Exhibit 10.22
LEASE AGREEMENT
OFFICE BUILDING
This Lease Agreement is made and entered into as of the 20th day of
February, 2002 between FRM WEST LOOP ASSOCIATES #6, LTD., a Texas limited
partnership, hereinafter referred to as "Lessor" and TEXAS BIOTECHNOLOGY
CORPORATION, a Delaware corporation, hereinafter referred to as "Lessee":
WITNESSETH:
SEC. 1 LEASED PREMISES: In consideration of the mutual covenants as set forth
herein, Lessor and Lessee hereby agree as follows:
A. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor for
the rental and on the terms and conditions hereinafter set forth approximately
Fifteen Thousand Two Hundred Five (15,205) square feet of rentable area on the
fourth (4th) floor as indicated on the plan attached hereto as Exhibit "A" and
known as Suite 400 (the "Leased Premises") in the office building located at
0000 Xxxx Xxxx Xxxxx (xxx "Xxxxxxxx"), Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
Facilities and areas of the Building that are intended and designated by Lessor
from time to time for the common, general and nonexclusive use of all tenants of
the Building are defined as the "Common Areas". Lessor has the exclusive control
over and right to manage the Common Areas. Lessor shall have the exclusive use
and control over all other areas of the Building and the property including, but
not limited to, risers, horizontal and vertical shafts and telephone closets.
X. Xxxxxx also leases to Lessee eight (8) reserved parking spaces and up
to fifty-two (52) unreserved parking spaces in the garage as provided in Exhibit
"B" attached hereto.
SEC. 2 TERM: Subject to and upon the conditions set forth herein, or any exhibit
or addendum hereto, the Term of this Lease Agreement shall be for a period of
forty (40) months, beginning April 1, 2002 ("Commencement Date") and shall end
at midnight on July 31, 2005; provided, however, that Lessee shall have the
right to extend the Term of this Lease Agreement under the same terms and
conditions contained herein to December 31, 2005 by giving Lessor ninety (90)
days prior written notice.
SEC. 3 USE: The Leased Premises shall be used and occupied by Lessee solely as
general office use and for no other purpose.
SEC. 4 SECURITY DEPOSIT: INTENTIONALLY DELETED.
SEC. 5 BASE RENT: As part of the consideration for the execution of this Lease
Agreement, Lessee covenants and agrees and promises to pay as Base Rent an
annual sum of Two Hundred Eighty-One Thousand Two Hundred Ninety-Two and 48/100
Dollars ($281,292.48) payable at the Building management office or to a location
designated by Lessor in monthly installments of Twenty-Three Thousand Four
Hundred Forty-one and 04/100 Dollars ($23,441.04) in legal tender of the United
States of America, in advance, without demand and without deduction, on the
first day of each calendar month during the term hereof. Lessee shall not have
to pay Base Rent for the first four (4) months of the Term hereof, and Lessee
shall be allowed to occupy the Leased Premises free of any Base Rent for said
four (4) month period. Such Base Rent shall be subject to adjustments as
hereinafter provided.
In addition to the foregoing rent, Lessee agrees to pay to Lessor as
additional rent all charges for any services, goods or materials furnished by
Lessor at Lessee's request which are not required to be furnished by Lessor
under this Lease Agreement, as well as other sums payable by Lessee hereunder,
within ten (10) days after Lessor renders a statement therefor to Lessee. All
past due installments shall bear interest at the rate of eighteen percent (18%)
per annum or the highest lawful rate, whichever is less, from date due until
paid.
SEC. 6 ADJUSTMENT OF BASE RENT: The Base Rent provided for herein includes a
component applicable to Basic Cost (as hereinafter defined) equal, on a per
annum basis to Base Year 2002 per square foot of rentable area of office space
in the Building, such amount being hereinafter referred to as "Base Operating
Expense".
A. "Basic Cost" as said term is used herein shall consist of the operating
expenses of the Building, which shall be computed on the accrual basis. For the
purpose of calculating the Basic Cost for the Base Year, Lessor shall increase
Basic Cost to the amount which would have been incurred had the Building been
occupied to the extent of ninety-five percent (95%) of rentable area thereof and
building standard services had been provided through the entire Building. All
operating expenses shall be determined in accordance with generally accepted
accounting principles, consistently applied in accordance with the accounting
practices of a majority of the other comparable office buildings in the West
Loop/Galleria market area. Subject to Section 6.C below, the term "Operating
Expenses" as used herein shall mean all expenses, costs and disbursements (but
not replacement of capital investment items nor general office expense nor
specific costs especially billed to and paid by specific tenants) in connection
with the ownership and operation of the Building and parking facility
appurtenant thereto, including but not limited to the following:
(1) Wages, salaries and fees of any management company engaged to
manage the Building and parking facility and all employees in
operation and maintenance of the Building and parking
facility, including taxes, insurance and benefits relating
thereto. Notwithstanding the foregoing, Lessor shall not
assign in excess of 21.381% of the Operating Cost associated
with the parking facility to the Building.
(2) All supplies and materials used in operation and maintenance
of the Building and parking facility.
(3) Cost of water and power, heating, lighting, air conditioning
and ventilating the Building and parking facility.
(4) Cost of all janitorial service, maintenance and service
agreements on equipment, including alarm service, Musak,
window cleaning and elevator maintenance.
(5) Cost of casualty and liability insurance applicable to the
Building and parking facility and Lessor's personal property
used in connection therewith.
(6) All taxes and assessments and other governmental charges
whether Federal, State, county or municipal and whether they
be by taxing districts or authorities presently taxing the
Leased Premises or by others subsequently created or
otherwise, and any other taxes and improvements assessments
attributable to the Building and parking facility or its
operation excluding, however, Federal and State taxes on
income. It is agreed that Lessee will be responsible for ad
valorem taxes on its personal property and on the value of
leasehold improvements to the extent that the same exceed
standard building allowance.
(7) Cost of repairs and general maintenance.
B. In the event that Basic Cost of Lessor's operation of the Building
during any calendar year of the term of this Lease Agreement shall exceed the
Base Operating Expense set out in Section 6.A above, Lessee shall pay to Lessor
as additional rent its pro rata share of the increase in such Basic Cost for
such year over the Base Operating Expense. Lessee's pro rata share shall be a
fraction of the total of such increase, the numerator of which shall be the
rentable area contained in the Leased Premises then leased by Lessee in the
Building and the denominator of which shall be 70,416 square feet which is
ninety-five percent (95%) of the total rentable area contained in the Building.
All amounts which may be due under this paragraph shall be due
within ten (10) days after Lessor submits to Lessee a xxxx or invoice therefor.
Lessor shall monitor Basic Cost for the Building throughout the term hereof and
prepare projections of the anticipated Basic Cost for the Building for each
calendar year during the term hereof. At any time that such projection shall
indicate that Basic Cost shall exceed Base Operating Expense, Lessor may
commence monthly xxxxxxxx for the collection of the amount of the anticipated
excess. Lessor may submit to Lessee a xxxx or invoice each month for one-twelfth
(1/12) of the amount of the excess of projected or actual Basic Cost over Base
Operating Expense for the calendar year in question, as same may be ascertained
by Lessor to be due by Lessee under this paragraph. The amount of the first such
xxxx or invoice shall be determined by multiplying the monthly amount due by the
number of calendar months of the calendar year in question which have commenced
as of the date of the xxxx or invoice. In the event of such billing or invoicing
procedure by Lessor, then Lessee shall be bound and obligated to pay such
indicated amount contemporaneously with required payment of rent hereunder on
the first day of each calendar month, monthly in advance, for each month in the
Term of this Lease Agreement, in lawful money of the United States.
Notwithstanding any other provision herein to the contrary, it is agreed that in
the event the Building is not fully occupied during any year of the Term, an
adjustment shall be made in computing the Operating Expenses for such year as
though the Building had been 95% occupied during such year.
Once each calendar year, Lessor shall perform such computations as
are necessary to determine the amount properly payable by Lessee under this
Section 6.B for the preceding calendar year, whereupon if Lessee shall have
overpaid, Lessor shall refund to Lessee the amount of the excess; but if Lessee
shall have underpaid, Lessor shall invoice Lessee for the amount of the
underpayment and such underpayment shall be due within thirty (30) days after
delivery of such invoice to Lessee.
C. The following shall be excluded from the definition of Operating
Expenses as set forth in Section 6.1 above:
(1) Depreciation and amortization.
(2) Financing and refinancing costs, interest on debt or
amortization payment on any mortgage or mortgages, and rental
under any ground or underlying leases or lease together with
all costs incidental to the items mentioned in this
subparagraph.
(3) Any costs required by or incurred in connection with any
federal, state or local law enacted before the date of this
Lease Agreement, including, without limitation, the American's
with Disabilities Act, other laws relating to accessibility or
life safety, and the Clean Air Act and any other laws relating
to the removal of chlorofluorocarbons (freon) from the
Building's HVAC systems.
(4) Any costs relating to the presence of asbestos-containing
materials located in the Building prior to the date of this
Lease Agreement, including, without limitation, costs of any
encapsulation or removal thereof required by any laws or
regulations, whether currently existing or hereafter enacted.
(5) Costs of correcting material defects in the original design or
any subsequent construction of the Building or the material
used in the construction of the Building (including latent
defects in the original or any subsequent construction of the
Building or defects in the design of the Building) or in the
Building equipment or appurtenances thereto.
(6) The cost of any repair to remedy damage caused by or resulting
from the negligence of any other tenant(s) in the Building,
including their agents, servants, employees or invitees,
together with the costs and expenses incurred by Lessor in
attempting to recover such costs.
(7) Legal and other fees, leasing commissions, advertising or
marketing expenses and other similar costs incurred in
connection with the leasing of the Building.
(8) Costs incurred in renovating or otherwise improving or
decorating or redecorating space for new tenants or other
existing tenants or occupants in the Building or vacant space
in the Building or costs related thereto (including
architectural and engineering fees); and costs incurred by
Lessor that are specifically reimbursed to Lessor by other
tenants (other than as part of Operating Expenses) in
connection with maintenance or repair of above building
standard condition improvements.
(9) Any items not otherwise excluded to the extent Lessor is
specifically reimbursed by insurance or otherwise compensated
(other than as part of Operating Expenses), including direct
reimbursement by any tenant.
(10) A bad debt loss, rent loss or reserves for bad debts or rent
loss.
(11) The cost (or any amortization thereof) of any alteration,
addition, change, replacement, improvement, repair or other
item which is properly capitalized under generally accepted
accounting principles other than cost saving capital
improvements (which will be amortized over the useful life of
such improvements, but only to the extent of the savings
achieved). Upon Lessee's request, Lessor will provide Lessee a
cost justification of any such capital improvements.
(12) Any item of cost which is includable in Operating Expenses,
but which represents an amount paid to an affiliate of Lessor
or an affiliate of any partner or shareholder of Lessor, or to
the property management company or an affiliate of the
property management company, to the extent the same is in
excess of the reasonable cost of said item or service in an
arms-length transaction.
(13) Any interest or penalties incurred as a result of Lessor's
failure to pay any financial obligation when due or within any
applicable grace period.
(14) An amount equal to any costs which represent any payments
received by Lessor or the Building manager, or the employees
or officers of either, from suppliers of goods or services as
kick-backs, finders' fees, expediting fees or other similar
dishonest fees.
(15) Any and all costs associated with the operation of the
business of the entity which constitutes Lessor: excluded
items shall specifically include, but shall not be limited to,
formation of the entity; internal accounting and legal
matters, including but not limited to, preparation of tax
returns and financial statements and gathering of data
therefor; costs of defending any lawsuits with any mortgagee
(except as the actions of a tenant may be in issue); costs of
selling, syndication, financing, mortgaging or hypothecating
any of Lessor's interest in the Building; costs of any
disputes between Lessor and its employees (if any) not engaged
in the operation of the Building; disputes between Lessor and
the property management company managing the Building; and,
Lessor's headquarters office costs and general overhead.
(16) Any cost or expense for services or amenities that are
specifically for the benefit of a particular tenant and that
are of a nature not generally provided to all tenants in the
Building or for services or amenities generally provided to
all tenants in the Building but which are provided to any
particular tenant without additional charge or at a reduced
charge (on a net effective basis) than the charge imposed upon
other tenants.
(17) Lessor's cost of electricity, incremental air conditioning and
other services provided to other tenants at times or in
amounts for which Lessee would be billed under this Lease
Agreement as an additional charge.
(18) Any expense incurred as a direct result of the negligence of
Lessor, its agents, servants or employees or arising out of
Lessor's negligent failure to manage the Building consistently
with the standard required by this Lease Agreement to the
extent that such expense would not have been incurred in the
absence of such negligence.
(19) Costs incurred for the production and distribution of any
tenant newsletters, tenant perception surveys or the creation
and implementation of tenant retention programs.
(20) Charitable donations.
(21) Costs that would duplicate costs theretofore included in
Operating Expenses.
X. Xxxxxx agrees that it will maintain complete and accurate records of
all costs, expenses and disbursements which are incurred by Lessor, its
employees, agents and/or contractors, with respect to Operating Expenses and the
constituent components thereof. Lessee and/or its employees or a nationally
recognized certified public accounting firm, at Lessee's sole cost and expense,
shall have the right to inspect and/or audit not more often than once per
calendar year Lessor's books and records relating to this Lease Agreement for
any year or years during the Term hereof. Any such inspection and/or audit shall
be conducted at Lessor's office during normal business hours. Lessee must give
Lessor advance written notice of Lessee's intent to audit within two (2) years
after Lessee has received a statement setting forth the prior lease year's
Operating Expenses chargeable to Lessee, and if such notice is not sent by
Lessee within such two (2) year period, then Lessee waives its right to an audit
for that lease year. Such audit will be at Lessee's sole cost and expense,
provided that Lessor agrees to reimburse Lessee for the reasonable professional
or accounting costs and expenses incurred by Lessee in connection with any
inspection and/or audit that results in a determination that Operating Expenses
were overstated by five percent (5%) or more for the subject lease year. The
right of Lessee to audit and any audit by Lessee of Lessor's books and records
shall not affect the obligation of Lessee to pay, in accordance with the terms
hereof, Base Rent, additional rent or estimated additional rent subject,
however, to Lessor's reimbursement and/or reconciliation obligations set forth
herein. Lessor's and Lessee's obligations to reconcile estimated additional rent
with additional rent shall survive the expiration or termination of this Lease
Agreement by one (1) year.
E. Notwithstanding anything contained in the Lease Agreement to the
contrary, Lessor shall limit increases in controllable expenses to six percent
(6%) per year, compounded annually. Controllable expenses shall include all
Operating Expenses except taxes, insurance, utilities and governmentally
mandated changes (ie, minimum wage).
SEC. 7 SERVICE AND UTILITIES: Lessor will provide water at those common points
of supply provided for drinking, toilet and lavatory purposes and with
electricity for ordinary office uses (not to include, however, data processing
machines other than personal computers and related equipment that consumes less
than .25 kilowatts per hour at rated capacity or requires a voltage of 120 volts
single phase, including air conditioning costs therefor, large business machines
and similar equipment of high electrical consumption characteristics); ballast
and lamp replacement for the Building's standard fluorescent lighting fixtures
located in the Leased Premises; elevator service; janitorial service on a five
(5) day per week basis, in the manner and to the extent deemed standard by
Lessor during the periods and hours as such services are normally furnished to
all tenants. Lessee will pay all telephone charges. Lessor agrees to furnish
Lessee with refrigerated water at those points of supply provided for general
use of other tenants in the Building; heated and refrigerated air conditioning
in season to be provided during the hours of 7:00 a.m. to 6:00 p.m. on weekdays
and 8:00 a.m. to 1:00 p.m. on Saturday, at temperatures and in amounts which
Lessor considers standard. Lessor shall not be liable in damages or otherwise
for failure, stoppage or interruption of any such service, nor shall the same be
construed as an eviction of Lessee, work an abatement of rent, or relieve Lessee
from the operation of any covenant or agreement; but in the event of any
failure, stoppage or interruption thereof, Lessor shall use reasonable diligence
to restore service promptly. The work
3
of the building janitor shall not be hindered by Lessee. In the event Lessee
desires heating and air conditioning at times other than herein specified,
Lessee agrees to pay the entire cost thereof.
SEC. 8 MAINTENANCE, REPAIRS AND USE: Lessor shall provide for the cleaning and
maintenance of the public portions of the Building including painting and
landscaping surrounding the Building. Unless otherwise expressly stipulated
herein, Lessor shall not be required to make any improvements or repairs of any
kind or character on the Leased Premises during the Term of this Lease
Agreement, except such repairs as may be required by normal maintenance
operations which shall include repairs to the exterior walls, corridors,
windows, roof and other structural elements and equipment of the Building, and
such additional maintenance as may be necessary because of damages by persons
other than Lessee, its agents, employees, invitees or visitors. Lessor shall
have sole control over the parking of automobiles and other vehicles and shall
designate parking areas and building service areas.
Lessor, its officers, agents and representatives, subject to any security
regulations imposed by any governmental authority, after reasonable notice to
Lessee, shall have the right to enter all parts of the Leased Premises at all
reasonable hours to inspect, clean, make repairs, alterations and additions to
the Building or Leased Premises which it may deem necessary or desirable, or to
provide any service which it is obligated to furnish to Lessee, and Lessee shall
not be entitled to any abatement or reduction of rent by reason thereof.
Lessor may, at its option and at the cost and expense of Lessee, repair or
replace any damage or injury done to the Building or any part thereof, caused by
Lessee, Lessee's agents, employees, licensees, invitees or visitors; Lessee
shall pay the cost thereof to Lessor on demand. Lessee further agrees to
maintain and keep the interior of the Leased Premises in good repair and
condition at Lessee's expense. Lessee agrees not to commit or allow any waste or
damage to be committed on any portion of the Leased Premises, and at the
termination of this Lease Agreement, by lapse of time or otherwise, to deliver
up the Leased Premises to Lessor in as good condition as on date of possession
by Lessee, ordinary wear and tear alone excepted, and upon such termination of
this Lease, Lessor shall have the right to re-enter and resume possession of the
Leased Premises.
Lessee will not use, occupy or permit the use or occupancy of the Leased
Premises for any purpose which is directly or indirectly forbidden by law,
ordinance or governmental or municipal regulation or order, or which may be
dangerous to life, limb or property; or permit the maintenance of any public or
private nuisance; or do or permit any other thing which may disturb the quiet
enjoyment of any other tenant of the Building; or keep any substance or carry on
or permit any operation which might emit offensive odors or conditions into
other portions of the Building; or use any apparatus which might make undue
noise or set up vibrations in the Building; or permit anything to be done which
would increase the fire and extended coverage insurance rate on the Building or
contents and if there is any increase in such rates by reason of acts of Lessee,
then Lessee agrees to pay such increase promptly upon demand therefor by Lessor.
SEC. 9 QUIET ENJOYMENT: Lessee, on paying the said rent and performing the
covenants herein agreed to be by it performed, shall and may peaceably and
quietly have, hold and enjoy the Leased Premises for the said term.
SEC. 10 ALTERATIONS: Lessee covenants and agrees to keep the Leased Premises
free of all liens for improvements or otherwise and that it will make no
structural change or major alteration without Lessor's written consent in
advance, and without first furnishing Lessor fifteen (15) days advance written
notice outlining in detail the proposed changes or alterations.
SEC. 11 FURNITURE, FIXTURES AND PERSONAL PROPERTY: Lessee may remove its trade
fixtures, office supplies and movable office furniture and equipment not
attached to the Building provided: (a) such removal is made prior to the
termination of the term of this Lease Agreement; (b) Lessee is not in default of
any obligation or covenant under this Lease Agreement at the time of such
removal; and (c) Lessee promptly repairs all damage caused by such removal. All
other property at the Leased Premises and any alterations or additions to the
Leased Premises (including wall-to-wall carpeting, paneling or other wall
covering) and any other article attached or affixed to the floor, wall or
ceiling of the Leased Premises shall become the property of Lessor and shall
remain upon and be surrendered with the Leased Premises as a part thereof at the
termination of the Lease Agreement by lapse of time or otherwise, Lessee hereby
waiving all rights to any payment or compensation therefor.
SEC. 12 SUBLETTING AND ASSIGNMENT:
A. In the event Lessee should desire to assign this Lease Agreement or
sublet the Leased Premises or any part thereof or allow same to be used or
occupied by others, Lessee shall give Lessor written notice (which shall specify
the duration of said desired sublease or assignment, the date same is to occur,
the exact location of the space affected thereby, the proposed rentals on a
square foot basis chargeable thereunder and sufficient information of the
proposed sublessee or assignee regarding its financial condition and business
operations) of such desire at least ninety (90) days in advance of the date on
which Lessee desires to make such assignment or sublease or allow such a use or
occupancy. Lessor shall then have a period of sixty (60) days following receipt
of such notice within which to notify Lessee in writing that Lessor elects:
(1) IN THE EVENT SUCH ASSIGNEE OR SUBLESSEE FAILS TO MEET THE
CONDITIONS SET FORTH IN SUBPARAGRAPH (III) BELOW, to refuse to
permit Lessee to assign this Lease Agreement or sublet such
space, and in such case this Lease Agreement shall continue in
full force and effect in accordance with the terms and
conditions hereof; or
(2) To terminate this Lease Agreement as to the space so affected
as of the date so specified by Lessee in which event Lessee
shall be relieved of all obligations hereunder as to such
space arising from and after such date; or
(3) To permit Lessee to assign this Lease Agreement or sublet such
space for the duration specified in such notice, subject to
Lessor's subsequent written approval of the proposed assignee
or sublessee, which approval shall not be unreasonably
withheld or delayed if (a) the nature and character of the
proposed assignee or sublessee, its business and activities
and intended use of the Leased Premises are in Lessor's
reasonable judgment consistent with the current standards of
the Building and the floor or floors on which the Leased
Premises are located, (b) neither the proposed assignee or
sublessee (nor any party which, directly or indirectly,
controls or is controlled by or is under common control with
the proposed assignee or sublessee) is a department,
representative or agency of any governmental body or currently
an occupant of any part of the Building or a party with whom
Lessor is then negotiating to lease space in the Building or
in any adjacent Building owned by Lessor, (c) the form and
substance of the proposed sublease or instrument of assignment
is acceptable to Lessor (which acceptance by Lessor shall not
be unreasonably withheld) and is expressly subject to all of
the terms and provisions of this Lease Agreement and to any
matters to which this Lease Agreement is subject, (d) the
proposed occupancy would not (1) increase the office cleaning
requirements, (2) impose an extra burden upon the services to
be supplied by Lessor to Lessee hereunder, (3) violate the
current rules and regulations of the Building, (4) violate the
provisions of any other leases of tenants in the Building or
(5) cause alterations or additions to be made to the Building
(excluding the Leased Premises), (e) Lessee enters into a
written agreement with Lessor whereby it is agreed that fifty
percent (50%) of any profit realized by
4
Lessee as a result of said sublease or assignment and any and
all sums and other considerations of whatsoever nature paid to
Lessee by the assignee or sublessee for or by reason of such
assignment or sublease, including, but not limited to, sums
paid for the sale of Lessee's fixtures, leasehold
improvements, equipment, furniture, furnishings or other
personal property (that is, after deducting and giving Lessee
credit for Lessee's reasonable costs directly associated
therewith, including reasonable brokerage fees and the
reasonable cost of remodeling or otherwise improving the
Leased Premises for said assignee or sublessee but excluding
any free rentals or the like offered to any such sublessee or
assignee) shall be payable to Lessor as it accrues as
additional rent hereunder, and (f) the granting of such
consent will not constitute a default under any other
agreement to which Lessor is a party or by which Lessor is
bound.
B. No assignment or subletting by Lessee shall be effective unless Lessee
shall execute, have acknowledged and deliver to Lessor, and cause each sublessee
or assignee to execute, have acknowledged and deliver to Lessor, an instrument
in form and substance acceptable to Lessor in which (i) such sublessee or
assignee adopts this Lease Agreement and assumes and agrees to perform jointly
and severally with Lessee, all of the obligations of Lessee under this Lease
Agreement, as to the space transferred to it, (ii) Lessee and such sublessee or
assignee agree to provide to Lessor, at their expense, direct access from a
public corridor in the Building to the transferred space, (iii) such sublessee
or assignee agrees to use and occupy the transferred space solely for the
purpose specified in Section 3 and otherwise in strict accordance with this
Lease Agreement and (iv) Lessee acknowledges and agrees that, notwithstanding
such subletting or assignment, Lessee remains directly and primarily liable for
the performance of all the obligations of Lessee hereunder (including, without
limitation, the obligation to pay rent), and Lessor shall be permitted to
enforce this Lease Agreement against Lessee or such sublessee or assignee, or
both, without prior demand upon or proceeding in any way against any other
persons.
C. Any consent by Lessor to a particular assignment or sublease shall not
constitute Lessor's consent to any other or subsequent assignment or sublease,
and any proposed sublease or assignment by any assignee or sublessee shall be
subject to the provisions of this Section 12 as if it were a proposed sublease
or assignment by Lessee. The prohibition against an assignment or sublease
described in this Section 12 shall be deemed to include a prohibition against
Lessee's mortgaging or otherwise encumbering its leasehold estate, as well as
against an assignment or sublease which may occur by operation of law, each of
which shall be ineffective and void and shall constitute an event of default
under this Lease Agreement unless consented to by Lessor in writing in advance.
SEC. 13 FIRE AND CASUALTY: The parties hereto mutually agree that if the Leased
Premises are partially or totally destroyed by fire or other casualty covered by
the fire and extended coverage insurance carried by Lessor, then Lessor may
after thirty (30) days written notice to Lessee, at Lessor's option, repair and
restore the Leased Premises as soon as it is reasonably practicable, to
substantially the same condition in which the Leased Premises were before such
damage, or Lessor may terminate the Lease Agreement, provided, however, that in
the event the Leased Premises are completely destroyed or so badly damaged that
repairs cannot be commenced within thirty (30) days and completed within six (6)
months thereafter, then this Lease Agreement shall be terminable as of the date
of the occurrence of the damage or destruction, by either party hereto by
serving written notice to the other; and provided further, that, in any event,
if repairs have not been commenced within thirty (30) days from the date of said
damage and thereafter completed within a reasonable time, in no case to exceed
six (6) months, this Lease Agreement may be immediately terminated by Lessee as
of the date of occurrence of the damage or destruction, by serving written
notice upon Lessor.
In the event the Leased Premises are completely destroyed or so badly
damaged by fire or other casualty covered by the fire and extended coverage
insurance to be carried by Lessor that it cannot reasonably be used by Lessee
for the purposes herein provided and this Lease Agreement is not terminated as
above provided, then there shall be a total abatement of rent until the Leased
Premises are made usable. In the event the Leased Premises are partially
destroyed or damaged by fire or other hazard so that the Leased Premises can be
only partially used by Lessee for the purpose herein provided, then there shall
be a partial abatement in the rent corresponding to the time and extent which
the Leased Premises cannot be used by Lessee.
If the Leased Premises are damaged by fire or other casualty resulting
from the fault or negligence of Lessee, or the agents, employees, licensees or
invitees of Lessee, such damage shall be repaired by and at the expense of
Lessee under the direction and supervision of Lessor, and rent shall continue
without abatement.
SEC. 14 CONDEMNATION: In the event the Building, Leased Premises or any portion
thereof shall be taken or condemned in whole or in part for public purposes,
then the term of this Lease Agreement shall, at the option of Lessor, forthwith
cease and terminate, and Lessor shall receive the entire award for land and
buildings. Lessee shall have the right to recover from such condemning
authority, but not from Lessor, any compensation as may be awarded to Lessee on
account of the difference between the actual rental rate of the Leased Premises
and the fair market value thereof, to the extent the fair market value exceeds
such actual rental, moving and relocation expenses, and depreciation to and
removal of Lessee's personal property. In the event Lessor does not terminate as
herein provided, there shall be a proportionate reduction in rent.
5
SEC. 15 DEFAULT BY LESSEE: If Lessee should default in any covenant or agreement
to be performed by it or abandon or vacate the Leased Premises and, if after
written notice is given by Lessor to Lessee (except for a default caused by the
nonpayment of rent as set forth in Section 5 hereof, for which no notice is
required), such default shall continue for a period of ten (10) days or if the
leasehold interest of Lessee shall be taken on execution or other process of
law, then and in any of said cases, Lessor may immediately or at any time
thereafter, without further notice or demand, enter upon and into the Leased
Premises or any part thereof and take absolute possession of the same fully and
absolutely without such re-entry automatically working a forfeiture of the rents
to be paid and the covenants to be performed by Lessee for the full term of this
Lease Agreement and at Lessor's election, Lessor may either lease or sublet the
Leased Premises or any part thereof on such terms and conditions and for such
rents and for such times as Lessor may reasonably elect and after crediting the
proceeds of any rent collected by Lessor from such reletting on the rentals
stipulated to be paid under this Lease Agreement by Lessee, collect from Lessee
any balance remaining due on the rent reserved under this Lease Agreement, or
Lessor may declare this Lease Agreement forfeited and may take full and absolute
possession of the Leased Premises free from any subsequent rights or obligations
of Lessee or at the option of Lessor, the present value of the entire rent for
the balance of the Term, computed using a discount rate of eight percent (8%),
but allowing for a reasonable period fo vacancy as determined by the market
conditions at that time (during which reasonable period of vacancy no discount
rate shall be applied) shall at once become due and payable, as if by the terms
of this Lease Agreement it were all payable in advance. In the event of such
default and reletting by Lessor, Lessee agrees to pay all costs of refurbishing
and all costs of reletting the Leased Premises.
All remedies herein given Lessor, including all those not set forth but
provided by law, shall be cumulative, and the exercise of one or more of such
remedies by Lessor shall not exclude the exercise of any other consistent
remedy, nor shall any waiver by Lessor, express or implied, or any breach of any
term, covenant or condition hereof be deemed a waiver of such term, condition or
covenant, or of any subsequent breach of the same or any other term, covenant or
condition hereof. Acceptance of rent by Lessor from Lessee or any assignee,
sublessee or other successor in interest to Lessee, with or without notice,
shall never be construed as a waiver of any breach of any term, condition or
covenant of this Lease Agreement. Failure of Lessor to declare any default upon
occurrence thereof, or delay in taking action with respect thereto, shall not
waive such default, but Lessor shall have the right to declare such default at
any time and take such action as may be authorized hereunder, in law or equity,
or otherwise.
In addition to the payment of the rents and the late payment charge as
provided herein, Lessee agrees to reimburse Lessor for all expenses incurred by
Lessor in effecting enforcement of these Lease Agreement provisions, lease
termination, right of re-entry and in securing possession of the Leased
Premises, including attorneys' fees, (whether suit is filed or not) and court
costs. In the event of a money judgment, attorneys' fees shall be reasonable.
SEC. 16 HOLD HARMLESS: Lessee will indemnify Lessor for, and hold Lessor
harmless from and against all fines, suits, claims, demands, liabilities, and
actions (including costs and expenses of defending against such claims)
resulting or alleged to result from any breach, violation or non-performance of
any covenant or condition hereof or from the use or occupancy of the Leased
Premises, by Lessee or Lessee's agents, employees, licensees or invitees. Lessor
shall not be liable to Lessee or Lessee's agents for any damage to person or
property resulting from any act or omission or negligence of any co-tenant,
visitor or other occupant of the Xxxxxxxx.
XXX. 00 XXXX XXXXXX: Lessor expressly waives any and all liens, express or
implied, statutory or contractual, that would otherwise serve to secure Lessee's
obligation hereunder.
SEC. 18 NON-WAIVER: Neither acceptance of rent by Lessor nor failure by Lessor
to exercise available rights and remedies, whether singular or repetitive, shall
constitute a waiver of any of Lessor's rights hereunder. Waiver by Lessor of any
right for any default of Lessee shall not constitute a waiver of any right for
either a subsequent default of the same obligation or any other default. No act
or thing done by Lessor or its agent shall be deemed to be an acceptance or
surrender of the Leased Premises and no agreement to accept a surrender of the
Leased Premises shall be valid unless it is in writing and signed by a duly
authorized officer or agent of Lessor.
SEC. 19 RULES AND REGULATIONS: Such reasonable rules and regulations applying to
all tenants in the Building as may be hereafter adopted by Lessor for the
safety, care and cleanliness of the premises and the preservation of good order
thereon, are hereby made a part hereof and Lessee agrees to comply with all such
rules and regulations. Lessor shall have the right at all times to change such
rules and regulations or to amend them in any reasonable manner as may be deemed
advisable by Lessor, all of which changes and amendments will be sent by Lessor
to Lessee in writing and shall be thereafter carried out and observed by Lessee.
(See Exhibit "C" attached.)
SEC. 20 ASSIGNMENT BY LESSOR: Lessor shall have the right to assign or transfer,
in whole or in part, every feature of its rights and obligations hereunder and
in the Building and Leased Premises. Such assignments or transfers may be made
to a corporation, trust, trust company, individual or group of individuals, and
howsoever made shall be in all things respected and recognized by Lessee. Lessee
specifically agrees to look solely to Lessor's interest in the Building for the
recovery of any judgment from Lessor, it being agreed that Lessor shall never be
personally liable for any such judgment.
6
SEC. 21 SEVERABILITY: This Lease Agreement shall be construed in accordance with
the laws of the State of Texas. If any clause or provision of this Lease
Agreement is illegal, invalid or unenforceable, under present or future laws
effective during the term hereof, then it is the intention of the parties hereto
that the remainder of this Lease Agreement shall not be affected thereby, and it
is also the intention of both parties that in lieu of each clause or provision
that is illegal, invalid or unenforceable, there be added as part of this Lease
Agreement 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.
SEC. 22 SIGNS: No signs of any kind or nature, symbol or identifying xxxx shall
be put on the Building, in the halls, elevators, staircases, entrances, parking
areas or upon the doors or walls, whether plate glass or otherwise, of the
Leased Premises or within the Leased Premises so as to be visible from the
public areas or exterior of the Building without prior written approval of
Lessor. All signs or lettering shall conform in all respects to the sign and/or
lettering criteria established by Lessor.
SEC. 23 SUCCESSORS AND ASSIGNS: Lessor and Lessee agree that all provisions
hereof are to be construed as covenants and agreements as though the words
imparting such covenants were used in each separate paragraph hereof, and that,
except as restricted by the provisions of the section entitled "Subletting and
Assigning" hereof, this Lease Agreement and all the covenants herein contained
shall be binding upon the parties hereto, their respective heirs, legal
representatives, successors and assigns.
SEC. 24 SUBORDINATION: Lessor shall obtain and deliver to Lessee within thirty
(30) days after the date of this Lease Agreement a Subordination,
Non-Disturbance and Attornment Agreement (the "SNDA") from Lessor's mortgagee
providing, as a condition to Lessee's subordination or attornment to such
mortgagee, that Lessee shall not be disturbed in its possession of the Leased
Premises during the Term hereof, nor will Lessee's rights under this Lease
Agreement be terminated, so long as Lessee is not under default under this Lease
Agreement beyond any applicable cure period. In the event Lessor does not
deliver the SNDA within such thirty (30) day period, Lessee shall have the right
to terminate this Lease Agreement. Lessee shall, in the event of any proceedings
brought for the foreclosure of, or in the event of the exercise of the power of
sale under, any mortgage or deed of trust covering the Leased Premises, attorn
to and recognize such purchaser or assignee or mortgagee as Lessor under this
Lease Agreement.
SEC. 25 ACCESS BY LESSOR: After reasonable notice to Lessee, except in the case
of an emergency, Lessor, its agents and employees shall have access to and the
right to enter upon the Leased Premises at any reasonable time to examine the
condition thereof, to make any repairs or alterations required to be made by
Lessor hereunder, to show the Leased Premises to prospective purchasers or
tenants and for any other purpose deemed reasonable by Lessor.
SEC. 26 DELAY IN POSSESSION: In the event the Leased Premises should not be
ready for occupancy by the Commencement Date stated in Section 2 hereinabove by
reason of acts of God, strikes, walkouts or other industrial disturbance,
explosions, unavailability of materials, acts of governments or for any reason
whatsoever, Lessor shall not be liable or responsible for any claims, damages or
liabilities in connection therewith or by reason thereof, and the term of this
Lease Agreement shall commence at the time the Leased Premises are ready for
occupancy by Lessee. Should the term of this Lease Agreement commence on a date
other than that specified in Section 2 hereinabove for any reason, Lessor and
Lessee will, at the request of either, execute a revised commencement date and
the stated term in this Lease Agreement shall thereupon commence and the
expiration date shall be extended so as to give effect to the full stated term.
SEC. 27 HOLDING OVER: In the event of holding over by Lessee after the
expiration or termination of the Lease Agreement, such hold over shall be as a
tenant at will and all of the terms and provisions of this Lease Agreement shall
be applicable during such period, except that Lessee shall pay Lessor as rental
for the period of such hold over an amount equal to one hundred fifty percent
(150%) the rent payable by Lessee for the month immediately preceding the
holdover period, and Lessee will vacate the Leased Premises and deliver the same
to Lessor upon Lessee's receipt of notice from Lessor to vacate the Leased
Premises. The rental payable during such hold over period shall be payable to
Lessor on demand. No holding over by Lessee, whether with or without consent of
Lessor, shall operate to extend this Lease Agreement except as herein provided.
SEC. 28 INDEPENDENT OBLIGATION TO PAY RENT: It is the intention of the parties
hereto that the obligations of Lessor and Lessee hereunder shall be separate and
independent covenants and agreements, that the rent and all other sums payable
by Lessee hereunder shall continue to be payable in all events and that the
obligations of Lessee hereunder shall continue unaffected, unless the
requirement to pay or perform the same shall have been terminated pursuant to an
express provision of this Lease Agreement.
Lessee agrees that it will remain obligated under this Lease Agreement in
accordance with its terms, and that it will not take any action to terminate,
rescind or void this Lease Agreement, notwithstanding (a) the bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding up or other proceeding affecting Lessor or any assignee of Lessor in any
such proceeding and (b) any action with respect to this Lease Agreement which
may be taken by any trustee or receiver of Lessor or of any assignee of Lessor
in any such proceeding or by any court in any such proceeding.
7
Except as otherwise expressly provided herein, Lessee waives the right (a)
to quit, terminate or surrender this Lease Agreement or the Leased Premises or
any part thereof, or (b) to any abatement, suspension, deferment or reduction of
the rent or any other sums payable under this Lease Agreement.
SEC. 29 INDEMNITY OF LESSOR-INSURANCE:
A. Except for Lessor's gross negligence or willful misconduct not waived
by Lessee, Lessee covenants that Lessor shall not be liable for any damage or
liability of any kind or for any injury to or death of persons or damage to
property of Lessee or any other person, including consequential loss or damage
from any cause whatsoever by reason of the construction, use, occupancy or
enjoyment of the Leased Premises by Lessee or any person therein or holding
under Lessee or by or through the acts or omissions of other tenants of the
Building. Lessee hereby agrees, as part of the material consideration for this
Lease Agreement, to indemnify and save Lessor harmless from all claims, action,
demands, costs and expenses and liability whatsoever, including reasonable
attorneys' fees, on account of any such real or claimed damage or liability, and
from all liens, claims and demands occurring in, on or at any portion of the
Leased Premises and its facilities, or any repairs or alterations which Lessee
may make upon the Leased Premises.
B. Lessee shall carry insurance during the entire Term insuring Lessee and
Lessor, as their interests may appear, with provisions, coverages and in
companies reasonably acceptable to Lessor, and with such increases in limits as
Lessor may from time to time request; initially, Lessee shall maintain coverages
as follows:
(1) LIABILITY COVERAGE. In case of personal injury to or death of
any person, $1,000,000 for each occurrence and, in case of
property damage, not less than $500,000 for any one
occurrence.
(2) FIRE AND EXTENDED COVERAGE. In case of fire, sprinkler
leakage, malicious mischief, vandalism and other extended
coverage perils, for the full insurable replacement value of
all additions, and of all office furniture, office equipment,
merchandise and all other items of Lessee's property in the
Leased Premises.
(3) WORKER'S COMPENSATION COVERAGE. Throughout the Term of this
Lease Agreement, Lessee shall maintain in full force and
effect a policy or policies of statutory worker's compensation
insurance, in the amount required by law, issued by an
insurance company acceptable to Lessor.
(4) CERTIFICATE OF INSURANCE. Upon the earlier of fifteen (15)
days after the execution hereof or fifteen (15) days prior to
the Commencement Date, Lessee shall furnish to Lessor policies
or certificates evidencing such coverage, which certificates
shall state that such insurance coverage may not be changed or
cancelled without at least thirty (30) days prior written
notice to Lessor and Lessee. In the event Lessee shall fail to
procure such insurance, Lessor may, at its option, procure the
same for the account of Lessee and the cost thereof shall be
paid to Lessor as additional rent upon receipt by Lessee of
bills therefor.
X. Xxxxxx shall at all times during this Term of this Lease Agreement
maintain in effect a policy or policies of insurance covering the Building
(excluding property required to be insured by Lessee) in an amount equal to one
hundred percent (100%) of replacement cost for the Building providing protection
against perils included within the standard Texas form of fire and extended
coverage insurance policy, together with insurance against sprinkler damage,
vandalism and malicious mischief, and such other risks as Lessor may from time
to time determine. Lessor shall at all times during the Term hereof maintain in
effect a policy of commercial general liability insurance with limits of at
least One Million and 00/100 Dollars ($1,000,000.00) per occurrence and Two
Million and 00/100 Dollars ($2,000,000.00) in the aggregate.
SEC. 30 WAIVER OF SUBROGATION: Lessor and Lessee hereby waive any rights each
may have against the other, on account of any loss or damage occasioned to
Lessor or Lessee, as the case may be, their respective property, the Leased
Premises, its contents or to the other portion of the property arising from any
risk covered by valid and enforceable fire and extended coverage insurance, to
the extent of such coverage. Lessor and Lessee each agree to cause an
endorsement to be furnished to their respective insurance policies recognizing
this waiver of subrogation.
SEC. 31 ENTIRE AGREEMENT: This instrument and any attached addenda or exhibits
signed by the parties constitute the entire agreement between Lessor and Lessee;
no prior written or prior or contemporaneous oral promises or representations
shall be binding. This Lease Agreement shall not be amended, changed or extended
except by written instrument signed by both parties hereto. Paragraph captions
herein are for Lessor's and Lessee's convenience only, and neither limit nor
amplify the provisions of this instrument. Lessee agrees, at Lessor's request,
to execute a recordable Memorandum of this Lease Agreement.
SEC. 32 NOTICES: Whenever in this Lease Agreement it shall be required or
permitted that notice or demand be given or served by either party to this Lease
Agreement to or on the other, such notice or demand shall be given or served and
shall not be
8
deemed to have been given or served unless in writing and delivered personally
or forwarded by Certified or Registered Mail, postage prepaid or other reputable
common carrier guaranteeing next-day delivery, addressed as follows:
To the Lessor: FRM West Loop Associates #6, Ltd.
0000 Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
To the Lessee: At the Address noted for Lessee on the signature page
hereof until the Commencement Date, at which time it
shall become the Address of the Leased Premises.
Such addresses may be changed from time to time by either party by serving
notice as above provided.
SEC. 33 COMMENCEMENT DATE: As of date hereof, Lessor and Lessee acknowledge that
the Leased Premises has not been completed. Lessor shall use its best efforts to
accomplish the completion of the Leased Premises in accordance with the
construction agreement attached hereto as Exhibit "F" and deliver possession
thereof to Lessee by April 1, 2002. Any delay in delivering possession of the
Leased Premises shall result in a change in the Commencement Date unless the
delay is caused solely by Lessee. In the event that said Leased Premises have
not in fact then been completed as aforesaid, Lessee shall notify Lessor in
writing of its objections. Lessor shall have a reasonable time after delivery of
such notice in which to take such corrective action as may be necessary, and
shall notify Lessee in writing as soon as it deems such corrective action has
been taken and the Leased Premises are completed and ready for occupancy by
Lessee. Taking of possession by Lessee shall be conclusively deemed to establish
that said Leased Premises are in good and satisfactory condition as of the date
possession was so taken by Lessee, except for latent defects, if any. Lessee
shall, if requested by Lessor, execute and deliver to Lessor an Acceptance of
Premises Memorandum of the Leased Premises, which shall be attached as Exhibit
"D" hereto. The date the Leased Premises have been completed in accordance
herewith shall be the first day of the term hereof and said Acceptance of
Premises Memorandum, if requested by Lessor, shall bear such date, and the rent
herein imposed shall accrue from and after such date which is hereby designated
"Commencement Date". In the event that the Commencement Date is a date after the
first day of the Term as stated in Section 2 of this Lease Agreement, then the
expiration date shall be extended by the same number of days. In the event that
the Commencement Date is a date prior to the first day of the Term as stated in
Section 2 of this Lease Agreement, then the expiration date shall not change.
SEC. 34 RELOCATION OF LESSEE: INTENTIONALLY DELETED.
SEC. 35 BROKERS: Lessee warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease
Agreement, excepting only the broker(s) named on the signature page of this
Lease Agreement and that it knows of no other real estate broker(s) or agent(s)
who is(are) or might be entitled to a commission in connection with this Lease
Agreement. Lessor shall agree to pay all real estate commissions due in
connection with this Lease Agreement only to the broker(s) named herein and
Lessee agrees to indemnify and hold harmless Lessor from and against any
liability from all other claims for commission arising from the negotiation of
this Lease Agreement.
SEC. 36 ESTOPPEL CERTIFICATES: From time to time after Lessee accepts the Leased
Premises, within ten (10) days after request in writing therefor from Lessor,
Lessee agrees to execute and deliver to Lessor, or to such other addressee or
addresses as Lessor may designate (and Lessor and any such addressee may rely
thereon), a statement in writing in the form of Exhibit "E" or in such other
form and substance reasonably satisfactory to Lessor (herein called "Lessee's
Estoppel Certificate"), certifying to all or any part of the information
provided for in Exhibit "E" as is requested by Lessor.
In the event that Lessee fails to provide Lessee's Estoppel Certificate
within ten (10) days after Lessor's written request therefor, Lessee does hereby
irrevocably appoint Lessor as attorney-in-fact of Lessee, coupled with an
interest, in Lessee's name, place and stead to sign and deliver Lessee's
Estoppel Certificate as if the same had been signed and delivered by Lessee.
SEC. 37 EXHIBITS: Exhibits A through F are attached hereto and made a part of
this Lease Agreement.
IN WITNESS WHEREOF, Lessor and Lessee, acting herein by duly authorized
individuals, have caused these presents to be executed in multiple counterparts,
each of which shall have the force and effect of an original on this 20th day of
February, 2002.
9
LESSOR:
FRM WEST LOOP ASSOCIATES #6, LTD.,
a Texas limited partnership
By: FRM 1603, Inc., General Partner
By: /s/ Xxxxxxxxx X. XxXxxx
-----------------------
Xxxxxxxxx X. XxXxxx, President
LESSEE:
TEXAS BIOTECHNOLOGY CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxxxxx
-----------------------
Name: Xxxxx X. XxXxxxxxxx
-----------------------
Title: President & CEO
-----------------------
ADDRESS:
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
10
EXHIBIT B
PARKING AGREEMENT
Building: 0000 Xxxx Xxxx Xxxxx Xxxxx No.: 400
Lessor: FRM West Loop Associates #6, Ltd.
Lessee: Texas Biotechnology Corporation, Date of Lease: 2/20/02
a Delaware corporation
So long as the Lease Agreement of which this agreement is a part shall remain in
effect, Lessee or persons designated by Lessee shall rent on a non-exclusive
basis up to eight (8) reserved parking spaces and up to fifty-two (52)
unreserved parking spaces on Level 2 or above of the garage.
Lessee shall pay as rent for each parking space, at the same times and in the
same manner as Base Rent is due under the Lease Agreement; the rate for such
parking spaces from time to time designated by Lessor as standard for the
Building.
Lessee shall pay initially for each space rented a sum of Sixty and 00/100
Dollars ($60.00) per space, per month (plus applicable sales tax) for reserved
parking spaces and Forty-Five and 00/100 Dollars ($45.00) per space, per month
(plus applicable sales tax) for unreserved parking spaces; provided, however,
that Lessee shall pay only for those spaces actually being utilized by Lessee up
to eight (8) reserved and twenty-six (26) unreserved parking spaces. Lessee
shall have the right to use the balance of up to twenty-six (26) unreserved
parking spaces at no cost throughout the Term hereof.
Lessor shall provide Lessee at least sixty (60) days notice of any change in the
standard parking rates and the giving of such notice shall be deemed an
amendment to this Agreement and Lessee shall thereafter pay the adjusted rent.
Lessee may validate visitor parking by such method or methods as Lessor may
approve, at the validation rate from time to time generally applicable to
visitor parking. Lessor expressly reserves the right to designate and
redesignate parking areas for Lessee and/or Lessee's visitors, and to modify the
parking structure for other uses or to any extent.
A condition of any parking shall be compliance by the xxxxxx with garage rules
and regulations, including any sticker or other identification system
established by Lessor. The following rules and regulations are in effect until
notice is given to Lessee of any change. Lessor reserves the right to modify
and/or adopt such other reasonable and non-discriminatory rules and regulations
for the garage as it deems necessary for the operation of the garage. Lessor may
refuse to permit any person who violates the rules to park in the garage, and
any violation of the rules shall subject the car to removal.
PARKING RULES AND REGULATIONS
1. Cars must be parked entirely within the stall lines painted on the floor.
2. All directional signs and arrows must be observed.
3. The speed limit shall be five (5) miles per hour.
4. Parking prohibited:
(a) in areas not striped for parking
(b) in aisles
(c) where "no parking" signs are posted
(d) on ramps
(e) in cross-hatched areas
(f) in spaces reserved for exclusive use by designated tenants
(g) in such other areas as may be designated by Lessor or Lessor's
agent(s).
5. Parking stickers or any other device or form of identification supplied by
Lessor shall remain the property of Lessor and shall not be transferable.
There will be a replacement charge payable by Lessee equal to the amount
posted from time to time by Lessor for loss of any magnetic parking card
or parking sticker.
6. Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.
7. Every xxxxxx is required to park and lock his own car. All responsibility
for damage to cars or persons is assumed by the xxxxxx.
11
8. Lessee is required to give Lessor, on a quarterly basis, a list of
employees parking in the garage which shall include year, make and model
of car and license number.
Failure to promptly pay the rent required hereunder or persistent failure on the
part of Lessee or Lessee's designated parkers to observe the Rules and
Regulations above shall give Lessor the right to terminate Lessee's right to use
the parking structure. No such termination shall create any liability on Lessor
or be deemed to interfere with Lessee's right to quiet possession of its
Premises.
12
EXHIBIT C
RULES AND REGULATIONS
The following standards shall be observed by Lessee for the mutual safety,
cleanliness and convenience of all occupants of the Building. These rules are
subject to change from time to time, as specified in the Lease Agreement.
1. All tenants will refer all contractors' representatives and installation
technicians who are to perform any work within the Building to Lessor for
Lessor's supervision, approval and control before the performance of any
such work. This provision shall apply to all work performed in the
Building including, but not limited to, installations of telephones,
computer equipment, electrical devices and attachments, and any and all
installations of every nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment and any other physical portion of the
Building. Lessee shall not xxxx, paint, drill into, or in any way deface
any part of the Building or the Leased Premises, except with the prior
written consent of the Lessor, and as the Lessor may direct.
2. The work of the janitorial or cleaning personnel shall not be hindered by
Lessee after 5:30 p.m., and such work may be done at any time when the
offices are vacant. The windows, doors and fixtures may be cleaned at any
time. Lessee shall provide adequate waste and rubbish receptacles,
cabinets, book cases, map cases, etc., necessary to prevent unreasonable
hardship to Lessor in discharging its obligations regarding cleaning
service.
3. Movement of furniture or office equipment in or out of the Building, or
dispatch or receipt by Lessee of any heavy equipment, bulky material or
merchandise which requires use of elevators or stairways, or movement
through the Building's service dock or lobby entrance shall be restricted
to such hours as Lessor shall designate. All such movement shall be in a
manner to be agreed upon between Lessee and Lessor in advance. Such prior
arrangements shall be initiated by Lessee. The time, method and routing of
movement and limitations for safety or other concern which may prohibit
any article, equipment or other item from being brought into the Building
shall be subject to Lessor's discretion and control. Any hand trucks,
carryalls or similar appliances used for the delivery or receipt of
merchandise or equipment shall be equipped with rubber tires, side guards
and such other safeguards as the Building shall require. Although Lessor
or its personnel may participate in or assist in the supervision of such
movement, Lessee assumes final responsibility for all risks as to damage
to articles moved and injury to persons or property engaged in such
movement, including equipment, property and personnel of Lessor if damaged
or injured as a result of acts in connection with carrying out this
service for Lessee, from the time of entering the property to completion
of work. Lessor shall not be liable for the acts of any person engaged in,
or any damage or loss to any of said property or persons resulting from
any act in connection with such service performed for Lessee.
4. No sign, advertisement or notice shall be displayed, painted or affixed by
Lessee, its agents, servants or employees, in or on any part of the
outside or inside of the Building or Leased Premises without prior written
consent of Lessor, and then only of such color, size, character, style and
material and in such places as shall be approved and designated by Lessor.
Signs on doors and entrances to the Leased Premises shall be placed
thereon by Lessor.
5. Lessee shall not place, install or operate on the Leased Premises or in
any part of the Building any engine, refrigerating, heating or air
conditioning apparatus, stove or machinery, or conduct mechanical
operations, or place or use in or about the Leased Premises any
inflammable, explosive, hazardous or odorous solvents or materials without
the prior written consent of Lessor. No portion of the Leased Premises
shall at any time be used for cooking, sleeping or lodging quarters.
Lessee may use coffee pots, refrigerators or microwaves in Leased
Premises.
6. Lessee shall not make or permit any loud or improper noises in the
Building or otherwise interfere in any way with other tenants.
7. Lessor will not be responsible for any lost or stolen personal property or
equipment from the Leased Premises or public areas, regardless of whether
such loss occurs when the area is locked against entry or not.
8. Lessee, or the employees, agents, servants, visitors or licensees of
Lessee, shall not, at any time or place, leave or discard rubbish, paper,
articles or objects of any kind whatsoever outside the doors of the Leased
Premises or in the corridors or passageways of the Building or attached
garage. No animals, bicycles or vehicles of any description shall be
brought into or kept in or about the Building.
9. No additional lock or locks shall be placed by Lessee on any door in the
Building unless written consent of Lessor shall have first been obtained.
Two (2) keys will be furnished by Lessor for the Leased Premises, and any
additional key required must be obtained from Lessor. A charge will be
made for each additional key furnished. All keys shall be surrendered to
Lessor upon termination of tenancy.
10. None of the entries, passages, doors, hallways or stairways in the
Building shall be blocked or obstructed.
13
11. Lessor shall have the right to determine and prescribe the weight and
proper position of any unusually heavy equipment, including computers,
safes, large files, etc., that are to be placed in the Building, and only
those which in the exclusive judgement of the Lessor will not do damage to
the floors, structure and/or elevators may be moved into the Building. Any
damage caused by installing, moving or removing such aforementioned
articles in the Building shall be paid for by Lessee.
12. All Christmas and other decorations must be constructed of flame retardant
materials. Live Christmas trees are not permitted in the Leased Premises.
13. Lessee shall provide Lessor with a list of all personnel authorized to
enter the Building after hours (6:00 p.m. to 7:00 a.m. Monday through
Friday, 1:00 p.m. to 12:00 midnight Saturdays, and 24 hours a day on
Sundays and holidays).
14. After hours air conditioning/heating (6:00 p.m. to 7:00 a.m. Monday
through Friday; 1:00 p.m. to 12:00 midnight Saturday; and 24 hours a day
Sunday and holidays) must be requested in writing by noon of a regular
work day prior to the day for which additional air conditioning is
requested. Lessee shall be charged the prevailing hourly rate.
15. The following dates shall constitute "holidays" as said term is used in
this Lease Agreement: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving and the Friday following Thanksgiving Day,
Christmas and any other holiday recognized and taken by tenants
cumulatively occupying at least one-half of the net rentable area of
office space of the Building.
16. Lessee shall notify Lessor of furniture or equipment to be removed from
the Building after hours. Description and serial numbers shall be provided
if requested by Lessor.
17. Lessor shall designate one elevator to be the freight elevator to be used
to handle packages and shipments of all kinds. The freight elevator shall
be available to handle such deliveries from 9:00 a.m. to 11:00 a.m. and
2:00 p.m. to 3:30 p.m. weekdays. Parcel Post, express, freight or
merchants' deliveries can be made anytime within these hours. No furniture
or freight shall be handled outside the above hours, except by previous
arrangement.
18. Names to be placed on or removed from the directory board in the lobby of
the Building should be furnished to the Building Manager in writing on
Lessee's letterhead. Lessee is allocated one (1) directory strip. At
Lessor's option, additional strips may be provided to Lessee at Lessor's
cost plus fifteen percent (15%).
19. Any additional services as are routinely provided to tenants, not required
by the Lease Agreement to be performed by Lessor, which Lessee requests
Lessor to perform, and which are performed by Lessor, shall be billed to
Lessee at Lessor's cost plus fifteen percent (15%).
20. All doors leading from public corridors to the Leased Premises are to be
kept closed when not in use.
21. Canvassing, soliciting or peddling in the Building is prohibited and
Lessee shall cooperate to prevent same.
22. Lessee shall give immediate notice to the Building Manager in case of
accidents in the Leased Premises or in the Building or of defects therein
or in any fixtures or equipment, or of any known emergency in the
Building.
23. Lessee shall not use the Leased Premises or permit the Leased Premises to
be used for photographic, multilith or multigraph reproductions, except in
connection with its own business.
24. The requirements of Lessee will be attended to only upon application to
the Building Manager. Employees of Lessor shall not perform any work or do
anything outside of their regular duties, unless under special
instructions from the Building Manager.
25. Lessee shall place or have placed solid pads under all rolling chairs such
as may be used at desks or tables. Any damages caused to carpet by not
having same shall be repaired or replaced at the expense of Lessee.
26. Lessee, or the employees, agents, servants, visitors or licensees of
Lessee shall abide by the rules and regulations for the garage included in
the Parking Agreement attached hereto as Exhibit B.
27. Lessor reserves the right to rescind any of these Rules and Regulations of
the Building, and to make such other and further rules and regulations as
in its judgement shall from time to time be needful for the safety,
protection, care and cleanliness of the Building, the Leased Premises and
the attached garage, the operation thereof, the preservation of good order
therein and the protection and comfort of the other tenants in the
Building and their agents, employees and invitees, which rules and
regulations, when made and written notice thereof is given to Lessee,
shall be binding upon Lessee in like manner as if originally herein
prescribed.
14
28. Lessor will provide sixty (60) cardkeys to Lessee. All others will be
furnished to Lessee at a cost of Ten and 00/100 Dollars ($10.00) per card.
Any future increase in the cost of cardkeys will be passed on to Lessee
for any additional cardkeys required.
29. Lessee, or its employees, agents, servants, visitors, invitees or
licensees of Lessee, shall not smoke or permit to be smoked cigarettes,
cigars or pipes within the Leased Premises or Building. Smoking shall be
confined to area(s) designated by Lessor. Lessor shall have no obligation
to Lessee for failure of another tenant, its employees, agents, servants,
visitors, invitees or licensees to comply with this paragraph.
15
EXHIBIT D
ACCEPTANCE OF PREMISES MEMORANDUM
This Memorandum is an amendment to the Lease Agreement for space in 0000 Xxxx
Xxxx Xxxxx, Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx, executed on the _______________ day
of _________________________, 20_____ between FRM WEST LOOP ASSOCIATES #6, LTD.
as Lessor and TEXAS BIOTECHNOLOGY CORPORATION, a Delaware corporation as Lessee.
Lessor and Lessee hereby agree that:
1. Except for those items shown on the attached "punch list", if any, which
Lessor will remedy within ___________ days hereof, Lessor has fully
completed the construction work required under the terms of the Lease
Agreement.
2. The Leased Premises are tenantable, the Lessor has no further obligation
for construction (except as specified above), and Lessee acknowledges that
both the Building and the Leased Premises are satisfactory in all
respects.
3. The Commencement Date of the Lease Agreement is hereby agreed to be the
________________________ day of _____________________________, 20_____.
4. The Expiration Date of the Lease Agreement is hereby agreed to be the
______________________ day of __________________________, 20______.
All other terms and conditions of the Lease Agreement are hereby ratified and
acknowledged to be unchanged.
Agreed and Executed this _______________ day of _________________________,
20__________.
Lessor:
FRM WEST LOOP ASSOCIATES #6, LTD., a Texas limited partnership
By: FRM 1603, Inc., General Partner
By: ________________________________________
Xxxxxxxxx X. XxXxxx, President
Lessee:
TEXAS BIOTECHNOLOGY CORPORATION,
a Delaware corporation
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
16
EXHIBIT E
LESSEE'S ESTOPPEL CERTIFICATE
(Addressee)
RE: 0000 Xxxx Xxxx Xxxxx - Xxxxxxxx, Xxxxx
Gentlemen:
The undersigned ("Lessee") has executed and entered into that certain lease
agreement ("Lease Agreement") attached hereto as Exhibit A and made a part
hereof for all purposes with respect to those certain premises ("Leased
Premises") which are located in the above-referenced project ("Project") and are
more fully described in the Lease Agreement. Lessee understands that the entity
to whom this letter is addressed ("Addressee") has committed to loan or invest a
substantial sum of money in reliance upon this certification by the undersigned,
which certification is a condition precedent to making such loan or investment,
or that Addressee intends to take some other action in reliance upon this
certification.
With respect to the Lease Agreement, Lessee certifies to you the following, with
the intention that you may rely fully thereon:
1. A true and correct copy of the Lease Agreement, including any and all
amendments and modifications thereto, is attached hereto as Exhibit A;
2. The original Lease Agreement is dated ______________________________,
20_____, and has been assigned, modified, supplemented or amended only in
the following respects:
(Please write "None" above or, on a separate sheet of paper, state the
effective date of and describe any oral or written modifications,
supplements or amendments to the Lease Agreement and attach a copy of such
modifications, supplements or amendments, with the Lease Agreement as
Exhibit A);
3. Lessee is in actual occupancy of the Leased Premises under the Lease
Agreement; the Leased Premises are known as Suite _________, of the
Project; and the Leased Premises contain approximately ______________
square feet;
4. The initial term of the Lease Agreement commenced on
______________________________, 20____, and ends at midnight on
__________________________________, 20_____, at a monthly base rent of
$_______________________________, and no rentals or other payments in
advance of the current calendar month have been paid by Lessee, except as
follows:
(Please write "None" above or describe such payments on a separate sheet
of paper);
5. Base Rent with respect to the Lease Agreement has been paid by Lessee
through ______________, 20______; all additional rents and other charges
have been paid for the current periods;
6. There are no unpaid concessions, bonuses, free months' rent, rebates or
other matters affecting the rent for Lessee, except as follows:
(Please write "None" above or describe such matters on a separate sheet of
paper);
7. No security or other deposit has been paid by Lessee with respect to the
Lease Agreement, except as follows:
(Please write "None" above or describe such deposits on a separate sheet
of paper);
8. The Lease Agreement is in full force and effect and there are no events or
conditions existing which, with notice or the lapse of time or both, could
constitute a monetary or other default of the Lessor under the Lease
Agreement, or entitle Lessee to any offset or defense against the prompt
current payment of rent or constitute a default by Lessee under the Lease
Agreement, except as follows:
(Please write "None" above or describe such default on a separate sheet of
paper);
9. All improvements required to be made by Lessor under the terms of the
Lease Agreement have been satisfactorily completed and accepted by Lessee
as being in conformity with the Lease Agreement, except as follows:
(Please write "None" above or describe such improvements on a separate
sheet of paper);
17
Lessee's Estoppel Certificate
Page 2
10. Lessee has no option to expand or rent additional space within the Project
or any right of first refusal with regard to any additional space within
the Project, other than the Leased Premises, except as follows:
(Please write "None" above or describe such right or option on a separate
sheet of paper);
11. Lessee has no right or option to renew the Lease Agreement for any period
of time after the expiration of the initial term of the Lease Agreement,
except as follows:
(Please write "None" above or describe such right on a separate sheet of
paper);
12. To the best of Lessee's knowledge, any and all broker's leasing and other
commissions relating to and/or resulting from Lessee's execution of the
Lease Agreement and occupancy of the Leased Premises have been paid in
full and no broker's leasing or other commissions will be or become due or
payable in connection with or as a result of either Lessee's execution of
a new Lease Agreement covering all or any portion of the Leased Premises
or any other space within the Project or Lessee's renewal of the Lease
Agreement, except as follows:
(Please write "None" above or describe such right on a separate sheet of
paper);
13. To the best of Lessee's knowledge, the use, maintenance or operation of
the Leased Premises complies with, and will at all times comply with, all
applicable federal, state, county or local statutes, laws, rules and
regulations of any governmental authorities relating to environmental,
health or safety matters (being hereinafter collectively referred to as
the Environmental Laws);
14. The Leased Premises have not been used and Lessee does not plan to use the
Leased Premises for any activities which, directly or indirectly, involve
the use, generation, treatment, storage, transportation or disposal of any
petroleum product or any toxic or hazardous chemical, material, substance,
pollutant or waste;
15. Lessee has not received any notices, written or oral, of violation of any
Environmental Law or of any allegation which, if true, would contradict
anything contained herein and there are not writs, injunctions, decrees,
orders or judgments outstanding, no lawsuits, claims, proceedings or
investigations pending or threatened, relating to the use, maintenance or
operation of the Leased Premises, nor is Lessee aware of a basis for any
such proceeding;
16. There are no actions, whether voluntary or otherwise, pending against
Lessee under the bankruptcy or insolvency laws of the United States or of
any state.
17. Lessee understands that the Lease Agreement may be assigned to Addressee
and Lessee agrees to attorn to Addressee in all respects in accordance
with the Lease Agreement.
Dated: ____________________________________, 20__________.
Very truly yours,
TEXAS BIOTECHNOLOGY CORPORATION,
a Delaware corporation
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
18
EXHIBIT F
TENANT IMPROVEMENTS
Building: 0000 Xxxx Xxxx Xxxxx Xxxxx No.: 400
Lessor: FRM West Loop Associates #6, Ltd.
Lessee: Texas Biotechnology Corporation, Date of Lease: 2/20/02
a Delaware corporation
Cost of Tenant Improvements. Lessor shall provide a construction allowance
not to exceed Seventy-Six Thousand Twenty-Five and 00/100 Dollars ($76,025.00)
for improvements within the Leased Premises (the "Construction Allowance").
Lessee shall reimburse Lessor for any such costs and expenses in excess of the
Construction Allowance within thirty (30) days following delivery to Lessee of
an itemized statement thereof. The foregoing notwithstanding, Lessee shall have
the right to utilize any unused portion of the Construction Allowance to help
offset costs incurred with Lessee's relocation to the Leased Premises.
Work by Lessor. Subject to Lessee's approval, Lessor shall cause to be
constructed and/or installed in the Leased Premises the permanent Tenant
Improvements and tenant finish desired by Lessee and approved by Lessor as shown
on the attached Exhibit F-1 which supercedes the original Exhibit F-1 of the
Lease Agreement (the "TENANT IMPROVEMENTS").
Planning and Construction. Lessor and Lessee shall cooperate in good faith
in the planning and construction of the Tenant Improvements, and Lessee shall
respond promptly to any request from Lessor or Lessor's architect or contractor
for Lessee's approval of any particular aspect thereof, it being agreed and
understood that it is the intent and desire of the parties that the Leased
Premises be ready for Lessee's occupancy on or before the first (1st) day of
April, 2002 (the "ESTIMATED LEASED PREMISES DELIVERY DATE").
Completion of Construction. The "TENANT IMPROVEMENTS COMPLETION DATE"
shall mean the date upon which the Tenant Improvements are substantially
complete. The phrase "substantially complete" shall mean that the Leased
Premises may reasonably be used and occupied for the purposes intended under
this Lease Agreement, and the progress of the construction of the Tenant
Improvements to date is such that final completion of the Tenant Improvements
can occur within a reasonable period of time and without undue interference to
the Lessee's use of the Leased Premises. If the Leased Premises are not ready
for occupancy by the Estimated Leased Premises Delivery Date for any reason,
Lessor shall not be liable or responsible for any claims, damages or liabilities
in connection therewith or by reason thereof.
Disclaimer of Warranty. LESSEE ACKNOWLEDGES THAT THE CONSTRUCTION AND
INSTALLATION OF THE TENANT IMPROVEMENTS WILL BE PERFORMED BY AN UNAFFILIATED
CONTRACTOR OR CONTRACTORS AND THAT ACCORDINGLY LESSOR HAS MADE AND WILL MAKE NO
WARRANTIES TO LESSEE WITH RESPECT TO THE QUALITY OF CONSTRUCTION THEREOF OR AS
TO THE CONDITION OF THE LEASED PREMISES, EITHER EXPRESS OR IMPLIED, AND THAT
LESSOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT THE LEASED PREMISES ARE OR
WILL BE SUITABLE FOR LESSEE'S INTENDED COMMERCIAL PURPOSE. LESSEE'S OBLIGATION
TO PAY BASE AND ADDITIONAL RENTAL HEREUNDER IS NOT DEPENDENT UPON THE CONDITION
OF THE LEASED PREMISES OR THE BUILDING OR THE PERFORMANCE BY LESSOR OF ITS
OBLIGATIONS HEREUNDER, AND LESSEE SHALL CONTINUE TO PAY THE BASE AND ADDITIONAL
RENTAL WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY
LESSOR OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
However, Lessor agrees that in the event that any defect in the construction of
the Tenant Improvements is discovered, Lessor will diligently pursue and seek to
enforce any warranties of the contractor(s) and/or the manufacturer of any
defective materials incorporated therein.
19
