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EXHIBIT 10.4
EXTENSION, MODIFICATION AND RATIFICATION OF LEASE
This Extension, Modification and Ratification of Lease ("Agreement") effective
the 31st day of May, 2000, between WOODLANDS EQUITY PARTNERSHIP - '89 (Lessor)
and ZONAGEN INCORPORATED (Lessee) for and in consideration of $1.00, and other
good and valuable consideration.
WITNESSETH:
1. Lessor and Lessee hereby confirm and ratify (as modified below) all of
the terms, conditions and covenants in that certain Lease Agreement
("Lease") between the parties dated March 22, 1990, and modified under
Modification and Ratification of Lease dated October 13, 1992;
Extension, Modification and Ratification of Lease dated July 12, 1993;
Extension, Modification and Ratification of Lease dated January 25,
1996; and Expansion, Modification and Ratification of Lease date June
26, 1997; and Modification and Ratification of Lease dated November 1,
1997; under which Lessee has leased from Lessor approximately 24,000
square feet of net rentable area in that building located at 2408
Timberloch Place, Bays B1 through X0, Xxx Xxxxxxxxx, Xxxxxxxxxx Xxxxxx,
Xxxxx.
2. Lessor and Lessee agree that the Lease Term will be extended for 36
months, changing the expiration date from May 31, 2000, to May 31, 2003
("Extension Period").
3. Lessor and Lessee agree that the Security Deposit, as set out in
Section 6 of the Lease, shall be increased by $1,609.79, and amount to
be paid to Lessor contemporaneously with the execution of the
Agreement. The total Security Deposit held by Lessor shall be
$20,000.00.
4. Lessor and Lessee agree that during the Extension Period, the Base
Rent, as set out in Section 7 of the Lease, shall be $20,000.00.
5. Lessor and Lessee agree that Section 33 of the Lease shall be deleted
in its entirety and the following Section 33 shall be inserted in its
stead:
"33. Assignment by Lessee. Lessee shall not assign this Lease or any
interest therein, nor sublet the Premises or any part thereof or any
right or privilege appurtenant thereto, nor permit any other person,
firm or entity to occupy or use the Premises or any portion thereof
without first obtaining the prior written consent of Lessor. Lessor
shall have the right, at its option, to terminate this Lease as to any
portion of the Premises covered by a proposed assignment or sublease
unless, based upon Lessee's historic improvement of the Premises beyond
Lessor's allowance for leasehold improvements, as determined by Lessor
in its sole discretion, the base rental amount to be paid by the
assignee or sublessee is higher than the Base Rent paid by Lessee under
the Lease, or to approve any such assignment or sublease only upon the
condition that a) 1/2 of all rentals paid by the assignee or sublessee
in excess of the rentals due from Lessee hereunder, shall be paid
directly to Lessor, b) the proposed sublessee or assignee is
financially capable of assuming Lessee's obligations hereunder, in the
sole reasonable discretion of Lessor, c) in the event of an assignment
to an assignee approved by Lessor at a base rent less than the Base
Rent required by this Lease, Lessee
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agrees to remain responsible for the full amount, less that paid by the
assignee, and d) the proposed sublessee or assignee agrees to use the
Premises only for the uses permitted of Lessee under this Lease, and to
comply with all of the other terms and conditions of this Lease.
Otherwise, Lessor's consent to any proposed sublease or assignment
shall not be unreasonably withheld. Consent by Lessor to one
assignment, subletting occupation or use by another person shall not be
deemed to be a consent to any subsequent assignment, subletting,
occupation or use by the same or another person. Consent to an
assignment or sublease shall not release Lessee from liability for the
continued performance of the terms and provisions to be kept and
performed by Lessee hereunder, unless Lessor specifically and in
writing releases Lessee from said liability. Any assignment or
subletting by operation of law or otherwise, (including without
limitation, a transfer of controlling interest in Lessee to any other
person, firm or entity) without the prior written consent of Lessor,
shall be void and shall, at the option of Lessor, terminate this Lease.
Lessee covenants and agrees that when the prior written consent of
Lessor is obtained, and in the event the subletting or assignment is to
be arranged through public advertisement or listing of any kind, Lessee
will treat all applications for sublease or assignment in a uniform
manner and will award leases according to objective standards. No
decision on any application shall be made on the ground of the
applicant's race, color, religion, sex or national origin.
6. No Other Modification. The Lease, as amended by this Agreement, will
continue in full force and effect and is hereby ratified by Lessor and
Lessee. All defined and capitalized terms as set forth in the Lease
shall have the same meanings when used in this Agreement unless
otherwise provided herein. Nothing in this Agreement modifies any of
the provisions of the Lease, except as expressly provided in this
Agreement. This Agreement embodies the entire agreement and
understanding between Lessor and Lessee as may be applicable with
respect to the specific matters set forth herein, and supercedes all
prior agreements and understandings, written or oral, between Lessor
and Lessee related to such matters.
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The parties hereto have executed this Agreement in multiple
counterparts, each of which shall constitute an original, but collectively shall
constitute only one document. Notwithstanding anything contained herein to the
contrary, the terms of this Agreement shall not be binding on Lessor until it
has been signed by Lessor and a fully executed copy is delivered to Lessee.
LESSOR:
WOODLANDS EQUITY PARTNERSHIP-89 LIMITED
A Texas Limited Partnership
By: THE WOODLANDS COMMERCIAL PROPERTIES
COMPANY, L.P., A Texas Limited
Partnership
Its General Partner
By: The Woodlands Operating Company,
L.P. a Texas limited partnership
Its Authorized Agent
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: V.P., Commercial Division
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LESSEE:
ZONAGEN INCORPORATED
By: /s/ F. Xxxxx Xxxxxx
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Name: F. Xxxxx Xxxxxx
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Title: CFO
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