EXHIBIT 10.18
STATE OF SOUTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF BERKELEY )
THIS LEASE AGREEMENT (the "Lease") executed as of this 31st day of October 2002,
by and between BLACKBAUD, LLC., a South Carolina Corporation ("Landlord") and
PILOT THERAPEUTICS, INC., a North Carolina corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord leases certain property from Duck Pond Creek, LLC ("the Master
Landlord") pursuant to that certain lease agreement dated October 13, 1999 (the
"Master Lease") attached hereto as Exhibit A; and
WHEREAS, Landlord desires to sublease to Tenant, and Tenant desires to sublease
from Landlord a portion of the property under the Master Lease to the Tenant.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100 Dollars
($10.00) in hand paid by Tenant to Landlord, the receipt and sufficiency of
which are hereby mutually acknowledged and in consideration of the rents to be
paid to Landlord by Tenant, and covenants and agreements herein agreed to be
performed by Landlord and Tenant, Landlord does hereby grant and lease to Tenant
the following described Property, subject to the following terms and conditions:
1. Property. Landlord does hereby demise, lease and let unto Tenant, and
Tenant does hereby hire and take from Landlord, upon the terms and
conditions hereinafter set forth, a portion of the fourth (4th) floor
of the four (4) story building known as the Blackbaud building (the
"Building") located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000 (the "Property") consisting of approximately
11,432 rentable square feet as shown on Exhibit B, which is attached
hereto and incorporated by reference herein.
2. Term. The initial term ("Initial Term") of this Lease shall be eighteen
(18) months commencing upon January 1, 2003, or if the Landlord's Work
set forth in Section 4 below is not complete on January 1, upon
completion of such Work (the "Commencement Date"). Prior to the
Commencement Date, Tenant and its contractors shall be allowed access
to the Property for Tenant's upfit; provided, however, that Tenant's
activities shall not interfere with the Landlord's Work.
3. Rental.
(a) Monthly Rental. During the first twelve (12) months of the
Initial Term, Tenant shall pay to Landlord a monthly rent (the
"Rent") in the amount of eighteen thousand one hundred dollars
and 67/100 ($18,100.67) per month payable on the first day of
each month. Tenant shall pay the first month's Rent at Lease
execution. As an incentive Tenant shall receive a credit in
the amount of one month's rent to be credited against the
monthly rental due hereunder to be taken as a credit against
the first full month's Rent due hereunder after the
Commencement Date. The Rent shall be prorated for any partial
month. During the remainder of the Initial Term, Tenant shall
pay to Landlord a monthly Rent of eighteen thousand and five
hundred and seventy-seven dollars and 00/100 ($18,577.00) per
month payable on the first day of each month.
(b) Renewal Rate. During the Renewal Terms (as hereinafter
defined), Tenant shall pay to Landlord a monthly Rent in the
amount of:
i) Eighteen thousand and five hundred and seventy-seven
dollars and 00/100 ($18,577.00) per month payable on
the first day of each month during the First Renewal
Term (as hereinafter defined).
ii) Nineteen thousand and fifty three dollars and 33/100
($19,053.33) per month payable on the first day of
each month during the Second Renewal Term (as
hereinafter defined).
(c) Additional Rent. In addition to the Rent, Tenant shall pay
additional rent ("Additional Rent") as follows:
i) Additional Charges. Any charges due Landlord by
Tenant, including, but not limited to, damage to the
Property, legal fees, costs of default remedies and
any other past due charges, or for work done on the
Property by order of Tenant shall be considered as
Additional Rent due within thirty (30) days of
Landlord's demand therefor (in addition to all other
rent payable).
ii) Air Conditioning Charges. Twenty Five Dollars
($25.00) for air conditioning use during non-Standard
Hours of Operation as defined in Section 0 herein.
iii) Interest and Late Charge. In the event any amounts
due hereunder shall not be paid within ten (10) days
of when such payment is due, interest in an amount
equal to one-half percent per month (6% per annum)
shall accrue thereafter on amounts due and unpaid for
so long as such amounts remain unpaid. In addition,
upon five (5) days written notice and Tenant's
failure to pay such amounts as are due within such
five day period, Tenant shall pay an additional
amount equal to five percent (5%) of the amount due
as a late charge.
4. Landlord's Work. Prior to the Commencement Date of this Lease, Landlord
shall complete construction of (a) a demising wall to create a new
suite consisting of the Property on the fourth (4th) floor of the
Building separate from the remaining space located on the fourth (4th)
floor of the Building and (b) a break/copy room, including kitchen
facilities and infrastructure for reproductions and telecommunications
equipment with adequate electrical circuits and data/phone jacks for
reproduction and telecommunications equipment (note that data and phone
cabling is the responsibility of Tenant), each acceptable to Tenant and
Landlord shall deliver the Premises to Tenant.
5. Furniture and Fixtures. Tenant shall be entitled, at no cost to Tenant,
to use all of the furniture and fixtures currently located in the
Property. The inventory of the furniture located in the Property
immediately prior to the Commencement Date is as follows:
40 cube stations
11 30" x 60" HON desks
Upon the expiration or termination of this Lease, Tenant agrees to
return such furniture and office equipment to Landlord in substantially
the same condition as Tenant received such furniture and office
equipment, normal wear and tear and casualty damage excepted.
6. Access to Common Areas. Tenant will have access to the following common
areas: entrance lobbies, the cafeteria (during operating hours),
parking areas, loading docks, corridors, public restrooms, elevators
(including freight elevator to be coordinated with Landlord) and
stairways in accordance with reasonable regulation of the Landlord.
Access to the building's electrical / data phone rooms will be on an
as-needed basis.
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7. Renewal Options. Tenant shall have the right to renew this Lease for
two (2) additional terms of six (6) months each. (The first six-month
renewal term is the "First Renewal Term" and the second six-month
renewal term is the "Second Renewal Term". The First Renewal Term and
the Second Renewal Term are sometimes collectively referred therein as
the "Renewal Terms.") There shall be no renewal without written notice
from Tenant to Landlord sixty (60) days prior to the expiration of the
then current lease term. The rental for the Renewal Terms is set forth
in Section 3(b). Other than the rental for the Renewal Terms, all of
the other terms and conditions of this Lease shall apply to the Renewal
Terms.
8. Exercise Facility. Landlord shall provide access to the exercise
facility for Tenant's employees without charge
9. Parking. Tenant shall be entitled to fifty-seven (57) parking spaces in
the parking lot adjacent to the building. All spaces shall be
non-dedicated and without charge to Tenant.
10. Standard Hours of Operation. Although Tenant enjoys exclusive use of
and access to the Property 24 hours per day, 7 days per week, air
conditioning and heating shall be limited to the following standard
hours of operation ("Standard Hours of Operation"): 8:00 a.m. to 6:00
p.m., five days per week and 8:00 a.m. to 1:00 p.m. on Saturdays,
excluding federal holidays.
11. Building Security and Maintenance. Landlord will provide maintenance
and security personnel from 8:00 am. to 6:00 p.m. Monday through
Friday, exclusive of federal holidays. Building access shall be
pursuant to an electronic security system with access/security cards
provided to employees of Tenant.
12. INTENTIONALLY OMITTED.
13. Utilities; Janitorial. Landlord agrees to pay for the water, sewer,
electricity, gas and janitorial services.
14. PERSONAL PROPERTY. ALL PERSONAL PROPERTY, MERCHANDISE, FIXTURES, AND
EQUIPMENT PLACED OR MOVED INTO THE PROPERTY BY TENANT SHALL BE AT THE
RISK OF TENANT OR THE OWNERS THEREOF, AND LANDLORD SHALL NOT BE LIABLE
FOR ANY DAMAGES, LOSS OR THEFT OF SAID PERSONAL PROPERTY, MERCHANDISE,
FIXTURES, OR EQUIPMENT, FROM ANY CAUSE WHATSOEVER EXCEPT FOR THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD, ITS EMPLOYEES, AGENTS,
CONTRACTORS AND REPRESENTATIVES.
15. Security Deposit. A security deposit of $18,100.00 (the "Security
Deposit") required by Landlord and due upon the Commencement Date shall
be retained as security (interest free) for the faithful performance by
Tenant of all terms, covenants and conditions herein. Landlord is given
permission to commingle said deposit and may, at any time after written
notice to Tenant, apply said deposit, or any part thereof, against any
default by Tenant of any of the terms, covenants, and conditions of
this Lease that has not been corrected within the applicable cure
period. In such event, Tenant shall, upon written demand, deposit with
Landlord the amount so applied so that Landlord shall have the full
amount of the deposit on hand at all times during the term of this
Lease. Upon expiration of this Lease, Tenant shall surrender possession
of the Property as required herein. Landlord is given permission to
deduct from the Security Deposit upon written notice to Tenant the cost
of any extraordinary cleaning or repairs to the Property, upon vacating
by the Tenant, ordinary wear and tear excepted. The Security Deposit is
not a part of the rent and subsequently cannot be deducted from the
rent of the last month of this tenancy. The Security Deposit or any
remaining portion will be returned within thirty (30) days after the
termination of this tenancy or completion of the repairs necessitated
by Tenant's use of the Property. In the event the Security Deposit is
not sufficient to pay all charges due, Tenant shall pay said charges
within thirty (30) days after receiving written notice from the
Landlord and a detailed accounting of the actual charges and Landlord's
basis for asserting these charges against Tenant. Tenant shall be
allowed to post an Irrevocable Letter of Credit in lieu of the Security
Deposit, the terms and conditions of which are to be acceptable by
Landlord in Landlord's reasonable discretion.
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16. Real Property Taxes. Landlord shall pay all real estate taxes on the
Property.
17. INTENTIONALLY OMITTED.
18. Use of Property. The Property may be used for general office use and
other related purposes. Pets, animals, or birds may not be kept on the
Property without the Landlord's permission. The Property may not be
used as a residence, apartment, sleeping quarter or other type of
dwelling used for human habitation. The Property may not be used for
games of chance or any form of gambling, immoral conduct or any other
illegal activity. Tenant acknowledges that Landlord may use that
portion of the Building that is not leased by Tenant, for any use
whatsoever, so long as such use does not interfere with Tenant's use as
contemplated herein. Landlord represents that the Property is properly
zoned for the permitted use set forth herein and such permitted use is
an allowed "as of right" usage without condition or restriction.
19. Examination of Property; No Warranties. Tenant has examined the
Property and is familiar with its present condition. Tenant, relying
solely on said examination, agrees to accept the Property in its
present condition "AS IS," except as otherwise set forth specifically
herein.
20. Insurance.
(a) Tenant shall not carry any stock of goods or do anything in or
about the Property which would, in any way, restrict or
invalidate any insurance coverage of the Property.
(b) Tenant agrees to pay, upon presentation of a copy of
Landlord's paid invoice, as Additional Rent, Tenant's
Proportionate Share, as defined herein, of any and all
premiums of insurance required hereunder and carried by
Landlord on the Property resulting from Tenant's use or
occupancy. "Tenant's Proportionate Share" shall be calculated
by dividing the rental square footage under this Lease by the
total square footage of the Building (assuming that such
insurance coverage charges can be ascertained as to the
Building as a whole). Tenant shall keep in full force and
effect, at Tenant's expense, insurance for Tenant's personal
property, Tenant's trade fixtures, Tenant's equipment,
business interruption and property damage. Tenant shall also
carry a public liability policy with a minimum coverage of
$1,000,000.00. Said policies shall bear endorsements to the
effect that the insurer agrees to notify the Landlord not less
than thirty (30) days in advance of any cancellation thereof.
Should Tenant fail to maintain such public liability insurance
or in the event that a notice of cancellation has been
provided and Tenant fails to provide notice of replacement
coverage to Landlord within fifteen (15) days after such
notice, after fifteen (15) days written notice of such
deficiency, Landlord may, at its option (but shall not be
required to do so) cause public liability insurance as
aforementioned to be issued, and, in such event, Tenant agrees
to pay the premium for said insurance as Additional Rent.
(c) During the Initial Term and the Renewal Terms of this Lease,
Landlord shall obtain and maintain a general liability
insurance policy with a combined property damage, bodily
injury and death liability limit of at least $1,000,000.00.
Landlord shall obtain and maintain separate broad form
property coverage insuring the Building and all common areas
against fire, casualty and malicious mischief, no matter the
cause thereof, for the full replacement value thereof.
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21. Maintenance and Repair.
(a) Landlord shall repair and maintain the Building and Common
Areas, including but not limited to, the foundation, roof,
outer walls, structural members and all building operating
systems of the Property, and any other items described in the
Master Lease that are not to be maintained or repaired by
Tenant as provided herein to the standard of similar
commercial office space. The building operating systems shall
include the servicing, repair, maintenance, replacement of
plumbing, electrical, ventilation, heating and air
conditioning systems, including all pipes, wiring, fixtures,
filters, equipment, machinery, boilers, compressors and
appliances. If Landlord fails to perform its repair and
maintenance obligations and such failure interferes with
Tenant's normal commercial use or access to the Property,
Tenant shall be entitled to perform such obligations and, if
all such costs that are reasonably incurred by Tenant to
perform such obligations are not reimbursed by Landlord within
thirty (30) days after presentation of an invoice to Landlord,
Tenant may then offset against the next monthly installment(s)
of Rent becoming due the costs of such performance until such
time as Tenant is fully reimbursed for the costs actually
incurred.
(b) Tenant shall use all reasonable efforts to provide Landlord
notice of any damage or maintenance needs of which it becomes
aware. If any damage is caused by Tenant's neglect, Tenant
shall be responsible for the costs to repair such damage.
Tenant shall also repair and be responsible for damage caused
by stoppage, breakage, leakage, overflow, discharge or
freezing of plumbing pipes, soil lines or fixtures located
within the Property due to Tenant's negligence or willful
misconduct. If any part of the Property is damaged by Tenant,
or Tenant's employees, agents or invitees, Tenant shall
provide Landlord with immediate written notification of such
damage to the Property. After notification and approval by
Landlord, repairs of such damage shall be made promptly at
Tenant's expense so as to restore the Property to its previous
condition. If Tenant refuses or neglects to commence the
necessary repairs within fifteen (15) days after the written
demand by Landlord, Landlord may make such repairs without
liability to Tenant for any loss or damage that may accrue to
Tenant's stock, business or fixtures by reason thereof except
for any negligence or willful misconduct of Landlord or its
employees, agents or contractors, and if Landlord makes such
repairs, Tenant shall pay to Landlord, upon presentation of a
copy of Landlord's paid invoice, as Additional Rent, the
actual cost thereof. Tenant's failure to pay shall constitute
a default under this Lease. Repairs that are Landlord's
responsibility shall be made within a reasonable time after
written notice to Tenant and shall comply with the provisions
of the Master Lease.
22. Regulations and Sanitation. Landlord represents and warrants that as of
the Commencement Date, the Property is in compliance with all
applicable laws, ordinances, regulations and requirements of any
legally constituted public authority, including all environmental laws,
rules and regulations ("All Applicable Laws"). Tenant shall keep the
Property clean, safe, sanitary, and free from environmental hazards and
in compliance with All Applicable Laws. If Tenant fails to comply with
any such laws, ordinances, regulations and requirements, or any aspect
thereof beyond any applicable notice and cure period set forth herein,
including notice requirements, such failure shall constitute a default
by Tenant under this Lease. Tenant's obligation to clean includes
removing any trash or refuse deposited upon the Property or any
adjacent public area by Tenant, Tenant's customers or anyone else. In
the event of non-compliance by Tenant subject to all applicable notice
and cure periods herein, Landlord shall have the right to have said
areas cleaned trash and refuse removed and charge the expense to Tenant
as Additional Rent which shall be due and payable, upon presentation of
a copy of Landlord's paid invoice, as Additional Rent non-payment of
which shall constitute a default of this Lease. Landlord shall employ a
reputable pest extermination company to perform extermination services
in the Building, common areas and Property at regular intervals.
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23. Hazardous Materials.
(a) Landlord represents and warrants that, as of the Commencement
Date, there are no Hazardous Materials (as defined in the
Master Lease) in, on, under or about the Property and that the
Property is in compliance with all applicable environmental
laws, rules and regulations.
(b) Tenant represents, warrants and agrees that the Property shall
be kept free of Hazardous Materials brought to the Property by
Tenant, or its employees, agents or contractors (as defined in
the Master Lease) and Tenant shall comply with, and insure
compliance by all other parties for whom it is responsible
with, all applicable environmental laws.
(c) Each Party hereby agrees to indemnify the other party and hold
the other party harmless from and against any and all liens,
demands, actions, suits, proceedings, disbursements,
liabilities, losses, litigation, damages, judgments,
obligations, penalties, injuries, costs, expenses (including
without limitation, reasonable attorneys and expert fees and
expenses) and claims of any and every kind whatsoever paid,
incurred, suffered by or asserted against the other party or
the Property for, with respect to, or as a direct or indirect
result of violating paragraphs (a) or (b) above.
24. Alterations. Tenant shall make no alterations, additions, improvements
or rewiring in or to the Property without the written consent of
Landlord, which consent shall not be unreasonably withheld. All
additions, or improvements to the building including carpeting, tile or
other floor covering, wall covering, ceiling tile, etc. made with or
without Landlord's written consent shall become part of the Property,
and shall be the property of Landlord upon installation. Trade fixtures
and office furniture shall be installed so as to be readily removable
without injury to the Property and any injury caused by said removal
shall be repaired forthwith at Tenant's expense. Said trade fixtures
shall be removed from the Property before the end of this Lease unless
Landlord agrees in writing that they may remain. Tenant shall not
install or maintain any equipment, partitions, furniture, or other
items in which the weight or the operation of which would tend to
injure or be detrimental to the Property.
25. Assignment or Sublease. Tenant shall not, without written consent of
Landlord, in each case, assign, transfer, mortgage, pledge or otherwise
encumber or dispose of this Lease, or sublet the Property, or any part
thereof, or permit the Property to be occupied by other persons. Such
consent may be withheld for any reason. If this Lease is assigned, or
if the Property, or any part thereof, be subject or occupied by any
other person, firm, office or corporation, with or without written
permission of Landlord, it will not relieve Tenant of any obligations
under the terms of this Lease and if sublet, assigned or occupied
without the Landlord's permission, this Lease may, at the option of the
Landlord, be terminated by a seven (7) day written notice.
Notwithstanding the prohibition set forth above, Tenant shall have the
right, without Landlord's consent, at any time during the Initial Term
or Renewal Terms of this Lease, to assign or otherwise transfer this
Lease and its rights hereunder to (i) any entity controlling,
controlled by, or under common control with Tenant, or (ii) any entity
into or with which Tenant may be merged or consolidated or (iii) any
entity which shall be a successor of Tenant or to any entity which has
acquired or is acquiring ownership or control of the business and
assets of Tenant at the Property. Notwithstanding the prohibition set
forth above, Tenant shall have the right, without Landlord's consent,
at any time during the Initial Term or Renewal Terms of this Lease, to
sublet a portion of the Property to any entity controlling, controlled
by, or under common control with Tenant. Unless expressly agreed to by
Landlord, any assignment or sublet by Tenant pursuant to this paragraph
shall not release Tenant from its obligations under this Lease.
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26. Signs or Awnings. Tenant shall place no signs, notices, pictures or
advertising matter upon the exterior of the Property, except with the
written permission of the Landlord. Tenant will be allowed to place
interior signage in a manner to be approved by Landlord in the Lobby,
the elevator and on Tenant's door(s), such approval not to be
unreasonably withheld. Any and all signs placed on the Property by
Tenant shall be maintained in compliance with rules and regulations
governing such signs. Tenant shall be responsible to Landlord for any
damages caused by installation, use, maintenance, or removal of said
signs (but not responsible for repainting any areas other than those
directly behind where the signs were affixed). Any electrical service
needed for signs shall be installed at the Tenant's expense.
27. Obligations under Master Lease. Landlord shall fulfill all of its
obligations and duties under the Master Lease, except for those
obligations and duties expressly stated and only to the extent
expressly stated to be the responsibility of Tenant under this Lease,
and agrees to enforce its rights against Master Landlord under the
Master Lease in order to protect the interest of Tenant under this
Lease. In the event Landlord receives a notice of default from the
Master Landlord, Landlord shall immediately notify in writing Tenant of
such default and take all necessary steps to cure such default.
28. Waiver of Rights. No failure by Landlord or Tenant to exercise any
power given hereunder, or to insist upon the other party's strict
compliance with its obligations hereunder, and no custom or practice of
the parties at variance with the terms hereof will constitute a waiver
of either party's rights to demand exact compliance with the terms of
this Lease at a future time the rights and remedies created by this
Lease are cumulative and the use of one remedy shall not be taken to
exclude the right to use another.
29. Rules and Regulations. Rules and Regulations are attached hereto as
Exhibit D and made a part hereof, but to the extent that there is any
conflict between the Rules and Regulations and this Lease, the terms
and conditions of this Lease shall control. Landlord reserves the
right, at any time, to make further reasonable rules and regulations as
in Landlord's reasonable judgment may be necessary for the safety,
care, appearance and cleanliness of the Property and the preservation
of the good order therein, and upon promulgation of such rules to all
tenants such other rules and regulations shall be binding upon the
parties hereto with the same force and effect as if they had been
contained herein at the time of execution hereof.
30. Right of Entry. Landlord, without being liable for trespass or damages,
shall have the right immediately in the case of an emergency or upon at
least twenty-four (24) hours' advance notice, unless otherwise agreed
in advance, and during business hours to enter the Property to examine
the same, or to make repairs, additions or alteration as Landlord may
deem necessary or the safety, comfort, appearance or preservation
thereof, or during the last sixty (60) days of the then current term if
no renewal notice has been given to exhibit the Property. Landlord
shall also be allowed to post "For Rent" notice during sixty (60) days
before the expiration of the Initial Term or Renewal Terms of this
Lease if no renewal notice has been given. Said right to entry shall
likewise exist for the purpose of removing place cards, signs,
fixtures, alterations or additions which do not conform to the
provisions set forth in this Lease subject to all applicable notice and
cure periods. In accordance with this right, Tenant shall give Landlord
a photo pass to any and all locks, security systems and burglar alarms.
Tenant shall not change or install new locks or security systems
without the approval of Landlord, such approval not to be unreasonably
withheld, conditioned or delayed.
31. Liens. Tenant shall not create any liens for labor or material against
the Property. All persons contracting with the Tenant for the election,
installation, alteration, repair or demolition of any building or other
improvements on the Property, and all materials, flyers, contractors,
mechanics, and laborers are hereby charged with notice that they must
look to the Tenant and to the Tenant's interest only in the Property to
secure payment of any xxxx for work or material furnished during the
rental period created by this Lease. In the event that liens are placed
on record against the Property by contractors, mechanics, laborers,
material suppliers, etc., because of action by Tenant, it will
constitute a default of this Lease unless such liens are discharged
within thirty (30) days after Tenant receives notice of such lien.
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32. Damages to or Destruction of Property. In the event twenty-five percent
(25%) or less of the Property is damaged by fire or other casualty,
Landlord shall repair the property to its condition immediately prior
to the damage and Rent shall proportionately xxxxx based on loss of
Tenant's use of the Property, as mutually agreed by the parties or if
agreement cannot be reached based upon normal commercial practices. In
the event over twenty-five percent (25%) of the Property is damaged by
fire or other casualty, either party may terminate this Lease upon ten
(10) days written notice.
33. Condemnation. If the whole of the Property or such portion thereof as
will make said Property unusable for the purpose herein leased, as
mutually agreed by the parties or if agreement cannot be reached based
upon normal commercial practices, be condemned by any legally
constituted authority, this Lease shall terminate on the date when
possession thereof is taken by public authorities, and Rent Additional
Rent shall be accounted for as between Landlord and Tenant as of such
termination date and Tenant shall absolutely have no rights to any
condemnation proceeds except those that are related to its leasehold
interest in the Property. In the event only a portion of the Property
is acquired by condemnation as will leave the remaining Property, after
alteration and repair, in condition suitable for use by Tenant, as
mutually agreed by the parties or if agreement cannot be reached based
upon normal commercial practices, the Rent and Additional Rent, where
applicable, from the day of such acquisition to the end of the original
or any extended term of this Lease shall be reduced in proportion to
the resulting loss of use of the Property by Tenant.
34. Indemnity and Liability. Tenant shall indemnify and save Landlord
harmless from and against any and all claims, damages, costs and
expenses, including reasonable attorney's fees arising from the
occupancy or use by Tenant of the Property and the existence of noxious
or hazardous chemicals or substances on the Property due to Tenant's or
its employees', agents' or contractors' actions. Except to the extent
of any negligence or willful misconduct of Landlord or its employees,
agents or contractors, (i) Landlord shall not be liable for, and Tenant
waives all claims for damage to person or Property sustained by Tenant,
its employees or agents, resulting from the condition of the Property
or as may result from any accident in or about the Property or which
may result directly or indirectly from any act or neglect to the
Property of which the Lease is a part; (ii) Landlord shall not be
responsible or liable at any time for any loss or damage to Tenant's
merchandise, equipment, fixtures or other personal property of Tenant
or Tenant's business; (iii) Landlord shall not be responsible or liable
to Tenant or those claiming by, through or under Tenant for any loss or
damage to either the person or property of Tenant that may be
occasioned by or through the acts or omissions of persons occupying
adjacent, connecting or adjoining Premises; and (iv) Landlord shall not
be responsible or liable for any defect, latent or otherwise, in any
building constituting the Property or any of the equipment, machinery,
utilities, appliances or apparatus therein, nor shall it be responsible
or liable for any injury, loss or damage to any person or to any
property of Tenant or other person caused or resulting from bursting,
breakage, or by or from leakage, ice, running, backing up, seepage, or
the overflow of water or sewer in any part of the Property or from any
injury or damage caused by or resulting from acts of God or the
elements or for any injury or damage caused by or resulting from any
defect or negligence in the occupancy, building, machinery, apparatus
or equipment by any person or by or from the acts or negligence or any
occupant of the Property. Tenant agrees that it shall look solely to
the estate and property of Landlord in the land and buildings of which
the Property are a part, and subject to prior rights of any mortgages
of the Property, for the collection of any judgment (or other judicial
process) requiring the payment of money of Landlord, and, provided that
Landlord has not engaged in fraud or intentional misconduct, no other
assets of the Landlord shall be subject to levy, execution, or other
procedures for the satisfaction of Tenant's remedies. In the event
Landlord transfers this Lease, upon notice of such transfer and
acceptance of such transfer by a transferee of similar means and
experience, Landlord will be released from any and all future
liabilities and obligations hereunder. The indemnities provided in this
Lease shall survive the termination or expiration of this Lease or any
renewals for one (1) year, provided, however, that after such one (1)
year period neither party shall not be entitled to file any action,
suit or other claim or recover any damages or any other remedy at law
or in equity arising out of or related to the foregoing indemnities.
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35. Reversion. Tenant shall surrender to Landlord at the end of the Term,
Renewal Terms or upon cancellation of this Lease, as applicable, the
Property broom clean, in the condition as the Property was at the
beginning of the Term, normal wear and tear and casualty damage
excepted, free from any toxic or hazardous substances present on the
Property due to Tenant's or its employees', agents' or contractors'
actions. In the event that Tenant unlawfully holds over, after the term
of this Lease has expired without Landlord's consent, upon thirty (30)
days written notice to Tenant, Tenant shall pay to Landlord a month to
month rental that is 150% of the previous Rent until the Property is
properly vacated. The Security Deposit (or Letter of Credit, if
applicable) may be utilized as payment or partial payment of
extraordinary repairs or unusual cleaning needed after Tenant vacates,
normal wear and tear excepted.
36. Effective Date of Lease. This Lease shall become effective as a binding
agreement only upon the execution and delivery thereof by both Landlord
and Tenant. If this Lease is signed by one party and submitted to the
other party, it shall constitute an offer to lease which is subject to
revocation at any time prior to execution by the other party and
delivery of a fully executed copy to the submitting party.
37. Notices. Tenant hereby appoints as Tenant's agent to receive service of
all notices required under this Lease as well as all dispossessory
distraint notices, the person in charge of the Property or occupying
the Property, at the time notice is delivered. If no person is in
charge of, or occupying the Property, the service of such notice may be
made by attaching the same in the main entrance to the Property.
Notices shall be sent addressed as follows:
If to Tenant: Pilot Therapeutics, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxx
Winston Salem, North Carolina 27101
Attention: Mr. Xxxxx Xxxxx
With a copy to: Hunton & Xxxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
If to Landlord: Blackbaud, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
With a copy to: Blackbaud, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
If to Master Landlord: Duck Pond Creek, LLC
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: ________________
38. Bankruptcy. If Tenant shall apply for relief under any bankruptcy act
or shall be adjudicated bankrupt or insolvent or take the benefit of
any federal reorganization and such application is not withdrawn or
such adjudication is not vacated within forty-five (45) days or make a
general assignment or take the benefit of any insolvent law, or if a
Trustee in bankruptcy or a receiver be appointed or elected for Tenant
and such appointment is not revoked within forty-five (45) days, under
federal or state law, this Lease at the option of Landlord shall expire
and end seven (7) days after Landlord gives Tenant written notice,
unless Tenant's trustee immediately cures any default of Tenant
hereunder and provides (in compliance with federal and state laws)
adequate assurance of future performance of Tenant's obligations
hereunder.
9
39. Beyond Landlord's Control. None of the acts, promises, covenants, or
obligations on the part of Tenant to be kept, performed or not
performed as the case may be, nor the obligation of Tenant to pay Rent,
Additional Rent, or other charges or payments shall be anywise waived,
excused, or affected by reason of Landlord being unable at any time
during the Term or Renewal Terms (a) to supply or to delay in supplying
heat, light, elevator service or any other service expressed or implied
on the part of Landlord to be supplied; provided, however, that if such
failure occurs for more than five (5) days, cumulative, in any single
year of the Term or Renewal Terms, Rent and Additional Rent shall xxxxx
for such period of time beyond five days and if such failure occurs for
more than forty-five (45) days, cumulative, in any single year of the
Term or Renewal Terms, Tenant shall be entitled to terminate this Lease
upon written notice to Landlord; or (b) to make any alterations,
repairs, or decorations, or to supply any equipment or fixtures, or any
other promise, covenant, or obligations on the part of the Landlord to
be performed, if Landlord's inability or delay is caused by
circumstances beyond Landlord's control; provided, however, that if
such failure occurs for more than thirty (30) days Rent and Additional
Rent shall xxxxx for such period of time and if such failure occurs for
more than ninety (90) days, Tenant shall be entitled to terminate this
Lease upon written notice to Landlord.
40. Badges. Landlord shall provide Tenant with photo badges for each
employee for $20.00 per badge, and Tenant is responsible for accounting
for all of the same and shall return all photo badges to the Landlord
upon termination or cancellation of this Lease and/or Tenants vacating
the Property. There shall be a fifteen dollar ($15.00) charge for every
badge not returned or which has been lost. All additional photo badges
shall be provided at $15.00 per badge. The Landlord shall retain a
master photo or pass photo to the Property, including all security
locks and systems. Tenant shall not change or install new locks or
security systems without approval of Landlord, such approval shall not
be unconditionally withheld, conditioned or delayed.
41. Estoppel Certificates. Tenant shall from time to time, within ten days
following the notice from Landlord, execute, acknowledge and deliver to
the Landlord a written statement certifying that this Lease is in full
force and effect. This statement should also state whether or not
Tenant is in default in performance of any covenant and shall
constitute an acknowledgment by Tenant that this Lease, except as
stated in such notice, is unmodified and in full force and effect.
42. Peaceful Possession. Subject to the terms, covenants and conditions of
this Lease, Tenant shall have, hold and enjoy possession of the
Property, subject only to the rights of the holders of any mortgage
which now covers said Property or which may hereafter be placed on the
Property by the Landlord who agree that Tenant, absent a default beyond
any applicable cure period, shall not be disturbed in its possession of
the Property. Tenant's rights are also subject to any underlying lease
now or later covering the entire property of which the Property is a
part. Tenant shall execute any necessary subordination agreement at
Landlord's request, provided that such agreement contains
non-disturbance provisions, in form acceptable to such lender and
Tenant.
43. Default.
(a) If Tenant fails to pay Rent, including Additional Rent on or
before the due dates as herein stated (TIME IS OF THE ESSENCE)
and if Tenant fails to cure such default within ten (10) days
after notice from Landlord; or if Tenant shall be in default
in performing any of the terms, covenants and conditions of
this Lease other than the provision requiring the payment of
Rent, and fails to cure such default within thirty (30) days
or such other time as is reasonably required for Tenant to
cure such default so long as Tenant has commenced and
diligently prosecutes the curing of such default within such
thirty day period and in no event longer than sixty (60) days
after the receipt of notice of default from Landlord; or this
Lease is assigned to any other persons, firm, office or
corporation, without the permission of Landlord except as
provided herein, this Lease shall be in default. Upon such
default, at Landlord's option, this Lease shall expire and
terminate fifteen (15) days after Landlord delivers written
notice to Tenant of such condition or default and Tenant shall
immediately quit and surrender said Property to Landlord. In
the event of any such default or breach of performance,
Landlord without any further notice or demand of any kind to
Tenant, may
10
terminate this Lease and re-enter and forthwith repossess the
entire Property and without being liable for trespass or
damage shall re-let, lease, or demise the Property to another
Tenant without any hindrance or prejudice to Landlords right
to distraint for any past due Rent, Additional Rent, and Rent
from the time of such default or termination until the
Property was leased or rented to another Tenant.
(b) If Landlord or Master Landlord shall fail to perform each and
all of its obligations under the Master Lease (except for
those obligations to be performed by Tenant hereunder) and
such failure is not cured within the applicable notice and
cure period, Tenant may, but shall not be obligated to, cure
any such failure and recover reimbursement for its costs
thereof (i) from Landlord or if Landlord does not pay such
invoice within thirty (30) days after presentation (ii) then
by offset against the next monthly installment(s) of Rent to
be paid by Tenant hereunder. Additionally, if Landlord shall
default in the performance of any of the covenants,
obligations or conditions that are the responsibility of
Landlord in the Master Lease, Landlord shall immediately
provide written notice to Tenant of such default. If Master
Landlord seeks to exercise its right to terminate the Master
Lease, Tenant may elect, in its sole discretion, to either (a)
terminate this Lease or (b) continue to occupy the Property,
on a month-to-month basis in accordance with this Lease paying
Rent directly to Master Landlord during a transition period of
up to nine (9) months, such tenancy terminable by Tenant upon
thirty (30) days written notice to Master Landlord.
44. Chattels. It is understood and agreed that any merchandise, fixtures,
furniture, or equipment left on the Property when Tenant vacates shall
be deemed to have been abandoned by Tenant and by such abandoned by
Tenant and by such abandonment, Tenant relinquishes any right or
interest therein and Landlord is authorized to sell, dispose of or
destroy same.
45. Attorneys' Fees and Costs. In the event that it is necessary to employ
an attorney for the collection of Rent or any other sum due hereunder,
or to enforce any covenant of this Lease, or the termination of this
Lease, or for the possession of the Property or any part thereof, the
delinquent party shall pay all costs of the prevailing party actually
incurred, including reasonable attorneys' fees.
46. Definitions. "Landlord" as used in this Lease shall include the owner
or owners of the property as well as the Landlord's heirs,
representatives, assigns, and successors in title to the Property.
"Tenant" shall include Tenant, Tenant's heirs and representatives, and
if this Lease shall be assigned or sublet in compliance with the
provisions of this Lease, shall include also Tenant's assignees or
sublessees, as to Property covered by such assignment or sublease.
47. Subordination and Modification. Tenant covenants that this Lease shall
be and shall remain subordinate to any mortgages now filed or to be
placed upon the Property, provided that, in the absence of a default by
Tenant, Tenant shall not be disturbed in its possession. Tenant shall,
at the request of Landlord, from time to time execute a subordination,
non-disturbance and attornment agreement in form and substance
reasonably acceptable to such lender and Tenant.
48. Entire Agreement. This Lease contains the entire agreement between the
parties hereto and all previous negotiations leading thereto, and it
may be modified only by a dated written agreement signed by both
Landlord and Tenant. No surrender of the Property or of the remainder
of the Term shall be valid unless accepted by Landlord in writing. TIME
IS OF THE ESSENCE IN THIS AGREEMENT.
49. Authority. The individuals signing this Lease personally warrant that
they have the right and power to enter into this Lease, to grant the
rights granted under this Lease, and to undertake the obligations
undertaken in this Lease.
50. Compliance with Laws. Tenant and Landlord agree to comply with and
adhere to all laws, whether municipal, state, federal or otherwise,
applicable to and effecting the Property, including but not limited to
all environmental laws effecting the Property.
11
51. Brokers. Tenant and Landlord each represent that no broker or agent
other than Colliers Xxxxxx of Charleston (the Broker) for whom Landlord
is solely responsible has any claim to a commission with respect to the
Lease contemplated hereby. Tenant and Landlord each shall indemnify and
hold the other party harmless from and against and in respect to any
and all liability or expense resulting from or in connection with fees,
claims or commissions alleged to be due as a result of the transactions
contemplated hereby to any person or entity other than payment of the
commission.
52. Captions. The marginal captions herein are done for convenience and
reference only and shall not be deemed as part of this Lease or
construed as in any manner or as amplifying the terms and provisions of
this Lease to which they relate.
53. Severability. If any term or provision of this Lease shall to any
extent be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be effective
thereby and a balance of the terms and provisions of this Lease shall
be valid and enforceable to the fullest extent either hereunder or as
permitted by law.
54. Interpretation Presumption. This Lease has been negotiated by the
parties hereto and by the respective attorneys for each party. The
parties represent and warrant to one another that each has, by counsel
or otherwise, actively participated in the finalization of this Lease,
and in the event of a dispute concerning the interpretation of this
Lease, each party hereby waives the doctrine that an ambiguity should
be interpreted against the party which has drafted the document.
55. Waiver. Either party hereto may waive compliance by the other party of
any term or provision of this Lease on the part of such other party.
Waiver by any party of a breach of any term or provision shall not be
construed as a waiver of any subsequent breach.
56. Applicable Law. The parties executing this Lease acknowledge that the
negotiations and anticipated performance of this Lease occurred or
shall occur, and that this Lease is executed, in Charleston County,
South Carolina, and that, therefore, the parties irrevocably and
unconditionally: (a) agree that any suit, action or legal proceeding
arising out of or relating to this Lease shall be brought only in the
courts of record of the State of South Carolina in Charleston County or
the U.S. District Court of the United States, District of Charleston;
(b) consent to the exclusive jurisdiction of each court in any such
suit, action or proceeding; (c) waive any objection which either may
have to the laying of venue of any such suit, action or proceeding in
any of such courts under any statute or law of any jurisdiction; (d)
consent to the reference of any suit to the Master-in-Equity for
Charleston County; (c) agree that service of any court paper may be
effected on such party by mail, as provided in this Lease, or in such
other manner as may he provided under applicable laws or court rules in
said State; and (F) agree that South Carolina law shall govern the
interpretation of this Lease and the rights and duties of the parties
hereto.
57. INTENTIONALLY OMITTED.
58. Benefit; Binding Effect. The terms of this Agreement shall be binding
upon and inure to the benefit of the parties hereto, their respective
heirs, successors and assigns.
[Signatures appear on following page.]
12
IN WITNESS WHEREOF, the parties hereto have their duty authorized
representative to execute this Lease on the day and year first above written.
WITNESSES: LANDLORD:
---------
/s/ Xxxx Xxxxxx BLACKBAUD, LLC.
---------------------------------
General Council
By: /s/ Xxx X. Xxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxx
------------------------------
Title: Vice President and CFO
-----------------------------
WITNESSES: TENANT:
---------
/s/ Xxxxx X. Xxxxx PILOT THERAPEUTICS, INC.
---------------------------------
Xxxxx X. Xxxxx
Secretary
Pilot Therapeutics, Inc.
By: /s/ Xxxxx X. Xxxxxxx III
--------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: CEO, CSO and President
-----------------------------
13
EXHIBIT A
Master Lease
[ATTACH FULL EXECUTED COPY OF MASTER LEASE WITH ALL EXHIBITS THERETO AND ANY
AMENDMENTS, SUPPLEMENTS OR MODIFICATION THEREOF.]
EXHIBIT B
Legal Description
[INSERT LEGAL DESCRIPTION FOR LAND UPON WHICH THE BUILDING IS LOCATED AND A
FLOOR PLAN OF THE FOURTH FLOOR SHOWING EXACT LOCATION OF THE PROPERTY.]
EXHIBIT C
[INTENTIONALLY BLANK]
14
EXHIBIT D
Rules and Regulations
1. Sidewalks, entryways, passages, corridors, stairways and elevators
shall not be obstructed by Tenant, its employees or agents, or used by
them for purposes other than ingress or egress to and from the
Property.
2. No windows or other openings that reflect or admit light into the
corridors or passageways, or to any other place in the Property, shall
be covered or obstructed by Tenant.
3. Water closets and other plumbing fixtures shall not be used for any
purpose other than those for which they were constructed. Any damage
resulting to them from misuse or abuse by Tenant or its agents,
employees or invitees, shall be borne by Tenant.
4. No person shall disturb the occupants of the facilities by the use of
musical instruments or the making or transmittal of noises that are
audible outside the leased premises.
5. No pets of any kind are permitted in the facilities.
6. Fitness center and locker rooms located in the facilities are not
staffed. Tenant's staff shall be required to execute a waiver prior to
being allowed access. Tenant's staff shall follow all applicable rules
regarding fitness center and locker rooms. Fitness center hours of
operation are 5 a.m. to 11 p.m. each day. Landlord reserves the right
to adjust these hours at its sole discretion. Tenant visitors, guests
or spouses are not permitted to use fitness center or locker rooms.
7. No bicycles or similar vehicles are permitted in the Building.
8. Tenant shall not be permitted to use or to keep in the facilities any
kerosene, gasoline, propane, lighter fluid, camphene, burning fluid or
other combustible or flammable materials, or to burn any article or
material in the facilities.
9. Secondary or personal space heaters are strictly forbidden in the
Property.
10. No portion of the Property shall be utilized for the purpose of lodging
rooms or for any unlawful purposes.
11. Landlord reserves the right to exclude loiterers, vendors, solicitors
and peddlers from the Property and to require registration and
satisfactory identification or credentials from all persons seeking
access to any part of the facilities. Landlord will exercise its best
judgment in the execution of such control but shall not be liable for
the granting or refusal of such access.
12. No wires of any kind or type, including but not limited to TV and radio
antennas, shall be attached to the outside of the Property, except as
expressly agreed otherwise. No wires shall be run or installed in any
part of the Property without Landlord's prior written consent, such
consent not to be unreasonably withheld, conditioned or delayed.
13. Smoking is not permitted inside any part of the Building. There is a
designated smoking area on the south side of the Building that may be
utilized by Tenant's smokers. To the extent required by law, Landlord
reserves the right to ban smoking and other tobacco products from the
Property at its sole discretion.
14. All safes or other heavy articles shall be carried up or into the
Property only at such times and in such manner as prescribed by the
Landlord. The Landlord shall, in all cases, have the right to specify a
maximum weight and proper position or location of any such safe or
other heavy article. Tenant shall pay for any damage done to the
Property by taking in or removing any safe or from overloading any
floor in any way.
15
15. Tenant shall pay the cost of repairing or restoring any part of the
Property defaced or injured by Tenant, its agents, invitees or
employees.
16. Landlord shall be responsible for providing Tenant's staff and visitors
ID badges complying with Building's security policies and card reader
hardware/software serving as access control to the main Building's
entrances and to the Property.
17. A summary of access control permission levels and descriptions shall be
provided to Landlord's operations manager prior to occupancy so
security hardware/software can be configured and staff photos can be
arranged.
18. Any keyed or photo pass locks installed in the Property shall be
compatible with the Building's master key or photo pass system. Any
card readers installed in the Property that are controlled by the
Tenant shall allow master access to Landlord's designated Building and
security staff. If Landlord decides to change master control systems,
Landlord shall provide Tenant sixty (60) days' written notice of such
intentions.
19. Tenant shall be responsible for timely communication of access change
requests to Landlord's Building staff. Emergency access change
instructions shall be communicated with an extreme sense of urgency.
These communication responsibilities shall be mutual.
20. Tenant shall instruct all suppliers and delivery services that the
Building loading dock and freight elevator shall be utilized for all
deliveries. Tenant shall make arrangements for deliveries to be
received and escorted to the Property. Routine suppliers may be issued
electronic photo ID badges for convenient access to the Property but
must comply with Building security policies at all times. Landlord
shall not be responsible for Tenant deliveries or shipments.
21. Standard Hours of Operation for Tenant are considered to be 8 a.m. - 6
p.m. Monday through Friday and 8 a.m. - 1 p.m. on Saturday. HVAC
services shall be provided during these hours. HVAC services outside
these hours shall be provided upon request and billed as "Overtime
HVAC" at $25 per hour payable as Additional Rent.
22. Tenant's Building service requests (hot/cold, etc.) shall be directed
to Tenant's designated "Building contact(s)". Tenant's Building
contact(s) shall be responsible for communications to Landlord's
Building staff via email. Emergency Building needs (water leaks,
safety/security concerns, etc.) should be called in to Landlord's
Building staff for immediate attention.
23. Tenant's operations staff shall meet with Landlord's operations staff
at least two (2) weeks prior to occupancy to review Strategic Action
for Emergencies Plan ("SAFE Plan") and emergency evacuation procedures.
Landlord's changes to SAFE Plan shall be communicated to Tenant in a
timely manner.
24. Tenant shall be responsible for communicating Building rules,
procedures and SAFE Plan to its staff and visitors. Tenant shall notify
Landlord's Building staff of any staff changes that affect security or
emergency plans. These communication responsibilities shall be mutual.
25. Moves in and out of the Building shall be done outside normal business
hours (after 5 p.m. or on weekends) and shall use the freight elevator.
Written notice of move intentions shall be provided to Landlord at
least 5 business days in advance so elevator padding and loading dock
coordination can take place. Tenant shall properly protect floor (with
plywood) and corridor walls (with padding) during moves or deliveries.
Move requests deviating from these requirements shall be submitted to
Landlord in writing. Landlord reserves the right to refuse such
requests at Landlord's sole discretion.
26. Tenant inquiries related to the Property capabilities including, but
not limited to, emergency power, lighting, plumbing, HVAC, etc. shall
be directed to Landlord's operations manager. Landlord shall provide
timely responses in writing.
16
27. Landlord and Tenant operations staffs shall coordinate activities in
emergency situations, including but not limited to, hurricanes or other
events that may involve utilities outages. Tenant would be expected to
share its proportionate cost of major equipment rentals (i.e. full size
generator) for which Tenant requests.
28. Building atrium and dining room are available for event rentals subject
to availability. Details and fees shall be coordinated with Landlord's
Building staff.
29. Landlord shall have the right to approve all contractors,
representatives and installation technicians rendering any contracted
service on or to the Property for the Tenant, for which, approval shall
not be unreasonably withheld. This provision shall apply to all work
performed in the Property, including security services, installation of
telephone service, computer equipment, electrical devices and
installations of any nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment or any physical component of the Property.
30. Landlord reserves the right to modify, add or delete Property Rules and
Regulations as it deems necessary to improve occupant or asset
security, Property appearance or operational efficiencies.
