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FFVC Lease Agreement
EXHIBIT 10.7
NORTH CAROLINA
DURHAM COUNTY
FIRST FLIGHT VENTURE CENTER
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease or Lease Agreement"), made and entered into this
1st day of July, 1997, by and between the North Carolina Technological
Development Authority, Inc., a North Carolina non-profit corporation ("LESSOR"),
and LUNG Rx, Inc. ("LESSEE");
WITNESSETH:
WHEREAS the Lessor manages the First Flight Venture Center, a small
business incubator the mission of which is to increase the number of successful
technology-based companies starting in or relocating to the Research Triangle
Park area by providing business space and services on a temporary basis during
the early stages of company development or expansion; and
WHEREAS it is the philosophy of Lessor that a company as described above
should occupy space in a small business incubator for no more than two years;
and
WHEREAS the Lessee wishes to occupy space in the First Flight Venture
Center for purposes consistent with the mission and philosophy described above;
and
WHEREAS the parties hereto have mutually agreed to the terms of this Lease
Agreement as hereinafter set out and the undersigned individuals are authorized
to enter into this agreement on behalf of Lessor and Lessee.
NOW, THEREFORE, in consideration of the premises, and the mutual promises
contained herein, the parties hereto do hereby agree as follows:
1. AGENT(S). The duly authorized person(s) or entity/entities who shall have
the authority to act on behalf of the Lessor or Lessee, as the case may be,
in connection with all matters relating to this lease, are those initial
agents as are identified below:
For the Lessor:
President
North Carolina Technological Development Authority, Inc.
0 Xxxxx Xxxxx
Post Office Box 13169
Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000
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For the Lessee:
Xxxxxxx Xxxxxxxxx
LUNG Rx
2. LEASED PREMISES. Upon the terms, provisions, and conditions hereof, Lessor
does hereby let and lease unto Lessee and Lessee hereby takes and leases
from Lessor certain space in Durham County, North Carolina, more
particularly described as approximately 800 square feet of interior space
("Leased Premises") in the First Flight Venture Center, located at 0 Xxxxx
Xxxxx, Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("Building"), as shown
in a floor plan marked Exhibit "A", which is attached to and hereby made a
part of this Lease Agreement. The use and occupancy by Lessee of the Leased
Premises shall include the non-exclusive right to use the parking areas,
service roads, sidewalks, and other areas owned by the Lessor adjacent to
the Buildings, subject to reasonable restrictions on such use as may be
promulgated by Lessor.
3. TERM. The term of this Lease Agreement shall be for a period of six (6)
months commencing on the date first above written and ending at 11:50 p.m.
on December 31, 1997, unless otherwise terminated or extended as set forth
in this Lease Agreement. Upon the conclusion of the term hereof, unless
either party has delivered to the other party notice of non-extension at
least thirty (30) days prior to such conclusion of the term, such term
shall be automatically extended for a period of six (6) months, subject,
however, to a maximum term of this Lease Agreement of two (2) years from
the commencement date of this Lease Agreement.
4. USAGE. The Leased Premises may be used by the Lessee for (a) research and
development activities directly related to, and necessary for, Lessee's
business, and (b) general office use necessary for Lessee's business.
Lessee shall not use the Leased Premises or fail to maintain them in any
manner constituting a violation of any ordinance, statute or regulation, or
order of any governmental authority nor will Lessee maintain or permit any
nuisance to occur on the Leased Premises. Lessee shall use, maintain and
occupy the Leased Premises in a careful, safe, and proper manner, and shall
not commit waste thereon. Lessee shall not use the Leased Premises in a
manner so as to cause any fire or other hazard or impair the validity of
any policy of insurance now or hereafter taken out upon the Leased Premises
by Lessor, and if any such act or action on Lessee's part increases the
rate of premium of any policy of insurance (in addition to all other
remedies given to Lessor herein), Lessee shall pay to Lessor the amount by
which such rate or premium is increased by Lessee's conduct aforesaid.
5. RENTAL.
(a) Base Rental. As base rental for the Leased Premises, Lessee shall pay
to Lessor the sum of One thousand one hundred twenty one and 40/100
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(1,121.40) per month for the term and fraction of the term hereof. In
the event the term of this Lease Agreement is extended pursuant to the
provisions of Section 3 hereof, the base rental for each such six (6)
month extension of the term shall be one hundred five percent (105%)
of the base rental for the immediately preceding term (whether such
immediately preceding term be the initial term or an extension of the
initial term). The base rental per square foot of any additional space
brought under this Lease Agreement, whether by verbal or written
agreement or by occupancy thereof by Lessee, shall be equal to the
base rental per square foot of the space then under this Lease
Agreement, subject to adjustment in the manner provided herein. A pro
rate amount of the monthly base rental shall be due and payable at the
start of any partial month during the term hereof or if occupancy for
the permitted use shall occur prior to the commencement date hereof.
The monthly base rent shall be payable in advance on the first day of
each month during the term hereof.
(b) Other Provisions. Except as specifically provided in this Lease, all
rent and sums to be paid to Lessor under the Lease are to paid without
offset, abatement or deduction. Other remedies for nonpayment of rent
notwithstanding, if any monthly rental is not received by Lessor
within five (5) days of the date when due or if any other payment due
Lessor by Lessee is not received by Lessor on or before the fifth
(5th) day following the date it was due, a late charge of five percent
(5%) of such past due amount shall become due and payable in addition
to such amounts owned under this Lease.
6. SECURITY DEPOSITS. To assure adherence to the terms and conditions of this
Lease, Lessee has paid to Lessor a sum of $1,281.00 as a Security Deposit.
The Security Deposit shall be used for the payment of any uninsured damages
to the Leased Premises, exclusive of normal wear and tear, which occur
during the term of this Lease which are caused by or result from the
wrongful or negligent act or omission of the tenant. No interest shall be
paid on the Security Deposit. The balance of the Security Deposit will be
returned to the Lessee within thirty (30) days of the payment of all
amounts due under this lease agreement.
7. LESSEE PARTICIPATION IN PLANNING ACTIVITIES. As a condition of this Lease,
Lessee agrees to devote such time as may be reasonably requested during the
term of the Lease, to participating in Lessor's planning activities related
to the organization, provision of services and operation procedures of the
First Flight Venture Center. Lessee further agrees to participate in tenant
meetings which may from time to time be called by the management of the
First Flight Venture Center, it being agreed that reasonable notice, when
possible, for such meetings is the responsibility of management.
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8. REPORTING REQUIREMENTS. Lessee, as a company accessing First Flight Venture
Center services and facilities for a limited time during the high-growth
stage of development, will report to Lessor on a quarterly basis. Initial
report, due at the beginning of occupancy, will take the form of a business
plan including Lessee's current structure, personnel, product, market and
opportunity together with a pert chart outlining development and growth
expectations over a minimum two year period (including personnel and
facility needs). Subsequent reports will update and supplement the initial
report, and must include number of Lessee employees, grant and investment
revenue figures, sales revenue figures, and documentation and explanation
of significant changes in strategy for growth. Lessor agrees that reports
are confidential and information contained therein will be used only in an
aggregate form for purposes of measuring incubator performance and for the
purpose of assisting Lessee in achieving independence from the incubator
environment. Lessor may require, and Lessee agrees, to continue reporting
for up to 48 months after leaving occupancy at the First Flight Venture
Center.
9. LESSOR IMPROVEMENTS. Lessor shall, at the beginning of the Lease term, have
the Leased Premises and common areas in the Building in a condition
reasonably satisfactory to Lessee; including repairs, painting,
partitioning, remodeling, plumbing, and electrical wiring suitable for the
purpose for which the Leased Premises will be used by Lessee. By executing
this Lease Agreement Lessee acknowledges that Lessee has inspected the
Leased Premises and common areas in the Building and finds them to be in
condition satisfactory to Lessee with respect to repairs, painting,
partitioning, remodeling, plumbing, and electrical wiring.
10. ALTERATIONS. Lessee shall make no alterations or additions to the Leased
Premises without the prior written consent of Lessor. At the time such
consent is granted, the writing shall state whether Lessee may or shall
remove such alteration or addition or whether such alteration or addition
shall become the property of the Lessor. Lessee shall indemnify and save
harmless Lessor from all loss, cost or expense in connection with the
construction or installation of alterations or additions. In the event
Lessee is permitted or required to remove any such alterations or
additions, such removal shall be completed prior to the expiration of the
term of this Lease Agreement and any damage to the Leased Premises caused
by said removal shall be repaired by Lessee.
11. BUILDING SERVICES.
(a) Utility Infrastructure: For the Leased Premises and common areas in
the Building, Lessor shall provide 1) heating and cooling facilities,
2) existing electrical facilities, and 3) lighting fixtures and
sockets;
(b) Janitorial Service: Lessor shall provide janitor service, consisting
only of routine dusting, vacuum cleaning or dust-mopping of floors.
Lessor shall
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also provide for the disposal of routine office garbage and trash as
is reasonably created by the Lessee in the normal course of its
business;
(c) Common Area Access: Lessor shall furnish to Lessee, and its agents,
employees and invitees, subject to reasonable restrictions on the use
thereof as may be promulgated by Lessor, non-exclusive access to
common areas in the Building, including the main foyer, the lunch room
and kitchen, and toilet facilities adjacent to the common areas. By
the execution of this Lease Agreement, Lessee acknowledges that Lessee
has inspected the Leased Premises and common areas and finds the
Leased Premises and common areas to be adjacent with respect to the
recited equipment, facilities, and fixtures;
(d) Parking: Lessor shall provide to Lessee one (1) unassigned parking
space per employee of Lessee;
(e) Conference Rooms: Lessor shall provide to Lessee reasonable use of the
Building's conference room facilities on a first-scheduled,
first-served basis in accordance with the policies specified by
Lessor;
(f) Business Equipment Access: Lessor shall provide to Less use of, on a
reasonable per use charged basis as specified by Lessor, the
Building's business equipment, including facsimile machine, copier and
AV equipment on a first-scheduled, first-served basis in accordance
with the policies specified by Lessor;
(g) Receptionist Service: Lessor shall provide to Lessee, during normal
business hours, telephone answering and message service in accordance
with the policies and restrictions specified by Lessor;
(h) Laboratory Equipment: Lessor provides on an "as is" basis such
laboratory equipment as is currently in the lease space. Lessee
assumes responsibility for the maintenance and repair of equipment for
the duration of time that this lease remains in effect.
12. UTILITIES AND ENERGY. Lessor shall furnish heat and air-conditioning to the
Leased Premises to provide conditions required, in Lessor's judgment, for
comfortable occupancy of the Leased premises under normal business
operations during the usual seasons thereof. Air-conditioning will be
available daily from 8:30 a.m. to 5:00 p.m., weekends and holidays
excepted, during the usual season thereof. Whenever heat generating
machines or equipment are used in the Leased Premises which affect the air
temperature otherwise maintained by the air-conditioning system, Lessor
shall have the right to require Lessee to discontinue the use thereof
unless Lessee shall agree to reimburse Lessor for its cost of furnishing
and installing supplementary air-conditioning equipment for the Leased
Premises and to pay for the cost of the operation and maintenance of such
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equipment. Lessee shall give Lessor or its representative prompt written
(and, in the case of an emergency, oral) notice of any accidents to, or
defects in, any heating, air-conditioning, electrical or water system,
pipe, apparatus or equipment in the Building. Lessee shall not use any
method of heat or air-conditioning other than that approved by Lessor.
Lessor will provide after hours heat and air-conditioning upon Lessee's
request. Lessee must request such additional service 24 hours in advance in
such manner as is specified by Lessor, and the charges therefore will be on
an hourly basis and will be determined by Lessor.
13. RIGHT OF ENTRY. Lessor reserves and shall at all times have the right to
re-enter the Leased Premises to inspect the same, to supply any service to
be provided by Lessor to Lessee thereunder, to show the Leased Premises to
prospective tenants, to post notices of non-responsibility, and to alter,
improve or repair the Leased Premises and any portion of the Building
without abatement of rent, and may for that purpose, erect, use and
maintain scaffolding, pipes, conduits and other necessary structures in and
through the Leased Premises where required by the character of their work
to be performed, provided entrance to the Leased Premises shall not be
denied Lessee, and further provided that the business of Lessee shall not
be interfered with unreasonably. Lessee hereby waives any claim for damages
for any injury or inconvenience to or interference with Lessee's business,
any loss of occupancy or quiet enjoyment of the Leased Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Lessor
shall at all times have and retain a key with which the unlock all the
doors in, upon or about the Leased Premises, excluding Lessee's vaults and
safes or special security areas (which must be designated in advance by
Lessee, and approved in writing by Lessor) and Lessor shall have the right
to use any and all means which Lessor may deem necessary or proper to open
such doors in an emergency in order to obtain entry to any portion of the
Leased Premises. Any entry to the Leased Premises or portions thereof
obtained by Lessor by any such means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Leased Premises, or an eviction, actual or
constructive, of Lessee from the Leased Premises or any portions thereof.
Lessee shall permit Lessor (or its designees) to enter the Leased Premises
to erect, use, maintain, replace and repair pipes, cables, conduits,
plumbing, vents, and telephone, electric and other wires or the items in,
to and through the Leased Premises, as and to the extent that Lessor may
now or hereafter deem it necessary or appropriate for the proper operation
and maintenance of the Building or any other portion of the Leased
Premises. In the event Lessor needs access to any floor duct or duct in the
walls or ceiling, Lessor's liability for carpet or wall covering or ceiling
tile replacement shall be limited to replacement of the piece removed to
gain such access. All such work shall be done, so far as practicable, in
such manner as to minimize interference with Lessee's use of the Leased
Premises.
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14. MAINTENANCE AND REPAIRS. Lessor shall keep the Leased Premises, common
areas in the Building, and parking area and grounds adjacent thereto in
good repair and tenantable condition, to the end that all facilities are
kept in operative condition. Maintenance shall include, but not be limited
to, furnishing and replacing electrical light fixture ballasts, air
conditioning and ventilating equipment filter pads, if applicable, and
broken glass, pavement repair and snow and ice removal in parking areas;
and regular grounds maintenance. Lessor reserves the right to enter and
inspect the Leased Premises, at reasonable times, and to fulfill its
maintenance obligation and to make necessary repairs or improvements to the
Leased Premises and the Building.
15. TAXES AND ASSESSMENTS. Lessor shall, for each year during the term of this
Lease Agreement, pay all ad valorem taxes, assessments, and charges levied
or assessed upon the Building by any governmental body.
16. FIRE AND OTHER CASUALTY. If at any time during the term of this Lease
Agreement the Leased Premises shall be totally destroyed by fire or other
casualty; or if the Leased Premises or portion of the common area of
Building should be so damaged so that rebuilding cannot reasonably be
completed within one hundred twenty (120) working days, then this Lease
Agreement may be terminated at the option of Lessee or Lessor, and if the
damage or destruction was without fault of Lessee the rent shall be abated
for the unexpired portion of the Lease. In the event of partial destruction
or damage by fire or other casualty, without fault of Lessee, so as to
render the Leased Premises untenantable in whole or in part, there shall be
an apportionment of the said rent until damage has been repaired.
17. EMINENT DOMAIN. If the whole of the Leased Premises, or such portion
thereof which will make the Leased Premises untenantable for the purpose
herein leased, shall be condemned or acquired by any legally constituted
authority for any public use or purpose, then this Lease Agreement shall
terminate and the rent shall be abated for the unexpired portion of the
Lease.
18. INSURANCE.
(a) Lessee shall maintain, at its sole cost and expense, (i) general
liability insurance during the term of this lease Agreement, in which
the limits of public liability shall not be less than One Million
Dollars ($1,000,000.00), with limits of at least Fifty Thousand
Dollars ($50,000) single limit bodily injury for any number of persons
injured or killed in one occurrence and One Hundred Thousand Dollars
($100,000) property damage (or such higher amounts as Lessor shall
from time to time determine), and (ii) fire and lightning insurance,
extended coverage, vandalism and malicious mischief, theft and
mysterious disappearance endorsements, covering the contents of the
Leased Premises and all alterations, additions and
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leasehold improvements made by or for Lessee in the amount of their
full replacement value. All of such policies shall cover both Lessor
and Lessee, as their interest may appear, and all insurers thereon
shall agree not to cancel or change same without at least thirty (30)
days prior written notice to Lessor. A current certificate of Lessee's
insurers evidencing such insurance shall be furnished to Lessor no
later than thirty (30) days from the commencement date of this Lease,
and shall be updated by Lessee as appropriate t verify uninterrupted
coverage at all times during the duration of this Lease Agreement.
(b) Lessor shall maintain, at its sole cost and expense, fire and extended
coverage insurance as well as vandalism and malicious mischief
insurance on the Leased Premises and Building only, and will not be
required to protect Lessee's property on the Leased Premises in the
event of damage however caused. Lessor shall maintain, at its sole
cost and expense, general liability insurance during the term of this
lease Agreement, in which the limits of public liability shall not be
less than One Million Dollars ($1,000,000.00).
(c) Whenever (i) any loss, cost, damage or expense resulting from any
peril described in part (a)(ii) of this section is incurred by any
party to this Lease in connection with the Leased Premises, any part
or contents thereof, and (ii) such party is then covered in whole or
in part by insurance with respect to such loss, cost damage or
expense, then the party so insured hereby releases the other party
from any liability it may have on account of such loss, cost, damage
or expense to the extent of any amount recovered by reason of such
insurance and waives any right of subrogation which might otherwise
exist in or accrue to any person on account thereof, provided that
such release of liability and waiver of the right of subrogation shall
not be operative in any case where the effect thereof is to invalidate
such insurance coverage (or increase the cost thereof, unless the
other party reimburses the insured for any cost increase). If Lessee
fails to maintain in force any insurance required by this Lease to be
carried by it, then for purposes of this waiver of subrogation it
shall be deemed to have been fully insured and to have recovered the
entire amount of its loss.
19. INDEMNIFICATION. Lessee shall indemnify Lessor against and hold Lessor
harmless from any and all liability arising from or out of or in any manner
connected with Lessee's use or occupancy of the Leased Premises or the
operation of any business thereon, except as to any and all such liability
arising from or out of the acts or neglect of Lessor, its employees, agents
or representatives acting for or on behalf of Lessor. Lessor shall
indemnify Lessee against and hold Lessee harmless from and against any and
all liability arising from or out of or in any manner connected with any
property owned by Lessor other than the Leased Premises, except as to any
and all such liability arising from or out of the acts or
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neglect of Lessee, its employees, agents or representatives acting for or
on the behalf of Lessee.
20. ENVIRONMENTAL.
(a) Lessee shall not cause or permit any hazardous or toxic substances,
materials, or waste ("Hazardous Substances") to be used, generated,
stored or disposed of in, on or under, or transported to or from the
Leased Premises ("Hazardous Substances Activities") unless (i) such
Hazardous Substances are necessary for Lessee's business and (ii)
Lessee first obtains the written consent of Lessor. If these
conditions are satisfied, Lessee shall at all times and in all
respects comply with all local, state, and federal laws, ordinances,
regulations and orders relating to Hazardous Substances ("Hazardous
Substances Law").
(b) Lessee shall indemnify, defend (by counsel acceptable to Lessor),
protect, and hold Lessor harmless from and against forfeitures,
losses, costs (including clean-up costs) or expenses (including
attorney's fees, consultant's fees and expert's fees) for the death of
or injury to any person or damage to any property whatsoever, arising
from or caused in whole or in part, directly or indirectly, by (i) the
presence in, on, under, or about the Leased Premises of any Hazardous
Substances brought on the premises by Lessee; (ii) any discharge or
release in or from the Leased Premises of any Hazardous Substances
brought on the premises by Lessee; (iii) Lessee's use, storage,
transportation, generation, disposal, release or discharge of
Hazardous Substances to, in, on, under, about or from the Leased
Premises; or (iv) Lessee's failure to comply with any Hazardous
Substances Law. Lessee's obligations under this section shall survive
the expiration or earlier termination of the term of this Lease.
21. ASSIGNMENT AND SUBLETTING. Lessee shall not assign, pledge, mortgage or
otherwise encumber this Lease, or further sublet any part or all of the
Leased Premises, by operation of law or otherwise, without the prior
written approval by Lessor. Notwithstanding Lessor's consent to any of the
foregoing, Lessee shall remain liable to Lessor for the payment of rental
then due and thereafter to become due and the performance of all other
obligations of Lessee thereunder for the balance of the term hereof.
Lessor's consent to any of the foregoing shall not release or waive the
prohibition against them thereafter or constitute a consent to any other
assignment, pledge, mortgage, encumbrance, transfer or sublease. If this
Lease be assigned, or if the Leased Premises or any part thereof be
subleased or occupied by anybody other than Lessee, whether with or without
Lessor's consent, Lessor may collect from the assignee, sublessee or
occupant, any rental or other charges payable of Lessee under this Lease,
and apply the amount collected to the rental and other charges here
reserved, but such collection by Lessor shall not be deemed acceptance of
assignee, sublessee or occupant nor a
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release of Lessee from the performance by Lessor of this Lease. Lessor
shall be entitled to all profit received by Lessee as a result of any
assignment or subletting of this Lease. If Lessee is a corporation or
partnership, then any transfer of this Lease by merger, consolidation,
reorganization, liquidation or any change in the ownership of, or power to
vote, the majority of its outstanding voting stock or partnership interests
shall constitute an assignment of this Lease for the purposes of this
section and other relevant sections herein. Lessor may assign this Lease
without the consent to Lessee.
22. MISCELLANEOUS POLICIES/PROHIBITIONS. Lessee, its agents, employees and
invitees, shall comply with the following terms and conditions of tenancy
during the term of this Lease.:
(a) Smoking Prohibition: No smoking shall be allowed anywhere within or
about the Leased Premises or the Building, except in such areas as may
be designated at the sole discretion of Lessor.
(b) Proper Use: No animals, birds or other pets, and no bicycles, or other
vehicles shall be brought or kept in or about the Building,
temporarily or otherwise, except at such areas as Lessor may
designate. The Leased Premises shall not be used for cooking, lodging
purposes or for the storage of merchandise or other materials.
(c) Nuisance Prohibition: Lessee, its agents, employees and invitees,
shall at all times refrain from making loud, unseemly or improper
noises or sounds or vibrations in the Leased Premises or elsewhere in
the Building, and from in any other manner annoying, disturbing, or
interfering with other lessees or their employees and invitees.
(d) Freight and Package Delivery: Freight, business equipment, furniture,
merchandise, and other large or bulky articles shall be delivered to
and removed from the Building through such entrance, and in such
manner and at such times as may be designated by Lessor. All damage to
the Building or exterior property caused by the moving or carrying of
articles therein or thereon shall be paid for by Lessee. Lessor shall
not be responsible for damage to any property of Lessee delivered to
or left in or handled anywhere in the Building by any representative
of Lessor delivered to or left in or handled anywhere in the Building
by any representative of Lessor as an accommodation to Lessee, Lessor
being under no obligations to accept delivery of, or move or handle,
any property of Lessee.
(e) Recycling: Lessee shall establish and enforce a policy within his own
company for the recycling of plain white paper, assorted paper,
aluminum cans, magazines and newspapers, utilizing the recycling bins
provided by Lessor.
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23. DEFAULT AND REMEDIES.
(a) Default of Lessee. Failure to perform any act to be performed by
Lessee hereunder or to comply with any condition or covenant contained
herein shall be deemed a default by Lessee. In the event of Lessee's
default as provided above and the continuance of such a default after
ten (10) days written notice is given to Lessee by Lessor, which
notice shall state with specificity the nature of the default, such
notice not be necessary in the event of a default due to the
nonpayment of rent, Lessor may exercise all rights and remedies
available to a Lessor under North Carolina law, including without
limitation the following:
(i) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the Lease Premises to Lessor, and if Lessee
fails to surrender the Leased Premises, Lessor may, without
prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Leased
Premises, by picking or changing locks if necessary, and lock
out, expel, or remove Lessee and any other person who may be
occupying all or any part of the Leased Premises without being
liable for prosecution of any claim for damages. Lessee shall pay
Lessor on demand the amount of all loss and damage which Lessor
may suffer by reason of the termination of the Lease under this
subsection, whether through inability to relet the Leased
Premises on satisfactory terms or otherwise. Lessor shall not be
considered to have terminated this Lease unless written notice of
such termination shall have been delivered to Lessee;
(ii) Without terminating this Lease, enter upon and take possession of
the Leased Premises, by picking or changing locks if necessary,
and lock out, expel or remove Lessee and any other person who may
be occupying all or any part of the Leased Premises without being
liable for any claim for damages, and relet the Leased Premises
on behalf of Lessee and receive directly the rent by reason of
the reletting. Lessee shall pay Lessor on demand any deficiency
that may arise by reason of any reletting of the Leased Premises;
further, Lessee shall reimburse Lessor for any expenditures made
by it for remodeling or repairing in order to relet the Leased
Premises; or
(iii) Without terminating this Lease, enter upon the Leased Premises,
by picking or changing locks if necessary, without being liable
for prosecution of any claim for damages, and do whatever Lessee
is obligated to do under the terms of this Lease, with Lessee
remaining liable to Lessor for all amounts payable to Lessor by
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Lessee under this Lease. Lessee shall reimburse Lessor on demand
for any expenses which Lessor may incur in effecting compliance
with Lessee's obligations under this Lease; further, Lessee
agrees that Lessor shall not be liable for any damages resulting
to Lessee from effecting compliance with Lessee's obligations
under this subsection caused by the negligence of Lessor or
otherwise.
(d) Default of Lessor. Lessor shall be in default thereunder in the event
of the failure of Lessor to correct a condition or to cure a breach of
this Lease within a reasonable time of receiving written notice of the
condition or breach from Lessee. In the event of a default by Lessor
thereunder, Lessor's sole remedy shall be to recover of Lessor any
loss or damage suffered by Lessee which are a direct result of such
default.
(e) Costs and Expenses. Each party hereto shall be liable for and shall
pay any and all expenses, including reasonable attorneys fees,
incurred by the other party hereto in enforcing its rights thereunder
in connection with any default by the other party hereto of the terms,
covenants, and conditions contained in this Lease Agreement.
24. WAIVER. No waiver of any covenant or condition or the breach of any
covenant or condition of this Lease Agreement shall be taken to constitute
a waiver of any subsequent breach of such covenant or condition, nor
justify or authorize a non-observance on any other occasion of such
covenant or condition, nor shall the acceptance of rent by Lessor at any
time when Lessee is in default of any covenant or condition hereof be
construed as a waiver of such default or Lessor's right to terminate this
Lease Agreement on account of such default.
25. SURRENDER. Upon the expiration or other termination of this Lease
Agreement, Lessee shall quit and surrender to Lessor the Leased Premises,
together with all other property affixed to the Leased Premises (with the
exception of trade fixtures), broom clean, and in good order and condition,
ordinary wear and tear and damage by the elements, fire or other
unavoidable casualty excepted. Any damage to the Leased Premises by removal
of any property of Lessee shall be promptly repaired by Lessee to the
satisfaction of Lessor. Lessee shall remove all property of Lessee, and
failing to do so, Lessor may cause all of said property to be removed at
the expense of Lessee, and Lessee shall pay all costs and expenses thereby
incurred. Lessee's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Lease Agreement.
26. HOLDOVER. Lessee shall pay Lessor for each day Lessee retains possession of
the Leased Premises or any part thereof after termination hereof, by lapse
of time or otherwise, at two (2) times the daily fixed rental for the last
period prior to the date of such termination, and also pay all damages
sustained by Lessor by reason of such retention, or, if Lessor gives
written notice to Lessee of Lessor's election
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thereof, such holding over shall constitute an extension of this Lease for
a period from month to month, on the terms and conditions of this Lease.
This provision shall not be deemed to waive Lessor's rights to re-entry or
any other right thereunder or at law.
27. COVENANT OF QUIET ENJOYMENT. Lessor agrees that so long as Lessee shall not
be in default as provided herein, Lessee shall have the peaceable and quiet
enjoyment of possession of the Leased Premises without any manner of
hindrance from Lessor or any persons lawfully claiming under Lessor.
28. LESSEE'S RIGHT TO TERMINATE. Lessor acknowledges that Lessee may terminate
this lease at any time with thirty (30) days written notice to Lessor. In
the event of termination in this manner, Lessee shall pay Lessor all
amounts due for service fees and rental fees through the entire thirty day
period regardless of whether or not leased premises are surrendered before
the thirty day period expires.
29. LESSOR'S RIGHT TO RENEW OR TERMINATE. This Lease Agreement will
automatically renew for six month intervals, at Lessor's sole discretion,
for up to a two-year period of total occupancy, at which time this
agreement will automatically renew on a month to month basis. In the event
that Lessor chooses not to renew, thirty days written notice of nonrenewal
will be provided to Lessee by Lessor. All other terms and conditions of
this Agreement will remain in full effect at all times during renewal
periods.
30. NOTICES. All notices herein provided to be given, or which may be given, by
either party to the other, shall be deemed to have been fully given when
made in writing and deposited in the United States mail, certified, postage
prepaid, and addressed as follows:
If to Lessor, to:
North Carolina Technological Development Authority, Inc.
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
If to Lessee, to:
Xxxxxxx Xxxxxxxxx
LUNG Rx
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Nothing herein contained shall preclude the giving of such notice by
personal service. The address to which notices shall be mailed as foresaid
to either party may be changed by written notice.
31. ENTIRE AGREEMENT. This Agreement is the sole and total agreement between
the parties with respect to the subject matter hereof, and no agreement,
understanding,
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or operating procedure shall be binding upon the parties with respect to
the Leased Premises unless contained herein, expressly referenced herein,
or made applicable by reason of State law, policy, or regulation.
IN TESTIMONY WHEREOF this Lease Agreement has been executed by the parties
hereto, in duplicate originals, as of the date first above written.
LESSOR: North Carolina Technological Development Authority, Inc.
By: /s/ Xxxx X. Xxxxx
---------------------
Xxxx Xxxxx
Facility Manager
(Corporate Seal)
LESSOR: North Carolina Technological Development Authority, Inc.
By: /s/ Xxxx Xxxxxxxxx
----------------------
Xxxx Xxxxxxxxx, President
LESSEE: LUNG Rx
By: /s/ Xxxxx X. Xxxx
---------------------
President
By: /s/ Xxxxxxx Xxxxxxxxx, Xx., 4 June '97 (Corporate Seal)
----------------------------
Secretary
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