EXHIBIT 10.9
SUBLEASE AGREEMENT
THIS SUBLEASE (the "Sublease") dated for reference purposes October 1,
1999, is entered into by and between Wandel & Goltermann Technologies, Inc., a
North Carolina corporation, hereinafter referred to as "Sublandlord", and
Embrex, Inc., a North Carolina corporation, hereinafter referred to as
"Subtenant".
WHEREAS, W&G Instruments, Incorporated, a predecessor in interest of
Sublandlord, as Tenant, and W&G Associates, a North Carolina Limited
Partnership, as Landlord, hereinafter referred to as "Prime Landlord", entered
into that certain Lease Agreement dated October 1, 1984, which Lease has been
amended by instruments dated January 31, 1986, October 1, 1989, January 24,
1994, February 23, 1999, and October 1, 1999 (said Lease as amended being
referred to herein as the "Prime Lease") pertaining to the rental of certain
premises on Swabia Court, Durham, NC, more particularly described as Lot S-5B,
containing 10 acres as shown on plat of survey recorded in Plat Book 131, Page
87, Durham County Registry (the "Premises");
WHEREAS, Sublandlord desires to sublet a portion of the Premises to
Subtenant (defined herein as the "Sublease Premises"), subject to the written
consent of the Prime Landlord, and Subtenant desires to sublet the Sublease
Premises from Sublandlord, all on the terms and conditions set forth in this
Sublease;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Sublandlord and Subtenant agree as follows:
1. Unless otherwise defined in this Sublease, all capitalized terms
used herein that are defined in the Prime Lease shall have the meaning ascribed
to such terms in the Prime Lease.
2. The Prime Lease is attached hereto and by reference made a part
hereof as Exhibit C. Except as otherwise expressly provided herein, this
Sublease is subject to and made upon all the terms, covenants and conditions of
the Prime Lease, with the same force and effect as if fully set forth therein.
It is the intention of the parties hereto that, except as otherwise expressly
provided in this Sublease, and except as inapplicable hereto or inconsistent
herewith, the relationship between Sublandlord and Subtenant with respect to the
Sublease Premises shall be governed by the provisions of the Prime Lease as if
they have been set forth in full in this Sublease with the term "Sublandlord"
replacing the term "Landlord" and the term "Subtenant " replacing the term
"Tenant".
3. All of the non-monetary obligations contained in the Prime Lease
conferred and imposed upon Sublandlord (as Tenant therein) with respect to the
Sublease Premises, except as modified and amended by this Sublease, and all
rights and privileges conferred upon Sublandlord (as Tenant therein) with
respect to the Sublease Premises, are hereby conferred and imposed upon
Subtenant. Except as expressly modified and amended by this Sublease or
inconsistent herewith, Subtenant covenants and agrees fully and faithfully to
perform the non-monetary obligations and conditions of the Prime Lease with
respect to the Sublease Premises on Sublandlord's part to be performed.
Subtenant further agrees, as an express inducement for
Sublandlord executing this Sublease, that, with respect to the Sublease
Premises, if there is any conflict between the provisions of this Sublease and
the provisions of the Prime Lease which would permit Subtenant to do or cause to
be done or suffer or permit any act or thing to be done which is prohibited by
the Prime Lease, then, except to the extent expressly agreed by Prime Landlord
in consenting to this Sublease, the provisions of the Prime Lease shall prevail
with respect to the Sublease Premises. Except as expressly provided to the
contrary in this Sublease, the remedies of the parties, as Subtenant and
Sublandlord hereunder, shall be the same as the respective remedies of the
"Landlord" and "Tenant" under the Prime Lease.
Subtenant shall pay to Sublandlord, within five (5) days after demand therefor
by Sublandlord, any and all sums (except rent under the Prime Lease) due
pursuant to the Prime Lease with respect to the Sublease Premises; provided,
however (and as an express departure from the terms of the Prime Lease), except
as set forth in or determined by Section 6 of this Sublease, through and
including December 31, 2000, Subtenant shall have no liability for Sublandlord's
obligations under Section 3.2 of the Prime Lease and through and including
December 31, 2000, Subtenant shall have no liability under Section 5.1 of the
Prime Lease. Notwithstanding the foregoing but subject to any agreement of
Sublandlord and Subtenant pursuant to Section 6 hereof with respect to an
allocation of responsibility between them with respect to certain conditions of
the Sublease Premises, Tenant shall comply with all laws, ordinances, and
regulations of any lawful authority with respect to Subtenant's particular use
and occupancy of the Sublease Premises provided that such compliance does not
require any repairs, reconstruction, or improvements that are not expressly the
result of Subtenant's particular use and occupancy of the Sublease Premises.
Notwithstanding anything to the contrary herein, Sublandlord shall have no duty
itself to perform any obligations of Prime Landlord, including, without
limitation, constructing any improvements to the Sublease Premises, nor shall
such default of Prime Landlord affect this Sublease or waive or defer the
performance of any of Subtenant's obligations hereunder.
Notwithstanding anything to the contrary herein, Sublandlord expressly agrees
that through and including December 31, 2000, Subtenant, except as set forth in
or determined by Section 6, shall have no obligation or liabilities with respect
to the roof, foundation, load-bearing walls, fire and safety systems, and
parking lot except to the extent directly attributable to the intentional acts
or negligence of Subtenant, its employees, agents, representatives, invitees,
and contractors. The foregoing is an allocation of responsibility of certain
obligations with respect to the Sublease Premises between Sublandlord and
Subtenant and shall not affect the obligations owed by Sublandlord to Prime
Landlord under the Prime Lease.
4. Subject to the terms of the second and third paragraphs of Section 5
of this Sublease, Sublandlord hereby subleases to Subtenant and Subtenant hereby
subleases from Sublandlord the Sublease Premises for a term of approximately
seventy-two (72) months (the "Initial Sublease Term") commencing on October 1,
1999 (the "Commencement Date") and expiring on September 30, 2005 (the
"Expiration Date"). Notwithstanding the occurrence of the Commencement Date on
October 1, 1999, Subtenant's only monetary obligation under this Sublease until
its actual occupancy of the Sublease Premises shall be to pay rent as set forth
in Section 6.
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5. Subject to a Right of First Refusal for additional space as set
forth in Section 7 hereof, the Sublease Premises shall be approximately 44,725
rentable square feet defined for purposes hereof as the combination of the
"Initial Sublease Premises" and the "Expansion Sublease Premises" as defined
below and as more particularly shown in the attached Exhibit B.
Effective from the Commencement Date until September 30, 2000, Subtenant shall
sublease from Sublandlord and Sublandlord shall sublease to Subtenant an area of
approximately 20,837 rentable square feet as shown on Exhibit B (the "Initial
Sublease Premises").
Effective October 1, 2000 and continuing through the remainder of the Initial
Sublease Term or any extension thereof, Subtenant shall sublease from
Sublandlord and Sublandlord shall sublease to Subtenant an additional area
totaling approximately 23,888 rentable square feet as shown on Exhibit B (the
"Expansion Sublease Premises"). Rent for the Expansion Sublease Premises is
incorporated into the Rent Schedule below.
6. Subtenant shall pay Sublandlord monthly rent throughout the Initial
Sublease Term or any extension thereof, in advance on the first day of each and
every month of the Initial Sublease Term or any extension thereof in the amounts
set forth in the Rent Schedule below. All rent and any other sums due to
Sublandlord shall be paid to Sublandlord at 1030 Swabia Court, P.O. Box 13585,
Research Xxxxxxxx Xxxx, XX 00000-0000, or at such other address directed by
Sublandlord to Subtenant in writing. The first monthly installment of rent,
Twenty-Two Thousand Five Hundred Seventy-Three Dollars and Forty-Two Cents
($22,573.42), shall be paid and delivered to Sublandlord at execution of this
Sublease by Subtenant, provided, however, that if the Commencement Date occurs
on a day other than the first day of the month, rent for the first month of the
Initial Sublease Term shall be pro-rated based on the number of days remaining
in the first month of the Initial Sublease Term. Notwithstanding the foregoing,
Subtenant shall not be obligated to pay rent to Sublandlord until Sublandlord
and Subtenant have agreed upon the repairs, replacements, or improvements
required to be made to the Sublease Premises or Building (as hereinafter
defined) as hereinafter set forth in this Section 6. If neither Sublandlord nor
Subtenant has terminated this Sublease pursuant to the terms of this Section 6,
Subtenant shall pay to Sublandlord rent from the Commencement Date to the date
of delivery to Subtenant of an amendment to this Sublease acceptable to
Sublandlord and Subtenant setting forth the repairs, replacements, or
improvements the parties have agreed each shall make to the Sublease Premises.
If this Sublease is terminated pursuant to the terms of this Section 6,
Subtenant shall pay to Sublandlord with its notice of termination or promptly
after receipt from Sublandlord of its notice of termination, as its total
obligation to pay rent under this Sublease, two and one-half (2 1/2) months'
installments of rent in the amount of Fifty-Six Thousand Four Hundred
Thirty-Three Dollars and Fifty-Five Cents ($56,433.55).
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RENT SCHEDULE:
-------------
RENT
PERIOD $/RSF/YR. MONTHLY RENT STRUCTURE
------------------------------------------------- --------------------
10/01/99 - 09/30/00 $13.00 $22,573.42 Full-Service
10/01/00 - 12/31/00 $13.39 $49,905.65 Full-Service
01/01/01 - 09/30/01 $ 9.14 $34,065.54 Triple-Net
10/01/01 - 09/30/02 $ 9.41 $35,087.51 Triple-Net
10/01/02 - 09/30/03 $ 9.70 $36,140.13 Triple-Net
10/01/03 - 09/30/04 $ 9.99 $37,233.56 Triple-Net
10/01/04 - 09/30/05 $10.29 $38,351.69 Triple-Net.
As per the Rent Schedule above, the rent during the Initial Sublease Term shall
adjust on January 1, 2001 from "Full-Service" to "Triple-Net". For purposes of
this Sublease, "Full-Service" shall be deemed to include the following expenses
and services to be provided at Sublandlord's sole cost and expense:
o JANITORIAL - regular trash removal, maintenance, dusting, vacuuming and
cleaning of lavatories but in no event at a lesser frequency than that
provided for Sublandlord's own facilities.
o EXTERIOR MAINTENANCE - pertains to landscaping, parking lots,
sidewalks, and windows.
o STRUCTURAL/INTERIOR MAINTENANCE - pertains to the building's structure
including foundation, walls, roof, floor, light fixtures and bulbs, and
all mechanical systems (including HVAC) and plumbing.
o PROPORTIONATE SHARE OF REAL ESTATE TAXES
o PROPORTIONATE SHARE OF REAL PROPERTY INSURANCE UNDER PRIME LEASE
o ALL UTILITIES - water for lavatory and drinking purposes, gas, sewer
and electricity. In regards to electric service, said service shall be
provided specifically to power Subtenant's lights, plugs and HVAC, at
the same level at which said services are available to Sublandlord.
Until that time that the rental structure becomes "triple-net" and
Subtenant's utilities are separately metered, Subtenant shall utilize
only normal, non-heat generating office equipment such as personal
computers, copiers, fax machines, printers, refrigerators, vending
machines and coffee makers.
o HVAC - heating and cooling for the Sublease Premises so as to maintain
an average temperature of 72 degrees Fahrenheit, plus or minus 2
degrees.
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o CARD READER SYSTEM - During the period in which the Rent is
"Full-Service", Sublandlord shall provide Subtenant with Card Reader
Access services, at the same level at which said services are available
to Sublandlord. Upon the Rent becoming "Triple-Net", to the extent that
Sublandlord continues to operate and share use of its Card Reader
Access System, Sublandlord agrees to continue to provide, at its
expense, Card Reader services to Subtenant.
Notwithstanding the foregoing, if Sublandlord notifies Subtenant that
Sublandlord will not make some or all of the repairs or replacements indicated
in the inspection report described in the third following paragraph,
"Triple-Net" shall not include such repairs or replacements.
"Proportionate Share" shall mean 41.08% (20,837 RSF/ 50,725 RSF) for the period
when Subtenant subleases the Initial Sublease Premises, 88.17% (44,725 RSF /
50,725 RSF) when Subtenant subleases the Initial Subleases Premises and the
Expanded Sublease Premises, and 100% should Subtenant sublease the entire
Premises.
Before Subtenant is permitted to occupy the Sublease Premises, the Sublease
Premises shall be inspected by a building inspector reasonably acceptable to
Sublandlord and Subtenant, whose report (the "Report") shall be delivered to
Sublandlord and Subtenant by January 20, 2000. The scope of the inspection, for
purposes of this Sublease, shall be limited to determining whether the structure
of the Sublease Premises and its HVAC, plumbing, mechanical, electrical and fire
protection systems are in good condition and working order and whether the
Sublease Premises currently comply with all applicable local, state, and federal
laws and regulations related to occupancy of the Sublease Premises by Subtenant
for its intended uses, it being understood that except as Sublandlord may
otherwise agree after its review of the Report, Subtenant is otherwise leasing
the Sublease Premises "as is." All costs and expenses incurred in connection
with this inspection shall be the sole responsibility of Subtenant. Sublandlord
shall deliver to Subtenant within ten (10) days after receipt of a copy of the
Report a statement indicating which, if any of the defects or non-complying
conditions noted in the Report, Sublandlord is willing to repair or replace at
its expense; provided, however, Sublandlord at its sole cost and expense shall
bear the cost of making the existing bathroom facilities serving the Sublease
Premises comply with the requirements of The Americans With Disabilities Act
("ADA") to the same extent that would be required if Sublandlord were to
continue its prior use of the Building. Subtenant shall then have ten (10) days
after receipt of Sublandlord's statement to accept Sublandlord's proposal with
respect to the repairs and replacements recommended in the Report, to reject
Sublandlord's statement in its entirety, or to propose an alternative
description of the repairs and replacements for which Sublandlord and Subtenant
would be responsible; provided, however, Subtenant shall be responsible at its
cost and expense for additions or improvements to the existing bathroom
facilities to accommodate its use beyond that for which Sublandlord is
responsible under the preceding sentence. If Sublandlord and Subtenant agree as
to the repairs and replacements for which each is responsible, Sublandlord and
Subtenant shall enter into the appropriate amendment to this Sublease to reflect
the allocation of their respective responsibilities for repairs or replacements
to the Sublease Premises. If, after good faith efforts to negotiate their
differences, Sublandlord and Subtenant have not agreed on such an allocation of
responsibility by March 1,
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2000, each shall have the right to terminate this Sublease upon written notice
to the other in which event neither party shall have any other or further
obligations to the other under this Sublease, except for any obligations which
accrued before the date of such termination and further except that Subtenant
shall pay to Sublandlord two and one-half (2 1/2) months' rent referenced in the
first paragraph of this Section 6 in consideration of Sublandlord keeping the
Premises off the market during the negotiation of this Sublease and the security
deposit shall be returned to Subtenant.
For purposes hereof, unless stated elsewhere herein to the contrary,
"Triple-Net" shall be defined as that rent structure and treatment of all those
expenses and services, including but not limited to, those services and
associated expenses outlined under the definition of "Full-Service" above, which
are required to occupy and conduct business in the Sublease Premises and as set
forth in the Prime Lease (but with respect to only the Sublease Premises or
Subtenant's Proportionate Share of the Building or the Premises), including, but
not limited to, the parking lot, walkways, exterior lighting, landscaping, and
all HVAC, mechanical, roof and structural maintenance and repair. Therefore, at
the effective date on which the rent adjusts from Full-Service to Triple-Net
(i.e., on January 1, 2001), in addition to the monthly rent stated in the Rent
Schedule above, Subtenant shall contract directly with service providers for its
utilities and other services used in the Sublease Premises, including, but not
limited to, janitorial services and trash removal services, and shall pay all
charges for said utilities and services directly to the relevant service
provider. Notwithstanding the foregoing, to the extent services with respect to
the parking lot, walkways, exterior lighting, and landscaping are currently
contracted by Sublandlord, Subtenant may meet its obligations under this
paragraph by paying to Sublandlord promptly after receipt of an invoice and
supporting documentation Subtenant's Proportionate Share of such expenses. To
the extent that the elements or components of the Building for which Subtenant
is responsible under this paragraph service space other than the Sublease
Premises, Subtenant shall only pay its Proportionate Share of such expenses. In
the event Subtenant assumes responsibility for any of the foregoing services
currently contracted by Sublandlord, Sublandlord shall pay to Subtenant promptly
after receipt of an invoice and supporting documentation Sublandlord's
proportionate share of such expenses, which proportionate share shall be 11.83%
unless Subtenant occupies the entire Building, in which event Sublandlord's
proportionate share shall be 0.
In addition, Subtenant shall reimburse Sublandlord Subtenant's Proportionate
Share of taxes and insurance expenses and any increase therein with respect to
the Premises required to be paid by Sublandlord under the Prime Lease, which
amounts shall be paid to Sublandlord along with Subtenant's monthly rent. The
first monthly reimbursement of said expenses shall be paid and delivered to
Sublandlord, together with the then escalated monthly rent under this Sublease,
in advance of the first day of the first month in which the rent becomes
Triple-Net, as per the Rent Schedule above. Sublandlord shall provide Subtenant
with a statement detailing such expenses no fewer than thirty (30) days before
the date when the Triple-Net rent becomes effective and at least thirty (30)
days before any escalation of such expenses.
After this Sublease converts to a "Triple-Net" lease on January 1, 2001,
Subtenant shall cause the exterior of the Sublease Premises to be maintained in
a manner consistent with the maintenance of the exterior of Sublandlord's leased
property on Swabia Court known as Lot S-5A containing
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five (5) acres as shown on plat of survey recorded in Plat Book 131, Page 87,
Durham County Registry (the "W&G Building"). Sublandlord shall provide to
Subtenant a schedule of exterior maintenance such as parking lot restriping,
parking lot sweeping, exterior painting, and window washing currently in place
(meaning as of the date Subtenant occupies the Sublease Premises) with respect
to the W&G Building. Subtenant shall not be obligated under this paragraph to
any level of service or maintenance with respect to the exterior of the Sublease
Premises greater than that in place for the W&G Building when Subtenant occupies
the Sublease Premises.
Throughout the Initial Sublease Term and any extension thereof, Sublandlord
shall notify Subtenant within thirty (30) days of any increase or decrease in
any reimbursable expenses once Sublandlord has received such information from
Prime Landlord. Sublandlord shall deliver to Subtenant such information
supporting or substantiating such expenses under the Prime Lease as Subtenant
may reasonably request.
Notwithstanding anything contained herein to the contrary, if, due to the gross
negligence or intentional misconduct of Prime Landlord or Sublandlord or their
respective employees, agents, representatives, or contractors, any of the
foregoing services is not continuously provided to Subtenant and such failure to
provide continues for ten (10) business days, rent shall xxxxx until such
service is restored, Sublandlord agreeing to exercise best efforts to restore
such service. In no event, however, shall Prime Landlord or Sublandlord be
liable to Subtenant for consequential damages as a result of any failure to
provide such services or as a result of the interruption in such services. The
foregoing shall not affect in any way the obligations of Sublandlord to pay rent
to Prime Landlord under the Prime Lease, which does not allow abatement of rent.
7. Sublandlord intends to continue to occupy after the Commencement
Date a portion of the Premises comprising the cafeteria, kitchen, and adjacent
lab area, totaling approximately 6,000 rentable square feet, and as is more
particularly shown in the attached Exhibit B (the "Retained Space"). During the
Initial Sublease Term or any extension thereof, Subtenant shall have a
continuous, exclusive Right of First Refusal on that portion of the Retained
Space which Sublandlord may make available for sublet.
Space subleased by Subtenant by Right of First Refusal shall be sublet on the
same terms and conditions of the Sublease. All space subleased under the Right
of First Refusal shall be delivered in "as-is" condition with Sublandlord's
personal property first removed, space broom-cleaned, and all mechanical systems
in good working order with all regularly scheduled maintenance first completed.
Subtenant shall have fifteen (15) days after receipt by Subtenant of written
notice to refuse that portion of the Retained Space being made available for
sublease.
Notwithstanding the foregoing, if Sublandlord opts to cease operations of its
cafeteria and has no plans to reutilize that portion of the Retained Space for
other purposes of its own, Subtenant, together with its Right of First Refusal
for the space, shall have a right to operate its own cafeteria facility. In
conjunction therewith, Subtenant shall have a Right of First Offer on the
tables, chairs, and all kitchen equipment owned by Sublandlord, said offer to be
made within 15 days of receiving notice as to its availability.
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8. Sublandlord grants Subtenant an option to extend the Initial
Sublease Term for three (3) renewal periods of two (2) years each (individually
or collectively, the "Extended Sublease Term") commencing upon the expiration of
the Initial Sublease Term on the same terms and conditions as contained in this
Sublease except rent. This option shall be exercised only by delivery of written
notice to Sublandlord no later than two hundred ten days (210) before the
Expiration Date or the expiration of any Extended Sublease Term. Rent for the
first year of the first Extended Sublease Term shall be the escalated
"Triple-Net" rental payable in the last year of the Initial Sublease Term
increased by four percent (4%) and increased each year thereafter by four
percent (4%). If Sublandlord receives at least two hundred ten (210) days
advance written notice of Subtenant's exercise of its options to extend the
Initial Sublease Term, Sublandlord shall timely exercise its renewal terms under
the Prime Lease as necessary to provide Subtenant the renewal term or terms
provided in this Section 8.
9. The Right of First Refusal belonging to Sublandlord per Section 7 of
the Third Amendment to Lease of the Prime Lease regarding the purchase of the
property on which the Sublease Premises is located shall not transfer under this
Sublease to Subtenant. Said First Right of Refusal shall remain valid, in force,
and available to Sublandlord.
10. Subtenant acknowledges that this Sublease shall not be effective
unless and until Prime Landlord's written consent is given.
11. Upon receiving any written notice, statement or other written
communication from Prime Landlord which pertains to the Premises or Sublease
Premises, the party receiving such notice shall promptly forward a copy of such
notice to the other.
12. It is understood and agreed by all parties hereto that neither the
sublease of the Sublease Premises nor anything contained in this Sublease shall
release Sublandlord from its duty and obligation to perform and be bound by all
the covenants, terms, and conditions contained in the Prime Lease with Prime
Landlord; provided, however, that Subtenant, except as expressly provided herein
to the contrary, shall perform all such duties and obligations and be bound by
such covenants, terms, and conditions in the first instance but only with
respect to the Sublease Premises.
13. Sublandlord agrees that if Subtenant pays all rents and other sums
due hereunder and performs all of the terms and conditions of this Sublease and
of the Prime Lease required hereunder, Subtenant's quiet enjoyment of the
Sublease Premises for the term of this Sublease shall not be disturbed or
interfered with by Sublandlord. Provided Subtenant pays all rents and other sums
due hereunder and performs all of the terms and conditions of this Sublease and
of the Prime Lease required hereunder, Sublandlord shall defend, indemnify, and
hold harmless Subtenant from all costs, expenses, liabilities, damages, actions,
and proceeding caused by Sublandlord's failure to pay the rent and other sums
due under the Prime Lease and to perform any obligations under the Prime Lease
that are the obligation of Sublandlord to perform.
14. Subtenant agrees that it will not assign this Sublease or sublet
the Sublease Premises without the prior written approval of Prime Landlord and
Sublandlord, which approval
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by Sublandlord will not be unreasonably withheld, conditioned, or delayed.
Acquisition of all or substantially all of the stock or assets of Subtenant by
an unrelated third party shall not be deemed an assignment or sublease or other
transfer of Subtenant's interest in this Sublease or the Sublease Premises
provided the following conditions are satisfied: (a) Subtenant shall give
Sublandlord written notice of such acquisition at least sixty (60) days before
the anticipated effective date of such acquisition (the "Effective Acquisition
Date"); (b) the acquirer of the stock or assets of Subtenant (the "Acquirer")
shall not be a competitor of Sublandlord or Prime Landlord in the reasonable
judgment of Sublandlord and Prime Landlord; (c) the Acquirer shall have a
creditworthiness equal to or greater than that of Subtenant as of the date
hereof in the reasonable judgment of Sublandlord and Prime Landlord; (d)
Subtenant shall not be in default hereunder as of the Effective Acquisition
Date; (e) the Acquirer shall execute and deliver to Sublandlord and Prime
Landlord a written acknowledgment of assumption of Subtenant's obligations under
this Sublease in form and substance acceptable to Sublandlord and Prime
Landlord; and (f) Subtenant shall not be released from its obligations hereunder
but shall continue to be liable for all obligations of Subtenant under this
Sublease. Subtenant shall provide to Sublandlord and Prime Landlord such
documents and information as may be reasonably requested in order to determine
whether the conditions in this Section 14 have been satisfied.
15. During the term of this Sublease, Subtenant, at its sole cost and
expense and for the mutual benefit of the Sublandlord, Prime Landlord and
Subtenant, shall carry and maintain casualty insurance for the full replacement
cost of the Sublease Premises and comprehensive public liability insurance,
including property damage, insuring Sublandlord, Prime Landlord, and Subtenant
against liability for injury to persons or property occurring in or about the
Sublease Premises arising out of the ownership, maintenance, use, or occupancy
thereof, and Subtenant shall name Sublandlord and Prime Landlord as additional
insureds hereunder. Said liability insurance shall be in amounts as called for
in the Prime Lease. On or before the Commencement Date, Subtenant shall deliver
to Sublandlord a copy of a Certificate of Insurance evidencing that such
insurance has been purchased and is in effect. Any insurance which Subtenant is
required to maintain under this Sublease shall include a provision which
requires the insurance carrier to give Prime Landlord and Sublandlord not fewer
than thirty (30) days' written notice before any cancellation or modification of
such coverage. Further, if Subtenant fails to maintain said liability insurance,
this act shall be a material breach of this Sublease, and Sublandlord may elect
any of its remedies under this Sublease, and, in addition, Sublandlord may
obtain such insurance on behalf of Subtenant, in which case Subtenant shall
reimburse Sublandlord for the costs thereof within fifteen (15) days after
receipt of a statement indicating the cost of such insurance. If Subtenant
cannot obtain casualty insurance for only the portion of the Premises containing
the Sublease Premises, Subtenant shall carry and maintain casualty insurance for
all of the Premises and Sublandlord, within fifteen (15) days after receipt of a
statement indicating Sublandlord's proportionate share of such premium, shall
reimburse Subtenant for the cost thereof. Sublandlord's proportionate share
shall be fifty-eight and ninety-two one hundredths percent (58.92%) when
Subtenant is leasing only the Initial Sublease Premises and eleven and eighty-
three one hundredths percent (11.83%) when Subtenant is leasing the Sublease
Premises. The casualty insurance to be maintained with respect to the Sublease
Premises (or with respect to the
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Premises if applicable) shall be payable to Sublandlord, and if such proceeds
shall be paid to Subtenant, Subtenant agrees to hold such proceeds in trust for
Sublandlord.
16. Subtenant shall not do or permit to be done or omit or permit to be
omitted any act or thing that will constitute or cause a breach or violation of
any of the terms, covenants, or conditions of the Prime Lease (to the extent
applicable to the Sublease Premises) or this Sublease. In addition, Subtenant is
expressly prohibited from using the Sublease Premises in a manner, or storing
materials therein, which would constitute an environmental violation under any
of the applicable laws, rules, or regulations. Each party will defend,
indemnify, and hold harmless the other from and against all losses, costs,
damages, expenses, liability, actions, orders, and proceedings, including
reasonable attorneys' fees actually incurred at standard hourly rates, which
such party may incur or pay out by reason of injuries to person or property
occurring in, on, or about the Sublease Premises, occasioned by the other
party's use, occupancy, negligence, or intentional acts or by reason of any
breach or default of this Sublease.
Sublandlord hereby represents that to the best of its knowledge ("Knowledge" is
defined for the purposes hereof as the actual knowledge of the officers of
Sublandlord who are directly engaged in the management of the sublease
transaction contemplated herein), Sublandlord knows of no facts or circumstances
related to environmental matters concerning the Sublease Premises that could
lead to any future environmental claims, liabilities, or responsibilities
against Subtenant. Sublandlord shall defend, indemnify, and hold Subtenant
harmless from all costs, expenses, losses, damages, liabilities, claims,
actions, orders, or proceedings (including attorney's fees) arising out of the
operations or activities or presence of Sublandlord on the Sublease Premises
relating to environmental matters.
17. Sublandlord makes no representation with respect to this
transaction or the Sublease Premises, except as specifically set forth herein,
and Subtenant expressly acknowledges that no such representations have been
made. Except as otherwise expressly provided in Exhibit A attached to and made a
part hereof and except as may be provided in any amendment to this Sublease ,
Subtenant takes possession of the Sublease Premises in their "as is" condition.
18. Any alterations, additions, or improvements made by Subtenant in
the Initial Sublease Premises or Expansion Sublease Premises, including those
contemplated to be made as set forth in Exhibit D attached hereto, shall be made
in compliance with the Prime Lease, performed in a good and workmanlike manner
by a bonded (if deemed necessary by Sublandlord and Prime Landlord in their
reasonable discretion, taking into account the cost and scope of the proposed
alterations, additions, or improvements), insured and reputable contractor, any
and all such work being subject to approval by Sublandlord and Prime Landlord,
which approval by Sublandlord and Prime Landlord shall not to be unreasonably
withheld, conditioned, or delayed in each case, and compliant with all relevant
building and fire codes. Subtenant shall permit no mechanic's liens to be placed
against the Sublease Premises or any portion thereof for services performed or
materials supplied at the request of or for the benefit of Subtenant; provided,
however, Subtenant shall have the right to contest the correctness or validity
of any such lien if, immediately upon demand by Sublandlord, Subtenant procures
and records a lien release bond in
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form and substance sufficient under the General Statutes of North Carolina to
release the Sublease Premises from such lien.
Notwithstanding anything contained herein to the contrary, except as expressly
contemplated by this Sublease with the consent of Prime Landlord and
Sublandlord, Subtenant shall not make any changes or take any actions which
would adversely affect the structural integrity of the Building, including
foundation, roof, and load-bearing walls, or the mechanical systems serving the
Building.
Notwithstanding anything contained herein to the contrary, the listing in
Exhibit D of certain work that Subtenant may desire to undertake does not
constitute Prime Landlord's or Sublandlord's approval of any of such items. No
alterations, additions, or improvements may be made without the prior approval
of Sublandlord and Prime Landlord, which approval shall not be unreasonably
withheld. Sublandlord and Prime Landlord reserve the right to approve or not
approve any work (subject to the foregoing reasonableness standard), including
the items hereinabove listed, after submission by Subtenant in good faith of
detailed plans and specifications which reasonably describe the scope and extent
of the proposed work, but Sublandlord and Prime Landlord shall have the burden
of showing beyond a commercially reasonable doubt that the improvements shown on
the submitted plans and specifications are not improvements contemplated by this
Sublease or are otherwise not in conformance with the Prime Lease or this
Sublease. Subtenant shall use reasonable efforts to deliver to Sublandlord and
Prime Landlord by July 1, 2000 the plans and specifications for the improvements
contemplated by Exhibit D.
19. Subtenant agrees at its expense to keep and maintain the Sublease
Premises in good repair and in a good, sanitary, and safe condition. If so
required by Prime Landlord or Sublandlord, and to the extent either Subtenant's
trade fixtures and equipment or the improvements, alterations, or additions
performed by Subtenant cannot be utilized in whole or in part by the next tenant
of the Sublease Premises, as determined by Sublandlord and Prime Landlord in
their reasonable discretion, upon expiration or sooner termination of the
Initial Sublease Term or any extension thereof, Subtenant shall remove its trade
fixtures and equipment and such alterations, improvements, or additions made by
Subtenant as required by Sublandlord and shall restore the Initial Sublease
Premises and Expansion Sublease Premises to the same condition and repair as
delivered to it at commencement, reasonable wear and tear and loss by insured
casualty excepted; provided that underground, under-floor, or behind-wall
elements or pipes or wiring are not required to be removed, Subtenant agreeing
that drains or other openings or apertures will be capped or filled as required
by Sublandlord or Prime Landlord.
20. In addition to funding and performing the Improvements outlined in
attached Exhibit A, upon (a) full-execution of this Sublease and receipt of
Consent of Prime Landlord to Sublease attached and (b) receipt of the Security
Deposit set forth in Section 25 hereof, Sublandlord shall pay Subtenant Thirty
Thousand Dollars ($30,000) (the "Cash Inducement"). The Cash Inducement may be
used by Subtenant for whatever purposes it pleases (e.g. telecommunication
expenses, signage, furniture, rent, other, etc.)
11
21. Subtenant shall, at its sole cost and expense, provide all of its
own telecommunication and networking needs, including installation of systems
and wiring in the Initial Sublease Premises and Expansion Sublease Premises.
Subtenant's telecommunications and networking equipment shall be installed in a
mutually acceptable location not to be within Sublandlord's existing
telecommunications closet.
Expressly notwithstanding anything contained herein or in the Prime Lease to the
contrary, Subtenant shall not be required to remove that portion of its
telecommunications and networking equipment located underground, behind walls,
or under floors upon vacating the Sublease Premises other than at its own
discretion.
Sublandlord intends to continue to locate and operate its telecommunications
equipment in the existing telecommunications closet located within the Initial
Sublease Premises. From time to time and with reasonable advance notice,
Sublandlord reserves the right to access this telecommunications closet for
means of service and installations during Subtenant's business hours.
Subtenant, at its expense, shall have the right to run fiber optic cable from
its premises at 0000 Xxxxxx Xxxxx to the Sublease Premises. Said right shall be
subject to the approval of Prime Landlord and all other relevant parties
requiring prior approval or permits. Subtenant shall promptly submit to
Sublandlord and Prime Landlord plans/schematics of said fiber optic
installations.
If so required by Prime Landlord or Sublandlord, upon expiration or sooner
termination of the Initial Sublease Term or any extension thereof, Subtenant
shall remove the entire length of fiber optic cable which may or may not include
that portion of cable running within the Sublease Premises. Upon said removal,
Subtenant shall reasonably repair and restore the ground and any part of the
structure impacted by said cable installation and removal.
22. Subtenant shall have the non-exclusive right to a maximum of one
hundred ten (110) parking spaces during the Initial Sublease Term and any
extension thereof, free of charge, which spaces shall be made available to
Subtenant on a non-exclusive basis in the area shown on Exhibit E attached
hereto.
23. Subtenant, at its sole cost and expense, may install signage on the
facade of the building on the Premises (the "Building") and at all monument and
directional sign locations which currently read or recently read "ATE". Before
the Commencement Date, Sublandlord, at its sole cost and expense, shall remove
the "WG" sign on the facade of the Sublease Premises. Said signage shall be
subject to the approval of Prime Landlord and Sublandlord, which approval by
Sublandlord shall not be unreasonably withheld, conditioned, or delayed, and
same shall be subject to all governmental permits and regulations as well as the
covenants of Imperial Center, the master-planned development in which the
Sublease Premises is located.
24. Subtenant shall have access to Sublandlord's on-site cafeteria.
Subtenant shall pay non-subsidized prices for all goods purchased and shall
comply with the rules, regulations,
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and hours of operation (6AM to 3PM) currently in place. Subtenant may not access
the cafeteria during planned corporate events of Sublandlord, which Sublandlord
shall make Subtenant aware of with reasonable advance written notice.
Access shall be limited only to those employees of Subtenant who are officed
within the Initial Sublease Premises or Expansion Sublease Premises, and their
guests. Subtenant shall require all of its employees and guests to comply with
the applicable rules and regulations of the cafeteria, with non-compliance
triggering Sublandlord's right to prohibit the violating individual or
individuals from further use of the cafeteria.
In good faith, Sublandlord is providing Subtenant with access to its cafeteria
as an amenity. However, Sublandlord shall have the right at any time during the
Initial Sublease Term or any extension thereof to cease operating a cafeteria
within the Building.
25. As security for Subtenant's obligations under this Sublease,
Subtenant shall deposit with Sublandlord, first, together with the payment made
at Sublease execution of the first monthly installment of rent, and if
applicable expenses and/or other personal property of Sublandlord purchased by
Subtenant, the sum of Forty-Five Thousand One Hundred Forty-Six Dollars and
Eighty-Four Cents ($45,146.84) AND second, together with the first payment of
monthly rent to be paid following the delivery of the Expansion Sublease
Premises, the sum of Forty-Nine Thousand Nine Hundred Five Dollars and
Sixty-Five Cents ($49,905.65). Sublandlord shall keep the security deposit
separate from its general funds and deposited in an interest-bearing account.
Subtenant shall be entitled to interest earned on the security deposit annually
or as accrued at the expiration of the Term or extension thereof.
The security deposit will not be a limitation on Sublandlord's damages or other
rights under this Sublease, or an advance on the payment of any amounts due from
Subtenant under this Sublease. If Subtenant pays all such due amounts and
performs all of its obligations under this Sublease, Sublandlord will return the
unused portion of the security deposit to Subtenant within thirty (30) days
after the end of the Initial Sublease Term or any extension thereof.
26. Subtenant shall not do or permit to be done or permit to be omitted
any act or thing in or with respect to the Sublease Premises which will
constitute or cause a breach or violation of any of the terms, covenants, or
conditions of the Prime Lease; provided, however, the foregoing shall not apply
to the obligation of Sublandlord to pay rent and other sums due under the Prime
Lease so long as Subtenant has fulfilled its obligations to Sublandlord
hereunder with respect to payment of rent and other sums reserved in this
Sublease.
27. The parties also agree that: (a) Subtenant shall use and occupy the
Sublease Premises for general office, manufacturing, research, and laboratory
purposes associated with the conduct of Subtenant's business, as is permitted
under the covenants of Imperial Center and all applicable zoning and other
governmental regulations; (b) Sublandlord's refusal to consent to or to approve
any matter or thing, whenever Sublandlord's consent or approval is required
under this Sublease or under the Prime Lease, shall be deemed reasonable if
Prime Landlord has refused to give such consent or approval, Sublandlord
agreeing to use reasonable efforts and
13
good faith to assist Subtenant in obtaining Prime Landlord's consent; (c) if for
any reason the term of the Prime Lease shall be terminated prior to the
Expiration Date (Sublandlord, and Prime Landlord by its consent hereto, agreeing
that the Prime Lease may not be terminated for any reason other than a default
by Sublandlord or Prime Landlord or other event (such as condemnation or
casualty) which allows either party to terminate pursuant to the terms of the
Prime Lease without Subtenant's prior written consent), this Sublease shall
thereupon be automatically terminated, and Sublandlord shall not be liable to
Subtenant by reason thereof, unless such termination shall have been affected
because of the breach or default by Sublandlord under the Prime Lease not
occasioned by any breach or default by Subtenant, but Subtenant shall be
entitled to whatever rights and remedies against the Prime Landlord that may be
available to Sublandlord in connection with such termination, provided, however,
that Subtenant shall receive from Sublandlord prompt notice of any default under
the Prime Lease by Sublandlord and Subtenant shall have the right to cure such
default; and (d) Subtenant acknowledges and agrees that in the event Subtenant
fails to vacate the Sublease Premises when required hereunder, Sublandlord may
incur damages under the terms of the Prime Lease. In such event, Subtenant
agrees to indemnify and hold harmless Sublandlord from and against any and all
costs, expenses and liabilities (including reasonable attorneys' fees actually
incurred at standard hourly rates) incurred by Sublandlord arising out of such
failure.
28. Subtenant shall have no right or interest in, and shall make no
claim with respect to, any condemnation proceeds or other compensation awarded
upon a total or partial taking of the Sublease Premises.
29. Sublandlord shall have no obligation or liability to Subtenant in
the event that Prime Landlord fails to perform any of its obligations under the
Prime Lease, unless such failure arose as a result of Sublandlord's defaulting
in the performance of any of Sublandlord's obligations under the Prime Lease
beyond any applicable cure periods contained therein. If the Sublease Premises
shall be destroyed or if so much of the Sublease Premises shall be damaged that
Subtenant cannot conduct its business therein, and if in the reasonable opinion
of a contractor or architect mutually satisfactory to Sublandlord and Subtenant
the Sublease Premises cannot be repaired or reconstructed within 150 days after
the occurrence of the casualty, Sublandlord and Subtenant, upon written notice
to the other, shall each have the right to terminate this Sublease within ten
(10) business days after receipt of the written opinion of the approved
contractor or architect. Upon such termination, rent and additional rent due
under this Sublease shall be prorated to the date of the occurrence of the
casualty and any sums paid by Subtenant with respect to a period beyond the date
of the casualty shall be reimbursed to Subtenant by Sublandlord. In the event
the damage or destruction can be repaired or reconstructed in fewer than 150
days after the occurrence of the casualty, this Sublease shall continue in force
and effect and Sublandlord shall proceed with restoration of the Sublease
Premises (excluding Subtenant's furniture, furnishings, fixtures, and
equipment). For the period of reconstruction or restoration, rent shall xxxxx as
of the date of the casualty, unless Subtenant is able to continue its occupancy
of the Sublease Premises for the normal conduct of its business during
restoration in which event rent shall be adjusted and prorated in the proportion
that the area of usable space bears to the area of the Initial Sublease Premises
or the Sublease Premises, as the case may be. Except for Sublandlord's gross
negligence or willful misconduct,
14
Sublandlord shall not be liable for any inconvenience or annoyance to Subtenant,
injury to the business of Subtenant, loss of use of any part of the Sublease
Premises by Subtenant, or loss of Subtenant's personal property resulting in any
way from such damage or the repair thereof. Sublandlord and Subtenant agree to
cooperate in good faith in connection with any reconstruction or repair in order
efficiently to schedule repair or restoration of the Sublease Premises and the
installation of Subtenant's furniture, furnishings, fixtures or equipment.
Notwithstanding the foregoing, however, if the Prime Lease is terminated as a
result of any such damage or destruction, then Sublandlord shall have no
obligations hereunder to repair or reconstruct. Further, in no such event shall
Sublandlord be required to undertake such reconstruction or repair unless the
insurance proceeds received for such purpose are sufficient to cover the entire
cost thereof or, if insufficient, unless Subtenant or Prime Landlord has agreed
to pay the difference between the cost of reconstruction or repair and insurance
proceeds received. The provisions of this paragraph shall expressly control over
any provision of the Prime Lease that would otherwise be the obligation of
Subtenant pursuant to the terms of this Sublease.
30. Default and Remedies: If Subtenant
(a) fails to pay within five (5) days of when due any rent or
any other sum of money which Subtenant is obligated to pay as provided in this
Sublease; or
(b) defaults in observing, performing, or keeping any other
term, provision, agreement, covenant, or obligation herein set forth and such
default shall continue and not be remedied within ten (10) business days after
written notice from Sublandlord specifying the default, or if such default
cannot be cured completely within the 10-business day period, if Subtenant does
not promptly commence within such period and thereafter proceed and continue
with due diligence to cure the same within thirty (30) days after receipt of
said written notice from Sublandlord; or
(c) files (or has filed against it and not stayed or vacated
within ninety (90) days after filing) any petition or action for relief under
creditors' law (including bankruptcy, reorganization, or similar action), either
in state or Federal court; or
(d) makes any transfer in fraud of creditors as defined in
Section 548 of the United States Bankruptcy Code, has a receiver appointed for
its assets (and such appointment shall not have been stayed or vacated within 30
days), or makes an assignment for the benefit of creditors;
then Subtenant shall be in default hereunder, and, Sublandlord, in addition to
any other lawful right or remedy which it may have, may do any one or more of
the following:
(i) declare the rent for the balance of the term
immediately due and payable, and collect the same less all sums
received from any re-letting of the Sublease Premises by distress or
otherwise, or in the event the Sublease Premises is not re-let, the
difference, if any, between the rent reserved hereunder for the
remainder of the Initial Sublease Term or any exercised Extended
Sublease Term reduced to present value at a
15
discount rate of eight percent (8%) per annum; provided, however, after
payment by Subtenant to Sublandlord of such sum, Sublandlord shall
remit to Subtenant any rent received from the re-letting of the
Sublease Premises with respect to the term of this Sublease for which
Subtenant paid Sublandlord accelerated rent, less any costs incurred by
Sublandlord in re-letting the Sublease Premises, including, but not
limited to, brokers' commissions and costs of readying the premises for
the third party's occupancy, the intent of the parties being that
Sublandlord shall not have a double recovery with respect to
accelerated rent paid by Subtenant. Sublandlord's obligation in the
preceding sentence shall survive termination of this Sublease;
(ii) with or without terminating this Sublease,
immediately or at any time thereafter, enter upon the Sublease
Premises, take possession thereof, and re-let the Sublease Premises or
any part thereof for such time or times and at such rental or rentals
and upon such other terms and conditions as Sublandlord, in
Sublandlord's sole discretion, may deem advisable, and Sublandlord may
make alterations or repairs to the Sublease Premises which Sublandlord
may deem necessary or proper to facilitate such re-letting; and
Subtenant shall pay all reasonable costs of such re-letting, including
the cost of any such reasonable repairs to the Sublease Premises,
together with all reasonable leasing commissions and other reasonable
expenses in seeking and obtaining a new tenant; and if this Sublease
shall not have terminated, Subtenant will continue to pay all rent due
under this Sublease up to and including the date of the beginning of
the payment of rent by any subsequent tenant of the Sublease Premises
and thereafter Subtenant shall pay monthly during the remainder of the
term of this Sublease the difference, if any, between the rent
collected from such subsequent subtenant or subtenants and the rent
reserved in this Sublease, but Subtenant shall not be entitled to
receive any excess of such rents collected over the rents reserved
therein;
(iii) immediately or at any time thereafter terminate
this Sublease (without demand to vacate the Sublease Premises) and this
Sublease shall be deemed to have been terminated upon the receipt by
Subtenant of such written notice of such termination and upon such
termination, Subtenant shall immediately vacate the Sublease Premises
and Sublandlord shall have and recover from Subtenant all damages
Sublandlord may suffer by reason of such termination, including,
without limitation, the inability of Sublandlord to re-let the Sublease
Premises, and the cost of any repairs to the Sublease Premises which
are necessary or proper to prepare the same for re-letting; and
(iv) re-enter the Sublease Premises, without notice,
either by summary proceedings or by any suitable action or proceeding
at law, and may have, hold, and enjoy the Sublease Premises, together
with all appurtenances thereto. Sublandlord's reasonable attorneys'
fees actually incurred at standard hourly rates in pursuing any of the
foregoing remedies or in collecting any rents due by Subtenant
hereunder shall be paid by Subtenant within five (5) days of demand
therefor.
31. Any notice, demand, request, direction, or other communication
required to be given by either party to the other shall be in writing and shall
be (a) delivered personally, and the
16
giving of such notice shall be complete on the date of delivery; (b) sent by
reputable overnight delivery service, and the giving of such notice shall be
complete on the immediately succeeding business day after such notice is
deposited with such delivery service for pick up on the business day of deposit;
or (c) sent by United States registered or certified mail, postage prepaid,
return receipt requested, and the giving of such notice shall be complete on the
day received or on the day acceptance of delivery is first refused; at the
following addresses:
IF TO SUBLANDLORD:
Wandel & Goltermann Technologies, Inc.
0000 Xxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
ATTN: Chief Financial Officer
WITH COPY TO:
Xxxxx & Xxx Xxxxx, PLLC
000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxxx
IF TO SUBTENANT:
Embrex, Inc.
0000 Xxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
ATTN: Vice President, Finance and Administration
WITH A COPY TO:
Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx, XX 00000
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
ATTN: Xxxxxxx X. Xxxxxx
WITH A COPY TO PRIME LANDLORD:
W & G Associates, a North Carolina limited partnership c/o
Wavetech Wandel & Goltermann, Inc.
Muhleweg-5
X-00000 XXXXXXX U.A.
Germany
ATTN: Xxxxx Xxxxxxxxxx
17
WITH COPY TO:
Xxxxxx, Xxxxxx & Xxxxx, P.A.
Highwoods Tower One
Suite 500
3200 Beechleaf Court
Raleigh, North Carolina 27604-1064
ATTN: Xxxx Xxxxxx
Either party may change its address by written notice to the
other.
32. Sublandlord and Subtenant each represent and warrant to the other
that it had no dealings with any broker or agent in connection with this
Sublease except for Vector Properties, LLC. Sublandlord shall be responsible for
payment of any and all fees payable to Vector Properties, LLC as a result of
this Sublease.
33. This Sublease and the exhibits incorporated herein by reference set
forth all of the agreements, covenants, representations and warranties of
Sublandlord and Subtenant. No modification or amendment of this Sublease shall
be binding or effective unless in writing signed by Sublandlord and Subtenant.
34. This Sublease shall be governed by the laws of the State of North
Carolina.
35. Time is of the essence hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease the
day and year first written above.
SUBLANDLORD:
WANDEL & GOLTERMANN TECHNOLOGIES,
INC., a North Carolina corporation
By: /s/ Xxxx Xxxxx
---------------------------------
Its: Vice President
--------------------------------
SUBTENANT:
EMBREX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Its: President & CEO
--------------------------------
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EXHIBIT A
IMPROVEMENTS AND WORK
Sublandlord shall, at its sole cost and expense, on or before the Commencement
Date of this Sublease perform the following improvements and work to the Initial
Sublease Premises:
o FURNITURE - Sublandlord shall provide for use by Subtenant, free of
charge, any office and systems furniture ("Furniture") currently
located within the Initial Sublease Premises and which Sublandlord does
not intend to remove for its own purposes. Subtenant may offer to
purchase said Furniture at any time prior to or during the Initial
Sublease Term.
o CEILING TILES - Replace any stained or broken ceiling tiles. Replace
additional tiles displaced or impacted by the installation of the
fire-rated Demising Wall.
o LIGHT FIXTURES - Replace any burned-out bulbs and repair any
malfunctioning ballasts.
o DEMISING WALLS - Install fire-rated demising walls between the Initial
Sublease Premises and the Expansion Sublease Premises (the width of the
building) and as necessary to construct a corridor from the Initial
Sublease Premises to the cafeteria.
o ALL SYSTEMS - Sublandlord shall deliver all systems, including Card
Reader System, in good working order, with all regularly scheduled
maintenance first completed.
Prior to delivery of the Expansion Sublease Premises, Sublandlord shall remove
all of its personal property, unless agreed to otherwise, shall broom clean the
Expansion Sublease Premises, and shall deliver all relevant HVAC systems in good
working order, with regularly scheduled maintenance first completed.
When the rent structure is adjusted from "Full-Service" to "Triple-Net", should
the Sublease Premises not be separately metered for all relevant utilities,
Sublandlord and Subtenant agree to work in good faith to install the appropriate
meters and to split the cost of said installations on a 50%/50% basis.
(REMAINDER OF PAGE LEFT INTENTIONALLY BLANK)
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EXHIBIT B
SUBLEASE PREMISES
21
EXHIBIT C
(PRIME LEASE AND AMENDMENTS)
NORTH CAROLINA
LEASE
DURHAM COUNTY LEASE
This LEASE AGREEMENT made and entered into as of the 1st day of October
1984, by and between W & G ASSOCIATES, a North Carolina general partnership with
its principal office in Durham County, North Carolina, hereinafter referred to
as "Landlord", and W & G INSTRUMENTS, INCORPORATED, a New Jersey corporation
with its principal office in Durham County, North Carolina, hereinafter referred
to as "Tenant."
WITNESSETH:
WHEREAS Landlord is the owner of a certain tract or parcel of land in
Durham County, North Carolina, commonly known as 0 Xxxxxx Xxxxx, Xxxxxx, Xxxxx
Xxxxxxxx, and being more particularly described in Exhibit A attached hereto and
being hereinafter referred to as the "Premises"; and
WHEREAS, Landlord has financed the construction of the improvements on
the Premises (together with the cost of the land) through borrowing from The
Durham County Industrial Facilities and Pollution Control Financing Authority
(the "Authority"), said loan funds to be raised by the Authority issuing and
selling its industrial revenue bond in the principal amount of $2,600,000 (the
"Bond") pursuant to a Bond Purchase Agreement with Wachovia Bank & Trust
Company, N.A. ("Wachovia"); and
WHEREAS, the said funds borrowed or to be borrowed by the Landlord from
the Authority is pursuant to a Loan Agreement dated as of October 1, 1984,
between the Authority and the Landlord (the "Loan Agreement") and is or shall be
represented by )Landlord's promissory note given to the Authority (the "Note");
and
WHEREAS Landlord desires to lease to Tenant and Tenant desires to lease
and hire from Landlord the Premises together with all improvements thereon, and
subject to all of the terms and conditions hereinafter set out;
NOW, THEREFORE, for and in consideration of the mutual covenants set
out herein and other good and valuable consideration, the parties covenant and
agree as follows:
1. DEMISE. Landlord hereby demises and leases to Tenant and Tenant
hereby takes and hires from Landlord the Premises, for the term and subject to
all the conditions hereof.
2. TERM.
2.1. Base Term. This lease shall commence on the date this
lease is executed and continue for fifteen (15) years thereafter.
2.2. Renewal Terms. Upon written notice given to Landlord by
Tenant at least ninety (90) days prior to the expiration of the term hereof or
any renewal term, Tenant may extend this Lease for five (5) additional
successive terms of two (2) years each; provided however, any such extended term
shall be subject to such terms and conditions, including, without limitation,
rents, as Landlord and Tenant may then mutually agree upon prior to expiration
of the original term or any renewal term. Any such extended term shall be
subject to all the terms and conditions hereof.
3. RENT.
3.1. Base Rent. During the initial term hereof Tenant shall
pay to Landlord an annual base rent of Three hundred and ninety thousand
($390,000.00) Dollars, payable in monthly installments of Thirty-two thousand
five hundred ($32,500.00) Dollars on or before the first (1st) day of each
month, in advance, without notice or demand therefor, throughout the term of
this Lease; provided, however, that if the aggregate of the monthly installments
paid by the
-2-
Tenant for the three months immediately prior to the due date for each quarterly
payment by Landlord under the Note, as described on page 1 hereof, is
insufficient to cover such quarterly payment, then Tenant shall pay as
additional rent such excess amount as is required to equal such quarterly
payment. Notwithstanding anything contained herein, the Landlord shall have the
right to increase the annual base rent at any time during the term hereof in
order that the annual base rent to be paid hereunder shall be in an amount at
least equal to the debt service under Landlord's Note given to the Authority, as
described on page 1 hereof. If the Lease shall commence on any day other than
the first day of a month, the rent shall be prorated for that partial month and
paid on or before the commencement date.
3.2. Net, Net, Net Lease. It is mutually agreed and understood
that this lease is one which is known in commercial practices as a net, net, net
lease, and all payments due hereunder to Landlord are net payments to be made
without deduction for whatever cause.
4. PRO RATA RENT. If the Premises are occupied by Tenant for any
fraction of a month, Tenant shall pay to Landlord base rent for such fraction of
a month on a pro rata basis for each day of occupancy, based on the monthly base
rental herein reserved. If Tenant's occupancy of the Premises ends, for any
reason provided for in this agreement, before the end of a month, Tenant shall
pay to Landlord for those days of occupancy up to and including Tenant's final
day of occupancy minus an amount equaling the total base rental paid by Tenant
to Landlord for that part of the month in which Tenant occupied the Premises.
5. USE OF PREMISES. The Premises shall be used by Tenant only to
conduct Tenant's business activities. Any other business to be operated on the
Premises shall be done only after prior written approval is granted by Landlord.
Tenant shall operate the Premises in such a manner that the same will be a
"project" within the meaning of Chapter 800 of the 1975
-3-
Session Laws of North Carolina, as amended, which as codified appears as Chapter
159C of the General Statutes of North Carolina.
5.1. Compliance with Laws. In occupying the Premises, Tenant
shall comply with all laws, ordinances, orders and regulations of any lawful
authority and shall keep the Premises in a neat and clean condition. Any failure
by Tenant to comply with the above mentioned requirements shall give Landlord
the option to terminate this lease by written notice to Tenant, without
prejudice to any other remedies Landlord may have for such breach.
5.2. Compliance with Bond Documents. Notwithstanding anything
contained herein, in the event that any of the terms or provisions of this Lease
conflict with any of the terms or provisions of the Bond Documents, as defined
in the Loan Agreement, then the latter shall control and Landlord and Tenant
shall comply with the applicable terms and provisions thereof.
5.3. Trade Fixtures. Tenant shall have the right to deliver to
and install in the Premises any equipment, trade fixtures, stock or other
material to be used by it in the operation of its business, and such delivery
and placing of trade fixtures, equipment or stock or other material in said
Premises shall constitute acceptance of the Premises by Tenant. All furnishings
and equipment used in the improvements and on the Premises and supplied and
installed at the sole cost and expense of Tenant at all times shall be the sole
property of Tenant.
5.4. Alterations. Tenant may, only with Landlord's written
consent, make improvements or alterations and additions to existing improvements
upon the Premises. Tenant shall have a continuing right, without Landlord's
consent, to erect, install, maintain. and operate on the Premises such
equipment, fixtures and signs as Tenant may deem advisable. It is mutually
agreed that with respect to the usual trade fixtures and equipment, including
without limitation, refrigerating equipment and interior signs which may be
installed in the Premises by Tenant prior
-4-
to or during the term hereof, such trade fixtures shall not be deemed to become
part of the Premises but shall remain chattels and the sole and exclusive
property of Tenant.
5.5 Removal of Tenant's Property. Tenant shall have the right
at any time during the term, and for a period of thirty (30) days after the
termination of this lease, to enter upon and remove from the Premises any of the
Tenant's equipment or trade fixtures. All damage caused to the Premises by such
removal shall be repaired by Tenant within ten (10) days after removal;
provided, however, that no such property shall be removed if such removal would
cause permanent injury to the building structure.
6. LANDLORD'S RIGHT TO ENTER. Landlord may, at all reasonable times,
enter the Premises to inspect, repair, alter or add to the same; exhibit the
same to prospective tenants, purchasers or other persons; and, in the event
Tenant has vacated the Premises, to repair the same for re-occupancy by another
tenant. Such entry by Landlord shall not constitute an eviction of Tenant, or a
deprivation of any right of Tenant and shall not alter the obligations of Tenant
hereunder nor create any right in Tenant adverse to Landlord.
7. MAINTENANCE. Tenant, at its sole cost and expense, shall maintain
and keep in good repair the foundation, roof, exterior walls and the paved
parking lot. All maintenance, including, but not limited to, the interior of the
building, exterior doors, signs, windows, electrical, plumbing, heating and air
conditioning systems, etc., shall be the responsibility of the Tenant and shall
be done at Tenant's sole cost and expense. Upon the termination of this lease
Tenant shall surrender the Premises to Landlord in as good a condition as
existed at the time of its initial occupancy, ordinary wear and tear after
diligent maintenance and damage or destruction by fire or other casualty
excepted. If Tenant defaults in keeping or performing its obligations hereunder,
Landlord, shall have the right, after fifteen (15) days notice (except no
-5-
notice need to be sent in cases of emergency) to keep or perform Tenant's
obligation in its behalf and the cost of same shall be additional rent and shall
be added to the next rent payment as the same becomes due.
8. UTILITIES. Tenant shall pay for all sewer, water, gas, electric,
telephone and other utilities used or consumed in or at the Premises.
9. TAXES. Tenant shall promptly pay as and when the same become due and
payable, all taxes and special assessments upon the Premises and all personal
property located thereon by the Tenant, except franchise, income, estate and
inheritance or other similar taxes which may be levied or assessed against the
Premises. If Tenant defaults in keeping or performing its obligations hereunder,
Landlord shall have the right after fifteen (15) days written notice to Tenant
to perform the same in Tenant's behalf and the cost of same shall be additional
rent and shall be added to the next rental installment as it becomes due.
10. TENANT'S RIGHT TO CONTEST. Tenant, at its option, shall have the
right, at its own cost and expense and for its sole benefit, to initiate and
prosecute any proceedings permitted by law for the purpose of obtaining an
abatement of or otherwise contesting the validity or amount of taxes or special
assessments assessed to or levied upon the demised Premises and required to be
paid by the Tenant hereunder and to defend any claims for liens that maybe
asserted against Landlord's estate; and, if required by law, the Tenant may take
such action in the name of the Landlord, who shall cooperate with Tenant to such
extent as the Tenant may reasonably require, to the end that such proceedings
may be brought to a successful conclusion; provided, however, that the Tenant
shall fully indemnify and save the Landlord harmless from all loss, cost, damage
and expense incurred by or to be incurred or suffered by the Landlord.
-6-
11. INSURANCE. Tenant, at its sole cost and expense, shall keep the
Premises and the buildings and improvements thereon insured to the extent of the
full replacement value thereof against loss or damage by fire or other casualty,
with extended coverage. Tenant shall provide to Landlord evidence of such
insurance and, additionally, such policies shall name Landlord as an additional
insured thereunder and shall be non-cancellable absent thirty (30) days' prior
written notice to Landlord.
12. DAMAGE OR DESTRUCTION OF PREMISES. If the building on the Premises
shall be damaged by fire or other casualty, Tenant will, within ninety (90) days
from the date of said damage or destruction, repair, restore or replace said
building so that the same will thereafter be in as good a condition as existed
immediately prior to such fire or other casualty. It is further agreed that if
said building cannot be replaced, restored or repaired in ninety (90) days due
to the inability of Tenant to obtain materials and labor needed therefor because
of strikes, acts of God, or governmental restrictions that would prohibit, limit
or delay said construction, then the time for completion of such repair or
replacement shall be extended accordingly; provided, however, that in any event,
if the repair, restoration or replacement of the building has not been completed
within a period of six months from the date of said damage or destruction
Landlord or Tenant may, at its option, terminate this lease. Provided, further,
however, that if this lease is terminated under the provisions of this
paragraph, all insurance proceeds otherwise payable to Tenant for repair of said
damage or destruction shall be paid by Tenant to Landlord, except to the extent
that said insurance proceeds are for damage to Tenant's equipment and fixtures
on the Premises.
13. EMINENT DOMAIN. In the event the Premises are made subject to a
proceeding by which the right of eminent domain is exercised, or any like
proceedings, Landlord and Tenant shall join and cooperate in resisting such
proceeding if such resistance is feasible and desirable,
-7-
and if it is not, shall join and cooperate in prosecuting their respective
claims for damages incurred from the successful exercise of such right or
proceeding. Tenant reserves unto itself all damages awarded which are based upon
its leasehold interest and ownership of trade fixtures, signs and equipment or
interruption of business.
If the whole of the demised Premises shall be taken or condemned by any
competent authority for any public use or purpose during the term of this lease,
all obligations of Tenant shall cease upon the date Tenant vacates the Premises
or upon the date of such taking, whichever is later, and any unearned rent paid
by Tenant shall be refunded.
In the event that a part of the demised Premises shall be taken or
condemned, and:
(a) The part so taken includes the building on the demised
Premises or any part thereof; or
(b) Such partial taking shall result in cutting off access
from the demised Premises to any adjacent public street or
highway; or
(c) Such partial taking in any other way reduces or damages
the Premises to an extent that the same may not be
effectively used for the purposes hereof;
then, and in any such event, the Tenant may at any time, either prior to or
within a period of sixty (60) days after the date when possession of the
Premises shall be required by the condemning authority, elect to terminate this
lease. In the event that Tenant shall fail to exercise any such option to
terminate this lease, or in the event that a part of the demised Premises shall
be taken or condemned under circumstances under which the Tenant will have no
such option, then in either such event this lease shall continue in effect with
respect to the portion of the demised Premises not so taken, and Landlord will,
with all due diligence and at its own cost and expense, repair and
-8-
restore the demised Premises or what may remain thereof to as near their former
condition as is practicable, in which event all proceeds shall belong to the
Landlord. Until the completion of such work, the obligation of the Tenant to pay
rent shall xxxxx and, upon completion, the monthly rent due Landlord under this
lease shall be equitably adjusted to compensate Tenant for any loss sustained in
area and usability. If Tenant terminates this lease under the provision of
paragraph 13, then Landlord shall be entitled to all proceeds of the
condemnation award, subject to the provisions of paragraph 5.2 hereof.
14. INDEMNIFICATION OF LANDLORD. Tenant shall indemnify and save
Landlord harmless from all liability, expenses, claims, causes of action,
actions and judgment for personal injury, loss of life or property damage
suffered in, upon and about the Premises and Tenant shall provide to Landlord,
at Tenant's expense, a defense to such claims, except such as may be result of
the negligence of Landlord. In addition to, and not in lieu of the foregoing
indemnification, Tenant shall provide and keep in force during the term of this
lease and any extension of said term for the benefit of Landlord, a
comprehensive general public liability insurance policy insuring Landlord
against loss resulting from any of the foregoing; said policy to provide minimum
coverage in the amount of $1,000,000 per occurrence with respect to bodily
injury to any one or more persons and $500,000 per occurrence with respect to
property damage. Such insurance may be carried under a blanket policy covering
the Premises and other locations of Tenant, but such policy shall bear an
endorsement making it non-cancellable absent ten (10) days prior written notice
to Landlord. Tenant shall also provide and keep in force during the term of this
Lease and any extensions of said term, workers compensation insurance as
required by applicable law.
-9-
15. DEFAULT OF TENANT. If Tenant shall fail to pay any installments of
rent when due after ten (10) days written notice of such default, or if Tenant
shall fail to keep and perform any other covenant of this lease and shall
continue in default for a period of thirty (30) days after Landlord has given
Tenant written notice of such default and demand of performance, or if any court
or tribunal shall commence any proceedings, whether voluntary or involuntary to
declare Tenant insolvent or unable to pay its debts; or if there is a filing by
or on behalf of or against Tenant of any petition or pleading to declare Tenant
a bankrupt under any bankruptcy law or act; or if there is an appointment by any
court under any law of a receiver, custodian or trustee of the business or
assets of Tenant; or the assignment by Tenant of all or any part of its property
or assets for the benefit of creditors, then Landlord may declare the term ended
and enter upon the Premises and expel Tenant therefrom without prejudice to
other remedies of Landlord. No such entry by Landlord shall bar Landlord from
the recovery of damages for the breach of any covenant hereof by Tenant.
Provided, however, if any default shall occur (other than in the payment of
rent) which cannot with due diligence be cured within a period of thirty (30)
days from and after the giving of notice as aforesaid, and Tenant commences to
eliminate such default and proceeds diligently to take steps to cure the same,
Landlord shall not have the right to declare the term ended by reason thereof.
Except for non-payment of rent, no liens upon the trade fixtures, equipment or
signs erected or placed on the Premises by Tenant shall arise or be erected in
Landlord's favor by virtue of any default by Tenant hereunder.
16. COVENANT OF QUIET ENJOYMENT. Landlord covenants and warrants that
Landlord alone has full right and authority to enter into this lease for the
full term hereof; and that at all times when Tenant is not in default hereunder
in its covenants and during the term of
-10-
this lease, Tenant's quiet and peaceful enjoyment of the Premises shall not be
disturbed or interfered with by anyone.
17. HOLDING OVER. In the event Tenant remains in possession of the
Premises after the expiration of the initial term hereof or any extension Tenant
shall occupy the Premises as a tenant from month to month, subject to all the
conditions of this lease insofar as consistent with such a tenancy.
18. SUBORDINATION. This Lease Agreement is specifically and in all
respects subordinate to any and all deeds of trust encumbering the demised
Premises whether now existing or hereafter arising, and Tenant agrees from time
to time, upon demand, to execute any and all instruments as may be required to
evidence such subordination.
Landlord agrees to utilize its best efforts to obtain at Tenant's
request a non-disturbance agreement executed by any mortgagees on deeds of trust
covering the Premises providing that so long as the Tenant is not in default in
the performance of its obligations hereunder that such mortgagees will not
interfere with the leasehold interest of Tenant.
19. MONETARY CURE. Any default by the Tenant hereunder which is
susceptible to monetary cure by Landlord may be so cured and the cost thereof
shall be additional rent due and payable with the next due monthly installment
of base rent.
20. PROHIBITION AGAINST ASSIGNMENT. Tenant may not, without the written
consent of Landlord, sublet, assign, or encumber this lease to any person,
natural or corporate, whomsoever. In the event of such written consent by
Landlord, Tenant shall remain primarily liable for the keeping and performance
of all its covenants hereunder, including but not limited to, the prompt and due
payment of rent.
-11-
21. BINDING EFFECT; CONSTRUCTION. Each and every provision of this
lease shall bind and inure to the benefit of the parties hereto, their legal
representatives, heirs, successors and assigns. Feminine or neuter pronouns
shall be substituted for those of the masculine form and the plural for the
singular number in any place or places herein in which the context may require
the same. This agreement is made in the State of North Carolina and is to be
construed in accordance with and take effect under the laws of the State of
North Carolina. The captions and headings throughout this lease are inserted for
the convenience and reference of the parties only and in no way shall they be
held or deemed to limit, define, modify, amplify or add to the interpretation,
construction or meaning of any provision of or intent of this lease, nor in any
other way affect this lease.
22. NOTICE. Any notice necessary to be given hereunder for whatever
reason shall be deemed duly given if delivered personally, on the date of
delivery, or by certified mail, postage prepaid, return receipt requested, upon
the date of mailing, to the Landlord:
W & G Associates
c/o W. Xxxxxx Xxxxxx
P. O. Box 3843
Xxxxxx, Xxxxx Xxxxxxxx 00000
to the Tenant:
W & G Instruments, Incorporated
Attn:. Xxxx Xxxxxxxxxx, Executive Vice President
0 Xxxxxx Xxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
23. ENTIRE AGREEMENT. This lease contains all of the agreements and
conditions made between the parties and no statement, promises or inducements
made by any party hereof, or agent or employee of either party hereto, which is
not contained in this written contract, shall be valid or binding; and this
lease may only be modified or amended by an agreement in writing
-12-
signed by all parties hereto or their respective successors in interest and
appended hereto, and, so long as the Note shall remain outstanding, agreed to by
Wachovia as the Holder of the Bond, and the Authority.
24. MEMORANDUM OF LEASE. The parties hereto agree to execute a
Memorandum of Lease suitable for recording upon the request of either party.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused this
lease to be executed in their behalf in the manner prescribed by law on the day
and year first above written.
LANDLORD:
W & G ASSOCIATES
By:
--------------------------------
Managing Partner
WITNESS:
----------------------------
TENANT:
W & G INSTRUMENTS, INCORPORATED
By:
--------------------------------
President
ATTEST:
----------------------------
Secretary
[Corporate Seal]
-13-
NORTH CAROLINA
DURHAM COUNTY
I, ______________________, a Notary Public of said state and county
certify that _____________ personally appeared before me this day and
acknowledged that he is Managing Partner of W & G Associates, a North Carolina
general partnership, and that he signed the foregoing Lease.
Witness my hand and notarial seal this the ___ day of ________________,
1984.
---------------------------
Notary Public
My Commission Expires:
--------------------------
NORTH CAROLINA
DURHAM COUNTY
I, ______________________, a Notary Public of said state and county
certify that _____________ personally appeared before me this day and
acknowledged that he is Secretary of W & G Instruments, Incorporated and that by
authority duly given and as the act of the corporation, the foregoing Lease was
signed in its name by its _____ President, sealed with its corporate seal, and
attested by himself as its Secretary.
Witness my hand and notarial seal this the ___ day of ________________,
1984.
---------------------------
Notary Public
My Commission Expires:
---------------------------
-14-
EXHIBIT A
BEGINNING at an iron pipe set located in the right-of-way line of a cul-de-sac
at the northern end of Swabia Court, said point having North Carolina Grid
Coordinates X=2,045,606.25 and Y=773,399.78; running thence North 01(degree) 33'
22" East 706.93 feet to a new iron pipe, said iron pipe being located South
88(degree) 26' 38" East 1,534.22 feet from an existing iron pipe in the eastern
right-of-way line of North Carolina Highway 54; thence South 88(degree) 26' 38"
East 749.96 feet to a Black Gum Tree, said tree being further identified with a
P. K. nail set in its tree trunk on the south side; thence South 01(degree) 33'
13" West 881.45 feet to a new iron pipe; thence North 88(degree) 26' 38" West
700.99 feet to a new iron pipe located in the eastern right-of-way line of
Swabia Court; thence North 09(degree) 34' 52" West 64.28 feet to a point; thence
along a curve to the right in a northeasterly direction having a radius of 25
feet an arc distance of 22.39 feet to a point; thence along a curve to the left
in a northwesterly direction having a radius of 55 feet an arc distance of
124.96 feet to an iron pipe, the point and place of BEGINNING, containing 15.00
acres, all according to that survey entitled W & G Associates dated October 5,
1984 and prepared by Xxxxxxx Close, Inc., Registered Land Surveyor.
NORTH CAROLINA
DURHAM COUNTY AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement made and entered into as of the 31st
day of January, 1986, by and between W & G Associates, a North Carolina general
partnership with its principal office in Durham County, North Carolina,
hereinafter referred to as "Landlord" and Wandel & Goltermann, Inc. (formerly
W & G Instruments, Inc.), a New Jersey corporation with its principal office in
Durham County, North Carolina, hereinafter referred to as "Tenant".
WITNESSETH:
WHEREAS, Landlord and Tenant previously entered into a Lease Agreement
dated the 1st day of October, 1984, with respect to a certain tract or parcel of
land in Durham County, North Carolina, commonly known as Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxx Xxxxxxxx, and being more particularly described in the exhibit
attached to said Lease Agreement; and
WHEREAS, Landlord has financed the cost of the leased premises through
borrowing from the Durham County Industrial Facilities and Pollution Control
Financing Authority, said loan represented by bonds issued by the authority and
purchased by Wachovia Bank & Trust Company, N.A.; and
WHEREAS, Wachovia Bank & Trust Company, N.A. as purchaser and holder of
the bonds has consented to the amendment as provided herein; and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease
Agreement as provided herein;
-1-
NOW, THEREFORE, for and in consideration the mutual promises set out
herein and other good and valuable consideration, the parties covenant and agree
as follows:
1. The Lease Agreement previously entered into by and between Landlord
and Tenant and dated October 1, 1984 is amended by the deletion of Paragraph 2
thereof and the insertion of the following in lieu thereof:
"2. TERM. The term of this lease shall extend to and including the 90th
day from and after the mailing of notice (registered mail, return
receipt requested) of termination of the lease by the Landlord or the
Tenant."
In all other respects, the Lease Agreement between the Landlord and
Tenant dated October 1, 1984 is hereby ratified and confirmed.
This the day and year first above written.
LANDLORD
W & G ASSOCIATES
By:
------------------------------
Managing Partner
TENANT
WANDEL & GOLTERMANN, INC.
(formerly W & G Instruments, Inc.)
By:
------------------------------
Executive Vice President
ATTEST:
------------------------------
Secretary
(Corporate Seal)
-2-
NORTH CAROLINA
DURHAM COUNTY
I, XXXX X. XXXXXX , a Notary Public of said County and State do hereby
certify that XXXXX XXXXXXXXXX BY W. XXXXXX XXXXXX, ATTY. IN FACT Managing
Partner of W & G Associates, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
Witness my hand and notarial seal, this the 29th day of JANUARY , 1986.
------------------------------
Notary Public
My Commission Expires:
March 1, 1989
------------------------------
NORTH CAROLINA
DURHAM COUNTY
I, _______________________, a Notary Public of said state and county
certify that ____________________________________, Secretary, of Wandel &
Goltermann, Inc. (formerly W & G Instruments, Inc.), personally appeared before
me this day and acknowledged that he is Secretary of such corporation and that
by authority duly given and as the act of the corporation, the foregoing
document was signed in its name by its Executive Vice President, sealed with its
corporate seal, and attested by himself as its Secretary.
Witness my hand and notarial seal this the ___ day of
___________________, 1986.
------------------------------
Notary Public
My Commission Expires:
------------------------------
NORTH CAROLINA
DURHAM COUNTY AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (the "Amendment") effective as of the 1st day
of October, 1989, by and between Xxxxx Xxxxxxxxxx, hereinafter referred to as
"Landlord" and Wandel & Goltermann Technologies, Inc., a New Jersey corporation
with its principal office in Durham, North Carolina, hereinafter referred to as
"Tenant".
WITNESSETH:
WHEREAS, W & G Associates, a North Carolina general partnership, and W
& G Instruments, Incorporated, a New Jersey corporation, entered into that
certain lease agreement (hereinafter the "Lease Agreement") as of the 1st day of
October, 1984 for a tract of land commonly known as 0 Xxxxxx Xxxxx, Xxxxxx,
Xxxxx Xxxxxxxx (the "Premises"); and
WHEREAS, Xxxxx Xxxxxxxxxx has succeeded to all of the interests of W &
G Associates and is now the sole owner of the Premises which is the subject of
the Lease Agreement; and
WHEREAS, W & G Instruments, Incorporated has changed its name to Wandel
& Goltermann Technologies, Inc.; and
WHEREAS, the parties desire to amend the Lease Agreement as hereinafter
set out, effective October 1, 1989;
NOW, THEREFORE, for and in consideration of the mutual agreements set
forth herein and other good and valuable consideration, the parties covenant and
agree as follows:
1. Rent. The annual base rent for the remainder of the Base Term (as
set forth in the Lease Agreement) shall be $8.00 per square foot, payable in
equal monthly installments as set forth in the Lease Agreement. The parties
agree and acknowledge that the Premises contains
-1-
50,725 square feet. The base rent shall be adjusted annually on each October
1st, beginning October 1, 1990 for any increase in the Consumer Price Index for
Urban Consumers, U.S. City Average - All Items, published by the Bureau of Labor
Statistics of the United States Department of Labor (the "CPI Index"). The Base
CPI Index shall be the Index for the month of September, 1989, and the
corresponding Index number for the month of September of each subsequent year
shall be the then "Current Index Number" as applicable. Prior to each October 1,
the Current Index Number shall be divided by the Base Index Number. From the
quotient thereof, there shall be subtracted the integer one (1), and any
resulting positive number shall be deemed to be the percentage of increase in
the cost of living. The percentage of increase multiplied by $8.00 per square
foot, the original annual rental rate, shall be the increase in rent required to
be determined by this Amendment. The increase so determined shall be added to
the Base Rent of $8.00 per square foot and Tenant agrees to pay the larger rent
amount beginning on October 1st of each year during the term of the Lease
Agreement. The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increase, give the Tenant notice
of any increase so determined, and the Landlord's computation shall be
conclusive and binding upon the Tenant. This provision shall not preclude any
adjustment which may be required in the event of a published amendment of the
Index figures upon which the computation was based.
2. Amendment. The parties agree to record this Amendment or a
memorandum thereof in the Durham County Register of Deeds upon the request of
either party.
Except as set forth in this Amendment, the terms and conditions of the
Lease Agreement shall remain in full force and effect. Capitalized terms not
defined in this Amendment shall have the meaning set forth in the Lease
Agreement.
-2-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment in
their behalf in the manner prescribed by law effective on the day and year first
above written.
LANDLORD:
(SEAL)
----------------------------
Xxxxx Xxxxxxxxxx
TENANT:
WANDEL & GOLTERMANN TECHNOLOGIES,
INC.
By:
------------------------------
Attest: President
------------------------------
Secretary
[Corporate Seal]
-3-
NORTH CAROLINA
_________ COUNTY
I, , a Notary Public of said County and State do hereby certify that
Xxxxx Xxxxxxxxxx personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and notarial seal, this the ___ day of _______________,
1991.
------------------------------
Notary Public
My Commission Expires:
------------------------------
NORTH CAROLINA
_________ COUNTY
I, _______________________________, a Notary Public of said state and
county certify that ________________________________ personally appeared before
me this day and acknowledged that he is_________________ Secretary of Wandel &
Goltermann Technologies, Inc. and that by authority duly given and as the act of
the corporation, the foregoing instrument was signed in its name by its
_________ President, sealed with its corporate seal, and attested by himself as
its ____________ Secretary.
Witness my hand and notarial seal, this the ___ day of _______________,
1991.
------------------------------
Notary Public
My Commission Expires:
------------------------------
Kreisstadt Reutlingen
Land Baden-Wurttemberg
I, Xxxxxxxx Xxxx, a Notary Public of said County do hereby certify that Xxxxx
Xxxxxxxxxx personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and notarial seal, this the 19 day of August, 1991.
Notariat Reutlingen
My Commission Expires:
unlimited
(Xxxx) Xxxxx
NORTH CAROLINA
DURHAM COUNTY THIRD AMENDMENT TO LEASE AGREEMENT
This Third Amendment to Lease Agreement (the "Third Amendment") made
and entered into as of the 24 day of January, 1994, by and between WANDEL &
GOLTERMANN ASSOCIATES, a North Carolina general partnership with its principal
office in Durham County, North Carolina ("Landlord") and WANDEL & GOLTERMANN
TECHNOLOGIES, INC., a North Carolina corporation with its principal office in
Durham County, North Carolina ("Tenant").
WITNESSETH:
WHEREAS, W & G Associates, a North Carolina general partnership, and W
& G Instruments, Incorporated, a New Jersey corporation, previously entered into
that certain Lease Agreement dated October 1, 1984 and amended January 1, 1986
and October 1, 1989 (collectively the "Lease Agreement") with respect to a
certain tract or parcel of land containing ten (10) acres in Durham County,
North Carolina, commonly known as Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx, and
more particularly described in Exhibit A, Book 1932, Page 293 of the Durham
county Registry, attached hereto (the "Premises");
WHEREAS, Wandel & Goltermann, Inc., a New Jersey corporation, fully
succeeded to all of the interests of W & G Instruments, Incorporated as the
tenant in said Lease Agreement;
WHEREAS, W & G Associates and Wandel & Goltermann, Inc., amended the
Lease Agreement on January 31, 1986;
WHEREAS, Xxxxx Xxxxxxxxxx fully succeeded to all of the interests of W
& G Associates as the landlord in the Lease Agreement and became the sole owner
of the Premises which is the subject of the Lease Agreement;
WHEREAS, Wandel & Goltermann, Inc. changed its name to Wandel &
Goltermann Technologies, Inc.;
WHEREAS, Xxxxx Xxxxxxxxxx and Xxxxxx & Xxxxxxxxxx Technologies, Inc.
amended the Lease Agreement on October 1, 1989;
WHEREAS, Landlord has fully succeeded to all of the interests of Xxxxx
Xxxxxxxxxx as the landlord in the Lease Agreement and is now the sole owner of
Premises which is the subject of the Lease Agreement;
WHEREAS, Landlord and Tenant mutually desire to amend the Lease
Agreement as provided herein, effective October 1, 1993.
-1-
NOW, THEREFORE, for and in consideration of the mutual agreements as
set forth herein and other good and valuable consideration, the parties covenant
and agree as follows:
1. The Lease Agreement is amended by the deletion of paragraph 2
thereof and the insertion of the following in lieu thereof:
2. TERM. The term of this Lease Agreement shall extend to and including
September 30, 2005. Upon written notice (certified or registered mail,
return receipt requested) at least six (6) months prior to the
expiration of the term hereof or any renewal term, Tenant may extend
the Lease Agreement for three (3) successive renewal terms of two (2)
years each.
2. The Lease Agreement is amended by the deletion of the first sentence
of Paragraph 1 of the Amendment To Lease dated October 1, 1989 and the insertion
of the following in lieu thereof:
The annual base rent for the year beginning October 1, 1989 shall be
$8.00 per square foot, payable in equal monthly installments as set
forth in the Lease Agreement. The parties agree and acknowledge that
the Premises contains 50,725 square feet.
3. The Lease Agreement is amended by the addition of the following to
Paragraph I of the Amendment To Lease dated October 1, 1989:
If the Lease Agreement is renewed by Tenant, Tenant's rent to Landlord
shall be adjusted annually on each October 1st, to an amount equal to
the higher of: (a) the base rent of $8.00 plus additional rent
adjustments reflecting the increase in the Base CPI Index from
September, 1989 as provided herein or (b) the fair market rental value
as determined by an appraisal conducted by a mutually acceptable
realtor or appraiser. The appraisal to determine the fair market rental
value shall be at the Landlord's expense.
4. The Lease Agreement is amended by the deletion of the first sentence
of Paragraph 5.4 and the insertion of the following in lieu thereof:
Tenant acknowledges that all upfit work on the Premises has been
completed and accepts the Premises "as is." Tenant may make alterations
and additions to the existing improvements on the Premises; provided,
however, that all additional tenant alterations and additions will be
performed by Tenant at Tenant's cost and that, prior to conducting any
alterations or additions, Tenant shall obtain Landlord's written
consent to such alterations or additions, which consent shall not be
unreasonably withheld. At the expiration of the lease term, if so
requested by Landlord, Tenant shall restore at its own cost the
Premises to the condition and repair as at the commencement of the
lease term, natural wear and tear excepted.
-2-
5. The Lease Agreement is amended by the addition of the following to
Paragraph 5.4
Landlord may construct buildings or make other structural improvements
upon the Premises; provided, however, that all Landlord construction or
structural improvements will be performed by the Landlord at Landlord's
cost and that, prior to conducting any construction or structural
improvement, Landlord shall notify Tenant of such construction or
improvement activities. Landlord shall not unreasonably burden Tenant's
use of the Premises and, at no time, shall the sidewalks, office
entrances, parking or public areas be unreasonably blocked or
interfered with as a result of such construction activities.
6. The Lease Agreement is amended by the deletion of Paragraph 20
thereof and the insertion of the following in lieu thereof:
20. SUBLEASE AND ASSIGNMENT. Tenant may sublet all or portions of the
Premises for the remainder of the term or any renewal term, as the case
may be, with Landlord's approval, which shall not be unreasonably
withheld. No subletting by Tenant shall affect its obligations to
perform all of its covenants under this Lease Agreement. Landlord and
Tenant each may assign or transfer its respective right, title, and
interest in and to this Lease Agreement to an affiliate without the
other party's consent. No such assignment or transfer shall release the
assigning party of any obligation or liability hereunder unless the
other party specifically agrees in writing to such release.
7. The Lease Agreement is amended by the addition of the following as
Paragraph 25:
25. RIGHT OF FIRST REFUSAL. It is agreed that if Landlord, at any time
during the term of this Lease Agreement or any renewal term hereof,
receives any bona fide offer from a third party to purchase the
Premises, and any such offer is acceptable to Landlord, Landlord agrees
to notify Tenant in writing, giving name and address of the offeror and
the price, terms and conditions of such offer, and Tenant shall have
twenty (20) business days from and after the receipt of such notice
from Landlord in which to elect to purchase the Premises on the terms
and conditions contained in said bona fide offer. If Tenant does not
elect to purchase, and Landlord sells the Premises to the third party
making such offer, then the purchaser shall take the Premises subject
to and burdened with all the terms, provisions, and conditions of this
Lease, and the rights of Tenant under this Lease as against the new
owner shall not be lessened or diminished by reason of the change of
ownership. If Tenant purchases the Premises, then contemporaneously
with the conveyance of the property to Tenant, this Lease Agreement
shall become null and void, without further notice and Tenant shall
thereupon be released and discharged from all further rentals and other
obligations on the part of Tenant to be paid, kept and performed.
-3-
8. The parties agree to record this Third Amendment To Lease Agreement
or a memorandum thereof in the Durham County Register of Deeds upon the request
of either party.
Except as set forth in this Amendment, the terms and conditions of this
Lease Agreement shall remain in full force and effect. Capitalized terms not
defined in this Amendment shall have the meaning set forth in the Lease
Agreement.
[SIGNATURES CONTAINED ON NEXT PAGE]
-4-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment in
their behalf under seal and in the manner prescribed by law.
LANDLORD:
WANDEL & GOLTERMANN ASSOCIATES
By:
----------------------------------
Xxxxx Xxxxxxxxxx, Managing Partner
NORTH CAROLINA
DURHAM COUNTY
I, _________________________________, a Notary Public of the aforesaid
County and State, do hereby certify that Xxxxx Xxxxxxxxxx personally appeared
before me this day and acknowledged that he is the Managing Partner of Wandel &
Goltermann Associates, a North Carolina general partnership, and acknowledged
the execution of the foregoing instrument.
Witness my hand and notarial seal this ___ day of ____________________,
1994.
------------------------------
Notary Public
My Commission Expires:
------------------------------
-5-
TENANT:
WANDEL & GOLTERMANN TECHNOLOGIES, INC.
By:
--------------------------------
Xxxxxxxx Xxxxx
Vice-President
Attest:
--------------------------------
Xxxxxxxx Xxxxx, Secretary
[CORPORATE SEAL]
NORTH CAROLINA
MECKLENBURG COUNTY
I, ____________________________, a Notary Public of the aforesaid
County and State, do hereby certify that Xxxxxxxx Xxxxx personally appeared
before me this day and acknowledged that he is the Secretary of Wandel &
Goltermann Technologies, Inc., a North Carolina corporation, and that by
authority duly given and as an act of the corporation, the foregoing instrument
was signed in its name by its President, and attested by himself as Secretary,
and sealed with its common corporate seal.
Witness my hand and notarial seal this ___ day of ____________________,
1994.
--------------------------------
Notary Public
My Commission Expires:
--------------------------------
-6-
EXHIBIT A
Beginning at an iron pipe found located in the northern boundary of the
right-of-way of Swabia Court, said iron pipe also being located in the eastern
line of property now or formerly belonging to Glaxo Inc. as described in Deed
Book 1664, Page 298, and shown on plat recorded in Plat Book 125, Page 110,
Durham County Registry; running thence along and with the eastern line of said
Glaxo Inc. North 01(degree) 34' 57" East 706.93 feet to an iron pipe found;
running thence along and with the southern line of property now or formerly
belonging to Imperial Center Partnership and Petula Associates, Ltd., as
described in Book 1660, Page 000, Xxxxxx Xxxxxx Xxxxxxxx, Xxxxx 00(xxxxxx) 25'
03" East 749.96 feet to an iron pipe found; running thence along and with the
western line of property now or formerly belonging to Imperial Center
Partnership and Petula Associates, Ltd. as described in Book 1690, Page 000,
Xxxxxx Xxxxxx Xxxxxxxx, Xxxxx 00(xxxxxx) 34' 48" West 265.00 feet to an iron
pipe found; running thence along and with the western line of property now or
formerly belonging to Imperial Center Partnership and Petula Associates, Ltd. as
described in Book 1660, Page 000, Xxxxxx Xxxxxx Xxxxxxxx, Xxxxx 00(xxxxxx) 34'
48" West 291.55 feet to an iron pipe set; running hence along and with the
northern line of Lot S-5A as shown on the plat hereinafter referred to, North
88(degree) 25' 03" West 567.39 feet to an iron pipe set, and South 41(degree)
54' 51" West 220.10 feet to an iron pipe set in the boundary of the right-of-way
of Swabia Court; running thence along and with said right-of-way along and with
a curve in a counterclockwise direction, said curve having a Radius of 55.00
feet, an arc distance of 33.00 feet, and a chord bearing and distance of North
58(degree) 43' 40" West 32.51 feet to an iron pipe set; thence continuing along
said right-of-way along and with a curve in a counterclockwise direction, said
curve having a radius of 55.00 feet, an arc distance of 12.00 feet, and a chord
bearing and distance of North 82(degree) 10' 01" West 11.98 feet to an iron pipe
found, the point and. place of Beginning, and being Lot S-5B, containing 10.00
acres, more or loss, as shown on plat and survey thereof entitled "Subdivision
Map For Xxx X-0X xxx Xxx X-0X, Xxxxxxxx Xxxxxx", prepared by Xxxxxxx Close,
Inc., dated 07-30-93, and recorded in Plat Book ___, Page ___, Durham County
Registry, to which plat reference is hereby made for a more particular
description of same.
Prepared by and mail after recording to: Xxxxxx & Steel, PLLC; X.X. Xxx 00000,
Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxx
NORTH CAROLINA
DURHAM COUNTY FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT (the "Fourth Amendment") made
and entered into as of the 23rd day of February 1999 by and between W & G
ASSOCIATES, A NORTH CAROLINA LIMITED PARTNERSHIP with its principal office in
Durham, North Carolina ("Landlord") and WANDEL & GOLTERMANN TECHNOLOGIES, INC.,
a North Carolina corporation with its principal office in Durham, North Carolina
("Tenant");
WHEREAS, W & G Associates, a North Carolina general partnership, and W
& G Instruments, Incorporated, a New Jersey Corporation previously entered into
that certain Lease Agreement dated October 1, 1984 and amended January 1, 1986,
October 1, 1989 and January 24, 1994 as ratified July 5, 1994 (collectively the
"Lease Agreement") with respect to a certain parcel of land more commonly known
as Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx; and
WHEREAS, Wandel & Goltermann, Inc., a New Jersey corporation, fully
succeeded to all of the interests of W & G Instruments, Incorporated as the
tenant in said Lease Agreement; and
WHEREAS, W & G Associates, a North Carolina general partnership, and
Wandel & Goltermann, Inc., amended the Lease Agreement on January 31, 1986; and
WHEREAS, Xxxxx Xxxxxxxxxx fully succeeded to all of the interests of W
& G Associates as the landlord in the Lease Agreement and became the sole owner
of the Premises which is the subject of the Lease Agreement; and
WHEREAS, Wandel & Goltermann, Inc. changed its name to Wandel &
Goltermann Technologies, Inc.; and
WHEREAS, Xxxxx Xxxxxxxxxx and Xxxxxx & Xxxxxxxxxx Technologies, Inc.
amended the Lease Agreement on October 1, 1989; and
WHEREAS, Wandel & Goltermann Technologies, Inc., a New Jersey
corporation, merged into W & G Sub, Inc., a North Carolina corporation, with the
surviving corporation being Wandel & Goltermann Technologies, Inc., a North
Carolina corporation; and
WHEREAS, the real property subject to the Lease was conveyed from Xxxxx
Xxxxxxxxxx and wife, Xxxxxxxx Xxxxxxxxxx to W & G Associates, a North Carolina
limited partnership by deed recorded in Book 1886, Page 784, Durham County
Registry, and Landlord has fully
-1-
succeeded to all of the interests of Xxxxx Xxxxxxxxxx as the landlord in the
Lease Agreement and is now the sole owner of Premises which is the subject of
the Lease Agreement; and
WHEREAS, a Third Amendment to Lease was made and entered into as of the
24th day of January, 1994 by Wandel and Goltermann Technologies, Inc. a North
Carolina corporation as Tenant and Wandel & Goltermann Associates, a North
Carolina general partnership as Landlord covering certain Premises located on
Lot S-5B as shown on Plat Book 131, Page 87, Durham County Registry; and
WHEREAS, a Memorandum of Lease referencing the Third Amendment to Lease
was recorded in Book 1972, Pages 855 through 860, Durham County Registry was
executed in the name of Wandel and Goltermann Associates, a North Carolina
general partnership as Landlord; and
WHEREAS, although the Third Amendment to Lease and the Memorandum of
Lease referencing the Third Amendment to Lease incorrectly named the Landlord as
"Wandel & Goltermann Associates, a North Carolina general partnership", both
documents have been ratified by W & G Associates, a North Carolina limited
partnership by Ratification recorded in Book 1999, Page 773, Durham County
Registry; and
WHEREAS, Landlord and Tenant mutually desire to amend the Lease
Agreement as provided herein;
NOW THEREFORE, for and in consideration of the mutual agreements as set
forth herein and for other good and valuable consideration exchanged between the
parties hereto, the receipt and sufficiency of which is hereby acknowledged, the
parties covenant and agree as follows:
1. The Lease Agreement is amended by the deletion of Exhibit A thereof and
the insertion of EXHIBIT A attached hereto in lieu thereof.
2. Subpart (a) of Paragraph 3 of the Third Amendment to Lease Agreement
which reads, "...(a) the base rent of $8.00 plus additional rent
adjustments reflecting the increase in the Base CPI Index from
September, 1989 as provided herein, or..." is deleted and replaced
with, "...(a) the base rent of $8.00 per square foot plus additional
rent adjustments reflecting the increase in the Base CPI Index from
September, 1989 as provided herein, or..."
3. The parties hereto agree to record a this Fourth Amendment or a
memorandum of the Lease as amended hereby in the Durham County Register
of Deeds upon the request of either party.
Except as set forth in this Fourth Amendment, the terms and conditions
of the Lease Agreement shall remain in full force and effect. Capitalized terms
not defined in this Fourth Amendment shall have the meaning set forth in the
Lease Agreement.
-2-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth
Amendment under seat in the manner prescribed by law.
W & G ASSOCIATES, A NORTH CAROLINA
LIMITED PARTNERSHIP (SEAL)
By: (SEAL)
--------------------------
Xxxxx Xxxxxxxxxx, General
Partner, by Xxxx Xxxxx,
attorney-in-fact under
power of attorney recorded
in Book 1999, Page 771,
Durham County Registry.
WANDEL & GOLTERMANN
TECHNOLOGIES, INC. a North Carolina
corporation
------------------------------------
President
ATTEST:
------------------------------------
Secretary
(Corporate Seal)
-0-
XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXX
I, ______________________, do hereby certify that Xxxx Xxxxx,
attorney-in-fact for Xxxxx Xxxxxxxxxx, General Partner of W & G Associates, a
North Carolina Limited Partnership, personally appeared before me this day, and
being by me duly sworn, says that he executed the foregoing and annexed
instrument for and in behalf of Xxxxx Xxxxxxxxxx, as General Partner and as an
act and deed of the Partnership and that his authority to execute and
acknowledge said instrument is contained in an instrument duly executed,
acknowledged and recorded on the 5th day of July, 1994 in Book 1999, Page 771,
Durham County Registry, and that this instrument was executed under and by
virtue of the authority given by said instrument granting him power of attorney;
that the said Xxxx Xxxxx acknowledged the due execution of the foregoing and
annexed instrument for the purposed therein expressed for and in behalf of the
said Xxxxx Xxxxxxxxxx as General Partner and as an act and deed of the
Partnership.
Witness my hand and official seat, this 23 day of February, 1999.
------------------------------------
Notary Public
(Notary Seal)
My commission expires: XXXXX X. XXXXXXX
----------------
STATE OF NORTH CAROLINA
COUNTY OF DURHAM
I, a Notary Public of the County and state aforesaid, certify that
_______________________, personally appeared before me this day and acknowledged
that (s)he is _____________ Secretary of WANDEL & GOLTERMANN TECHNOLOGIES, INC.
a North Carolina corporation, and that by authority duly given and as an act of
the corporation, the foregoing instrument was signed its name by its _______
President, sealed with its corporate seal and attested by him/herself as its
_________________ Secretary.
Witness my hand and official seal, this ____ day of __________________,
199_.
------------------------------------
Notary Public
(Notary Seal)
My commission expires: XXXXX X. XXXXXXX
----------------
EXHIBIT A
Being all of Lot S-5B, containing 10.00 acres, more or less, as shown on plat
and survey thereof entitled, "Subdivision Map for Xxx X-0X xxx Xxx X-0X,
Xxxxxxxx Xxxxxx", prepared by Xxxxxxx Close, Inc., dated 07-30-93, and recorded
in Plat Book 131, Page 87, Durham County Registry, to which plat reference is
hereby made for a more particular description thereof
TOGETHER WITH and SUBJECT TO all easements and rights appurtenant as set forth
in those certain Declaration of Covenants Containing Easements recorded in Book
1963, Page 190, Durham County Registry.
Prepared by and mail after recording to: Xxxxxx, Xxxxxx & Xxxxx, P.O. Drawer
19764, Raleigh, North Carolina 27619-9764 Attn. Xxxxxx X. Xxxxxx
NORTH CAROLINA
DURHAM COUNTY
FIFTH AMENDMENT TO LEASE AGREEMENT
THIS FIFTH AMENDMENT TO LEASE AGREEMENT (the "Fifth Amendment") dated
for reference purposes October 1, 1999, by and between W & G ASSOCIATES, A NORTH
CAROLINA LIMITED PARTNERSHIP ("Landlord") and WANDEL & GOLTERMANN TECHNOLOGIES,
INC., a North Carolina corporation ("Tenant")
WHEREAS, W & G Associates, a North Carolina general partnership, and
W & G Instruments, Incorporated, a New Jersey Corporation previously entered
into that certain Lease Agreement dated October 1, 1984 and amended January 31,
1986, October 1, 1989 and January 24, 1994 as ratified July 5, 1994 and amended
as of February 23, 1999 (collectively the "Lease Agreement") with respect to a
certain parcel of land more commonly known as Lot 5-5B, containing 10.00 acres,
more or less as shown on plat and survey thereof entitled "Subdivision Map for
Xxx X-0-X xxx Xxx X-0X, Xxxxxxxx Xxxxxx", prepared by Xxxxxxx Close, Inc. dated
July 30, 1993, and recorded in Plat Book 131, Page 87, Durham County Registry,
TOGETHER with certain easements set out in Book 1963, Page 190, Durham County
Registry.
WHEREAS, Wandel & Goltermann, Inc., a New Jersey corporation, fully
succeeded to all of the interests of W & G Instruments, Incorporated as the
tenant in said Lease Agreement; and
WHEREAS, W & G Associates, a North Carolina general partnership, and
Wandel & Goltermann, Inc. amended the Lease Agreement on January 31, 1986; and
WHEREAS, Xxxxx Xxxxxxxxxx fully succeeded to all of the interests of W
& G Associates as the landlord in the Lease Agreement and became the sole owner
of the Premises which is the subject of the Lease Agreement; and
WHEREAS, Wandel & Goltermann, Inc. changed its name to Wandel &
Goltermann Technologies, Inc.; and
WHEREAS, Xxxxx Xxxxxxxxxx and Xxxxxx & Xxxxxxxxxx Technologies, Inc.
amended the Lease Agreement on October 1, 1989; and
WHEREAS, Wandel & Goltermann Technologies, Inc., a New Jersey
corporation, merged into W & G Sub, Inc., a North Carolina corporation, with the
surviving corporation being Wandel & Goltermann Technologies, Inc., a North
Carolina corporation; and
WHEREAS, the real property subject to the Lease was conveyed from Xxxxx
Xxxxxxxxxx and wife, Xxxxxxxx Xxxxxxxxxx to W & G Associates, a North Carolina
limited partnership by
-1-
deed recorded in Book 1886, Page 784, Durham County Registry, and Landlord has
fully succeeded to all of the interests of Xxxxx Xxxxxxxxxx as the landlord in
the Lease Agreement and is now the sole owner of Premises which is the subject
of the Lease Agreement; and
WHEREAS, a Third Amendment to Lease was made and entered into as of the
24th day of January, 1994 by Wandel and Goltermann Technologies, Inc. a North
Carolina corporation as Tenant and Wandel & Goltermann Associates, a North
Carolina general partnership as Landlord covering certain Premises located on
Lot S-5B as shown on Plat Book 131, Page 87, Durham County Registry; and
WHEREAS, a Memorandum of Lease referencing the Third Amendment to Lease
was recorded in Book 1972, Page 855 through 860, Durham County Registry was
executed in the name of Wandel and Goltermann Associates, a North Carolina
general partnership as Landlord; and
WHEREAS, although the Third Amendment to Lease and the Memorandum of
Lease referencing the Third Amendment to Lease incorrectly name the Landlord as
"Wandel & Goltermann Associates, a North Carolina general partnership", both
documents have been ratified by W & G Associates, a North Carolina limited
partnership by Ratification recorded in Book 1999, Page 773, Durham County
Registry; and
WHEREAS, Landlord and Tenant entered into a Fourth Amendment to Lease
Agreement dated as of February 23, 1999; and
WHEREAS, Landlord and Tenant have agreed to amend the Lease Agreement
as more fully set out herein;
NOW THEREFORE, for and in consideration of the promises set out herein,
and for other good and valuable consideration exchanged between the parties
hereto, the receipt and sufficiency of which is hereby acknowledged, Landlord
and Tenant agree as follows:
1. Paragraph 12 of the Lease Agreement, "Damage or Destruction of
Premises" is hereby deleted and the following substituted in lieu thereof:
12. DAMAGE OR DESTRUCTION OF PREMISES. If the building or the
Premises shall be damaged or destroyed by fire or other casualty,
Tenant will, within one hundred fifty (150) days from the date of said
damage or destruction, repair, restore or replace said building or
Premises so that the same will thereafter be in as good a condition as
existed immediately prior to such fire or other casualty. If in the
reasonable opinion of a contractor or architect mutually agreeable to
Landlord and Tenant the building cannot be replaced, restored and
repaired within 150 days from the date of the casualty or damage,
Landlord or, so long as Tenant's unreasonable delay is not a factor in
such contractor's or architect's opinion that the Premises cannot be
replaced, restored and repaired within 150 days, Tenant, upon written
notice to the other, shall have the right to terminate this Lease
within fifteen (15) business days after receipt of the written opinion
of the approved contractor or architect. Provided, however, that if
this Lease is terminated
-2-
pursuant to the provisions of this Paragraph, all insurance proceeds
otherwise payable to Tenant for repair, replacement or restoration of
said damage or destruction shall be paid to Landlord, except to the
extent that said insurance proceeds are for damage to Tenant's
equipment or fixtures on the Premises that are to remain the property
of Tenant.
2. Pursuant to Xxxxxxxxx 0, XXXX of the Lease Agreement, Tenant has the
option to extend the term of the Lease Agreement for three (3) successive
renewal terms of two (2) years each upon written notice to Landlord at least six
(6) months prior to the expiration of the then current term. It is agreed
between the parties that (i) once a renewal term is exercised it ceases to exist
and may not be exercised in a subsequent renewal term and (ii) subject to the
requirement to notify Landlord at least six (6) months prior to the expiration
of the then current term, Tenant may notify Landlord of the exercise of one or
more of the renewal terms at any one time. Notwithstanding the foregoing, upon
termination or earlier expiration of the term of the Lease Agreement, all
renewal terms and any unexercised right to renew shall be terminated.
3. The loan financing the construction of the improvements on the
Premises (together with the cost of the land) through borrowing from The Durham
County Industrial Facilities and Pollution Control Financing Authority (the
"Authority"), such loan funds having been raised by the Authority issuing and
selling its industrial revenue bonds in the principal amount of $2,600,000.00
and made pursuant to a Loan Agreement dated as of October 1, 1984, between the
Authority and Landlord, has been paid in full and cancelled of record.
Accordingly, Paragraph 5 of the Lease Agreement, USE, is hereby amended to
delete the requirements that Tenant operate the Premises in such a manner that
the same will be a "project" within the meaning of Chapter 800 of the 1975
Session Laws of North Carolina, as amended, which as codified appears as Chapter
159C of the General Statutes of North Carolina, and that Landlord and Tenant
comply with the applicable terms and provisions of the Bond Documents.
4. As modified by this Fifth Amendment, the Lease Agreement is
ratified, confirmed and continues in full force and effect. Capitalized terms
not defined herein shall have the meaning set forth in the Lease Agreement.
5. This Amendment is subject to the consent of First Union National
Bank, Landlord's lender whose consent has been granted in writing, a copy of
which consent is attached hereto.
[SIGNATURE PAGE ATTACHED]
-3-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth
Amendment under seal in the manner prescribed by law.
W & G ASSOCIATES, A NORTH CAROLINA LIMITED PARTNERSHIP (SEAL)
By: (Seal)
---------------------------------
WANDEL & GOLTERMANN TECHNOLOGIES, INC., a North Carolina corporation
By:
---------------------------------
President
ATTEST:
By:
---------------------------------
Secretary
(Corporate Seal)
-4-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth
Amendment under seal in the manner prescribed by law.
W & G ASSOCIATES, A NORTH CAROLINA LIMITED PARTNERSHIP (SEAL)
By: (Seal)
---------------------------------
WANDEL & GOLTERMANN TECHNOLOGIES, INC., a North Carolina corporation
By:
---------------------------------
President
ATTEST:
By:
---------------------------------
Secretary
(Corporate Seal)
-5-
CONSENT OF LENDER
First Union National Bank executes this Fifth Amendment for the sole purpose of
evidencing its consent to the terms of such Fifth Amendment.
FIRST UNION NATIONAL BANK
(formerly, First Union National Bank of North Carolina)
By:
---------------------------------
President
ATTEST:
By:
---------------------------------
Secretary
(corporate seal)
-6-
EXHIBIT D
DESCRIPTION OF POSSIBLE SUBTENANT ALTERATIONS OR ADDITIONS TO SUBLEASE PREMISES
Subtenant intends to make certain alterations or additions to the Sublease
Premises during the Initial Sublease Term and possibly the Extended Sublease
Term, which alterations or additions are contemplated to allow a continuation of
substantially the same uses and purposes of the improvements and equipment in
Subtenant's premises at 0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx. Such
alterations or additions may include, but are not limited to, the following:
o Fiber optic cable that will be laid underground from Prime Landlord's
property line with Glaxo Wellcome, Inc. up to and into the Sublease
Premises and into Subtenant's computer and telecommunications equipment
room.
o Possible removal from the Sublease Premises of existing coaxial cable and
various related attachments and installation of CAT-5 or equivalent wiring
and related attachments for connecting and operating Subtenant's computer
network.
o Telecommunications wiring, equipment, and related attachments to the extent
required in the event that Sublandlord's existing telecommunication wiring,
equipment, and related attachments cannot be utilized by Subtenant for
establishing both internal and external voice and data communications
within the Sublease Premises and with external third parties.
o The possible installation of non-load-bearing walls as may be required to
reconfigure the Sublease Premises to meet the requirements of Subtenant's
use.
o The construction of laboratory facilities typical of that used by
industrial researchers for biological research purposes equipped with
standard laboratory equipment, including: laboratory benches with hot and
cold running water, natural gas outlets and sinks with drains leading to
plumbing that will have been installed in the Sublease Premises and
connected to the Sublease Premises sewer system; additional lighting
fixtures, ventilation hoods with external venting and other such equipment
that is typical in a laboratory facility.
o The following specialized facilities will be required: a tissue culture
room(s) and associated ventilation and fume hoods; a pilot
manufacturing laboratory and clean room space, a Bio-level Safety 2
(BL-2) licensed laboratory for use with poultry specific pathogens, a
licensed radioactive use and associated storage area, an area(s)
designated for work with poultry embryos, a laboratory designed for use
with various poultry microbiological samples from the field, a dark
room, a storage room for supplies, dedicated space(s) with egg delivery
equipment and associated devices for use in testing biological
materials and for process
23
optimization studies, bio-hazard waste storage facility, laundry,
autoclaves and dishwashing room.
o Specialized laboratory equipment includes -70oC freezers, walk-in
freezers for the storage of freeze-dried vaccines, high speed
centrifuges and specialized equipment for purification of biological
materials and production of recombinant materials by fermentation and
autoclaves.
o The ventilation and fume hoods will require anywhere from between six
and ten individual ventilation ducts that will penetrate the roof to
the outside of the Sublease Premises. Subtenant's R&D personnel and
outside consulting engineers have advised Subtenant that these hoods
must be vented vertically and not horizontally through the wall of the
Sublease Premises in order to ensure that the vented exhaust clears the
Sublease Premises "envelope" and is not drawn back into the building
through the HVAC units on the roof. The two autoclaves will also
require external venting, and the HVAC units for the walk in freezers
will most likely be mounted on the roof, also necessitating penetration
of the roof. Subtenant agrees that any penetrations of the roof will
only be performed by Sublandlord's contractor and only if Sublandlord's
contractor will affirm the continuing warranty given with respect to
the roof after installation of the roof penetrations to accommodate
Subtenant's vents.
o The construction of manufacturing facilities, including: steel-framed
mezzanine storage areas, compressed air and related compressed air outlets
connected to an external compressor, 220-volt electrical power outlets,
additional lighting fixtures, power lift assists on the loading docks and
plumbing outlets similar to those installed in the laboratory facilities.
o The requirements for specialized facilities will require a number of
individual rooms, possibly needing individual air handling and temperature
controls for controlling the atmosphere, the quality of air, and the air
pressure variance with respect to the rest of the Sublease Premises. The
air would in all probability be HEPA filtered, both coming in and being
exhausted, and may require individual HVAC equipment to be positioned on
top of the rooms or on the roof of the Sublease Premises. The walls for
these rooms will in all probability be self-contained and may be
prefabricated, similar to clean rooms used to manufacture silicon wafers
for the semiconductor industry.
o The manufacturing area will perform the following activities:
o Receive Subtenant's INOVOJECT(R) vaccination system from its outsourced
manufacturer approximately 85% complete.
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o Complete the other 15% of the INOVOJECT(R)system's construction,
including the programming, installation and testing of
electro-mechanical controls, and the attachment of vaccination tubing,
injection head tooling and sterilization system.
o Test the INOVOJECT(R) system. This requires either a 110-volt or a
220-volt power source and compressed air supply of approximately 100
pounds per square inch. Subtenant has a compressor located outside its
present facility which it would relocate outside of the Sublease
Premises if unable to use Sublandlord's compressed air supply.
o Rebuild and refurbish used INOVOJECT(R)systems and components. This
will require disassembly, some cleaning with a portable steam generator
outside and beyond the loading dock area, and reassembly with new or
rebuilt components such as pumps, vacuum motors and air and
electrically actuated controls. Very little if any cleaning solvents
are used (possibly some de-greasing agents) and the sterilization fluid
used during test cycles and system cleaning prior to shipment of the
INOVOJECT(R)system to the customer consists of a tap water and a
household bleach or isopropyl alcohol mixture which, as a non-hazardous
substance, is collected and discharged into a sink or other plumbed
drain outlet. Any recyclable materials would be deposited in specially
designated containers outside the Sublease Premises for removal by a
third party waste hauler as is currently done at Embrex's present
facility.
o Shipping and Receiving activities are predominantly the dispatching
(usually by Federal Express) of spare parts to INOVOJECT(R) system
customers or Subtenant's field service technicians.
Prior to the commencement of any alterations or additions, Subtenant will make a
videotaped record of that part of the Sublease Premises to which Subtenant
intends to make such alterations or additions and review said tape with
Sublandlord. The parties shall then agree in good faith to resolve any
differences of opinion with respect to the condition of the Sublease Premises.
Subtenant will make a copy of the videotaped record for Sublandord. The purpose
of the videotaped record is to facilitate Subtenant's compliance with its
obligations to restore the Initial Sublease Premises and Expansion Sublease
Premises in accordance with Section 19 of the Sublease.
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CONSENT OF PRIME LANDLORD TO SUBLEASE
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