SUBLEASE AGREEMENT
Exhibit 4.8
THIS SUBLEASE AGREEMENT (this “Sublease Agreement”) is made and entered into on this 7th day of April, 2015 by and between Texas Heart Institute, a Texas non-profit corporation (herein “Sublessor”) and Essa Pharmaceuticals Corp., a Texas corporation (referred to herein “Sublessee”).
WITNESSETH THAT:
WHEREAS, Sublessor, as tenant, entered into that certain Lease Agreement Life Science Plaza, with Sheridan Hills Developments, L.P., as landlord (the “Landlord”), dated effective February 20, 2009, and that certain First Amendment to Lease Agreement dated June 2, 2009, copies of which are attached hereto as Exhibit “A” and incorporated herein by reference for all purposes (as amended, the “Master Lease”);
WHEREAS, the Master Lease is stipulated to currently cover 9,363 square feet of Net Rentable Area known as Suite 900 located on the ninth (9th) floor (herein the “Leased Premises”) of that certain medical office building located at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxx 00000 (the “Building”); and
WHEREAS, Sublessee desires to sublease all of the Leased Premises from Sublessor and Sublessor desires to sublease all of the Leased Premises to Sublessee.
NOW THEREFORE, in consideration of the foregoing recitations, the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Except as otherwise defined in this Sublease Agreement, terms defined in the Master Lease and used herein shall have the meaning assigned to them in the Master Lease. To the extent this Sublease Agreement conflicts with any terms of the Master Lease, the terms of this Sublease Agreement shall control.
2. Sublease Premises. Sublessor does hereby sublease to Sublessee, and Sublessee does hereby sublease from Sublessor, upon and subject to the terms and conditions, covenants and agreements set forth in this Sublease Agreement and the Master Lease, all of the Leased Premises which is stipulated to consist of 9,363 square feet of Net Rentable Area as is depicted as the cross-hatched area on Exhibit “B” attached hereto and incorporated herein by reference (collectively, the “Sublease Premises”), together with the Conveyed Personal Property transferred to Sublessee by Sublessor pursuant to Paragraph 10.
3. Sublease Term. This Sublease Agreement shall be effective upon its execution by both parties and written receipt of Landlord’s consent to this Sublease Agreement, (the “Effective Date”), but the term shall commence on May 1, 2015 (the “Commencement Date”) and shall expire on December 31, 2019, unless otherwise sooner terminated in accordance with the provisions of this Sublease Agreement (the “Sublease Term”). Sublessor agrees not to exercise its Early Termination Option without Sublessee’s prior written consent.
4. Base Rent. Effective as of the Commencement Date, Sublessee agrees to pay to Sublessor monthly Base Rent in accordance with the following table:
| RENTAL PERIOD | ANNUAL BASE RENT RATE | MONTHLY BASE RENT | ||||||
| May 1, 2015 – April 30, 2016 | $ | 17.00 | $ | 13,264.25 | ||||
| May 1, 2016 – April 30, 2017 | $ | 17.50 | $ | 13,654.38 | ||||
| May 1, 2017 – April 30, 2018 | $ | 18.00 | $ | 14,044.50 | ||||
| May 1, 2018 – April 30, 2019 | $ | 18.50 | $ | 14,434.63 | ||||
| May 1, 2019 – December 31, 2019 | $ | 19.00 | $ | 14,824.75 | ||||
Monthly Base Rent shall be payable in advance on the first day of each calendar month without prior notice or demand provided that payments of Monthly Base Rent paid with respect to any partial months occurring during the Sublease Term shall be prorated based on the actual number of days in said partial month. Sublessee shall pay the first month’s Monthly Base Rent payment to Sublessor upon execution of this Sublease. The term “Rent” as used in this Sublease Agreement means Monthly Base Rent, Sublessee’s Portion (as hereinafter defined) of Operating Expenses, Parking Fees pursuant to Paragraph 15 of this Sublease Agreement, and any and all other sums payable by Sublessee pursuant to this Sublease Agreement. All Rent shall be payable to Sublessor at the address set forth in Paragraph 16 of this Sublease Agreement without deduction or offset of any kind, except as otherwise expressly set forth herein. Sublessor shall timely and fully pay all Rent due under the Master Lease throughout the Sublease Term.
If Sublessee shall fail to pay any installment of monthly Base Rent or any other amount due hereunder within five (5) days of becoming due, Sublessee shall pay as additional Rent hereunder to Sublessor, a late charge in the amount of five percent (5%) of the amount due, as well as interest on any such amount calculated from the due date through the date of payment at the default interest rate provided for in the Master Lease. The late charges payable pursuant hereto shall be (i) payable within ten (10) days of Sublessor’s notice and (ii) without prejudice to any of Sublessor’s rights and remedies hereunder at law or in equity for such failure and in addition to any such rights and remedies. No failure by Sublessor to insist upon the strict performance by Sublessee of Sublessee’s obligations to pay late charges as provided herein shall constitute a waiver by Sublessor of its right to enforce the provisions hereof in any instance thereafter occurring. The provisions of this paragraph shall not be construed in any way to extend the grace periods or notice periods provided for elsewhere in this Sublease Agreement.
5. Sublessee Additional Rental and Utility Charges. (a) Commencing on the Commencement Date, Sublessee shall also pay in addition to Base Rent its pro rata share of Operating Expenses pursuant to Section 6 of the Master Lease (“Sublessee’s Portion”), prorated for the Fiscal Year during which the Commencement Date occurs, such that Sublessee is responsible for paying Sublessee’s Portion for the part of such Fiscal Year that the Commencement Date occurs. Sublessee’s Portion shall be equal to one hundred percent (100%) of Sublessor’s pro rata share of Operating Expenses under the Master Lease. Sublessee shall pay Sublessee’s Portion to Sublessor on an estimated monthly basis together with its Base Rent payment and otherwise in accordance with Section 6 of the Master Lease. Sublessee shall have no right to audit Landlord’s records as to Operating Expenses; provided, however, at Sublessee’s request and reasonable cost and expense, Sublessor will exercise its rights under Section 6 of the Master Lease as required for Sublessee to conduct an audit of such records as to Operating Expenses. If Sublessee’s audit reveals any overcharges, Sublessor will make commercially reasonable efforts to enforce its rights under the Master Lease on Sublessee’s behalf, and to the extent successful, pay Sublessee’s Portion to Sublessee of the overcharges refunded to Sublessor (but only to the extent such overcharges relate to period(s) of time following the Commencement Date); (b) commencing on the Commencement Date, Sublessee shall pay Sublessor on a monthly basis in arrears for all actual costs charged by Landlord for utilities provided to the Leased Premises pursuant to Section 7.E. of the Lease. Such utility costs shall be payable by Sublessee on or before the first day of the following calendar month, along with Monthly Base Rent.
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6. Security Deposit. Upon execution of this Sublease Agreement, Sublessee shall pay Sublessor a security deposit in an amount equal to the last month’s Base Rent payment set forth in Paragraph 4. And the monthly estimated payment for Sublessee’s Portion of Operating Expenses (the “Security Deposit”). The Security Deposit shall be held by Sublessor, but otherwise subject to the provisions of the Master Lease with respect to Sublessor’s security deposit with Landlord.
7. Delivery/Construction. Sublessor will deliver the Sublease Premises in good order and repair and in broom clean condition ready for Sublessee’s construction on or before May 1, 2015 and Sublessee agrees to accept the Sublease Premises in its current “as is”, “where is” and “with all faults” condition, and, Sublessor shall not be required to make any alterations, decorations, installations, additions, or improvements of any kind whatsoever to prepare the Sublease Premises for Sublessee’s occupancy for Sublessee’s use. Upon receipt of Landlord’s written consent to this Sublease Agreement, and delivery of the Sublease Premises to Sublessee, Sublessee may enter and take possession of the Sublease Premises. By occupying the Sublease Premises, Sublessee acknowledges and agrees that SUBLESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUBLEASE PREMISES OR THIS SUBLEASE AGREEMENT, EXCEPT TO THE EXTENT EXPRESSLY MADE IN THIS SUBLEASE AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE SUBLEASE PREMISES ITS FITNESS FOR ANY PARTICULAR PURPOSE, OR THE HABITABILITY OF THE SUBLEASE PREMISES AND, AS TO SUBLESSEE, THE SUBLESSEE TAKES THE SUBLEASE PREMISES “AS IS, WHERE IS, WITH ALL FAULTS”, AND (C) ACKNOWLEDGES AND AGREES THAT THE SUBLEASE PREMISES ARE SUBJECT TO THE LIMITATIONS, ENCUMBRANCES AND OTHER MATTERS DESCRIBED IN THE MASTER LEASE. Sublessor represents to Sublessee that Sublessor has no actual knowledge of any defects in the Sublease Premises that will impede Sublessee’s use of the Sublease Premises. Sublessor shall, prior to May 1, 2015, remove the furniture, file cabinets, tables, chairs, audio/visual and other electronic equipment, and other personal property owned by Sublessor (except as provided in Paragraph 10 below).
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8. Insurance. Sublessee will, at its own expense, carry and maintain in full force and effect during the Sublease Term the insurance required under the Master Lease to be obtained by Sublessor. Sublessee’s commercial general liability insurance policy must name Sublessor (and Landlord) as an additional insured and Sublessee’s property insurance policy must be endorsed to provide a waiver of subrogation in favor of the Sublessor. Sublessee’s liability insurance policies must be endorsed to obligate the insurer not to cancel coverage without first giving thirty (30) days’ written notice to Sublessor. Sublessee must furnish Sublessor with certificates of insurance evidencing the required commercial general liability insurance coverage prior to the Commencement Date and thereafter prior to each policy renewal date. However, the amount of such insurance shall not limit Sublessee’s liability, nor relieve Sublessee of any obligation under the terms of this Sublease Agreement.
9. Incorporation of Master Lease. Insofar as the provisions of the Master Lease do not conflict with the specific provisions herein, they and each of them are incorporated into this Sublease Agreement as fully as if completely rewritten herein, and Sublessee agrees to be bound to Sublessor as if it were lessee and Sublessor were landlord therein, by all of the terms, conditions and covenants of the Master Lease insofar as they relate to the Sublease Premises, except as otherwise provided in this Sublease Agreement. Except as expressly stated in this Sublease Agreement, Sublessee shall be entitled to receive the benefit of all such terms, conditions and covenants of the Master Lease that are intended by their terms to benefit Sublessor, provided that Sublessor shall not have any liability to Sublessee as a result of a breach of failure to perform by Landlord under the Master Lease; provided, however, Sublessor agrees to (i) use its commercially reasonable efforts to enforce Landlord’s obligations under the Master Lease and (ii) request such above Building standard services on behalf of Sublessee (to the extent Landlord will not accept such requests directly from Sublessee) as are available pursuant to the terms and provisions of the Master Lease, and Sublessee shall pay for such above Building standard services in the amount(s) required per the terms and provisions of the Master Lease. To the extent Sublessor receives written notice from Master Landlord that pertains to or otherwise relates to the Sublease Premises, Sublessor shall provide a copy of such written notice to Sublessee within two (2) business days following Sublessor’s receipt of same. In addition, to the extent Sublessor’s obligation to pay rent or other sums under the Master Lease with respect to the Sublease Premises are abated, Sublessee’s obligation to pay Rent with respect to the Sublease Premises under this Sublease Agreement shall be abated.
Sublessor represents and warrants to Sublessee that (a) Sublessor has delivered to Sublessee a full and complete copy of the Master Lease, (b) the Master Lease is, as of the Effective Date hereof, in full force and effect, and (c) no Event of Default has occurred under the Master Lease and, to Sublessor’s knowledge, no event has occurred and is continuing which would constitute an Event of Default but for the requirement of the giving of notice and/or the expiration of the period of time to cure. Sublessor further represents, warrants and covenants that it shall not take or permit to be taken by those under Sublessor’s control any action or omission that could constitute an Event of Default under the Master Lease and that Sublessor shall maintain the Master Lease in full force and effect throughout the Sublease Term.
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10. Personal Property. On the Commencement Date, (a) Sublessor shall convey to Sublessee by xxxx of sale, the personal property located in the Leased Premises as described on Exhibit “C” attached hereto (the “Conveyed Personal Property”), and (b) Sublessee shall make simultaneous payment to Sublessor of an amount equal to $30,000.00, all in accordance with a xxxx of sale to be executed by Sublessor and Sublessee that is substantially in the form attached hereto as Exhibit “C-1” (“Xxxx of Sale”). Sublessee agrees to accept the Conveyed Personal Property in its “as is, where is” condition. SUBLESSEE ACKNOWLEDGES AND AGREES THAT SUBLESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONVEYED PERSONAL PROPERTY.
11. Indemnification.
(a) SUBLESSEE AGREES TO INDEMNIFY, DEFEND AND HOLD Sublessor and its affiliates, and any officer, director, trustee, fiduciary, employee, shareholder, partner, manager or member of Sublessor or any of its affiliates (each, an “Indemnitee”) HARMLESS FROM AND AGAINST ALL suits, claims, actions, proceedings, damages, liabilities, costs and expenses of every kind, including reasonable attorneys’ fees (the “Indemnifiable Matters”) ASSERTED AGAINST AN INDEMNITEE ON ACCOUNT OF INJURIES OR DEATH TO PERSONS OR DAMAGE TO PROPERTY TO THE EXTENT THAT ANY SUCH DAMAGE OR INJURY WAS CAUSED, EITHER PROXIMATELY OR REMOTELY, BY ANY ACT OR OMISSION, WHETHER NEGLIGENT OR NOT, OF SUBLESSEE OR ANY of its affiliates, and any officer, director, trustee, fiduciary, employee, shareholder, partner, manager, member, agent, representative, servants, invitees, contractor or subcontractor of Sublessee or of any of Sublessee’s affiliates (collectively, the “Sublessee Related Parties”) OR OF ANY OTHER PERSON ENTERING UPON THE SUBLEASE PREMISES UNDER OR WITH THE EXPRESSED OR IMPLIED INVITATION OF SUBLESSEE, OR IF ANY SUCH INJURY OR DAMAGE MAY IN ANY OTHER WAY ARISE FROM OR OUT OF THE OCCUPANCY OR USE OF SUBLESSEE OR ANY SUBLESSEE RELATED PARTY, OF THE SUBLEASE PREMISES OR CONVEYED PERSONAL PROPERTY, EXCEPT TO THE EXTENT CAUSED BY THE FAILURE TO COMPLY WITH THE LAW BY, OR THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF, AN INDEMNITEE.
(b) SUBLESSOR HEREBY AGREES THAT IT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS SUBLESSEE AND ITS AFFILIATES, AND ANY OFFICER, DIRECTOR, TRUSTEE, FIDUCIARY, EMPLOYEE, SHAREHOLDER, PARTNER, MANAGER, MEMBER, AGENT, REPRESENTATIVE, SERVANT, INVITEE, CONTRACTOR OR SUBCONTRACTOR OF SUBLESSEE OR ANY OF ITS AFFILIATES (EACH, A “SUBLESSEE INDEMNITEE”) FROM AND AGAINST ALL INDEMNIFIABLE MATTERS ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF ANY BREACH, VIOLATION OR NONPERFORMANCE OF ANY TERM OR CONDITION ON THE PART OF SUBLESSOR HEREUNDER OR UNDER THE MASTER LEASE. ADDITIONALLY, SUBLESSOR AGREES TO INDEMNIFY, DEFEND AND HOLD EACH SUBLESSEE INDEMNITEE HARMLESS FROM AND AGAINST ALL INDEMNIFIABLE MATTERS ASSERTED AGAINST A SUBLESSEE INDEMNITEE ON ACCOUNT OF INJURIES OR DEATH TO PERSONS OR DAMAGE TO PROPERTY TO THE EXTENT THAT ANY SUCH DAMAGE OR INJURY WAS CAUSED, EITHER PROXIMATELY OR REMOTELY, BY ANY ACT OR OMISSION, WHETHER NEGLIGENT OR NOT, OF SUBLESSOR OR ANY OR ANY OF ITS AFFILIATES, AND ANY OFFICER, DIRECTOR, TRUSTEE, FIDUCIARY, EMPLOYEE, SHAREHOLDER, PARTNER, MANAGER, MEMBER, AGENT, REPRESENTATIVE, SERVANTS, INVITEES, CONTRACTOR OR SUBCONTRACTOR OF SUBLESSOR OR OF ANY OF SUBLESSOR’S AFFILIATES (COLLECTIVELY, THE “SUBLESSOR RELATED PARTIES”), EXCEPT TO THE EXTENT CAUSED BY THE FAILURE TO COMPLY WITH THE LAW BY, OR THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A SUBLESSEE INDEMNITEE.
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12. Pass Through of Rights. Notwithstanding anything to the contrary herein, the services, rights and remedies to which Sublessee is entitled to hereunder are those to which Sublessor is entitled under the Master Lease. Sublessor shall not have any liability for the failure of Landlord to perform its obligations under the Master Lease; provided, however, Sublessor agrees to cooperate with Sublessee in order to require Landlord to comply with the terms and provisions of the Master Lease, and, if necessary, enforce Sublessor’s rights thereunder on behalf of Sublessee.
13. Landlord’s Consent. This Sublease Agreement is expressly conditioned upon Landlord’s written consent to this Sublease Agreement. If such consent is refused or if the same is not obtained in writing by the date that is ten (10) business days after the full execution of this Sublease Agreement, either Sublessor or Sublessee may terminate this Sublease Agreement by delivering written notice to the other prior to Landlord providing its written consent to the Sublease, in which event this Sublease Agreement shall be null and void, of no force or effect, and all sums that Sublessee shall have paid or delivered hereunder to Sublessor shall be promptly returned to Sublessee.
14. Default. Should Sublessee fail to timely perform any of its obligations under this Sublease Agreement or fail to timely perform any of Sublessor’s obligations under the Master Lease which Sublessee has agreed herein to perform, then Sublessor shall have all of the rights and remedies under the Master Lease which are available to Landlord, the same as though Sublessor was the landlord under the Master Lease and Sublessee was the tenant thereunder. The parties agree that with respect to this Sublease Agreement and the Master Lease, time is of the essence. In addition to any remedies outlined in the Master Lease, Sublessor shall have the right to terminate this Sublease Agreement if Sublessee is delinquent in its monthly payment of Base Rent or Additional Rent for more than ten (10) business days on two (2) occasions within any twelve (12) month period during the Sublease Term.
15. Parking. Sublessee shall pay for and take throughout the Sublease Term, three (3) reserved parking spaces and thirteen (13) unreserved parking spaces (collectively “Parking Spaces”) in the Garage, subject to the terms and conditions of Exhibit “C” to the Master Lease and any rules in effect for the Garage. Sublessee shall pay Sublessor the parking rentals for the Parking Spaces and Sublessor shall timely and fully pay Landlord the parking rental under the Master Lease on a monthly basis together with Base Rent.
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16. Notices. No notice, approval, consent or other communication authorized or required by this Sublease Agreement shall be effective unless same shall be in writing and personally delivered, or by a recognized overnight courier service (i.e., FedEx), or sent postage prepaid by United States registered or certified mail, return receipt requested, directed to the other party at its address hereinafter provided or such other address as either party may designate by notice given from time to time in accordance herewith:
| Sublessor: | Texas Heart Institute |
| Attention: Xx. Xxxx Xxxxxxxx, CEO | |
| 0000 Xxxxxxx Xxx., Xxxxx X 000 | |
| Xxxxxxx, XX 00000 | |
| With a copy to: | Texas Heart Institute |
| Attention: Xx. Xxxx Xxxxxxx | |
| Treasurer/Chief Financial Officer | |
| 0000 Xxxxxxx Xxx., Xxxxx X 000 | |
| Xxxxxxx, XX 00000 | |
| Sublessee: | Essa Pharmaceuticals Corp. |
| Attention: Xxxxx Xxxx | |
| 0000 Xxxx Xxxxxxxx | |
| Xxxxx 000 | |
| Xxxxxxx, Xxxxx 00000 | |
| With a copy to: | Xxxxxxx Xxxxxx L.L.P. |
| Attention: Xxxxxxx X. Xxxxxxx | |
| 0000 XxXxxxxx | |
| Xxxxx 0000 | |
| Xxxxxxx, Xxxxx 00000 |
The Rent payable by Sublessee hereunder shall be paid to Sublessor at the same place where a notice to Sublessor is herein required to be directed.
17. Brokerage Commissions. Each party hereto warrants to the other that no agent, finder or broker other than Colliers Xxxxxx Xxxxxx, Inc. (d/b/a Colliers International), which represents Sublessor, and Transwestern which represents Sublessee, both of whose fees and commissions, if any, are to be paid by Sublessor pursuant to separate agreements, have been involved with the introduction of Sublessor and Sublessee and/or the sublease of the Sublease Premises. In the event of a breach of the foregoing warranty, the breaching party agrees to save, defend, indemnify and hold harmless the other party hereto from and against any claims, losses, damages, liabilities and expenses, including but not limited to, reasonable attorneys’ fees.
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18. OFAC Compliance. Both Sublessor and Sublessee are currently in compliance with and shall at all times during the term of this Sublease Agreement remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
19. Rights Personal to Sublessor Under Master Lease. Notwithstanding anything herein or in the Master Lease to the contrary, in no event shall Sublessee have the right to exercise any of the rights of Sublessor in the Master Lease to renew the Lease.
20. Binding Effect. This Sublease Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
21. Governing Law. This Sublease Agreement shall be construed and interpreted in accordance with the laws of the State of Texas.
22. Modification and Non-Waiver. This Sublease Agreement may not be modified or amended, except by an agreement in writing signed by both parties. The parties may waive any of the conditions contained herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the party waiving such conditions or obligations.
23. Entire Agreement. This Sublease Agreement (including any exhibits hereto) embodies the entire agreement between the parties concerning the subject matter hereof and replaces and supersedes any prior and contemporaneous negotiations, agreements or understandings among the parties hereto.
24. Headings. The headings of paragraphs herein are for convenience of reference only, do not constitute a part of this Sublease Agreement, and shall not be deemed to limit or alter any of the provisions hereof.
25. Counterparts. This Sublease Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
26. Assignment. Sublessee may not assign this Sublease Agreement or further sublet all or any part of the Sublease Premises without the prior written consent of Sublessor and Landlord.
27. Severability. In the event any one or more of the provisions contained in this Sublease Agreement shall for any reason be judicially declared to be invalid, illegal, unenforceable or void in any respect, such declaration shall not have the effect of invalidating or voiding the remainder of this Sublease Agreement, and the parties hereto agree that the part or parts of this Sublease Agreement so held to be invalid, illegal, unenforceable or void will be deemed to have been stricken here from and the remainder will have the same force and effectiveness as if such part had never been included herein.
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28. Attorney Fees. In the event either party becomes involved in legal proceedings against the other to enforce such party’s respective rights or interests under this Sublease Agreement, the prevailing party shall be entitled to receive from the non-prevailing party reasonable attorneys’ fees incurred in connection with any such proceedings. “Prevailing party” shall mean and is hereby defined by the parties to mean that party which the court finds and/or declares is the prevailing party, whether or not that party obtains monetary, declaratory, injunctive, equitable or nominal relief. With respect to any monetary claim, no award of damages shall be necessary in order for a party to be found by the court to have prevailed. With respect to any non-monetary claim, no equitable relief shall be necessary in order for a party to be found by the court to have prevailed.
[Signatures on Following Page]
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SIGNATURE PAGE TO THAT CERTAIN
SUBLEASE AGREEMENT BY AND BETWEEN
TEXAS HEART INSTITUTE, AS SUBLESSOR AND
ESSA PHARMACEUTICALS CORP., AS SUBLESSEE
IN WITNESS WHEREOF, the parties have caused this Sublease Agreement to be executed on the day and year first above written.
| SUBLESSOR: | |||
| TEXAS HEART INSTITUTE, | |||
| a Texas non-profit corporation | |||
| By: | /s/ Xxxx X. Xxxxxxxx | ||
| Name: | Xxxx X. Xxxxxxxx | ||
| Title: | CEO | ||
| SUBLESSEE: | |||
| ESSA PHARMACEUTICALS CORP., | |||
| a Texas corporation | |||
| By: | /s/ Xxxxxx X. Xxxxxx | ||
| Name: | Xxxxxx X. Xxxxxx | ||
| Title: | CEO | ||
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EXHIBIT “C”
THE CONVEYED PERSONAL PROPERTY
Reception Area:
1 reception desk chair
4 upholstered chairs, 1 sofa
1 small coffee table
2 end tables
Boardroom:
1 table
14 executive chairs
CEO office:
3 bookcase/file cabinets
1 L-Shape Desk
1 small coffee table
2 upholstered chairs
6 Office Spaces:
1 - L-shaped desk, with hutch and tack board
1 – executive chair
2 guest chairs
1 - 5 shelf bookcase
Administrative Assistant Area:
1 – Ushape desk with hutch and tackboard
1 bookcase
2 guest chairs
Kitchen Area:
1 laminate rectangular table with 12 chairs
1 refrigerator
2 microwaves
1 dishwasher
1 ice machine
EXHIBIT “C-1”
FORM OF XXXX OF SALE
[See Attached]
EXHIBIT “C”
FORM OF XXXX OF SALE
Texas Heart Institute, a Texas non-profit corporation (“Grantor”), in consideration of the sum of Twenty Thousand and 00/100 Dollars ($30,000.00) paid to Grantor by Essa Pharmaceuticals Corp., a Texas corporation (“Grantee”), the receipt and sufficiency of which is hereby acknowledged, does hereby sell, convey, transfer, assign and deliver unto Grantee effective this 7th day of April, 2015, certain personal property located at the premises known as Suite 900 located on the ninth (9th) floor of that certain medical office building located at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxx 00000 and described in detail on Schedule 1 attached hereto and incorporated herein by reference (collectively, the “Personal Property”) “AS IS, WHERE IS, WITH ALL FAULTS” AND IN ITS EXISTING CONDITION AS OF THE DATE HEREOF.
TO HAVE AND TO HOLD the Personal Property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns, forever. Grantor does hereby bind itself, its successors and assigns, to forever warrant and defend title to the Personal Property unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise.
GRANTOR IS NOT MAKING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR QUALITY, WITH RESPECT TO ANY OF THE PERSONAL PROPERTY BEING TRANSFERRED, OR AS TO THE CONDITION OR WORKMANSHIP THEREOF OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, GRANTOR IS NOT MAKING ANY REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE PERSONAL PROPERTY.
Grantor hereby covenants that it will execute and deliver such documents requested by Grantee necessary to evidence and effect the sale, transfer, conveyance and assignment of the Personal Property to Grantee.
The terms and conditions of this Xxxx of Sale shall be governed and construed in accordance with the laws of the State of Texas.
[Signatures on Following Page]
IN WITNESS WHEREOF, Grantor and Grantee have caused this Xxxx of Sale to be executed effective as of the date first set forth above.
| GRANTOR: | ||
| TEXAS HEART INSTITUTE, a Texas non-profit corporation | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | CEO | |
Acknowledged and agreed.
| GRANTEE: | ||
| ESSA PHARMACEUTICALS CORP., | ||
| a Texas corporation | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title | CEO | |
| C-1 |
Schedule 1
DESCRIPTION OF THE PERSONAL PROPERTY
Reception Area:
1 reception desk chair
4 upholstered chairs, 1 sofa
1 small coffee table
2 end tables
Boardroom:
1 table
14 executive chairs
CEO office:
3 bookcase/file cabinets
1 L-Shape Desk
1 small coffee table
2 upholstered chairs
6 Office Spaces:
1 - L-shaped desk, with hutch and tack board
1 – executive chair
2 guest chairs
1 - 5 shelf bookcase
Administrative Assistant Area:
1 – Ushape desk with hutch and tackboard
1 bookcase
2 guest chairs
Kitchen Area:
1 laminate rectangular table with 12 chairs
1 refrigerator
2 microwaves
1 dishwasher
1 ice machine
| C-2 |
LANDLORD’S CONSENT TO SUBLEASE
| DATE: | April 7, 2015 |
| LANDLORD: | Sheridan Hills Developments LP, a Texas Limited Partnership |
| SUBLESSOR: | Texas Heart Institute, a Texas non-profit corporation |
| SUBLESSEE: | Essa Pharmaceuticals Corp., a Texas corporation |
| SUBLEASED PREMISES: | The portion of the Premises (as defined in the Prime Lease) shown on Exhibit A attached hereto |
| PRIME LEASE: | Lease Agreement dated as of February 20, 2009, by and between Sheridan Hills Developments LP, a Texas Limited Partnership (“Landlord”), and Texas Heart Institute (“Sublessor”), as amended by a First Amendment to Lease Agreement between Landlord and Sublessor, dated June 2, 2009. |
Landlord hereby consents to Sublessor subleasing the Subleased Premises to Sublessee as described above pursuant to the form of Sublease Agreement attached hereto as Exhibit B (the “Sublease Agreement”), provided that (i) such consent shall never be deemed to constitute Landlord’s approval of any terms or provisions of the documents evidencing such Sublease Agreement; (ii) such consent shall never be construed as creating privity between Landlord and Sublessee [other than through this Landlord’s Consent to Sublease (this “Consent”)]; (iii) the Sublease Agreement is subordinate to the Prime Lease and shall terminate upon termination of the Prime Lease; (iv) nothing contained herein or in the Sublease Agreement shall be deemed a release of Sublessor with respect to its obligations under the Prime Lease; (v) Sublessor shall remain fully liable for the performance of all of Sublessor’s obligations under the Prime Lease, including, without limitation, payment of all rent, parking charges, and other amounts payable by Sublessor under the Prime Lease; (vi) no further subletting or assignment of the Premises by Sublessor or the Subleased Premises by Sublessee will be made without the prior written consent of Landlord, which consent may be granted or withheld in accordance with the terms and provisions of the Prime Lease; (vii) any violation by Sublessee of the terms and conditions of the Prime Lease shall constitute a default thereunder for which Sublessor shall be fully liable following the expiration of any applicable notice and cure periods provided; (viii) upon Sublessee’s receipt of written notice from Landlord setting forth that Sublessor is in default of the Prime Lease beyond all applicable notice and cure periods, Sublessee shall thereafter be required to pay all rent and other sums payable under the Sublease Agreement directly to Landlord, provided that Landlord’s receipt of such rent from the Sublessee shall not be deemed to release the Sublessor from its obligations under the Prime Lease, or constitute an acceptance by Landlord of the Sublessee as a direct tenant; (ix) specifically, but not by way of limitation of any other matter referred to in this Consent or in the Sublease Agreement, Sublessee agrees that the terms and provisions of Sections 28 and 29 of the Prime Lease are incorporated into this Consent by reference and Sublessee agrees that it shall be bound by all waivers and shall fulfill all obligations thereunder as if Sublessee were “Tenant” under said Sections 28 and 29 of the Prime Lease, including, without limitation, the obligation to indemnify and save harmless Landlord in accordance with Section 28 of the Prime Lease and the obligation to obtain and maintain throughout the term of the Sublease Agreement, with respect to the Subleased Premises, the insurance required to be maintained by “Tenant” under Section 29 of the Prime Lease, and Sublessee shall name Landlord (and all other parties required under said Section 29 of the Prime Lease to be named as an additional insured) as an additional insured on all such policies; (x) fifty percent (50%) of any excess rent payable to Sublessor by Sublessee pursuant to the Sublease Agreement shall be paid by Sublessor to Landlord in accordance with Section 12 of the Prime Lease; and (xi) Sublessor shall pay Landlord, simultaneously with Sublessor’s execution of this Consent, a review fee of $750.00; provided that if Landlord’s actual reasonable costs and expenses (including reasonable attorney’s fees) exceed $750.00, Sublessor shall reimburse Landlord for Landlord’s actual reasonable costs and expenses in lieu of the fixed review fee.
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Sublessor hereby expressly and irrevocably waives the Termination Option as set out in section 51 of the Original Lease.
To the extent the Prime Lease shall be terminated prior to the expiration of the term of the Sublease Agreement for any reason other than a termination by Landlord due to condemnation, fire or other damage in accordance with the terms of the Prime Lease, the Sublease Agreement, if then in existence, at Landlord’s option, which option may be exercised in Landlord’s sole discretion by delivering written notice to Sublessee, shall continue as a lease between Landlord, as lessor, and Sublessee, as lessee, with the same force and effect as if Landlord and Sublessee had entered into a lease as of the date of the termination of the Prime Lease containing the same terms, covenants and conditions as those contained in the Sublease Agreement, for a term equal to the unexpired term of said Sublease Agreement, provided that in such situation, Landlord shall not be (a) liable for previous acts or omissions of Sublessor, (b) bound by any rent previously paid by Sublessee, unless actually received by Landlord, (c) bound by any amendment to the Sublease Agreement made subsequent to the date hereof without Landlord’s consent or (d) liable for any obligations of Sublessor under the Sublease Agreement to make any improvements to the Subleased Premises. If Landlord elects to continue the Sublease in effect after the termination of the Prime Lease but Landlord fails to cure any existing defects under the Sublease by Sublessor, Sublessee, at Sublessee’s option, may terminate the Sublease by providing Landlord with written notice of termination.
Sublessee acknowledges and agrees that any rights Sublessee has under the Sublease Agreement are derived through Sublessor and therefore, if Sublessor’s rights under the Prime Lease are terminated, Sublessee’s rights will be automatically terminated under the Sublease Agreement (except as set forth in the preceding paragraph). In addition, except where Landlord elects to continue the Sublease after the termination of the Prime Lease (as a direct lease with Sublessee), Sublessee has no rights against Landlord, but, rather must look to Sublessor in the event of any alleged breach of the Prime Lease or of the Sublease Agreement. Capitalized terms not defined herein shall have the same meanings assigned to such terms in the Prime Lease. Sublessor and Sublessee represent and warrant that the Sublease Agreement attached hereto as Exhibit B is a true and complete copy of the Sublease Agreement, and that such Sublease Agreement constitutes the sole agreement between the Sublessor and Sublessee in relation to the subletting of the Subleased Premises. In the event that there shall be any conflict between the terms, covenants and conditions of this Consent and the terms, covenants and conditions of the Sublease Agreement, then the terms, covenants and conditions of this Consent shall prevail in each instance, and any conflicting terms, covenants or conditions of the Sublease Agreement shall be deemed modified to conform with the terms, covenants and conditions of this Consent. This Consent in no way modifies, waives, impairs, or affects the terms of the Prime Lease, nor increases any obligation of the Landlord under the Prime Lease.
[END OF TEXT]
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Executed as of the date first written above.
| LANDLORD: | ||
| Sheridan Hills Developments LP, | ||
| a Texas Limited Partnership | ||
| By: FOUNCET SHERIDAN INC. (G.P.) | ||
| By: | /s/ SHOEL SILVER | |
| Name: | SHOEL SILVER | |
| Title: | PRESIDENT | |
| SUBLESSOR: | ||
| Texas Heart Institute, | ||
| a Texas non-profit corporation | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | 4/9/15 CEO | |
| SUBLESSEE: | ||
| Essa Pharmaceuticals Corp., | ||
| a Texas corporation | ||
| By: | /s/ Xxxxxx X. Riedar | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | CEO | |
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EXHIBIT A
Diagram of the Location of the Subleased Premises
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EXHIBIT B
Form of Sublease Agreement
(See attached)
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