.
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Exhibit 10.38
INDEX
SECTION TITLE PAGE
- ------- ----- ----
1. Term & Possession 1
(a) Duration 1
(b) Memoranda 1
2. Rent 1
(a) Minimum Rent 1
(b) Consumer Price Index 2
3. Rent Adjustment Increases in Operating Expenses and Taxes 3
(a) Definitions 3
(b) Share of Operating Expenses and Taxes 6
(c) Operating Expense and Tax Statements 6
(d) Survival After Termination 6
(e) Reduction or Elimination of Operating Expenses Component 7
(f) Essential Capital Improvement 7
(g) Tenant's Proportionate Share 8
(h) Review of Books 8
4. Improvement of the Demised Premises 8
(a) Tenant's Plans 8
(b) Tenant's Improvement Plans 8
(c) Tenant's Work 8
(d) Charges For Work 8
(e) Tenant's Contractor 9
5. Services 10
(a) Water 10
(b) Electric Current 10
(c) HVAC 10
INDEX - CONTINUED
(d) Janitorial 11
(e) Elevators 11
6. Quiet Enjoyment
7. Certain Rights Reserved to Landlord 11
8. Estoppel Certificate By Tenant 12
9. Waiver of Certain Claims 13
10. Liability Insurance 13
11. Holding Over 14
12. Assignment and Subletting 14
13. Condition of Premises 16
14. Use of Premises 16
15. Repairs 19
16. Untenantability 19
17. Eminent Domain 20
18. Landlord's Remedies 20
19. Notice and Consents 23
20. Invalidity of Particular Provisions 23
21 Waiver of Benefits 23
22. Miscellaneous Taxes 24
23. Sprinklers 24
24. No Estate in Land 24
INDEX - CONTINUED
25. Security Deposit 24
26. Substitute Premises 24
27. Brokerage 25
28. Special Stipulations 25
29. Subordination 27
30. Option to Renew 28
31. Right of First Refusal 28
WITNESSETH that ONE TRIAD CENTER ASSOCIATES (the Landlord), a North Carolina
Partnership, hereby leases unto ANALOG DEVICES, INC. having its principal place
of business at One Triad Center, Greensboro, North Carolina 27409 (the Tenant),
and the Tenant accepts from Landlord, the premises containing approximately
23,734 square feet located on the first floor outlined on the floor plans
hatched in black and attached hereto as Exhibit A (the "Premises") in the
Building known as "One Triad Center" (the "Building"), the Building, together
with the land on which it is located and all other improvements thereon being
called the Property), for the term, the rent, and subject to the conditions and
covenants hereinafter provided.
In Consideration thereof, the parties covenant and agree as follows:
1. Term and Possession
(a) Duration. The term of this Lease shall commence upon the date of
execution of this Lease (the "Commencement Date"),. The term shall continue for
a period terminating on December 31, 2000, unless extended or sooner terminated
as herein provided. During any period of time prior to the commencement date in
which Tenant takes full or partial possession of the Premises for the purpose of
making its improvements thereto or otherwise, Tenant shall be bound by all the
terms and provisions hereof other than the requirement of payment of minimum
rent. It is understood and agreed that the Commencement Date and occupancy may
be extended to the date of execution of the prior tenant's lease termination
agreement.
(b) Memoranda. When the date of commencement of the term of this Lease is
established, Landlord and Tenant shall promptly execute and acknowledge a
memorandum in form substantially as set forth in Exhibit "B" hereto, containing
the information set forth in said Exhibit.
2. Rent
(a) Rent shall accrue and be payable effective January 1, 1998, Rent shall
accrue and be payable during the term as follows: minimum annual rent shall be
equal to Three Hundred Fifty Thousand Seventy-Six and 50/100 Dollars
($350,076.50) payable in equal monthly installments of Twenty-Nine Thousand One
Hundred Seventy Three and 04/100 Dollars ($29,173.04) for a term of January 1,
1998 through June 30, 1998. In addition, Tenant shall pay an additional $.29 per
square foot for Operating Expenses and Taxes for the term of January 1, 1998
through December 31, 1998 and thereafter as set forth in Paragraph 3(b) hereof.
Beginning July 1, 1998, the minimum annual rent shall be equal to Three Hundred
Eighty-Five Thousand Six Hundred Seventy-Seven and 50/100 Dollars ($385,677.50)
payable in equal monthly installments of Thirty-Two Thousand One Hundred
Thirty-Nine and 79/100 Dollars ($32,139.79). Such minimum annual rent shall be
payable in advance, in equal monthly installments of one twelfth (1/12th) of the
annual amount, the first monthly installment to be payable upon
4
the commencement date of the term of this Lease, subject to proration based upon
a thirty day month if such commencement date is other than the first day of a
month, and subsequent monthly installments to be payable on the first day of
each successive month of the term hereof following the first month of such term.
(b) In addition to the rental payable under Section 3 hereof, the minimum
annual rental payable hereunder by Tenant shall be increased as of the first day
of each lease year commencing July 1, 1399 (the "CPI Increase Date") as set
forth below, without duplication.
(i) "Index" - The Index shall mean the index now known as The United
States Bureau of Labor Statistics, Department of Labor, Consumer Price
Index for All Urban Consumers, United States city average, all items
(1982-84 - 100). In the event the foregoing Index shall hereafter be
converted or otherwise revised, "Index" shall mean such index or
combination of indices as Landlord shall select, from any available
indices, for the purposes of this Section. If the said Bureau shall cease
publication of indices relating to the foregoing statistical information,
"Index" shall mean such index or combination of indices of similar
statistical information as Landlord shall select for the purposes of this
Section.
(ii) "Base Index" shall mean the Index for the month two (2) months
prior to the month in which the term of this Lease shall commence.
(iii) "Anniversary Index" shall mean the Index for the month (the
"Anniversary Month") two months prior to the month in which the CPI
Increase Date shall occur.
(iv) "Cost of Living Increase" shall mean a fraction, the numerator of
which shall be the Index in an Anniversary Month less the Base Index, and
the denominator of which shall be the Base Index.
Landlord shall furnish to Tenant, after the Index for each Anniversary
Month is published, a statement setting forth the Base Index, the Index for that
Anniversary Month, and the Cost of Living Increase. If the Index for that
Anniversary Month shall exceed the Base Index, there shall accrue, and be
payable by Tenant on the first day of each calendar month in equal monthly
installments as additional minimum rent, for and with respect to each twelve
month (12) month period on and after the CPI Increase Date, an amount determined
by multiplying the Cost of Living Increase times the minimum annual rental under
Section 2.(a) at the commencement date of this Lease. Should the foregoing
calculations be delayed beyond the CPI Increase Date for any year, on or before
the tenth (10th) day following submission of said statement to Tenant, Tenant
shall pay to Landlord a lump sum equal to one-twelfth (1/12) of said additional
minimum annual rent multiplied by the number of full or partial calendar months
elapsed from said CPI Increase Date to the end of the month in
5
which the day of payment occurs. On the first day of each succeeding calendar
month, Tenant shall pay to Landlord one-twelfth (1/12) of said additional
minimum annual rent.
6
3. Rent Adjustment: Increases in Operating Expenses and Taxes
(a) Definitions. As used in this Paragraph 3, the following terms shall be
defined as hereinafter set forth:
(i) "Taxes" shall mean all taxes, assessments, and charges levied upon
or with respect to the Property or any personal property of Landlord used
in the operation thereof, or Landlord's interest in the Property or such
personal property. Taxes shall include, without limitation, all general
real property taxes and general and special assessments, charges, fees, or
assessments for transit, housing, police, fire, or other governmental
services or purported benefits to the Property, service payments in lieu of
taxes, and any tax, fee, or excise on the act of entering into this Lease
or any other lease of space in the Building, on the use or occupancy of the
Building or any part thereof, or on the rent payable under any lease or in
connection with the business of renting space in the Building, that are now
or hereafter levied or assessed against Landlord by the United States of
America, the State of North Carolina, or any political subdivision, public
corporation, district, or other political or public entity. Taxes shall
also include any other tax, fee, or other excise, however described, that
may be levied or assessed as a substitute for or as an addition to, in
whole or in part, any other Taxes, whether or not now customary or in the
contemplation of the parties on the date of this Lease. Taxes shall not
include franchise, transfer, inheritance, or capital stock taxes or income
taxes measured by the net income of Landlord from all sources, unless, due
to a change in the method of taxation, any such tax is levied or assessed
against Landlord as a substitute for or as an addition to, in whole or in
part, any other tax that would otherwise constitute a property Tax. Taxes
shall also include reasonable legal fees, costs, and disbursements incurred
in connection with proceedings to contest, determine, or reduce Taxes.
(ii) "Operating Expenses" shall include all expenses, costs and
charges paid or incurred by Landlord for the management, operation,
maintenance and repair ("repair" as used in connection with operating
expenses shall not include
7
alterations or other capital expenditures made by Landlord, but shall
include the cost of any capital improvements made that were required under
any governmental law or regulation that was not applicable to the Premises
at the time of delivery of possession of the Premises to Tenant for the
benefit of the Premises) of the Land and Building (as a first class office
building) and shall include, but not be limited to, the following:
(A) "Labor Costs" (as hereinafter defined) for first class office
buildings, for the services of the following classes of employees
performing services required in connection with the operation,
repair and maintenance of the Building:
(1) the Building superintendent, his assistants and the
clerical staff attached to the Building superintendent's
office;
(2) window cleaners and miscellaneous handymen;
(3) cleaners and janitors employed in and about the Building
for the performance of services;
(4) watchmen and persons engaged in patrolling and
protecting the Building;
(5) carpenters, engineers, mechanics, electricians, painters
and plumbers engaged in the operation, repair and
maintenance of any part of the Building, the sidewalks
around the Building and the heating, air-conditioning,
ventilating, plumbing, electrical, elevator and other such
systems of the Building;
(6) such other personnel employed from time to time in order
to properly maintain and operate the Building; and
(7) personnel engaged exclusively in supervision of any of
the persons mentioned above in subparagraphs (1) through
(6).
(B) The cost of materials and supplies used only in the
operation, repair and maintenance of the Building.
8
(C) The cost of replacement for tools and equipment used on the
operation, repair and maintenance of the Building.
(D) The amounts paid to managing agents for the Building employed by
Landlord, or for reasonable legal, accounting or other professional
fees [necessarily incurred in connection with the operation of the
Building].
(E) Amounts charged to Landlord by contractors for services, materials
and supplies furnished in connection with the operation, repair and
maintenance of any part of the Building and Land, and the heating,
air-conditioning, ventilating, plumbing, electrical, elevator and
other systems of the Building.
(F) Amounts charged to Landlord by contractors for window cleaning,
and cleaning and janitorial services in and about the Building;
(G) Premiums paid by Landlord for All Risk Insurance for the Building,
including, without limitation, fire insurance, with such extended
coverage, vandalism and malicious, mischief coverage, and rent
insurance coverage, of the type and character usually carried by
landlords of similar first class buildings and premiums paid for
comprehensive general public liability insurance against claims for
bodily injury, death or property damage, and if carried by Landlord,
9
boiler and machinery insurance and war risk insurance, and such other
insurance as may from time to time be reasonably required by Landlord
to protect Landlord against other insurable hazards, which at the time
are commonly insured against in the case of premises similar to the
Building.
(H) Water charges and sewer rents.
(I) The cost of utilities necessary for the operation, maintenance and
repair of the Building.
(J) The cost of electricity (including with out limitation, fuel
adjustment charges) used to operate lighting fixtures, power
appliances, machinery, heating, ventilation and air-conditioning
equipment and all equipment used in connection with the operation,
maintenance and repair of the Building and the offices therein
located.
(K) Any other expense or charge which, in accordance with sound
accounting and management principles generally accepted with respect
to first class buildings in Greensboro, North Carolina, would be
construed as an operating expense.
Operating Expenses shall be "net only", and for that purpose shall be
reduced by the amounts of any reimbursement, credit, recoupment, discount, or
allowance received by Landlord in connection with such expenses.
"Labor Costs" shall mean all expenses incurred by Landlord or on Landlord's
behalf which shall be directly related to employment of personnel, including but
not limited to, amounts incurred for wages, salaries and other compensation for
services, payroll, social security, unemployment and other similar taxes,
workmen's compensation insurance, disability benefits, pensions,
hospitalization, retirement plans and group insurance, uniforms and working
clothes and the cleaning thereof, and expenses imposed on or on behalf of the
Landlord pursuant to any collective bargaining agreement.
The following items shall be excluded from Operating Expenses:
(i) Labor Costs in respect of officers and executives of Landlord or
individual partners of a successor of Landlord if such successor be a
partnership.
(ii) Any insurance premium to the extent that Landlord is reimbursed
for such premium.
(iii) The cost of any items for which Landlord is reimbursed by
insurance.
(iv) The cost of any additions to the Building subsequent to the date
of original construction or any alterations or refurbishing of space leased
to other tenants of the Building.
10
If the Landlord is not furnishing any particular work or service which Landlord
is obligated to perform under this Lease (the cost of which if performed by the
Landlord would constitute an Operating Expense) to a tenant who has undertaken
to perform such work or service in lieu of the performance thereof by the
Landlord, Operating Expenses shall be deemed for the purposes of this section to
be adjusted downward by an amount equal to the additional Operating Expense
which would reasonably have been incurred during such period by the Landlord if
it had at its own expense furnished such work or service to such tenant.
(b) Share of Operating Expenses and Taxes. For and with respect to each
calendar year of the term of this Lease that the "Operating Expenses and Taxes"
as hereinabove defined exceed the "Operating Expenses and Taxes" for 1998 (the
"Base Year"), there shall_ accrue, as additional rent, Tenant's Share of
Operating Expenses and Taxes, being a percentage of such excess Operating
Expenses and Taxes based on Tenant's rentable square footage as relayed to the
total rentable square footage in the Building. Such additional rent shall be on
a per-diem basis for any partial calendar year included within the beginning and
end of the term. Any additional rent under this Paragraph shall be paid by
Tenant as a lump sum after the end of the calendar year for which such payment
is first due, and within thirty (30) days after submission of a bill therefor.
In addition, Tenant shall pay as estimated additional monthly rent one-twelfth
of the amount of such additional rent, per month for each calendar month during
the calendar year immediately succeeding the calendar year in which the actual
operating expenses and taxes were incurred, with such procedure being followed
for each year thereafter. If such estimated additional monthly rental payments
for any calendar year exceed the actual additional monthly rent under this
Section 3 for such year, such excess shall be applied as a credit against
subsequent payments of estimated additional monthly rent. The portion of such
additional rent allocable to the months of the then current calendar year
(including the month in which such notice is received) which have then elapsed
(computed on the basis of one-twelfth of Tenant's pro rata portion of such
increases for each elapsed month) shall be due and payable to Landlord fort
with; thereafter, Tenant shall pay on the first day of each calendar month
one-twelfth of the amount of such additional rent.
(c) Operating Expense and Tax Statements. Landlord shall furnish to Tenant,
contemporaneously with the furnishing of billings to Tenant on account of
Operating Expense and Taxes as hereinbefore provided, a comparative statement
setting forth in reasonable detail the basis for the amount due by Tenant. Any
such comparative statement shall be deemed approved by Tenant unless within
thirty (30) days after the furnishing thereof, Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying in detail the basis for
such assertion. Pending the resolution of such dispute, however, Tenant shall
make payment in accordance with said comparative statement.
(d) Survival After Termination. If, upon termination of this Lease for any
cause, the amount of any additional rent due pursuant to this Section 3 has not
yet been determined, Tenant
11
shall pay Landlord an estimated amount of additional rent as determined by
Landlord based upon the preceding year's additional rent and, an appropriate
payment from Tenant to Landlord, or refund from Landlord to Tenant, shall be
made promptly after such determination.
(e) Reduction or Elimination of An Operating Expense Component. If, during
any calendar year, there shall be a reduction or elimination of any particular
component of Operating Expenses by reason of the introduction of a labor saving
device, energy conservation device, capital improvement or replacement installed
by Landlord, the corresponding item of expense in the Operating Expense for the
Base Year, shall be eliminated or reduced (in the same proportion as the
reduction of that item in the period set forth below). The reduction of the
operating expense item in the Base Year shall be made on an annualized basis, in
the same proportion as the reduction of that item for the first 12 months of the
new operation.
(f) Essential Capital Improvement. In the event Landlord shall hereafter
make a capital expenditure for an "Essential Capital Improvement"", as
hereinafter defined in this Section, the annual amortization of such expenditure
(determined by dividing the amount of the expenditure by the reasonable useful
life of the improvement) shall be deemed a cost to be included within "Operating
Expenses" for each year of such useful life. As used herein, an "Essential
Capital Improvement" means any one or more of the following:
(1) a labor saving device or other installation, improvement or
replacement which reduces Operating Expenses, whether or not voluntary or
required by governmental mandate; or
(ii) an installation or improvement required by reason of any law,
ordinance or regulation of any governmental or quasigovernmental body,
which requirement did not exist on the date hereof, and is applicable
generally to similar office buildings in the City of Greensboro, North
Carolina; or
(iii) an installation or improvement which directly enhances the
safety of tenants in the Building generally, whether or not voluntary or
required by governmental mandate (as, for example, but without limitation,
for fire safety or security).
In no event shall an Essential Capital Improvement be treated as an Operating
Expense component as described under Section 3(e) above.
In determining Operating Expenses for any year, including the Base Year for
Operating Expenses, if less than 95% of the rentable area of the Building shall
have been occupied by tenants for more than thirty (30) days during such year,
Operating Expenses shall be deemed for such year to be an amount equal to the
expenses which would be incurred had such occupancy of the Building been 95%
12
throughout such year, as reasonably determined by Landlord, except that in no
event shall Operating Expenses for any year be based upon a percentage of
occupancy less than that utilized for the Base Year for Operating Expenses.(
(g) For the purpose of this Section, Tenant's Proportionate Share of
Operating Expenses and Taxes shall be 32.07% which is based on the gross
rentable square foot area of the demised premises of 23,734 sq. ft. as it
relates to the gross rentable square foot area of the Building of 74,000 square
feet.
(h) Tenant may review Landlord's books and records related to Operating
Expenses and Taxes and the calculation of Tenant's Proportionate Share during
regular business hours upon forty-eight (48) hours notice.
4. Improvement of the Demised Premises
(a) Tenant's Plans. Landlord or Tenant with Landlord's written approval
agrees to perform work in the Premises as shown on Tenant's Layout Plans, as
prepared by Tenant, and attached hereto and made a part hereof, which plans
designate the construction and finishing of the Premises for Tenant's occupancy.
Tenant's Layout Plans shall be in conformity with the floor plans annexed hereto
as Exhibit "A" and with all applicable laws and requirements of public
authorities. Tenant's Layout Plans shall designate, among other things, the
locations of and specifications for all plumbing, electrical and mechanical
equipment to be installed in the 'remises, all partitions, doors, lighting
fixtures, electric receptacles and switches, telephone outlets and special
air-conditioning and other installations.
(b) Tenant's Improvement Plans. Tenant's Layout Plans and Finish Plans are
collectively referred to in this Lease as "Tenant's Improvement Plans". The work
required to be performed pursuant to Tenant's Improvement Plans and the
Engineering Plans is herein sometimes referred to as "Tenant Work."
(c) Tenant's Work. Tenant shall complete and prepare the Premises for
Tenant's initial occupancy in a good and workmanlike manner substantially in
accordance with Tenant's Improvement Plans and the Engineering Plans. Landlord
reserves the right, however:
(1) to make substitutions of material of equivalent grade and
quality when and if any specified material shall not be readily and
reasonably available, and
(ii) to make changes necessitated by conditions met in the course
of construction, provided that Tenant's approval of any substantial
change shall first be obtained (which approval shall not be
unreasonably withheld or delayed so long as there shall be general
conformity with Tenant's Improvement Plans).
(d) Charges for Work. In the completion and preparation of the Premises in
accordance with Tenant's Improvement Plans, Tenant agrees to perform at its own
expense those items of the work set forth on Exhibit "C" attached hereto (herein
referred to as "Standard Tenant Work") 'as shall be reflected in Tenant's
Improvement Plans. All work performed by Tenant in addition to or
13
in substitution for Standard Tenant Work is hereinafter referred to as "Special
Tenant Work". All special Tenant Work shall be furnished, installed and
performed by Tenant upon Landlord's
14
written approval of such Special Tenant Work and at Tenant's expense, utilizing
a general contractor (" Tenant's Contractor") approved by Landlord. Unless
otherwise agreed in writing, the charge to Tenant for Special Tenant Work shall
be Tenant's out-of-pocket expenses of every kind and nature in connection
therewith, including without limitation Tenant's contract or purchase price for
materials, labor and services.
(e) Tenant's Contractor. Tenant may at its sole expense select and employ
its own contractors for specialized finishing work in the Premises which is not
to be performed by Landlord and which is reflected as such in Tenant's
Improvement Plans, such as carpeting, telephone installation, special cabinet
work and millwork, decoration and installation of specialized equipment, subject
to the following qualifications:
(1) Tenant shall first obtain the approval of Landlord, in
writing, of the specific work it proposes to perform and
shall furnish Landlord with reasonably detailed plans and
specifications therefor (such approval not to be
unreasonably withheld);
(2) The work shall be performed by responsible contractors
and subcontractors approved in advance by Landlord, who
shall not, in Landlord's reasonable opinion, prejudice
Landlord's relationship with Landlord's contractors or
subcontractors or the relationship between such contractors
and their subcontractors or employees, or disturb harmonious
labor relations, who shall furnish in advance and maintain
in effect Workmen's Compensation Insurance in accordance
with statutory requirements and comprehensive public
liability insurance (naming, Landlord and Landlord's
contractors and subcontractors and Landlord's managing agent
as additional insureds) with limits satisfactory to
Landlord, and who shall, prior to the commencement of any
work, file waivers of mechanic's liens on account of the
work to be performed by any of Tenant's contractors,
sub-contractors or materialmen;
(3) No such work shall be performed in such manner or at
such times as to interfere with any work being done by any
of Landlord's contractors or subcontractors in the Premises
or in the Building or about the Property generally. Landlord
shall, however, endeavor to allow Tenant access for such
work prior to the commencement of the term hereof at the
earliest time consistent with the restrictions of this
subsection (g);
(4) Tenant and its contractors and subcontractors shall be
solely responsible for the transportation, safekeeping and
storage of materials and equipment used in the performance
of such finishing work, for the removal of waste and debris
resulting therefrom, and for any damage caused by them to
any installation or work performed by Landlord's contractors
and subcontractors; and
15
(5) Tenant's contractors and subcontractors shall be subject to
the general administrative supervision of Landlord's general
contractor for scheduling purposes, but said general contractor
of Landlord shall not be responsible for any aspect of the work
performed by Tenant's contractors or subcontractors or for the
coordination of the work of Landlord's contractors with Tenant's
contractors.
5. Services
The Landlord shall provide, at Landlord's expense, except as otherwise provided,
the following services on Monday through Friday from 8:00 A.M. to 6:00 P.M., and
on Saturday from 8:00 A.M. to 1:00 P.M., legal holidays excepted.
(a) Reasonable quantities of water to lavatories, toilets and water
fountains in or appurtenant to the Premises.
(b) Reasonable amounts of electric current as are customarily provided in
Class A office space. If tenant shall require electric current in excess of that
usually furnished or supplied for use of the Premises as general office space,
Tenant shall first procure the consent of the Landlord which consent Landlord
may refuse. In the event Landlord shall approve Tenant's request for excess
electric current, Landlord may cause an electric check meter to be installed in
the Premises or Landlord shall have the right to cause a reputable independent
electrical engineer or consulting firm to survey and determine the value of such
excess electric current. The cost of any such survey or meters and installation,
maintenance and repairs thereof shall be paid for by Tenant. Tenant agrees to
pay the Landlord, promptly upon demand therefor, for all such excess electrical
current consumed plus any additional expenses incurred in keeping account of the
excess electrical current so consumed. Tenant covenants and agrees that at all
times its use of electrical current shall never exceed Tenant's proportionate
share of the capacity of existing feeders to the Building or the riser or risers
or wiring installation. Any riser or wiring to meet Tenant's excess electric
requirements upon written request of Tenant, will be installed by Landlord at
the sole cost and expense of Tenant, if in Landlord's sole judgment, the same is
necessary and will not cause permanent damage or injury to the Building or the
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alteration, repairs or expenses or interfere with or
disturb other tenants or occupants.
(c) HVAC. Landlord shall furnish heat, ventilation and air-conditioning to
the Premises, Monday through Friday from 8:00 A.M. to 6:00 P.M., and on Saturday
from 8:00 A.M. to 1:00 P.M., legal holidays excepted. Heat and air-conditioning
required by Tenant at times other than those mentioned above shall be supplied
upon reasonable prior notice, and shall be paid for by Tenant, promptly upon
billing, at such rates as Landlord shall from time to time establish therefor.
The heating and air-conditioning systems intended to service the Premises have
been designed to be capable of providing comfortable occupancy for normal office
uses. Any additional or supplementary heating or cooling systems
16
required or desired by Tenant may be installed by Tenant, at Tenant's cost, in
accordance with the provisions of Paragraph 4 hereof. The furnishing of heat and
air-conditioning shall be subject to any statute, ordinance, rule, regulation,
resolution or recommendation for energy conservation which may be promulgated by
17
any governmental agency or organization which Landlord shall be required to
abide by, or in good faith may elect to abide with.
(d) Janitorial. Landlord shall provide janitorial services to all portions
of the Premises as specified on Exhibit "D" annexed hereto. Any and all
additional or specialized janitorial service desired by Tenant may be contracted
for by Tenant directly with Landlord's janitorial agent, and the cost and
payment therefor shall be and remain the sole responsibility of Tenant.
(e) Landlord will keep in operation in the Building during the aforesaid
business period, as many of the passenger elevators as in Landlord's judgment
are necessary to maintain elevator service. In case of accident, labor strikes,
repairs, renewals or improvements to the Building or machinery therein, or for
other cause deemed sufficient by Landlord, or those acting for Landlord, the
operation of said elevators and other machinery may be changed or suspended.
Landlord reserves the right to alter the hours during which the above
services are to be provided during the term hereof; however services as are
customarily offered in Class A office space shall be provided.
Should Tenant require any additional work or service, including but not
limited to the additional work or service described above, including service
furnished outside the stipulated hours, Landlord may, on terms to be agreed,
upon reasonable advance notice by Tenant, furnish such additional service and
Tenant agrees to pay the Landlord such charges as may be agreed on, but in no
event at a charge less than Landlord's actual cost plus overhead for the
additional services provided.
It is understood that Landlord does not warrant that any of the services
referred to above, or any other services which Landlord may supply, will be free
from interruption, Tenant acknowledging that any one or more such services may
be suspended by reason of accident or of repairs, alterations or improvements
necessary to be made, or by strikes or lockouts, or by reason of operation of
law, or causes beyond the reasonable control of Landlord. Any such interruption
or discontinuance of service shall never be deemed an eviction or disturbance of
Tenant's use and possession of the Premises, or any part thereof, or render
Landlord liable to Tenant for damages by abatement of rent or otherwise, or
relieve Tenant from performance of Tenant's obligations under this Lease.
6. Quiet Enjoyment
So long as the Tenant shall observe and perform the covenants and
agreements binding on it hereunder, the Tenant shall at all times during the
term herein granted peacefully and quietly have and enjoy possession of the
Premises without any encumbrance or hindrance by, from or through the Landlord,
subject to Section 29.
7. Certain Rights Reserved To The Landlord
The Landlord reserves all rights with respect to the Property not Leased to
Tenant hereby, including without limitation, the following rights:
18
(a) To name the Building and/or to change the name or street address of the
Building.
(b) To install and maintain a sign or signs on the exterior or interior of
the Building.
(c) To designate all sources furnishing sign painting and lettering, ice,
drinking water, towels, toilet supplies, shoe shining, vending machines, mobile
vending service, catering, and like services used on the Premises or in the
Building.
(d) During the last ninety (90) days of the term, if during or prior to
that time the Tenant vacates the Premises, to decorate, remodel, repair, alter
or otherwise prepare the Premises for reoccupancy, without affecting Tenant's
obligation to pay rental for the Premises.
(e) To constantly have pass keys to the Premises.
(f) On reasonable prior notice to the Tenant, to exhibit the Premises to
prospective tenants during the last twelve (12) months of the term, and to any
prospective purchaser, mortgagee, or assignee of any mortgage on the Property
and to others having a legitimate interest at any time during the term.
(g) At any time in the event of an emergency, and otherwise at reasonable
times, to take any and all measures, including inspections, repairs,
alterations, additions, and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or the Landlord's interests, or as may be necessary or
desirable in the operation or improvement of the Building or in order to comply
with all laws, orders and requirements of governmental or other authority.
(h) To install vending machines of all kinds in the Premises, and to
provide mobile vending service therefor, and to receive all of the revenue
derived therefrom, provided, however, that no vending machines shall be
installed by Landlord in the Premises nor shall any mobile vending service be
provided therefor, unless Tenant so requests.
8. Estoppel Certificate by Tenant
The Tenant agrees that from time to time upon not less than ten (10) days
prior request by the Landlord, the Tenant will deliver to the Landlord a
statement in writing certifying (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications that the same is in full
force and effect as modified and identifying the modifications), (b) the dates
to which the minimum annual rent and other charges have been paid, (c) whether
or not Tenant has or claims any offset, deduction or counter claims against
Landlord under this Lease and (d) that, so far as the person making the
certificate knows, the Landlord is not in default under any provision of this
Lease, and, if the Landlord is in default, specifying each such default of which
the person making the certificate may have knowledge, it being understood that
any such statement so delivered may be relied upon by any landlord under any
ground or underlying lease, or any prospective purchaser, mortgagee, or any
assignee of any mortgage on the Property.
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9. Waiver of Certain Claims
The Tenant, to the extent permitted by law, waives all claims it may lave
against the Landlord, and against the Landlord's agents and employees for damage
to person or property sustained by the Tenant or by any occupant of the
Premises, or by any other person, resulting from any part of the Property or any
equipment or appurtenances becoming out of repair, or resulting from any
accident in or about the Property or resulting directly or indirectly from any
act or neglect of any tenant or occupant of any Dart of the Property or of any
other person, unless such damage is a result of the negligence or contributory
negligence of Landlord, or Landlord's agents or employees. If any damage results
from any act or neglect of the Tenant, the Landlord may, at the Landlord's
option, repair such damage and the Tenant shall thereupon pay to the Landlord
the total cost of such repair.
All personal property belonging to the Tenant or any occupant of the
Premises that is in or on any part of the Property shall be there at the risk of
the Tenant or of such other person only, and the Landlord, its agents and
employees shall not be liable for any damage thereto or for the theft or
misappropriation thereof unless such damage, theft or misappropriation is a
result of the negligence or contributory negligence of Landlord or Landlord's
agents or employees. The Tenant agrees to hold the Landlord harmless and
indemnified against claims and liability for injuries to all persons and for
damage to or loss of property occurring in or about the Property, due to any act
of negligence or default under this lease by the Tenant, its contractors, agents
or employees.
To the extent that the Tenant carries hazard insurance on any of its
property in the Premises and to the extent that the Landlord carries hazard
insurance on the Property, each policy of insurance shall contain, if obtainable
from the insurer selected by the Tenant or the Landlord, as the case may be,
without additional expense, a provision waiving subrogation against the other
party to this Lease. If such provision can be obtained only at additional
expense, the obligation to obtain such provision shall continue if the other
party, on notice shall pay the amount of such additional expense. Each of the
parties hereto hereby releases the other with respect to any liability which the
other may have for any damage by fire or other casualty with respect to which
the party against whom such release is claimed shall be insured under a policy
or policies of insurance containing such provision waiving subrogation.
10. Liability Insurance
Tenant shall, at its expense, maintain during the term, comprehensive
public liability insurance, contractual liability insurance and property damage
insurance under policies issued by insurers, with limits of not less than
$5,000,000 for personal injury, bodily injury, death, or for damage or injury to
or destruction of property'(including the loss of use thereof) for any one
occurrence. Tenant's policies shall name Landlord, its
20
agents, servants and employees as additional insureds. At the option of the
Landlord, copies of certificates of insurance coverage shall be held by
Landlord.
11. Holding Over
If the Tenant retains possession of the Premises or any part thereof for a
period of one (1) month after the termination of the term, the Tenant shall pay
the Landlord Rent at triple the monthly rate specified in Section 2 and Section
3. If Tenant retains possession beyond that one (1) month period, tenancy shall
continue at sufferance on a month-to-month basis at double the monthly rent
specified in Section 2 and Section 3 for the time the Tenant thus remains in
possession and, in addition thereto, shall pay the Landlord for all damages
consequential as well as direct, sustained by reason of the Tenant's retention
of possession. If the Tenant remains in possession of the Premises, or any part
thereof, for a period greater than one (1) month after the expiration of the
term, such holding over shall, at the election of the Landlord expressed in a
written notice to the Tenant and not otherwise, constitute a renewal of this
lease for one year. The provisions of this Section do not exclude the Landlord's
rights of re-entry or any other right hereunder.
12. Assignment and Subletting
The Tenant shall not, without the Landlord's prior written consent which
shall not be unreasonably withheld, (a) assign, convey, mortgage, pledge,
encumber or otherwise transfer (whether voluntarily or otherwise) this Lease or
any interest under it; (b) allow any transfer thereof or any lien upon the
Tenant's interest by operation of law; (c) sublet the Premises or any part
thereof, or (J) permit the use or occupancy of the Premises or any part thereof
by any one other than the Tenant.
Tenant agrees to pay to Landlord, on demand, reasonable costs incurred by
Landlord in connection with any request by Tenant for Landlord to consent to any
assignment or subletting by Tenant.
If this lease be assigned or if the Premises or any part thereof be sublet
or occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, subtenant or occupant, and apply the net amount
collected to the Rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of Tenants covenants
contained in this Lease or the acceptance of the assignee, subtenant or occupant
as Tenant, or a release of Tenant from further performance by Tenant of
covenants on the part of Tenant herein contained.
Notwithstanding anything contained herein to the contrary, and in addition
to the Landlord's right to consent to such assignment, in toe event that any
time during the term of this Lease, Tenant desires to assign this Lease, Tenant
should notify the Landlord in writing (hereinafter referred to as "Assignment
Notice") of the terms of the proposed assignment and shall give the Landlord the
21
option to accept an assignment from the Tenant of this Lease on the same terms
as this Lease or, at Landlord's option, to terminate this lease. The option to
accept such assignment or to terminate this Lease shall be exercisable by
Landlord in writing for a period of fifteen (15) days after the receipt of the
Assignment Notice.
Notwithstanding anything contained herein to the contrary, and in addition
to Landlord's right to consent to such sublet, in the event that at any time
during the term of this lease Tenant desires to sublet all or part of the
Premises, Tenant shall notify the Landlord in writing (hereinafter referred to
as "Sublet Notice") of the terms of the proposed subletting and the area so
proposed to be sublet and shall give the Landlord the option to sublet from
Tenant such space (hereinafter referred to as "sublet space") at the same rent
and additional rent as Tenant is required to pay to Landlord under this lease
for the same space or, at Landlord's option, to terminate the lease with respect
to the sublet space. If the sublet space does not constitute the entire Premises
and Landlord exercises its option to terminate this lease with respect to the
sublet space, then as to that portion of the Premises which is not part of the
sublet space, this lease shall remain in full force and effect except that the
Rent shall be reduced by a fraction, the numerator of which shall be the
rentable square feet of the sublet space and the denominator of which shall be
the rentable square feet of the Premises. The option to sublet, or to terminate
the lease, shall be exercisable by Landlord in writing for a period of fifteen
(15) days after receipt of the Sublet Notice.
In the event Landlord exercises its option to accept such assignment or to
sublease the sublet space, the terms of the assignment or the term of the
subletting from the Tenant to the Landlord for the sublet space shall be as set
forth in the Assignment Notice or the Sublet Notice, as the case may be, and
shall be on such other terms and conditions as are contained in this lease to
the extent applicable.
Tenant shall be entitled to receive Gross Proceeds (as hereinafter defined)
in an amount (the "Priority Tenant Share") equal to the sum of $1,000. After
Tenant has received the Priority Tenant Share, Tenant shall pay Landlord, as
additional rent, as and when received, fifty percent (50%) of Gross Proceeds.
"Gross Proceeds" means an amount equal to the excess, if any, of (x) :he
amounts which are payable by the sublessee or an assignee under or in connection
with any sublease or assignment of the Premises (less, in the case of each
payment of fixed rent or basic rent, an amount equal to five (5%) percent of
each such payment) over (y) the corresponding amounts, if any, payable under
this Lease (or if there be no such corresponding amount, in excess of zero).
Amounts which are payable by the sublessee or an assignee under or in connection
with any sublease or assignment of the Premises shall be deemed (x) not to be
Gross Proceeds until such payment is received by Tenant and (y) not to include
any payment
22
by the sublessee or an assignee under such sublease or operative document(s)
with respect to such assignment which is identified as a payment for tenant
improvements which were constructed by Tenant, or at Tenant's direction, for
such sublessee or assignee, which shall not exceed in the aggregate the then
unamortized cost to Tenant of such tenant improvements.
In the event Landlord does not exercise either of its options specified
above and Tenant completes an assignment or a sublease with a third party, the
assignee or subtenant shall be subject to and comply with the requirements of
this Section.
13. Condition of Premises
Tenant's taking possession of the Premises shall be conclusive evidence as
against the Tenant that the Premises were in good order and satisfactory
condition when the Tenant took possession. No promises of the Landlord to alter,
remodel, repair or improve the Premises or the Building and no representation
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, other than as may be contained herein or in a separate Work
Letter Agreement signed by Landlord and Tenant. At the termination of this
Lease, the Tenant shall return the Premises broom-clean and in as good condition
as when the Tenant took possession, ordinary wear and loss by fire or other
casualty excepted, failing which the Landlord may restore the Premises to such
condition and the Tenant shall pay the cost thereof on demand.
14. Use Of Premises
The Tenant agrees to comply with the following rules and regulations and
with such reasonable modifications thereof and additions thereto as the Landlord
may hereafter from time to time make for the Building. The Landlord shall not be
responsible for the -Ion-observance by any other tenant of any of said rules and
regulations.
(a) The Tenant shall not exhibit, sell or offer for sale on the Premises or
in the Building, any article or thing except those articles or things
essentially connected with the stated use of the Premises by the Tenant without
the advance consent of the Landlord.
(b) The Tenant will not make or permit to be made any use of the Premises
or any part thereof which would violate any of the covenants, agreements, terms,
provisions and conditions of this Lease or which directly or indirectly is
forbidden by public law, ordinance or governmental regulation or which may be
dangerous to life, limb, or property, or which may invalidate or increase the
premium cost of any policy of insurance carried on the Building or covering its
operation, or which will suffer or permit the Premises or any part thereof to be
used in any manner or anything to be brought into or kept therein which, in the
judgment of Landlord, shall in any way impair or tend to impair the character,
reputation or appearance of the Property as a high quality office building, or
which will impair or interfere with or tend to impair or interfere with any of
the services performed by Landlord for
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the Property.
(c) The Tenant shall not display, inscribe, print, paint maintain or affix
on any place in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises and on the
Directory Board, which shall be maintained by Landlord,, and then only such
names(s) and matter, and in such color, size, style, place and materials, as
shall firs: have been approved by the Landlord. The listing of any name other
than that of Tenant, whether on the doors of the Premises, on the Building
directory, or otherwise, shall not operate to vest
24
any right or interest in this Lease or in the Premises or be deemed to be the
written consent of Landlord mentioned in Section 12, it being expressly
understood that any such listing is a privilege extended by Landlord revocable
at will by written notice to Tenant.
(d) The Tenant shall not advertise the business, profession or activities
of the Tenant conducted in the Building in any manner which violates the letter
or spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purposes other than that of the
business address of the Tenant and shall never use any picture or likeness of
the Building in any circulars, notices, advertisements or correspondence without
the Landlord's consent.
(e) No additional locks or similar devices shall be attached to any door or
window without Landlord's prior written consent which shall not be unreasonably
withheld, so long as keys or access cards to such locks or devices are provided
to Landlord. No keys for any doors other than those provided by the Landlord
shall be made. If more than five (5) keys for one lock are desired, the Landlord
will provide the same upon payment by the Tenant. All keys must be returned to
the Landlord at the expiration or termination of this Lease.
(f) The Tenant shall not make any alterations, improvements or additions to
the Premises including, but not limited to, wall coverings, floor coverings and
special lighting installations, without the Landlord's advance written consent
in each and every instance, unless such alterations, improvements or additions
are non-structural and the cost of such is less than, or equal to, one thousand
dollars ($1,000.00). In the event Tenant desires to make alterations,
improvements or additions, Tenant shall first submit to Landlord plans and
specifications therefor and obtain Landlord's written approval thereof prior to
commencing any such work. All alterations, improvements or additions, whether
temporary or permanent in character, made by Landlord or Tenant in or upon the
Premises shall become Landlord's property and shall remain upon the Premises at
the termination of this Lease without compensation to Tenant (excepting only
Tenant's movable office furniture, trade fixtures, office and professional
equipment) provided, however, that Landlord shall have the right to require
Tenant to remove such alterations, improvements or additions, at Tenant's cost,
upon the termination of this Lease and to repair any damage to the Premises
resulting therefrom.
(g) All persons entering or leaving the Building after hours on Monday
through Friday, or at any time on Saturdays, Sundays or holidays, may be
required to do so under such regulations as the Landlord may impose. The
Landlord may exclude or expel any peddler.
(h) The Tenant shall not overload any floor. The Landlord may direct the
time and manner of delivery, routing and removal, and the location, of safes and
other heavy articles.
(i) Unless the Landlord gives advance written consent, the Tenant shall not
install or operate any steam or internal
25
combustion engine, boiler, machinery, refrigerating or heating device or
air-conditioning apparatus in or about the Premises, or carry on any mechanical
business therein, or use the Premises for housing accommodations or lodging or
sleeping purposes, or use any illumination other than electric light, or use or
permit to be brought into the Building any inflammable fluids such as gasoline,
kerosene, naphtha, and benzine, or any explosives, radioactive materials or
other articles deemed extra hazardous to life, limb or property except in a
manner which would not violate any ordinance or regulation of the City. The
Tenant shall not use the Premises for any illegal or immoral purpose. Tenant
shall be permitted to install a refrigerator, microwave oven, and coffee machine
for its own use.
(j) The Tenant shall cooperate fully with the Landlord to assure the
effective operation of the Building's air-conditioning system including the
closing of venetian blinds and drapes, and if windows are operable to keep them
closed when the air-conditioning system is in use.
(k) The Tenant shall not contract for any work or service which might
involve the employment of labor incompatible with the Building employees or
employees of contractors doing work or performing services by or on behalf of
the Landlord.
(l) The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by the Tenant or used for any purpose other
than for ingress to and egress from its Premises. The halls, passages, exits,
entrances, elevators, stairways and roof are not for the use of the general
public and the Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of the
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom the
Tenant normally deals in the ordinary course of Tenant's business unless such
persons are engaged in illegal activities. No Tenant and no employees or
invitees of any Tenant shall go upon the roof or mechanical floors of the
Building.
(m) Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or the
Building.
(n) Tenant shall see that the doors, and windows, if operable, of the
Premises are closed and securely locked before leaving the Building and must
observe strict care and caution that all water faucets or water apparatus are
entirely shut off before Tenant or Tenant's employees leave the Building, and
that all electricity shall likewise be carefully shut off so as to prevent waste
or damage, and for any default or carelessness Tenant shall make good all
injuries or losses sustained by other tenants or occupants of the Building or
Landlord.
26
In addition to all other liabilities for breach of any covenant of this
Section, the Tenant shall pay to the Landlord an amount equal to any increase in
insurance premiums payable by the Landlord or any other tenant in the Building,
caused by such breach.
15. Repairs
Tenant shall give to Landlord prompt written notice of any damage to, or
defective condition in any part or appurtenance of the 3uilding's plumbing,
electrical, heating, air-conditioning or other systems serving, located in, or
passing through the Premises. Subject to the provisions of Section 13, the
Tenant shall, at the Tenant's own expense, keep the Premises in good order,
condition and repair during the term, except that the Landlord, at the
Landlord's expense (unless caused by the fault or negligence of the Tenant, its
contractors, agents, or employees) shall keep in repair the elevators,
electrical lines, plumbing fixtures located in the Building (except those
installed by Tenant with Landlord's approval) heating and air-conditioning
equipment, outside walls, including windows, and roof. The Tenant at the
Tenant's expense, shall comply with all laws and ordinances, and all rules and
regulations of all governmental authorities, applicable to the Premises or to
the Tenant's use thereof, except that the Tenant shall not hereby be under any
obligation to comply with any law, ordinance, rule or regulation requiring any
structural alteration of or in connection with the Premises, unless such
alteration is required by reason of a condition which has been created by, or at
the instance of, the Tenant, or is required by reason of a breach of any of the
Tenant's covenants and agreements hereunder. In addition Tenant shall be
obligated to comply with the rules and regulations of all insurance bodies in
the event all or a portion of the Premises is used for any purpose other than
office space. Landlord shall not be required to repair any injury or damage by
fire or other cause, or to make any repairs or replacements of any panels,
decoration, office fixtures, railing, ceiling, floor covering, partitions, or
any other property installed in the Premises by, or at the cost of, the Tenant.
16. Untenantability
If the Premises are made untenantable in whole or in part by fire or other
casualty the Rent, until repairs shall be made or this Lease terminated as
hereinafter provided, shall be apportioned on a per diem basis according to the
part of the Premises which is usable by the Tenant, if, but only if, such fire
or other casualty be not caused by the fault or negligence of the Tenant, its
contractors, agents, or employees. If such damage be so extensive that the
Premises cannot be restored to "Building Standard" by the Landlord within a
period of three (3) months, either party shall have the right to cancel this
Lease by notice to the other given at any time with thirty (30) days after the
date of such damage; except that if such fire or casualty resulted from the
Tenant's fault or negligence, the Tenant shall have no right to cancel. If a
portion of the Building other than the Premises shall be so damaged that in the
opinion of the Landlord the Building should not be restored or should be
restored in such a way as to alter the Premises materially, the Landlord may
cancel
27
this Lease by notice to the Tenant given at any time within thirty
28
(30) days after the date of such damage. In the event of giving effective notice
pursuant to this Section, this Lease and the term and the estate hereby granted
shall expire on the date fifteen (15) days after the giving of such notice as
fully and completely as if such date were the date hereinbefore set for the
expiration of the term of this Lease. If this Lease is not so terminated, the
Landlord will promptly repair the damage at the Landlord's expense.
17. Eminent Domain
(a) In the event that title to the whole or any substantial part of the
Premises shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title and the
Landlord shall be entitled to receive the entire award, the Tenant hereby
assigning to the Landlord the Tenant's interest therein, if any.
(b) In the event that title to a part of the Building other than the
Premises shall be so condemned or taken and if in the opinion of the Landlord,
the Building should not be restored or should be restored in such a way as to
alter the Premises materially, the Landlord may terminate this lease and the
term and estate hereby granted by notifying the Tenant of such termination
within sixty (60) days following the date of vesting title, and this lease and
the term and estate hereby granted shall expire on the date specified in the
notice of termination, not less than sixty (60) days after the giving of such
notice, as fully and completely as if such date were the date hereinbefore set
for the expiration of the term of this lease, and the Rent hereunder shall be
apportioned as of such date.
18. Landlord's Remedies
All rights and remedies of the Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law. In
addition to the other remedies in this lease provided, the Landlord shall be
entitled to the restraint by injunction of the violation or attempted violation
of any of the covenants, agreements or conditions of this Lease.
(a) If the Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, (ii) file a voluntary petition in bankruptcy or admit in writing its
inability to pay its debts as they come due, (iii) make a general assignment for
the benefit of creditors, (iv) file a petition or an answer seeking
reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a
petition filed against the Tenant in any bankruptcy, reorganization or
insolvency proceeding, or not have such petition dismissed within ninety (90)
days or if an order, judgment or decree shall be entered by any court of
competent jurisdiction adjudicating the Tenant a bankrupt or insolvent or
approving a petition seeking reorganization of the Tenant or appointing a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, then in any of such events, the Landlord may give to the Tenant a
notice of
29
intention to end the term of this Lease specifying a day not earlier than thirty
(30) days thereafter, and upon the giving of such notice the term of this Lease
and all right, title and interest of the Tenant hereunder shall expire as fully
and completely on the day so specified as if that day were the date herein
specifically fixed for the expiration of the term.
(b) If the Tenant defaults in the payment of minimum annual rent and such
default continues for ten (10) days after notice, or defaults in the prompt and
full performance of any other provision of this Lease and such default continues
for fifteen (15) days after notice, or if the leasehold interest of the Tenant
be levied upon under execution or be attached by process of law, or if the
Tenant abandons the Premises, then and in any such event the Landlord may, at
its election, either terminate the Lease and the Tenant's right to possession of
the Premises or, without terminating this Lease, endeavor to relet the Premises.
Notwithstanding the above, Landlord shall only be obligated to give Tenant
notice of a default in rent payment two (2) times in each lease year.
Thereafter, Tenant shall be immediately in default if rent payments are not made
on the date due. Nothing herein shall be construed so as to relieve the Tenant
of any obligation, including the payment of minimum annual rent, as provided in
this Lease.
(c) Upon any termination of this lease, the Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession thereof
to the Landlord, and hereby grants to the Landlord full and free license to
enter into and upon the Premises in such event with or without process of law
and to repossess the Landlord of the Premises as of the Landlord's former estate
and to expel or remove the Tenant and any others who may be occupying or within
the Premises and to remove any and all property therefrom, using such force as
may be necessary, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without relinquishing the Landlord's
right to rent or any other right given to the Landlord hereunder or by operation
of law.
(d) If the Tenant abandons the Premises or the Landlord otherwise becomes
entitled so to elect, and the Landlord elects, without terminating the lease, to
endeavor to relet the Premises, the Landlord may, at the Landlord's option enter
into the Premises, remove the Tenant's signs and other evidence of tenancy, and
take and hold possession thereof as in Paragraph (c) of this Section provided,
without such entry and possession terminating the lease or releasing the Tenant,
in whole or in part, from the Tenant's obligation to pay the Rent hereunder for
the full term as hereinafter provided. Upon and after entry into possession
without termination of the lease, the Landlord may relet the Premises or any
part thereof for the account of the Tenant to any person, firm or corporation
other than the Tenant for such rent, for such time and upon such terms as the
Landlord shall determine, to be reasonable. In any such case, the Landlord may
make repairs, alterations and additions in or to the Premises, and redecorate
the same to the extent deemed by the Landlord necessary or desirable, and the
Tenant shall, upon demand, pay the cost
30
thereof, together with the Landlord's expenses of the reletting. If tie
consideration collected by the Landlord upon any such reletting for the Tenant's
account is not sufficient to pay monthly the full amount of the Rent reserved in
this lease, together with the cost of repairs, alterations, additions,
31
redecorating and the Landlord's expenses, the Tenant shall pay to the Landlord
the amount of each monthly deficiency upon demand and if the consideration so
collected from any such reletting is more than sufficient to pay the full amount
of the Rent reserved herein, together with the costs and expenses of the
Landlord, the Landlord, at the end of the stated term of this lease, shall
account to the Tenant.
(e) If the Landlord elects to terminate this lease in any of the
contingencies specified in this Section, it being understood that the Landlord
may elect to terminate the lease after and notwithstanding its election to
terminate the Tenant's right to possession as in Paragraph (b) of this Section
provided, the Landlord shall forthwith upon such termination be entitled to
recover as damages, and not as a penalty, an amount equal to the then present
value of the minimum annual rent and additional rent provided in this lease for
the residue of the stated term hereof, less the present value of the fair rental
value of the Premises for the residue of the stated term.
(f) Any and all property which may be removed from the Premises by the
Landlord pursuant to the authority of the lease or of law, to which the Tenant
is or may be entitled, may be handled, removed or stored by the Landlord at the
risk, cost and expense of the Tenant, and the Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. The Tenant shall
pay to the Landlord, upon demand, any and all expenses incurred in such removal
and all storage charges against such property so long as the same shall be in
the Landlord's possession or under the Landlord's control. Any such property of
the Tenant not removed from the Premises or retaken from storage by the Tenant
within thirty (30) days after the end of the term or of the Tenant's right to
possession of the Premises, however terminated, shall be conclusively deemed to
have been forever abandoned by the Tenant and either may be retained by Landlord
as its property or may be disposed of in such manner as Landlord may see fit.
(g) The Tenant agrees that if it shall at any time fail to make any payment
or perform any other act on its part to be made or performed under this lease,
the Landlord may, but shall not be obligated to, and after reasonable notice or
demand and without waiving, or releasing the Tenant from, any obligation under
this lease, make such payment or perform such other act to the extent the
Landlord may deem desirable, and in connection therewith to pay expenses and
employ counsel. The Tenant agrees to pay a reasonable attorney's fee if legal
action is required to enforce performance by Tenant of any condition, obligation
or requirement hereunder. All sums so paid by the Landlord and all expenses in
connection therewith, together with interest thereon at the rate of 18% per
annum from the date of payment, shall be deemed additional rent hereunder and
payable at the time of any installment of Rent thereafter becoming due and the
Landlord shall have the same rights and remedies for the non-payment thereof, or
of any other additional rent, as in the case of default in the payment of rent.
(h) Interest on Past Due Payments and Advances. Tenant
32
covenants and agrees to pay to Landlord interest on demand at the rate of 2%
above the "Prime Rate," as hereinafter defined, on the amount of any Monthly
Rent or Monthly Deposit not paid when due,
33
from the date due and payable and on the amount of any payment made by Landlord
required to have been made by Tenant under this Lease and on the amount of any
costs and expenses, including reasonable attorney's fees, paid by Landlord in
connection with the taking of any action to cure any Default by tenant from the
date of making any such payment or the advancement of such costs and expenses by
Landlord. "Prime Rate" shall mean that interest rate set by Wachovia Bank of
North Carolina, N.A., from time to time as its interest rate basis for
commercial borrowings, but never in excess of the maximum amount of finance
charge permissible under applicable law. In the event that the Bank discontinues
the use of a Prime Rate, the Prime Rate being charged by any other national
banking association located in North Carolina, as selected by Landlord in its
sole discretion, shall be used for computing the interest rate under this
Section.
19. Notice and Consents
All notices, demands, requests, consents or approvals which may or are
required to be given by either party to the other shall be in writing and shall
be deemed given when sent by United States Certified or Registered Mail, postage
prepaid, (a) if for the Tenant, addressed to Facilities Manager at the Building,
and to Tenant at 1 Technology Way, P.O. Box 9106, Norwood, MA 02062, Attention:
Chief Financial Officer or at such other place as the Tenant may from time to
time designate by notice to the Landlord, or (b) if for the Landlord, addressed
to the office of the Landlord in the Building with a copy to Landlord addressed
to Suite 1200, 230 S. Tryon Street, Charlotte, NC 28202 or at such other places
as the Landlord may from time to time designate by notice to the Tenant. All
consents and approvals provided for herein must be in writing to be valid. If
the term Tenant as used in this lease refers to more than one person, any
notice, consent, approval, request, bill, demand or statement, given as
aforesaid to any one of such persons shall be deemed to have been duly given to
Tenant.
Except as specifically provided in this lease, Tenant hereby expressly
waives the service of intention to terminate this lease or to re-enter the
Premises and waives the service of any demand for payment of Rent or for
possession and waives the service of any other notice or demand prescribed by
any statute or other law.
20. Invalidity of Particular Provisions; Severability
If any clause or provision of this lease is or becomes illegal, invalid, or
unenforceable because of present or future laws or any rule or regulation of any
governmental body or entity, effective during its term,, the intention of the
parties hereto is that the remaining parts of this lease shall not be affected
thereby unless such invalidity is, in the sole determination of Landlord,
essential to the rights of both parties in which event Landlord has the right to
terminate this lease on written notice to Tenant.
21. Waiver of Benefits
Tenant waives the benefits of all existing and future Rent Control
Legislation and Statutes and similar governmental rules and regulations, whether
in time of war or not, to the extent permitted by law.
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22. Miscellaneous Taxes
Tenant shall pay prior to delinquency all taxes assessed against or levied
upon its occupancy of the Premises, or upon the fixtures, furnishings, equipment
and all other personal property of Tenant located in the Premises, if nonpayment
thereof shall give rise to a lien on the Property, and when possible Tenant
shall cause said fixtures, furnishings, equipment and other personal property to
be assessed and billed separately from the property of Landlord. In the event
any or all of Tenant's fixtures, furnishings, equipment and other personal
property, or upon Tenant's occupancy of the Premises, shall be assessed and
taxed with the property of Landlord, Tenant shall pay to Landlord its share of
such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's fixtures, furnishings, equipment or personal property.
23. Sprinklers
If there now is or shall be installed in the Building a "sprinkler system,"
and such system or any of its appliances shall be damaged or injured or not in
proper working order by reason of any act or omission of the Tenant, Tenant's
agents, servants, employees, licensees or visitors, the Tenant shall forthwith
restore the same to good working conditions at its own expense; and if the Board
of Fire Underwriters of Fire Insurance Exchange or any bureau, department or
official of the state or city government, require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied solely by reason of the Tenant's business, or the location of
partitions, trade fixtures, or other contents, of the Premises requested,
required or installed by Tenant, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become necessary to
prevent the imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Exchange, or by any
fire insurance company, Tenant shall, at the Tenant's expense, promptly make and
supply such changes, modifications, alterations, additional sprinkler head or
other equipment.
24. No Estate In Land
This contract and lease shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord; and
Tenant has only a usufruct which is not subject to levy and sale.
25. Security Deposit - DELETED INTENTIONALLY
26. Substitute Premises
If the Premises contain an area of 2,000 square feet or less, Landlord
shall have the right at any time during the term hereof, upon giving Tenant not
less than sixty (60) days prior written notice, to provide and furnish Tenant
with space elsewhere in the Building of approximately the same size as the
Premises and remove
35
and place Tenant in such space, with Landlord to pay all reasonable costs and
expenses incurred as a result of such removal of Tenant. Should Tenant refuse to
permit Landlord to move Tenant to such new space at the end of said sixty (60)
day period, Landlord shall have the right to cancel and terminate this lease
effective ninety (90) days from the date of original notification by Landlord.
If Landlord moves Tenant to such new space, this lease and each and all of its
terms, covenants and conditions shall remain in full force and effect and be
deemed applicable to such new space, and such new space shall thereafter be
deemed to be the Premises as though Landlord and Tenant had entered upon an
express written amendment of this lease with respect thereto.
27. Brokerage
Tenant represents and warrants that it has dealt with no broker, agent or
other person in connection with this transaction and that no broker, agent or
other person brought about this transaction, other than Binswanger Southern,
(N.C.) Inc., the authorized Agent of the Landlord, and Tenant agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction. The provisions of this Section shall survive the termination of
this lease.
28. Special Stipulations
(a) No receipt of money by the Landlord from the Tenant after the
termination of this lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the Premises
shall reinstate, continue or extend the term of this lease or affect any such
notice, demand or suit or imply consent for any action for which Landlord's
consent is required.
(b) No waiver of any default of the Tenant hereunder shall be implied from
any omission by the Landlord to take any action on account of such default if
such default persists or be repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and that only for
the time and to the extent therein stated.
(c) The term "Landlord" as used in this lease, so far as covenants or
agreements on the part of the Landlord are concerned, shall be limited to mean
and include only the owner or owners of the Landlord's interest in this lease at
the time in question, and in the event of any transfer or transfers of such
interest the Landlord herein named (and in case of any subsequent transfer, the
then transferor) shall be automatically freed and relieved from and after the
date of such transfer of all personal liability as respects the performance of
any covenants or agreements on the part of the Landlord contained in this lease
thereafter to be performed.
(d) It is understood that the Landlord may occupy portions of the 3uilding
in the conduct of the Landlord's business. In such event, all references herein
to other tenants of the Building shall be deemed to include the Landlord as an
occupant.
(e) The term "City" as used in this lease shall be understood
36
to mean the City in which the Property is located.
(f) All of the covenants of the Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or importing covenants and conditions were used in each
separate instance.
(g) This Lease shall not be recorded by either party without the consent of
the other.
(h) Neither party has made any representations or promise, except as
contained herein, or in some further writing signed by the party making such
representation or promise.
(i) In the absence of fraud, no person, firm or corporation, or the heirs,
legal representatives, successors and assigns, respectively, thereof, executing
this lease as agent, trustee or in any other representative capacity shall ever
be deemed or held individually liable hereunder for any reason or cause
whatsoever.
(j) In event of variation or discrepancy, the Landlord's original copy of
the lease shall control.
(k) Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of the Landlord and the Tenant and their
respective heirs, legal representatives and successors, and assigns in the event
this lease has been assigned with the express, written consent of the Landlord.
(l) If because of any act or omission of Tenant, its employees, agents,
contractors, or subcontractors, any mechanic's lien or other lien, charge or
order for the payment of money shall be filed against Landlord, or against all
or any portion of the Premises, or the Building of which the Premises are a
part, Tenant shall, at its own cost and expenses, cause the same to be
discharged of record, within thirty (30) days after the filing thereof, and
Tenant shall indemnify and save harmless Landlord against and from all costs,
liabilities, suits, penalties, claims and demands, including reasonable
attorneys' fees resulting therefrom.
(m) It is understood and agreed that this Lease shall not be binding until
and unless all parties have signed it.
(n) Landlord and Tenant, by execution of this Agreement, represent and
warrant to each other that they are duly organized and existing under applicable
laws as set forth hereinabove and are in good standing under such laws; and,
that each has the requisite legal authority to own and operate its properties
and assets, to carry on its business as presently conducted, and to execute this
Lease.
(o) The provisions of this indenture shall be construed in accordance with
and governed by the laws of the state of North Carolina. References to this
Lease or this indenture shall refer to this document. Reference to Landlord or
Tenant, whenever consistent with the context of this Lease shall include the
plural or singular number, masculine, feminine or neuter gender. In the absence
of specific provisions to the contrary, the party upon whom an obligation is
imposed by this Lease shall perform the
37
obligation at its own expense. Paragraph headings relating to the contents of
particular paragraphs are inserted only for the purpose of convenience and are
not to be construed as parts of the particular paragraphs to which they refer.
All of the provisions of this Lease are to be construed as covenants and
agreements as though the words importing such covenants and agreements were used
in each paragraph.
29. Subordination
(a) This Lease is subject and subordinate to each and every trust
indenture, deed of trust and mortgage (collectively the "Mortgages") which now
affects the Property, and the Building, and to all renewals, extensions,
supplements, amendments, modifications, consolidations, and replacements thereof
or thereto, substitutions therefor, and advances made thereunder. Landlord shall
employ its best efforts to obtain from the holder or holders of the Mortgages a
Non-Disturbance Agreement (as defined below). Tenant shall subordinate this
Lease to the lien of any subsequent mortgagee or lien holder and so long as
Tenant is not in default of this Lease, such subordination shall be conditioned
upon the delivery to Tenant of an agreement by mortgagee or lienholder that it
shall not disturb Tenant's possessory rights in the Premises (a "Non-Disturbance
Agreement").
(b) If at any time prior to the expiration of the Term, any Superior Lease
shall terminate or be terminated for any reason, Tenant agrees, at the election
and upon demand of any owner of the Property or the Building, or the lessor
under any such Superior Lease, or of any mortgagee in possession of the Property
or the Building, to attorn, from time to time, to any such owner, lessor or
mortgagee, upon the then executory terms and conditions of this Lease, for the
remainder of the term originally demised in this Lease, provided that such
owner, lessor or mortgagee, as the case may be or receiver caused to be
appointed by any of the foregoing, shall not then be entitled to possession of
the Premises. The provisions of this subsection (b) shall enure to the benefit
of any such owner, lessor or mortgagee, shall apply notwithstanding that, as a
matter of law, this Lease may terminate upon the termination of any such
Superior Lease, and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions. Tenant, however,
upon demand of any such owner, lessor or mortgagee, agrees to execute, from time
to time, instruments in confirmation of the foregoing provisions of this
subsection (b), satisfactory to any such owner, lessor or mortgagee,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy. Nothing contained in this subsection (b) shall be construed to impair
any right otherwise exercisable by any such owner, lessor or mortgagee.
30. Option to Renew
Provided Tenant is not then in default under any of the terms, conditions
and covenants of this Lease, Tenant shall have the right and privilege, at its
election, to renew this Lease for one (1) further term of three (3) years (the
"Renewal Period") by giving Landlord written notice of its election to do so
(the "Election"), at any time on or before one hundred eighty (180)
38
days prior to the end of the then existing Term. Such renewals shall be on the
same terms and conditions (except for the Election) as herein provided for the
Primary Term, except that the minimum annual rent during such Renewal Periods
shall be at the prevailing market rate.
31. Right of First Offer.
Provided Tenant is not in default and has performed all of its obligations
hereunder, Tenant shall have the first opportunity to lease approximately 18,157
square feet of space known as Suite 240 (the "Space") which Space is outlined on
the attached Exhibit "E". Upon notification in writing by Landlord of the
availability of the Space, Tenant shall have ten (10) days in which to elect in
writing to Lease the Space. Should Tenant elect to exercise this right of first
offer, the annual rental rate shall be at the prevailing market rate.
Exhibits "A" through "E", are attached hereto and become part of this
lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
LANDLORD:
ONE TRIAD CENTER ASSOCIATES,
By: /s/ Illegible
------------------------------------
Partner
TENANT:
ANALOG DEVICES, INC.
By: /s/ William A. Martin
------------------------------------
Treasurer
CORPORATE SEAL
ATTEST: /s/ WAWise
-----------------------------
Asst. Secretary
39
FIRST AMENDMENT TO OFFICE LEASE
THIS FIRST AMENDMENT TO OFFICE LEASE is made this 9th day of March, 2000 by
and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership ("Landlord") and ANALOG DEVICES, INC., a Massachusetts corporation
having its principal place of business at One Triad Center, Greensboro, North
Carolina ("Tenant").
BACKGROUND
A. One Triad Center Associates, a North Carolina general partnership which
was Landlord's predecessor, and Tenant entered into an Office Lease dated
November 14, 1997 (the "Lease"), covering premises in the building located at
7736 McCloud Road in Greensboro, North Carolina known as "One Triad Center" (the
"Building"), which premises are more fully described in the Lease.
B. Tenant desires (i) to increase the amount of space leased and (ii) to
extend the terra of the Lease. Subject to the provisions of this First
Amendment, Landlord has agreed to such increase in the space leased and to such
extension of the term. Accordingly, Landlord and Tenant desire to amend the
Lease.
NOW THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants contained herein and in the Lease, and intending to be legally
bound hereby agree that, effective on the date hereof set forth above (the
"Effective Date"), the Lease is amended as follows:
1. First Additional Space: Effective on April 1, 2000, the Premises as
defined in the Lease shall be expanded and increased to include the
approximately 6,000 square feet located on the second floor of the Building as
is outlined on the floor plan of such second floor attached hereto as Exhibit
A-1. Such additional space on the second floor of the Building shall be referred
to herein as the "First Additional Space". From and after April 1, 2000 until
July 31, 2000, the Premises leased under the Lease shall consist of the
approximately 23,734 square feet of space on the first floor of the Building
originally leased pursuant to the Lease (the "Original Premises") plus the
approximately 6,000 square feet of space on the second floor of the Building
constituting the First Additional Space.
2. Second Additional Space: Effective on August 1, 2000, the Premises as
defined in the Lease shall be expanded and increased to include the
approximately 12,157 square feet located on the second floor of the Building as
is outlined on the floor plan of such second floor attached hereto as Exhibit
A-2. Such additional space on the second floor of the Building shall be referred
to herein as the "Second Additional Space." From and after August 1, 2000 until
the expiration of the Term, the Premises leased under the Lease shall consist of
the approximately 23,734 square feet of space, on the first floor of the
Building constituting the Original Premises, the approximately 6,000 square feet
of space on the second floor of the Building constituting the First Additional
Space, and the approximately 12,157 square feet of space on the second floor of
the Building constituting the Second Additional Space.
40
3. Extension of Term: The term and duration of the Lease (for all of the
Premises including without limitation the Original Premises, the First
Additional Space and the Second Additional Space) shall extend to and including
December 31, 2002.
4. Increases in Minimum Annual Rent: (a) Effective with the monthly
installment of annual rent due on April 1, 2000. and continuing to and including
the monthly installment of minimum annual rent due on June 1, 2000, the amount
of each of the monthly installments of minimum annual rent due from Tenant to
Landlord shall be increased to Forty Thou sand Eight Hundred Nine and 92/100
Dollars ($40,809.92).
(b) Effective on July 1, 2000 and on August 1, 2000 and again on July
1, 2001, and July 1, 2002, the minimum annual rents due from Tenant to Landlord
shall be increased so that the minimum annual rents due under the Lease and the
monthly installments thereof shall be as follows:
Monthly
Minimum Installment
Time Period Annual Rent Amount
- ----------- ----------- -----------
07/01/00 through 07/31/00 $504,288.64 $42,024.05
08/01/00 through 06/30/01 $710,471.36 $59,205.95
07/01/01 through 06/30/02 $731,835.77 $60,986.31
07/01/02 through 12/31/02 $753,619.09 $62,801.56
(Inasmuch as Landlord and Tenant have agreed to the foregoing increases in the
minimum annual rents due under the Lease, the provisions of Section 2(b) of the
Lease are hereby deleted.)
(c) The monthly installments of minimum annual rent due pursuant to
this Section 4 shall be in addition to the additional rental payments due
pursuant to Section 3 of the Lease and Section 5 of this Amendment with respect
to Tenant's Share of Operating Expenses.
5. Estimated Additional Rent With Respect to Tenant's Share of Operating
Expenses and Taxes:
(a) Landlord shall provide Tenant with a reconciliation of the
estimated additional rental payments made by Tenant during the calendar year
2000, if any, with the actual amount of Tenant's Share of Operating Expenses and
Taxes for the calendar year 2000. For the purposes of determining the actual
amount of Tenant's Share of Operating Expenses and Taxes for the calendar year
2000, Tenant's Proportionate Share of Operating Expenses and Taxes shall be: (i)
33.28? for the period January 1, 2000 through March 31, 2000; (ii) 41.69% for
the period April 1, 2000 through July 31, 2000; and (iii) 58.74% for the period
August 1, 2000 through December 31, 2000.
(b) For calendar years 2001 and beyond occurring during the term of
the Lease as extended hereby, Tenant shall pay to Landlord as additional rent
due with respect to Tenant's Proportionate Share of Operating Expenses and Taxes
the sums due pursuant to Section 3 of the Lease using 58.74% as Tenant's
Proportionate Share of Operating Expenses and Taxes.
41
For the purposes of computing the estimated monthly installments of additional
rent due for the calendar year 2001 from Tenant pursuant to Section 3 of the
Lease, Landlord may assess. Tenant an amount equal to 58.74% of the excess of
the actual Operating Expenses and Taxes for the entire Building for the calendar
year 2000 above the Base Year (1998) Operating Expenses and Taxes for the entire
Building.
6. Refurbishment of First Additional Space & Second Additional Space;
Tenant Allowance: Tenant acknowledges and agrees that, except for the payment to
Tenant of the Tenant Allowance as provided for in this Section 6, Landlord is
under no duty to make repairs, alterations, improvements, refurbishments or
decorations to the First Additional Space or to the Second Additional Space and
that Tenant accepts the First Additional Space and the Second Additional Space
in their present "as is" condition. Landlord acknowledges and agrees that Tenant
desires to make certain non-structural alterations, refurbishments, and
improvements to the First Additional Space and the Second Additional Space.
Accordingly, Landlord and Tenant hereby agree as follows with respect to the
alterations, refurbishments and improvements to be made by Tenant to the First
Additional Space and the Second Additional Space:
(a) Promptly following the execution of this First Amendment, Tenant
shall prepare and submit to Landlord for Landlord's approval which will not be
unreasonably withheld Tenant's plans and specifications detailing and showing
the alterations, refurbishments and improvements Tenant desires to make to the
First Additional Space and the Second Additional Space. Tenant shall not make
any alterations, refurbishments, or other improvements to the First Additional
Space or the Second Additional Space unless and until Tenant has obtained
Landlord's approval of the plans and specifications for such alterations,
refurbishments and other improvements. Landlord shall not be required to approve
any alterations, refurbishments or other improvements which would, in Landlord's
judgment, involve a structural change in the Building, adversely impact any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, or reduce the value of the Building or of
the Premises. The alterations, refurbishments, or other improvements to be made
by Tenant to the First Additional Space and the second Additional Space pursuant
to plans and specifications approved by Landlord shall be referred to herein as
the "Approved Alterations".
(b) From and after the Effective Date of this Amendment until the
Premises are increased to include the First Additional Space and the Second
Additional Space as provided for herein, Landlord shall permit Tenant and
Tenant's approved contractors and agents reasonable access to the First
Additional Space and the Second Additional Space at such times as specified by
Landlord for the purposes of planning and completing the Approved Alterations.
Tenant's access to First Additional Space and to the Second Additional Space
pursuant to this provision shall be at Tenant's own risk, expense and
responsibility and shall be subject to such rules, restrictions and regulations
governing such access as Landlord may reasonably impose.
(c) at least ten (10) days prior to commencement of the Approved
Alterations work, Tenant shall deliver to Landlord a list of all contractors
with whom Tenant has contracted or intends to contract for the accomplishment of
the Approved Alterations together with a certificate of insurance for each of
Tenant's contractors evidencing adequate insurance coverage and naming Landlord
and Landlord's agent as additional insureds. All contractors engaged by
42
Tenant to perform the Approved Alterations are subject to Landlord's prior
approval which shall not be unreasonably withheld.
(d) Landlord and its Agent shall have the right to conduct various
walk- through inspections of the First Additional Space and of the Second
Additional Space from time to time to determine the status of the Approved
Alterations.
(e) Any warranties from Tenant's contractor(s) with respect to the
Approved Alterations shall be for the benefit of Landlord as well as Tenant and
Tenant shall deliver such warranties to Landlord upon receipt.
(f) All construction work comprising the Approved Alterations shall be
done in a good and workmanlike manner, shall comply at the time of completion
with all laws, ordinances, rules, regulations, and legal requirements applicable
thereto, and shall be accomplished promptly and in an expeditious manner. Tenant
shall be responsible for applying for and obtaining any and all governmental
permits and authorizations as may be necessary to accomplish the Approved
Alterations and Tenant shall accomplish the Approved Alterations in a manner so
as not to disturb or disrupt any other tenant or occupant of the Building.
Tenant shall deliver to Landlord upon Landlord's request copies of all permits
and licenses required to be issued by any governmental authority in connection
with Tenant's construction of the Approved Alterations as well as certificates
of occupancy or compliance upon the completion thereof.
(g) Tenant shall pay promptly any contractors and materialmen who
supply labor, work or materials to Tenant with respect to the Approved
Alterations and shall take all steps permitted by law in order to avoid the
imposition of any mechanic's lien upon all or any portion of the Building or
upon the land upon which it is located. Should any such lien or notice of lien
be filed for work performed by Tenant, Tenant shall bond against or discharge
the same within five (5) days after Tenant has notice that the lien or claim is
filed regardless of the validity of such lien or claim. Nothing contained herein
is intended to authorize Tenant to do or cause any work to be done or materials
supplied for the account of the Landlord, all of the same to be sole for
Tenant's account and at Tenant's risk and expense. Except for the Tenant
Allowance to be paid by Landlord to Tenant as provided below, Tenant shall pay
all costs and expenses incurred by Tenant in completing and accomplishing the
Approved Alterations.
(h) In order to reimburse Tenant for a portion of the costs incurred
by Tenant in completing the Approved Alterations, Landlord shall pay to Tenant
an allowance equal to the lesser of (i) $40,000 or (ii) the actual out of pocket
hard cots and expenses incurred by Tenant in completing the Approved
Alterations. (Such lesser amount shall be referred to herein as the "Tenant
Allowance".) Landlord shall disburse the Tenant Allowance to Tenant within
forty-five (45) days following Landlord's receipt from Tenant of a written
request for such disbursement provided that at the time such request is made the
following conditions shall have then been met: (I) the Approved Alterations
shall have been fully completed by Tenant in accordance with the plans and
specifications approved by Landlord; (2) a certificate of compliance or of
occupancy shall have been issued with respect to at least the First Additional
Space by the appropriate governmental authority; (3) Tenant shall have occupied
at least the First Additional Space and shall continue in occupancy of the
Original Premises; (4) no event of default by Tenant shall
43
exist under the Lease; and (5) Tenant shall have paid all costs and expenses
incurred in connection with the Approved Alterations so that no liens for such
work may attach to the Building. Tenant shall submit to Landlord together with
Tenant's request for the disbursement of the Tenant Allowance copies of paid
invoices, receipts, and statements sufficient to verify the costs and expenses
incurred by Tenant in completing the Approved Alterations and from which the
amount of the Tenant Allowance can be determined together with such other
information about such costs and expenses as Landlord may reasonably request.
7. Substitution of New Renewal Option. Section 30 of the Lease entitled
"Option to Renew" is deleted in its entirety and the following is substituted in
lieu thereof:
Multiple Options To Extend Term (Fixed Amount Rental Increases). Provided
that Landlord has not given Tenant notice of default more than two (2) times
preceding the Expiration Date, and that there then exists no event of default by
Tenant under this lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, Tenant shall have the right and
option to extend the Term for two (2) additional periods of thirty-six (36)
months each, exercisable by giving Landlord prior written notice, at least ten
(10) months in advance of the Expiration Date, of Tenant's election to extend
the Term; it being agreed that time is of the essence and that this option is
personal to Tenant and non-transferable to any assignee or sublessee. Such
extension shall be under the same terms and conditions as provided in this lease
except as follows:
(a) the additional period shall begin on the Expiration Date and
thereafter the Expiration Date shall be deemed to be the third anniversary
thereof.
(b) There shall be one additional extension option remaining after the
exercise of the first extension option and no further options to extend after
the exercise of the second extension option.
(c) The Minimum Annual Rent payable by Tenant shall be in the
following amounts:
First Extension
Option Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ---------------- -----------
01/01/03 through 06/30/03 $753,619.09 $62,801.56
07/01/03 through 06/30/04 $776,240.23 $64,686.69
07/01/04 through 06/30/05 $799,699.19 $66,641.60
07/01/05 through 12/31/05 $823,577.06 $68,631.42
Second Extension
Option Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ---------------- -----------
01/01/06 through 06/30/06 $823,577.06 $68,631.42
07/01/06 through 06/30/07 $848,292.75 $70,691.06
07/01/08 through 06/30/08 $873,846.26 $72,820.52
07/01/08 through 12/31/08 $900,237.59 $75,019.80
44
8. Substitution of New Expansion Option. Section 31 of the Lease entitled
"Right of First Refusal is deleted in its entirety and the following is
substituted in lieu thereof:
Additional Contiguous Space. If and when the space which is contiguous to
the Premises which is shown as "Expansion Space" on Exhibit A-2 (the "Expansion
Space") first becomes avail able for rental during the term of this lease and
provided that Landlord has not given Tenant notice of default more than two (2)
times during the immediately preceding twelve (12) months, and that there then
exists no event of default by Tenant under this lease nor any event that with
the giving of notice and/or the passage of time would constitute a default,
Tenant shall have the right: of first offer to lease all of the Expansion Space,
subject to the following:
(a) Landlord shall notify Tenant when the Expansion Space first becomes
available for rental by any party other than the tenant then in occupancy of the
Expansion Space and Tenant shall have seven (7) days following receipt of such
notice within which to notify Landlord in writing that Tenant is interested in
negotiating terms for leasing such Expansion Space and to have its offer
considered by Landlord prior to the leasing by Landlord of the Expansion Space
to a third party. If Tenant notifies Landlord within such time period that
Tenant is so interested, then Landlord and Tenant shall have 30 days following
Landlord's receipt of such notice from Tenant within which to negotiate mutually
satisfactory terms for the leasing of the Expansion Space by Tenant and to
execute an amendment to this lease incorporating such terms or a new lease for
the Expansion Space.
(b) If Tenant does not notify Landlord within such 7 days of its interest
in leasing the Expansion Space or if Tenant does not execute such amendment or
lease within such 30 (lays, if applicable, then this right of first offer to
lease the Expansion Space will lapse and be of no further force or effect and
Landlord shall have the right to lease all of part of the Expansion Space to any
other party at any time on any terms and conditions acceptable to Landlord.
(c) This right of first offer to lease the Expansion Space is a one-time
right if and when the Expansion Space first becomes available, is personal to
Tenant, and is nontransferable
9. No Brokers: Tenant represents and warrants to Landlord that Tenant has
not been represented by any real estate agent or broker in connection with the
negotiation or execution of this First Amendment and that no real estate agent
or broker is entitled to a commission with respect to this First Amendment as
the result of any agreement or action of Tenant. In the event that any real
estate agent or broker claims or asserts that it is entitled to a commission
with respect to this First Amendment based upon any agreement with Tenant or any
action of Tenant, Tenant shall indemnify, defend and hold Landlord harmless with
respect to such claim or assertion.
45
10. Reaffirmation of Lease: Except as expressly modified herein, the terms
and conditions of the Lease shall remain unchanged and in full force and effect.
All attached exhibits referred to herein are made a part of this Amendment and
the Lease. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the day and year first above written.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole
General Partner
By: /s/ Lawrence D. Gildea
------------------------------------
Name: Lawrence D. Gildea
Title: Senior Vice President
TENANT:
ANALOG DEVICES, INC.
By: /s/ William A. Martin
------------------------------------
Name: William A. Martin
Title: Treasurer
Attest: /s/ WA. Wise
--------------------------------
Name: WA. Wise
Title: Corp. Counsel
46
SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE is made this 25th day of March. 2002
by and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership ("Landlord") and ANALOG DEVICES, INC., a Massachusetts corporation
having its principal place of business at One Triad Center, Greensboro, North
Carolina ("Tenant").
BACKGROUND
A. One Triad Center Associates, a North Carolina general partnership which
was Landlord's predecessor, and Tenant entered into an Office Lease dated
November 14, 1997 (the "Lease"), covering premises in the building located at
7736 McCloud Road in Greensboro, North Carolina known as "One Triad Center" (the
"Building"), which premises are more fully described in the Lease.
B. In accordance with the First Amendment to the Lease, Tenant (i)
increased the amount of space leased to a total of 41,891 rentable square feet
and (ii) extended the term of the Lease through December 31, 2002. Subject to
the provisions of the First Amendment, Landlord agreed to such increase in the
space leased and to such extension of the term.
C. In lieu of exercising its option to extend the term of the Lease
pursuant to Section 30 of the Lease, Tenant desires to extend the term of the
Lease by way of this Amendment. Subject to the provisions of this Second
Amendment, Landlord has agreed to such extension of the term. Accordingly,
Landlord and Tenant desire to amend the Lease.
NOW THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants contained herein and in the Lease, and intending to be legally
bound hereby agree that, effective on the date hereof set forth above (the
"Effective Date"), the Lease is amended as follows:
1. Extension of Term: The term and duration of the Lease (for all of the
Premises including without limitation the Original Premises, the First
Additional Space and the Second Additional Space as detailed in the First
Amendment for a total of 41,891 rentable square feet) shall extend to and
including December 31, 2005.
2. Minimum Annual Rent: Effective on January 1, 2003 the minimum annual
rents due from Tenant to Landlord shall be so that the minimum annual rents due
under the Lease and the monthly installments thereof shall be as follows through
December 31, 2005:
Monthly
Minimum Installment
Time Period Annual Rent Amount
- ----------- ----------- -----------
01/01/03 through 12/31/04 $736,443.78 $61,370.32
01/01/05 through 12/31/05 $758,537.09 $63,211.42
The monthly installments of minimum annual rent due pursuant to this
Section 2 shall be in addition to the additional rental payments due pursuant to
Section 3 of the Lease and Section 5 of the First Amendment with respect to
Tenant's Share of Operating Expenses.
47
3. Estimated Additional Rent With Respect to Tenant's Share of Operating
Expenses and Taxes:
Tenant shall pay to Landlord as additional rent due with respect to
Tenant's Proportionate Share of Operating Expenses and Taxes the sums due
pursuant to Section 3 of the Lease using 58.74% as Tenant's Proportionate Share
of Operating Expenses and Taxes.
4. Acceptance of Premises. Tenant accepts the space in its present "as is"
condition.
5. Automatic Renewals. Section 30 of the Lease entitled "Option to Renew,"
as amended by Section. 7 of the First Amendment, is deleted in its entirety and
the following is substituted in lieu thereof:
Automatic Term Renewals (Fixed Amount Rental Increases). The term of this
Lease shall automatically be extended for an additional period of twenty-four
(24) months terminating on December 31, 2007 (the "First Renewal Term") unless
Tenant shall provide Landlord written notice, at least six (6) months in advance
of, the Expiration Date, of Tenant's election not to extend the term. In
addition, the term of this Lease, as extended by the First Renewal Term, shall
automatically be extended for an additional period of thirty-six (36) months
terminating on December 31, 2010 (the "Second Renewal Term") unless Tenant shall
provide Landlord written notice. at least six (6) months in advance of the
Expiration Date, as extended by the First Renewal Term, of Tenant's election not
to extend the term. Notwithstanding the foregoing, Landlord may nullify Tenant's
right to extend the term as herein provided by written notice to Tenant during
the six (6) month period prior to the Expiration Date, as extended, in the event
that Landlord has given Tenant notice of default more than two (2) times
preceding the Expiration Date or there exists an event of default by Tenant
under this Lease or any event that with the giving of notice and/or the passage
of time would constitute a default. Landlord and Tenant agree that time is of
the essence and the renewal options are personal to Tenant and nontransferable
to any assignee or sublessee. The First Renewal Term and Second Renewal Term
shall be under the same terms and conditions as provided in this lease except as
follows:
(a) The First Renewal Term shall begin on the Expiration Date and
thereafter the Expiration Date shall be deemed to be the second anniversary
thereof.
(b) The Second Renewal Term shall begin on the Expiration Date, as extended
by the First Renewal Term, and thereafter the Expiration Date shall be deemed to
be the third anniversary thereof.
(c) There shall be no options to extend or renew the term remaining after
the expiration of the Second Renewal Term.
48
(d) The Minimum Annual Rent payable by Tenant shall be in the following
amounts:
First Renewal Term
Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ----------- -----------
01/01/06 through 12/31/06 $781,293.20 $65,107.76
01/01/07 through 01/01/07 $804,732.00 $67,061.00
Second Renewal Term
Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ----------- -----------
01/01/08 through 12/31/08 $828,873.96 $69,072.83
01/01/09 through 12/31/09 $853,740.18 $71,145.02
01/01/10 through 12/31/10 $879,352.38 $73,279.33
6. Amendment of Expansion Option. Section 31 of the Lease entitled "Right
of First Refusal," as amended by Section 8 of the First Amendment, is hereby
deleted and the following substituted in lieu thereof:
Additional Space. If and when all or any part of the space shown as
"Expansion Space" on Exhibit A-2 (the "Expansion Space") first becomes available
for rental during the term of this lease and provided that Landlord has not
given Tenant notice of default more than two (2) times during the immediately
preceding twelve (12) months, and that there then exists no event of default by
Tenant under this lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, Tenant shall have the right of first
offer to lease all of the Expansion Space available for rental at such time,
subject to the following:
(a) Landlord shall notify Tenant when all or a part of the Expansion Space
first becomes available for rental by any party other than the tenant then in
occupancy of the Expansion Space (the "Available Expansion Space") and Tenant
shall have fourteen (14) days following receipt of such notice within which to
notify Landlord in writing that Tenant is interested in negotiating terms for
leasing such Available Expansion Space and to have its offer considered by
Landlord prior to the leasing by Landlord of the Available Expansion Space to a
third party. If Tenant notifies Landlord within such time period that Tenant is
so interested, then Landlord and Tenant shall have sixteen (16) days following
Landlord's receipt of such notice from Tenant within which to negotiate mutually
satisfactory terms for the leasing of the Available Expansion Space by Tenant
and to execute an amendment to this lease incorporating such terms or a new
lease for the Available Expansion Space.
(b) If Tenant does not notify Landlord within such fourteen (14) days of
its interest in leasing the Available Expansion Space or if Tenant does not
execute such amendment or lease within such sixteen (16) days, if applicable,
then this right of first offer to lease the Available Expansion Space will lapse
and be of no further force or effect and Landlord shall have the right to lease
all of part of the Available Expansion Space to any other party at any time on
any terms and conditions acceptable to Landlord.
49
(c) This right of first offer to lease the Expansion Space is a one-time
right if and when the Expansion Space first becomes available, is personal to
Tenant, and is nontransferable; provided if only part of the Expansion Space
becomes available for rental, Tenant's failure to exercise its right to lease
such part of the Expansion Space shall not constitute a waiver of its right to
lease the remaining portion of the Expansion Space pursuant to this Section 31
at such time as the remaining Expansion Space becomes available.
7. HVAC Service: The first two full sentences of Section 5(c) of the Lease
are hereby deleted and the following substituted in lieu thereof:
"Landlord shall furnish heat, ventilation and air-conditioning to the
Premises, Monday through Friday from 6:30 A.M. to 6:30 P.M., and on Saturday
from 6:30 A.M. to 1:00 P.M., legal holidays excepted. Heat and air-conditioning
required by Tenant at times other than those mentioned above shall be supplied
upon reasonable prior notice to Landlord at the rate of $30.00 per hour."
8. No Brokers: Tenant represents and warrants to Landlord that Tenant has
not been represented by any real estate agent or broker in connection with the
negotiation or execution of this Second Amendment and that no real estate agent
or broker is entitled to a commission with respect to this Second Amendment as
the result of any agreement or action of Tenant. In the event that any real
estate agent or broker claims or asserts that it is entitled to a commission
with respect to this Second Amendment based upon any agreement with Tenant or
any action of Tenant, Tenant shall indemnify, defend and hold Landlord harmless
with respect to such claim or assertion.
9. Reaffirmation of Lease: Except as expressly modified herein, the terms
and conditions of the Lease shall remain unchanged and in full force and effect.
All attached exhibits referred to herein are made a part of this Amendment and
the Lease. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
[SIGNATURES ON FOLLOWING PAGE]
50
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the day and year first above written.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General
Partner
By: /s/ Lawrence D. Gildea
------------------------------------
Name: Lawrence D. Gildea
Title: Senior Vice President
TENANT:
ANALOG DEVICES, INC.
By: /s/ William A. Martin
------------------------------------
Name: William A. Martin
Title: Treasurer
Attest:
Name: /s/ Michael Ferdenzi
Title: Corporate Facilities Manager /
Real Estate
51
THIRD AMENDMENT TO OFFICE LEASE
THIS THIRD AMENDMENT TO OFFICE LEASE is made this 21st day of June, 2005 by
and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership ("Landlord") and ANALOG DEVICES, INC., a Massachusetts corporation
having its principal place of business at One Triad Center, Greensboro. North
Carolina ("Tenant").
BACKGROUND
A. One Triad Center Associates, a North Carolina general partnership which
was Landlord's predecessor, and Tenant entered into an Office Lease dated
November 14, 1997 (the "Lease"), covering premises in the building located at
7736 McCloud Road in Greensboro, North Carolina known as "One Triad Center" (the
"Building"), which premises are more fully described in the Lease.
B. In accordance with the First Amendment to the Lease, Tenant (i)
increased the amount of space leased to a total of 41,891 rentable square feet
and (ii) extended the term of the Lease through December 31, 2002. Subject to
the provisions of the First Amendment, Landlord agreed to such increase in the
space leased and to such extension of the term.
C. In lieu of exercising its option to extend the term of the Lease
pursuant to Section 30 of the Lease, Tenant extended the term of the Lease,
through December 31, 2005, by way of the Second Amendment. Subject to the
provisions of the Second Amendment, Landlord agreed to such extension of the
term.
D. Tenant now desires to modify the terms of the option to extend the term
of the Lease as noted in the Second Amendment, and Landlord has agreed to such
modification. Accordingly, Landlord and Tenant desire to amend the lease by way
of this Third Amendment.
NOW THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants contained herein and in the Lease, and intending to be legally
bound hereby agree that, effective on the date hereof set forth above (the
"Effective Date"), the Lease is amended as follows:
1. Section 5 of the Second Amendment is deleted and replaced with the
following:
Automatic Term Renewals (Fixed Amount Rental Increases). The term of this
Lease shall automatically be extended for an additional period of twenty-seven
(27) months terminating on March 31, 2008 (the "First Renewal Term") unless
Tenant shall provide Landlord written notice, at least three (3) months in
advance of the Expiration Date (which is no later than September 30, 2005), of
Tenant's election not to extend the term. In addition, the term of this Lease,
as extended by the First Renewal Term, shall automatically be extended for an
additional period of thirty-six (36) months terminating on March 31, 2011 (the
"Second Renewal Term") unless Tenant shall provide Landlord written notice. at
least six (6) months in advance of the Expiration Date (which is no later than
September 30, 2007). as extended by the First Renewal Term, of Tenant's election
not to extend the term. Notwithstanding the foregoing, Landlord may nullify
Tenant's right to extend the term as herein provided by written notice to Tenant
during the six (6) month period prior to the Expiration Date, as extended, in
the event that Landlord has given Tenant notice of default more than two (2)
times preceding the Expiration Date or there
52
exists an event of default by Tenant under this Lease or any event that with the
giving of notice and/or the passage of time would constitute a default. Landlord
and Tenant agree that time is of the essence and the renewal options are
personal to Tenant and non-transferable to any assignee or sublessee. The First
Renewal Term and Second Renewal Term shall be under the same terms and
conditions as provided in this lease except as follows:
(a) The First Renewal Term shall begin on the Expiration Date and
thereafter the Expiration Date shall be deemed to be the second anniversary
thereof.
(b) The Second Renewal Term shall begin on the Expiration Date, as extended
by the First Renewal Term, and thereafter the Expiration Date shall be deemed to
be the third anniversary thereof.
(c) There shall be no options to extend or renew the term remaining after
the expiration of the Second Renewal Term.
(d) The Minimum Annual Rent payable by Tenant shall be in the following
amounts:
First Renewal Term
Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ----------- -----------
01/01/06 through 12/31/06 $781,293.20 $65,107.76
01/01/07 through 03/31/08 $804,732.00 $67,061.00
Second Renewal Term
Minimum Monthly
Lease Period Annual Rent Installment
- ------------ ----------- -----------
04/01/08 through 03/31/09 $828,873.96 $69,072.83
04/01/09 through 03/31/10 $853,740.18 $71,145.02
04/01/10 through 03/31/11 $879,352.38 $73,279.33
53
[SIGNATURES ON FOLLOWING PAGE]
54
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the day and year first above written.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole
General Partner
By: /s/ Lawrence D. Gildea
------------------------------------
Name: Lawrence D. Gildea
Title: Senior Vice President
TENANT:
ANALOG DEVICES, INC.
By: /s/ William A. Martin
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
Name: /s/ Michael Ferdenzi
Title: CORP REAL ESTATE
55
(LIBERTY PROPERTY TRUST LOGO)
November 29, 2005
Mr. Jim Hrycaj
Analog Devices, Inc.
7910 Triad Drive
Greensboro, NC 27409
RE: FOURTH AMENDMENT TO OFFICE LEASE DATED OCTOBER 26, 2005 FOR PREMISES
LOCATED AT 7736 MCCLOUD ROAD, GREENSBORO, NC 27409 BETWEEN LIBERTY PROPERTY
LIMITED PARTNERSHIP AS ("LANDLORD") AND ANALOG DEVICES, INC. AS ("TENANT")
Dear Jim:
This is to confirm the following with respect to the Fourth Amendment to Office
Lease:
COMMENCEMENT DATE: January 1, 2006
EXPIRATION DATE: MARCH 31, 2008
As set forth in the Lease, Minimum Annual Rent and Annual Operating
Expenses are due on or before the Commencement Date for the period from the
Commencement Date until the first day of the next calendar month unless the
Commencement Date is the first day of the calendar month. Accordingly, the
following amounts are due on or before the Commencement Date:
MONTHLY RENT INSTALLMENT: 531,662.61(REVISED)
MONTHLY OPERATING PAYMENT: +20,701.14(REVISED)
----------
TOTAL MONTHLY PAYMENT: $52,363.75(REVISED)
----------
Thereafter, commencing February 1, 2006, regular monthly payments will be
due on the first in the following amounts until adjusted in accordance with the
Lease:
MONTHLY RENT INSTALLMENT: 531,662.61 (REVISED)
MONTHLY OPERATING PAYMENT: +20,701.14 (REVISED)
----------
TOTAL MONTHLY PAYMENT: 552,363.75 (REVISED)
----------
If you disagree with any of the information set forth above, please advise
us in writing within five days of your receipt of this letter; otherwise the
Commencement Date and the Expiration Date of the Lease will be as set forth
above.
Sincerely,
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General
Partner
By William M. Flippin
-------------------------------------
Title: City Manager
Cc: Michael Ferdenzi
Cc: Mike Tierney
Enhancing people's lives through extraordinary work environments
WWW.LIBERTYPROPERTY.COM - NYSE; LRY
FLORIDA - ILLINOIS - MARYLAND - Michigan - Minnesota - New Jersey - North
Carolina - Pennsylvania - South Carolina - Texas - Virginia - Wisconsin - United
Kingdom
56
FOURTH AMENDMENT TO OFFICE LEASE
THIS FOURTH AMENDMENT TO OFFICE LEASE IS made 24th day of October,
2005 by and between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership ("Landlord") and ANALOG DEVICES, INC., a Massachusetts corporation
having its principal place of business at One Triad Center, Greensboro, North
Carolina ("Tenant").
BACKGROUND
A. One Triad Center Associates a North Carolina general partnership which
was landlord's predecessor, and Tenant entered into an Office Lease dated
November 14, 1997 (the -Original Lease"), covering premises in the building
located AT 7736 McCloud Road in (Greensboro, North Carolina known as "One 'triad
Center" (the "Building"), which premises are pore fully described in the
Original Lease as amended as set forth below.
B. Landlord acquired the Building from One Triad Center Associates and
thereafter Landlord and Tenant entered into a First Amendment. to Office Lease
dated March 9. 2000 by which the Landlord and tenant agreed to amend the
Original Lease, among other things, to increase the size of the Premises leased
to Tenant and to extend the term of the Original Lease to and including December
31, 2002 (the "First Amendment").
C. Subsequent to the execution of the First Amendment, Landlord and Tenant
entered into a Second Amendment to Office I &rise dated March 25, 2002 by which
the Original Lease was further amended, among other things, to extend the term
thereof through and including December 31, 2005 (the -Second amendment").
D. Subsequent to the execution of the Second Amendment, Landlord and tenant
entered into a Third Amendment to Office Lease dated June 21. 2005 by which the
provisions of the Second Amendment which provided for an automatic renewal of
the term of the Lease were modified (the -Third Amendment"). (As used herein,
the term "Lease- shall mean the Original Lease as amended by the First
Amendment, the Second Amendment and the third Amendment.)
E. Tenant has provided a notice to Landlord that Tenant has elected, not to
extend the min of the Lead: pursuant to the automatic renewal provisions thereof
as provided for in the Third Amendment. Nonetheless, Landlord and Tenant have
agreed to extend the term of the Lease for a period of twenty-seven (27)
additional months beyond the current expiration date of the Lease (which is
December 31,, 2005) and Landlord and Tenant desire by this Fourth Amendment to
Office Lease to set forth their agreements with respect to the extension of the
lean 01-11 the Lease,
NOW THEREFORE, the parties hereto. in consideration of the mutual promises
and covenants contained herein and in the. Lease, and intending to be legally
bound hereby, agree that, effective on the date hereof set forth above (the
"Effective Date"), the Lease is amended as
57
1. Extension of Term: The term and duration of the Lease (for all of the
Premises including without limitation the Original Premises, the First
Additional Space and the Second Additional Space as detailed in the First
Amendment and consisting of 41,891 rentable square feet) is hereby extended to
and including March 31, 2008.
2. Minimum Annual Rent During Extended 'term: From the date hereof until
December 31, 2005, Tenant shall continue to pay monthly installments of minimum
annual rent mid payments of Tenant's Proportionate Share of Operating Expenses
and Taxes in the amounts and in the manner as are currently provided for in the
Lease. Effective with the monthly installment of minimum annual rent due on
January I, 2006 and continuing through the remainder- of the term of the Lease
as extended hereby, the minimum annual rents and the monthly installments
thereof shall be as follows;
Monthly
Minimum Installment
Time Period Annual Rent Amount
- ----------- ----------- -----------
01/01/06 through 12/31/06 $628,365.00 $52,363.75
01/01/07 through 03/31/08 $649,310.50 $54,109.21
Such monthly installments of minimum annual rent shall be due and payable on the
first day of each calendar month commencing on January 1, 2006 and continuing
through and including March 1, 2008 Tenant shall pay Tenant's Share of Operating
Expenses and Taxes for the calendar year 2005 when and as such payment is due
under the Lease unaffected by the provisions of this Fourth Amendment. Tenant
shall not be obligated to pay any amount for Tenant's Share of Operating
Expenses and Taxes for the calendar year, 2006 and for calendar year 2006 the
installment payments of minimum annual rent as set forth above shall include
whatever share of the Operating Expenses and Taxes for 2006 for which Tenant is
responsible. Furthermore, Landlord agrees that calendar year 2006 shall
constitute a new 'Base Year" under the i.ea5e for the purpose of computing
Tenant's Share of Operating Expenses and Taxes due with respect to periods from
and after December 31, 2006, Accordingly, for and with respect to each calendar
year Or the term of the Lease commencing with the year 2007, there shall be due
from Tenant as additional rent due under the Lease Tenant's Share of the excess
of the Operating Expenses and Taxes for such year over the total of the
Operating Expenses and Taxes for the year 2006. Such additional rent shall be
computed and paid in the manner as provided for in Section 3 of the Original
Tease except that the Base Year shall be 2006 instead of 1998 and Tenant's Share
of such excess Operating Expenses and taxes shall be 58,74% of the total
thereof.
"AS IS, WHERE IS": Tenant acknowledges and agrees that it has agreed to
extend the term of the Lease as provided herein with the Premises in their "AS
IS WHERE IS" condition mid that Landlord has not agreed to make and Landlord
shall not he obligated to make any improvements or refurbishments of the
Premises in order to induce Tenant to extend the term of the Lease as provided
herein.
Renewal Option: Landlord and Tenant acknowledge and agree that the
automatic renewal provisions as set fourth in the Third Amendment arc no longer
elective inasmuch as Tenant elected not to extend the term of the Lease as
provided therein. Accordingly, Section 1
58
of the Third Amendment and Section 5 of the Second Amendment are hereby deleted
from the Lease. From and after the Effective Date hereof, the Lease shall he
amended to provide to Tenant the following renewal option which shall bean lien
of tiny and all other renewal rights or options currently provided in the Lease
and which shall be deemed to replace and supersede Section 30 of the Original
Lease and Section 7 of the First Amendment.
Option TO Extend Teem, Provided that there then exists no event of default
by Tenant under this lease which has continued beyond any applicable notice and
cure periods, tenant shall have the right and option to extend the term for one
(I) additional period of Thirty-Six (36) months, exercisable by giving Landlord
prior written notice, at least six (6) months in advance of the Expiration Date,
of Tenant's election to extend the term; it being agreed that time s of the
essence. Such extension shall be under the same terms and conditions as provided
in this lease except as follows!
(a) the additional period (referred to herein as the 'Additional Period")
shall begin on the Expiration Date as set forth herein (that is, March 31, 2008)
and thereafter the Expiration Date shall be deemed to be Thirty-Six (36) months
after such Expiration Date (that is. March 31, 2011):
(b) all references to the term in this lease shall be deemed to mean the
term as extended pursuant to this Section: and
(c) the Minimum Annual Rent payable by Tenant for such, Additional Period
shall be the then current Market Rental Rate for like buildings in the Airport
submarket of Greensboro, North Carolina for such Additional Period. For the
purposes hereof "Market Rental Rate- shall be defined as the minimum annual base
rentals that would be agreed to after arms length negotiations by a landlord and
a new tenant, each of whom is willing and informed, but neither of whom is
compelled, to enter into the lease transaction for premises comparable to the
}'remises for a lease term equal to the Additional Period and taking into
account all aspects of the Premises, including the then physical condition of
the Premises, the then current market conditions for computing escalations and
adjustments to hose annual rents, operating expense pass-throughs provisions,
inducements and concessions customary in a new lease and other relevant economic
factors of a new lease. Promptly following Tenants exercise of this renewal
option, Landlord shall notify 'tenant of the rental rates that Landlord contends
to be the Market Rental Rates applicable during the Additional Period. If Tenant
does not object to Landlord's determination of the Market Rental Rates in
writing within thirty (30) days of Landlord's notice, then Landlord's
determination of the Market Rental Rates shall be deemed conclusive. if Tenant
objects in writing to Landlord's determination of the Market Rental Rates within
thirty (30) days of Landlord's notice, then the parties will attempt to agree
upon such Market Rental Rate. If Landlord and Tenant are unable to agree upon
the Market Rental Rate for the Additional Period prior to that date which is one
hundred twenty (120) days prior to the commencement of the Additional Period,
then the Market Rental Rate shall be determined by an arbitration proceeding
conducted in accordance with the rules of American Arbitration Association for
Commercial Real Estate disputes. The arbitration shall be conducted in
Greensboro, North Carolina. The cost of arbitration shall he shared equally by
Landlord and Tenant. If the Market Rental Rate has not been finally determined
prior to the commencement of the Additional Period, then upon the
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commencement of the Additional Period, Tenant shall begin paying rents in the
amounts as set forth in Landlord's last offer to Tenant until such Market Rental
Rate is finally determined. If such Market Rental Rate as finally determined is
less than the rate at which rents have been paid by Tenant during the Additional
Period from the commencement thereof until the determination Of the Market
Rental Rate. then Landlord shall either refund to Tenant the amount of such
overpayment or credit the amount of such overpayment to subsequent installments
of rent. If the Market Rental Rate as finally determined is more that the rate
at which rents have been paid by tenant during the Additional Period from the
commencement thereof until the determination of the Market Rental Rate, then
Tenant shall pay to Landlord an amount equal to the excess within fifteen (15)
days of the determination of the Market Rental Rate.
5. No Expansion Rights. Landlord and Tenant hereby agree that from and
after the Effective Date, Tenant shall not have any rights or options to expand
the Premises to include any additional space. Accordingly, any and all
provisions of the existing Lease granting to Tenant any right to expand the
Premises or obligating Landlord to offer additional expansion, space to the
Tenant are hereby deleted.
6. No Brokers: Tenant represents and warrants to Landlord that Tenant has
not been represented by any real estate agent or broker in connection with the
negotiation or execution of this Fourth Amendment except David Hagan of Hagan
Properties Incorporated ("Tenant's Broke") and that no real estate agent or
broker other than Tenant's Broker is entitled to a commission with respect to
this Fourth Amendment as the result of any agreement or action of Tutuila In the
event that any real estate agent or broker other than Tenant's Broker claims or
asserts that it is entitled to a commission with respect to this Fourth
Amendment based upon any agreement with Tenant or any action of Tenant. Tenant
shall indemnify, defend and hold 1 And lo rd harmless with respect to such claim
or assertion. Landlord recognizes Tenant's Broker as Tenant's real estate agent
in connection with the extension of the term of the Lease provided for herein
and Landlord agrees to pay a commission to Tenant's Broker pursuant and subject
to a separate agreement between Landlord and Tenant's Broker providing for such
commission.
7. Reaffirmation of Lease: except as expressly modified herein, the terms
and conditions of the Lease shall remain unchanged and in full force and effect.
Capitalized terms used herein and no otherwise defined herein shall have the
meanings ascribed to them in the Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Fourth Amendment
to Office Lease as of the day and year first above written.
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: /s/ Lawrence D. Gildea
------------------------------------
Name: Lawrence D. Gildea
Title: Senior Vice President
'TENANT:
ANALOG DEVICES, INC.
By: /s/ William A. Martin
------------------------------------
Name: William A. Martin
Title: Treasurer
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