant, its officers, employees, agents,
invitees, licensees and all other occupants, of access
thereto. If Landlord or its agent changes the door lock of
Tenant following a default in the payment of rent, Landlord
or its agent shall place a written notice on the Tenant's
front door stating the name and the address or telephone
number of the individual or company from which the new key
may be obtained. The new key is required to be provided only
during the Tenant's regular business hours and only if Tenant
pays the delinquent rent plus late fees.
PAYMENT BY
TENANT;
NON-WAIVER 19. a. PAYMENT BY TENANT. Upon any Event of Default,
Tenant shall pay to Landlord all costs incurred Landlord
(including court costs at all trial and appellate levels
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and reasonable attorneys' fees and expenses, regardless of
whether suit is filed) in (i) obtaining possession of the
Premises, (ii) removing and storing Tenant's or any other
occupant's property, (iii) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition
acceptable to a new tenant, (iv) if Tenant is dispossessed of
the Premises and this Lease is not terminated, reletting all
or any part of the Premises (including brokerage commissions,
cost of tenant finish work, and other costs incidental to
such reletting), (v) performing Tenant's obligations which
Tenant failed to perform, and (vi) enforcing, or obtaining
advice of, its rights, remedies, and recourses arising out of
the Event of Default.
b. NO WAIVER. Landlord's acceptance of Rent
following an Event of Default shall not waive Landlord's
rights regarding such Event of Default. No waiver by either
party of any violation or breach of any of the terms
contained herein shall waive either party's rights regarding
any future violation of such term or violation of any other
term.
LANDLORD'S LIEN 20. This paragraph is intentionally left blank.
SURRENDER OF
PREMISES 21. No act by Landlord shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless the same is
made in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located
thereon in good repair and condition, reasonable wear and
tear (and condemnation and fire or other casualty damage not
caused by Tenant, as to which Sections 14 and 15 shall
control) excepted, and shall deliver to Landlord all keys to
the Premises. Provided that Tenant has performed all of its
obligations hereunder, Tenant may remove all trade fixtures
and all unattached furniture and personal property placed in
the Premises by Tenant (but Tenant shall not remove any such
item which was paid for, in whole or in part, by Landlord),
and shall remove such alterations, additions, improvements,
trade fixtures, equipment, and furniture as Landlord may
request. Tenant shall repair all damage caused by such
removal. All items not so removed shall be deemed to have
been abandoned by Tenant and may be appropriated, sold,
stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to
account for such items. The provisions of this Section 21
shall survive the end of the Term.
HOLDING OVER 22. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in
addition to all other damages and remedies to which Landlord
may be entitled for such holding over, Tenant shall pay, in
addition to the other Rent, a daily Basic Rental equal to the
greater of (a) 150% of the daily Basic Rental payable during
the last month of the Term, OR (b) the prevailing rental rate
in the Building for similar space. In the event of any
unauthorized holding over, Tenant shall be liable to Landlord
for all damages which Landlord suffers as a result thereof
and Tenant shall indemnify Landlord against all claims made
by any other tenant or prospective tenant against Landlord
resulting from delay by Landlord in delivering possession of
the Premises to such other tenant or prospective tenant.
CERTAIN RIGHTS
RESERVED BY
LANDLORD 23. Landlord shall have the following rights:
a. To decorate and to make inspections, repairs,
alterations, additions, changes, or improvements, whether
structural or otherwise, in and about the Building, or any
part thereof; for such purposes, to enter upon the Premises
and, during the continuance of any such work, to temporarily
close doors, entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend Building
services and facilities; and to change the arrangement and
location of entrances or passageways, doors, and doorways,
corridors, elevators, stairs, restrooms, or other public
parts of the Building. In its exercise of its rights,
Landlord
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agrees to use reasonable efforts under the circumstances to
provide advance notice of the interruption of services and to
attempt to minimize the disruption of the operation of the
tenants of the Building. In connection with changing the
arrangement of entranceways, passageways and other common
areas of the Building, Landlord agrees not to materially
alter the Premises or the access thereto;
b. To take such reasonable measures as Landlord
deems advisable for the security of the Building and its
occupants, including without limitation searching all persons
entering or leaving the Building; evacuating the Building for
cause, suspected cause, or for drill purposes; temporarily
denying access to the Building; and closing the Building
after normal business hours and on Saturdays, Sundays, and
holidays, subject, however, to Tenant's right to enter when
the Building is closed after normal business hours under such
reasonable regulations as Landlord may prescribe from time to
time which may include by way of example, but not of
limitation, that persons entering or leaving the Building,
whether or not during normal business hours, identify
themselves to a security officer by registration or otherwise
and that such persons establish their right to enter or leave
the Building;
c. To change the name by which the Building is
designated; and
d. To enter the Premises at all reasonable hours to
inspect same to assure Tenant's compliance with its
obligations hereunder or show the Premises to prospective
purchasers, lenders, or tenants and to perform all services,
maintenance and repairs required to be performed by Landlord
hereunder.
e. At Tenant's request, Landlord will require any
janitorial service or prospective tenant for the Building or
proposed purchaser of the Building to execute a reasonable
confidentiality agreement agreeing not to disclose to any
third party trade secrets or intellectual property of Tenant
or medical information of patients obtained by means of
access to the Premises.
MISCELLANEOUS 24. a. LANDLORD TRANSFER. Landlord may transfer, in
whole or in part, the Building and any of its rights under
this Lease. If Landlord assigns its rights under this Lease,
then Landlord shall thereby be released from any further
obligations hereunder occurring after the date of such
transfer, provided that the assignee assumes Landlord's
obligations hereunder occurring after the date of such
transfer in writing except that such assignee shall not be
bound by, or assume any liability with respect to, (a) any
payment of Rent for more than one month in advance (except
prepayments for security deposits, if any), (b) any
amendments or modifications of this Lease made without the
prior written consent of Landlord's Mortgagee if Tenant was
advised on the interest of the same, or (c) any credits,
offsets, defenses or claims which Tenant may have against
Landlord.
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b. LANDLORD'S DEFAULT AND LIABILITY. If Landlord
fails to perform any of its obligations under this Lease,
Landlord shall not be in default hereunder and Tenant shall
not have any rights or remedies growing out of such failure
unless Tenant gives Landlord written notice thereof setting
forth in reasonable detail the nature and extent of such
failure and such failure by Landlord is not cured within a
thirty (30) day period following delivery of such notice or
such longer period provided elsewhere in this Lease. If such
failure cannot reasonably be cured within such thirty (30)
day period, the length of such period shall be extended for
the period reasonably required therefore if Landlord
commences curing such failure within such thirty (30) day
period and continues to take action to cure such failure with
reasonable diligence and continuity. The liability of
Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to Tenant's actual
direct, but not consequential, damages therefor and shall be
recoverable only from the interest of Landlord in the
Building and the Land, and Landlord shall not be personally
liable for any deficiency.
c. FORCE MAJEURE. Other than for Tenant's monetary
obligations under this Lease, whenever a period of time is
herein prescribed for action to be taken by either party
hereto, such party shall not be liable or responsible for,
and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of
God, shortages of labor or materials, war, governmental laws,
regulations, or restrictions, or any other causes of any kind
whatsoever which are beyond the control of such party. Any
elimination or shutting off of light, air, or view by any
structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease or impose any
liability on Landlord.
d. CRIMINAL ACTS OF THIRD PARTIES. Any security
guards or security services provided by Landlord for the
Building, Appurtenant Facilities or Land are provided for the
protection of Landlord's property. Tenant shall be
responsible for the protection of Tenant and Tenant's
employees, agents, contractors, invitees and licensees and
their property against criminal acts of third parties.
Landlord shall not be liable to Tenant or any other party for
criminal acts of third parties whether or not such acts are
foreseeable. Tenant shall contact the local police and rely
on the local police for protection against criminal acts.
e. BROKERAGE. Landlord and Tenant each warrant to
the other that it has not dealt with any broker or agent in
connection with the negotiation or execution of this Lease
other than the Broker (if any) and Landlord's property
manager. Tenant and Landlord shall each indemnify the other
against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by
any broker or agent other than the Broker (if any) and the
property manager claiming the same by, through, or under the
indemnifying party.
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f. ESTOPPEL CERTIFICATES. From time to time, Tenant
shall furnish to any party designated by Landlord, within ten
(10) days after Landlord has made a request therefor, a
certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease
as Landlord may reasonably request.
g. NOTICES. All notices and other communications
given pursuant to this Lease shall be in writing and shall be
(i) mailed by first class, United States Mail (or Canada
Mail, as appropriate), postage prepaid, certified, with
return receipt requested, and addressed to the parties hereto
at the address specified in the Basic Lease information, (ii)
hand delivered to the intended address, or (iii) sent by
prepaid telegram, cable, facsimile transmission, or telex
followed by a confirmatory letter. Notice sent by certified
mail, postage prepaid, shall be effective three (3) business
days after being deposited in the United States mail (or
Canada Mail, as appropriate); all other notices shall be
effective upon delivery to the address of the addressee. The
parties hereto may change their addresses by giving notice
thereof to the other in conformity with this provision.
h. SEVERABILITY. If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present or
future laws, then the remainder of this Lease shall not be
affected thereby and in lieu of such clause or provision,
there shall be added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be
legal, valid, and enforceable.
i. AMENDMENTS; AND BINDING EFFECT. This Lease
(including all Exhibits hereto) constitutes the entire
agreement between Landlord and Tenant and supersedes all
prior discussions and agreements of the parties relating to
the Premises and the Building. This Lease may not be amended
except by instrument in writing signed by Landlord and
Tenant. Whenever any approval or consent of the Landlord is
required, such approval or consent shall not be binding on
Landlord unless expressed in writing and executed by an
authorized representative of Landlord. No provision of this
Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord, and no custom
or practice which may evolve between the parties in the
administration of the terms hereof shall waive or diminish
the right of Landlord to insist upon the performance by
Tenant in strict accordance with the terms hereof. The terms
and conditions contained in this Lease shall inure to the
benefit of and be binding upon the parties hereto, and upon
their respective successors in interest and legal
representatives, except as otherwise herein expressly
provided. This Lease is for the sole benefit of Landlord and
Tenant, and, other than Landlord's Mortgagee, no third party
shall be deemed a third party beneficiary hereof.
j. QUIET ENJOYMENT. Provided Tenant has performed
all of the terms and conditions of this Lease to be performed
by Tenant, Tenant shall peaceably and quietly hold and enjoy
the Premises for the Term, without hindrance from Landlord or
any party claiming by, through, or under Landlord, subject to
the terms and conditions of this Lease.
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k. JOINT AND SEVERAL LIABILITY. If there is more
than one Tenant, then the obligations hereunder imposed upon
Tenant shall be joint and several. If there is a guarantor of
Tenant's obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord need
not first proceed against Tenant before proceeding against
such guarantor nor shall any such guarantor be released from
its guaranty for any reason whatsoever.
l. CAPTIONS. The captions contained in this Lease
are for convenience of reference only, and do not limit or
enlarge the terms and conditions of this Lease.
m. NO MERGER. There shall be no merger of the
leasehold estate hereby created with the fee estate in the
Premises or any part thereof if the same person acquires or
holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or
any interest in such fee estate.
n. NO OFFER. The submission of this Lease to Tenant
shall not be construed as an offer, nor shall Tenant have any
rights under this Lease unless Landlord executes a copy of
this Lease and delivers it to Tenant.
o. NO RIGHTS TO USE OF BUILDING NAME. Tenant shall
have no interest in, or rights to, the name of the Building.
Landlord will have the right, exercisable upon written notice
and without liability to any tenant, to change the name and
street address of the Building. Tenant shall not engage in
any advertising mentioning the Building without the prior
written consent of Landlord. Landlord shall have the right to
prohibit any advertising by Tenant mentioning the Building
that, in Landlord's opinion, tends to impair the reputation
of the Building or its desirability as a building for
offices, and upon written notice from Landlord, Tenant will
refrain from or discontinue such advertising. Tenant has the
option to use or refrain from using the name of the Building
on its stationery.
p. TIME OF ESSENCE. Except as provided in Section
24c. hereof, time is of the essence of this Lease and each
and all of its provisions in which performance is a factor.
q. AUTHORITY OF PARTIES. If Tenant is a corporation,
limited partnership, partnership, trust or other entity, each
person executing this Lease on behalf of said entity
represents and warrants to Landlord that such person is duly
authorized to execute and deliver this Lease on behalf of
said entity and that this Lease is binding upon said entity
in accordance with its terms.
r. GOVERNING LAW. This Lease shall be governed by
the laws of the state in which the Premises are located.
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s. EXHIBITS. All exhibits and attachments attached
hereto are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Building Rules and Regulations
Exhibit C - Workletter for Suite #300
Exhibit D - Parking Agreement
Exhibit E - Workletter for Suite #170
SPECIAL
PROVISIONS 25. a.RENEWAL OPTION: Tenant has two (2) option(s) (as to
each, an "Option") to renew and extend the Term of this Lease
for sixty (60) months each (the "Renewal Term"), which
Option(s) shall follow consecutively on the expiration of the
Term (or Renewal Term, as appropriate,) of this Lease,
provided that at the time that the Option to renew is
exercised, this Lease is in full force and effect, Tenant has
not vacated the Premises, and Tenant is not in default
hereunder. The Option shall be exercised by Tenant's giving
to Landlord written notice of its intention to renew and
extend the Term of this Lease at least six (6) months before
the expiration date of the initial Term (or Renewal Term, as
appropriate,) of this Lease. The renewal and extension of
this Lease for the Renewal Term shall be on and under the
same covenants, agreements, terms, provisions, and conditions
as are contained herein for the initial Term of this Lease,
including those providing for adjustments to the rent;
provided, however, that the Leasehold Improvements to be
provided by Landlord for the Renewal Term will be sufficient
to cover the costs of repainting and recarpeting the Premises
and provided, further, that the rent for the Renewal Term
shall be established as follows: on or before nine (9) months
prior to the expiration date of the initial Term (or Renewal
Term as appropriate) of this Lease, Tenant shall give
Landlord written notice of its preliminary intention to renew
and extend the Term of this Lease. The parties shall attempt
to reach agreement on the rental, which is to be 95% of the
market rental for new leases in comparable buildings in the
I-10 corridor in suburban San Antonio, Texas for the Renewal
Term for which the option is being exercised (the "Renewal
Rental"). If the parties agree on the Renewal Rental, Tenant
must give written notice of the exercise of its right to
renew the Term of this Lease on or before six months prior to
the expiration of the prior Term or Renewal Term as
applicable. If the parties are unable to reach agreement as
to the rental for the applicable Renewal Term within thirty
(30) days after Tenant's preliminary notice of its intention
to renew the Term of the Lease, each party shall appoint and
pay the fees and expense for the services of a licensed real
estate broker who specializes in office leasing in the San
Antonio, Texas market of buildings of comparable type, size
and quality and who has at least two (2) years of experience
in the local market. The two (2) brokers selected shall
attempt to reach agreement acceptable to Landlord and Tenant
as to an amount equal to 95% of the market rental for the
space taking into account leases in buildings of comparable
type, size and quality including leases made within the
Building within the prior year. Should such leasing agents
fail to reach agreement, the parties shall have the option of
attempting to mediate the dispute. In the event of the
exercise of renewal option, the Base Year for purposes of
determining the amount of Operating Expense Reimbursement
shall be adjusted to be the first year of the Renewal Term
for which the option is then being exercised Any assignment
or subletting by Tenant in violation or breach of Section 10
of this Lease shall terminate the Option(s) of Tenant set
forth herein.
Any termination of this Lease during the initial Term or
Renewal Term shall terminate any further rights of renewal
and extension set forth in this provision.
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At any time during the forty-five (45)-day period immediately
preceding the date by which Tenant is required to exercise a
renewal Option, Tenant may request in writing a quote from
Landlord of the rent that will be applicable for the next
Renewal Term. Landlord shall respond to a timely written
request by providing Tenant a written quote of the rent
within five (5) business days after Landlord's receipt of
Tenant's request.
b. NON-DISTURBANCE: Landlord shall provide
non-disturbance and attornment agreements from all current
lenders and will work in good faith to provide such
agreements from any future lenders, all of such agreements to
be in form reasonably satisfactory to Tenant and the lender
in question. .
c. EXPANSION SPACE: Tenant shall have the option to
lease additional office space (the "First Expansion Option")
containing approximately 11,090 RSF on the first (1st) floor
of the Building (the "First Expansion Space") as more
particularly depicted on Exhibit "A" attached hereto as of
July 1, 1998. To exercise the First Expansion Option Tenant
shall give written notice to Landlord by December 31, 1997
and within seven (7) days of Landlord's delivery of an
amendment to the Lease documenting the leasing of the First
Expansion Space, Tenant shall return same fully executed to
Landlord. Such First Expansion Option shall provide Tenant
with the ability to lease all or a part of this area at
Tenant's sole discretion, but in no event less than 5,000 RSF
and subject to fire and Building code restrictions and so
long as the remaining space not leased by Tenant under this
option is left in a relettable condition, in Landlord's
reasonable discretion.
Tenant shall have the option to lease additional office space
(the "Second Expansion Option") out of the area of the
Building containing approximately 18,937 RSF on the second
(2nd) floor of the Building (the "Second Expansion Space") as
more particularly depicted on Exhibit "A" attached hereto as
of October 1, 1998. The Second Expansion Option shall only be
effective in the event the tenant currently occupying the
Second Expansion Space as of the date of this Lease (E-Med)
its affiliates, subsidiaries or successor in interest,
vacates or reduces the office space it presently occupies. In
the event said space is made available at that time, Tenant
may exercise the Second Expansion Option by providing written
notice to Landlord by March 31, 1998 and within seven (7)
days of Landlord's delivery of an amendment to the Lease
documenting the leasing of the Second Expansion Space, Tenant
shall return same fully executed. Such Second Expansion
Option shall provide Tenant with the ability to lease this
entire area at Tenant's sole discretion, but in no event less
than 3,000 RSF and subject to fire and Building code
restrictions and so long as the remaining space not leased by
Tenant under this option is left in a relettable
configuration, in Landlord's reasonable discretion. Landlord
shall deliver said amendment to Lease to Tenant for execution
only in the event such Second Expansion Space becomes
available. In the event Second Expansion Space does not
become available, Landlord shall inform Tenant within ten
(10) days of such event, and shall agree
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to work in good faith with Tenant to find additional office
space elsewhere in the Building to meet Tenant's space
requirements.
Landlord shall not be liable for any damages resulting from
the unauthorized holding over of any existing tenant of
either such expansion space and any such spaces leased shall
be leased at the market rate for new leases in comparable
buildings. All expansion space shall be leased with
additional surface parking in a ratio of one (1) space for
every additional 300 RSF leased.
If Tenant exercises an option or options to lease additional
office space as provided in this paragraph: (i) Tenants
Proportionate Share will be adjusted to reflect the
additional space being leased by Tenant (ii) the lease terms
for the additional space will be coterminous with the Term of
this Lease (iii) the Leasehold Improvements allowance of
$9.94 per square foot will be adjusted to reflect the shorter
lease term for the additional space and (iv) the Basic Rental
for the additional space will be 95% of the market rental for
new leases in comparable buildings in the I-10 corridor in
San Antonio, Texas for comparable lease terms.
d. NOTICE OF AVAILABILITY. Landlord shall provide Tenant
with a Notice of Availability indicating the RSF of each
space in the Building (other than the expansion spaces) as
they become available for leasing, provided no other tenant
has a preferential right to lease such space. The purpose of
this Notice of Availability is to merely provide Tenant with
a means to plan for Tenant's anticipated office space needs
and shall in no way be deemed to provide Tenant a right of
first refusal to lease any such areas and Landlord shall at
all times retain the right to enter into a lease with any
tenant for any such space.
e. EXTERIOR SIGNAGE: Tenant shall have the right, at its
sole cost and expense, to install exterior signage on the
Building in the approximate location formerly occupied by
Datarace, Inc.. Landlord shall have the right to approve all
aspects of such signage to include, but not be limited to,
specific location, size, materials, orientation, color, style
and method of installation. Tenant shall also have the
obligation to maintain said signage throughout the Term of
the Lease in a manner acceptable to Landlord. Tenant shall
remove such signage and return the site to its original
condition at Tenant's sole cost and expense within fourteen
(14) days of Tenant's vacating of the Premises.
f. TEMPORARY PREMISES: Effective upon the full execution
of this Lease, Tenant shall have the right to use and occupy
approximately 3,250 RSF of the Premises (the "Temporary
Premises") on the third (3rd) floor of the Building in the
location indicated on Exhibit "A" until the Commencement Date
referenced in Section 3 of the Lease. All of the provisions
of this Lease shall be in full force and effect, except that
the Temporary Premises shall be leased on a rent free basis
and the Term of the Lease shall be extended to include the
number of days Tenant uses and occupies the Temporary
Premises prior to the Commencement Date. Landlord shall have
no obligation to make any repairs or perform any improvements
in the Temporary Premises prior to Tenant's occupancy of the
same, provided however, Landlord shall re-key the Temporary
Premises, clean the Temporary Premises, replace missing
ceiling tiles
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throughout the Temporary Premises and ensure that all lights
are in working order. To enable Landlord's contractor to
complete construction in that portion of the Premises
identified as the Temporary Premises on Exhibit "A" attached
hereto, Tenant shall have the option of relocating, at
Tenant's sole cost and expense, the Temporary Premises during
Landlord's construction and prior to the Commencement Date to
another portion of the Premises (to be identified on Tenant's
Final Plans) where Landlord's contractor will have
substantially completed the work outlined in Exhibit "C"
attached hereto (in which case Basic Rental for the Temporary
Premises shall remain rent free), or waiting until the
Premises is substantially complete except for the area
covered by the Temporary Premises (in which case the Basic
Rental for the entire Premises shall commence unabated). The
parties agree to cooperate to avoid invalidation of the
contractor's or Landlord's insurance by reason of such
occupancy.
EXECUTED effective as of the Lease Date set forth in the
Basic Lease Information.
LANDLORD:
DATE OF EXECUTION: N.W.A. LIMITED PARTNERSHIP
BY:
-------------------------------------
XXXX X. XXXXXXX
VICE PRESIDENT OF ITS
GENERAL PARTNER
XXXXXX INVESTMENT GROUP, INC.
TENANT:
DATE OF EXECUTION: ILEX ONCOLOGY, INC., A DELAWARE CORPORATION.
BY:
-------------------------------------
-------------------------------------
Printed Name
-------------------------------------
Title
Initial ______________
27
