UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996
Commission File Number 0-9314
ACCESS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 83-0221517
- ------------------------ --------------------------
(State of Incorporation) (I.R.S. Employer I.D. No.)
2600 Stemmons Frwy, Suite 176, Dallas, TX 75207
--------------------------------------------------
(Address of principal executive offices)
Telephone Number (214) 905-5100
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirement for the past 90 days.
Yes X No
------ ------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common stock outstanding as
of November 12, 1996 31,391,324 shares, $0.04 par value
----------------- ----------
Total No. of Pages 12
<PAGE>
PART I -- FINANCIAL INFORMATION
ITEM 1 FINANCIAL STATEMENTS
The response to this Item is submitted as a separate section of this report.
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
In connection with the merger of Access Pharmaceuticals, Inc., a Texas
corporation ("API") with and into Chemex Pharmaceuticals, Inc. ("Chemex")
on January 25, 1996, the name of Chemex was changed to Access Pharmaceuticals,
Inc. ("Access" or the "Company").
Subsequent to the merger of API into Access (the "Merger"), the Company has
been managed by the former management of API and the focus of the Company has
changed to the development of enhanced parenteral therapeutic and diagnostic
imaging agents through the utilization of its patented and proprietary
endothelial binding technology which selectively targets sites of disease. The
Company has a broad platform technology for enhancing the site targeting of
intravenous therapeutic drugs, MRI contrast agents and radiopharmaceutical
diagnostic and therapeutic agents. The Access technology is based on natural
carbohydrate carriers.
The technology development of the Company is currently focused on increasing
the therapeutic benefit of oncology agents and improving the efficiency of
oncology diagnosis by selectively targeting sites of disease and accelerating
drug clearance.
The Company has developed four possible product candidates, two of which are
anticipated to be ready to be advanced into human testing in the next nine to
twelve months. These product candidates are new formulations of existing
compounds which increase therapeutic efficacy and reduce toxicity, designed to
address the clinical shortfalls of currently available treatments.
As a result of the Merger and immediately after the Merger, the former API
stockholders owned approximately 60% of the issued and outstanding shares of
the Company. Generally accepted accounting principles require that a company
whose stockholders retain the controlling interest in a combined business be
treated as the acquiror for accounting purposes. As a consequence, the Merger
has been accounted for as a "reverse acquisition" for financial reporting
purposes and API has been deemed to have acquired an approximate 60% interest
in Chemex. Despite the financial reporting requirement to account for the
acquisition as a "reverse acquisition," Chemex (now called Access) remains
the continuing legal entity and registrant for Securities and Exchange
Commission reporting purposes.
The unaudited balance sheets, statements of operations and statements of cash
flows have been prepared using "purchase" accounting for the Merger, with API
as the acquirer. The values used in the preparation of the financial
statements were determined based on negotiations between Chemex and API and
comparable values for companies at API's stage of development. As a result,
common stock and paid in capital of API was recorded at a $10.0 million
valuation. The excess purchase price over the fair value of Chemex's assets
was written off in the first quarter of 1996. The accompanying balance sheet
at December 31, 1995 and the related statements of operations and cash flows
for the nine months ended September 30, 1995 are the statements of
API.
2
<PAGE>
RECENT DEVELOPMENTS
On April 26, 1996, Access executed a letter of intent to acquire Tacora Corp.,
a privately-held pharmaceutical company based in Seattle. The transaction is
currently scheduled to close in the fourth quarter of 1996. Under the terms of
the letter of intent, the purchase price is contingent upon the achievement of
certain milestones. Stock up to a maximum value of $14,000,000 could be
payable to Tacora's shareholders over a 30 month period on an escalating
value over the milestone period. The consummation of the transaction is
subject to customary conditions to closing including completion of due
diligence, negotiation of definitive documents and approval of the
stockholders of Tacora Corp.
Liquidity and Capital Resources
Working capital as of September 30, 1996 was $4,920,000, an increase of
$5,435,000 as compared to the working capital as of December 31, 1995 of
$(515,000). The increase in working capital was principally due to $6
million in proceeds from the private placement of 8.57 million shares of
common stock in March 1996 and the addition of $1.69 million in working
capital of Chemex resulting from the Merger between Chemex and API, offset
by payments for 1996 operating expenses, $89,000 for 1996 capital lease
payments and $480,000 for payment to a consultant as a result of the completion
of the private placement. The net cash infusion from the private placement
will be used to continue the development of the Access technology. The
shares issued in the private placement have been registered for resale by
the holders.
Management believes its working capital will cover planned operations through
December 1997.
Currently, royalty revenues are not expected during the remainder of 1996.
Research and development expenditures to advance products into human testing
will remain high for several years and there can be no assurance that the
Company will be successful in attaining a partner or future equity financing
to complete the testing of its products.
Third Quarter 1996
Compared to
Third Quarter 1995
The Company had no revenue in the third quarter 1996 as compared to $45,000
in 1995. Third quarter 1995 revenues were comprised of sponsored research
and development revenues from an agreement that was terminated in June 1995.
Total research spending for the third quarter of 1996 was $430,000 as compared
to $106,000 for the same period in 1995, an increase of $324,000. The
increase in expenses was the result of the increase in staffing for projects
in 1996. Research spending will increase in future quarters as the Company
has hired additional scientific management and staff and is accelerating
activities to develop the Company's product candidates.
Total general and administrative expenses were $454,000 for the third
quarter of 1996, an increase of $359,000 as compared to the same period in
1995. The increase in spending was due primarily to the following:
increased professional expenses due to the Merger, Private Placement offering
and public company reporting and compliance requirements- $108,000; salaries
of recently hired employees- $122,000; patent expenses- $51,000; travel and
entertainment expenses- $30,000; general business consulting fees and
expenses- $21,000; director fees and director and officer insurance-
$14,000; and other miscellaneous increases- $13,000.
Accordingly, total expenses were $930,000, with interest income of $58,000
resulting in a loss for the quarter of $872,000, or $.03 per share.
3
<PAGE>
Nine Months ended September 30, 1996
Compared to
Nine Months ended September 30, 1995
Net revenues for the nine months ended September 30, 1996 were $165,000 as
compared to $575,000 in the same period in 1995, representing a decrease of
$410,000. 1996 revenues related entirely to an option agreement for rights to
certain of the Company's technology that terminated in April 1996. 1995
revenues were entirely comprised of sponsored research and development
revenues from an agreement that was terminated in June 1995.
Research spending for the nine months ended September 30, 1996 was $887,000
as compared to $547,000 for the same period in 1995, an increase of $340,000.
Research spending will increase in future quarters as the Company has hired
additional scientific management and staff and is accelerating activities to
develop the Company's product candidates.
General and administrative expenses were $1,145,000 for the nine months ended
September 30, 1996, an increase of $785,000 as compared to the same period in
1995. The increase was due to the following: increased professional expenses
due to the Merger, Private Placement offering and public company reporting
and compliance requirements- $300,000; salaries of newly hired employees-
$159,000; director fees and director and officer insurance- $86,000;
patent expenses- $78,000; travel and entertainment expenses- $62,000;
general business consulting fees and expenses- $56,000; and other
miscellaneous increases- $44,000.
Excess purchase price over the fair value of Chemex's assets of $8,314,000
was recorded in the first quarter due to the merger of API and Chemex.
Accordingly, total expenses were $10,491,000, including $8,314,000 of excess
purchase price written off in the first quarter, which resulted in a loss for
the nine months ended September 30, 1996 of $10,188,000, or $.35 per share.
Certain statements in this Form 10-Q including Management's Discussion and
Analysis of Financial Condition and Results of Operations, are forward-
looking statements that involve risks and uncertainties. In addition to
the risks and uncertainties set forth in this Form 10-Q, other factors could
cause actual results to differ materially, including but not limited to the
Company's research and development focus, uncertainties associated with
research and development activities, future capital requirements and dependence
on others, and other risks detailed in the Company's reports filed under
the Securities Exchange Act, including but not limited to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995.
PART II -- OTHER INFORMATION
ITEM 1 LEGAL PROCEEDINGS
None
ITEM 2 CHANGES IN SECURITIES
None
ITEM 3 DEFAULTS UPON SENIOR SECURITIES
None
4
<PAGE>
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5 OTHER INFORMATION
On April 26, 1996, Access executed a letter of intent to acquire
Tacora Corp., a privately-held pharmaceutical company based in
Seattle. The transaction is currently scheduled to close in the
fourth quarter of 1996. Under the terms of the letter of intent, the
purchase price is contingent upon the achievement of certain
milestones. Stock up to a maximum value of $14,000,000 could be
payable to Tacora's shareholders over a 30 month period on an
escalating value over the milestone period. The consummation of
the transaction is subject to customary conditions to closing
including completion of due diligence, negotiation of definitive
documents and approval of the stockholders of Tacora Corp.
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
Exhibits: 10.19 Lease Agreement with Pollock Realty Corporation
dated July 25, 1996.
Reports on Form 8-K: None
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ACCESS PHARMACEUTICALS, INC.
Date: November 14, 1996 By: /s/ Kerry P. Gray
-----------------------------
Kerry P. Gray
President and Chief Executive Officer
(Principal Executive Officer)
Date: November 14, 1996 By: /s/ Stephen B. Thompson
-----------------------------
Stephen B. Thompson
Chief Financial Officer
(Principal Financial and
Accounting Officer)
6
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Balance Sheets
<TABLE>
<CAPTION>
Assets September 30, 1996 December 31, 1995
- ------ ------------------ -----------------
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 5,160,000 $ 30,000
Accounts receivable - 3,000
Prepaid expenses and other current assets 124,000 4,000
------------- -------------
Total current assets 5,284,000 37,000
------------- -------------
Property and Equipment, at cost 572,000 558,000
Less accumulated depreciation (281,000) (173,000)
------------- -------------
291,000 385,000
------------- -------------
Other Assets 8,000 2,000
------------- -------------
Total Assets $ 5,583,000 $ 424,000
============= =============
Liabilities and Stockholders' Equity (Deficit)
Current Liabilities
Accounts payable and accrued expenses $ 210,000 $ 169,000
Unearned revenue - 150,000
Note payable due to Chemex
Pharmaceuticals, Inc. - 100,000
Current portion of obligations under
capital leases 154,000 133,000
------------- -------------
Total current liabilities 364,000 552,000
------------- -------------
Obligations under capital leases,
net of current portion 119,000 220,000
Note payable 110,000 -
------------- -------------
Total Liabilities 593,000 772,000
------------- -------------
Stockholders' Equity (Deficit)
Preferred stock, at September 30, 1996
$.01 par value, authorized 10,000,000
shares, none issued or outstanding;
at December 31, 1995, $.10 par value,
authorized 1,000,000 shares, none
issued or outstanding - -
Common stock, at September 30, 1996
$.04 par value, authorized 60,000,000
shares, issued and outstanding
31,391,324 shares; at December 31,
1995 $.01 par value, authorized
10,000,000 shares, issued and
outstanding 3,639,928 shares 1,256,000 36,000
Additional paid-in capital 17,766,000 3,460,000
Deficit accumulated during the
development stage (14,032,000) (3,844,000)
------------- -------------
Total Stockholders' Equity (Deficit) 4,990,000 (348,000)
------------- -------------
Total Liabilities and Stockholder's
Equity (Deficit) $ 5,583,000 $ 424,000
============= =============
</TABLE>
- ---------------------------------------------
See accompanying notes to financial statements and Management's Discussion and
Analysis of Financial Conditions and Results of Operations.
7
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Statements of Operations
<TABLE>
<CAPTION>
Three Months ended Nine Months ended
September 30 September 30, February 24, 1988
---------------------- ---------------------- (inception)
1996 1995 1996 1995 Sept 30, 1996
---------- ---------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C>
Revenues
Research and development $ - $ 45,000 $ - $ 575,000 $ 2,711,000
Option income - - 165,000 - 2,037,000
---------- ---------- ---------- ---------- -----------
Total Revenues - 45,000 165,000 575,000 4,748,000
---------- ---------- ---------- ---------- -----------
Expenses
Research and development 430,000 106,000 887,000 547,000 5,413,000
General and administrative 454,000 95,000 1,145,000 360,000 4,532,000
Interest 10,000 13,000 37,000 49,000 113,000
Depreciation and amortization 36,000 31,000 108,000 93,000 879,000
Write off of excess purchase price - - 8,314,000 - 8,314,000
---------- ---------- ---------- ---------- -----------
Total Expenses 930,000 245,000 10,491,000 1,049,000 19,251,000
---------- ---------- ---------- ---------- -----------
Loss from operations (930,000) (200,000) (10,326,000) (474,000) (14,503,000)
---------- ---------- ---------- ---------- -----------
Other Income
Interest and miscellaneous income 58,000 - 138,000 4,000 597,000
---------- ---------- ---------- ---------- -----------
Loss before income taxes (872,000) (200,000) (10,188,000) (470,000) (13,906,000)
Provision for income taxes - - - - 127,000
---------- ---------- ---------- ---------- -----------
Net after income taxes $ (872,000) $(200,000)$(10,188,000) $ (470,000) $(14,033,000)
========== ========== =========== ========== ===========
Loss per common share $(0.03) $(0.07) $(0.35) $(0.16)
========== ========== ========== ==========
Average number of common and equiivalent
common shares outstanding 31,386,405 2,925,983 29,326,544 2,925,983
========== ========== ========== ==========
</TABLE>
- ----------------------------------------------
See accompanying notes to financial statements and Management's Discussion and
Analysis of Financial Conditions and Results of Operations
8
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Statements of Cash Flows
<TABLE>
<CAPTION>
Nine Months ended September 30, February 24, 1988
------------------------------ (inception) to
1996 1995 Sept 30, 1996
------------ ------------ ---------------
<S> <C> <C> <C>
Cash Flows form Operating Activities
Net loss $(10,188,000) $ (470,000) $(14,033,000)
Adjustments to reconcile
net loss to cash used in
operating activities:
Write off of excess
purchase price 8,314,000 - 8,314,000
Depreciation and amortization 108,000 93,000 879,000
Change in assets and liabilities:
Accounts receivable 3,000 (138,000) -
Prepaid expenses and other
current assets (126,000) 20,000 (131,000)
Accounts payable and accrued
expenses 41,000 39,000 163,000
Unearned revenue (150,000) (180,000) -
---------- --------- ---------
Net Cash Used in
Operating Activities (1,998,000) (636,000) (4,808,000)
----------- --------- ---------
Cash Flows From Investing Activities
Capitalized expenditures (14,000) - (1,124,000)
----------- --------- ---------
Net Cash Used in
Investing Activities (14,000) - (1,124,000)
----------- --------- ---------
Cash Flows From Financing Activities
Payments on obligations
under capital leases (89,000) (67,000) (238,000)
Proceeds from notes payable 119,000 - 722,000
Proceeds from Merger with
Chemex Pharmaceuticals 1,587,000 - 1,587,000
Proceeds from stock issuances,
net 5,525,000 170,000 9,021,000
---------- --------- ---------
Net Cash Provided By (Used in)
Financing Activities 7,142,000 103,000 11,092,000
---------- --------- ----------
Net Increase (Decrease) in Cash
and Cash Equivalents 5,130,000 (533,000) 5,160,000
Cash and Cash Equivalents at
Beginning of Year 30,000 533,000 -
---------- --------- ----------
Cash and Cash Equivalents at
End of Period $5,160,000 $ - $5,160,000
========== ========= ==========
Supplemental disclosure of
non cash transactions:
eliminations of note payable
to Chemex Pharmaceutical
due to Merger $ 100,000
</TABLE>
- ----------------------------------------------
See accompanying notes to financial statements and Managements Discussion and
Analysis of Financial Conditions and Results
9
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Notes to Financial Statements
Nine Months Ended September 30, 1996 and 1995
(1) Interim Financial Statements
The balance sheet as of September 30, 1996 and the statements of
operations and cash flows for the nine months ended September 30, 1996
and 1995 were prepared by management without audit. In the opinion of
management, all adjustments, including only normal recurring adjustments
necessary for the fair presentation of the financial position, results
of operations, and changes in financial position for such periods, have
been made, except for the merger accounting discussed below.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. It is suggested
that these financial statements be read in conjunction with the
financial statements and notes thereto included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1995. The
results of operations for the period ended June 30, 1996 are not
necessarily indicative of the operating results which may be expected
for a full year. The balance sheet as of December 31, 1995 contains
financial information taken from the audited financial statements of
Access Pharmaceuticals, Inc., a Texas corporation, ("API") as of that
date.
API merged with and into Chemex Pharmaceuticals, Inc. ("Chemex") on
January 25, 1996. Under the terms of the agreement, API was merged into
Chemex with Chemex as the surviving legal entity. The name of Chemex
was changed to Access Pharmaceuticals, Inc. ("Access" or the "Company").
The Company acquired all of the outstanding shares of API in exchange
for 13,919,979 shares of its registered common stock.
The Company is engaged in research and development activities with a
broad platform technology for enhancing the site targeting of
intravenous therapeutic drugs, MRI contrast agents and
radiopharmaceutical diagnostic and therapeutic agents. The Access
technology is based on natural carbohydrate carriers.
As a result of the merger and immediately after the merger, the former
API stockholders owned approximately 60% of the issued and outstanding
shares of the Company. Generally accepted accounting principles
require that a company whose stockholders retain the controlling
interest in a combined business be treated as the acquiror for
accounting purposes. As a consequence, the merger was accounted for as
a "reverse acquisition" for financial reporting purposes and API has
been deemed to have acquired an approximate 60% interest in Chemex.
Despite the financial reporting requirement to account for the
acquisition as a "reverse acquisition," Chemex remains the continuing
legal entity and registrant for Securities and Exchange Commission
reporting purposes. However, the name of Chemex was changed to
Access Pharmaceuticals, Inc. ("Access" or the "Company").
Certain numbers have been reclassified to conform with the current
presentation.
10
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Notes to Financial Statements
Nine Months Ended September 30, 1996 and 1995
The unaudited financial statements at September 30, 1996 have been
prepared using "purchase" accounting for the merger with API as the
acquirer. The values used in the preparation of the financial
statements were determined based on negotiations between Chemex and
API and comparable values for companies at API's stage of development.
As a result, common stock and paid in capital of API was recorded at
a $10.0 million valuation. The excess purchase price over the fair
value of Chemex's assets of $8,314,000 was written off in the first
quarter of 1996. The balance sheet at December 31, 1995 and the
related statements of operations and cash flows for the nine months
ended September 30, 1995 are the statements of API.
Proforma condensed results of operations "as if" the acquisition had
been made on January 1, 1996 and 1995, respectively, are as follows:
Nine months ended September 30
------------------------------
1996 1995
---------- ----------
Revenues $303,000 $3,464,000
Expenses 2,135,000 3,071,000
---------- ----------
Net income (loss) (1,832,000) 393,000
========== ==========
Net income (loss) per share $(0.06) $0.02
========== ==========
(2) In March 1996 the Company concluded a $6 million Private Placement of
8.57 million shares of common stock. The cash infusion will be used to
continue the advancement of the Access technology which focuses on
increasing the therapeutic benefit and improving the efficacy of
oncology therapeutics and diagnostic agents by selectively targeting
sites of disease and accelerating drug clearance.
(3) SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets to be Disposed Of," effective for fiscal years
beginning after December 15, 1995, requires that long-lived assets and
certain identifiable intangibles to be held and used by an entity be
reviewed for impairment whenever events or changes in circumstances
indicate that the carrying amount may not be recoverable. In addition,
this statement requires that long-lived assets and certain
identifiable intangibles to be disposed of be reported at the lower of
carrying amount or fair value less cost to sell. The Company adopted
this statement January 1, 1996, and the adoption of SFAS No. 121 did
not have material impact on the financial statements of the Company.
11
<PAGE>
ACCESS PHARMACEUTICALS, INC.
a development stage company
Notes to Financial Statements
Nine Months Ended September 30, 1996 and 1995
(4) SFAS No. 123, "Accounting for Stock Based Compensation", effective for
fiscal years beginning after December 15, 1995 established financial,
accounting and reporting standards for stock-based employee
compensation plans. These plans include all arrangements by which
employees receive shares of stock or other equity investments of the
employer or the employer incurs liabilities to employees in amounts
based on the price of the employer's stock. This statement also applies
to transactions in which an entity issues its equity instruments to
acquire goods or services from non-employees. The Company has elected
to continue to account for employee stock compensation plans under
APB 25 but will disclose the required pro forma effect on net income
and earnings per share in the Company's year ending December 31, 1996
financial statements.
(5) On April 26, 1996, Access executed a letter of intent to acquire Tacora
Corp., a privately-held pharmaceutical company based in Seattle. The
transaction is currently scheduled to close in the fourth quarter of
1996. Under the terms of the letter of intent, the purchase price is
contingent upon the achievement of certain milestones. Stock valued
at up to a maximum of $14,000,000 could be payable to Tacora's
shareholders over a 30 month period on an escalating value over the
milestone period. The consummation of the transaction is subject to
customary conditions to closing including completion of due diligence,
negotiation of definitive documents and approval of the stockholders
of Tacora Corp.
12
STANDARD INDUSTRIAL LEASE AGREEMENT 2600 Stemmons Frwy
COMMERCIAL - CREA '93 Suite 176
Dallas, Texas 75207
THIS LEASE AGREEMENT, made and entered into by and between Pollock Realty
Corporation hereinafter referred to as "Landlord", and Access Pharmaceuticals,
Inc. hereinafter referred to as "Tenant";
WITNESSETH:
1. PREMISES AND TERM.
A. In consideration of the mutual obligations of Landlord and Tenant set
forth herein, Landlord leases to Tenant, and Tenant takes from Landlord the
approximately 9,088 square feet more particularly outlined on the floor plan,
attached as Exhibit "A-1" (the "Premises"), which Premises are part of that
approximately 39,733 square foot building (the "Building") which are part of
that approximately 94,639 square foot project (the "Project") located on the
real property situated within the County of Dallas, State of Texas, which real
rights, privileges, easements, appurtenances, and amenities belonging to or in
any way pertaining to the Premises, to have and to hold, subject to the terms,
covenants and conditions in this Lease. If more than one building is located
on the Land, then all references herein to "Building" shall be deemed to
refer to all such buildings collectively unless the context otherwise requires.
B. The term of this Lease shall commence upon either (i) October 1, 1996,
or (ii) if Landlord is required to construct improvements in the Premises
pursuant to Paragraph 1.C. below, on the date of substantial completion of any
such alterations or improvements to the Premises described in Paragraph 1.C.
below (the "Commencement Date"). The term of this Lease shall end on the last
day of the calendar month that is 74 full calendar months after the
Commencement Date.
C. If an Exhibit "B" is attached hereto, then Landlord shall construct and
install in the Premises those improvements and alterations to be constructed
and installed by Landlord pursuant to the plans and specifications described
on such Exhibit "B" attached hereto mean that, in the opinion of the architect
or space planner that prepared the Plans, such improvements have been completed
in accordance with the Plans and the Premises are in good and satisfactory
condition, subject only to completion of minor punch list items. As soon as
such improvements have been substantially completed, Landlord shall notify
Tenant in writing that the Commencement Date has occurred. Within ten (10)
days thereafter, Tenant shall submit to Landlord in writing a punch list of
items needing completion or correction. Landlord shall use its best efforts
to complete such items within thirty (30) days after the receipt of such notice.
In the event Tenant, its employees, agents or contractors cause construction
of such improvements to be delayed, the Commencement Date shall be deemed to
be the date that, in the opinion of the architect or space planner that
prepared the Plans, substantial completion would have occurred if such delays
had not taken place.
2. BASE RENT, SECURITY DEPOSIT AND ESCROW PAYMENT.
A. Tenant agrees to pay to Landlord Base Rent (herein so called) for the
Premises, in advance, without demand, deduction or set off, at the rate of Six
Thousand One Hundred Seventy Two and 23/100 Dollars ($6,172.23)* per month
during the term hereof. One such monthly installment, plus the other monthly
charges set forth in Paragraph 2.C.(b) below, shall be due and payable on the
date hereof and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the Commencement Date;
provided, however, that should this Lease commence on a day other than the
first day of a calendar month succeeding the Commencement Date; provided,
however, that should this Lease commence on a day other than the first day of
a calendar month or terminate on a day other than the last day of a calendar
month, the rental for such partial month shall be prorated. *See Special
Provisions
B. In addition, Tenant shall deposit with Landlord on the date hereof the
sum of Seven Thousand Four Hundred Fifty Five Nine and 70/100 Dollars
($7,459.70) (the "Security Deposit"), which shall be held by Landlord as
security for the performance of Tenant's obligations under this Lease, it
being expressly understood and agreed that the Security Deposit is
not an advance rental deposit or a measure of Landlord's damages in case of an
event of default. Upon each occurrence of an event of default, Landlord may
use all or part of the Security Deposit to pay past due rent or other payments
due Landlord under this Lease, and the cost of any other damage, injury,
expense or liability, chargeable to Tenant hereunder, without prejudice to any
other remedy provided herein or provided by law. On demand, Tenant shall pay
Landlord the amount that will restore the Security Deposit to its original
amount. The Security Deposit shall be deemed the property of Landlord, but
any remaining balance of the Security Deposit shall be returned by Landlord to
Tenant when Tenant's obligations under this Lease have been fulfilled.
C. Tenant agrees to pay, as additional rent, its Proportionate Share (as
defined in Paragraph 22.B. below) of (1) Taxes (hereinafter defined) payable by
Landlord pursuant to Paragraph 3.A.below, (2) the cost of any utilities used in
the Building which are not otherwise paid for by Tenant pursuant to Paragraph
8. below or billed separately to another tenant of the Building, (3) the cost
of any insurance maintained by Landlord on the Building and (4) operating
expenses required by this Lease, including, without limitation, those expenses
referred to in Paragraph 5.D. hereof (but excluding those expenses otherwise
specifically paid for by Tenant pursuant to the terms hereof or expenses billed
separately to other tenants of the Building). During each month of the term of
this Lease, on the same day that Base Rent is due hereunder, Tenant shall
escrow with Landlord and amount equal to 1/12 of Landlord's good faith estimate
of annual cost of its Proportionate Share of such items. Tenant authorizes
Landlord to use the funds deposited with Landlord under this Paragraph 2.C. to
pay such costs. The initial monthly escrow payments are based upon Landlord's
good faith estimate of amounts for the year in question, and shall be
increased or decreased annually to reflect the projected actual cost of all
such items. If Tenant's total escrow payments are less than Tenant's actual
Proportionate Share of all such items, Tenant shall pay the difference to
Landlord within ten (10) days after Tenant's receipt of a written report from
Landlord which shall include in reasonable detail the computations of such
shortfall amount. If the total escrow payments of Tenant are more than
Tenant's actual Proportionate Share of all such items, Landlord shall retain
such excess and credit it against Tenant's next annual escrow payments. The
amount of the monthly rental and the initial monthly escrow payments are as
follows:
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(a) Base Rent as set forth in Paragraph 2.A $ 6,172.23
(b) Taxes as set forth in Paragraph 2.C.(1) $ 575.57
(c) Utilities, Insurance and other Operating
Expenses as set forth in
Paragraphs 2.C.(2), (3) and (4) $ 711.90
-------------
$ 7,459.69
D.Intentionally Omitted
3.TAXES
A. Landlord agrees to pay all taxes, assessments and/or governmental
charges of any kind and nature (collectively referred to herein as "Taxes")
that accrue against the Premises, the Land and/or the Building. If at any time
during the term of this Lease, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received
hereunder and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part upon such rents from the Premises, the Land and/or
the Building, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Taxes" for the purposes hereof but, "Taxes" does not however, include
Landlord's federal or state income, franchise, inheritance or estate taxes.
The Landlord shall have the right to employ a tax consulting firm who's
principle fee will be a base rate not to exceed $500.000 for the Building per
year and a contingency of the savings to attempt to assure a fair tax burden on
the Building and the land within the applicable taxing jurisdiction. Tenant
agrees to pay its Proportionate Share of the cost of such consultant. If the
cost of any improvements constructed on the Premises after the Commencement
Date is disproportionately higher than the cost of improvements constructed
on the premises of other tenants of the Building, then the Landlord, at its
option, may require that Tenant pay the amount of Taxes attributable to such
disproportionately more expensive improvements in addition to its Proportionate
Share of Taxes.
B. Prior to delinquency, Tenant shall (i) pay all taxes levied or assessed
against any personal property or fixtures placed in the Premises, and (ii)
upon the request of Landlord, deliver to Landlord receipts from the applicable
taxing authority or other evidence reasonably acceptable to Landlord to verify
that such taxes upon personal property and fixtures have been paid by Tenant.
4. LANDLORD'S REPAIRS
A. Tenant understands and agrees that this Lease is intended to be a "net"
lease, and as such, Landlord's maintenance, repair and replacement obligations
are limited to those set forth in this Paragraph 4.A. Landlord, at its own cost
and expense, shall be responsible for repair and replacement of only the roof,
the foundation and the exterior walls of the Building (excluding painting of
the building). The Tenant shall immediately give Landlord written notice of
defect or need for repairs, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability
with respect to any defects, repairs, replacement or maintenance for which
Landlord is responsible hereunder shall be limited to the cost of such repairs
or maintenance or the curing of such defect.
B. After written notice to Tenant of the specific maintenance, repair or
replacement obligations, and Tenant's failure to perform such obligations
within thirty (30) days, Landlord reserves the right to perform Tenant's
maintenance, repair and replacement obligations and any other items that are
otherwise Tenant's obligations under Paragraph 5.B, in which event, Tenant
shall pay to Landlord any cost or expense incurred by Landlord in making such
repairs within ten (10) days after demand.
5. TENANT'S MAINTENANCE AND REPAIR OBLIGATIONS
A. Tenant, at its own cost and expense, shall maintain all parts of the
Premises (except those for which Landlord is expressly responsible hereunder)
in good condition, ordinary wear and tear excepted, and promptly make all
necessary repairs and replacements to the Premises.
B. Tenant agrees to pay its Proportionate Share (which is defined as 9.60%
of the Project) of the cost of the maintenance, repair, and replacement of the
parking areas, driveways, alleys and grounds surrounding the Premises performed
by Landlord that causes such areas to be maintained in a good, neat, clean and
sanitary condition, consistent with the operation of a first class
office/warehouse building, which includes, without limitation, prompt
maintenance, repairs and replacements (1) of the parking area associated with
the Building, (2) of all grass, shrubbery and other landscape treatments
surrounding the Building, (3) of the exterior of the Building (including
painting), (4) of sprinkler systems and sewage lines, (5) of any other
maintenance, repair or replacement items normally associated with the
foregoing, (6) for the operation, maintenance and/or landscaping of any
property or facility that is operated, maintained or landscaped by any property
owner or community owner association that is named in any restrictive covenants
or deed restrictions to which the Premises are subject and which are
actually billed to Building, and (7) for operating and maintaining any
property, facilities or services provided for the common use of Tenant and
other Tenants of the Building. Such costs shall include, without limitation,
management fees, maintenance and repair costs, sewer, landscaping, trash and
security (if furnished by Landlord), wages and employee benefits payable to
employees of Landlord whose duties are connection with the operation and
maintenance of the Building, amounts paid to contractors or subcontractors
for work or services performed in connected with the operation and maintenance
of the Building, all service, supplies, repairs, replacements or other
expenses for maintaining and operating the Building, and any other
facilities or services provided for the common use of Tenant and other
Tenants of the Building. In addition, Tenant shall repair and pay for any
damage caused by the negligence of Tenant, or Tenant's employees, agents or
invitees, or caused by Tenant's default hereunder.
C. Tenant shall pay its Proportionate Share of the cost and expense of such
repair, replacement, replacement reserve, maintenance and other such items as
additional rent, pursuant to Paragraph 2.C. above. The amount of Tenant's
rental obligation set forth in items, is not a condition to payment of such
rental obligation.
D. Within ten days after the Commencement Date and continuing for the
entire term of this Lease, Tenant shall enter into a regularly scheduled
preventive maintenance/service contract with a maintenance contractor
reasonably acceptable to Landlord for servicing hot water, heating, air
conditioning, and/or other systems and equipment within the Premises with
a contractor, and Tenant shall be
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responsible for all costs and expenses required thereunder. At least 14 days
before the end of the Term, Tenant shall deliver to Landlord a certificate
from an engineer or licensed mechanical contractor reasonably acceptable to
Landlord certifying that the hot water equipment and the HVAC System are then
in good repair and working order.
E. Intentionally Omitted.
6. ALTERATIONS. Tenant shall not make any alterations, additions or
improvement to the Premises without the prior written consent of Landlord.
Tenant, at its own cost and expense, may erect such shelves, bins, machinery
and trade fixtures as it desires provided that (a) such items do not alter
the basic character of the Premises or the Building; (b) such items do not
overload or damage the same; (c) such items may be removed without injury to
the Premises; and (d) the construction, erection or installation thereof
complies with all applicable governmental laws, ordinances, regulations and
with Landlord's specifications and requirements. All installations, removals
and restoration shall be performed in a good and workmanlike manner so as not
to damage or alter the primary structure or structural qualities of the
Building or the Premises.
7. SIGNS. Tenant shall not place, install or attach any signage,
decorations, advertising media, blinds, draperies, window treatments, bars or
security installations to the premises or the Building without Landlord's prior
written approval. Tenant shall repair, paint, and/or replace any portion of
the Premises or the Building damaged or altered as a result of its
signage, upon the earlier of vacation of the Premises by Tenant or the
removal or alteration of its signage, all of which shall be accomplished at
Tenant's sole cost and expense. Tenant shall not, (i) make any changes to the
exterior of the Premises or the Building, (ii) install any exterior lights,
decorations, balloons, flags, pennants, banners or maintain, or (iii) erect or
install any signs, windows or door lettering, decals, window and storefront
stickers, placards, decorations or advertising media of any type that can be
viewed from the exterior of the Premises, without Landlord's prior written
consent.
8. UTILITIES. Tenant shall obtain and pay for all water, gas, heat,
light, power, telephone, sewer, sprinkler charges and other utilities and
services used on or at the Premises, together with any taxes, penalties,
surcharges or the like pertaining to the Tenant's use of the Premises, and
any maintenance charges for utilities. Landlord shall have the right to
cause any of said services to be separately reasonable proportion, to be
determined by Landlord, of all charges jointly metered with other premises
in the Building. Landlord shall not be liable for any interruption or failure
of utility service on the Premises.
9. INSURANCE.
A. Landlord shall maintain insurance covering the Building and the Premises
in an amount not less than eighty percent (80%) of the "replacement cost"
thereof insuring against the perils and costs of Fire, Lightning, Extended
Coverage, Vandalism and Malicious Mischief, Liability and Rental Interruption
and such other insurance as Landlord shall deem necessary.
B. Tenant, at its own expense, shall maintain during the term of this
Lease (1) a policy or policies of worker's compensation and comprehensive
general liability insurance (with contractual liability endorsement), including
personal injury and property damage in the amount of Five Hundred Thousand
Dollars ($500,000.00) per occurrence for property damage and One Million
Dollars ($1,000,000.00) per occurrence for personal injuries or deaths of
persons occurring in or about the Premises and (2) fire and extended coverage
insurance covering the replacement cost of (a) all alterations, additions,
partitions and improvements installed or placed on the Premises, and (b) all
of Tenant's personal property contained within the Premises. Said policies
shall (i) name Landlord, as well as such entities or firms as Landlord may
engage from time to time as property managers and/or asset or investment
managers, as additional insured (until further notice, it is expressly agreed
that The Industrial Group, The Industrial Group Management Services, Inc., and
Pollock Realty Corporation shall be named as additional insured), (ii) be
issued by an insurance company which is reasonably acceptable to Landlord,
(iii) provided that such insurance shall not be canceled unless thirty (30)
days prior written notice shall have been given to Landlord, (iv) shall be
delivered to Landlord by Tenant prior to the Commencement Date and at least
fifteen (15) days prior to each renewal of said insurance, and (v) shall
provide primary coverage to Landlord when and policy issued to Landlord is
similar or duplicate in coverage, in which case Landlord's policy shall be
excess over Tenant's policies.
C. Tenant will not permit the Premises to be used for any purpose or in any
manner other than the current operation of the company that would (1) void
the insurance thereon, (2) increase the insurance risk, or (3) cause the
disallowance of any sprinkler credits. Tenant shall pay to Landlord on
demand any increase in the cost of any insurance on the Premises or the
Building incurred by Landlord, which is caused by Tenant's use of the
premises in a manner different than their current operations.
10. FIRE AND CASUALTY DAMAGE.
A. Tenant immediately shall give written notice to Landlord if the
Premises or the Building are damaged or destroyed. If the Premises or the
Building should be totally destroyed by an insured peril, or so damaged by
an insured peril that, in Landlord's estimation, rebuilding or repairs
cannot be completed within one hundred eighty (180) days after the date
of Landlord's actual knowledge of such damage, then in either case this
Lease shall terminate and the rent shall be abated during the unexpired
portion of this Lease, effective upon the date to the occurrence of such damage.
B. If the Building or the Premises should be damaged but not totally
destroyed by any insured peril, and in Landlord's estimation, rebuilding or
repairs can be substantially completed within one hundred eighty (180) days
after the date of Landlord's actual knowledge of such damage, this Lease
shall not terminate, and Landlord shall restore the Premises to substantially
its previous condition, except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures, additions and other
improvements or personal property required to be covered by Tenant's insurance
pursuant to Paragraph 9.B. above. Effective upon the date of the occurrence
of such damage and ending upon the date of substantial completion (as
defined in Paragraph 1.C. above) of Landlord's repair or restoration
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work, if the Premises are untenantable in whole or part during such period,
then the rent shall be reduced to such extent as may be fair and reasonable
under all of the circumstances. If such repairs and rebuilding have not been
substantially completed within one hundred eighty (180) days after the date
of such damage, Tenant, as Tenant's exclusive remedy, may terminate this Lease
by delivering written notice of termination to Landlord, in which event the
rights and obligations hereunder shall cease and terminate, provided, however,
that any liabilities of Tenant which accrued prior to termination of this Lease
shall survive such termination.
C. In connection with any repair or reconstruction to the Premises arising
from or necessitated by fire or the casualty which is covered by the
insurance provided pursuant to Paragraph 9.A. above, Tenant shall pay Landlord
upon demand its Proportionate Share of the amount of any deductible of such
insurance which deductible shall not exceed $15,000.00.
D. Notwithstanding anything herein to the contrary, in the event the
Premises are destroyed or substantially damaged by any peril not covered by
the insurance required to be carried by Landlord pursuant to Paragraph 9.A.
above, or if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Premises requires that insurance proceeds be applied to
such indebtedness, then Landlord shall have the right to terminate this Lease
by delivering written notice of termination to Tenant within fifteen (15)
days after such requirement is made known by any such holder, whereupon all
rights and obligations hereunder shall cease and terminate with the
exception that the Tenant's security deposit shall be refunded, provided,
however, that any liabilities of Tenant which accrued prior to termination of
this Lease shall survive such termination.
E. Anything in this Lease to the contrary notwithstanding, to the extent
of a recovery of loss proceeds under the policies of insurance described in
this Lease, Landlord and Tenant hereby waive and release each other and any of
their respective related parties and affiliates of and from any and all rights
of recovery, claim, action, or cause of action, against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Premises, the Building, or personal property within the Building and/or
Premises arising from or caused by fire or other casualty or hazard covered or
required to be covered by hazard insurance under this lease. Upon execution
of this Lease, Landlord and Tenant shall notify their respective insurance
companies of the mutual waivers contained herein and, if available, shall cause
each policy described in this Lease to be so endorsed.
11. LIABILITY AND INDEMNIFICATION.
A. Tenant agrees that it will indemnify and hold harmless Landlord, its
successors, assigns, agents, employees, contractors, partners, directors,
officers and affiliates (as that term is defined in the Securities Act of 1933)
(collectively, the "Indemnified parties") from and against all fines, suits,
losses, costs, liabilities, claims, demands, actions and judgments of
every kind or character (a) arising from any breach, violation or non-
performance of any term, provision, covenant, agreement or condition on the
part of Tenant hereunder, (b) recovered from or asserted against any of the
Indemnified Parties on account of injury or damage to person or property to
the extent that any such damage or injury may be incident to, arise out of, or
be caused, either approximately or remotely, wholly or in part, by any act,
omission, negligence or misconduct on the part of Tenant or any of its agents,
servants, employees, contractors, or invitees or of any other person entering
upon the Premises under or with the express or implied invitation or
permission of Tenant, (c) arising from or out the occupancy or use by
Tenant, its agents, servants, employees, contractors, or invitees of the
Premises or arising from or out of any event, circumstance, or occurrence
within the Premises, howsoever caused, and/or (d) suffered by, recovered from
or asserted against any of the Indemnified Parties by Tenant's employees,
agents, servants, contractors, or invitees. Such indemnification of the
Indemnified Parties by Tenant shall be effective (i) unless such damage to
property results from the gross negligence or willful misconduct of Landlord
or any of its duly authorized agents or employees, and (ii) unless such injury
to person results from the negligence or willful misconduct of Landlord or any
of its duly authorized agents or employees.
B. Tenant covenants and agrees that in case any of the Indemnified Parties
hereunder or relating to this Lease or to the Premises, then Tenant shall and
will pay all costs and expenses, including reasonable attorney's fees and court
costs, incurred by or imposed upon any other Indemnified Parties by virtue of
any such litigation and the amount of all such costs and expenses, including
attorneys' fees and court costs, shall be a demand obligation owing by Tenant
to the Indemnified Parties.
C. The provisions of this Paragraph shall survive the expiration or
termination of this Lease with respect to any claims or liability occurring
prior to such expiration or termination. The indemnification provided by this
Paragraph 11. is subject to Landlord's waiver of recovery in the preceding
Paragraph 10., to the extent of Landlord's recovery of loss proceeds under
policies of insurance described in Paragraph 10.
12. USE.
A. The Premises shall be used to the extent permitted by applicable law
only for general office purposes and light pharmaceutical and test
laboratories and to the extent applicable for the purpose of receiving,
storing, formulating, and selling (other than retail) products, materials
and merchandise made and/or distributed by Tenant and for such other lawful
purpose as many be incidental thereto. Tenant shall not use the Premises for
the receipt, storage or handling of any product, material or merchandise that
is explosive or highly inflammable or hazardous except for the small amounts of
materials necessary for the pharmaceutical development process properly used,
stored and disposed of by Tenant in the normal conduct of its business.
Outside storage, including without limitation, storage of trucks and other
vehicles, is prohibited without Landlord's prior written consent. Tenant
shall comply with all federal, state, and local governmental laws, ordinances
and regulations applicable to the use of the Premises, and promptly shall
comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or connected with, the
Premises, all at Tenant's sole expense Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, light, noise or vibrations
to emanate from the Premises, nor take any other action that would
constitute a nuisance or would disturb, unreasonably interfere with, or
endanger Landlord or any other Tenants of the Building.
B. Tenant and its employees, customers and licensees shall have the non-
exclusive right to use, in common with others, any parking areas associated
with the Premises which Landlord has designated for such use, subject to (1)
all reasonable rules and regulations promulgated by Landlord and (2) rights
of ingress and egress of other Tenants and their employees, customers,
agents and invitees. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties.
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13. INSPECTION. Landlord and Landlord's agents and representatives shall
have the right upon not less than 24 hours advance notice to enter the
Premises at any reasonable time during business hours to inspect the Premises
and to make such repairs as may be required or permitted pursuant to this
lease. During the period that is twelve (12) months prior to the end of the
Lease term, Landlord and Landlord's representatives may enter the premises
during business hours for the purpose of showing the Premises. In addition,
during the same twelve (12) month period Landlord shall have the right to
erect a suitable sign on the Premises indicating that the Premises are
available. Tenant shall notify Landlord in writing at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with landlord for a
joint inspection, then Landlord's inspection of the Premises shall be deemed
correct for the purposes of determining Tenant's responsibility for repairs
and restoration of the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to sublet all or part of the Premises or
to assign, transfer or encumber this Lease, or any interest therein, without
the prior written consent of Landlord. Any attempted assignment, subletting,
transfer or encumbrance by Tenant in violation of the terms and covenants of
this Paragraph shall be void. No assignment, subletting or other transfer,
whether consented to by Landlord or not, or permitted hereunder, shall relieve
Tenant of its liability hereunder. If any event of default occurs while the
Premises or any part thereof are assigned or sublet, then Landlord, in
addition to any other remedies herein provided, or provided by law, may
collect directly from such assignee, subTenant or transferee all rents
payable to the Tenant and apply such rent against any sums due Landlord
hereunder. No such collection shall be construed to constitute a novation
or a release of Tenant from the further performance of Tenant's obligations
hereunder.
B. Intentionally deleted.
C. Upon the occurrence of an assignment or subletting, whether consented to
by Landlord, or mandated by judicial intervention, Tenant hereby assigns,
transfers and conveys all rents or other sums received by Tenant under any
such assignment or sublease, which are in excess of the rents and other sums
payable by Tenant under this Lease, and Tenant agrees to pay to Landlord such
amounts within ten (10) days after receipt.
D. If This Lease is assigned to any person or entity pursuant to the
provision of the Bankruptcy Code, 11 US C. 101 et. seq. (the "Bankruptcy
Code"), any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall
not constitute property of Tenant or of the estate of Tenant within the meaning
of the Bankruptcy Code. Any and all monies or other considerations
constituting landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of landlord and
promptly paid or delivered to Landlord.
E. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon demand
execute and deliver to Landlord an instrument confirming such assumption.
15. Condemnation. If more than percent (50%) of the Premises are taken for
any public or quasipublic use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, and the
taking prevents or materially interferes with the use of the remainder of the
Premises for the purpose for which they were leased to Tenant, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease, effective on the date of such taking. If (i) less than fifty
percent (50%) of the Premises are taken for any a public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof; or (ii) more than fifty
percent (50%) of the Premises are taken for any public or quasipublic use
under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, but the taking does not prevent
or materially interfere with the use of the remainder of the Premises for the
purpose for which they were leased to Tenant, this Lease shall not terminate,
but the rent payable hereunder during the unexpired portion of this Lease shall
be reduced to such extent as may be fair and reasonable under all of the
circumstances. All compensation awarded in connection with or as a result
of any of the foregoing proceedings shall be the property of Landlord and
Tenant hereby assigns any interest in any such award to Landlord; provided,
however, Landlord shall have no interest in any award made to Tenant for loss
of business or goodwill or for the taking of Tenant's fixtures and
improvements, if a separate award for such items is made to Tenant.
16. SURRENDER OF PREMISES; HOLDING OVER
A. At the termination of this Lease, whether caused by lapse of time or
otherwise, Tenant shall at once surrender possession of the Premises and
deliver them to Landlord in a good repair and condition as existed at the
Commencement Date, reasonable wear and tear excepted, and shall deliver to
landlord all keys (or other access control devices) the Premises, and,
if such possession is not immediately surrendered, Landlord may forthwith
enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying them, or any part thereof, without
having any civil or criminal liability thereof.
B. All alterations, additions or improvements (whether temporary or
permanent in character) made to or fixtures installed in or upon the Premises
(other than all Class 2 biosafety cabinetry and fume hoods), either by Landlord
or Tenant, shall be Landlord's property on termination of this Lease and shall
remain on the Premises. Notwithstanding the foregoing, upon the termination
of this Lease landlord may direct Tenant, at Tenant's expense, to remove all
alterations, improvements, and additions installed by Tenant and return the
Premises to the condition that existed at the Commencement Date. Subject
to Paragraph 25 hereof and provided that all sums owed by Tenant hereunder
have been paid, all movable office furniture and equipment not attached to
the Building may be removed by Tenant at the termination of this Lease. All
such removals shall be accomplished in good workmanlike manner so as not to
damage the Premises or the Structural components of the Building or the
plumbing, electrical lines or other utilities, and any damage resulting from
such removals shall be repaired at Tenant's expense.
C. All alterations, additions, and improvements directed by Landlord to be
removed and all movable office furniture and equipment not attached to the
Building not promptly removed after such termination shall thereupon be
conclusively presumed to have been
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abandoned by Tenant, and Landlord may, at its option, take over possession of
such property and either (a) declare same to be the property of Landlord by
written notice thereof to Tenant or (b) at the sole costs and expense of
Tenant remove and store the same or any part thereof in any manner that
Landlord shall choose without incurring liability to Tenant or any other
person (any such removal and storage costs and expenses being payable by Tenant
upon demand).
D. Should Tenant continue to hold the Premises after the termination of
this Lease, whether the termination occurs by lapse of time or otherwise,
such holding over shall, unless otherwise agreed by Landlord in writing,
constitute and be construed as a tenancy at will at a daily rental equal to
one-thirtieth of an amount equal to one hundred fifty percent (150%) of the
amount of the monthly rental payable during the last month prior to the
termination of this Lease, and upon and subject to all of the other terms,
provisions, covenants and agreements set forth herein except any right to
renew this Lease. No payments of money by Tenant to Landlord after the
termination of this Lease shall reinstate, continue or extend the term of
this Lease and no extension of this Lease after the termination hereof shall
be valid unless and until the same shall be reduced to writing and signed by
both Landlord and Tenant. Tenant shall be liable to Landlord for all damage
which Landlord shall suffer by reason of any holding over by Tenant and
Tenant shall indemnify Landlord against all claims made by any other tenant
or prospective tenant against Landlord resulting from delay by Landlord in
delivering possession of the Premises to such other tenant or prospective
tenant.
17. QUIET ENJOYMENT. Landlord covenants that on or before the Commencement
Date it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for current taxes not yet due, such
mortgage or mortgages as are permitted by the terms of this Lease, zoning
ordinances and other building and fire ordinances and governmental
regulations relating to the use of such property, and easements, restrictions
and other conditions of record. Landlord represents that it has the
authority to enter into this Lease and that so long as Tenant pays all amounts
due hereunder and performs all other covenants and agreements herein set
forth, Tenant shall peaceably and quietly have, hold and enjoy the
Premises of the term hereof without hindrance or molestation from Landlord,
subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "event of default" on the part of Tenant under this
Lease;
A. Tenant shall fail to pay any rental or other payment or reimbursement
payable by Tenant hereunder when due, or Tenant shall fail to pay any payment
or reimbursement required under any other lease with Landlord when due, and
in either case such failure shall continue for a period of seven 7 (7) days
from the date such payment was due.
B. Tenant shall fail to pay any amounts owed to contractors or
subcontractors for work or services performed in connection with the operation,
construction, management or maintenance of the Building as provided herein,
and such failure shall continue for a period of seven (7) days from the date
such payment was due, provided, however, that Tenant may secure with landlord
a performance bond covering the amount, when the amount, applicability, or
validity thereof is being contested in good faith by appropriate proceedings
to which Tenant is a party.
C. Tenant shall (i) become insolvent; (ii) admit in writing its inability
to pay its debts; (iii) make a general assignment for the benefit of creditors;
(iv) commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as a debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property; or (v) take any action to
authorize, or in contemplation of, any of the actions set forth above
in this subparagraph C.
D. Any case, proceeding or other action against the Tenant or any guarantor
of Tenant's obligations hereunder shall be commenced seeking (i) to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt
or insolvent; (ii) reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors (iii) appointment
of a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property, and such case, proceeding or other
action (a) results in the entry of an order for relief against it which it is
not fully stayed within seven (7) business days after the entry thereof or (b)
if pending shall remain undismissed for a period of sixty (60) days.
E. Tenant shall (i) vacate all or a substantial portion of the Premises or
(ii) fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in default of the
rental payments due under this Lease.
F. Tenant shall fail to discharge any lien place upon the Premises in
violation of Paragraph 21. hereof within twenty (20) days after any such lien
or encumbrance is filed against the Premises.
G. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than those listed in this Paragraph 18.), and shall not
substantially cure such failure within twenty (20) days after written notice
thereof to Tenant.
19. REMEDIES.
A. Upon each occurrence of an event of default, and in addition to and not
in limitation of any other remedy permitted by law or equity or be this lease,
landlord shall have the option the pursue any one or more of the following
remedies without any notice or demand:
(1) Terminate this lease; and/or
(2) Enter upon and take possession of the Premises without
terminating this Lease; and/or
(3) Alter all locks and other security devices at the Premises with
or without terminating this Lease, deny access to Tenant, or
pursue, at Landlord's option, one or more remedies pursuant to
this Lease, Tenant hereby specifically waiving any state or
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federal law to the contrary. This provision shall control over
any conflicting provisions of the Texas Property Code or any
successor statue governing the right of landlords to change the
door locks of commercial tenants to the extend permitted by
applicable law.
B. Upon the occurrence of any event of default and written demand by
Landlord Tenant immediately shall surrender the Premises to Landlord, and if
Tenant fails so to do, Landlord, without waiving any other remedy it may have,
may enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying such Premises or any part thereof,
without being liable for prosecution or any claim of damages therefor.
C. If Landlord repossesses the Premises with or without terminating the
lease, Tenant, at landlord's option, shall be liable for and shall pay Landlord
on demand all rental and other payments owed to Landlord hereunder accrued to
the date of such repossession, plus all amounts required to be paid by Tenant
to Landlord until the date of expiration of the term as stated in Paragraph 1.
Actions to collect amounts due by Tenant to Landlord under this subparagraph
may be brought from time to time, on one or more occasions, without the
necessity of Landlord's waiting until expiration of the Lease term. Landlord
may relet the whole or any portion of the Premises for any period, to any
tenant and for any use and purpose.
D. Upon an event of default, in addition to any sum provided to be paid
herein, Tenant also shall be liable for and shall pay to Landlord (1) any
prorated brokerage fees for the remainder of the Lease term incurred by
Landlord in connection with the execution of this lease: (2) brokers' fees
incurred by Landlord in connection with any reletting of the whole or any
part of the Premises; (3) the costs of removing and storing Tenant's or other
occupant's property; and (4) all reasonable expenses incurred by Landlord in
enforcing or defending rights and/or remedies. If either party hereto
institutes any action or preceeding to enforce any provision hereof by
reason of any alleged breach of any provision of this Lease, the prevailing
party shall be entitled to receive from the losing party all reasonable
attorney's fees and all court costs in connection with such proceeding.
E. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available, including without limitation, the institution by Landlord,
its agents or attorneys of a forcible detainer or ejectment action to re-enter
the Premises shall not be construed to be an election to terminate this Lease
or relieve Tenant of its obligation to pay rent hereunder and shall not be
deemed to be an acceptance of surrender of the Premises by Landlord, whether
by agreement or by operation of law, it being understood that such surrender
can be effected only by the written agreement of Landlord and Tenant. Tenant
and Landlord further agree that forbearance by Landlord to enforce its rights
pursuant to the Lease at law or in equity shall not be a waiver of Landlord's
right to enforce one or more of its rights in connection with any subsequent
default.
F. In the event Tenant fails to make any payment due hereunder when payment
is due, to help defray the additional cost to Landlord for processing such late
payments, Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such payment; and the failure to pay such amount
within ten (10) days after demand therefore shall be an additional event of
default hereunder. The Provision for such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not
be construed as liquidated damages or as limiting Landlord's remedies in any
manner.
G. If Landlord repossesses the Premises pursuant to the authority herein
granted, then Landlord shall have the right to (i) keep in place and use or
(ii) remove and store, at Tenant's expense, all of the furniture, fixtures and
equipment at the Premises, including that which is owned by or leased to
Tenant at all times prior to any foreclosure thereon by Landlord or
repossession thereof by any Landlord thereof or third party having a lien
thereon. Landlord also shall have the right to relinquish possession of all
or any portion of such furniture, fixtures, equipment and other property to
any person ("Claimant") who presents to Landlord a copy of any instrument
represented by Claimant to have been executed by Tenant (or any predecessor
of Tenant) 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 Landlord to inquire into the authenticity or
legality of said instrument. Landlord may at its sole option and without
prejudice to, or waiver of any rights it may have i) escort Tenant to the
Premises to retrieve any personal belongings of Tenant and/or it's employees
not covered by the Landlord's lien and security interest described in
Paragraph 25. hereof, or ii) obtain a list from Tenant of the personal
property of Tenant and/or its employees that is not covered by the Landlord's
lien and security interest described in Paragraph 25. hereof, and make such
property available to Tenant and or Tenant's employees; provided, however,
Tenant first shall pay in cash all costs and estimated expenses to be
incurred in connection with the removal of such property and making it
available. Any such property not removed by Tenant within ten (10) days
after demand therefor by Landlord shall thereupon be conclusively presumed to
have abandoned by Tenant to Landlord, and Landlord may, at its option, take
over possession of such property and declare same to be the property of
Landlord by written notice thereof to Tenant. The rights of Landlord herein
stated shall be in addition to any and all other rights that landlord has or
may hereafter have at law or in equity, and Tenant stipulates and agrees
that the rights herein granted Landlord are commercially reasonable.
H. If Landlord fails to commence to perform any of its obligations
hereunder within thirty (30) days after written notice from Tenant specifying
such failure, and such obligations are not completed within sixty (60) days of
the date of such notice (unless agreed to by Landlord and Tenant), Tenant's
exclusive remedy shall be an action for damages. Unless and until
landlord fails to so cure said default after such notice, Tenant shall not
have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be binding upon Landlord only during the period of its
possession of the Premises and not thereafter. The term "Landlord" shall
mean only the owner, for the time being, of the Premises and not thereafter.
The term "Landlord" shall mean only the owner, for the time being, of the
Premises, and in the event of the transfer by such owner of its interest in
the Premises, such owner shall thereupon be released and discharged from all
covenants and obligations of the landlord thereafter accruing, but such
covenants and obligations shall be binding during the lease term upon each
new owner for the duration of such owner's ownership. Notwithstanding any
other provision hereof, Landlord shall not have any personal liability
hereunder. In the event of any breach or default by Landlord in any term or
provision of this Lease, and, as a consequence, if Tenant shall recover a
money judgment against Landlord, such judgment shall be satisfied only out of
the proceeds received at a judicial sale upon execution and levy against the
right, title and interest of Landlord in the Building, and in the rents or
other income from the Building receivable by Landlord, and neither Landlord
nor Landlord's owners, partners or venturers shall have any personal,
partnership, corporate or other liability hereunder.
20. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or at any time hereafter constituting a
lien or charge upon the Premises, the improvements situated thereon, the
Building or the Land, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of such mortgages and deeds of
trust; provided, however,
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that if the mortgagee, trustee, or holder of any such mortgage or deed of trust
elects to have Tenant's interest in this Lease superior to any such instrument,
then by notice to Tenant from such mortgagee, trustee or holder, this Lease
shall be deemed superior to such lien, whether this Lease was executed before
or after said mortgage or deed of trust. The provisions of this Paragraph 20.
shall be self-operative, and no further instrument shall be required to
effect such subordination of this Lease. Tenant shall however, at any time
hereafter, within ten (10) days after demand, execute any instruments,
releases or other documents that may be required by any mortgagee for the
purpose of subjecting or subordinating this Lease to the lien of any such
mortgage. If Tenant fails to execute the same within such ten (10) day
period, Landlord is hereby authorized to execute the same as attorney-in-
fact for Tenant. Tenant agrees to attorn upon demand to any mortgagee,
trustee under a deed of trust or purchaser at a foreclosure sale or trustee's
sale as Landlord under this Lease. The agreement of Tenant to attorn upon
demand contained in the immediately preceding sentence shall survive
any such foreclosure sale or trustee's sale. Tenant shall upon demand at any
time or times, before or after any such foreclosure sale or trustees sale
execute, acknowledge and deliver to any mortgagee, trustee under a deed of
trust or purchaser at a foreclosure sale or trustee's sale any and all
instruments and certificates that in the judgment of such party may be
necessary or proper to confirm or evidence such attornment, and Tenant
hereby irrevocably appoints any such mortgagee, trustee under a deed of trust
or purchaser at a foreclosure sale or trustee's sale as Tenant's agent and
attorney-in-fact for the purpose of executing, acknowledging and delivering
any such instruments and certificates.
21. MECHANIC'S LIENS. Tenant has no authority, express or implied, to
create or implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind the interest of Landlord or
Tenant in the Premises or to charge the rentals payable hereunder for any claim
in favor of any person dealing with Tenant, including those who may furnish
materials or perform labor for any construction or repairs. Tenant covenants
and agrees that it will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials furnished in
connection with any work performed on the Premises and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the Premises or under the
terms of this Lease. Tenant agrees to give Landlord immediate written
notice of the placing of any lien or encumbrance against the Premises.
22. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and works in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions
inserted in this Lease are for convenience only and in no way defined, limit
or otherwise described the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple occupancy
building, Tenant's "Proportionate Share", as used in this Lease, shall mean a
fraction, the numerator of which is the square footage deemed in Paragraph 1.A.
contained in the Premises and the denominator of which is the entire rentable
square footage deemed on Paragraph 1.A. contained in the Building.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
Building and property that are the subject of this Lease. Each party agrees
to furnish to the other, promptly upon demand, a corporate resolution, or the
other appropriate documentation evidencing the due authorization of such party
to enter into this Lease.
D. Landlord shall not be held responsible for delays in the performance of
its obligations hereunder when caused by strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations or restrictions or
any other cause of any kind whatsoever which are beyond the control of
Landlord.
E. Tenant agrees, from time to time, within ten (10) days after receipt of
written request of Landlord, to deliver to Landlord, or Landlord's designee, a
Certificate of Occupancy for the Premises, Quarterly financial statements for
itself and any guarantor of its obligations hereunder, and an estoppel
certificate stating that this Lease is in full force and effect, the date
to which rent has been paid, the unexpired term of this lease and such other
factual meters pertaining to this Lease as may be requested by Landlord. It
is understood and agreed that Tenant's obligation to furnish the above-
described items in a timely fashion is a material inducement for Landlord's
execution of this Lease. If Tenant fails to execute any such estoppel
certificate within such ten (10) day period, Landlord is hereby authorized to
execute the same as attorney-in-fact for Tenant.
F. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreement of Landlord and Tenant with
respect thereto. Landlord and Tenant each acknowledge that no
representations, inducements, promises or agreements, oral or written, have
been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreement, promises,
negotiation, or representations not expressly set forth in this Lease are of
no force or effect. This Lease may not be altered, changed or amended except
by an instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to taxes and insurance and
all obligations concerning the condition and repair of the Premises. Upon
the expiration or earlier termination of the term hereof, and prior to
Tenant vacating the Premises, Tenant shall pay to Landlord any amount
reasonable estimated by Landlord as necessary to put the Premises, including
without limitation, all heating and air conditioning systems and equipment
therein, in good condition and repair, reasonable wear and tear excluded.
Tenant shall also, prior to vacating the Premises, pay to Landlord the pro
rated amount, as estimated by Landlord, of Tenant's obligation hereunder
for real estate taxes and insurance premiums for the number of months the lease
is in effect during the final year in which the lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable for any additional
costs thereof or upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied as the
case may be. Any security deposit held by Landlord shall be credited against
the amount due by Tenant under this Paragraph 22.G.
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H. Intentionally Omitted.
I. If any clause of provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added, as
part of this lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
J. All references in this Lease to "the date hereof" or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this Lease.
K. Tenant represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent
or other person brought about this transaction, other than as may be referenced
in a separate written agreement executed by Tenant, and delivered to Landlord
prior to execution of this Lease, and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by and other by any other broker,
agent or other persons claiming a commission or other form of compensation by
virtue of having dealt with Tenant with regard to this leasing transaction.
L. If and when included within the term "Landlord", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of
notices and payments to Landlord. If and when included within the term
"Tenant", as used in this instrument, there is more than one person, firm or
corporation, all shall jointly arrange among themselves for their joint
execution of a notice specifying some individual at some specific address
within the continental United States for the receipt of notices and payments
to Tenant. All parties included within the terms "Landlord" and "Tenant",
respectively, shall be bound by notices given in accordance with the
provisions of Paragraph 23. hereof to the same effect as if each had
received such notice.
M. THE COMMENCEMENT DATE TENANT SHALL ACKNOWLEDGE THAT (1) IT HAS INSPECTED
AND ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION, (2) THE BUILDING
AND IMPROVEMENTS COMPRISING THE SAME ARE SUITABLE FOR THE PURPOSE FOR WHICH
THE PREMISES ARE LEASED AND LANDLORD HAS MADE NO WARRANTY, REPRESENTATION,
COVENANT, OR AGREEMENT WITH RESPECT TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF THE PREMISES, (3) THE PREMISES ARE IN GOOD AND
SATISFACTORY CONDITION, (4) NO REPRESENTATIONS AS TO THE REPAIR OF THE
PREMISES, NOR PROMISES TO ALTER, REMODEL OR IMPROVE THE PREMISES HAVE BEEN
MADE BY LANDLORD (UNLESS AND EXCEPT AS MAY BE SET FORTH IN EXHIBIT B ATTACHED
TO THIS LEASE, IF ONE SHALL BE ATTACHED, OR AS IS OTHERWISE EXPRESSLY SET
FORTH IN THIS LEASE), AND (5) THERE ARE NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED, IMPLIED OR STATUTORY, THAT EXTEND BEYOND THE DESCRIPTION OF THE
PREMISES.
N. Landlord and Tenant agree that the terms and conditions of this Lease
are confidential and the parties hereto agree not to disclose the terms of
this Lease to any third party.
O. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
P. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivering of notice or making of any
payment by Landlord to Tenant or with reference to the sending, mailing or
delivering of any notice or making of any payment by Tenant to Landlord
shall be deemed to be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord set forth
below or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall
not be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address set forth below, or at such other address
within the continental United States as Tenant may specify from time to time
by written notice delivered in accordance herewith.
C. Any written notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered upon the earlier to occur of
(1) tender of delivery (in the case of a hand-delivered notice) or (2) deposit
in the United States Mail, postage prepaid, Certified or Registered Mail,
addressed to the parties here at the respective addresses set out below, or
at such other address as they have theretofore specified by written notice
delivery in accordance herewith or (3) the date of confirmed delivery if
sent by overnight courier, or (4) the date of confirmed transmission if
delivered by telecopy.
24. HAZARDOUS WASTE The term "Hazardous Substances", as used in this Lease
shall mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the removal of which is required or the use of which is restricted,
prohibited or penalized by any "Environmental Law", which term shall mean any
federal, state or local law or ordinance relating to pollution or protection
of the environment. Tenant hereby agrees that (i) no activity will be
conducted on the Premises that will produce any Hazardous Substances, except
for such activities that are part of the ordinary course of Tenant's business
activities (the "Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been approved in
advance in writing by Landlord; (ii) the Premises will not be used in any
manner for the storage of any Hazardous Substances except for any temporary
storage of such materials that are used in the ordinary course of Tenant's
business (the "Permitted Materials") provided such Permitted Materials are
properly stored in a
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manner and location meeting all Environmental Laws and approved in advance in
writing by Landlord; (iii) no portion of the Premises will be used as a
landfill or dump; (iv) Tenant will not install any underground tanks of any
type; (v) Tenant will not allow any surface or subsurface conditions to exist
or come into existence that constitute, or with the passage of time may
constitute a public or private nuisance; (vi) Tenant will not permit any
Hazardous Substances to be brought onto the Premises, except for the
Permitted Materials, and if so brought or found located thereon, the same
shall be immediately removed, with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental Laws.
If at any time during or after the term of the Lease, the Premises is found
to be so contaminated or subject to said conditions, Tenant agrees to
indemnify and hold Landlord harmless from all claims, demands, actions,
liabilities, costs, expenses, damages and obligations of any nature arising
from or as a result of the use of the Premises by Tenant. The foregoing
indemnification shall survive the termination or expiration of this Lease.
Tenant's duties and liabilities under this section 24. shall be specifically
limited to those actions, events, damages, or expenses arising out of Tenant's
use, storage, or generation of Hazardous Substances on or about the Premises
and shall specifically exclude and such actions events, damages, or expenses
caused by Landlord or any prior tenant, and/or for those conditions existing
or affecting the Premises, Building, Project or Land prior to the execution
hereof.
25. Intentionally Deleted.
EXECUTED BY LANDLORD, this 25th day of July, 1996.
---- ----
POLLOCK REALTY CORPORATION
BY:
BY: /s/ Richard R. Pollock
----------------------
TITLE: Counsel
----------------------
BY:
TITLE:
ADDRESS:
C/O THE INDUSTRIAL GROUP
P.O.BOX 802047
DALLAS, TX 75380-2047
EXECUTED BY TENANT, this 24th day of July, 1996
---- ----
ACCESS PHARMACEUTICALS, INC.
BY: /s/ Kerry P.Gray
-----------------
TITLE: President & CEO
-----------------
BY:
TITLE:
ADDRESS:
2600 Stemmons Frwy, Suite 210
Dallas, TX 75207
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Special Provisions
For
Access Pharmaceuticals, Inc.
26. Base Monthly Rental
Notwithstanding anything to the contrary in Paragraph 2.A. of the
Lease, the Base Monthly Rental shall be defined as follows:
Period # Months Base Monthly Rental
- ----------------------------------- -------- ---------------------
October 1, 1996 - November 30, 1996 1-2 $ 0.00
December 1, 1996 - November 30, 1997 3-14 $6,172,23
December 1, 1997 - November 30, 1998 15-26 $6,361.60
December 1, 1998 - November 30, 1999 27-38 $6,702.40
December 1, 1999 - November 30, 2000 39-50 $7,081.07
December 1, 2000 - November 30, 2001 51-62 $7,497.60
December 1, 2001 - November 30, 2002 63-74 $7,762.67
27. Improvement Allowance. Landlord, at Landlord's sole cost and expense,
will provide $127,232.000 for the construction of the improvements outlined
and described in Exhibit B attached hereto and incorporated herein by
reference. All improvements shall be performed according to Landlord's
specifications and shall include all costs for architecture/space planning
and construction management fees. Furthermore Landlord and Tenant agree to
split evenly the cost of expanding the restrooms on premises. The estimated
total cost of this expansions $8,000.00.
28. Renewal Option. Provided that Tenant is not in default of any of the
terms, covenants and conditions hereof, and this lease has not been assigned
or the premises (or a part thereof) sublet, Tenant shall have the right and
option to extend the original term of this Lease for one further term of
thirty six (36) months. Such extension of the original term shall be on the
same terms, covenants and conditions as provided for in the original term
except for this paragraph and except for this paragraph and except that the
rental during the extended term shall be at the fair market rental then in
effect to equivalent properties, of equivalent size, in equivalent areas (but
in no event less than the rental rate specified in Paragraph 2.A. of this
Lease). Tenant shall deliver written notice to Landlord of Tenant's intent
to exercise the renewal option granted herein not more than one hundred and
eighty (180) days nor less than one hundred twenty days 120) days prior to
the expiration of the original term of this Lease. In the event Tenant fails
to deliver such written notice within the time period set forth above then
Tenant's right to extend the term hereof shall expire and be of no further
force and effect. In the event Landlord and Tenant fail to agree in writing
upon the fair market rental within thirty (30) days after exercise by Tenant
of this renewal option, Tenant's right hereunder to extend the term under this
Paragraph 28. shall become null and void.
29. EARLY TERMINATION. It is agreed and understood that if lessee is not
in default of any of the terms, covenants and conditions hereof and lessee
has not assigned this lease or sublet the premises (or part thereof), Lessee
shall have the option to terminate this Lease Agreement after the thirty-sixth
(36) month and after the sixtieth (60) month of the primary term of the
Lease Agreement. Such termination is conditioned upon Lessee's providing prior
notice through registered or certified mail and upon the payment schedule as
follows to Lessor:
Effective September 30, 1999 = $60,000.00 plus all unamortized tenant
improvements from paragraph 27 ($74,890.57) and all unamortized
commissions ($13,311.65)
Effective September 30, 2001 = $30,000.00 plus all unamortized tenant
improvements from paragraph 27 (27,997.40) and all unamortized
commissions ($4,437.22)
The above payment will serve as penalty at the time of notice to Lessor.
Notice of Lessee's intention to terminate this Lease Agreement and payment of
penalty must be received by Lessor in writing not less than one hundred eighty
(180) days prior to the effective date of termination. Said date of
termination would be effective as if the date had been the original
termination date under this Lease Agreement. Accordingly, Lessee shall be
liable and responsible for its obligation and liabilities under the Lease
Agreement, which include but are not limited to, excess tax assessments. In
the event Lessee fails to deliver such notice of termination and payment of
penalty within the time period set forth above, this lease shall remain in
full force and effect.
30. If during the term of this Lease, any of the immediately adjacent
Premises as described or indicated in Exhibit E of the Lease and attached
hereto (hereinafter refereed to as the "Adjacent Premises"), shall become
available for lease to third parties, and provided that Tenant is not in
default hereunder and has not assigned this Lease or sublet the Premises (or
part hereof), Tenant shall have the first right and option to lease the
Adjacent Premises subject to the rights of other Tenants in the Building.
When the Adjacent Premises becomes available, Landlord shall first offer in
writing any such Adjacent premises to Tenant upon the terms and conditions as
would be offered by Landlord to third parties. If within ten (10) days after
Landlord delivers Tenant such written offer, Landlord does not receive notice
in writing that Tenant elects to lease the Adjacent Premises and within twenty
(20) days thereafter Tenant does not execute and expansion agreement acceptable
to Landlord then Tenant's right to lease the Adjacent Premises shall be waived
and Tenant shall have no further rights pursuant to this Paragraph 30.
11
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being an approximate 9,088 square foot lease space located at 2600
Stemmons Freeway, Suite 176, Dallas, Dallas County, Texas, in an
approximate 39,733 square foot building and a 94,639 square foot project
known as 2600 Stemmons and located on a tract being further described as:
Being a tract, lot or parcel of land situated in the W.B. Coats Survey,
Abstract No. 236, and the H. Couch Survey, Abstract No. 275, both of Dallas
County, Texas, and also situated in Block 7905, official City of Dallas Block
Number, also being part of a parcel of land conveyed to Industrial Properties
Corporation (I.P.C.) as recorded in Volume 1516, Page 567 and Volume 1521,
Page 384 of the Deed Records of Dallas County, Texas and all of a parcel of
land as conveyed to I.P.C. as recorded in volume 6/001, Page 551. of said
Deed Records, and being more particularly described as follows:
BEGINNING at 5/8 inch iron rod set, a point on the northerly line of Stemmons
Freeway (H-35E, U.S. 77) (variable width .R.O.W) as conveyed to the city of
Dallas, Texas by I.P.C., as recorded in Volume 4504, Page 498 of said Deed
records, said point being North 29 53' 50" East, 380.00 feet, and North 60 06'
10" West, 35.00 feet, from the intersection of the southerly line of said
Stemmons Freeway with the northwesterly property line of Lot 15, Block 59/7905,
Installment No. 17 of the Trinity Industrial District, an addition to the city
of Dallas, Dallas County texas, as shown on Plot recorded in Volume 35.
Page 175 of the Map Records of Dallas County, Texas:
The NCE, along said northerly line of Stemmons Freeway as follows:
North 60 06' 10" West, 35.00 feet to a 5/8 inch iron rod set, a point of
corner; said point being the beginning of a curve to the left, said curve
having a central angle of 6 46' 27" with a radius of 2879.79 feet and a chord
that bears North 63 79' 23" West for 340.28 feet:
Along said curve to the left, 340.48 feet to a concrete monument found, a
point for corner, said point being the beginning of a curve to the right,
said curve having a central angle of 3 44' 24" with a radius of 2849.79 and a
chord that bears North 65 00 25" West for 185.99 feet:
Along said curve to the right, 186.02 feet to a 5/8 inch iron rod set, a
point for corner, said point being the southeast corner of a parcel of land
conveyed to Stemmons Towers, Ltd. Trustee as recorded in Volume 90133.
Page 3466, of said Deed Records:
The NCE, leaving said northerly line of Stemmons Freeway, along said Stemmons
Towers parcel, North 29 53' 50" East, 520.06 feet to a 5/8 inch iron rod set,
a point of corner:
THE NCE, continuing along said Stemmons Towers parcel and along the westerly
line of said I.P.C. tract as recorded in Volume 67001, Page 551, of said Deed
Records, North 24 12' 20" East, 29.25 feet to a 5/8 inch iron rod set, a point
for corner on the southerly line of a tract now owned by the City of Dallas,
Dallas County, Texas, and the City of Fort Worth, Tarrant County, Texas,
formerly known as Chicago, Rock Island and pacific Railroad Company (CRI&P -
RR) as recorded in volume 84017. Page 4116. of said Deed Records:
The NCE, along the northerly line of said I.P.C. tract and along said southerly
line of the CRI&P-RR, South 61 26' 40" East, 282.11 feet to a 5/8 inch iron
rod set, a point for corner at the beginning of a curve to the right, said
curve having a central angle of 91 20' 30" with a radius of 274.44 feet and a
chord that bears South 15 46' 55" East for 392.69 feet:
The NCE, continuing along said northerly and southerly lines, and along said
curve to the right, at 48.22 feet passing a common corner of said I.P.C. tract
and CRI&P-RR southerly line, and continuing along said curve to the right and
along the westerly line of a parcel of land conveyed to I.P.C. as recorded in
Volume 94048. Page 4986. of said Deed Records, for a total distance of 437.52
feet to a 5/8 inch iron rod set, a point for corner:
The NCE, continuing along said westerly line of I.P.C. tract, South 29 53' 50"
West, 295.40 feet to the POINT OF BEGINNING, and CONTAINING 309,716 square feet
of land for 7.110 acres, more or less.
12
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FROM THE
CONSOLIDATED BALANCE SHEET AND THE CONSOLIDATED STATEMENT OF INCOME
FILED AS PART OF THE QUARTERLY REPORT ON FORM-10Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH QUARTERLY REPORT ON
FORM 10Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 5,160
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 5,284
<PP&E> 572
<DEPRECIATION> 281
<TOTAL-ASSETS> 5,583
<CURRENT-LIABILITIES> 364
<BONDS> 0
0
0
<COMMON> 1,256
<OTHER-SE> 3,734
<TOTAL-LIABILITY-AND-EQUITY> 4,990
<SALES> 0
<TOTAL-REVENUES> 165
<CGS> 0
<TOTAL-COSTS> 2,140
<OTHER-EXPENSES> 8,314
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 37
<INCOME-PRETAX> (10,188)
<INCOME-TAX> 0
<INCOME-CONTINUING> (10,188)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (10,188)
<EPS-PRIMARY> (.35)
<EPS-DILUTED> (.35)
</TABLE>
