EXHIBIT 10.8
LEASE
FOR
ROYAL CENTER I
LANDLORD: IMPERIAL CENTER LIMITED PARTNERSHIP,
A NORTH CAROLINA LIMITED PARTNERSHIP
TENANT: INSPIRE PHARMACEUTICALS, INC.
STATE OF NORTH CAROLINA: LEASE
-----
COUNTY OF Durham:
THIS LEASE, made as of this 17 day of May 1995, by and between Imperial
Center, Limited Partnership, a North Carolina limited partnership hereinafter
"Landlord" and Inspire Pharmaceuticals, Inc. hereinafter (whether one or more)
"Tenant".
WITNESSETH:
Upon the terms and conditions hereinafter set forth, the Landlord leases to
Tenant and tenant leases from Landlord property hereinafter defined and referred
to as the Premises, all as follows:
1. PREMISES. The property hereby leased to Tenant is:
That area shown on Exhibit A-1 (Space Plan) consisting
of approximately 6,495 rentable square feet and
located in Royal Center I (the "Building") with an
address at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, the above-described leased property
being herein referred to as the Premises which
together with common areas both for the Building and
the Imperial Center Business Park is also shown
on Exhibit A-4 (Business Park Site Plan).
2. TERM. The term of this Lease shall be for a period of five (5) years
commencing the first day of June, 1995, and ending on the last day of May, 2000.
If for any reason whatsoever, Landlord cannot deliver possession of the Premises
as of the foregoing commencement date, this Lease shall not be void or voidable;
no obligation of Tenant shall be affected thereby; and neither Landlord nor
Landlord's agent shall be liable to Tenant for any loss or damage resulting
therefrom; provided, however, that in such event, the commencement and
expiration dates of this Lease and all other dates affected thereby may be
revised by written notice from Landlord to Tenant within ninety (90) days of the
commencement date specified above to conform all affected dates under this Lease
to the date of Landlord's delivery of possession to the Tenant. If with
Landlord's prior written approval, Tenant occupies the Premises prior to the
commencement date specified above, such occupancy by Tenant shall be subject to
all terms and conditions of this Lease, shall not advance the expiration date,
and Tenant shall pay pro-rated rent for such period of occupancy at the initial
monthly rate set forth below.
3. RENT. All rent payable by Tenant shall be without previous demand
therefor by Landlord, and without setoff or deduction. The minimum rent
("Minimum Rent") for the term shall be the sum of three hundred twenty-four
thousand six hundred fifty-two and 34/100 Dollars ($324,652.34), which rent
shall be payable in advance in equal monthly installments as follows:
MONTHLY ANNUAL
MONTHS RATE PER RENTABLE S.F. RENT RENT
------ ------------------------- ------------- -----------
1-2* $10.26 $1,282.50
(Commencing 6/1/95)
3-12 $10.26 $5,553.23 $ 58,097.30
13-60 $10.26 $5,553.23 $ 66,638.76
Total Minimum Rent: $324,652.34
*Rental for months 1-2 shall be on the existing office area only, an area
of approximately 1,500 rentable square feet. Tenant to occupy the
remainder of space of approximately 4,995 rentable square feet, which
comprises the total rentable area of 6,495 square feet on August 1, 1995.
Each monthly installment of rent shall be payable on or before the first day of
each calendar month during the term of this Lease, unless the term commences
other than on the first day of the month, in which event rent at the above rate
pro-rated until the end of that month shall be due and payable on the
commencement date. In addition to such remedies as may be provided under the
default provisions of this Lease, Landlord shall be entitled to a late
1
charge of five percent (5%) of the amount of the monthly rent if not received
when due, and a charge of Twenty Dollars ($20.00) or the maximum amount allowed
by law, whichever is less, for any check given by Tenant not paid when first
presented by Landlord.
4. ADDITIONAL RENT. In addition to rent, Tenant shall pay to Landlord,
at the same time as monthly installment payments to rent are made, a sum which
represents Tenant's proportionate share of insurance costs, taxes and operating
expense charges owed by Tenant pursuant to the terms of Sections 18, 19 and 20
of this Lease, respectively. The actual amount of additional rent due from
Tenant shall be adjusted on an annual basis as and when the actual amount of
Tenant's proportionate share of insurance costs, taxes and operating expenses
charges are determined, and if Tenant has under paid, it shall, within thirty
(30) days of notice from Landlord pay the shortfall as a lump sum payment, and
if Tenant has overpaid, Landlord shall pay in a lump sum payment, such overage
within thirty (30) days. Tenant shall have the right of reasonable access to
Landlord's books and records relative to such operating expense and shall have
the right to audit the same. In the event that such an audit reveals a
discrepancy of greater than ten percent (10%), which has resulted in an
overpayment by Tenant in the amount which should have been charged by Landlord,
then Landlord shall pay all costs associated with such audit.
4. LANDLORD'S LIEN. Intentionally deleted.
5. USE. The premises may be used for office, warehouse, storage, and
light assembly uses as is necessary for Tenant's business and for research,
development and medical purposes consistent with the pharmaceutical industry and
for no other purpose without Landlord's written consent first had and obtained.
The Tenant shall not use or occupy nor permit the Premises to be used or
occupied, nor do or permit anything to be done in or on the Premises, in a
manner which may (a) make void or voidable any insurance in force with respect
thereto; (b) result in any increase in the premiums charged for warehouse
insurance or cause Landlord to be unable to obtain at regular rates fire or
other insurance required to be maintained; (c) cause structural damage to the
building, the Premises or any part thereof; or (d) constitute a public or
private nuisance; or (e) otherwise violate any present or future law, ordinance,
rule or requirement of any public authority, including, without limitation, any
law, ordinance, rule or requirement concerning or relating to Tenant's use,
occupancy or alteration of the Premises. If as a result of any act or neglect of
Tenant, its employees, agents, representatives, clients or visitors, or change
in the manner in which Tenant's business or operations are conducted at the
Premises, any insurance rate shall be increased over the existing rate and
assessed against Landlord, then and in that event, Tenant shall pay to Landlord
on demand the amount of such increase as additional rent.
7. PARKING AND COMMON AREAS. For as long as Tenant affirmatively
complies with the terms of this Lease, Landlord grants to Tenant, its employees
and invitees, a non exclusive right to use during the term of this Lease, but
subject to such rules and regulations as Landlord may enact in accordance with
the terms hereof, the common areas shown on Exhibit A-2 (Site Plan) and which
areas are or shall be designated by Landlord and are acknowledged to be for use
of such persons along with others similarly entitled, for parking, and for
ingress and egress between the Premises and other portions of the common areas
as shown on Exhibit A-2, which may include adjoining streets, sidewalks, and
highways. Landlord represents that the parking facilities at the Building are at
a ratio of 2.8 parking spaces per 1,000 square feet of space (127 spaces). Not
less than 35 spaces shall be made available for Tenant's use. Such spaces
include striping spaces directly behind the building unless prohibited by
applicable laws or traffic patterns. The 35 spaces mentioned above are available
only if tenant occupies 9,775 rentable square feet. If Tenant finds that parking
serving its reasonable needs are insufficient, Landlord will use its best
efforts to provide additional space adjacent to the building. Tenant's employees
shall park only in areas designated from time to time by Landlord, and not in
any other parking area. If Landlord wishes to move Tenant's employees' parking
areas, such new areas shall be reasonably satisfactory to Tenant.
Three(3)"visitor" spaces will be provided adjacent to Inspire Pharmaceutical,
Inc.'s main entrance. In no event shall the Landlord be responsible for
patrolling the use of the "visitor" spaces provided. Common areas include,
without limitation, parking areas and entrances and exits thereto, driveways and
truck serviceways, sidewalks, landscaped areas, business park entrance areas and
other areas and facilities provided for the common or joint use and benefit of
occupants of the Building and others, their respective employees, agents,
representatives, customers and invitees. Landlord reserves the right, from time
to time, to reasonably alter the common areas, to exercise control and
management of the common areas and to establish, modify, change and enforce such
reasonable rules and regulations as Landlord in its discretion may deem
desirable for the management of the Building, the business park, the common
areas or any part thereof. In using any part of the common areas, Tenant shall
not permit anything which may impede the free flow of traffic through
2
such common areas, endanger persons or property or encroach on the loading or
unloading, service and parking areas of any other tenant. Rules and Regulations
which apply in part to Tenant's use of the common areas are set forth in Exhibit
C.
8. UTILITIES. Tenant shall procure for its own account and shall pay all
charges for water, telephone, electricity, gas, sewage, and other utilities used
by Tenant at or in the Premises, and Landlord agrees at all times to provide
Tenant with access to such utilities for the purpose of Tenant maintenance,
repair or replacement of such facilities or systems. Tenant shall be
responsible for separate meters for all utilities used at or in the Premises.
To the extent that any service or utility used by Tenant at or in the Premises
is not separately metered, Tenant agrees to pay as additional rent and as a
monthly charge its "pro rata share" of the charges due for such service or
utility, unless otherwise agreed in writing by Landlord, Tenant and any other
affected tenant. Tenant's "pro-rata share" shall be determined in accordance
with the terms of Section 18 for calculating the same, except that the
denominator for the computation shall be the square footage of all premises
affected or served by the particular meter.
9. TENANT REPAIRS. Tenant shall keep the non-structural components of
the Premises, together with all systems, fixtures or equipment therein or
appurtenant thereto, including, without limitation, interior surfaces, flooring,
wiring, plumbing, heating and air conditioning equipment, trade fixtures,
loading area components (including, without limitation, overhead doors, bumpers,
seals and levelers) and other facilities, systems or equipment, whether or not
originally installed by Landlord or Tenant in good condition and repair. Tenant
shall be responsibility for maintenance and replacement of all broken plate
glass and windows (unless breakage or damage results from settling of the
building or faulty initial construction undertaken by Landlord) and of all
lights and ballasts. Tenant shall maintain all lighting serving the Premises in
good working order at all times during the term of this Lease. In connection
with the day-to-day maintenance and repair of the heating and air conditioning
systems and equipment at the Premises, Tenant agrees to enter into and maintain
(for the term of this Lease) a maintenance contract with a reputable company
offering maintenance and repair services acceptable to Landlord, this contract
to be subject to the specifications set forth in Exhibit "D". Tenant shall
provide Landlord with satisfactory evidence that it has entered into and
maintained the aforesaid maintenance contract upon Landlord's request therefor.
If, after written notice from Landlord, Tenant fails to repair or maintain any
component, system, fixture or facility at the Premises which Tenant is obligated
to repair or maintain, then Landlord may, at Landlord's option, repair or
maintain the same, and Tenant shall, upon demand by Landlord, reimburse Landlord
forthwith for the total costs of such repairs.
10. LANDLORD REPAIRS. The Landlord shall be responsible for maintenance
of the roof, downspouts, gutters, foundation and utility lines located outside
the Building and structural walls of the Premises. As used herein, the term
"wall" shall not include doors, windows or other components of the Premises
which are not load bearing. There shall be no allowance to Tenant for a
diminution of rentals value and no liability on the part of Landlord for
inconvenience, annoyance or injury to business arising from Landlord or others
making any construction or repair to the Premises, the Building, the common
areas or an adjoining premises, and no liability on the part of Landlord for
failure of the Landlord or others, to make any repairs, alterations, additions
or improvements in or to any portion of the Premises, the Building or common
areas except to the extent caused by Landlord's negligence. Landlord shall not
be liable to Tenant for any damage caused to Tenant and its property due to the
Premises or the Building, or any part or appurtenance thereof, being improperly
constructed or being or becoming out of repair, or arising from the leaking of a
pipe, facility or system for gas, water, sewage, steam, electricity or other
utility. Tenant shall immediately report to Landlord any defective condition in
or about the Premises known to Tenant, and if such defect is not so reported and
such failure results in other damage, Tenant shall be liable for the same.
Regardless of any obligation otherwise imposed upon Landlord, Tenant shall pay
the cost of any repairs or damage resulting from the negligence or the unlawful
or willful acts of its employees, representatives or visitors. If, after a 60-
day period of time after written notice from Tenant, Landlord fails to make any
repair or maintain any facility at the Premises which Landlord is obligated to
repair or maintain, then Tenant may, at Tenant's option, repair or maintain the
same, and Tenant shall be entitled to deduct the cost of such repair or
maintenance from the rental obligations hereunder.
11. SIGNS AND ADVERTISING; USE OF NAME. Without first obtaining the prior
approval of Landlord, not to be unreasonably withheld, (and after submitting
such design specifications as Landlord may require), Tenant shall not permit the
installation, painting and display of any sign, plaque, lettering or advertising
material of any kind on or near the exterior of the Premises, or in the interior
thereof that will be visible from the exterior. Any such installation of a sign
or other advertising by Tenant shall be
3
installed in compliance with applicable law, shall be maintained by Tenant at
its sole cost and expense and shall be removed by Tenant at the expiration or
sooner termination of this Lease, whereupon Tenant shall repair any damage
caused to the Premises or Building by such removal. Tenant shall keep all
approved signage and other material in good working order clearly illuminated
during business hours. Tenant shall not have any property right or interest in
any name or distinctive designation which may become associated with the
Building or the common areas of which the Building may be a part. Landlord
shall retain all property rights in, and the exclusive right of use of, such
name or designation.
12. IMPROVEMENTS. Tenant agrees to accept the Premises in the condition
existing as of the date of this Lease. Landlord represents to the best of its
knowledge, that (i) it has no knowledge of any material defect at or to the
Premises, (ii) that the heating, ventilation and air-conditioning system is
operating properly as of the date hereof, and (iii) that the Premises are in
compliance with all applicable codes as of the date of the Commencement of the
Term of this Lease and that the space is habitable for the purposes intended for
Tenant, (iv) that the exterior of the Premises (including the parking area and
sidewalks are in compliance with the Americans With Disabilities Act. If there
are any initial changes to be made by Landlord or Tenant (with Landlord's prior
written approval), such changes, together with the estimated and allocated costs
for such changes, shall be set forth in Exhibit B, Up-fit Improvements, to be
initialed by both Landlord and Tenant. Unless expressly stated in Exhibit B to
the contrary, Tenant shall be responsible for the cost of the Up-fit
improvements and agrees to pay Landlord or its designee a charge of ten thousand
and No/100 Dollars ($10,000.00) for construction consulting services, including,
without limitation, the reviewing of plans and specifications, and the
inspecting and coordinating of construction. This charge is payable not later
than thirty (30) days after completion of the Up-fit Improvements. Landlord or
Landlord's agents have made no representations or promises with respect to the
Premises or the Building except as expressly set forth herein. The taking of
possession of the Premises by Tenant shall be conclusive evidence as against
Tenant, that Tenant accepts the same "as is" and "where is" and that the
Premises and Building were in good condition at the time when possession was
taken by Tenant. Landlord may at any time construct additional buildings or
improvements in any part of the common areas, so long as the same does not
materially interfere with Tenant's use and operation at the Premises, and may
remodel or remove the Building or any existing building in any part of the
common areas. Any sidewall of the Premises may be used by Landlord as a "party
wall" for other buildings or improvements. However, in connection with
Landlord's construction of any additional buildings or improvements, Landlord
shall not unreasonably interfere with Tenant's use and occupancy of the Premises
or impair Tenant's rights under this Lease. For any improvements or alterations
made at the Premises, Tenant shall have the right to select and hire its own
contractor, provided that Landlord reasonably approve said contractor and all
plans and specifications for such improvements and alterations. For minor
future improvements, there will be no construction management fee; for
significant improvements made by Tenant, the construction management fee will be
negotiated.
13. FIXTURES AND INTERIOR ALTERATIONS. The Tenant, with Landlord's prior
written consent, not to be unreasonably withheld, but at Tenant's own expense,
may from time to time during the term of this Lease make interior alterations in
and to the Premises which it may deem necessary or desirable providing that in
no case may it affect the structural integrity of the Premises or the Building.
Any such work shall be done in a good workmanlike manner and in accordance with
applicable law and shall not result in any claim or lien against Landlord or its
property. All permanent improvements or alterations shall belong to the
Landlord and become a part of the Premises upon the expiration or sooner
termination of this Lease, unless Landlordrequests the Tenant to remove such
improvements or alterations at Tenant's sole expense, whereupon Tenant shall
also cause to be repaired any damage to the Premises resulting from the removal.
Tenant may construct or install in the Premises, all racks, counters, shelves,
mirrors, chairs, and other trade fixtures and equipment in accordance with
applicable law as may be necessary or convenient for Tenant's business, which
racks, counters, shelves, mirrors, chairs, and other trade fixtures and
equipment shall at all times be and remain the property of the Tenant, and if
not then in default hereunder, the Tenant shall have the right to remove all or
any part of the same from said Premises at any time prior to the expiration or
sooner termination of this Lease, provided nevertheless that Tenant shall repair
any damage to the Premises resulting from installation or removal. The parties
agree that Tenant shall be compensated for the residual value of personal
property and fixtures of Tenant remaining in the Premises after the expiration
of the term (only if Landlord, at its sole discretion elects to have personal
property or fixtures remain in the space), to the extent that Landlord benefits
from the value of such personal property and fixtures in the future leasing of
the Premises. Tenant and Landlord shall, during the Notice period, negotiate in
good faith.
4
14. LIENS. Tenant shall keep the Premises and the Building free from any
liens arising out of any work performed, materials furnished or obligations
incurred by or on behalf of Tenant, and Tenant hereby agrees to indemnify and
hold Landlord, its agents, employees, contractors, officers, directors, partners
and shareholders harmless from any and all liability, cost or expense for such
liens. Tenant shall cause any such lien imposed to be released of record by
payment or bonding upon terms acceptable to Landlord within thirty (30) days
after the earlier of the imposition of the lien or a written request by Landlord
therefor. If Tenant fails to remove any lien within the prescribed thirty (30)
day period, then Landlord may do so at Tenant's expense, including costs and
attorneys' fees, which expense shall be due as additional rent hereunder.
15. INDEMNIFICATION. Tenant shall indemnify and hold harmless Landlord,
its agents, representatives, successors or assigns, from and against any and all
losses, damages, liabilities, claims, penalties, costs or expenses (including
attorney's fees), whether caused by Tenant or by its agents, servants,
employees, independent contractors or licensees, occasioned by, arising or
resulting from or growing out of (a) Tenant's use or occupancy of the Premises,
or from the conduct of Tenant's business, or from any activity, work or things
done, permitted or suffered by Tenant in or about the Premises; (b) the breach
or default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease or arising from any act or omission of the Tenant;
or (c) any alleged or actual violation of any Environmental Law (as defined
below), any unsafe or improper use or storage of any Hazardous Substance (as
defined below) or any condition created by or arising therefrom including any
actual or threatened pollution or contamination at or about the Premises or the
Building, whether or not due to negligence, an omission or a willful act.
The indemnification provisions contained herein shall not be deemed to be
limited by the limits of any insurance policies required under this Lease and
shall survive the expiration or sooner termination of this Lease. Tenant shall
defend any suit, action or proceeding commenced or brought against Landlord in
connection with any indemnity or obligation of Tenant contained in this Section
regardless of any alleged fault or cause and Tenant shall employ legal counsel
reasonably satisfactory to Landlord to defend such suits, actions or
proceedings. Tenant shall deliver to Landlord copies of the documents served in
any such suit, action or proceeding and, whenever requested by Landlord, shall
advise as to the status of such suit, action or proceeding. If Tenant fails to
defend diligently any such suit, action or proceeding, or if Landlord elects to
defend by written notice to Tenant at any time, Landlord shall have the right
(but not the obligation) to defend the same at Tenant's expense. Tenant shall
not settle any such suit, action or proceeding without Landlord's prior written
consent. Tenant shall give timely notice of such suit, action or proceeding and
the claims thereof to Landlord and each insurer issuing an insurance policy
required under this Lease.
16. TENANT'S COMPLIANCE; INSURANCE REQUIREMENTS; WAIVER OF SUBROGATION.
Tenant shall comply with all applicable laws, ordinances and regulations
affecting the Premises, including the Rules and Regulations set forth in Exhibit
C and any other rules for tenants as may be developed from time to time by
Landlord and delivered to Tenant or posted on the Premises. Tenant shall
maintain and care for its personal property and trade fixtures located in the
Premises, insure such personal property and fixtures in all respects, and shall
neither have nor make any claim against Landlord for any loss or damage to the
same, unless caused by negligence of the Landlord. Throughout the term of this
Lease, Tenant, at its sole cost and expense, shall keep or cause to be kept for
the mutual benefit of Landlord and Tenant the following insurance: (a)
commercial general liability insurance naming the Landlord as an additional
insured against any and all claims for bodily injury and property damage
occurring in or about the Premises arising out of Tenant's use and occupancy of
the Premises, such insurance to have a combined single limit coverage of not
less than $1,000,000 per occurrence with a $2,000,000 aggregate limit and excess
umbrella liability insurance in the amount of $2,000,000 (If the Tenant has
other locations that it owns or leases, the policy shall include an aggregate
limit per location endorsement) and such insurance to be primary and non-
contributing to any insurance available to Landlord and Landlord's insurance
shall be in excess thereto, and in no event shall the limits of such insurance
be considered as limiting the liability of Tenant under this Lease; (b) personal
property insurance insuring all equipment, trade fixtures, inventory, fixtures
and personal property located on or in the Premises for perils covered by the
causes of loss--special form (all risk), together with coverage for flood,
earthquake and boiler and machinery (if applicable), such insurance to be
written on a replacement cost basis in an amount equal to one hundred percent
(100%) of the full replacement value of the aggregate of the forgoing property;
(c) workers' compensation insurance in accordance with statutory law and
employers' liability insurance with a limit of not less than $100,000 per
employee and $500,000 per occurrence; and (d) such other insurance as Landlord
deems necessary and prudent or required by Landlord's beneficiaries or
mortgagees of any deed of
5
trust or mortgage encumbering the Premises. The policies required to be
maintained by Tenant shall be with companies rated AX or better in the most
current issue of Best's Insurance Reports. Insurers shall be licensed to do
business in the State of North Carolina and domiciled in the United States of
America. Any deductible amounts under any insurance policies required hereunder
shall not exceed $1,000. Certificates of insurance (or certified copies of the
policies if required by Landlord) shall be delivered to Landlord prior to the
commencement date and thereafter at least thirty (30) days prior to the
expiration date of the old policy. Tenant shall have the right to provide
insurance coverage which it is obligated to carry pursuant to the terms hereof
in a blanket policy, provided such blanket policy expressly affords coverage to
the Premises and to Landlord directly as required by this Lease. Each policy of
insurance shall provide notification to Landlord at least thirty (30) days prior
to any cancellation or modification resulting in a reduction of insurance
coverage. Neither Tenant, nor any person claiming through Tenant on Tenant's
behalf, shall have any claim, right of action of right or subrogation against
Landlord for any loss or damage caused by casualty at or concerning the
Premises, or to Tenant's contents, furniture, furnishings, equipment, fixture or
other property at or in the Premises, whether such casualty arose from any act,
fault or negligence of Landlord, its agents, representatives, employees, or
otherwise. All policies of insurance carried or maintained by Tenant pursuant
to this Lease shall contain a provision whereby the insurer waives all rights of
subrogation against the Landlord.
17. CASUALTY DAMAGE. If the Premises, or any part thereof, shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Premises shall be so damaged by fire or other
casualty that substantial alteration or reconstruction of the Premises shall, in
Landlord's sole opinion, be required (whether or not the Premises shall have
been damaged by such fire or other casualty), Landlord may, at its option,
terminate this Lease and the term and estate hereby granted, by notifying Tenant
in writing of such termination within sixty (60) days after the date of damage,
in which event the rent shall be abated as of the date of damage. If Landlord
does not elect to terminate this Lease, Landlord shall within ninety (90) days
after the date of such damage commence to repair and restore the Premises and
shall proceed to restore the Premises (except that Landlord shall not be
responsible for delays beyond its control) to substantially the same condition
in which it was immediately prior to the happening of the casualty, except that
Landlord shall not be required to rebuild, repair, or replace any part of
Tenant's furniture, furnishings, fixtures or equipment removable by Tenant, and
such work shall not in any event exceed the scope of the work done by Landlord
in originally constructing the Premises nor shall Landlord in any event be
required to spend for such work an amount in excess of the insurance proceeds
actually received by Landlord as a result of the fire or other casualty. For the
period of restoration, rent shall xxxxx as of the date of damage, unless Tenant
is able to continue its occupancy of the Premises during restoration whereupon
rent shall be adjusted and prorated in the proportion which the area of unusable
lease space bears to the total Premises. In any event, Landlord shall not be
liable for any inconvenience or annoyance to Tenant, injury to the business of
the Tenant, loss of use of any part of the Premises by the Tenant or loss of
Tenant's personal property resulting in any way from such damage or the repair
thereof. If the Premises or any other portion of the Building are damaged by
fire or other casualty resulting from the omission, fault or negligence of
Tenant or any of Tenant's agents, employees, or invitees, rent due hereunder
shall not be abated or diminished during the repair of such damage and Tenant
shall be liable to Landlord without prejudice to subrogation rights of
Landlord's insurer for the cost and expense of the repair and restoration of the
Premises and Building caused thereby to the extent such costs and expense is not
covered by insurance proceeds.
18. PASS THROUGH--PRORATED INSURANCE COSTS. For the term of this Lease,
Landlord intends to keep the Building containing the Premises insured against
loss or damage by fire with extended coverage endorsement in an amount
sufficient to prevent the Landlord from becoming a co-insurer under the terms of
applicable policies, but, in any event, in an amount not less than ninety (90%)
percent of the full insurable value of the Building as determined from time to
time. Tenant agrees to pay Landlord in advance monthly as additional rent its
"pro rata share" (as defined below) of the estimated premiums and costs of such
Landlord insurance throughout the term of this Lease, and any renewals or
extensions hereof. Tenant's "pro rata share" of such insurance costs shall mean
that percentage found by dividing the agreed to rentable square footage of the
Premises by the agreed to rentable square footage of the Building(s) (in which
the Premises is located) subject of the insurance. In this instance, the "pro
rata share" computation is as follows: 6,495 rentable square feet of the
Premises divided by 41,094 rentable square feet of the Building equals 15.8%
This computed monthly charge estimated by Landlord shall be paid by Tenant until
such time when the charge shall be adjusted to
6
reflect actual insurance costs for the year. If the reconciliation of the
charges shows a deficiency, such deficiency shall be paid by Tenant to Landlord
upon demand; if it shows a credit, the credit shall be refunded by Landlord to
Tenant within thirty (30) days.
19. PASS THROUGH--PRORATED TAXES. Tenant shall pay Landlord in advance
monthly as additional rent its "pro rata share" (as determined in accordance
with the terms of Section 18 hereof) of any use and/or occupancy tax imposed on
rents collected by Landlord (other than City, State or Federal Income Tax) or
any tax on rents in lieu of ad valorem taxes, notwithstanding that any such tax
may be levied or assessed against the Landlord. Tenant further agrees to pay
Landlord its "pro rata share" (as determined in accordance with the terms of
Section 18) of ad valorem or any other property tax imposed upon the Building(s)
(of which the Premises is a part) subject to the tax, regardless of the taxing
authority or authorities levying the same. Furthermore, Tenant shall make timely
payments of all ad valorem taxes and assessments made against Tenant's stock of
merchandise, furniture, furnishings, trade fixtures, equipment, supplies and
other property located on or used in connection with the Premises and of all
privilege and business licenses, taxes and similar charges for which Tenant may
be responsible. If the assessed value of the Building in which the Premises are
located is increased by a taxing authority because of alterations or
modifications to the Building made at Tenant's request or made by Tenant, then
the additional taxes attributable to such increase in valuation shall be the
sole responsibility of Tenant, and shall be included monthly as additional rent
to be paid by Tenant.
20. PASS THROUGH--OPERATING EXPENSE CHARGES. Landlord will operate and
maintain the common areas of the Building and business park, in excellent
condition consistent with a first class business park operations and related
areas and facilities referred to in Section 7 above, all as shown in Exhibit A-2
(Site Plan). For the term of this Lease or any extension hereof, Tenant shall
pay Landlord as additional rent a minimum sum as a common areas operating
expense charge equal to seventy-four cents ($.74) per square foot for each
rentable square foot of the Premises, per annum, namely the sum of four thousand
eight hundred six and 30/100 Dollars ($4,806.30) which shall be due and payable
in monthly installments of four hundred and 52/100 Dollars ($400.52) each, in
advance as rent is due. In the event that the actual operating expenses for the
common areas as prorated shall exceed the minimum sum shown above, Tenant shall
pay its "pro rata share" (as determined in accordance with the terms of Section
18 or if with respect to an operating expense concerning the business park
common areas, then a "business park amenities pro rata share" determined from a
percentage found by dividing the agreed to rentable square footage of the
Premises by the rentable square footage of all benefiting buildings within the
business park) of any such increase, as a monthly charge in advance as rent is
due. As used herein, the term "operating expense" shall mean and include all
operating costs concerning the operation or maintenance of the common areas as
determined by standard accounting practices and shall include by way of
illustration, but not limited to: property management fees, ad valorem real and
personal property taxes, legal fees and other costs incurred in connection with
protesting tax assessment, hazard and liability insurance premiums, common area
utilities, common area maintenance services, common area facilities, business
park amenities, landscaping, snow removal, asphalt and pavement repair, labor,
materials, supplies, equipment and tools, permits, licenses and inspection fees.
The term "operating expense" shall not include depreciation on the Building in
which the Premises are located or equipment therein (except for the reasonable
amortization of the costs for capital investment items which are purchased and
installed for the purpose of reducing "operating expenses" or complying with a
governmental requirement), interest, executive salaries or real estate broker
commissions. The annual statement of said operating expenses shall be made
available to Tenant upon Tenant's request. There will be an annual cap of five
percent (5%) on all "controllable expenses." As used herein, the term
"controllable direct expense" means and refers to any direct expense the amount
of which is directly subject to control by Landlord, including, for example,
property management services costs, but exclusive of taxes, insurance premiums,
utility costs, the cost of services by a public authority. Parties agree that
$2.01 is the current basis for pass-through charges paid by Tenant to Landlord
for insurance, taxes, utilities, the cost of services and other operating
expenses. The provisions of this Section only apply to the extent that such
costs exceed $2.01.
21. ACCOUNTING FOR PASS THROUGH CHARGES. Landlord shall send to Tenant,
in writing, a statement of the amount of any additional rent determined due
pursuant to Sections 18, 19, and 20 after the end of the year with respect to
which such additional rent is due. The amount of such additional rent required
to be paid pursuant to the provisions for this Lease, as well as any other sums
of money or charges required to be paid by Tenant under this Lease, whether or
not the same shall be designated "additional rent" shall nevertheless, if not
paid when due, be collectible as additional rent with the next installment of
rent thereafter falling due. Nothing herein contained shall be deemed to suspend
or delay the payment of any amount of
7
money or charge at the time the same becomes due and payable hereunder or
otherwise limit any remedy of Landlord to collect the same. Tenant shall pay to
Landlord monthly in advance, one-twelfth (1/12) of the estimated annualized
amounts shown as Tenant's "pro rata share" of any additional rent to be paid in
anticipation of such rent due to provide for increases in operating expenses and
other expenses as specified in Sections 18, 19 or 20 hereof for the then current
calendar year, and all such additional monthly payments shall be credited to
Tenant's rent next due to the extent that the amount paid by Tenant exceeds the
amount actually due. Any deficiency shall be paid by Tenant to Landlord, within
thirty (30) days of notice from Landlord, which notice and any overage shall be
refunded by Landlord to Tenant within thirty (30) days.
22. LANDLORD LIABILITY. Tenant agrees that Landlord shall not be liable
for injury to Tenant's business or any loss of income therefrom or for any
damage to any goods, wares, merchandise, or other property of Tenant, or
Tenant's contractors, agents, employees, invitees, customers or any other person
in or about the Premises, unless such damage or loss is solely caused by
Landlord, its agents, employees or representatives, nor shall Landlord be liable
for injury to the person of the Tenant or to the Tenant's contractors, agents,
employees, invitees, or customers whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or from any other cause, whether
said damage or injury results from conditions arising upon the Premises or upon
other portions of the Building of which the Premises are a part, or from other
sources or places, regardless of whether the cause of such damage or injury or
means of repairing the same is inaccessible to Tenant. Landlord shall not be
liable for any loss or damages arising from any act or neglect of any other
tenant. The term "Landlord" as used in this Lease so far as covenants or
obligations on the part of Landlord are concerned shall be limited to mean and
include only the owner or owners of the Premises and Building at the time in
question, and in the event of any transfers or conveyances, the then grantor
shall be automatically freed and released from and after the date of such
transfer or conveyance of all liability unless such liability and obligations
------
are expressly not assumed by the successor as respects the performance of any
---
covenant or obligation on the part of Landlord contained in this Lease on the
part of Landlord shall be binding on the Landlord, its successors and assigns
only during and in respect to their respective successive periods of ownership.
Notwithstanding any other provision contained herein to the contrary, in the
event of a breach hereof by Landlord or the failure of Landlord to perform any
of its obligations hereunder, Landlord shall have no personal liability
therefor, but Tenant shall look solely to Landlord's interest in the Building
for satisfaction of any claim or loss.
23. CARE OF PREMISES. Tenant shall at all time keep the Premises and
adjoining areas and appurtenances (subject to its reasonable control) in a clean
and neat condition. Tenant covenants and agrees that Tenant, for itself, its
employees, representatives and visitors, shall:
(a) Prohibit anything which shall endanger or cause injury to any person
or property.
(b) Prohibit any excessive loads within the Premises or any part of the
common areas, including parking areas.
(c) Prohibit any disturbing or offensive odors, fumes, gases, smoke, dust,
steam vapors, noise or vibrations in violation of applicable law.
(d) Keep the entryways, sidewalk and delivery and service areas clean and
free from rubbish, dirt, snow and ice.
(e) Keep the interior building free of vermin except to the extent used in
Tenant's business operations.
(f) Prohibit the use of sinks, toilets or urinals for any purpose except
that for which they are designated and installed.
(g) Store all trash and garbage inside the Premises and provide for its
prompt and regular removal for disposal outside the Building and common areas.
(h) Comply otherwise with all rules and regulations of Landlord, including
those Rules and Regulations set forth in Exhibit C.
24. QUIET ENJOYMENT. Upon Tenant's paying the rent and other sums herein
reserved and its performing the covenants and agreements hereof, Tenant shall
peaceably and quietly have, hold and enjoy the Premises, and all rights,
privileges, easements and appurtenances in any way appertaining thereto, during
the term of this Lease.
8
25. SURRENDER; HOLDING OVER. Tenant will vacate and deliver up the
Premises and all improvements, additions and alterations thereto, except and
only to the extent Landlord requests removal of such improvements, additions and
alterations pursuant to Section 13 (except Tenant signs, equipment and trade
fixtures installed by Tenant at its expense which may be removed by Tenant), at
the expiration or termination of this Lease, in a good, clean and tenantable
condition as the same were at the beginning of Tenant's occupancy, excepting
reasonable wear, damage by fire and other casualty or appropriation by eminent
domain. Tenant expressly agrees to perform and complete any and all of its
repair or maintenance obligations specified under Section 9 prior to its
vacating the Premises. Tenant may remove its trade fixtures and equipment within
ten (10) days after the expiration or sooner termination of this Lease, provided
(a) removal of the Tenant item can be accomplished without major damage to the
Premises; and (b) Tenant immediately repairs (or reimburses Landlord for the
cost of repairing any resulting damage or defacements)." (c) Tenant is not in
default hereunder (otherwise, all such items shall become Landlord's property.
Upon its surrender of the Premises, Tenant agrees to provide that all entrance
and exit doors are repaired and in good order, all lighting and ballast are
repaired and in good working order and all lights are replaced, as necessary and
burning, in addition to any other Tenant obligation in connection with the
condition of the Premises upon surrender.
During any such holdover period, Tenant shall be a tenant from month-to-
month only, and shall be subject to and bound by all terms and conditions
hereunder, except those as to term hereof and except that during such holdover
tenancy, Tenant shall pay to Landlord (a) rent at the rate equal to one hundred
thirty percent (130%) at the rate of rent then existing at the end of the Lease,
and (b) any and all operating expenses and all other additional rent payable
hereunder.
26. ASSIGNMENT AND SUBLEASING. Tenant may not assign, transfer, mortgage
or encumber this lease, or sublease the Premises, in whole or in part, without
first obtaining the prior written consent of the Landlord, which Landlord shall
not unreasonably withhold. Any assignment or sublease to which Landlord may
consent (one consent not being any basis to contend that Landlord should consent
to a further change) shall not relieve Tenant of any of its obligations
hereunder. The withdrawal or change, whether voluntary, involuntary or by
operation of law, of persons or entities owning a controlling interest in
Tenant, or the sale of Tenant's business, shall not be deemed a voluntary
assignment of this Lease and subject to the provisions of this Section 26, it
being expressly understood that no further Landlord approvals shall be required
from Landlord in order for Tenant to change the ownership structure or control
of Tenant's business. Acceptance of rent by Landlord after any non-permitted
transfer or assignment shall not constitute approval thereof by Landlord. It is
expressly understood that Tenant's right to sublease or assign is subject to any
right of first offer of ICAgen, Inc. and then any right of first offer of any
other tenant at the Building to Tenant's Premises.
In no event shall this Lease be assignable by operation of any law, and
Tenant's rights hereunder may not become, and shall not be listed by Tenant as
an asset under any bankruptcy, insolvency or reorganization proceedings. Tenant
is not, may not become, and shall never represent itself to be an agent of
Landlord, and Tenant expressly recognizes that Landlord's title is paramount,
and that it can do nothing to affect or impair Landlord's title. If this Lease
shall be assigned or the Premises or any portion thereof sublet by Tenant at a
rental that exceeds the rental to be paid to Landlord hereunder attributable to
the Premises or that portion thereof so assigned or sublet, as the case may be,
then and in such an event, any such excess rent shall be divided evenly between
Landlord and Tenant after netting out the reasonable cost associated with such
assignment or subletting.
27. SUBORDINATION; ATTORNMENT. Tenant agrees that this Lease will either
be subordinate or superior to any mortgage or other security instrument
heretofore or hereafter executed by the Landlord covering the Premises,
depending on the requirements of such mortgagee. Within fifteen (15) days,
Tenant will execute such reasonable agreements making this Lease superior or
subordinate as Landlord's mortgagee may request, and will agree to attorn to
said mortgagee providing the mortgagee agrees not to disturb Tenant's possession
hereunder so long as Tenant is in compliance with this Lease. Landlord consents
to Tenant's execution of Landlord's mortgagee's subordination, attornment and
non-disturbance agreement, and to be bound by the provisions thereof. Further
Tenant agrees to execute within fifteen (15) days of request therefor, and as
often as requested, estoppel certificates setting forth the facts with respect
to date of occupancy, termination date of this Lease, the amount of rent due and
date to which rent is paid, whether or not it has any defenses or offsets to the
enforcement of the Lease or knowledge of any known default or breach by
Landlord, and that this Lease is in full force and effect except as to any
modifications or amendments, copies of which Tenant shall attach to such
estoppel certificate. Tenant agrees to
9
attorn to any successor of Landlord.
28. DEFAULT. If Tenant: (a) fails to pay all rent as provided in this
Lease within ten (10) days of written notice from Landlord of such deficiency;
(b) breaches any other agreement or obligation herein set forth and such failure
continues for thirty (30) days following written notice from Landlord of such
failure; (c) files (or has filed against it) any petition or action for relief
under any creditor's law (including bankruptcy, reorganizations, or similar
actions), either in state or federal court; or (d) becomes insolvent, makes any
transfer in fraud of creditors, has a receiver appointed for its assets, or
makes an assignment for benefit of creditors, then in addition to any other
lawful right or remedy which it may have, Landlord may do the following: (A)
declare the rent for the balance of the term immediately due and payable, and
collect the same by distress or otherwise; (B) seize and hold any personal
property of Tenant located in the Premises and assert against the same a lien
for monies due Landlord; (C) without obtaining any court authorization, lock up
the Premises and deny Tenant access thereto; (D) terminate this Lease; or (E)
repossess the Premises, and with or without terminating, relet the same at such
amount as Landlord deems reasonable, and if the amount is less than Tenant's
rent, Tenant shall immediately pay the difference on demand to Landlord, but if
in excess of Tenant's rent, the entire amount shall belong to Landlord free of
any claim of Tenant therto. All expenses of Landlord in repairing, restoring or
altering the Premises or reletting, together with leasing fees, all other
expenses in seeking and obtaining a new tenant, the unamortized portion of
Landlord's upfit costs incurred in connection with this Lease and other damages
and costs, shall be charged to and a liability of Tenant. Landlord's reasonably
attorneys fees in pursuing any of the foregoing remedies, or in collecting any
rents due by Tenant hereunder, shall be paid by Tenant, which fees as to rents
collected shall be the greater of fifteen (15%) percent of the amount of such
rents or the actual amount of such fees and expenses as may be allowed by law.
All rights and remedies of Landlord are cumulative, and the exercise of any one
shall not be an election excluding Landlord at any other time from exercising a
different or inconsistent remedy. No waiver by Landlord or any covenant or
condition shall be deemed to imply or constitute a further waiver of the same at
a later time, and acceptance of rent by Landlord even with knowledge of a
default by Tenant shall not constitute a waiver of such default.
29. ATTORNEY'S FEES. Tenant and Landlord hereby each agree to pay all
reasonable attorney's fees and expenses which the asserting party may incur in
enforcing any obligations under this Lease, or in any litigation commenced to
enforce a provision of this Lease.
30. INSPECTION. Tenant agrees that the Landlord, its agents and other
representatives, shall have the right to enter into, and upon, the Premises, or
any part thereof, at all reasonable times mutually agreeable between the parties
and upon one (1) day prior notice (although no such notice shall be required in
the event of an emergency) for the purposes of inspecting or showing the same.
Tenant further agrees that Landlord may enter the Premises at all reasonable
times mutually agreeable between the parties and upon one (1) day prior notice
to post "For Rent" signs, after notice is given, during the last five (5) months
prior to the expiration of the Lease term, which signs may not removed by
Tenant.
31. CONDEMNATION. If the Premises are totally taken by condemnation, this
Lease shall terminate on the date of taking. If only a portion of the Premises
is taken by condemnation and Tenant can continue use of the remainder, then the
Lease will not terminate, but rent shall xxxxx in a just and proportionate
amount to the loss of use occasioned by the taking. Tenant shall have no right
or claim to any part of any award made to or received by the Landlord for any
taking and no right or claim for any alleged value of the unexpired portion of
this Lease; provided, however, that Tenant shall not be prevented from making a
claim against the condemning party (but not against Landlord) for any moving
expenses, loss of profits, or taking of Tenant's personal property (other than
its leasehold interest) to which Tenant my be entitled.
32. RIGHT TO RELOCATE. Intentionally deleted.
33. SECURITY DEPOSIT. Landlord acknowledges receipt from Tenant of the
sum of five thousand and No/100 Dollars ($5,000.00) which sum Landlord shall
retain as security for the performance by Tenant of each of its obligations
hereunder. If Tenant fails at any time to perform its obligations, Landlord may
at its option apply said deposit, or so much thereof as is required, to cure
Tenant's default. This deposit shall not bear interest, and unless Landlord uses
the same to cure a default of Tenant, or to restore the Premises to the
condition that tenant is required to leave them at the conclusion of the term,
Landlord shall within thirty (30) days after twelfth (12/th/) month of the Lease
refund to Tenant so much of the deposit as remains.
10
34. NOTICES. Any notices which Landlord or Tenant is required or desires
to give the other shall be deemed sufficiently given or rendered if, in writing,
is delivered personally or sent by regular mail, or if an event of default is
claimed, then either delivered personally or sent by certified or registered
mail, postage prepaid, to the address listed after the signature of the party to
be given notice, at the end of this Lease document. Any notice given herein
shall be deemed delivered when the return receipt therefore is signed, or
refusal to accept the mailing by the addressee is noted thereon by the postal
authorities.
35. HAZARDOUS MATERIALS; ENVIRONMENTAL COMPLIANCE.
A. Tenant's Responsibility. Tenant shall not (either with or without
------------------------
negligence) cause or permit the escape, disposal or release of any biologically
active or other hazardous substances, or materials. Tenant shall not allow the
storage or use of said substances or materials in any manner not sanctioned by
law or by the standards prevailing in the industry for the storage and use of
such substances or materials, nor allow to be brought into the Building or the
business park as generally shown in Exhibit A-2 any such materials or substances
except to use in the ordinary course of Tenant's business, and then only after
written notice is given to Landlord of the identity of such substances or
materials. Tenant covenants and agrees that the Premises will, at all times
during its use or occupancy thereof, be kept and maintained so as to comply with
all now existing or hereafter enacted or issued statutes, laws, rules,
ordinances, orders, permits, and regulations of all state, federal, local, and
other governmental and regulatory authorities, agencies, and bodies applicable
to the Premises, pertaining to environmental matters, or regulating, prohibiting
or otherwise having to do with asbestos and all other toxic, radioactive, or
hazardous wastes or materials including, but not limited to, the Federal Clean
Air Act, the Federal Water Pollution Control Act, and the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as from time to
time amended (all hereinbefore and hereinafter collectively called the
"Environmental Laws" or "Laws")
B. Tenant's Liability. In addition to the indemnifications contained in
------------------
Section 15 hereof, Tenant shall hold Landlord, its agents, representatives,
successors or assigns, free, harmless, and indemnified from any penalty, fine,
claim, demand, liability, costs, or charge whatsoever which Landlord or others
as aforesaid shall incur, or would otherwise incur, by reason of Tenant's
failure to comply with this Section 35; including, but not limited to: (i) the
cost of bringing the Premises into compliance with all Laws; (ii) the reasonable
cost of all appropriate tests and examinations of the Premises to confirm that
the Premises have been brought into compliance with all Laws; and (iii) the
reasonable fees and expenses of Landlord's attorneys, engineers, and consultants
incurred by Landlord in enforcing and confirming compliance with Section 35.
C. Property. For the purposes of this Section 35, the Premises shall
--------
include the Premises identified in Section 1 above, together with the real
estate covered within the Site Plan, Exhibit A-2, and all structures and
improvements thereon; all personal property used in connection with the Premises
(including that owned by Tenant); and the soil, ground water, and surface water
of the Premises, as this term is defined in this Subsection 3(C).
D. Inspections by Landlord. Landlord and its engineers, technicians, and
------------------------
consultants (collectively the "Auditors") may, from time to time as Landlord
deems appropriate upon prior notice and in no event in any way that will
materially interfere with Tenant's business operations conduct periodic tests
and examinations ("Audits") of the Premises to confirm and monitor Tenant's
compliance with this Section 35. Such Audits shall be conducted in such manner
as to minimize the interference with Tenant's permitted activities on the
Premises; however, in all cases, the Audits shall be of such nature and scope as
shall be reasonably required by then existing technology to confirm Tenant's
compliance with this Section 35. Tenant shall fully cooperate with Landlord and
its Auditors in the conduct of such Audits. The cost of such Audits shall be
paid by Landlord unless an Audit shall disclose a material failure of Tenant to
comply with this Section 35, in which case the cost of such Audit, and the cost
of all subsequent Audits made during the Lease term and within thirty (30) days
thereafter (not to exceed two (2) such Audits per calendar year) shall be paid
for on demand by Tenant.
E. Landlord's Liability. Provided, however, the foregoing covenants and
--------------------
undertakings of Tenant contained in this Section 35 shall not apply to condition
or matter constituting a violation of any Law: (i) which existed prior to the
commencement of Tenant's use or occupancy of the Premises and was not caused, in
whole or in part, by Tenant or Tenant's agents, employees, officers, partners,
contractors, representatives or invitees; or (ii) to the extent such violation
is solely caused by the acts or neglects of Landlord or Landlord's contractors,
agents, employees, representatives or invitees.
11
Landlord represents that to the best of its knowledge, without independent
investigation or verification, the premises shall be in full compliance with all
environmental laws as of the date of the commencement of the Lease.
F. Tenant's Liability After Termination of Lease. The covenants
----------------------------------------------
contained in this Section 35 shall survive the expiration or termination of this
Lease, and shall continue for so long as Landlord and its successors and assigns
may be subject to any expense, liability, charge, penalty, or obligation against
which Tenant has agreed to indemnify Landlord under this Section 35.
36. BROKER'S COMMISSIONS. Tenant represents and warrants that it has not
had dealings with any real estate broker, finder, or other person, with respect
to this Lease in any manner, except Tri-Properties, Inc. whose address is Xxxx
Xxxxxx Xxx 00000, Xxxxxxx, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxx, Corporate Realty
Advisors, whose address is 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX
00000. Landlord shall pay any commissions or fees that are payable to the
above-named broker or finder with respect to this Lease. Tenant shall indemnify
and hold Landlord harmless from any and all damages resulting from any claims
that may be asserted against Landlord by any other broker, finder or other
person, with whom Tenant has or purportedly has dealt. The provisions of this
Section 36 shall survive the termination or expiration of this Lease.
37. MISCELLANEOUS. Headings of sections are for convenience only and
shall not be considered in construing the meaning of the contents of such
sections. The invalidity of any portion of this Lease shall not have any effect
on the balance hereof. Should Landlord or Tenant institute any legal proceeding
against the other for a breach or non-performance of any provision herein
contained, the prevailing party shall be entitled to receive all costs and
attorney fees from the other party." Should Landlord institute any legal
proceedings against Tenant for breach of any provision herein contained, and
prevail in such action, Tenant shall in addition be liable for the costs and
expenses of the Landlord, including its reasonable attorney's fees. This Lease
shall be binding upon the respective parties hereto and upon their heirs,
executors, successors and assigns. This Lease supersedes and cancels all prior
negotiations between the parties, and changes shall be in writing signed by the
party affected by such change. Landlord reserves the right to make and change
from time to time rules it deems appropriate for the common use and benefit of
all tenants, with which rules Tenant shall comply. Any agreed to measurement of
space shall be done in accordance with Building Owners and Managers Association
("BOMA") standards used to determine "rentable" square feet for warehouse/flex
space. Landlord may sell the Premises without affecting the obligations of
Tenant hereunder. This Lease may not be recorded without Landlord's prior
written consent. The singular shall include the plural, and the masculine,
feminine or neuter includes the other. Each of the Landlord and Tenant
respectively represent that each has the lawful authority to enter into this
Lease and by signing it in their name as set forth below, to be legally bound in
accordance with its terms and conditions. No failure by Landlord to insist upon
the strict performance or observance of any term or condition of this Lease, or
to seek redress or to exercise any right or remedy after any such failure or
breach hereof, shall constitute a waiver of any such term, condition,
obligation, right or remedy, or any such failure or breach then or thereafter
occurring. No term, condition or obligation of this Lease to be performed or
observed by Tenant shall be waived, altered or modified except by a writing
executed by Landlord. No waiver of any failure, breach or default hereof shall
affect or alter this Lease, but each and every term, condition and obligation of
this Lease shall continue in full force and effect with respect to any other
failure, breach or default. This Lease, and the rights and obligations of each
of the Landlord and Tenant hereunder shall be governed by and construed in
accordance with the laws of the State of North Carolina. Whenever this Lease
references square footage of the Premises, portions thereof, or any additional
space to which Tenant may have an option or other prospective leasehold
interest, Tenant may verify the square footage of such space pursuant to BOMA
standards. In the event in a discrepancy in the square footage stated in the
Lease and the actual square footage, all of the charges due hereunder, including
Rent, shall be modified accordingly.
12
38. SPECIAL CONDITIONS, EXHIBITS AND ADDENDA. The following special
conditions, if any, shall apply, and where in conflict with earlier provisions
in this Lease shall control. If any Lease Exhibits or Addenda are noted below,
such exhibits and addenda are incorporated herein and made a part of this Lease.
If there are no special conditions, exhibits or addenda, the word NONE shall be
written in the blank below.
Exhibit A-1: Floor Plan
Exhibit A-2: Building Site Plan
Exhibit A-3: Legal Description of Real Property
Exhibit A-4: Business Park Site Plan
Exhibit B: Space Plan
Exhibit C: Rules and Regulations
Exhibit D: Contract Standards for HVAC,
Inspection, Maintenance & Repair
Exhibit E: Right of First Refusal
Exhibit F: Right of Cancellation
Exhibit G: Memorandum of Lease
Exhibit H: Renewal Option
13
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease by hand
and under seal affixed hereto in duplicate originals, all as of the day and year
first above written,
LANDLORD:
IMPERIAL CENTER, LIMITED PARTNERSHIP
a North Carolina Limited Partnership
(Seal)
By: PETULA ASSOCIATES, LTD., AN IOWA
CORPORATION, GENERAL PARTNER
[CORPORATE SEAL]
ATTEST:
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------- --------------------
Vice President & Secretary Vice President
By: __________________________________
______President
Address: X.X. Xxx 00000
Xxxxxxx, XX 00000
TENANT:
INSPIRE PHARMACEUTICALS, INC.
[CORPORATE SEAL]
ATTEST:
/s/ Xxx X. Xxxxxx By: /s/ X. Xxxxxxxxx Leighton
----------------- -------------------------
Assistant Secretary ______President
Address: 0000 Xxxxxxx Xxxxxxxxx, #000
Xxxxxxxxxxx, XX 00000
00
(Xxxxxxxx Xxxxxxxxxxxxxx(x))
XXXXX OF _______________________________ (Partnership Acknowledgment)
COUNTY OF ______________________________
I, _______________________________, a Notary Public in and for said County
and State, do certify that _________________________, _________________________
of before me this day, executed the foregoing instrument in behalf of said
partnership and acknowledged to me that he/she executed the same for the
purposes therein stated.
WITNESS my hand and notarial seal this _________________ day of
____________________, 199__.
_______________________________
Notary Public
My Commission Expires:
_______________________
(NOTARIAL SEAL OR STAMP)
STATE OF NORTH CAROLINA (Corporate Acknowledgment)
------------------------
COUNTY OF Durham
---------
I, W.E. Xxxxxx , a Notary Public in and for said County and State, do
--------------
certify that Xxx X. Xxxxxx personally came before me this day and
-------------------
acknowledged that he/she is assistant Secretary of Inspire Pharmaceuticals, a
-- --------- --------------------------
Corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in this name by its _____ President, sealed
with its corporate seal, and attested by him/herself as its assistant
----------
Secretary.
WITNESS my hand and notarial seal this 17/th/ day of May , 199 5 .
------- -------- ----
/s/ W.E. Xxxxxx
-------------------------------------
Notary Public
My Commission Expires:
6/28/97
----------------
(NOTARIAL SEAL OR STAMP)
___________________________
15
Landlord
(Acknowledgment)
STATE OF IOWA (CORPORATE ACKNOWLEGEMENT)
-------
COUNTY OF POLK
--------
I, Xxxx Xxxxx, a Notary Public in and for said County and State, do certify
-----------
that Xxxx X. Xxxxxxxxx personally came before me this day and acknowledged that
-----------------
he/she is Vice President & Secretary of Petula Associates, Ltd., a Corporation,
-------------- ------------------------
and that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its Vice President, sealed with
----
its corporate seal, and attested by him/herself as its Vice President and
--------------
Secretary.
WITNESS my hand and notarial seal this 1/st/ day of June, 199 5 .
----- ----- ----
/s/ Xxxx Xxxxx
---------------------------------------
Notary Public
My Commission Expires: [stamp]
11/2/95
------------------
(NOTARIAL SEAL OR STAMP)
16
EXHIBIT A-1
FLOOR PLAN
Royal Center I
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx
[ F L O O R P L A N ]
17
EXHIBIT A-2
BUILDING SITE PLAN
[ BUILDING SITE PLAN ]
18
EXHIBIT A-3
LEGAL DESCRIPTION OF REAL PROPERTY
Being all of lot S20 of Imperial Center located in Triangle Township, Durham
County, North Carolina, containing 15.367 acres, as shown on that plat entitled
"Lot S20 - Imperial Center" dated May 4, 1988, prepared by Xxxxxxx Close, Inc.,
and recorded in Plat Book 117, Page 166, Durham County Registry.
00
XXXXXXX X-0
-----------
XXXX SITE PLAN
Imperial Center Business Park
[Imperial Center Business Park]
The Imperial Center
Master Plan
20
EXHIBIT B
SPACE PLAN
TENANT IMPROVEMENTS, PLANS AND SPECIFICATIONS
Tenant to occupy space in an "as is" condition (see existing space plan below).
The Landlord shall provide an improvement allowance to Inspire Pharmaceuticals,
Inc. of $22,500.00. An additional improvement allowance of seventy-five
thousand and No/100 Dollars ($75,000.00) shall be amortized over the original
lease term at an interest rate of eleven percent (11%) per annum. Amortization
of the amount indicated above adds $3.01 per square foot to a base rental rate
of $7.25 per square foot, resulting in a rentable rate of $10.26 per square foot
for the leased premises. All Additional improvements shall be at Tenant's sole
expense.
The Landlord will provide an architectural allowance of $3,200.00. Tenant shall
be responsible for paying any additional architectural/engineering fees above
the allowance provided directly to the architectural/engineering firm retained.
[SPACE PLAN]
21
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been adopted by the Landlord for
the care, protection and benefit of the building and the park and for the
general comfort and welfare of the tenants.
1. The sidewalks, entrances, halls, passage, elevators, and stairways
shall not be obstructed by the Tenant or used by him for any other purpose than
for ingress and egress.
2. Toilet rooms and other water apparatus shall not be used for any
purpose other than those for which they are constructed.
3. The Tenant shall not do anything in the Premises, or bring or keep
anything therein, which shall in any way conflict with any law, ordinance, rule
or regulation affecting the occupancy and use of the Premises, which are or may
hereafter be enacted or promulgated by any public authority or by the Board of
Fire Underwriters.
4. In order to insure proper use and care of the Premises, neither the
Tenant nor agent nor employee of the Tenant shall:
(a) Allow any furniture, packages or articles of any kind to
remain in corridors except for short periods incidental to
moving same in or out of building or to cleaning or
rearranging occupancy of leased space.
(b) Maintain or utilize bicycles or other vehicles in the
building.
(c) Xxxx or defile elevators, toilet rooms, walls, windows doors
or any part of the building.
(d) Keep animals or birds on the Premises except to the extent
used in Tenant's business operations.
(e) Deposit waste paper, dirt or other substances in corridors,
stairways, elevators, toilets, restrooms, or any other part
of the building not leased to him.
(f) Fasten any article, drill holes, drive nails or screws into
walls, floors, doors, or partitions, or otherwise mar or
deface any of them by paint, papers or otherwise, unless
written consent is first obtained from the Landlord.
(g) Operate any machinery within the building except customary
office equipment, such as dictaphones, calculators, electric
typewriters, and the like. Special equipment or machinery
used in the trade or profession of the Tenant may be
operated only with the prior written consent of the
Landlord.
(h) Tamper or interfere in any way with windows, doors, locks,
air conditioning controls, heating, lighting, electric or
plumbing fixtures.
(i) Premises unoccupied without locking all doors, extinguishing
lights and turning off all water outlets.
(j) Install or operate vending machines of any kind in the
Premises without written consent of Landlord.
5. The Landlord shall have the right to prohibit any advertising by the
Tenant which, in their opinion, tends to damage the reputation of the building
or its desirability, and upon written notice from Landlord, the Tenant shall
discontinue any such advertising.
6. The Landlord reserves the right to designate the time when and method
whereby freight, furniture, safes, goods, merchandise and other articles may be
brought into, moved or taken from the building and the Premises leased by the
Tenant; and workmen employed, designated or approved by the Landlord must be
employed by Tenants for repairs, painting, material moving and other similar
work that may be done on the Premises.
7. The Tenant will reimburse the Landlord for the cost of repairing any
damage to the Premises or other parts of the building caused by the Tenant or
the agents or employees of the Tenant, including replacing any glass broken.
22
8. The Landlord shall furnish a reasonable number of door keys for the
needs of the Tenant, which shall be surrendered on termination of the lease, and
reserves the right to require a deposit to insure their return at termination of
the Lease. The Tenant shall obtain keys only from the Landlord, shall not
obtain duplicate keys from any outside source, and shall not alter the locks or
effect any substitution.
9. The Tenant shall not install in the Premises any metal safes or permit
any concentration of excessive weight in any portion thereof without first
having obtained the written permission of Landlord.
10. The Landlord reserves the right at all times to exclude newsboys,
loiterers, vendors, solicitors and peddlers, from the building and to require
registration, satisfactory identification and credentials from all persons
seeking access to any part of the building outside of ordinary business hours.
Ordinary business hours shall mean Monday through Friday, 8:00 a.m. to 6:00
p.m., except on legal holidays. The Landlord will exercise its best judgment in
the execution of such control but shall not be held liable for the granting or
refusal of such access. The Landlord reserves the right to exclude the general
public from the building after ordinary business hours and on weekends and
holidays.
11. The attaching of wires to the outside of the building is absolutely
prohibited, and no wires shall be run or installed in and part of the building
without the Landlord's permission and direction.
12. Request for services of janitors or other building employees must be
made to the Landlord. Agents or employees of Landlord shall not perform any
work or do anything outside of their regular duties unless under special
instructions from Landlord.
13. Signs or any other Tenant identification shall be in accordance with
building standard signage. No signs of any nature shall be placed in the
windows so as to be visible from the exterior of the building. All signs not
approved in writing by the Landlord shall be subject to removal without notice.
14. Any improvements or alterations to the Premises by Tenant shall be
approved in advance by the Landlord and all such work, if approved, shall be
done at the Tenant's sole expense under the supervision of the Landlord.
15. Tenant shall have a non-exclusive right to use of all driveways and
parking areas adjoining said premises. Landlord shall have the authority to
assign parking areas for Tenant and Tenant's employees, if deemed necessary by
Landlord.
16. If additional drapes or window decorations are desired by Tenant, they
shall be approved by Landlord and installed at the Tenant's expense under the
direction of the Landlord.
17. The Tenant shall, at its sole cost and expense and on at least a
quarterly basis, employ professional exterminators to treat and control pests
within the Premises and supply Landlord with a copy of the contract therefor and
evidence of treatment.
The Landlord shall have the right to make such other and further reasonable
rules and regulations as, in the judgement of the Landlord, may from time to
time be necessary for the safety, care and cleanliness of the Premises, the
building or the park, and for the preservation of good order therein, effective
five (5) days after all tenants have been given written notice thereof.
23
EXHIBIT D
Contract Standards for HVAC
Inspection, Maintenance and Repair
Pursuant to Section 8 of the Lease, Tenant is obligated to enter into and
maintain a maintenance contract for heating and air conditioning systems and
equipment at the Premises, for the term of the Lease, and any renewal or
extension hereof. The following sets forth minimum standards in connection with
the services contract so as to accomplish a preventive maintenance inspection
and service program for the HVAC systems and equipment at the Premises. At
minimum, contract services shall include four (4) scheduled inspections and
routine preventative maintenance service calls per year. The contract shall
further provide that emergency call service shall be available on a twenty-four
(24) hour a day on call basis. The services contract shall include, without
limitation, the following types of services:
(1) Regular preventative maintenance to heating, ventilation and air
conditioning equipment as follows:
A. Compressors
1. Check suction and head pressures
2. Electrical amperes
3. All electrical connections
B. Condenser Coil
1. Clean coil (if needed) and check fan condition
2. Check oil level and condition
3. Check for refrigerant leaks
C. Air Handling Side
1. Volts and amperes of motor
2. Electrical connections
3. Adjust belts and pulleys
4. Check and lube bearings and motors
5. Clean coil (if needed) and check fan condition
6. Change filters
7. Check for condensate leaks
D. Boiler (if applicable)
1. Check fire
2. Pressures
3. Oil and check pumps
4. Burners
5. Water temperature
6. Safety controls
E. Check out heating side of units as well as cooling side.
F. Check to make sure thermostats are operating properly.
(2) Emergency call service as needed (beyond routine preventative service)
due to mechanical failure of HVAC equipment.
24
EXHIBIT E
RIGHT OF FIRST OFFER
Tenant shall have a right of first offer throughout the initial Term of this
Lease and any renewal Term hereof, for the space currently occupied by ICAgen,
Inc. Prior to entering into negotiations with any other prospective Tenant for
any such space, the Landlord will provide Tenant with a written notice
specifying the amount of space that will be available, the date of availability,
and the then prevailing terms. Tenant must respond in writing within ten (10)
days of Landlord's notice if it wishes to Lease said space. For the twelve (12)
months of either the initial Term of this Lease or any extension term,
Landlord's obligation to extend Tenant any right of first offer is contingent
upon either (i) Tenant having previously elected to extend this Lease or enter
into a new Lease for the Premises, or (ii) Tenant electing, upon receiving
notice of the availability of said space, to extend the Lease or enter into a
new Lease for the Premises. Landlord represents to Tenant that to the best of
Landlord's knowledge no other party has a right of first offer or right of first
refusal on said ICAgen, Inc. space. In addition to the right of first offer
Tenant shall lease from Landlord the space presently occupied by Xxxxx Xxxxx
'Scapes at the Building, consisting of 3,280 useable square feet, which space
may be available to Tenant on or before November 1, 1995 subject to the
conditions of the following sentence. This right of Tenant to said space is
subject to Landlord receiving from ICAgen, Inc. a waiver of its right of first
offer on the Xxxxxx Xxxxx 'Scapes' space, and is further subject to Landlord's
ability to relocate Xxxxxx Xxxxx 'Scapes' within the Business Park. Landlord
further represents that it shall use all reasonable efforts to relocate Xxxxx
Xxxxx 'Scapes on or before November 1, 1995. Upon occupancy of the Xxxxx Xxxxx
'Scapes space by Tenant, Tenant shall pay rent for such space in the amount of
five and 50/100 Dollars ($5.50) per square foot and all of the terms and
conditions of this Lease shall apply to Tenant's use and occupancy of said
space. Landlord represents to the best of its knowledge that no other party
other than ICAgen, Inc. has right of first offer or first refusal on the Xxxxx
Xxxxx 'Scapes' space.
25
EXHIBIT F
RIGHT OF CANCELLATION
Tenant shall have the right to cancel this lease following thirty-six (36)
months occupancy and with six (6) months prior written notice. The cancellation
penalty, paid at the time cancellation notice is given, shall be the unamortized
portion of the interior improvement allowance, architectural fees and brokerage
fees (which is being amortized at eleven percent (11%) per annum) previously
paid by the Landlord. The parties agree that such charge shall be only the
unamortized portion of the principle and shall not include any future interest
------
charges. [past the thirty-six month occupancy period]
------------------------------------------
26
EXHIBIT G
MEMORANDUM OF LEASE
[TO BE ADDED AT COMMENCEMENT]
---------------------------
27
EXHIBIT H.
RENEWAL OPTION
Tenant may, at its sole discretion, elect to renew this Lease for a period of
between two (2) and four (4) years (the "Extension Period"), the number of years
of such extension to be in Tenant's discretion, by giving Landlord written
notice of Tenant's intention to exercise this renewal option (the "Extension
Option") not later than five (5) months prior to the expiration of the initial
term. The Extension Period shall be subject to the same terms and conditions as
contained in this Lease, except that rent, as described in Section 3 of the
Lease, shall be nine and No/100 Dollars ($9.00) per square foot for a two (2)
year term and nine and 50/100 Dollars ($9.50) per square foot for a term of
three (3) years or greater.
In the event that Tenant agrees to exercise its extension option for an
extension period of three (3) years or greater, then Landlord shall provide a
refurbishment allowance equal to one dollar ($1.00) per square foot for each
year of the renewal term.
28
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE ("Amendment") is executed this 30 day of August,
1995 by and between INSPIRE PHARMACEUTICALS, INC. ("Tenant") and IMPERIAL
CENTER, LIMITED PARTNERSHIP ("Landlord").
W I T N E S S E T H:
THAT WHEREAS, Landlord and Tenant entered into a lease for certain space at
the Royal Center I, 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx, dated
May 17, 1995, as amended August 30 , 1995 (the "Lease"); and
--
WHEREAS, the Lease grants Tenant certain rights to space currently occupied
by Xxxxx Xxxxx 'Scapes (the "Xxxxx Xxxxx 'Scapes Space"); and
WHEREAS, Landlord and Tenant have agreed to modify the Lease as set forth
herein, primarily in order to modify Tenant's rights with respect to the Xxxxx
Xxxxx 'Scapes Space.
NOW THEREFORE, for the mutual covenants and premises herein, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, the parties, intending to be bound, hereby agree as
follows.
1. Delivery of Xxxxx Xxxxx 'Scapes Space: Landlord warrants and agrees
-------------------------------------
that it shall deliver the Xxxxx Xxxxx 'Scapes space to Tenant on or before
December 1, 1995. It is understood that the Xxxxx Xxxxx 'Scapes Space shall be
in a "shell condition." If Landlord cannot deliver possession to Tenant of the
Xxxxx Xxxxx 'Scapes Space on or before December 1, 1995, the Lease shall not be
void or voidable, provided, however, that in such event, no obligations of
Tenant for rent due or other obligations for the Xxxxx Xxxxx 'Scapes Space shall
accrue until possession of the Xxxxx Xxxxx 'Scapes Space shall have been
delivered. If the period of actual delay of Xxxxx Xxxxx 'Scapes Space exceeds
(45) days, then Tenant may, at its option, terminate the Lease. Further, if
Landlord will be unable to deliver possession of the Xxxxx Xxxxx 'Scapes Space
on or before December 1, 1995, it shall provide Tenant with written notice of
such anticipated delay, together with a reasonable estimate of the actual
delivery date, not later than November 1, 1995, so that Tenant will not incur
unnecessary costs related to its anticipated possession of the Xxxxx Xxxxx
'Scapes Space .
2. Obligations of Tenant Upon Delivery: Upon occupancy of the Xxxxx Xxxxx
-----------------------------------
'Scapes Space, Tenant shall pay rent as provided in the Lease and shall be
subject to all terms and conditions of the Lease with respect to the Xxxxx Xxxxx
'Scapes Space.
3. Compensation to Landlord: Tenant acknowledges that in order to make
------------------------
the Xxxxx Xxxxx 'Scapes Space available not later than December 1, 1995 or
within 45 day period as referenced in Section 1. Landlord and certain
of Landlord's tenants will incur costs relative to the relocation of Xxxxx Xxxxx
'Scapes. Tenant hereby agrees to pay Landlord a fee of Twenty Thousand and
No/100 Dollars ($20,000.00) in order to contribute to the costs of the
relocation, and in order to insure that the Xxxxx Xxxxx 'Scapes Space is
available for certain on or before December 1, 1995 or within 45 day period as
referenced in Section 1. This fee shall be paid by Tenant to Landlord within
ten (10) days of date Landlord delivers the Xxxxx Xxxxx 'Scapes Space to Tenant.
4. Full Force and Effect; Time of the Essence: Except as modified herein,
------------------------------------------
the Lease remains unchanged and in full force and effect. Time is of the
essence hereunder.
[Signature Page Attached Hereto and Incorporated Herein by Reference]
IN WITNESS WHEREOF, the undersigned have executed this Amendment under seal
the day and year first above written.
LANDLORD:
IMPERIAL CENTER, LIMITED PARTNERSHIP,
a North Carolina limited partnership (SEAL)
By: Petula Associates, Ltd.,
an Iowa corporation,
General Partner
APPROVED
By: /s/ Xxxxx X. Xxxxxxx BICB
------------------------------------ ------------
Printed Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: Senior Regional Asset Manager
Commercial Real Estate Equities
------------------------------------
President
--------
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx, Vice President
Secretary
----------
[AFFIX CORPORATE SEAL]
TENANT:
INSPIRE PHARMACEUTICALS, INC.
By: /s/ H. Xxxx Xxxxxxxx
----------------------------------------
Printed Name: H. Xxxx Xxxxxxxx
----------------------------------------
Title: President
--------
ATTEST:
/s/ Xxx X. Xxxxxx
Assistant Secretary
----------
[AFFIX CORPORATE SEAL]
None
August 1, 1995
Inspire Pharmaceuticals, Inc.
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn.: H. Xxxx Xxxxxxxx, Ph. X.
Xxxxxx Associates, Ltd.
c/o Tri-Properties, Inc.
Xxxx Xxxxxx Xxx 00000
XXX, XX 00000
Attn.: Xxx Xxxxx
Dear Ladies and Gentlemen:
We have received a written notice from Petula Associates, Ltd. advising us of
our right to exercise our right of first offer on the space now occupied by
Xxxxx Xxxxx 'Scapes and known as Suite 490, 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000 (the "Subject Space"): This right of first refusal is
pursuant to our lease dated December 17, 1992 between ICAgen, Inc. and Imperial
Center Partnership and Petula Associates, Ltd. (collectively, "Landlord").
ICAgen has agreed not to exercise its right of first offer based on the
following agreement:
1. Inspire Pharmaceuticals has agreed to sign a definitive lease for the
Subject Space.
2. In the event Inspire desires to assign or sublet the Subject Space or any
other space occupied by it in the Royal Center I Building, ICAgen will have
a right of first offer for twenty (20) calendar days on the Subject Space
or such other space at a fair market rate for the Subject Space or such
other space, as the case may be.
3. In the event that Inspire does not begin paying full market rent for the
Subject Space on or before the earlier of (a) 45 days after Landlord makes
the Subject Space available to Inspire for fit-up or (b) January 15, 1996,
ICAgen would again have a right of first offer as to the Subject space for
twenty (20) calendar days. In the event that ICAgen offers to take such
space, assuming space is made available, it shall be available to it at the
rate of Five Dollars and Fifty Cents ($5.50) per square foot and all the
terms and conditions contained in ICAgen's lease with Landlord shall apply
to the use and occupancy of such space and the term of such space shall be
coterminate (including options to renew) with the term of ICAgen's lease
with Landlord. If ICAgen exercises such right of first offer, then the
lease for the Subject Space between Petula and Inspire shall terminate.
4. In the event ICAgen desires to assign or sublet any of its space in the
Royal Center I Building, Inspire will have a right of first offer for
twenty (20) calendar days on such space.
5. ICAgen shall have a right to renew its lease which is superior to any right
of first offer or first refusal given Inspire. In the event ICAgen does not
renew its lease, Inspire does have a right of first offer on ICAgen's
space. Landlord agrees to negotiate in good faith for such renewal with
ICAgen at the prevailing market rates for space in the Royal Center I
Building.
If you are in agreement with the terms of this letter agreement, please
sign one copy and return it to me and it shall constitute a binding
agreement among us governed by North Carolina law.
Sincerely,
/s/ P. Xxx Xxxxxxx, Ph.D.
P. Xxx Xxxxxxx, Ph.D.
President
Agreed to and accepted this
1st day of August, 1995
------------
PETULA ASSOCIATES, LTD. INSPIRE PHARMACEUTICALS, INC.
---------------------------------------- ----------------------------------------
By: /s/ Xxxxx X. Xxxxxxx By: /s/ H. Xxxx Xxxxxxxx
---------------------------------------- ----------------------------------------
Name: Xxxxx X. Xxxxxxx Name: H. Xxxx Xxxxxxxx
Senior Regional Asset Manager
Commercial Real Estate Equities
---------------------------------------- ----------------------------------------
Title: Title: CEO
---------------------------------------- ----------------------------------------
