Exhibit 10.6



 




Exhibit 10.6







 









 













 









 













 









 













 









 













 









 













 









 













 









 














 










 





EXHIBIT A




LEGAL DESCRIPTION




(2.15 AC) LT 31 SEC 20 LANDMARK INDUSTRIAL PARK




 









 





EXHIBIT B




	 	 	 
	Term:

	 	The effective date of this Lease shall be the date on which the Lease is executed by both
parties. The rent commencement date shall be, one (1) week after the certificate of occupancy is
received, one hundred days (100) days after up-fit begins, or at tenant occupancy,
whichever is earlier. The initial term shall be 60 months from the date of rent commencement.
	 
	 

	 	Tenant, at its sole discretion, shall be able to terminate the lease after month
thirty-six (36), provided a one-hundred and twenty (120) day notice is given to the Landlord.






	 	 	 	 	 	 	 	 	 	 	 	 	 
	Year	 	Date	 	 	(Illegible)	 	 	(Illegible)	 
	Year 1
	 	 	05/01/05 - 04/30/06	 	 	$	145,632	 	 	$	12,136	 
	Year 2
	 	 	05/01/06 - 04/30/07	 	 	$	150,000	 	 	$	12,500	 
	Year 3
	 	 	05/01/07 - 04/30/08	 	 	$	154,500	 	 	$	12,875	 
	Year 4
	 	 	05/01/08 - 04/30/09	 	 	$	159,136	 	 	$	13,261	 
	Year 5
	 	 	05/01/09 - 04/30/10	 	 	$	163,910	 	 	$	13,659	 
	 
	 	 	 	 	 	(Illegible)	 	 	 	 






	 	 	 
	Renewal Options:

	 	Two (2), three (3) year renewal options.
	 
	Annual Increase:

	 	Three percent (3.00%) per year for Years 1 through Year 5, continuing through the
option periods






 









 






EXHIBIT C




Alterations




13. Tenant shall not make any alterations, additions, or improvements to the premises without the
landlord’s prior written consent. Tenant shall promptly remove any alterations, additions, or
improvements constructed in violation of this paragraph upon landlord’s written request which shall
not be unreasonably withheld, conditional or delayed. All approved alterations, additions, or
improvements will be accomplished in a good and workman like manner, in conformity with all
applicable laws and regulations, and by a contractor approved by the landlord, free of any liens or
encumbrances. Landlord may require tenant to remove any alterations, additions or improvements
(whether or not made with landlord’s consent) at the termination of the lease and to
restore the premises to its prior condition, all at tenant’s expense. All alterations, addition and
improvements which landlord has not required tenant to remove shall become landlords property and,
except as otherwise provided in paragraph 14, shall be surrendered to the landlord upon the
termination of this lease, except that the tenant may remove any of the tenants machinery or
equipment that can be removed without any material damage to the premises. Tenant shall repair, a
tenants expense, any damage to the premises caused by removal of any such machinery or equipment.



 









 





EXHIBIT D




Special Stipulations




l. Notwithstanding anything to the contrary contained in this Lease, Tenant shall be permitted to
assign this Lease, without the consent of Landlord, (i) to a corporation into which Tenant may
merge, which Tenant may acquire, or which Tenant may consolidate with, (ii) to any parent or
subsidiary of Tenant, or (iii) to a purchaser of substantially all of Tenant’s assets or a
controlling interest in the outstanding voting stock of Tenant.



2. Notwithstanding anything to the contrary contained in this Lease, with respect to any default
of Tenant under this Lease (other than the nonpayment of rental) which cannot reasonably be cured
within thirty (30) days but which is curable, Tenant’s cure period relative to such default shall
be extended for such additional period as may be reasonably required to cure such default, as long
as Tenant has promptly commenced such cure within thirty (30) days after written notice of the
default from Landlord and thereafter diligently prosecutes such cure to completion.



3. If Landlord fails to perform or observe any of the terms, covenants or conditions contained in
this Lease on its part to be performed or observed within thirty (30) days after written notice of
default from Tenant, cure failure shall constitute a default by Landlord under this Lease. In the event of a default
by Landlord hereunder, Tenant shall be entitled to (i) cure such default of Landlord by performing
the relevant obligations of Landlord on Landlord’s behalf, in which case Landlord shall reimburse
Tenant, within thirty (30) days of receiving an invoice from Tenant for such costs, for all costs
expended by Tenant in performing such obligations and/or (ii) pursue all other remedies available
to Tenant, at law or in equity, as a result of such default. In the event Tenant proceeds under
clause (i) above and is not reimbursed in full for its costs within thirty (30) days of its
delivery of an invoice to Landlord. Tenant shall be entitled to offset the amount of such
unreimbursed costs against the amounts next due and payable under this Lease.



4. Tenant agrees that this Lease shall at all times be subject and subordinate to the lien of any
mortgage (which term shall include all corresponding security instruments) that encumbers the
Premises; and Tenant agrees, upon demand, without cost to Tenant, to execute any reasonable
instrument as may be required to effectuate such subordination. Provided however, as a condition to
the subordination described in this Paragraph 4, Landlord shall obtain from any mortgagee
an agreement in writing, which shall be delivered to Tenant, providing in substance that (i) so
long as Tenant shall faithfully discharge the obligations on its part to be kept and performed
under the term of this Lease. Tenant’s right to occupy and use the Premises shall not be disturbed,
nor shall this Lease be affected by any default under such mortgage, and (ii) in the event of
foreclosure or my enforcement of any such mortgage, the rights of Tenant hereunder shall expressly
survive and this Lease shall in all respects continue in full force and effect (provided Tenant continues to perform its
obligations hereunder).




 









 




6 Landlord hereby represents that to the best of its knowledge and belief, no Hazardous
Materials currently exist on the Property or previously existed on the Property in violation of
applicable governmental regulation.



7 Landlord and Tenant represent and warrant each to the other that they have not dealt with any
broker(s) or any other person claiming any entitlement to any commission in connection with this
transaction other than _________ (“Broker”). Landlord shall be responsible for paying any
commission or fee due to Broker. Landlord and Tenant agree to indemnify and save each other
harmless from and against any and all claims, suits, liabilities, costs, judgments and expenses,
including reasonable attorney’s fees, for any leading commissions or other commissions, fees,
charges or payments resulting from or arising out of their respective actions in connection with
this Lease (provided that Tenant’s indemnity of Landlord shall exclude any commission or fee due to
Broker).




	 	 	 	 	 
	Landlord:

	Elmore Enterprises, Inc.	 
	 	 	 
	 	By:  	s/ W. Keith Elmore
 	 
	 	 	Name:  	W. Keith Elmore 	 
	 	 	Title:  	Manager 	 
	 






	 	 	 	 	 
	Tenant:

	TRANS1 INC., a
Delaware corporation	 
	 	 	 
	 	By:  	                             /s/ Robert Assell
 	 
	 	 	Name:  	Robert Assell 	 
	 	 	Title:  	VP, PRODUCT DEVELOPMENT 	 





 









 






	 	 	 	 	 



EXHIBIT E




MEMORANDUM
OF LEASE





     KNOW ALL PERSONS BY THESE PRESENTS, that for and in consideration of the rents and covenants
set forth in a certain Commercial Lease Agreement dated 3/16/, 2005 (the “Lease”), by and between
Elmore Enterprises, Inc., having a mailing address of 411 Landmark Dr, Wilmington, NC 28412, as
Landlord (“Landlord”), and Trans1, Inc, a _________ corporation with an office at 1800 Sir
Tyler Drive, Suite 101, Wilmington, NC 28405, as Tenant (“Tenant”, Landlord has leased to Tenant
that certain property described on Exhibit A attached hereto and incorporated herein by reference
(together with all improvements thereon, the “Premises”).



     Pursuant to the terms of the Lease, Landlord has leased the Premises to Tenant for an initial term
of ______ (___) years beginning on See Lease, 2005, and terminating on _________, 20___. The provisions
set forth in the Lease are hereby incorporated in this Memorandum as though stated herein in full.



     IN
WITNESS WHEREOF, the Landlord has duly executed this instrument as of
this 24th day of
March, 2005



	 	 	 	 	 
	 	LANDLORD: Elmore Enterprises, Inc.
	 
	 	/s/ Illegible, Manager
	 	 	 
	 	 	 
	 	 	 
	 



STATE OF NORTH CAROLINA




COUNTY OF NEW HANOVER




[insert appropriate acknowledgement]





     WITNESS
my hand and official seal this 24th day of March, 2005.



	 	 	 	 	 
	 	/s/ Illegible

	 	Notary Public 
	 	 	 
	 	 	 
	 	 	 
	 



My Commission Expires:




April 12, 2009




(SEAL)