EXHIBIT 10.10
FIRST AMENDMENT TO SUBLEASE
THE FIRST AMENDMENT TO SUBLEASE (the "First Amendment") made and
entered into as of the 29th day of February, 2000, by and among WANDEL &
GOLTERMANN TECHNOLOGIES, INC., a North Carolina corporation, hereinafter
referred to as "Sublandlord", EMBREX, INC., a North Carolina corporation,
hereinafter referred to as "Subtenant", and W & G ASSOCIATES, a North Carolina
partnership, hereinafter referred to as "Prime Landlord."
WHEREAS, Sublandlord and Subtenant are parties to that certain Sublease
Agreement dated as of October 1, 1999 (said Sublease being referred to herein as
the "Sublease"), pertaining to the rental of certain premises on Swabia Court,
Durham, North Carolina, as more particularly described in the Sublease (the
"Sublease Premises"); and
WHEREAS, pursuant to Section 6 of the Sublease, the Sublease Premises
have been inspected by X'Xxxx, Inc., whose report has been delivered to
Sublandlord and Subtenant (the "Inspection Report"), the purposes of said
inspection being to determine 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 the occupancy of the Sublease Premises by Subtenant for its intended uses;
and
WHEREAS, pursuant to Section 6 of the Sublease, based upon the
Inspection Report, Sublandlord and Subtenant desire to agree as to the repairs
and replacements for which each is responsible, and to enter into this First
Amendment to reflect the allocation of their respective responsibilities for
repairs or replacements to the Sublease Premises.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Sublandlord and Subtenant agree as follows:
1. Unless otherwise defined herein, all capitalized terms used herein
that are defined in the Sublease shall have the meaning ascribed to such terms
in the Sublease.
2. A copy of the Inspection Report is attached hereto and by reference
made a part hereof as EXHIBIT A.
3. Notwithstanding anything contained in the Sublease to the contrary,
Sublandlord agrees to be responsible for the following repairs and/or
replacements:
(a) HVAC:
(i) For the period beginning January 1, 2001 and
ending December 31, 2002, Sublandlord and Subtenant shall
share the cost of any necessary maintenance, repairs and
replacements to any of the existing rooftop HVAC units, with
Sublandlord agreeing to reimburse Subtenant for one-third
(1/3) of any such
costs, and Subtenant being responsible for the remaining
two-thirds (2/3); subject, however, to a maximum aggregate
reimbursement from Sublandlord to Subtenant of $70,000.
(ii) In addition to the foregoing, Sublandlord agrees
to repair and place in good working order the economizer
cycles on two of the packaged rooftop units which are in need
of repair, as described on page 7 of 8 of the Inspection
Report, said repair and placement to be done promptly after
the execution of this First Amendment.
(iii) Sublandlord shall install smoke detectors in
the ducts of the HVAC units, as described on page 8 of 8 of
the Inspection Report, said installation to be done promptly
after the execution of this First Amendment.
(b) Parking Lot: The parties agree that the parking lot shall
be resealed and restriped as soon as practicable, weather permitting, with
Sublandlord being responsible for the cost of resealing the lot and Subtenant
being responsible for the cost of restriping the parking spaces, including
restriping as necessary to establish the appropriate number of handicapped
parking spaces, as required by applicable laws and regulations.
(c) Miscellaneous Items: Sublandlord assumes responsibility
for the following items to be done promptly at its expense after the execution
of this First Amendment, except as otherwise provided in (vii) below:
(i) The installation of railings on both sides of the
main door landing in the truck dock area, as described on page
3 of 8 of the Inspection Report.
(ii) Repair of the drain discharging water and oil at
the compressor room, as described on page 3 of 8 of the
Inspection Report.
(iii) Repair of the damage caused by the several
leaks observed along the far/west wall of the Sublease
Premises, which work will include resealing of the windows
along said wall, replacement of damaged ceiling tiles, and
appropriate repainting of the wall.
(iv) On page 5 of 8 of the Inspection Report, under
Building Code Issues, the Report addresses the fire separation
wall and the door located therein. Sublandlord shall install
45-minute rated doors in said fire separation wall.
(v) With respect to the observation of a potential
natural gas leak, as described on page 6 of 8 of the
Inspection Report, Sublandlord shall be responsible for the
identification and correction of this problem.
(vi) Sublandlord shall cause a guard to be placed
upon the air compressor in the mechanical room, as described
in page 7 of 8 of the Inspection Report.
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(vii) The current bathroom facilities in the Sublease
Premises are identified as rooms numbered 127, 128, 155 and
156 in the report prepared for Sublandlord by Xxxxxx Xxxxx,
AIA, dated 13 February 2000, a copy of which is attached
hereto and by reference made a part hereof as Exhibit B. It
has been determined that, due to the amount otherwise being
expended to improve the parking areas and the amount to be
expended to revise and renovate the bathrooms numbered 127 and
128, the applicable laws, ordinances and regulations do not
require Sublandlord to revise or expand the bathrooms numbered
155 and 156. Sublandlord shall revise and expand bathrooms
numbered 127 and 128 as described in Exhibit B, or at
Subtenant's option, allow Subtenant to undertake such work at
a later date. If Subtenant elects to defer having said
bathroom renovations performed by Sublandlord and Subtenant
thereafter undertakes, at its expense, to have the bathrooms
within the Sublease Premises renovated in a manner in full
compliance with the applicable laws, ordinances and
regulations, then Sublandlord shall contribute to Subtenant's
cost for such work, subject to a maximum contribution of
$23,451 from Sublandlord.
4. Except for the responsibilities assumed by Sublandlord as
hereinabove described, and except as otherwise expressly provided in the
Sublease, Sublandlord shall have no other responsibilities with respect to
matters described in the Inspection Report. The allocation to Sublandlord of
responsibility for the matters hereinabove described and the execution of this
First Amendment extinguishes Subtenant's right to terminate the Sublease
pursuant to Section 6 thereof.
5. The amendments described in this First Amendment supersede any
provisions in the Sublease which are inconsistent with said amendments. As
hereby modified and amended, all of the terms and provisions of the Sublease
shall remain in full force and effect. All references in the Sublease shall
include the original Sublease and this First Amendment.
6. Prime Landlord consents to this First Amendment as requested, it
being understood that Prime Landlord is not a party to the Sublease and is
executing this First Amendment for the sole purpose of acknowledging its consent
thereto, to the extent that Prime Landlord's consent is required pursuant to the
Prime Lease.
7. This First Amendment may be executed in two or more counterparts,
all of which taken together shall constitute one original instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment the day and year first above written.
SUBLANDLORD:
WANDEL & GOLTERMANN TECHNOLOGIES, INC.,
a North Carolina corporation
By /s/ Xxxx Xxxxx
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Title: Vice President
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SUBTENANT:
EMBREX, INC., a North Carolina corporation
By /s/ Xxxxxxx X. Xxxxxxxx
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Title: President & CEO
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PRIME LANDLORD:
W & G ASSOCIATES, a North Carolina partnership
By /s/ Xxxxx Xxxxxxxxxx (SEAL)
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Xxxxx Xxxxxxxxxx, General Partner
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