EXHIBIT 10.16
STATE OF NORTH CAROLINA
AMENDED AND RESTATED
COUNTY OF WAKE LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "Lease") is made, entered
into and effective as of July 1, 1999, by and between WAKEMED PROPERTY SERVICES
(formerly known as Wake County Health Facilities and Services Authority, Inc.),
a North Carolina nonprofit corporation (hereinafter called the "Landlord"), and
LIPOMED, INC., a North Carolina corporation (hereinafter called the "Tenant").
WITNESSETH
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement
dated as of August 8, 1997, as the same has been amended by that certain
Amendment No. 1 to Lease Agreement dated as of November 1, 1997, that certain
Amendment No. 2 to Lease Agreement dated as of February 6, 1998, that certain
Amendment No. 3 to Lease Agreement dated as of May 21, 1998 and that certain
Amendment No. 4 to Lease Agreement dated as of September 22, 1998 (collectively,
the "Original Lease").
WHEREAS, the parties desire to amend and restate in its entirety the
Original Lease as set forth in this Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Lease hereby agree to amend and
restate in its entirety the Original Lease as follows:
1. Premises. The Landlord hereby leases to the Tenant and the Tenant
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hereby hires and takes from the Landlord the space being more particularly
described on the attached floor plan designated Exhibit A (hereinafter called
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the "Premises") consisting of seven thousand four hundred forty-eight (7,448)
square feet of net rentable area in the building (hereinafter called the
"Building") situated on the parcel of land described on attached Exhibit B
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(hereinafter called the "Land") located in the City of Raleigh, State of North
Carolina, together with the right to the use of and benefit from, in common with
others, the areas of the Building intended for the general common use and
benefit of all tenants of the Building (hereinafter called the "Common Area").
2. Use.
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(a) The Building was designed to provide medical office space to
health care professionals, and the Premises shall be used and occupied by
the Tenant only for purposes consistent with the character of the Building
and all other uses incidental and related to providing health care in Wake
County, North Carolina. In order that the Building may serve the health
care needs of the Raleigh area generally, the Tenant agrees that all
medical equipment used by Tenant on the Premises shall be approved by the
Landlord (which approval shall not be unreasonably withheld). The Landlord
acknowledges that the Tenant shall have the right to acquire and operate
equipment and perform procedures customarily and reasonably associated with
an office practice in Tenant's medical specialty or subspecialty; provided,
however, that the Tenant acknowledges that the Landlord does not intend to
approve substantial medical equipment or medical procedures which
unnecessarily duplicate hospital services such as fixed x-ray and cardiac
catheterization equipment. The parties hereto agree that the equipment,
fixtures and procedures described on attached Exhibit C have been approved
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by Landlord pursuant to this Article 2. Tenant shall occupy the Premises,
conduct its business and control its agents, employees, invitees and
visitors in a lawful manner and will not create any nuisance or otherwise
interfere with, annoy or disturb any other tenant in its normal business
operations or the Landlord it its management of the Building. The Tenant
shall abide by and observe all reasonable and uniform rules and regulations
promulgated from time to time by Landlord for the operation, safety,
security and maintenance of the Building.
(b) Tenant shall not damage any demising wall of the Building, or
disturb the integrity and support provided by any demising wall and shall,
at its sole cost and expense, promptly repair any damage or injury to any
demising wall caused by Tenant or its employees, agents or invitees.
3. Lease Term and Condition of Premises.
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(a) The term of this Lease (the "Lease Term") shall commence on July
1, 1999 (the "Commencement Date") and shall end at midnight on June 30, 2002
(the "Expiration Date"), unless sooner terminated pursuant to the terms of this
Lease or extended pursuant to Article 3(b) below.
(b) Provided that Tenant is not in default hereunder, prior to the
expiration of the initial term of this Lease (as provided in Article 3(a)
above), Tenant may elect to renew this Lease for one (1) additional term of two
(2) consecutive years; provided, however, that such renewal shall be effective
and binding on the parties hereto if, and only if, Landlord and Tenant through
good faith negotiations reach mutual written agreement as to the terms and
conditions of such renewal term. Such negotiated terms shall include (without
limitation) the amount of Basic Rent and annual rent increases (which increases
shall, in no event, be less than 3% per year). Tenant shall notify Landlord in
writing of its election to enter into such negotiations no less than ninety (90)
days prior to the Expiration Date.
(c) The Premises shall be accepted by Tenant "as is," and Landlord
makes no representation or warranty as to the condition of the Premises, or to
repair or maintain the Premises, except as expressly provided
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herein. The taking of possession by Tenant shall be deemed conclusively to
establish that the Premises and any improvements thereto are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the repair of the Premises, nor
promises to alter, remodel or improve the Premises have been made by Landlord,
unless such representations or promises are expressly set forth in this Lease.
4. Preparation for Occupancy. The Premises shall be prepared for
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occupancy by Tenant in accordance with plans and specifications obtained by
Tenant (the "Plans"), and such Plans shall include the addition of a loading
dock to the Building. The Plans shall be subject to the review and approval of
Landlord, and shall be attached hereto and made a part hereof as Exhibit D upon
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such approval by Landlord. The upfit to be performed by Tenant pursuant to the
Plans shall be referred to as the "Tenant's Work". Tenant shall act to insure
that the upfit of the Premises is commenced promptly and completed no more than
one hundred twenty (120) days after the Commencement Date (the "Completion
Date"). The parties agree that all of Tenant's Work shall be performed at
Tenant's sole cost and expense; provided, however, that Landlord shall loan to
Tenant (the "Loan") an amount not to exceed Ninety-one Thousand Four Hundred
Eighty-one and No/100 ($91,481.00) for the sole purpose of paying for the work
contemplated by the Plans. The Loan shall be added to the current outstanding
principal amount of all other indebtedness of Tenant to Landlord (currently,
$22,630.30) and the aggregate amount thereof shall be evidenced by a promissory
note (the "Note") from Tenant to Landlord in the form of Exhibit E attached
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hereto and made a part hereof. Tenant shall repay the Loan in accordance with
the terms of the Note, and payments under the Note shall be deemed Additional
Rent (as defined in Article 5(b)). Landlord shall have the right to approve the
general contractor selected by Tenant for the performance of the work
contemplated by the Plans, which approval shall not be unreasonably withheld.
Tenant's Work shall be completed in a good and workmanlike manner and in
compliance with federal, state, and local laws, and shall include obtaining a
certificate of occupancy or other form of authorization, if required by law,
issued by the appropriate government or agency thereof, stating that the
Premises may lawfully be occupied for the use permitted by this Lease.
5. Rent.
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(a) Basic Rent. Subject to the rent adjustments set forth in Article
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5(c) below, the Tenant shall pay to the Landlord an annual rental ("Basic Rent")
during the term hereof equal to Ten and No/100 Dollars ($10.00) per square foot
of net rentable area contained in the Premises (calculated as $74,480.00 per
year and $6,206.67 per month, subject to adjustment). The Basic Rent shall be
payable in twelve equal monthly installments in advance on the first day of each
calendar month without deduction, setoff or defense, with
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Basic Rent for any period of less than one calendar month apportioned on the
basis of the number of days in that month.
(b) Additional Rent. All other sums of money as shall become due and
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payable by the Tenant to the Landlord hereunder ("Additional Rent") shall
constitute consideration to the Landlord for the Lease Term, and the Landlord
shall have the same remedies for the Tenant's default in the payment of
Additional Rent as for Tenant's default in the payment of Basic Rent.
(c) Rent Adjustments. The Basic Rent shall be increased on the
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anniversary of the Commencement Date each year of the Lease Term (hereafter
called an "Adjustment Date") by three percent (3%) of the Basic Rent payable for
the month immediately preceding the Adjustment Date; and said increased Basic
Rent shall be payable on said Adjustment Date and on the first day of each month
thereafter until the earlier of the next Adjustment Date or the end of the Lease
Term.
(d) Late Payments. Any installment of Rent, Additional Rent or other
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amount due or accruing hereunder, whether termed rent or otherwise, and payable
hereunder by Tenant to Landlord, not paid when due, shall be subject to a late
payment fee equal to five percent (5%) of the amount due, which amount shall be
added to, and constitute part of, Rent.
6. Taxes. Landlord shall pay all real estate taxes, assessments and
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other governmental charges which shall be levied or assessed, or which become
liens, upon the Land or Building.
7. Maintenance and Repairs. During the Lease Term the Tenant, at its
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sole cost and expense, shall take good care of the Premises and Landlord's
fixtures and appurtenances therein. The Tenant shall be responsible for any
damage to the Premises caused by the Tenant's occupation thereof, normal wear
and tear excepted. The Landlord shall perform all maintenance and make all
repairs to the Premises, Common Areas of the Building and Building service
systems of every kind and nature now or hereafter attached to or used in
connection with the operation of the Building, including but not limited to,
plumbing, sprinkler, HVAC, electrical and mechanical lines and equipment
associated therewith, and elevators (except to the extent any maintenance,
repair and/or replacement is caused by the acts or omissions of Tenant or its
employees, agents, patients, guests, invitees or contractors, in which case
Tenant shall be responsible for the costs of such maintenance, repair and/or
replacement). The Landlord shall perform all repairs and restoration required by
Article 11 ("Casualty") and Article 13 ("Condemnation").
8. Landlord's Services. The Landlord shall, at its own cost and
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expense (except as set forth below), furnish to the Tenant the following
services, utilities, supplies and facilities:
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(a) Access to the Premises twenty-four (24) hours a day, seven (7)
days a week.
(b) Elevator service.
(c) Heat, ventilation and air conditioning on the Tenant's business
days from 8:00 a.m. to 8:00 p.m. and on Saturdays from 8:00 a.m. to
1:00 p.m. and at such other times as the Tenant may reasonably request
as hereinafter provided.
The Landlord shall furnish HVAC beyond the above stated hours,
provided that notice requesting such service is delivered to the
Landlord before noon on the business day when such service is required
for that evening, and by noon of the preceding business day when such
service is required on a Saturday, Sunday, or holiday of the Tenant.
Landlord shall have the right to designate any person or department to
which all requests for extraordinary HVAC service by Tenant shall be
directed. The Landlord's cost of supplying such additional service
shall be paid by the Tenant. The Landlord shall xxxx the Tenant on or
before the last day of the month following the month in which such
charges are incurred, and shall submit with its invoice a tabulation
of the hours and the dates on which the overtime HVAC was furnished.
The Tenant shall reimburse the Landlord therefor with thirty (30) days
after receipt of the invoice.
(d) Cleaning and janitor services, including removal of refuse and
rubbish and furnishing washroom supplies.
(e) Hot and cold running fresh water in certain common areas of the
Building.
(f) Electricity for lightning and for operation of such office
machines, appliances and equipment as the Landlord may permit to be
used on the Premises; provided, however, that Tenant shall be
responsible for, and shall pay in a timely manner, all electric bills
for the Premises.
(g) Provision, installation and replacement of all necessary light
bulbs, tubes and ballasts.
(h) Vermin extermination.
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(i) General security for the Building not including security personnel
or a Building security system other than non-electric door key locks.
9. Alterations and Improvements. Tenant shall not make or allow to be
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made any alterations or physical additions in or to the Premises without first
obtaining the written consent of the Landlord. Any alterations, physical
additions or improvements to the Premises made by the Tenant shall at once
become the property of the Landlord and shall be surrendered to the Landlord
upon termination or expiration of this Lease. The Landlord, at its option, may
require the Tenant to remove any physical additions and/or repair any
alterations in order to restore the Premises to the condition existing at the
time the Tenant took possession, all costs of removal and/or alterations to be
borne by the Tenant. This Article 9 shall not apply to moveable equipment or
furniture (including moveable partitions) owned by the Tenant which may be
removed by the Tenant at the end of the term of this Lease if the Tenant is not
then in default and if such equipment and furniture is not then subject to any
other rights, liens and interests of the Landlord. The Tenant will peaceably
yield up to the Landlord the Premises in good order and condition, excepting
ordinary wear and tear, repairs required to be made by the Landlord, or damage,
destruction or loss by fire or other casualty or by any other cause unless such
damage, destruction or loss is caused by the act, omission or negligence of the
Tenant or any employees, invitees, licensees or agents of the Tenant and is not
covered by insurance carried or required by this Lease to be carried by the
Landlord, and in such event the repair of such damage, destruction or loss is
the responsibility of Tenant. The Tenant shall repair all damage to the Premises
and the fixtures, appurtenances and equipment of the Landlord therein, and to
the Building, caused by the Tenant's removal of its furniture, equipment and
machinery.
10. Inspection. The Landlord shall, upon advance oral notice to the Tenant
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(except in an emergency, in which case no notice shall be required), have the
right at all reasonable times (including, without limitation, during business
hours) to inspect the Premises and show the same to prospective mortgagees or
tenants and, at all times, to make repairs or replacements as required by this
Lease or as may be necessary; provided, however, that the Landlord shall use
reasonable efforts not to disturb the Tenant's use and occupancy of the
Premises.
11. Casualty.
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(a) Minor Damage. In the event any portion of the Premises, Common
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Areas of the Building or Building equipment or systems serving the Premises
or Common Areas (hereinafter collectively referred to as the "Damaged
Property") is damaged by fire or other casualty, earthquake or flood or by
any other cause of any kind or nature and the Damage Property can, in the
opinion of the Landlord's architect, be repaired within
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ninety (90) days from the date of damage, the Landlord shall proceed to
make such repairs as required by paragraph (c) below. This Lease shall not
terminate, but the Tenant shall be entitled to a proportionate abatement of
Basic Rent payable during the period commencing on the date of the damage
and ending on the date the Damaged Property is repaired as aforesaid. For
purposes of paragraphs (a) and (b) of this Article 11, rental abatement
shall be based upon the portion of the Premises rendered untenantable or
unfit for use by the Tenant during such period as determined in the
reasonable judgment of Landlord.
(b) Major Damage. If (i) in the opinion of the Landlord's architect,
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damage to the Damaged Property cannot be repaired within ninety (90) days
from the date of the damage, or (ii) in the opinion of the Landlord's
architect, the cost of repair will exceed thirty (30%) of the replacement
cost (exclusive of architectural and engineering fees, excavation, footings
and foundations) of the Building, then either party may terminate this
Lease by notice to the other within twenty (20) days from the date on which
the architect's opinion is delivered to the Tenant when termination is
based on the architect's opinion, and otherwise by such notice within
twenty (20) days from the end of the ninety (90) day period, as it may have
been extended by an excusable delay. In the event of termination under this
Article, this Lease and the term hereof shall terminate on the date
specified in the notice and Basic Rent shall be apportioned as of the date
of the damage.
(c) Landlord's Repair. In the event neither party exercises its
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option to terminate hereunder, the Landlord shall, with due diligence,
undertake to repair, alter and restore the Damaged Property as a complete
architectural unit of substantially the same proportionate usefulness,
design and construction existing immediately prior to the date of the
damage. The Tenant shall be entitled to a proportionate abatement of Basic
Rent the manner and to the extent provided in paragraph (a). When required
by this Article, the architect's opinion shall be delivered to Tenant
within thirty (30) days from the date of damage.
12. Insurance and Indemnity. The Landlord shall at all times during the
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term of this Lease maintain a policy or policies of fire, extended coverage or
similar casualty insurance covering the Building against loss, damage or
destruction in an amount equal to ninety percent (90%) of the full replacement
cost of the Building structure and its improvements as of the date of loss
(exclusive of architectural and engineering fees, excavation, footings and
foundations); provided, however, that the Landlord shall not be required in any
way or manner to insure any personal property of the Tenant or which the Tenant
may have upon or within the Premises or any fixtures installed by or paid for by
the Tenant upon or within the Premises; and provided further that Landlord may
self-insure the obligations described in this Article.
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Tenant shall at all times during the term hereof maintain commercial
general liability insurance covering injury to persons or damage to property in
or about the Premises, insuring Landlord and Tenant, in coverage amounts
acceptable to Landlord.
Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or under,
either by subrogation or otherwise, policies of insurance covering such
property, even if such loss or damage shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible;
provided, however, that this release shall be applicable and in full force only
with respect to the loss or damage occurring during such times as the releasor's
policies shall contain a clause of endorsement to the effect that any such
release shall not adversely affect or impair said policies or prejudice the
right of the releasor to recover thereunder and then only to the extent of the
insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will request its insurance carriers to include in its policies
such a clause or endorsement. If extra cost shall be charged therefor, each
party shall advise the other thereof and of the amount of the extra cost, and
the other party, at its election, may pay the same, but shall not be obligated
to do so.
Tenant shall defend Landlord, with counsel reasonably approved by Landlord,
from and against all actions against Landlord, any partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord, holders of
mortgages on the Premises and any other party having an interest in the Premises
(herein, the "Landlord Indemnified Parties") with respect to, and shall pay,
protect, indemnify and save harmless, to the extent permitted by law, all
Landlord Indemnified Parties from and against, any and all liabilities, losses,
damages, costs, expenses (including reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands or judgments of any nature arising from
(i) bodily injury to or death of any person, or damage to or loss of tangible
property, on or about the Premises, the Building or the Land, or connected with
the use, condition or occupancy of any part thereof and not caused by the gross
negligence or willful misconduct of any Landlord Indemnified Party, or (ii) any
negligent act, omission or misconduct of Tenant of its agents, contractors,
licensees, sublessess or invitees, or (iii) any breach by Tenant of its
obligations under this Lease.
13. Condemnation.
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(a) Taking of Building. If at any time during the term the of this
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Lease, the whole of the Building shall be taken for any public or
quasi-public use, under any statute, or by right of eminent domain, except
as provided herein, this Lease shall terminate on the date of such taking.
If less than all of the Building shall be taken and such portion taken does
not
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include all of the Premises and, in the Landlord's reasonable opinion
communicated by notice to the Tenant within sixty (60) days after such
taking, the Tenant is able to gain access to and continue the conduct of
its business on the Premises, this Lease shall remain unaffected, except
that the Tenant shall be entitled to a pro rata abatement of Basic Rant
based on the proportion which the area of the Premises so taken bears to
the area of the Premises immediately prior to such taking. For purposes of
this Article 13, taking by condemnation or eminent domain shall include the
exercise of any similar governmental power and any sale, transfer or other
disposition of the Building and Land in lieu or under threat of
condemnation. The term "Building," as used in this Article, shall include
the Premises and the access ways thereto.
(b) Temporary Taking. If the use and occupancy of the whole or any
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part of the Premises is temporarily taken for a public or quasi-public use
for a period less than the balance of the term of this Lease, at the
Tenant's option to be exercised in writing and delivered to the Landlord
not later than sixty (60) days after the date of such taking, this Lease
shall terminate on the date specified in the notice or shall continue in
full force and effect. If this Lease remains in effect, the Tenant shall be
entitled to a proportionate abatement of Basic Rent in the manner and to
the extent provided in paragraph (a) for the period during which the
Premises or any part thereof is taken.
(c) Condemnation Awards. The Landlord shall be entitled to receive
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the entire award or awards in any condemnation proceeding without deduction
therefrom for any estate vested in the Tenant and the Tenant shall receive
no part of such award or awards from the Landlord or in the condemnation
proceedings. Subject to the foregoing, Tenant shall be entitled to file a
separate claim for its damages incurred due to the condemnation, provided
that such claim does not affect the Landlord's claim or award.
(d) Repairs and Alterations. If there is a taking hereunder and this
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Lease is continued, the Landlord shall make all necessary repairs and
alterations to make the Premises an architectural whole, provided, that the
Landlord shall not be obligated to expend for said repairs or alterations
any amount in excess of the condemnation proceeds received by the Landlord.
14. Signs. The Tenant shall not place any signs on the Land or exterior of
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the Building without the prior approval of the Landlord. The Tenant may place
its signs on the entrance doors to the Premises. The Tenant's name and the
location in the Building of the Premises shall be affixed to a directory board
to be provided by the Landlord at the Landlord's expense.
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15. Parking. The Landlord will maintain a parking lot providing free
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parking for tenants in the Building and other persons having business therein.
Tenant and its employees, customers and licensees shall have the non-exclusive
right to use the parking areas as may be designated by Landlord in writing,
subject to reasonable rules and regulations as Landlord may from time to time
prescribe and subject to rights of ingress and egress of other tenants. Landlord
shall not be responsible for enforcing Tenant's parking rights against any third
parties. Landlord may require, at its option, in its sole discretion, that
Tenant, its employees, invitees and visitors use certain numbered spaces to be
designated by Landlord.
16. Default. In the event that (i) Tenant shall fail to pay Basic Rent,
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Additional Rent or any other amounts on the due date therefor or within five (5)
days thereafter; or (ii) Tenant shall default in any payment due under the Note;
or (iii) any default, event of default or breach shall occur under the Note,
which default, event of default or breach is not cured following the giving of
any applicable notice and within any applicable cure period set forth in the
Note; or (iv) Tenant shall default in the performance of any of its other
obligations under this Lease and shall fail to cure such default within thirty
(30) days after receipt of written notice from the Landlord, then the Landlord
may:
(a) Cure any such default and any costs and expenses incurred by the
Landlord therefor shall be deemed Additional Rent to be paid by the Tenant
hereunder, but it is expressly agreed that such curing of any default shall
not be deemed a waiver by the Landlord of any such default or remedy
provided herein.
(b) Enter and take possession of the Premises without terminating
this Lease and sublease the Premises for the account of the Tenant. The
Tenant shall be liable for the difference between the rent and other
amounts paid by the sublessee and the rent and other amounts payable by the
Tenant hereunder and all reasonable expenses incurred in entering the
Premises and preparing it for such sublease.
(c) Terminate this Lease without further notice and reenter the
Premises and remove all persons and all or any property therefrom, either
by summary proceedings, ejectment or otherwise, and repossess the Premises
together with all additions, alterations, improvements and personal
property, now or hereafter erected, maintained or located thereon. The
Landlord shall have the right to take such action without being guilty of
trespass. At any time and from time to time after such termination, the
Landlord may, at its option, relet the Premises or any part thereof,
without notice to the Tenant, upon such terms and conditions as the
Landlord, in its sole discretion, deems advisable, and receive and collect
their rents therefore, applying the same first to the payment of all costs
and expenses of such reletting and then to the payment of damages
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in amounts equal to the rental due hereunder and to the cost and expense of
performing the other covenants of the Tenant. The Tenant agrees to pay to
the Landlord the Basic Rent, Additional Rent and all other charges required
to be paid by the Tenant up to the time of such termination of this Lease.
Thereafter, the Tenant agrees to pay to the Landlord during the remainder
of the term of this Lease, all Basic Rent and Additional Rent and all other
charges required to be paid by the Tenant under this Lease, less the net
proceeds, if any, received from the reletting of the Premises.
(d) Declare immediately due and payable the entire amount of Basic
Rent, Additional Rent and amounts due under the Note, whether then payable
or to become payable during the remainder of the term of the Lease. Upon
acceleration of such amounts, Tenants agrees to pay the same at once,
together with all rents and other amounts theretofore due. Such payment
shall not constitute a penalty or forfeiture but shall constitute
liquidated damages for Tenant's failure to comply with the terms and
provisions of this Lease (Landlord and Tenant agreeing that Landlord's
actual damages in such event are impossible to ascertain and that the
amount set forth above is a reasonable estimate thereof).
No remedy set forth in this Article 16 is intended to be exclusive of any
other remedy, and every remedy shall be cumulative and in addition to every
other remedy herein or now or hereafter existing at law, in equity or by
statute. No delay or failure to exercise any right or power accruing upon a
default under this Lease shall impair any such right or power or shall be
construed to be a waiver thereof.
17. Holdover. Tenant will, at the termination of this Lease by lapse of
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time or otherwise, yield up immediate possession to Landlord. If Landlord agrees
in writing that Tenant may hold over after the expiration or termination of this
Lease, unless the parties hereto otherwise agree in writing on the terms of such
holding over, the hold over tenancy shall be subject to termination by Landlord
at any time upon not less than fourteen (14) days advance notice or by Tenant at
any time upon not less than thirty (30) days advance written notice, and all of
the other terms and provisions of this Lease shall be applicable during that
period, except that Tenant shall pay Landlord from time to time upon demand, as
rental for the period of any hold over, an amount equal to one and one-half
(1-1/2) times the Basic Rent in effect on the termination date, computed on a
basis for each day of the hold over period. No holding over by Tenant, whether
with or without the consent of Landlord, shall operate to extend this Lease
except as otherwise expressly provided. The preceding provisions of this
Paragraph 17 shall not be construed as Landlord's consent for Tenant to hold
over.
18. Liens. Tenant shall have no authority, express or implied, to create
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or place any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord in the Premises, Land or Building
for
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any claim in favor of any person dealing with Tenant, including those who may
furnish materials or perform labor for any upfit or repairs. Tenant covenants
and agrees that it will pay or cause to be paid all sums due and payable by it
on account of any labor performed or materials furnished in connection with any
work performed on the Premises on which any lien is or can be validly and
legally asserted against the Premises, Land or Building, or the improvements
thereon, 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 Landlord in the
Premises, Land or Building or under the terms of this Lease.
19. Notices and Payments. Any notice, document or payment required or
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permitted to be delivered or remitted hereunder or by law shall be deemed to be
delivered or remitted, whether actually received or not, three (3) days after
being deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed to the parties hereto at the
respective addresses set out below, or at such other address as they shall have
specified by written notice delivered in accordance herewith:
LANDLORD TENANT
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WakeMed Property Services LipoMed, Inc.
X.X. Xxx 00000 0000 Xxx Xxxx Xxx.
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Vice-President/Finance
20. Assignment And Subletting. The Tenant shall not by operation of law or
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otherwise, assign, mortgage, pledge, encumber or otherwise transfer any interest
in this Lease, and neither the Premises, nor any part thereof, shall be
encumbered in any manner by reason of any act or omission on the part of the
Tenant or anyone claiming under or through the Tenant, nor shall the Premises or
any part thereof be sublet or be used, occupied or utilized by anyone other than
the Tenant, without the prior written consent of the Landlord (which consent
shall not be unreasonably withheld). A transfer of more than 30% in interest of
the Tenant (whether stock, partnership interest or otherwise), whether in a
single transaction or a series of related or unrelated transactions taking place
within a twelve (12) month period, shall be deemed an assignment of this Lease.
Any assignment, sublease, mortgage, pledge, encumbrance or transfer by the
Tenant in contravention of this Article shall be void. If this Lease is
assigned, or if the Premises or any part thereof is sublet or occupied other
than by the Tenant, the Landlord may collect rent form the assignee, subtenant
or occupant, and apply the net amount collected to the Basic Rent; provided,
however, no such assignment, subletting, occupancy or collection shall be deemed
a waiver of this covenant, or an acceptance of the assignee, subtenant or
occupant as tenant under this Lease, or a release of the Tenant from the further
performance by the
12
Tenant of any covenants contained herein. The consent by the Landlord to an
assignment or subletting shall not in any way be construed to relieve the Tenant
from obtaining the express consent of the Landlord to any further assignment or
subletting.
21. Quiet Enjoyment. The Tenant shall have the peaceable and quiet
---------------
possession of the Premises for the term of this Lease provided the Tenant pays
the Basic Rent, Additional Rent and any amounts due under the Note and performs
and observes the other covenants to be performed and kept by the Tenant
hereunder.
22. Attornment and Non-Disturbance. With respect to any existing ground
------------------------------
lease, underlying lease and/or first mortgage, within thirty (30) days after the
Tenant executes this Lease and, with respect to any future ground lease,
underlying lease and/or first mortgage, on or before the effective date thereof,
the Landlord shall obtain from its ground lessor, underlying lessor and/or
mortgagee a written agreement with the Tenant which shall be binding on their
respective successors and assigns and provide that so long as this Lease shall
be in full force and effect (a) the Tenant shall not be joined as a defendant in
any proceeding which may be instituted to terminate or enforce the ground or
underlying lease or to foreclose or enforce the mortgage; and (b) the Tenant's
possession and use of the Land, Premises and Building in accordance with the
provisions of this Lease shall not be affected or disturbed by reason of any
modification of or default under the ground or underlying lease or first
mortgage. If the ground or underlying lessor and/or mortgagee or any successor
in interest shall succeed to the rights of the Landlord under this Lease,
whether through possession, surrender, assignment, subletting, judicial or
foreclosure action, or delivery of a deed or otherwise, the Tenant will attorn
to and recognize such successor-landlord as the Tenant's landlord and the
successor-landlord will accept such attornment and recognize the Tenant's rights
of possession and use of the Premises in accordance with the provisions of this
Lease. This clause shall be self-operative and no further instrument of
attornment and recognition shall be required.
23. Estoppel Certificate. The Tenant agrees, at any time and from time to
--------------------
time, upon not less than thirty (30) days' prior notice from the Landlord, to
execute, acknowledge and deliver to the Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified and stating the modifications); (ii) stating the dates to which the
rent and other charges hereunder have been paid by the Tenant; (iii) stating
whether the Tenant has knowledge that the Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease,
and, if the Tenant has knowledge of such a default, specifying each such default
and (iv) stating the address to which notices to the Tenant shall be sent.
13
24. Memorandum Of Lease. The parties shall, if requested by either,
-------------------
execute a memorandum of this Lease for recording purposes. The requesting party
shall pay all costs of recording.
25. Broker. Tenant warrants and represents to Landlord that it has had no
------
dealings with any real estate broker or agent in connection with this Lease, and
Tenant covenants to pay, hold harmless and indemnify Landlord from and against
any and all costs, expenses and liabilities (including reasonable attorneys'
fees), causes of action, claims or suits in connection with any compensation,
commission, fee or charges claimed by any real estate broker or agent with
respect to this Lease or the negotiation thereof, arising out of any act of
Tenant.
26. Hazardous Materials.
-------------------
(a) Tenant agrees that it will not release, discharge, place, hold
or dispose of any Hazardous Material (as hereinafter defined) on, under or
at the Premises, in the Building or on the Land, and that it will not use
the Premises, the Building, the Land or any portion thereof as a treatment,
storage or disposal (whether permanent or temporary) site for any Hazardous
Material. Tenant further agrees that it will not cause or allow any
asbestos to be incorporated into any improvements or alteration that it
makes or causes to be made to the Premises or the Building.
(b) Tenant hereby agrees to and does indemnify, defend and hold
harmless Landlord from and against any and all claims of any and every kind
whatsoever (including without limitation, court costs and attorneys' fees)
which at any time or from time to time may be paid, incurred or suffered
by, or asserted against, Landlord for, with respect to, or as a direct or
indirect result of (i) any breach by Tenant of the provisions of this
Article 26, or (ii) to the extent caused or allowed by tenant or any agent,
employee, invitee or licensee of Tenant, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission, or release from,
onto, or into the Premises, the Building, the Land the atmosphere or any
watercourse, body of water or groundwater, of any Hazardous Material
(including without limitation any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under the Comprehensive
Environmental Response, Compensation and Liability Act, any so-called
"Superfund" or "Superlien" law, or any other Federal, state, local or other
statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Material); and the provisions of and undertakings
and indemnification set forth in this paragraph shall survive the
termination of this Lease, for any reason, and shall constitute the
liability, obligation and indemnification of Tenant, binding upon Tenant
14
forever. The provisions of the preceding sentence shall govern and control
over any inconsistent provision in this Lease.
(c) For purposes of this Lease, "Hazardous Material" means and
includes any hazardous or toxic substance, pollutant, contaminant, gas or
petroleum product defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, any
so-called "Superfund" or "Superlien" law, the Toxic Substances Control Act,
as amended, or any other Federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter
in effect, or any other hazardous, toxic or dangerous waste, substance or
material, gas or petroleum product or medical waste.
27. Landlord's Liability. Notwithstanding anything to the contrary
--------------------
contained in this Lease, Tenant agrees and understands that Tenant shall look
solely to the estate and property of Landlord in the Building for the
enforcement of a judgment (or other judicial decree) requiring the payment of
money by Landlord to Tenant by reason of default or breach of Landlord in
performance of it obligations under this Lease, it being intended that there
will be absolutely no personal liability on the part of Landlord, its successors
and assigns (or their respective officers, directors, agents, members, managers
or partners) with respect to any of the terms, covenants and conditions of this
Lease, and no other assets of the Landlord shall be subject to levy, execution,
attachment or any other legal process for the enforcement or satisfaction of the
remedies pursued by Tenant in the event of such default or breach, this
exculpation of liability to be absolute and without exception whatsoever.
28. Miscellaneous. (1) This Lease shall be strictly construed neither
-------------
against the Landlord nor the Tenant. (2) No remedy or election given by any
provision in this Lease shall be deemed exclusive unless so indicated, but each
shall, wherever possible, be cumulative and in addition to all other remedies in
law or equity which either party may have arising out of the default of the
other party and failure to cure such default within the applicable grace period.
(3) Each provision hereof shall be deemed both a covenant and a condition
running with the land. (4) Failure of either party to cure a default of the
other under this Lease shall not render such non-defaulting party in any way
liable therefor, or relieve the defaulting party from any of its obligations
hereunder, and failure of either party to exercise any of its rights hereunder
upon the default of the other party shall not be deemed to be a waiver of its
rights upon such default, or any future default hereunder.
29. Binding Agreement. This Lease shall bind and inure to the benefit of
-----------------
the parties hereto and their respective executors, distributees, heirs,
representatives, successors and permitted assigns.
15
30. Applicable Law. This Lease shall be construed and enforced in
--------------
accordance with the laws of the State of North Carolina, and the proper venue
for any dispute arising under this Lease shall be Wake County, North Carolina.
31. Counterparts. This Lease may be executed in several counterparts and
------------
all so executed shall constitute one agreement binding on all parties hereto,
notwithstanding that all of the parties have not signed the original or the same
counterpart.
32. Severability. If for any reason any provision of this Lease is
------------
determined to be invalid, such invalidity shall not impair the operation of or
affect those portions of this Lease which are valid.
33. Tenant's Authority. Tenant represents and warrants to Landlord as
------------------
follows: (i) Tenant is a corporation duly organized, validly existing and in
good standing under the laws of the State of North Carolina; (ii) Tenant has the
authority to enter into and perform its obligations under this Lease; (iii) this
Lease has been duly authorized and approved on behalf of Tenant by its board of
directors, and this Lease constitutes the legal, valid and binding obligation of
Tenant in accordance with its terms; and (iv) Tenant has taken all action
required of it by law, its Articles of Incorporation or its Bylaws, to authorize
the execution, delivery and performance of this Lease and the completion of its
terms.
34. Entire Agreement. This Lease contains the entire agreement of the
----------------
parties and may not be modified except by an instrument in writing that is
signed by both parties. This Lease supercedes all other prior oral or written
understandings of the parties regarding the subject matter hereof.
16
IN WITNESS WHEREOF, this Lease has been duly executed under seal by the parties
hereto as of the day and year first above written.
LANDLORD:
ATTEST: WAKEMED PROPERTY SERVICES
/s/ [signature] By:/s/ [signature]
--------------------------- ---------------------------
(Asst.) Secretary Name:
Title: President
[Corporate Seal]
TENANT:
ATTEST: LIPOMED, INC.
/s/ Xxxxx X. Xxxxx By: /s/ M. A. Xxxxxxx
--------------------------- ---------------------------
(Asst.) Secretary Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
[Corporate Seal]
17
EXHIBIT A
THE PREMISES
18
[FLOOR PLAN OF FIRST FLOOR]
19
EXHIBIT B
THE LAND
BEING all of those certain tracts or parcels of land lying and being in Wake
County, North Carolina and more particularly described as follows:
BEING those 2 tracts of land, the larger one containing 4.5656 acres and the
smaller one containing 1.3169 acres, as shown on plat entitled "Property of
Xxxxxxx Xxxxxx Xxxxxx, Xx., and Xxxxx Xxxxx," prepared by Xxxx X. Xxxxxxxx,
Registered Surveyor, dated May 29, 1969, and recorded in Book of Maps 1969, Vol,
I, Page 78, Wake County Registry.
20
EXHIBIT C
EQUIPMENT AND PROCEDURES APPROVED BY LANDLORD
One or more "high field" NMR spectroscopy systems and related peripheral
devices required for the analysis of blood serum and/or plasma. Initial
activities will focus on the use of NMR for the analysis of lipoprotein
subclasses.
21
EXHIBIT D
PLANS
(See attached)
22
EXHIBIT D
PLANS
Interior Upfit:
--------------
1. Remove several (approximately 6) non-load-bearing walls to open up
area for general office use.
2. Remove a bathroom to enlarge the two contiguous offices.
3. Remove the bathroom at the end of the hallway and move the wall to
make a larger corner office.
4. Remove a 36" door and replace it with a 60" open doorway.
5. Remove a second 36" door and replace the wallboard and vinyl
wallcovering to match the hallway.
6. Close the two wall openings ("pass-throughs") with drywall and
wallcovering.
Overall, new carpet and ceiling tiles will be installed. All walls will be
repainted and woodwork will be cleaned and refinished. Some receptables and
light switches will be relocated as a result of some walls being removed. A
few overhead fluorescent light fixtures will be added.
NOTE: See attached floor plan for location of work described above.
Loading Dock:
------------
Plans as drawn by Xxxxxxx Xxxxx, AIA. (not attached)
23
[FLOOR PLAN FOR SECOND FLOOR OF X. XXXXXX BUILDING]
24
[PRELIMINARY PROPOSAL FOR SECOND FLOOR RENOVATION]
25
EXHIBIT E
FORM OF NOTE
(See attached)
26
PROMISSORY NOTE
$114,111.30 _______,1999
FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to WAKEMED
PROPERTY SERVICES, a North Carolina corporation, or order ("Lender"), the
principal sum of ONE HUNDRED FOURTEEN THOUSAND ONE HUNDRED ELEVEN AND 30/100
DOLLARS ($114,111.30), at X.X. Xxx 00000, Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(Attention: Vice-President/Finance), or at such other place as the legal holder
hereof may designate in writing, in lawful money of the United States of America
and in immediately available funds, together with interest thereon from and
after the date hereof on the unpaid principal balance outstanding, at the rates
and on the terms set forth below:
1. Term. If not sooner paid, the entire unpaid principal balance of this
-----
Note, plus interest accrued thereon, shall be due and payable on July 1, 2002
(the "Maturity Date").
2. Interest. Interest shall accrue on the unpaid principal balance of
---------
this Note from the date first written above until payment in full at a fixed
rate of six percent (6%) per annum.
3. Payment of Interest and Principal. Principal and interest shall be due
---------------------------------
and payable as follows: (a) thirty-six (36) equal monthly installments of
principal and interest in the amount of $2,206.09 due and payable on the first
day of each month commencing on July 1, 1999, and ending on June 1, 2002; and
(b) one installment of $50,024.66 (or such other amount as remains due and
payable hereunder) due and payable on July 1, 2002. Each payment shall, unless
otherwise provided, be applied first to payment of interest then accrued and due
on the unpaid principal balance, with the remainder applied to the unpaid
principal. Notwithstanding the foregoing, Borrower acknowledges and agrees as
follows: (x) $8,317.00 of the initial principal balance of this Note was loaned
to Borrower to cover unanticipated overages (the "Contingency Amount") in
connection with Borrower's upfit of space leased by Borrower from Lender
pursuant to the Lease (as defined below), (y) use of the loan proceeds evidenced
hereby (including the Contingency Amount) is limited solely to such upfit
pursuant to the Lease and (z) to the extent that any part of the Contingency
Amount greater than $500.00 remains unused by the Tenant for the purpose
described in the Lease, Borrower shall refund such unused amount to Lender on
the Completion Date (as defined in the Lease).
4. Events of Default and Remedies. Each of the following shall constitute
------------------------------
an "Event of Default" under this Note:
27
a. Failure by Borrower to pay, as and when the same shall become
due and payable, any payment of principal, interest or both, due hereunder,
or on any other obligation owed to Lender, whether upon any regularly
scheduled due date, upon acceleration or otherwise; or failure by Borrower
to observe or perform any covenant, undertaking or other obligation arising
under this Note, or under that certain Amended and Restated Lease Agreement
dated as of ________,1999 (the "Lease") between Borrower and Lender, or
under any other note, agreement or other document executed and delivered by
Borrower to Lender, or any other person, firm or corporation, in connection
with this Note or the Lease.
b. Any warranty, representation or statement made or furnished to
Lender by or on behalf of Borrower in connection with this Note or the
Lease proves to have been false in any material respect when made or
furnished.
c. If, by the order of a court of competent jurisdiction, a
trustee, custodian or receiver of the Borrower shall be appointed.
d. If Borrower shall file a petition in bankruptcy or for an
arrangement or reorganization pursuant to the Federal Bankruptcy Act or any
similar law, federal or state, or if, by decree of a court of competent
jurisdiction Borrower shall be ordered a bankrupt, or be declared
insolvent, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they
become due, or shall consent to the appointment of receiver or receivers.
Upon the occurrence of an Event of Default, Lender at its option may
without notice to Borrower, declare immediately due and payable the entire
unpaid balance of principal and interest outstanding under this Note, together
with all other obligations of Borrower to Lender; whereupon Lender may exercise
each of its rights and remedies under any of the documents which evidence or
relate to this Note (including without limitation the Lease) and as otherwise
may be provided at law or in equity. Failure to exercise this remedy shall not
constitute a waiver of the right to exercise the same at any other time.
The remedies of Lender as provided herein and in any other documents given
in connection with this Note shall be cumulative and concurrent, and may be
pursued singularly, successively or together at the sole discretion of Lender,
and may be exercised as often as occasion therefor shall occur, and the failure
to exercise any such right or remedy shall in no event be construed as a waiver
or release thereof.
28
5. Prepayment.
-----------
a. Borrower may voluntarily prepay the principal due under this
Note, in whole or in part, without any penalty or premium whatsoever.
b. Each prepayment made pursuant to this Section 5 shall be applied
(i) first, to costs and expenses payable pursuant to the terms hereof, (ii)
second, to the payment of interest accrued and unpaid on the principal
balance hereof and (iii) third, to the repayment of the outstanding
principal of this Note.
6. Expenses of Collection. Should the indebtedness evidenced by this Note
----------------------
or any part thereof be collected at law or in equity, or in bankruptcy,
receivership or other court proceeding, or should this Note be placed in the
hands of attorneys for collection upon an Event of Default, Borrower agrees to
pay, in addition to all other sums due hereunder, all costs of collecting this
Note, including reasonable attorneys' fees and expenses.
7. Lease. This Note is given in connection with the Lease. All of
-----
Borrower's representations, warranties, covenants and agreements contained in
the Lease are hereby made a part of this Note to the same extent and with the
same force and effect as if they were fully set forth herein, and Borrower
covenants and agrees to keep and perform them, or cause them to be kept and
performed, strictly in accordance with their terms.
8. Notices. Any notice, demand or other communication to any party hereto
-------
shall effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and shall
be presumed to be received by a party hereto (i) on the date of delivery if
delivered by hand or sent via telecopy, (ii) on the next business day if sent by
recognized overnight courier service and (iii) on the third business day
following the date sent by certified mail, return receipt requested. Each such
notice, demand or other communication shall be addressed to such party at the
address set forth below (or at such other address as such party shall specify to
the other parties hereto in writing):
If to Lender:
WakeMed Property Services
X.X. Xxx 00000
Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Vice President/Finance
If to Borrower:
LipoMed, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
29
Attn: Xxxxxxx X. Xxxxxxx
9. Waivers. Borrower and any and all endorsers, sureties or guarantors
-------
hereby jointly and severally waive presentment for payment, demand, notice of
demand, notice of dishonor, protest and notice of protest of this Note, and all
other notices in connection with the delivery, acceptance, performance or
enforcement of the payment of this Note, and agree that liability hereunder
shall not be affected in any manner by any indulgence, extension of time,
renewal, waiver or modification granted or consented to by Lender. Borrower and
any and all endorsers, sureties or guarantors consent to any and all extensions
of time, renewals, waivers or modifications that may be granted by Lender with
respect to the payments or other provisions of this Note, and agree that
additional makers, endorsers, sureties or guarantors may become parties hereto
without notice to any of them or affecting any of their liability hereunder.
10. Savings Clause. If any provision of this Note is held to be invalid or
--------------
unenforceable by a court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be liberally construed in
favor of Lender in order to effect the provisions of this Note. In no event
shall the rate of interest payable under this Note exceed the maximum rate of
interest permitted to be charged by applicable law (including the choice of law
rules), and any interest paid in excess of the permitted rate shall be refunded
to Borrower.
11. Lender's Waivers. Lender shall not be deemed, by any act of omission
----------------
or commission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by Lender, and then only to the extent
specifically set forth in the writing. A waiver of one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy to a
subsequent event.
12. Modification in Writing. No provision of this Note may be modified or
-----------------------
discharged orally, but only by agreement in writing signed by Borrower and
Lender.
13. Successors and Assigns. Borrower shall not assign or transfer its
----------------------
rights and obligations under this Note without the prior written consent of the
Lender, which consent may be withheld for any reason. The Lender may assign or
transfer its rights and obligations hereunder at any time. This Note shall be
binding upon and inure to the benefit of the permitted successors and assigns of
Borrower and Lender.
14. Governing Law. This Note shall be governed by and construed in
-------------
accordance with the laws of the State of North Carolina.
15. Number; Gender; Headings. Whenever used, the singular number shall
------------------------
include the plural, the plural the singular, the use of any gender shall be
30
applicable to all genders, and the words "Lender" and "Borrower" shall be deemed
to include the respective permitted successors and assigns of Lender and
Borrower. The headings of the various provisions of this Note are for
convenience of reference only and shall not define or limit the terms hereof.
16. Indemnification. Borrower hereby indemnifies and holds Lender and its
---------------
successors and assigns harmless from and against any and all claims, costs,
penalties, damages, losses, liabilities and expenses (including reasonable
attorneys' fees) that may at any time be incurred by Lender and its successors
and assigns as a result of any breach by Borrower of any of its warranties,
representations, covenants or obligations set forth herein.
17. Borrower's Authority. Borrower represents and warrants to Lender as
--------------------
follows: (i) Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of North Carolina; (ii) Borrower has
the authority to enter into and perform its obligations under this Note; (iii)
this Note has been duly authorized and approved on behalf of Borrower by its
board of directors, and this Note constitutes the legal, valid and binding
obligation of Borrower in accordance with its terms; and (iv) Borrower has taken
all action required of it by law, its Articles of Incorporation or its Bylaws,
to authorize the execution, delivery and performance of this Note.
18. Financial Reporting. Borrower hereby covenants and agrees that so long
-------------------
as any amount shall remain due hereunder, Borrower shall deliver to Lender,
within thirty (30) days after the end of each fiscal quarter of Borrower, the
balance sheet of Borrower as at the end of such period and the related
statements of income, stockholders' equity and cash flow of Borrower for such
fiscal quarter and for the period from the beginning of the then-current fiscal
year to the end of such fiscal quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous fiscal year, all certified by the chief financial officer of Borrower
as fairly presenting the financial position of Borrower as at the dates
indicated. If, after a review of such financial statements, Lender believes that
Borrower cannot or may not satisfy its obligations under this Note, Lender may
exercise any of its rights under this Note and the Lease as if an Event of
Default has occurred.
IN WITNESS WHEREOF, Borrower has caused this Note to be signed under seal
in the company name by its duly authorized officers, the day and year first
above written.
ATTEST: LIPOMED, INC.
----------------------- -------------------------
(Asst.) Secretary Name:
31
Title:
[Corporate Seal]
32
LIPOMED LOAN
DATE 7/1/1999
LOAN AMOUNT $114,111.30
RATE 6.00%
TERM (YEARS) 3
# PERIODS PER YEAR Periods 12
MONTHLY P & I PAYMENT $2,206.09
YEARLY P & I PAYMENT $26,473.08
Current Current
Payment Payment Principal Interest Principal Portion Portion
Month Year Number Amount Portion Portion Balance Principal Interest
----- ---- ------ ------ ------- ------- ------- --------- --------
July 1999 1 2,206.09 1,635.53 570.56 112,475.77
Aug 1999 2 2,206.09 1,643.71 562.38 110,832.06
Sept 1999 3 2,206.09 1,651.93 554.16 109,180.13
Oct 1999 4 2,206.09 1,660.19 545.90 107,519.94
Nov 1999 5 2,206.09 1,668.49 537.60 105,851.45
Dec 1999 6 2,206.09 1,676.83 529.26 104,174.61
Jan 2000 7 2,206.09 1,685.22 520.87 102,489.40
Feb 2000 8 2,206.09 1,693.64 512.45 100,795.75
Mar 2000 9 2,206.09 1,702.11 503.98 99,093.64
Apr 2000 10 2,206.09 1,710.62 495.47 97,383.02
May 2000 11 2,206.09 1,719.17 486.92 95,663.85
June 2000 12 2,206.09 1,727.77 478.32 93,936.07
July 2000 13 2,206.09 1,736.41 469.68 92,199.66 20,276.10 6,196.98
Aug 2000 14 2,206.09 1,745.09 461.00 90,454.57 20,377.48 6,095.60
Sept 2000 15 2,206.09 1,753.82 452.27 88,700.76 20,479.37 5,993.71
Oct 2000 16 2,206.09 1,762.59 443.50 86,938.17 20,581.77 5,891.31
Nov 2000 17 2,206.09 1,771.40 434.69 85,166.77 20,684.68 5,788.40
Dec 2000 18 2,206.09 1,780.26 425.83 83,386.51 20,788.10 5,684.98
Jan 2001 19 2,206.09 1,789.16 416.93 81,597.36 20,892.04 5,581.04
Feb 2001 20 2,206.09 1,798.10 407.99 79,799.25 20,996.50 5,476.58
Mar 2001 21 2,206.09 1,807.09 399.00 77,992.16 21,101.48 5,371.60
Apr 2001 22 2,206.09 1,816.13 389.96 76,176.03 21,206.99 5,266.09
May 2001 23 2,206.09 1,825.21 380.88 74,350.82 21,313.02 5,160.06
June 2001 24 2,206.09 1,834.34 371.75 72,516.49 21,419.59 5,053.49
July 2001 25 2,206.09 1,843.51 362.58 70,672.98 21,526.69 4,946.39
Aug 2001 26 2,206.09 1,852.73 353.36 68,820.25 21,634.32 4,838.76
Sept 2001 27 2,206.09 1,861.99 344.10 66,958.26 21,742.49 4,730.59
Oct 2001 28 2,206.09 1,871.30 334.79 65,086.97 21,851.20 4,621.88
Nov 2001 29 2,206.09 1,880.66 325.43 63,206.31 21,960.46 4,512.62
Dec 2001 30 2,206.09 1,890.06 316.03 61,316.25 22,070.26 4,402.82
Jan 2002 31 2,206.09 1,899.51 306.58 59,416.74 22,180.61 4,292.47
Feb 2002 32 2,206.09 1,909.01 297.08 57,507.74 22,291.52 4,181.56
Mar 2002 33 2,206.09 1,918.55 287.54 55,589.19 22,402.98 4,070.10
Apr 2002 34 2,206.09 1,928.14 277.95 53,661.04 22,514.99 3,958.09
May 2002 35 2,206.09 1,937.78 268.31 51,723.26 22,627.56 3,845.52
June 2002 36 2,206.09 1,947.47 258.62 49,775.78 22,740.70 3,732.38
01-Jul-02 Balance Due 50,024.66 49,775.78 248.88 0.00
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