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EXHIBIT 10.10
AGREEMENT TO USE PREMISES ON A NON-EXCLUSIVE BASIS
THIS AGREEMENT TO USE PREMISES ON A N0N-EXCLUSIVE BASIS ("Agreement") is made
and entered into on this 1 day of September, 1996, by and between Owner and
User.
WITNESSETH:
1. CERTAIN DEFINITIONS AND BASIC TERMS.
1.01 Parties, Use Fee, Term and Premises. Owner and user
hereby agree that for purposes of this Agreement, the following capitalized
terms shall mean:
Owner: CTRC RESEARCH FOUNDATION
User: ILEX ONCOLOGY, INC.
Use Fee: $2,197.80 per month.
Location: 14960 Omicron, San Antonio, Texas.
Commencement Date: September 1, 1995
Owner's Address for Notices:
CTRC Research Foundation
8122 Data point, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxx
Premises: One Thousand Three Hundred Thirty-Two (1,332) square
feet of space located in the Building (so called herein) at the
Location designated as Room 103, and more commonly known as the
"formulation laboratory."
User's Address for Notices:
Ilex Oncology, Inc.
00000 Xxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
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Termination Date: The day preceding the second (2nd) yearly
anniversary of the Commencement Date.
2. DEMISE AND AGREEMENT TERM.
2.01 Demise of Premises. Subject to and upon the terms,
provisions and conditions hereinafter set forth, and each in consideration of
the duties, covenants and obligations or the other hereunder, Owner does hereby
grant to User, and User does have, the right to use the Premises on a non-
exclusive basis subject to the terms and conditions contained herein.
2.02 Term. Subject to and upon the terms and conditions set
forth herein, or in any exhibit hereto, the term of this Agreement shall
commence on the Commencement Date and shall expire on the Termination Date.
3. USE. For the laboratory testing relating to the
formulation of anti-cancer compounds and no other use.
4. USE FEE.
4.01 Covenant to Pay Use Fee. User hereby covenants and agrees
to pay the Use Fee in accordance with Section 4.02 below.
4.02 Use Fee Payments. (a) User hereby agrees to pay the Use
Fee. The Use Fee shall be due and payable on the first day of each calendar
month during each year of the initial term of this Agreement, and User hereby
agrees to so pay such rentals to Owner at Owner's address as provided herein
(or such other address as may be designated by Owner in writing from time to
time) monthly in advance.
(b) If the term of this Agreement as described above commences
on other than the first day of a calendar month or terminates on other than the
last day of a calendar month, then the installments of the Use Fee for such
month or months shall be prorated and the installment or installments so
prorated shall be paid in advance. The payment for such prorated month shall
be calculated by multiplying the monthly installment by a fraction, the
numerator of which shall be the number of days of the lease term occurring
during said commencement or termination month, as the case may be, and the
denominator of which shall be the total number of days occurring in said
commencement or termination month. Also, if the term of this Agreement
commences or terminates on other than the first day of a calendar year, the Use
Fee shall be prorated for such commencement or termination year, as the case
may be, by multiplying each by a fraction, the numerator of which shall be the
number of days of the lease term during the commencement or termination year,
as the case may be, and the denominator of which shall be 365, and the
calculation described in Section 4.02(c) shall be made as soon
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as reasonably possible after the termination of this Agreement, Owner and User
hereby agreeing that the provisions relating to said calculation shall survive
the termination of this Agreement.
(c) User shall pay the use Fee under this Agreement at the
times and in the manner provided in this Agreement, without demand, set-off or
counterclaim. User hereby acknowledges and agrees that (i) Owner and User have
expressly negotiated that except as expressly provided under Section 6.01(c)
below, User's covenants to pay the Use Fee under this Agreement are separate
and independent from Owner's covenants to provide services and other amenities
hereunder, and (ii) had the parties not mutually agreed upon the independent
nature of User's covenants to pay the Use Fee hereunder, Owner would have
required a greater amount of Use Fee in order to enter into this Agreement.
The Use Fee shall bear interest from the date due until paid at the greater of
(1) two percent (2%) above the "prime rate" per annum of The Frost National
Bank or its successor in effect on said due date (or if the "prime rate" be
discontinued, the base reference rate then being used by The Frost National
Bank to define the rate of interest charged to commercial borrowers) or (2)
eighteen percent (18%) per annum; provided, however, in no event shall the rate
of interest hereunder exceed the maximum non-usurious rate of interest
(hereinafter called the "Maximum Rate") permitted by the applicable laws of the
State of Texas or the United States of America, whichever shall permit the
higher non-usurious rate, and as to which User could not successfully assert a
claim or defense of usury, and to the extent that the Maximum Rate is
determined by reference to the laws of the State of Texas, the Maximum Rate
shall be the indicated rate ceiling (as defined and described in Texas Revised
Civil Statutes, Article 5069-1.04, as amended) at the applicable time in
effect.
5. LEASEHOLD IMPROVEMENTS.
5.01 Premise Improvements. User shall not make or allow to be
made any alterations or physical additions (including fixtures) in or to the
Premises, or place safes, vaults or other heavy furniture or equipment within
the Premises, without first obtaining the written consent of the Owner.
5.02 Ownership of Improvements. All alterations, physical
additions, or improvements in or to the Premises (including fixtures) shall,
when made, become the property of Owner and shall be surrendered too Owner upon
termination of this Agreement, whether by lapse of time or otherwise; provided,
however, this clause shall not apply to moveable equipment or furniture owned
by User.
5.03 Indemnity. User shall indemnify and hold harmless Owner
from and against all costs (including attorneys' fees and costs of suit),
losses, liabilities, or causes of action arising out of or relating to any
alterations, additions or improvements made by User to the Premises, including
but not limited to any mechanics' or materialmen's liens asserted in connection
therewith.
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5.04 Liens. User shall not be deemed to be the agent or
representative of Owner in making any such alterations, physical additions or
improvements to the Premises, and shall have no right, power or authority to
encumber any interest in the Premises, the Building or the Complex (so called
herein) of which the Building is a part in connection therewith. However,
should any mechanics' or other liens be filed against all or any portion of the
Complex or any interest therein (other than User's leasehold estate hereunder)
by reason of User's acts or omissions or because of a claim against User or its
contractors, User shall cause the same to be cancelled or discharged of record
by bond or otherwise within ten (10) days after notice by Owner. If User shall
fail to cancel or discharge said lien or liens, within said ten (10) day
period, which failure shall be deemed to be a default hereunder, Owner may, at
its sole option and in addition to any other remedy of Owner hereunder, cancel
or discharge the same and upon Owner's demand, User shall promptly reimburse
Owner for all costs incurred in canceling or discharging such lien or liens.
6. OWNER SERVICES.
6.01 Services. (a) Provided that no Event of Default (as
hereinafter defined) has occurred ad is continuing, Owner shall furnish to
those portions of the Premises which are occupied by User:
(i) Hot and cold domestic water at a point of supply
located at the exterior of the Premises.
(ii) Subject to curtailment as required by governmental
laws, rules or regulations, central heat and air-conditioning in
season, at such temperatures and in such amounts as are
considered by Owner to be standard, for all common laboratory
uses.
(iii) Sufficient electricity to operate (i) all common
laboratory uses and equipment and (ii) electrical lighting
service for all public areas.
(iv) Janitor service on a five (5) day per week basis.
(v) Equipment and personnel to limit access to the
Building after normal business hours; provided, however, Owner
shall have no responsibility to prevent, and shall not be liable
to User for, and shall be indemnified by User against, liability
or loss to User, its agents, employees and visitors arising out
of losses due to theft, burglary, or damage or injury to persons
or property caused by persons gaining access to the Building or
the Premises, and User hereby releases Owner from all liability
relating thereto.
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(vi) All Building standard fluorescent bulb replacement
in all areas and all incandescent bulb replacement in public
areas, toilet and rest room areas and stairwells
(vii) Pest control service as Owner deems appropriate.
(viii) Access to, and use of, Owner's hazardous waste
disposal services in connection with User's ordinary conduct of
its formulation business, which access and/or use shall at all
times comply with any and all rules and regulations which may be
adopted by Owner from time to time pertaining thereto, the
initial set of such rules being attached hereto as Exhibit "A".
(ix) Incidental use of common office equipment and
kitchen facilities.
(b) To the extent any of the services or amenities required to
be provided by Owner pursuant to the terms of this Agreement (the "Owner
Services" require electricity, gas and water supplied by public utilities,
Owner's covenants hereunder shall only impose on Owner the obligation to use
its good faith efforts to cause the applicable public utilities to furnish the
same. Failure by Owner to furnish any of the Owner Services to any extent, or
any cessation thereof, resulting from causes beyond the reasonable control of
Owner, shall not render Owner liable in any respect for damages to either
person or property, not be construed as an eviction of User, nor work an
abatement of the Use Fee nor relieve User from fulfillment of any covenant or
agreement hereof. As used herein, the phrase "causes beyond the reasonable
control of Owner" shall include, without limitation, acts of the public enemy,
restraining of government, unavailability of materials, strikes, civil riots,
floods, hurricanes, tornadoes, earthquakes and other severe weather conditions
or acts of God.
(c) In the event of a failure by Owner to provide the Owner
Services resulting from the malfunction or obsolescence of the Building
equipment or machinery, or from any other cause which is reasonably within the
control of Owner, Owner covenants and agrees to use diligent good faith efforts
to promptly repair or replace such equipment or machinery, or to rectify such
other cause, and to restore such Owner Services. User hereby agrees and
covenants that, in the event of any interruption or cessation of Owner Services
described in this Section 6.01(c), User shall have no claim for damages on
account thereof but shall be entitled to a fair and equitable abatement of the
Use Fee for so long as, and to the extent, such condition renders the Premises
unusable for User's normal operations in the event any such condition renders
the Premises unusable for more than three (3) consecutive days.
(d) User hereby acknowledges and agrees that Owner is
obligated to provide only the Owner Services under this Agreement, and that
Owner, its agents and representatives, have made no representations whatsoever
of any additional services or amenities to be provided by Owner now or in the
future under this Agreement. Notwithstanding the foregoing, User recognizes
that Owner may, at Owner's sole option, elect to provide additional services or
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amenities for the users of the Complex from time to time, and hereby agrees
that Owner's discontinuance of any of same, including any of same currently
provided or announced, shall not constitute a default of Owner under this
Agreement nor entitle User to any abatement of or reduction in the Use Fee.
6.02 Keys and Locks. Owner shall furnish User with sufficient
sets of keys for the Building corridor doors entering the Premises. Additional
keys will be furnished by Owner upon an order signed by User and at User's
expense. All such keys shall remain the property of Owner. No additional
locks shall be allowed on any door of the Premises without Owner's permission,
and User shall not make or permit to be made any duplicate keys, except those
furnished by Owner. Upon termination of this Agreement, User shall surrender
to owner all keys to any locks on doors entering or within the Premises, and
give to Owner the explanation of the combination of all locks for safes, safe
cabinets and vault doors, if any, in the Premises.
6.03 Maintenance and Repairs. Owner shall maintain the
Building in a good and operable condition, and shall make such repairs and
replacements as may be required to maintain the Building in such condition.
This Section 6.03 shall not apply to damages resulting from an exercise of
eminent domain (as to which Section 8 shall apply).
6.04 Owner Alterations or Modifications. Notwithstanding
anything herein to the contrary, Owner hereby expressly reserves the right in
its sole discretion to (a) temporarily or permanently change the location of,
close, block or otherwise alter any entrances, corridors, skywalks, tunnels,
doorways or walkways leading to or providing access to the Building or any part
thereof or otherwise restrict the use of same provided such activities do not
unreasonably impair User's access to the Premises and (b) improve, remodel, or
otherwise alter the Premises and/or the Building, and it is agreed that Owner
shall not incur any liability whatsoever to User as a consequence thereof and
such activities shall not be deemed to be a breach of any of Owner's
obligations hereunder. Owner agrees to exercise good faith in notifying User
within a reasonable time in advance of any alterations, modifications or other
actions of Owner under this Section 6.04.
7. CARE AND USE OF THE PREMISES.
7.01 Repairs by User. User shall at its own cost and expense,
(i) maintain the Premises in a clean, safe, operable, attractive condition, and
shall not commit or allow to remain any waste or damage to any portion thereof
or to the Complex, and (ii) subject to Owner's supervision, repair or replace
any damage or injury to the Premises, the Building or the Complex caused by
User, its agents, contractors, employees, invitees, or visitors. If User fails
to make such repairs or replacements promptly, Owner may, at its option, make
such repairs or replacements, and User shall repay the cost thereof plus a
charge of fifteen percent (15%) to the Owner on demand. Any damage or injury
to the Premises, the Building or its systems and (notwithstanding the
foregoing) any damage or injury which affects the Building's
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structural components or major mechanical, electrical or plumbing systems,
caused by User, its agents, contractors, employees, invitees or visitors shall
be repaired or replaced by Owner, but at User's expense plus a charge of
fifteen percent (15%).
7.02 Nuisance. User shall conduct its business and control its
agents, employees, invitees, contractors and visitors in such manner as not to
create any nuisance, or unreasonably interfere with, annoy or disturb any other
User or Owner in its operation of the Building.
7.03 Laws and Regulations; Rules of Building. User shall
comply with, and User shall cause its visitors, employees, contractors, agents
and invitees to comply with, all laws, ordinances, orders, rules and
regulations (state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) relating to the use, condition or occupancy of the
Premises, and with the rules of the Building reasonably adopted and altered by
Owner from time to time for the safety, care and cleanliness of the Premises
and the Building and for preservation of good order therein, all of which
Building rules will be sent by Owner to User in writing and shall be thereafter
carried out and observed by User, its employees, contractors, agents, invitees
and visitors. No change in the rules of the Building shall be binding upon
User until Owner sends written notice of such change to User.
7.04 Specifically Prohibited Uses. User shall not (a) occupy
or use the Premises, or permit any portion of the Premises to be occupied or
used, for any business or purpose which is unlawful, disreputable or deemed to
be excessively hazardous on account of fire or other hazards given the
permitted use of the Premises, or permit anything to be done which would in any
way increase the rate of fire or liability or any other insurance coverage on
the Building and/or its contents, or (b) keep, or permit to be kept, any
substance in the Premises which might emit offensive odors into other portions
of the Building.
7.05 Surrender of the Premises. At the termination of this
Agreement, by lapse of time or otherwise, User's right to use and occupy the
Premises shall terminate and User shall deliver all keys to the Premises to
Owner, with all damage caused to the Premises or any other part of the Complex
by User or its agents or employees repaired.
7.06 Holding Over. In the event of holding over by User after
expiration or termination of this Agreement without the prior written consent
of Owner, User shall pay as liquidated damages double the amount of the Use Fee
which was payable by User immediately prior to such expiration or termination.
In the event of any unauthorized holding over, User shall also indemnify Owner
against all claims for damages by any other User to whom Owner may have agreed
to let use all or any part of the Premises effective upon the termination of
this Agreement. Any such holding over without the prior written consent of
Owners hall create a tenancy at sufferance relationship with User.
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7.07 Hazardous Substances. (a) If Hazardous Substance are
used, stored, generated, or disposed of on or in the Premises, or if the
Premises become contaminated in any manner for which User is legally liable,
User shall indemnify and hold harmless Owner from any and all claims, damages,
fines, judgments, penalties, costs, liabilities, or losses (including, without
limitation, a decrease in value of the Premises, damages caused by loss or
restriction of rentable or usable space, or any damages caused by adverse
impact on marketing of the space, and any and all sums paid for settlement of
claims, attorneys' fees, consultant, and expert fees) arising during or after
the lease term and arising as a result of that contamination by User. This
indemnification incudes, without limitation, any and all costs incurred because
of any investigation of the site or any cleanup, removal, or restoration
mandated by a federal, state, or local agency or political subdivision.
Without limiting the foregoing, which causes or permits the presence of any
Hazardous Substance in the Premises and that results in contamination of the
Premises, User shall promptly, at its sole expense, take any and all necessary
actions to return the Premises to the condition existing prior to the presence
of any such Hazardous Substance in the Premises. User shall obtain Owner's
prior written approval for any such remedial action. The indemnity obligations
of User under this Section 7.07(a) shall survive the expiration or earlier
termination of this Agreement.
(b) As used herein, "Hazardous Substance" means any substance
that is toxic, ignitable, reactive, or corrosive and that is regulated by any
local government, the State of Texas, or the United States Government.
"Hazardous Substance" includes any and all material or substances that are
defined as "hazardous waste," "extremely hazardous waste," or a "hazardous
substance" pursuant to state, federal, or local governmental law. "Hazardous
Substance" includes but is not restricted to asbestos, polychlorobiphenyls
("PCBs"), and petroleum. Notwithstanding anything in this Section 7.07(b) to
the contrary, "Hazardous Substances" shall not include materials commonly used
in the ordinary operations of User's business, provided that (i) such materials
are used and stored in the Premises in quantities ordinarily used and stored in
common laboratory space and (ii) such materials are not introduced into the
Building's plumbing systems or are not otherwise released or discharged in the
Premises or the Building; provided same shall not be deemed or construed as
limiting User's right to access the Building's Hazardous Waste disposal system
in the ordinary course of its formulation business.
(c) Any handling, use, storage, presence, disposal, and/or
generation of Hazardous Substances on the Premises by User which is consented
to by Owners hall be done in accordance with such standards and/or requirements
which Owner may promulgate from time to time including, without limitation, the
rules attached hereto as Exhibit "A".
8. CONDEMNATION. If all or any part of the Complex is taken
or condemned, or acquired under threat of condemnation, by or at the direction
of any governmental authority (a "Taking" or "Taken", as the context requires),
or if the awards payable to Owner as a result of any Taking are, in Owner's
opinion, inadequate to restore the remainder to an economically viable, quality
office building, Owner may, at its election,
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exercisable by the giving of written notice to User within sixty (60) days
after the date of the Taking, terminate this Agreement as of the date of the
Taking or the date User is deprived of possession of the Premises (whichever is
later). If this Agreement is not terminated as a result of a Taking, Owner
shall restore the Premises remaining after the Taking to Building standard
condition. All awards, proceeds, compensation or other payments from or with
respect to any Taking of the Complex or any portion thereof shall belong to
Owner, User hereby assigning to Owner all of its right, title, interest and
claim to same.
9. DAMAGES FROM CERTAIN CAUSES. Owners shall not be liable
or responsible to User for any loss or damage to any property or person
occasioned by theft, fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition or order of governmental body or
authority, or any cause beyond Owner's control, or for any damage or
inconvenience which may arise through repair or alteration of any part of the
Building.
10. CASUALTY. If the Premises shall be partially destroyed by
fire or other casualty so as to render the Premises untenantable in whole or in
part, the Use Fee shall xxxxx thereafter as to the portion of the Premises
rendered untenantable until such time as the Premises are made tenable as
reasonably determined by Owner and Owner agrees to commence and prosecute such
repair work promptly and with all due diligence; provided, however, in the
event Owners shall decide not to rebuild then all rent owed up to the time of
such destruction or termination shall be paid by User and thenceforth this
Agreement shall cease and come to an end. Owner shall give User written notice
of its decisions, estimates or elections under this Section 10 within sixty
(60) days after any such damage or destruction. Notwithstanding anything
contained in this Section 10, Owner shall only be obligated to restore or
rebuild the Premises to a Building standard condition and in no event shall
Owner be required to expend more sums than received from the proceeds of any
insurance carried by Owner.
11. INSURANCE.
11.01 Insurance by Owner. Owner shall obtain and maintain
throughout the term of this Agreement the following policies of insurance:
(a) fire and extended coverage insurance on the Building
(excluding non-Building standard leasehold improvements and on all Building
standard improvements; and
(b) comprehensive general and contractual liability insurance
against claims for personal injury, death and property damage occurring in or
about the Building.
Said insurance shall be maintained with an insurance company authorized to do
business in Texas, in amounts desired by Owner and at the expense of Owner (but
with the same to be included in the operating expenses of the Building as
described in Section 4.03) and payments for losses thereunder shall be made
solely to Owner. If the annual premiums to be paid by
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Owner for casualty insurance shall exceed the standard rates because of User's
operations within or contents of the Premises or because the improvements to
the Premises are above Building standard, User shall promptly pay the excess
amount of the premium upon request by Owner (and if necessary, Owner may
allocate the insurance costs of the Building to give effect to this sentence).
Alternatively, Owner may meet its insurance coverage hereunder through self-
insurance coverage provided that the coverage thereunder is substantially
similar to the coverage which would otherwise have been provided by a third
party insurance carrier in order to comply with this Section 11.01. In the
event Owner elects to self-insure, Owner shall have the right to assess and
include within Operating Expenses the amount of the premium which would have
been payable had Owner purchased such insurance.
11.02 Insurance by User. User shall obtain and maintain
throughout the term of this Agreement the following policies of insurance:
(a) fire and extended coverage insurance, with vandalism,
malicious mischief and sprinkler leakage endorsements, on all of User's
personal property in the Premises in an amount not less than the full
replacement cost thereof;
(b) comprehensive general and contractual liability insurance
against claims for personal injury, death and property damage occurring in or
about the Premises, such insurance to afford protection to the limits of (i)
not less than $1,000,000.00 in respect of injury to or death of any number of
persons arising out of any one occurrence and (ii) $500,000.00 in respect of
any instance of property damage; and
(c) such other policy or policies of insurance as Owner may
reasonably require or as Owner is then requiring from one or more other Users
in the Building; including such environmental coverage as Owner may require.
User shall deliver to Owner, prior to the Commencement Date, certificates of
such insurance and shall, at all times during the term of this Agreement,
deliver to Owner upon request true and correct copies of said insurance
policies. The policy described in clause (b) shall (i) name Owner as an
additional insured, (ii) provide that it will not be cancelled or reduced in
coverage without thirty (30) days' prior written notice to Owner, (iii) insure
performance of all the indemnities of User contained in this Agreement, and
(iv) be primary coverage, so that any insurance coverage obtained by Owner
shall be excess thereto. User shall deliver to Owner certificates of renewal
at least thirty (30) days prior to the expiration date of each such policy and
copies of new policies at least thirty (30) days prior to terminating any such
policies. All policies of insurance required to be obtained and maintained by
the User shall be subject to the approval of Owner as to terms, coverage,
deductibles and issuer.
11.03 Waiver of Recovery and Subrogation Rights. Owner and User
each hereby waives any and all rights of recovery, claims, actions or causes of
action, against the other, its agents, servants, partners, shareholders,
officers, or employees,for any loss or damage
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that may occur to the Premises or Building, or any improvements thereto, or any
personal property of such party therein, by reason of fire, the elements, or
any other cause which could be insured against under the terms of the insurance
policies required to be maintained pursuant to Sections 11.01 and 11.02 hereof,
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers, partners, shareholders, servants, or employees, and
covenants that no insurer shall hold any right of subrogation against such
other party; provided, however, the waiver set forth in this Section 11.03
shall not apply to any deductibles on insurance policies carried by Owner or to
any coinsurance penalty which Owner might sustain. If the respective insurer
of Owner and User does not permit such a waiver without an appropriate
endorsement to such party's insurance policy, then Owner and User each covenant
and agree to notify its insurer of the waiver set forth herein and to secure
from such insurer an appropriate endorsement to its respective insurance policy
with respect to such waiver.
12. HOLD HARMLESS. Owner shall not be liable to User, its
agents, servants, employees, contractors, customers or invitees for any damage
to person or property caused by any act, omission or neglect of User, its
agents, servants or employees, and User agrees to indemnify and hold Owner
harmless from all liability and claims for any such damage. User shall not be
liable to Owner, or to Owner's agents, servants, employees, contractors,
customers or invitees for any damage to person or property caused by any act,
omission or neglect of Owner, its agents, servants or employees, and Owner
agrees to indemnify and hold User harmless from all claims for such damage.
13. ENFORCEMENT OF AGREEMENT.
13.01 Default by User. The occurrence of any one or more of the
following shall constitute an "Event of Default" under this Agreement:
(a) the failure of User to pay the Use Fee as and when due
under this Agreement and the continuance of such failure for a period of five
(5) days after written notice to User;
(b) the failure of User to perform, comply with or observe any
of the other covenants or conditions and the continuance of such failure for a
period of ten (10) days after written notice to User; or, if such failure
cannot reasonably be cured within said ten (10) day period despite User's
diligent good faith efforts, the failure of User to promptly commence its
diligent good faith efforts to cure such failure within said ten (10) day
period and/or the continuance of such failure for a period of thirty (30) days
notwithstanding User's efforts to cure;
(c) the filing of a petition by or against User or any
guarantor of User's obligations under this Agreement (i) naming User as debtor
in any bankruptcy or other insolvency proceeding, (i) for the appointment of a
liquidator or receiver for all or substantially
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all of User's property or for User's interest in this Agreement, or (iii) to
reorganize or modify User's capital structure;
(d) the admission by User in writing of its inability to meet
its obligations as they become due or the making by User of an assignment for
the benefit of its creditors;
(e) the attempt by User to assign this Agreement or to sublet
all or any part of the Premises without the prior written consent of Owner in
accordance with Section 17.
13.02 Remedies of Owner. Upon any Event of Default, Owner may
exercise any one or more of the following described remedies, in addition to
all other rights and remedies provided at law or in equity:
(a) Terminate this Agreement by written notice to User and
forthwith repossess the Premises and be entitled to recover forthwith as
damages a sum of money equal to the total of (i) the cost of recovering the
Premises (including attorneys' fees and costs of suit), (ii) the cost of
removing and storing any personal property, (iii) the unpaid Use Fee earned at
the time of termination, plus interest thereon at the rate described in Section
4.04(c), (iv) the present value (discounted at the same rate) of the fair
market rental value of the Premises for said period, taking into account the
period of time the Premises will remain vacant until a new User is obtained,
and the cost to prepare the Premises for occupancy and the other costs (such as
leasing commissions and attorneys' fees) to be incurred by Owner in connection
therewith, and (v) any other sum of money and damages owed by User to owner
under this Agreement.
(b) Elect to receive liquidated damages in an amount equal to
the monthly Use Fee payable hereunder for the month during which this Agreement
is terminated times twelve (12), which amount shall be in lieu of the payment
of damages Owner may suffer by reason of such termination, duty which shall not
be in lieu of or reduce in any way any amount due from User (including accrued
Use Fee) or damages incurred by Owner due to breach by User of any covenant or
other obligation therein (whether or not liquidated) which accrued prior to the
termination of this Agreement. Nothing contained in this Agreement shall limit
or prejudice the right of Owner to prove for and obtain in any proceedings to
enforce Owner's rights hereunder, including without limitation, any proceedings
for bankruptcy or insolvency by reason of the termination of this Agreement, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater, equal to, or less than the amount
of the loss or damages referred to above.
(c) Terminate User's right of possession (but not this
Agreement) by forcible entry and detainer suit or otherwise, without thereby
releasing User from any liability hereunder and without demand or notice of any
kind to User and without terminating this Agreement. Owner shall not be
liable, nor shall User's obligations hereunder be diminished because of,
Owner's failure or refusal to re-license the Premises or collect any Use Fee
due in respect
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thereof. For the purpose of such re-licensing, Owner shall have the right to
decorate or to make any repairs, changes, alterations or additions in or to
Premises as may be reasonably necessary or desirable. In the event that (i)
Owner shall fail or refuse to re-license the Premises, or (ii) the Premises are
re-licensed and a sufficient sum shall not be realized from such-relicensing
(after first deducting therefrom, for retention by Owner, the unpaid rent due
hereunder earned by unpaid at the time of re-licensing plus interest thereon at
the rate specified in Section 4.04(c), the cost of recovering possession
[including attorneys' fees and costs of suit), all of the costs and expenses of
such decorations, repairs, changes, alterations and additions, the expense of
such re-licensing and the cost of collection of the Use Fee accruing therefrom]
to satisfy the Use Fee, then User shall pay to Owner as damages a sum equal to
the amount of such deficiency. Any such payments due Owner shall be made upon
demand therefor from time to time and User agrees that Owner may file suit to
recover any sums falling due under the terms of this Section 13.02(c) from time
to time. No delivery to or recovery by Owner of any portion due Owner
hereunder shall be any defense in any action to recover any amount not
theretofore reduced to judgment in favor of Owner, nor shall such re-licensing
be construed as an election on the part of Owner to terminate this Agreement
unless a written notice of such intention to be given to User by Owner.
Notwithstanding any such termination of User's right of possession of the
Premises. Owner may at any time thereafter elect to terminate this Agreement.
In any proceedings to enforce this Agreement under this Section 13.02(c), Owner
shall be presumed to have used its reasonable efforts to relet the Premises,
and User shall bear the burden of proof to establish that such reasonable
efforts were not used.
(d) Alter any and all locks and other security devices at the
Premises, and if it does so Owner shall not be required to provide a new key or
other access right to User unless User has cured all Events of Default;
provided, however, that in any such instance, during Owner's normal business
hours and at the convenience of Owner, and upon the written request of User
accompanied by such written waivers and releases as Owner may require, Owner
will escort User or its authorized personnel to the Premises to retrieve any
personal belongings or other property or other property of User. The
provisions of this Section 13.03(d) are intended to override and control any
conflicting provisions of the Texas Property Code.
In the event that Owner shall have taken possession of the
Premises pursuant to the authority herein granted, then Owner shall be the
right to keep in place and use all of the furniture, fixtures and equipment at
the Premises, including that which is owned by or leased to User at all times
prior to any foreclosure thereon by Owner or repossession thereof by any lessor
thereof or third party having a lien thereon. Owner shall also have the right
to remove from the Premises (without the necessity of obtaining a distress
warrant, writ or sequestration or other legal process and without being liable
for prosection or any claim for damages therefor) all or any portion os such
furniture, fixtures, equipment and other property located thereon and place
same in storage at any place within the county in which the Premises is
located; and in such event, User shall be liable to Owner for costs incurred by
Owner in connection with such removal and storage and shall also have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming
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to be entitled to possession thereof who presents to Owner a copy of any
instrument represented to Owner by Claimant to have been executed by User (or
any predecessor or User) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or
other property, without the necessity on the part of Owner to inquire into the
authenticity of said instrument and without the necessity of Owner's making any
nature of investigation or inquiry as to the validity of the factual or legal
basis upon which Claimant purports to act; and User agrees to indemnify and
hold harmless from all costs, expense, loss, damage and liability incident to
Owner's relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other to Claimant.
13.04 Non-Waiver. Failure of Owner to declare any default
immediately upon occurrence thereof, or delay in taking any action in
connection therewith, shall not waive such default, but Owner shall have the
right to declare any such default at any time and take such action as might be
lawful or authorized hereunder, either in law or in equity.
14. ATTORNEYS' FEES. In the event either party defaults in
the performance of any of the terms, agreements or conditions contained in this
Agreement and the other party places the enforcement of this Agreement, or any
part thereof, or the collection of any rent due or to become due hereunder, or
recovery of the possession of the Premises, in the hands of any attorney who
files suit upon the same, and should such non-defaulting party prevail in such
suit, the defaulting party agrees the other party's reasonable attorneys' fees.
15. SUBORDINATION. User covenants and agrees with Owner that
this Agreement is subject and subordinate to any mortgage, deed of trust,
ground lease and/or security agreement which may now or hereafter encumber the
Building or the Land or any interest of Owner therein and/or the contents of
the Building, and to any advances made on the security thereof and to any and
all increases, renewals, modifications, consolidations, replacements and
extensions thereof. This Agreement is further subject to and subordinate to
all matters of record in Bexar County, Texas.
16. ESTOPPEL CERTIFICATE. User agrees periodically to furnish
within ten (10) days after so requested by Owner, any ground lessor or the
holder of any deed of trust, mortgage or security agreement covering the
Building, the Land, or any interest of Owner therein, a certificate signed by a
User certifying (a) that this Agreement is in full force and effect and
unmodified (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), (b) as to the
Commencement Date and the date through which Use Fee has been paid, (c) that
User has accepted possession of the Premises and that any improvements required
by the terms of this Agreement to be made by Owner have been completed to the
satisfaction or User, (d) that except as stated in the certificate, no Use Fee
has been paid more than thirty (30) days in advance of its due date, (e) that
the address for notices to be sent to User is as set forth in this Agreement
(or has been changed by notice duly given and is set forth in certificate), (f)
that except as stated in the certificate, User, as of the date of such
certificate, has no charge, lien, or claim of offset against use Fee due or to
become due,
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(g) that except as stated in the certificate, Owner is not then in default
under this Agreement, (h) that there are no renewal or extension options,
rights of first refusal or the like in favor of User except as set forth in
this Agreement; and (i) as to such other matters as may be requested by Owner
or ground lessor or the holder of any such deed of trust, mortgage or security
agreement. Any such certificate may be relied upon by any ground lessor,
prospective purchaser, secured party, mortgagee or any beneficiary under any
mortgage or deed of trust on the Building or the Land or any party thereof or
interest of Owner therein. Should User fall to provide any such certificate
within the requisite time period Owner shall be entitled to provide such
certificate on User's behalf and user shall be bound by the contents thereof.
In order to effectuate the purposes of this Section 16, User hereby appoints
Owner, for the term of this Agreement, as User's agent and attorney-in-fact to
execute and deliver any such certificate on User's behalf should User fail to
timely comply with the terms of this Section 16.
17. NAME CHANGE. Owner and User mutually covenant and agree
that Owner reserves and shall have the right at any time and from time to time
to change the name of the Building as Owner may deem advisable, and Owner shall
not incur any liability whatsoever to User as a consequence thereof.
18. ASSIGNMENT BY OWNER. Owner covenants that User shall any
may peacefully have, hold and enjoy the Premises, subject to the other terms
hereof, provided that User pay the sums herein recited to be paid by User and
performs all of User's covenants and agreements herein contained. It is
understood and agreed that this covenant and any and all other covenants of
Owner contained in this Agreement shall be binding upon Owner and its
successors only with respect to breaches occurring during its and their
respective ownership of the Owner's interested hereunder.
19. PEACEFUL ENJOYMENT. Owner covenants that User shall and
may peacefully have, hold and enjoy the Premises, subject to the other terms
hereof, provided that User pays the sums herein recited to be paid by User and
performs all of User's covenants and agreements herein contained. It is
understood and agreed that this covenant and any and all other covenants of
Owner contained in this Agreement shall be binding upon Owner and its
successors only with respect to breaches occurring during its and their
respective ownership of the Owner's interest hereunder.
20. LIMITATION OF OWNER'S PERSONAL LIABILITY. User
specifically agrees to look solely to Owner's interest in the Building for the
recovery of any judgment against Owner, it being agreed that Owner, its
officers, directors and employees shall never be personally liable for any such
judgment. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that User might otherwise have to obtain
injunctive relief against Owner or Owner's successors in interest of any suit
or action in connection with enforcement or collection of amounts which may
become owing or payable under or on account of insurance maintained by Owner.
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21. NOTICES. (a) Any notice or other communications to Owner
or User required or permitted to be given under this Agreement (and copies of
the same to be given to the parties as below described) must be in writing and
shall be effectively given if delivered to such party as its address for notice
set forth Section 1.01 above, or it sent by United States mail, certified or
registered, return receipt requested, to said address. Any notice mailed shall
be deemed to have been given on the regular business day next following the
date of deposit of such item in a depository of the United States Postal
Service in San Antonio, Texas. Notice effected other than by mail shall be
deemed to have been given at the time of actual delivery. Either party shall
have the right to change its address to which notices shall thereafter be sent
by giving the other written notice thereof. Additionally, User shall send
copies of all notices required or permitted to be given to Owner to each lessor
under any ground or land lease covering all or part of the Land and each holder
of a mortgage or deed of trust encumbering the Complex who notifies User in
writing of its interest and the address to which notices are to be sent.
22. MISCELLANEOUS
22.01 Waiver of Lien by User. User shall have no right, and
User hereby waives and relinquishes all rights which User might otherwise have,
to claim any nature of lien against the Building or to withhold, deduct from or
offset against any Use Fee or other sums to be paid to Owner by User.
22.02 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and assigns of Owner, and shall
be binding upon and inure to the benefit of User, its successors, and, to the
extent assignment may be approved by Owner hereunder, User's assigns.
22.03 Number and Gender. The pronouns of any gender shall
include the other genders, and either the singular or the plural shall include
the other.
22.04 Remedies Cumulative; Applicable Law. All rights and
remedies of Owner under this Agreement shall be cumulative and none shall
exclude any other rights or remedies allowed by law and this Agreement is
declared to be a Texas contract, and all of the terms thereof shall be
construed according to the laws of the State of Texas.
22.05 Amendment. This Agreement may not be altered, changed or
amended, except by an instrument in writing executed by all parties hereto.
22.06 Entire Agreement. The terms and provisions of all
Exhibits described herein and attached hereto are hereby made a part hereof for
all purposes. This agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof, and all prior correspondence,
memoranda, agreements or understandings (written or oral) with respect hereto
are merged into and superseded by this Agreement.
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22.07 Authority of User. If User is a corporation, partnership
or other entity, User warrants and represents unto Owner that (a) User is a
duly organized and existing legal entity, in good standing in the State of
Texas, (b) User has full right and authority to execute, deliver and perform
this Agreement, (c) the person executing this Agreement was authorized to do so
and (d) upon request of Owner, such person will deliver to Owner satisfactory
evidence of his or her authority to execute this Agreement on behalf of User.
22.08 Good Faith Efforts. Whenever in this Agreement there is
imposed upon Owner the obligation to use its good faith efforts, reasonably
efforts or diligence, Owner shall be required to do so only to the extent the
same is economically feasible and otherwise will not impose upon Owner extreme
financial or other business burdens.
22.09 Severability. If any term or provision of this Agreement,
or the application thereof to any person or circumstance, shall to any extent
be invalid or unenforceable, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected thereby, and
each provision of this Agreement shall be valid and shall be enforceable to the
extent permitted by law.
22.10 No Recording. Neither this Agreement (including any
Exhibits hereto) nor any memorandum hereof shall be recorded without the prior
written consent of Owner.
22.11 Joint and Several Obligations. If more than one person
executes this Agreement as User, their obligations hereunder are joint and
several, and any act or notice of or to, or refund to, or the signature of, any
one or more of them, in relation to the renewal or termination of this
Agreement, or under or with respect to any of the terms hereof shall be fully
binding on each and all of the persons executing this Agreement as a User.
22.12 Exhibits. All Exhibits referenced in this Agreement are
incorporated herein for all purposes as if fully set forth within the text of
this Agreement.
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IN TESTIMONY WHEREOF, the parties hereto have executed this
Agreement as of the date aforesaid.
OWNER:
CTRC RESEARCH FOUNDATION
a Texas corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Chief Operating Officer
------------------------------------
USER:
ILEX ONCOLOGY, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Love
---------------------------------------
Name: Xxxxxxx X. Love
-------------------------------------
Title: President and Chief
Executive Officer
------------------------------------
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