FIFTH AMENDMENT OF LEASE
THIS FIFTH AMENDMENT OF LEASE, made this 13th day of December, 1996,
between Glaxo Wellcome Inc., successor to Glaxo Inc., a North Carolina
Corporation, successor in interest to Imperial Center Partnership and Petula
Associates, Ltd., hereinafter called "Landlord," and Embrex, Inc., a North
Carolina Corporation, hereinafter called "Tenant," which terms "Landlord" and
"Tenant" shall include, whenever the context admits or requires, singular or
plural, and the heirs, legal representatives, successors and assigns of the
respective parties.
WITNESSETH:
WHEREAS, by Lease Agreement dated December 9, 1986, First Amendment of
Lease dated June 11, 1987, Second Amendment of Lease dated December 1, 1988,
Third Amendment of Lease dated May 2, 1989, and Fourth Amendment of Lease
bearing execution dates of September 23, 1994 for Tenant and October 5, 1994 for
Landlord, hereinafter collectively referred to as the "Lease," Tenant has leased
and demised certain premises situated at 1035 Swabia Court in Imperial Center
Business Park, County of Durham, State of North Carolina, for an initial term of
ten (10) years, subject to the covenants and conditions particularly set forth
in said Lease; and
WHEREAS, at the end of the initial term Tenant has the option to
exercise an extension of the Lease for an additional five (5) year period; and
WHEREAS, the parties desire to amend the Lease to extend the term for
an additional five (5) years, subject to the terms and conditions set forth
below.
NOW THEREFORE, in consideration of the sum of One and No/100 Dollars
($1.00), and other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, the parties hereto agree, each with the other,
as follows:
1. PARAGRAPH 1. PREMISES is hereby amended to read:
1. PREMISES. That the Landlord, in consideration of
the covenants of the Tenant, does hereby lease and demise unto
said Tenant, and the Tenant does hereby agree to take and
lease from the Landlord for the term hereinafter specified,
the following described premises:
Warehouse and manufacturing and office space
containing approximately 23,209 square feet situated
at 1035 Swabia Court, Morrisville, County of Durham,
State of North Carolina, and more particularly
designated in Exhibit "A" attached hereto and
incorporated herein.
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2. EXHIBIT "A" of the Lease is hereby amended by substituting Exhibit "A"
attached hereto and incorporated herein by reference.
3. The first sentence of PARAGRAPH 2. TERM is hereby amended to read:
2. TERM. For the Tenant to have and hold the leased premises
for an initial term of ten (10) years commencing the 1st day
of April, 1987, and ending the 31st day of March, 1997, and
for an additional term of five (5) years commencing on the 1st
day of April, 1997, and ending on the 31st day of March, 2002.
4. Attachment 2-A is hereby amended to add the following rental
information for the additional five (5) year period, which is
referenced as years 11 through 15:
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Additional
Lease
Period P.S.F. Monthly Annually
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Year 11 $8.47 $16,381.69 $196,580.23
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Year 12 $8.72 $16,865.21 $202,382.48
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Year 13 $8.99 $17,387.41 $208,648.91
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Year 14 $9.26 $17,909.61 $214,915.34
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Year 15 $9.53 $18,431.81 $221,181.77
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5. PARAGRAPH 15. INSURANCE is amended by deleting the fourth sentence,
which reads:
Tenant's pro rata share of said insurance cost shall be
computed using the ratio of the Leased Premises (13,470 S.F.)
to the total square footage of the building (49,200 S.F.).
and inserting the following sentence in lieu thereof:
Tenant's pro rata share of said insurance cost shall be
29.435%, which is the ratio calculated by dividing the square
footage of the Leased Premises of 23,209 by the total square
footage of the building of 78,848.
6. PARAGRAPH 18. TAXES is amended by deleting the fifth sentence, which
reads:
Tenant's pro rata share of said ad valorem taxes shall be
computed using the ratio of the Leased Premises (13,470 S.F.)
to the total footage of the building (49,200 S.F.).
and by inserting the following in lieu thereof:
Tenant's pro rata share of said ad valorem taxes shall be
29.435%, which is the ratio calculated by dividing the square
footage of the Leased Premises of 23,209 by the total square
footage of the building of 78,848.
7. PARAGRAPH 30. NOTICES is deleted in its entirety, and the following
provision is inserted in lieu thereof:
30. NOTICES. All notices, required or allowed hereunder, shall
be sent to the parties as provided herein, in writing, and
shall be delivered (i) personally, (ii) by registered or
certified mail, postage prepaid, return receipt requested,
(iii) by nationally recognized overnight courier service, or
(iv) by facsimile where such notice is electronically
confirmed as received and is followed by delivery of a copy of
such notice in a manner described in (i), (ii), or (iii), to
the following addresses of the respective parties:
If to Landlord: Glaxo Wellcome Inc.
Five Moore Drive
Research Triangle Park, North Carolina 27709
ATTN: Director of Real Estate
with a copy to: General Counsel
If to Tenant: Embrex, Inc.
1035 Swabia Court
Durham, North Carolina 27703
All notices shall be deemed communicated upon first delivery
to the address stated above as described in (i) - (iv) above.
A party may change its address listed above by notice to the
other party.
8. PARAGRAPH 4 of the Fourth Amendment to Lease is amended by deleting
from the first sentence the phrase, "over a five year period," and by
deleting the last sentence, which reads:
At the end of the lease term Tenant will pay Landlord $12,753,
the unamortized portion of the balance on said lab furniture
and equipment.
and inserting the following sentences at the end of PARAGRAPH 4:
In addition to all other rent due hereunder, Tenant shall pay
Landlord each month of years 11 through 15 of the Term, at the
same time it makes its rent payments, an additional sum of
$264.73 and in this manner at the end of year 15 will have
fully paid Landlord for the laboratory furniture and equipment
being purchased. All of Landlord's remedies for nonpayment of
rent shall also apply to the nonpayment of any monthly
installment of the laboratory furniture and equipment purchase
which is due but not made.
9. It is understood and agreed that the First Right of Refusal set forth
in Lease Addendum No. 4 and the Buyout Provision set forth in Lease
Addendum No. 3 are null and void and of no further force or effect.
That except as herein modified, said Lease, as amended, shall remain in
full force and effect and the covenants and agreements contained herein shall
bind and inure to the benefit of the parties hereto, their heirs, personal
representatives, successors and assigns, and any number and gender shall include
the other number and gender.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment of Lease.
LANDLORD:
GLAXO WELLCOME INC.
By: /s/ Manuel C. Silva
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Its Vice President - Corporate Engineering
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Attest:_______________________________ [Corporate Seal]
______________ Secretary
TENANT:
EMBREX, INC.
By: /s/ Randall L. Marcuson
Its President and CEO
Attest: Don T. Seaquist [Corporate Seal]
Corporate Secretary
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STATE OF ______________________ (Corporate Notary)
COUNTY OF ____________________
I, ______________________, a Notary Public, certify that
_________________________ personally came before this day and acknowledged that
s/he is _________________ Secretary of ____________________________, a
Corporation, and that by authority duly given and as the act of the corporation,
the foregoing instrument was signed in its name by its ______________ President,
sealed with its corporate seal, and attested by him/herself as its
_________________ Secretary.
WITNESS my hand and notarial seal this _____ day of _______________, 19___.
My Commission Expires:____________
______________________________
Notary Public
STATE OF NORTH CAROLINA (Corporate Notary)
COUNTY OF DURHAM
I, Colleen S. Loree, a Notary Public, certify that Don T. Seaquist
personally came before this day and acknowledged that he is Corporate Secretary
of Embrex, Inc., a Corporation, and that by authority duly given and as the act
of the corporation, the foregoing instrument was signed in its name by its
______________ President, sealed with its corporate seal, and attested by
him/herself as its Corporate Secretary.
WITNESS my hand and notarial seal this 13th day of December, 1996.
My Commission Expires: April 15, 2001 /s/ Colleen S. Loree
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Notary Public
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[Blueprint/architectural drawing appears here]
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