PERINI CORPORATION
COMMERCIAL LEASE
for
TABLE OF CONTENTS
ARTICLE
ARTICLE NUMBER
------- -------
Summary of Terms 1
Lease Term 2
Rent 3
Security Deposit 4
Use of Premises 5
Operating Expense 6
Real Estate Tax 7
Late Payment 8
Utilities 9
Compliance with Laws 10
Fire Insurance 11
Maintenance of Premises 12
Alterations 13
Assignment or Subleasing 14
Subordination 15
Estoppel Certificates 16
Lessors Access 17
Snow Removal 18
Access and Parking 19
Lessee's Liability Insurance 20
Waiver of Subrogation 21
Fire, Casualty, Eminent Domain 22
Interruptions 23
Brokerage 24
Signs 25
Default, Bankruptcy and Acceleration of Rent 26
No Accord and Satisfaction 27
Notices 28
Occupancy 29
Fire Prevention 30
Outside Area 31
Environment 32
Responsibility 33
Surrender 34
Legal 35
General 36
Waivers, Etc 37
Additional Provisions 38
This lease consists of nineteen (19) pages including the Table of Contents.
1
PERINI CORPORATION
COMMERCIAL LEASE
In consideration of the covenants herein contained, Perini Corporation, a
Massachusetts corporation with a usual place of business at 00 Xxxxx Xxxxx
Xxxxxx, X0 Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-9160, hereinafter called
LESSOR, which expression shall include successors and assigns where the context
so admits, does hereby lease to:
Maker Communications, Inc.
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
hereinafter called LESSEE, which expression shall include successors, executors,
administrators, and assigns where the context so admits, and LESSEE hereby
leases from LESSOR the premises hereinafter described, to have and to hold and
to quietly enjoy from the Lease Commencement Date until the Lease Termination
Date (the Lease Term) as hereinafter specified, subject to the terms and
conditions hereinafter set forth:
1. SUMMARY OF TERMS.
Description of the Leased Premises: The premises located at 00 Xx. Xxxxx
Avenue, Framingham, Massachusetts 01701, As shown on plan (Lease Exhibit A)
attached hereto and made a part hereof (hereinafter the "Leased Premises").
The Leased Premises contain approximately ten thousand eight hundred
eighty-seven (10,887) rentable square feet (hereinafter the `Total Floor
Area of the Leased Premises").
Parking Spaces: 40
Permitted Uses: Normal office use and research and development uses for
software
Lease Term: Three years commencing on the Lease Commencement Date and
expiring three years thereafter ("Initial Term') together with the
extension options as set forth in Section 38(b).
Lease Commencement Date: July 1, 1997
Lease Termination Date: June 30, 2000 unless sooner terminated as herein
provided.
Annual Fixed Rent for the Lease Term: $185,079 per annum ($15,423.25/month)
for each Lease Year during the Initial Lease Term which includes Tenant's
electricity charge for the Leased Premises.
As used in this Lease, Lease Year shall mean a period of twelve (12)
calendar months, with the first Lease Year to commence upon the Lease
Commencement Date and end upon the anniversary thereof, and with successive
Lease Years continuing for twelve (12) month intervals thereafter until the
Lease Termination Date.
XXXXXX's Share of Base Operating Expenses Included in Annual Fixed Rent
Those
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incurred during calendar year ending December 31, 1996, or $3.25 per square
foot, whichever is higher.
XXXXXX's Share of Real Estate Tax Expenses Included in Annual Fixed Rent
$1.90 per rentable square foot of the Leased Premises.
XXXXXX's Proportionate Share of Operating Expenses: 10.5% Percent
XXXXXX's Proportionate Share of Real Estate Tax Expenses: 10.5% Percent
Total Rentable Floor Area of the Building: approximately 103,455 rentable
square feet, including fifteen (15) percent common area factor.
Security Deposit: $92,539.50 - see Section 4
2. LEASE TERM. The Lease Term shall commence on the Lease Commencement
Date, unless such date is advanced or extended as herein provided, and continue
until the Lease Termination Date.
3. RENT. LESSEE shall pay to LESSOR, without any offset or deduction
whatever except as made in accordance with the provisions of this Lease, the
Annual Fixed Rent as specified in Article 1 above in monthly installments at the
rate of $15,423.25 during the Initial Term and the greater of $15,423.25 per
month or fair market value during the extension term described in Section 39(b),
payable in advance on the first day of each calendar month, the first monthly
payment to be made on the Commencement Date, including payment in advance of
appropriate fractions of a monthly payment for any portion of a month at the
commencement of said Lease Term. All payments are to be made to Perini
Corporation, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, or at such
other place as LESSOR shall from time to time in writing designate.
4. SECURITY DEPOSIT. LESSEE shall pay to LESSOR a security deposit in the
amount of $92,539.50 upon the execution of this Lease, which amount shall be
held as security by XXXXXX (and may be commingled with other fund of LESSOR) for
XXXXXX's performance as herein provided and refunded to LESSEE with interest at
the prevailing money market rate at the end of this Lease subject to LESSEE'S
satisfactory compliance with the conditions hereof. The security deposit shall
not be mortgaged, assigned, transferred or encumbered by XXXXXX without the
written consent of LESSOR. In the event of any default or breach of this Lease
by XXXXXX, LESSOR shall immediately apply the security deposit first to any
unamortized improvements completed for LESSEE's occupancy, then to offset any
outstanding invoice or other payment due to LESSOR, with the balance applied to
outstanding rent, and LESSEE shall forthwith upon demand restore said security
to the original sum deposited. XXXXXX's failure to remit the full security
deposit when due shall constitute a default of this Lease.
Notwithstanding the foregoing, XXXXXX may request that LESSOR reimburse to
LESSEE $46,269.75 of the security deposit if and when XXXXXX's net worth,
calculated in accordance with generally accepted accounting principles, equals
or exceeds $5,500,000. Any such request shall be accompanied by appropriate
financial statements and a certificate of XXXXXX's chief financial officer to
the effect that XXXXXX's net worth has increased as aforesaid. In the event at
the time of such request LESSEE is not in default under this Lease, LESSOR shall
release to LESSEE $46,269.75.
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Following any release of monies as aforesaid, LESSEE shall submit to LESSOR
quarterly financial statements on a continuing basis certified by XXXXXX's chief
financial officer showing XXXXXX's net worth. In the event LESSEE'S net worth at
any time falls below $5,500,000, LESSEE shall thereupon become obligated,
without notice from LESSOR, to forthwith increase the security deposit to
$92,539.50.
5. USE OF PREMISES. LESSEE shall use the Leased Premises only for the
purpose specified in Article 1 and for no other purpose.
6. OPERATING EXPENSES. If, with respect to any Lease Year or fraction
thereof, LESSOR'S 0perating Expenses Allocable to the Leased Premises, as
hereinafter defined, shall for such Lease Year of fraction thereof exceed the
product of (a) LESSEE's Share of Operating Expenses Included in Annual Fixed
Rent multiplied by (b) the Total Rentable Floor Area of the Leased Premises,
then on or before the thirtieth day following receipt by LESSEE of written
notice from LESSOR as provided below, LESSEE shall pay to LESSOR, as Additional
Rent, the amount of such excess.
For any Lease Year or fraction thereof for which LESSEE shall owe Operating
Expenses as herein provided, LESSOR shall deliver to LESSEE a statement in
reasonable detail showing for said Lease Year or fraction thereof, as the case
may be, XXXXXX's operating expenses for the Property ("Operating Expenses'),
excluding costs of special services rendered to lessees (including LESSEE) for
which a separate charge is otherwise made, but including, without limitation:
premiums for insurance for fire and extended casualty, general and excess
liability, rent insurance, and any necessary endorsements pertaining to these
policies or, if there be any mortgage (5) of the lot or improvements, or both,
insurance as may be required by the holder of the mortgage(s); compensation and
all fringe benefits, workmen's compensation insurance premiums and payroll taxes
paid by XXXXXX to, for, or with respect to all persons engaged in the operating,
maintaining, or cleaning of the Property in proportion to the percentage of such
employee's time spent with respect to such property, as evidenced by time cards
or other record keeping mechanisms; steam, water, sewer, gas, telephones, and
other utility charges, and electricity charges attributable to the common areas;
cost of providing conditioned water for HVAC services attributable to the common
areas; cost of building and cleaning supplies and equipment; rental costs for
equipment used in the operating, cleaning, maintaining, or repairing of the
property; cost of maintenance, cleaning, repairs, including those with respect
to elevators, (other than repairs and other expenditures not properly chargeable
against income or for which XXXXXX has received reimbursement from contractors
under guaranties or insurance proceeds under insurance). LESSOR's reasonable
accounting and legal costs applicable to the operation and management of the
Property; management costs incurred in respect of the Property; cost of snow and
trash removal and care of landscaping; payments under service contracts with
contractors including security services and janitorial services attributable to
the common areas; costs of any road or parking lot maintenance allocable to the
Property; the cost of any capital improvement made for the purpose of reducing
operating expenses which costs shall be amortized over such reasonable period as
the LESSOR shall reasonably determine equals the useful life of such capital
improvement together with interest on the unamortized balance at the base
lending rate charged by a major commercial bank designated by the LESSOR on
funds said bank ordinarily loans for the purpose of constructing, installing or
making similar, and all other reasonable and necessary expenses paid in
connection with the operation, cleaning, maintenance and repair of the Property.
The following shall be excluded from Operating Expenses: any costs or
expenses incurred by XXXXXX in construction and development of the Building;
payment of principal, interest and other changes on mortgages and ground rent;
salaries of executives and principals of LESSOR (except as may be attributable
to actual building operations), expenses for repairs, replacement or other work
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necessitated by insured fire or other casualty (including the action of any
public authority in consequence thereof) or by any taking by eminent domain; the
cost of correcting defects, except that conditions (not occasioned by
construction defects) resulting from ordinary wear and tear shall not be deemed
defects for this purpose; depreciation or amortization; costs relating to
lessees' alterations; principal and interest on XXXXXX's indebtedness; costs for
which LESSOR, by the terms of this Lease or any other lease for space within the
Property makes a separate charge; charges for utilities exclusively serving
other Lessees or LESSOR; and all other items, or portions thereof, which under
generally accepted accounting principles as generally applied in the real estate
industry for similar properties are not properly classified as Operating
Expenses for the Property or are properly classified as capital expenditures.
Cost of all LESSOR's services provided by LESSOR or its affiliates shall not
exceed the commercially comparable rates for such services to similar first
class buildings in the city where the building is located.
LESSOR reserves the right at any time during a Lease Year to bill LESSEE in
equal monthly payments, on account, but as Additional Rent due with the next
succeeding month's payment of Annual Fixed Rent, for the amount of increases in
Operating Expenses in the event the LESSOR's Operating Expenses Allocable to the
Leased Premises (as hereinafter defined) exceed the product of (a) LESSEE's
Proportionate Share of Operating Expenses Included in Annual Fixed Rent and (b)
the Total Rentable Floor Area of the Leased Premises.
XXXXXX's Operating Expenses Allocable to the Leased Premises shall exclude
any expenses otherwise separately billed to LESSEE, and shall be the sum of the
following:
(a) in the case of certain of the Operating Expenses attributable to the
entire Property but not to any specific lessees, said Operating
Expenses multiplied by XXXXXX's Proportionate Share of Operating
Expenses as set forth in Article 1 above;
(b) in the case of certain Operating Expenses attributable not to the
entire Property but to certain specific lessees including XXXXXX, said
Operating Expenses multiplied by the fraction the numberator of which
is the Total Rentable Floor Area of the Leased Premises, and the
denominator of which is the total rentable floor area of all leased
premises within the Property, including the Leased Premises, to which
such Operating Expenses are attributable;
(c) any Operating Expenses attributable specifically to LESSEE.
Operating Expenses, if any, attributable to LESSEE's use of the Property
during other than normal business hours (8:00 a.m. until 6:00 p.m., Monday
through Friday, and 8:00 a.m. until 12: noon Saturdays, locally observed state
and federal holidays excepted) may at LESSOR's option be billed separately and
directly to LESSEE as Additional Rent except the LESSOR agrees that there shall
be no additional costs assessed to LESSEE for building or HVAC for the Leased
Premises and common areas outside of such regular business hours long as LESSEE
operates its use at customary levels. The HVAC will be functional 7 days a week,
24 hours a day, but will be reduced by not more than 10 degrees, plus or minus,
outside normal business hours which are 8:00 am to 6:00 pm Monday through
Friday.
LESSOR shall have the right from time to time to change the period of
accounting for Operating Expenses to any period other than a Lease Year, and
upon any such change, all expense items referred to in this Article shall be
appropriately reapportioned. In all statements rendered to LESSEE under this
Section amounts for periods partially within and partially without the
accounting periods shall be appropriately apportioned. Any cost which is not
determinable at the time of a statement may at LESSOR's discretion be included
therein on the basis of XXXXXX's estimate, and XXXXXX shall render to LESSEE
after determination of such cost if different from XXXXXX's estimate, a
supplemental statement
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and appropriate adjustment shall be made according thereto.
7. REAL ESTATE TAX. If, in any Tax Year (as herein defined) or the portion
of a Tax Year which begins with XXXXXX'S first occupancy of the Leased Premises
and ends on June 30, XXXXXX's Real Estate Tax Expenses per square foot of
rentable floor area of the Building exceed LESSEE's share of Real Estate Tax
Expenses Included in Annual Fixed Rent as specified in Article 1 herein, then,
on or before the thirtieth day following receipt by LESSEE of written notice
from LESSOR that such increased taxes are payable, LESSEE shall pay to LESSOR,
as Additional Rent, the difference between (a) LESSOR's Real Estate Tax Expenses
Allocable to the Leased Premises, as hereinafter defined, less (b) the product
of (i) LESSEE's Share of Real Estate Tax Expenses Included in Annual Fixed Rent
and (ii) the Total Rentable Floor Area of the Leased Premises. LESSOR shall
promptly pay to LESSEE. XXXXXX's proportionate share of any refund or abatement
of Real Estate Tax Expenses received by XXXXXX.
XXXXXX's Real Estate Tax Expense Allocable to the Leased Premises shall be
determined by multiplying LESSOR'S Real Estate Tax Expenses, as hereinafter
defined, for the Property times LESSEE's Proportionate Share of Real Estate Tax
Expenses as set forth in Article 1 herein. "Tax Year" shall mean the
twelve-month period beginning July 1 each year, or if the appropriate
governmental tax fiscal period shall begin on any date other than July 1, such
other date.
As used in this Lease the term Real Estate Tax Expenses shall mean all
taxes and special assessments of every kind and nature assessed by any
governmental authority on the Property and which the LESSOR shall become
obligated to pay because of or in connection with the ownership, leasing and
operation of the Property, and reasonable expenses of any proceedings for
abatement of taxes and assessments including appeals thereof, subject to the
following: (a) the amount of special taxes or special assessments to be included
shall be limited to the amount of the installment (plus any interest, other than
penalty interest, payable thereon) of such special tax or special assessment
(which shall be payable over the longest period permitted by law) required to be
paid during the Tax Year in respect of which such taxes are being determined;
(b) there shall be excluded from such taxes all income, estate, succession,
inheritance and transfer taxes; provided, however, that if at any time during
the Lease Term the present system of ad valorem taxation of real property shall
be changed so that in lieu of the whole or any part of the ad valorem tax on
real property, there shall be assessed on LESSOR a capital levy or other tax on
the rents received with respect to the Property, or a Federal, State, County,
Municipal, or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect in the jurisdiction in which the
Property is located) measured by or based, in whole or in part, upon any such
gross rents, then any and all of such taxes, assessments, levies or charges, to
the extent so measured or based, shall be deemed to be included within the term
"Real Estate Tax Expenses". A payment shall be deemed to be in lieu of the ad
valorem tax on real property only if by reason thereof and to the extent that
LESSOR is relieved of the payment of such tax or any increase thereof
8. LATE PAYMENT. LESSEE shall pay interest (which shall be considered
additional rent) at an annual rate which shall be the lesser of eighteen (18)
percent or the maximum rate allowed by law, from the date due, for any
installment of Annual Fixed Rent which is not received by LESSOR within 10 days
of due date.
9. UTILITIES. LESSOR shall provide equipment as presently existing and
installed to heat and cool the Leased Premises in season at temperatures
customarily maintained in similar buildings used for general office space,
without consideration of any special furniture, equipment or uses installed or
operated by LESSEE. Electricity will be furnished by XXXXXX for building and
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Leased Premises electricity and for use in common area lighting and other normal
common area purposes. No plumbing, construction or electrical work of any type
shall be done without LESSOR's prior written approval which shall not be
unreasonably withheld and the appropriate State, Municipal and other permits and
inspectors' approval. Water and sewer (or septic) for domestic type sanitary
purposes shall be supplied by LESSOR to the common area lavatories and Leased
Premises. The HVAC will be functional 7 days a week, 24 hours a day, but will be
reduced by not more than 10 degrees, plus or minus, outside normal business
hours which are 8:00 am to 6:00 pm Monday through Friday.
10. COMPLIANCE WITH LAWS. LESSEE acknowledges that no trade, occupation, or
activity shall be conducted in the Leased Premises or use made thereof which
will be unlawful, improper, noisy or offensive, or contrary to any statute,
regulation, or ordinance in force in the city or town which the Leased Premises
are situated. LESSEE shall keep all employees working in the Leased Premises
covered with Workers Compensation Insurance in accordance with law. XXXXXX shall
be responsible for causing any work conducted in the Leased Premises to be in
full compliance with the Occupational Safety and Health Act of 1970 and any
amendments thereof.
11. FIRE INSURANCE. LESSEE shall not permit any use of the Leased Premises
which will adversely affect, increase the premium of or make voidable, any
insurance on the Property or on any building or portion of the Property or the
contents thereof or which shall be contrary to any law or regulation form time
to time established by the Insurance Services Office (or successor), local Fire
Department, or any similar body. LESSEE shall on demand reimburse LESSOR, and
all other tenants, all extra insurance premiums caused by XXXXXX's use of the
premises.
12. MAINTENANCE OF PREMISES. LESSOR shall be responsible for all structural
maintenance of the Leased Premises and other portions of the Property as
necessary to maintain tenantable conditions, and for the normal maintenance
within and upon said areas of all heating and cooling equipment, doors, locks,
plumbing, electrical wiring, landscaping, snow removal, fluorescent light bulbs
used in lighting provided by LESSOR, window glass, and janitorial services
including regular cleaning of the Leased Premises. LESSOR shall not be
responsible for any maintenance of equipment or alterations provided by or
installed by LESSEE, nor shall LESSOR be responsible for any damage caused by
the careless, malicious, willful, or negligent acts of LESSEE or its servants,
agents, customers, contractors, employees, invitees, visitors or licensees.
XXXXXX agrees to maintain at its expense all aspects of the Leased Premises in
the same condition as they are at the commencement of the Lease Term or as they
may be put in during the Lease Term, normal wear and tear and damage by fire or
other casualty only excepted. LESSEE will properly control or vent all solvents,
degreasers, etc. and shall not cause the area surrounding the Leased Premises to
be in anything other than a neat and clean condition, depositing all waste in
appropriate receptacles. LESSEE shall be solely responsible for any damage to
plumbing equipment sanitary lines, or any other portion of the Property which
results from the improper discharge or improper use of any material or substance
by LESSEE. LESSEE shall not permit the Leased Premises to be overloaded,
damaged, stripped or defaced, nor suffer any waste, and will not keep animals
within the Leased Premises. Any increase in air conditioning equipment or
electrical capacity, or mechanical maintenance or operating expense which is
necessitated by some specific aspect of LESSEE's use of the premises shall be at
LESSEE's expense. All maintenance provided by LESSOR shall be during LESSOR's
normal weekday business hours. XXXXXX agrees to use good faith efforts not to
interfere with XXXXXX's business
7
activities while performing its maintenance responsibilities.
13. ALTERATIONS. Except as set forth in Exhibit A, LESSEE shall not make
structural alterations or additions of any kind to the Leased Premises, but may
make nonstructural alterations provided XXXXXX consents thereto in advance in
writing, which consent shall not be unreasonably withheld provided said
alterations are consistent in appearance and quality with the rest of the
Building and Property. However, XXXXXX shall not be obligated to approve any
such alterations which would subject LESSOR to additional expense to readapt or
prepare the Leased Premises for re-leasing upon the termination of this Lease or
which would increase the Operating Expenses or Real Estate Tax Expenses of the
Property. All such allowed alterations shall be at LESSEE's sole risk and
expense, shall conform with LESSOR's construction specifications, shall be
performed in good and workmanlike manner, and shall comply with all applicable
codes and regulations. If XXXXXX performs any services for LESSEE in connection
with such alterations or otherwise, any just invoice will be considered
additional rent and will be promptly paid. LESSEE shall not permit any
mechanics' liens, or similar liens, to remain upon the Leased Premises in
connection with work of any character performed at the direction of LESSEE and
shall cause any such lien to be released or removed without cost to LESSOR
within ten (10) days of written request by XXXXXX. Any alterations or
improvements shall become part of the real estate and the property of LESSOR.
LESSEE shall remove any alteration or addition made by it and restore the Leased
Premises and other affected area(s), if any, to the same condition as they were
in on the Lease Commencement Date upon the expiration or termination of this
Lease if LESSOR so directs, unless prior written approval for the alterations
was granted by XXXXXX. Any alterations completed by LESSOR shall be `building
standard" unless noted otherwise. LESSOR shall have the right at any time to
change the arrangement and layout of parking areas, stairs, walkways, common
areas and other areas of the Property not contained within the Leased Premises,
to install, repair, replace, remove, use, maintain and relocate for service to
the Leased Premises and to other parts of the Property, pipes, ducts, conduits,
wires and appurtenant fixtures wherever located inside or outside of the
Building and the Property, to change the boundaries of the lot upon which the
Building is located, to construct additions to existing buildings on the
Property, and to construct additional buildings and improvements on the
Property, LESSOR hereby agreeing that any such alterations shall not
unreasonably reduce LESSEE's access to the Leased Premises or unreasonably
inconvenience the operation of LESSEE's business on the Leased Premises or
LESSEE's employees or invitees.
14. ASSIGNMENT OR SUBLEASING. LESSEE shall not assign, mortgage, pledge,
hypothecate or otherwise transfer this Lease or sublet (which term, without
limitation, shall include granting of concessions, licenses, and the like) or
allow any other firm or individual to occupy the whole or any part of the Leased
Premises without the prior written consent of LESSOR, which consent shall not be
unreasonably withheld, or suffer or permit this Lease or the leasehold estate
hereby created or any other rights arising under this Lease to be assigned,
transferred, or encumbered, in whole or in part, whether voluntarily,
involuntarily, or by operation of law without the prior written consent of
LESSOR, which consent shall not be unreasonably withheld. In the event of any
intent to assign this Lease or sublet any portion or all of the Leased Premises,
LESSEE shall notify LESSOR in writing of LESSEE's intent and the proposed
effective date of such subletting or assignment, and shall request in such
notification that LESSOR consent thereto, provided that LESSOR may terminate
this LEASE in the case of a proposed assignment, or suspend this Lease for the
period and with respect to the space involved in the case of a proposed
subletting, by giving written notice of termination or suspension to LESSEE,
with such termination or suspension to be effective as of the effective date of
such assignment or subletting. LESSEE will
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xxxxxxxxx XXXXXX, as additional rent, for reasonable legal and other expenses
incurred by XXXXXX in connection with any request by XXXXXX for consent to
assignment or subletting. In the event that the fixed rental to be paid by any
sublessee, assignee or transferee of LESSEE shall exceed the Annual Fixed Rent
as set forth in Article 3 herein payable by LESSEE to LESSOR, or in the event
that any sublessee, assignee or transferee shall pay to LESSEE a sum of money in
consideration for such sublease, assignment or transfer, then LESSEE shall pay
to LESSOR, as additional rent, a sum equal to fifty (50) percent of the amount
by which the fixed rent payable by such sublessee, assignee or transferee
exceeds the Annual Fixed Rent payable under Article 3 herein or an amount equal
to such sum of money. No assignment or subletting and no consent of LESSOR
thereto shall affect the continuing primary liability of LESSEE (which,
following assignment, shall be joint and several with the assignee) for the
payment of all rent and for the full performance of the covenants and conditions
of this Lease. No consent to any of the foregoing in a specific instance shall
operate as a waiver in any subsequent instance, and no assignment shall be
binding upon LESSOR or any of LESSOR's mortgagees, unless LESSEE shall deliver
to LESSOR an instrument in recordable form which contains a covenant of
assumption by the assignee running to LESSOR and all persons claiming by,
through or under LESSOR, but the failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge assignee from its
liability as a lessee for the payment of all rent and for the full performance
of the covenants and conditions of this Lease, nor shall execution of such
instrument of assumption affect the continuing primary liability of LESSEE for
the payment of all rent and for the full performance of the covenants and
conditions of this Lease. Notwithstanding anything contained herein to the
contrary, LESSEE may assign this Lease or sublet the premises to any Parent,
affiliate or subsidiary company of LESSEE without the need to obtain LESSOR'S
consent so long as LESSEE remains primarily liable on the Lease and so long as
LESSEE provides LESSOR fifteen (15) days written notice prior to such assignment
or subletting. Affiliate shall include any entity which directly or indirectly
controls LESSEE or is a successor to LESSEE by name, merger, consolidation or
other operation of law or any entity to whom all or substantially all of the
assets of LESSEE are conveyed.
15. SUBORDINATION. XXXXXX agrees at the request of XXXXXX to subordinate
this Lease to any first mortgage or other security interest hereafter created
covering the Leased Premises or any portion of the Leased Premises and to any
renewal, modification, replacement or extension or any existing first mortgage,
or any mortgage or security interest hereinafter created and to any and all
advances made or to be made thereunder or to any ground Lease of the Property or
the Building, provided that the mortgagee or holder of such security interest or
ground Lessor agrees, for itself and its successors and assigns in writing with
the LESSEE that so long as LESSEE shall not be in default under this Lease, the
mortgagee or other holder of such security interest or ground LESSOR and its
successors and assigns will not disturb the peaceful quiet enjoyment of the
Leased Premises by the LESSEE. LESSEE also agrees that if this Lease is so
subordinated, no entry under any mortgage or sale for the purpose of foreclosing
the same or entry for termination of any ground Lease shall be regarded as an
eviction of LESSEE, constructive or otherwise, or give LESSEE any right to
terminate this Lease, whether it attorns or becomes LESSEE of the mortgagee or
new owner, and such mortgage, or security interest to which this Lease shall
become subordinated may contain such other terms, provisions and conditions as
are usual and customary. XXXXXX agrees that it will, within ten (10) days of
receipt of written request of the LESSOR, execute and deliver any and all
instruments necessary or desirable to give effect to or notice of such
subordination in such forms as may be required by such mortgagee or other holder
of such security interest or ground Lessor, and LESSOR shall deliver a
Non-Disturbance Agreement executed by such mortgagee or other holder of such
security interest or ground lessor to LESSEE within 30 days thereafter.
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16. ESTOPPEL CERTIFICATES. Upon ten (10) days prior written request by
XXXXXX or XXXXXX, the other party agrees to execute and deliver an estoppel
certificate certifying that this Lease is unmodified and in full force and
effect (or, if there have been any modifications that this Lease is in full
force and effect as modified and stating the modifications) and the dates to
which the Annual Fixed Rent, additional rent and other charges have been paid
through and any other information reasonably requested. Any such statement
delivered pursuant to this Article may be relied upon by any prospective
purchaser, mortgagee or lending source.
17. LESSOR'S ACCESS. LESSOR or agents of LESSOR may upon at least 24 hours
advance notice at reasonable times enter to view the Leased Premises and may,
after providing notice to LESSEE, remove at LESSEE's expense any signs,
alterations or additions not approved and constructed or installed as herein
provided, may make such repairs and alterations as LESSOR may deem necessary to
avert an emergency, may make any repairs which LESSEE is required but has failed
to do, and may show the leased premises to others. XXXXXX agrees to use its good
faith efforts to avoid interfering with XXXXXX's use of the Leased Premises in
carrying out the activities permitted by this Paragraph 17.
18. SNOW REMOVAL. The plowing of snow from all common roadways: accessways
and unobstructed parking and loading areas, and the clearing of snow from common
walkways sufficient to provide access to the Building, shall be performed by
LESSOR or its agents.
19. ACCESS AND PARKING. LESSEE shall have the non-exclusive right, without
additional charge, to use the number of parking spaces specified in Article 1,
said spaces to be located within the parking area provided for the Leased
Premises in common with others entitled to the use thereof. LESSEE may not
sublease any parking space so allocated. Neither LESSOR or LESSEE will obstruct
in any manner any portion of the Building or the Property, including the parking
area, walkways or approaches to said Building or Property, so as to unreasonably
interfere with either party's access to the Building or to the Leased Premises
and LESSEE will conform to all reasonable rules now or hereafter made by LESSOR
for parking, and for the care, use, or alteration of the Property, its
facilities and approaches. LESSOR shall have the right to impose reasonable
controls on the operation of the parking area, including but not limited to the
installation of access gates. The issuance of identifying cards and/or stickers
to those employees, guests and invitees of LESSEE who will be using the parking
area, and the designation of certain portion(s) of the parking area as reserved
for such purpose(s) as LESSOR in its sole judgement may determine, provided that
such designation shall not reduce the number of spaces allocated to LESSEE and
shall not materially interfere with LESSEE's use of the Leased Premises.
LESSEE further warrants that LESSEE will not permit any employee, visitor
or invitee to violate this or any other covenant or obligation of LESSEE. No
vehicle shall be stored or left in any parking area for more than seven (7)
consecutive nights without LESSOR's written approval. From December 1 through
March 30 annually, however, all unattended parking will be prohibited between
12:00 AM and 5:00 AM except in those areas which may at LESSOR's discretion be
specifically designated for assigned overnight parking as shown on Exhibit B,
with a minimum of ten (10) spaces. Unregistered or disabled vehicles, or storage
trailers of any type, may not be parked overnight at any time. XXXXXX agrees to
assume all expense and risk for towing of any misparked vehicle belonging to
LESSEE or LESSEE's agents, employees, business invites, or callers, at any time.
LESSEE shall have access to the termination points for telephone wiring and data
wiring on a 24 hours basis. LESSEE shall have the right to use, in common with
LESSOR and any other
10
tenants, facilities for deliveries and handicapped access during normal business
hours which are 8:00 am to 6:00 pm Monday through Friday.
20. LESSEE'S LIABILITY INSURANCE. LESSEE will secure and carry at its own
expense a comprehensive general liability policy insuring LESSEE and XXXXXX
against any claims based on bodily injury (including death) or property damage
arising out of the condition of the Leased Premises or their use by XXXXXX, such
policy to insure LESSEE and LESSOR against any claim up to One Million Dollars
($1,000,000) per occurrence for injury or death to one person, Three Million
Dollars ($3,000,000) for injury or death to more than one person in the same
accident, and One Million Dollars ($1,000,000) for damage to property. Such
limits shall be subject to increase from time to time during the Lease Term. The
amount of such insurance shall not limit LESSEE's liability nor relieve LESSEE
of any obligation hereunder.
Upon the commencement of the Lease Term LESSEE will promptly file with
LESSOR certificates reasonably satisfactory to LESSOR showing that such
insurance is in force, accompanied by evidence of the payment of the premium for
the policy, and thereafter will file renewal certificates at least thirty (30)
days prior to the expiration of any such policies. All such insurance
certificates shall provide that such policies shall not be cancelled nor
materially changed without at least ten (10) days prior written notice to each
assured named therein. LESSEE may, at XXXXXX's cost maintain such other
liability insurance as LESSEE may deem necessary to protect it.
XXXXXX shall assume exclusive control of the Leased Premises, and all tort
liabilities incident to the control or ownership thereof and agrees to indemnify
and hold the LESSOR free and harmless from any and all liability, penalties,
losses, damages, costs and expenses, causes of action, claims or judgements or
encumbrances created or suffered by the LESSEE, and from any and all liability,
penalties, losses, damages, costs and expenses, causes of action, claims, or
judgements arising from injury to persons or property of any nature on the
Leased Premises or the Property, occasioned by any acts or omissions of the
LESSEE or of its employees, agents, invitees, visitors, callers, servants,
subtenants, or independent contractors, and arising out of the use or occupation
of said Leased Premises by LESSEE from any neglect or misuse on the Leased
Premises or by any reason of nuisance made or suffered on the Leased Premises by
LESSEE excluding in all cases, loss or damage due to XXXXXX's acts or omissions
and also against all legal costs and charges, including counsel fees, reasonably
incurred in and about such matters and the defense of any action arising out of
the same, or in discharging the Leased Premises or any part thereof from any and
all liens that may be placed thereon from charges incurred by XXXXXX, except as
caused by LESSORS negligence. If LESSOR intervenes in or becomes a party to any
such action or actions growing out of this Lease to protect its rights, then the
LESSEE shall pay LESSOR's reasonable attorneys' fees in such action or actions.
XXXXXX agrees to carry, at its own expense, liability insurance covering
injuries or damage to persons or property arising out of LESSOR's negligence on
or about the Building or Property.
21. WAIVER OF SUBROGATION. Any casualty and liability insurance carried by
LESSEE or LESSOR with respect to the Leased Premises, the Property, or
occurrences thereon shall include a clause or endorsement denying to the insurer
rights of subrogation against the other party to the extent rights have been
waived by the insured prior to the occurrence of injury or loss. Each party,
notwithstanding any provisions of this Lease to the contrary, hereby waives any
rights of recovery against the other for injury or loss due to hazards covered
by such insurance containing such antisubrogation clause or endorsement to the
extent of the indemnification received
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thereunder.
22. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
Leased Premises be substantially damaged by fire or other casualty, or if
substantial damage as a result of fire or casualty to the Building or Property
or taking by eminent domain, shall deprive LESSEE of access or use of the Leased
Premises, this Lease shall terminate at LESSEE's election by written notice
given to LESSOR within sixty (60) days after occurrence of the event giving rise
to the election to terminate which notice shall specify the effective date of
termination. Should a substantial portion of the Leased Premises, or of the
Property, be substantially damaged by fire or other casualty, or by action of
public or other authority in consequence thereof or be taken by eminent domain,
or should LESSOR receive compensable damage by reason of anything lawfully done
in pursuance of public or other authority, this Lease shall terminate at
LESSOR's election, which may be made notwithstanding XXXXXX's entire interest
may have been divested, by written notice given to LESSEE within sixty (60) days
after the occurrence of the event giving rise to the election to terminate,
which notice shall specify the effective date of termination.
The effective date of any termination by LESSOR or LESSEE under this
Article shall be not less than fifteen (15) nor more than thirty (30) days after
the date of such notice of termination. For the purpose of this Article, damage
or taking shall be considered substantial if the time needed for LESSOR to
perform repairs and/or construction necessary to put the Leased Premises or such
remainder in proper condition for use and occupation is estimated by XXXXXX to
exceed two (2) months, or if more than thirty (30) percent of the non-wetlands
land area of the Property, or if more than ten (10) percent of the Building, or
if more than ten (10) percent of the Leased Premises are so taken. In case of
any such damage or taking, LESSOR shall notify LESSEE within thirty (30) days
after the occurrence thereof of XXXXXX's estimate of the time needed to perform
the repairs and/or construction necessary to put the Leased Premises or such
remainder in proper condition for use and occupancy, or of the percentage of the
non-wetlands land area, or of the Building, or of the Leased Premises taken.
If in any such case the Leased Premises are rendered unfit for use and
occupation and the Lease is not so terminated, LESSOR shall use due diligence to
put the Leased Premises, or in case of taking what may remain thereof (excluding
any items installed or paid for by Tenant, which Tenant may be required to
remove), into proper condition for use and occupation and a just proportion of
the Annual Fixed Rent and any additional rent according to the nature and extent
of the injury shall be abated until the Leased Premises or such remainder shall
have been put by LESSOR in such condition and in case of a taking which
permanently reduces the area of the Leased Premises, a just proportion of the
Annual Fixed Rent and additional rent shall be abated for the remainder of the
Lease Term.
LESSOR reserves to itself any and all rights to receive awards made for
damages to the Leased Premises and the Property and the leasehold hereby
created, or any one or more of them, accruing by reason of exercise of eminent
domain or by reason of anything lawfully done in pursuance of public or other
authority. LESSEE hereby releases and assigns to LESSOR all of LESSEE's rights
to such awards, and covenants to deliver such further assignments and assurances
thereof as LESSOR may from time to time request It is agreed and understood,
however, that XXXXXX does not reserve to itself and LESSEE does not assign to
LESSOR, any damages payable for (i) movable trade fixtures installed by LESSEE
or anybody claiming under LESSEE at its own expense or fixtures or items the
removal of which is required or permitted by any agreement given pursuant the
Lease, or (ii) relocation expenses recoverable by LESSEE from
12
such authority in a separate action.
23. INTERRUPTIONS. LESSOR shall not be liable to LESSEE for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from power and other utility losses, shortages or
malfunctions, the necessity of LESSOR's entering the Leased Premises for any of
the purposes in this Lease authorized, or for repairing the Leased Premises or
any other portion of the Property however the necessity may occur unless due to
LESSOR's gross negligence or malfeasancy. In case LESSOR is prevented or delayed
from making any repairs, alterations or improvements, or furnishing any services
or performing any other covenant or duty to be performed on LESSOR's part, by
reason of any and all causes reasonably beyond LESSOR'S control, LESSOR shall
not be liable to LESSEE therefor, nor shall the same give rise to a claim in
LESSEE's favor that such failure constitutes actual or constructive, total or
partial, eviction from the Leased Premises. LESSOR reserves the right to stop
any service or utility system, when necessary by reason of accident or
emergency, or until necessary repairs have been completed, provided, however,
that in each instance of stoppage, LESSOR shall exercise reasonable diligence to
eliminate the cause thereof
24. BROKERAGE. LESSEE warrants and represents to LESSOR that XXXXXX has
dealt with no broker other than X.X. Xxxxxx Realty Co., Inc. ("BROKER") with
respect to this Xxxxx and XXXXXX agrees to indemnify XXXXXX against any
brokerage claims arising by virtue of this Lease, other than from the BROKER.
LESSOR warrants and represents to LESSEE that XXXXXX has employed no exclusive
broker or agent in connection with the letting of the Leased Premises other than
the BROKER, and agrees to indemnify LESSEE against any brokerage claims arising
by virtue of this Lease, other than from the BROKER. Pursuant to its exclusive
agency agreement with the BROKER, LESSOR shall only be responsible for the
brokerage commission due the BROKER.
25. SIGNS. LESSEE may display signs on the Leased Premises including one
(1) free standing sign by road entrance and one free standing sign near the
building entrance. LESSEE shall, however, first obtain the written consent of
LESSOR, which consent shall not be unreasonably withheld and any approvals
required under applicable by-laws or regulations, before erecting any sign on
the Property, and shall obtain written approval as to size, content, appearance,
and location of all authorized signs.
26. DEFAULT. BANKRUPTCY AND ACCELERATION OF RENT. In the event that (a)
LESSEE files a petition for adjudication as a bankrupt or shall be declared
bankrupt or insolvent according to law, or if an involuntary petition under any
of the provisions of the Bankruptcy Act is filed against LESSEE and is not
dismissed within sixty (60) days thereafter, or if any assignment shall be made
of LESSEE's property for the benefit of creditors; or (b) LESSEE shall default
in the observance or performance of any of LESSEE's covenants, agreements, or
obligations hereunder, other than substantial monetary payments as provided
below, and such default shall not be corrected with thirty (30) days after
written notice thereof, then LESSOR shall have the right thereafter, while such
default continues, and without demand or further notice to re-enter and take
complete possession of the Leased Premises, or declare the term of this Lease
ended, and to remove XXXXXX's effects, without being guilty of any manner of
trespass, and without prejudice to any remedies which might be otherwise used
for arrears of rent or other default or breach of covenant. In addition to the
foregoing, if LESSEE shall default in the payment of Annual Fixed Rent, taxes,
or additional rent, and such default shall continue for ten (10)
13
days after written notice thereof and, because both parties agree that
nonpayment of said sums when due is a considerable and significant breach of the
Lease, and, because the payment of rent in monthly installments is for the sole
benefit and convenience of LESSEE, then, if Landlord elects to terminate this
Lease, the net present value of the entire balance of rent over and above the
net present value of the Fair Market Rental Value of the Leased Premises for the
balance of the term shall, at the option of LESSOR, become immediately due and
payable, and, in addition, LESSOR shall have all other rights of XXXXXX, as set
forth in this Article, for a default by XXXXXX.
LESSOR, without being under any obligation to do so and without thereby
waiving any default, may remedy same for the account and at the expense of
XXXXXX. If LESSOR pays or incurs any obligations for the payment of money in
connection therewith, including but not limited to reasonable attorney's fees in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred and costs, shall be paid to LESSOR by XXXXXX as
additional rent. Any sums received by LESSOR shall be applied first to offset
any outstanding invoice or other payment due to Lessor, with the balance applied
to outstanding rent. Notwithstanding the foregoing, XXXXXX agrees to pay
reasonable attorney's fees incurred by XXXXXX in enforcing any or all
obligations of LESSEE under this Lease at any time. XXXXXX agrees to use good
faith efforts to relet the Premises in the event of a termination of the Lease
pursuant to this Paragraph 26.
Any and all rights and remedies which XXXXXX may have under this Lease, at
law and equity, shall be cumulative and shall not be deemed inconsistent with
each other, and any two or more of all such rights and remedies may be exercised
at the same time insofar as permitted by law.
27. NO ACCORD AND SATISFACTION. No acceptance by LESSOR of a lesser sum
than the Annual Fixed Rent and additional rent then due shall be deemed to be
other than on account of the earliest installment of such rent due, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent be deemed an accord and satisfaction, and LESSOR may accept
such check or payment without prejudice to LESSOR's right to recover the balance
of such installment or pursue any other remedy provided in this Lease.
28. NOTICES. Any notice from LESSOR to LESSEE relating to the Leased
Premises or to the occupancy thereof shall be deemed duly served, if delivered
to LESSEE by certified mail, return receipt requested, postage prepaid,
addressed to LESSEE at the Leased Premises.
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Any notice from LESSEE to LESSOR relating to the Leased Premises, the occupancy
thereof or this Lease shall be deemed duly served if delivered to LESSOR by
certified mail, return receipt requested postage prepaid addressed to XXXXXX as
follows:
14
Perini Corporation
00 Xxxxx Xxxxx Xxxxxx, X0 Xxx 0000
Xxxxxxxxxx, XX 00000-9160
Attn: Xxxx Xxxxx/Xxxx Xxxxx
or at such other address as LESSOR or LESSEE may from time to time in writing
designate.
29. OCCUPANCY. In the event that XXXXXX takes possession of said premises
prior to the Lease Commencement Date, XXXXXX will perform and observe all of
LESSEE's covenants from the date upon which XXXXXX takes possession except the
obligation for the payment of extra rent for any period of less than one month.
XXXXXX shall not remove XXXXXX's goods or property from the Leased Premises
other than in the ordinary and usual course of business, without having first
paid and satisfied LESSOR for all rent which may become due during the entire
term of this Lease. In the event that LESSEE continues to occupy or control all
or any part of the Leased Premises after the agreed termination date of this
Lease without the written permission of XXXXXX, then all other terms of this
Lease shall continue to apply except that rent shall be due in full monthly
installments at a rate of one hundred fifty (150) percent of that which would
otherwise be due under this Lease, it being understood between the parties that
such extended occupancy as a tenant at sufferance is solely for the benefit and
convenience of LESSEE and such has greater rental value and, in the event that
LESSEE continues to occupy or control the Leased Premises for a period of more
than one month after the Lease termination date, LESSEE shall be liable to
LESSOR for any and all loss, damages or expenses incurred by XXXXXX. XXXXXX's
control or occupancy of all or any part of the Leased Premises beyond midnight
on the last day of any monthly rental period shall constitute LESSEE's occupancy
for an entire additional month, and increased rent as provided in this Article
shall be due and payable immediately in advance.
30. FIRE PREVENTION. XXXXXX agrees to use every reasonable precaution
against fire and XXXXXX agrees that the Leased Premises (upon delivery to
LESSEE) and the Building shall comply with the local Fire Marshall's
requirements for approved, labeled fire extinguishers and emergency lighting
equipment
31. OUTSIDE AREA. Except for permitted parking, no goods, equipment or
things of any type or description shall be held or stored outside the Leased
Premises at any time without express written approval from LESSOR. Any goods,
equipment or things left outside the Leased Premises without LESSOR'S prior
written consent shall be deemed abandoned and may be removed after 24 hours
notice by XXXXXX. XXXXXX agrees to pay upon written notice all reasonable
charges, as additional rent associated with said removal.
32. ENVIRONMENT. LESSEE will so conduct and operate the Leased Premises as
not to interfere in any way with the use and enjoyment of other portions of the
same or neighboring buildings by others by reason of odors, smells, noise,
vibration, pets, accumulation of garbage or trash, vermin or other pests, or
otherwise, and will at its expense employ a professional pest control service if
necessary. LESSEE agrees to maintain efficient and effective devices for
preventing damage to heating equipment from harmful solvents, degreasers,
cutting oils, etc. which may be used within the Leased Premises. No hazardous
wastes or chemical wastes of any sort shall be used, generated, stored, disposed
of or allowed to remain within the Leased Premises or the Property at any time,
except in compliance with applicable laws and regulations and LESSEE
15
shall be solely responsible for any and all corrosion or other damage associated
with the improper use, generation, storage, disposal and control of same by
XXXXXX.
33. RESPONSIBILITY. LESSOR shall not be held liable to anyone for loss or
damage caused in any way by the use, leakage, seepage or escape of water from
any source, or for the cessation of any service rendered customarily to the
Property, or agreed to by the terms of this Lease, due to any accident, to the
making of repairs, alterations or improvements, to labor shortages or disputes,
weather conditions, or mechanical breakdowns, to trouble or scarcity in
obtaining fuel, electricity, service or supplies from the sources from which
they are usually obtained for the Property, or to any cause beyond LESSOR's
reasonable control.
34. SURRENDER. XXXXXX shall at the expiration or other termination of this
Lease remove all of LESSEE'S goods and effects from the Leased Premises. LESSEE
shall deliver to LESSOR the Leased Premises and all keys, access control cards
(if used in the Building) locks, and other fixtures and equipment connected
therewith, and all alterations, additions and improvements made to or upon the
Leased Premises, including but not limited to any offices, partitions, floor
coverings (including computer floors), window shades and blinds, plumbing an&
plumbing fixtures, air conditioning equipment and duct work of any type, exhaust
fans or heaters, water coolers, burglar alarms telephone wiring, telephone
equipment (excluding telephone handsets and switching equipment), wooden or
metal shelving which has been bolted, welded or otherwise attached to the
Building, air or gas distribution piping, compressors, overhead cranes, hoists,
trolleys or conveyors, counters or signs attached to wails or floors, and all
electrical work, including but not limited to lighting fixtures of any type,
wiring, conduit, EMT, distribution panels, bus ducts, raceways, outlets and
disconnects, unless otherwise directed by XXXXXX in writing. Anything to the
contrary notwithstanding LESSOR shall not request that LESSEE remove any
improvements from the Leased Premises which were installed as part of LESSOR's
original improvements delivered with the Leased Premises at the commencement of
this Lease. LESSEE shall deliver the Leased Premises broom clean and in the same
condition as they were at commencement of the Lease Term, or as they were put in
during the Lease Term, reasonable wear and tear and damage by fire or other
casualty only excepted. In the event of XXXXXX's failure to remove any of
LESSEE's property from the Leased Premises, LESSOR is hereby authorized, without
liability to LESSEE for loss or damage thereto, and at the sole risk of LESSEE,
to remove and store any such property at LESSEE's expense, or to retain same
under XXXXXX's control, or to sell at public or private sale (with notice), any
or all of the property not so removed and to apply the net proceeds of such sale
to the payment of any sum due hereunder, or to destroy such property which shall
be conclusively deemed to have been abandoned. In no case shall the Leased
Premises be deemed surrendered to LESSOR until the expiration date provided
herein or such other date as may be specified in a written agreement between the
parties and attached hereto.
35. LEGAL. In case LESSOR shall be made party to any litigation commenced
by or against LESSEE or by or against any parties in possession of the Leased
Premises or any party thereof claiming under XXXXXX, LESSEE shall pay, as
additional rent, all costs, including without limitation reasonable counsel fees
incurred by or imposed upon LESSOR in connection with such litigation, and shall
also pay, as additional rent all such reasonable costs and fees incurred by
XXXXXX in connection with the enforcement by LESSOR of any obligations of LESSEE
under this Lease. XXXXXX shall defend, with counsel approved by XXXXXX, save
harmless and indemnify LESSOR from any liability or injury, loss, accident or
damage to any person or property, and from any claims, actions, proceedings and
reasonable expenses and costs in connection therewith (including without
limitation reasonable counsel fees) (i) arising from the omission, fault,
willful act,
16
negligence or other misconduct of LESSEE on the Leased Premises not due to the
omission, fault, willful act, negligence or other misconduct of LESSOR or (ii)
resulting from the failure of LESSEE to perform and discharge its covenants and
obligations under this Lease. Notwithstanding the foregoing and unless
prohibited by applicable law, in the event of any litigation between XXXXXX and
XXXXXX, the prevailing party by court order, decree or judgment shall be
reimbursed by the other party for its reasonable legal fees and costs incurred
in such litigation.
36. GENERAL.
(a) The invalidity or unenforceability of any provision of this Lease shall not
affect or render invalid or unenforceable any other provision hereof.
(b) The obligations of this Lease shall run with the land, and this Lease shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that LESSOR shall be liable only for
obligations occurring before the beginning of the Lease Term, or thereafter
while owner of the Leased Premises.
(c) If LESSOR is acting under any trust or corporation the obligations of LESSOR
shall be binding upon the trust estate or corporation, but not upon any trustee,
officer, corporate officer, shareholder, or beneficiary of the trust or
corporation individually.
(d) This Lease is made and delivered in the state of Massachusetts, and shall be
interpreted, construed, and enforced in accordance with the laws thereof.
(e) This Lease was the result of negotiations between parties of equal
bargaining strength, and when executed by both parties shall constitute the
entire agreement between said parties. No other oral or written representation
shall have any effect hereon, and this agreement may not be altered, extended or
amended except by written agreement attached hereto or as otherwise provided
herein.
(f) Notwithstanding any other statements herein, XXXXXX makes no warranty,
express or implied, concerning the suitability of the Leased Premises for
LESSEE's Permitted Use, but does represent that the Leased Premises conform to
building laws and regulations applicable to the Leased Premises as of the
execution of the Lease.
(g) XXXXXX agrees that if XXXXXX does not deliver possession of the Leased
Premises as herein provided, XXXXXX shall not be liable for any damages to
LESSEE for such failure, but XXXXXX agrees to use reasonable efforts to obtain
possession for LESSEE on or before the Lease Commencement Date, as it may be
extended pursuant to the provisions of this Lease.
(h) The submission of this Lease to LESSEE does not constitute a reservation of
or option for the Leased Premises, or an offer to lease, it being expressly
understood and agreed as between LESSEE and LESSOR that this Lease shall not
bind either party in any manner whatsoever until it has been executed by both
parties.
(x) XXXXXX agrees that each owner of the Property from time to time shall not be
liable to LESSEE for breach of any of the LESSOR's obligations herein contained
committed by any prior or subsequent owner.
17
(j) XXXXXX shall have the right to issue to lessees including XXXXXX, and from
time to time to revise, reasonable written Rules and Regulations pertaining to
the Property, and LESSEE shall upon receipt of said Rules and Regulations, and
any revision(s) thereof, abide by same.
37. WAIVERS. ETC. No consent of waiver, express or implied, by XXXXXX, to
or of any breach of any covenant, condition or duty of LESSEE shall be construed
as a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty. If LESSEE is several persons or a partnership
LESSEE's obligations are joint and also several. Unless repugnant to the
context, "LESSOR" and "LESSEE" mean the person or persons, natural or corporate,
named above as "LESSOR and as LESSEE respectively, and their respective heirs,
executors, administrators, successors and assigns."
38. ADDITIONAL PROVISIONS.
(a) Lessors Improvements.
(a) LESSOR, at an expense incorporated entirely into the Annual Fixed Rent
and at no further cost to LESSEE, shall construct LESSEE's improvements within
the Leased Premises, which shall consist solely of three demising walls and two
security doors as shown in Exhibit A ("Lessor's Work"). Lessors Work, including,
if necessary, the issuance of a certificate of occupancy permitting such use,
shall be performed prior to the Lease Commencement Date.
(b) Extension Options. Provided LESSEE is not in default hereunder, the
LESSEE shall have the option, exercisable by written notice from LESSEE to
LESSOR given not less than nine (9) months prior to the end of the Initial Term,
to extend the term of this Lease for an additional three (3) years on all of the
terms and conditions of this Lease except that the Annual Fixed Rent shall be
the greater of fair market value or $15,423 per month.
(c) Right of First Offer. In the event Landlord, in its sole and absolute
discretion, determines to rent additional space on the second floor adjacent to
the Leased Premises, it shall first offer such space to Tenant. Tenant shall
have five (5) business days to notify Landlord whether it wishes to rent such
space.
IN WITNESS WHEREOF, XXXXXX AND XXXXXX have hereunto set their hands and common
seals and intend to be legally bound hereby this 6th day of May 1997.
LESSOR: PERINI CORPORATION
By: /s/ XXXX X. XXXXXXX XXXX X. XXXXXXX
----------------------------- -----------------------------
Signature Print or type name
Exec. V.P. 5/6/97
----------------------------- -------------
Title Date
18
LESSOR: MAKER COMMUNICATIONS, INC.
--------------------------
By: /s/ XXXXXXX X. XXXXXXX Xxxxxxx X. Xxxxxxx
----------------------------- -----------------------------
Signature Print or type name
President May 2, 1997
----------------------------- -------------
Title Date
19
Perini Corporation
First Amendment to Commercial Lease
Reference is made to a Lease dated May 6, 1997 between Perini Corporation, a
Massachusetts Corporation with a usual place of business at 00 Xxxxx Xxxxx
Xxxxxx, X0 Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-9160, hereinafter called
LESSOR, and Maker Communications, Inc. 000 Xxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, hereinafter called LESSEE;
Now therefore both the LESSOR and XXXXXX agree to amend the terms of the LEASE
as follows:
Description of the Leased Preemies: The premises located at 00 Xx. Xxxxx Avenue,
Framingham, Massachusetts 01701, as shown on plan (Lease Exhibit B) attached
hereto and made part hereof (hereinafter the "Leased Premises"). The Leased
premises contain approximately Eleven Thousand Seven Hundred Ninety Nine
(11,799) rentable square feet (hereinafter the "Total Floor Area of the Leased
Premises").
Annual Fixed Rent for the Lease Term: Two Hundred Thousand Five Hundred Eighty
Three and 00/100 Dollars ($200,583.00) annually, Sixteen Thousand Seven Hundred
Fifteen and 25/100 ($16,715.25) monthly commencing January 1, 1998 for the
remainder of the initial Lease Term, which includes Tenant's electricity charge
for the Leased Premises.
As used in this Lease, Lease Year shall mean a period of 12 calendar months,
with the first Lease Year to commence upon the Lease Commencement Date and end
upon the anniversary thereof and with successive Lease Years continuing for
twelve (12) month intervals thereafter until the Lease Termination Date.
Unless modified herein, all other terms and conditions of the LEASE remain in
full force and effect.
Executed as of the 18th. day of December, 1997
LESSOR: PERINI CORPORATION
By: /s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx
----------------------------- -----------------------------
Signature Print or type name
December 18, 1997
----------------------------- -----------------------------
Title X.X. Xxxxxx Land & Date
Development Co.
LESSEE: MAKER COMMUNICATIONS, INC.
By: /s/ XXXXXXXX XXXXXXX Xxxxxxxx Xxxxxxx
----------------------------- -----------------------------
Signature Print or type name
Vice President & CFO December 18, 1997
----------------------------- -----------------------------
Title Date
Perini Corporation
Second Amendment to Commercial Lease
Reference is made to a Lease dated May 6, 1997 and First Lease Amendment dated
December 18, 1997, between Perini Corporation, a Massachusetts Corporation with
a usual place of business at 00 Xxxxx Xxxxx Xxxxxx, X0 Xxx 0000, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000-9160, hereinafter called LESSOR, and Maker Communications,
Inc. 000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called
LESSEE;
Now therefore both the LESSOR and XXXXXX agree to amend the terms of the LEASE
as follows:
Description of the Leased Preemies: The premises located at 00 Xx. Xxxxx Avenue,
Framingham, Massachusetts 01701, as shown on plan (Lease Exhibit C) attached
hereto and made a part hereof (hereinafter the "Leased Premises"). The Leased
premises contain approximately Twelve Thousand Six Hundred Seventeen (12,617)
rentable square feet (hereinafter the "Total Floor Area of the Leased
Premises").
Annual Fixed Rent for the Lease Term: Two Hundred Fourteen Thousand Four Hundred
Eighty Eight and 00/100 Dollars ($214,488.00) annually, Seventeen Thousand Eight
Hundred Seventy-Four and 00/100 ($17,874.00) monthly commencing July 1, 1998 for
the remainder of the initial Lease Term, which includes Xxxxxx's electricity
charge for the Leased Premises.
As used in this Lease, Lease Year shall mean a period of 12 calendar months,
with the first Lease Year to commence upon the Lease Commencement Date and end
upon the anniversary thereof, and with successive Lease Years continuing for
twelve (12) month intervals thereafter until the Lease Termination Date.
Unless modified herein, all other terms and conditions of the LEASE remain in
full force and effect.
Executed as of the 29th. day of June, 1998
LESSOR: PERINI CORPORATION
By: /s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx
----------------------------- -----------------------------
Signature Print or type name
June 29, 1998
----------------------------- -----------------------------
Title X.X. Xxxxxx Land & Date
Development Co.
LESSEE: MAKER COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXXX Xxxxxxx Xxxxxx
----------------------------- -----------------------------
Signature Print or type name
Vice President & CFO June 29, 1998
----------------------------- -----------------------------
Title Date
[FLOOR PLAN]
[GRAPHIC OMITTED]
|_| GROUP EXECUTIVE
|_| SAFETY
|_| CORPORATE DEVELOPMENT
Perini Corporation
Third Amendment to Commercial Lease
Reference is made to a Lease dated May 6, 1997, the First Lease Amendment dated
December 18, 1997 and the Second Lease Amendment dated June 29, 1998, between
Perini Corporation, a Massachusetts Corporation with a usual place of business
at 00 Xxxxx Xxxxx Xxxxxx, X0 Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000-9160,
hereinafter called LESSOR, and Maker Communications, Inc. 000 Xxxxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called LESSEE;
Now therefore both the LESSOR and XXXXXX agree to amend the terms of the LEASE
as follows:
Description of the Leased Premises: The premises located at 00 Xx. Xxxxx Avenue,
Framingham, Massachusetts 01701, as shown on plan (Lease Exhibit D) attached
hereto and made a part hereof (hereinafter the "Leased Premises"). The Leased
premises contain approximately Eighteen Thousand Four Hundred Ninety-Eight
(18,498) rentable square feet (hereinafter the "Total Floor Area of the Leased
Premises").
Annual Fixed Rent for the Lease Term: Three Hundred Fourteen Thousand Four
Hundred Sixty-Six and 00/100 Dollars ($314,466.00) annually, Twenty-Six Thousand
Two Hundred Five and 50/100 Dollars ($26,205.50) monthly commencing January 1,
1999 for the remainder of the initial Lease Term, which includes Tenant's
electricity charge for the Leased Premises.
As used in this Lease, Lease Year shall mean a period of 12 calendar months,
with the first Lease Year to commence upon the Lease Commencement Date and end
upon the anniversary thereof, and with successive Lease Years continuing for
twelve (12) month intervals thereafter until the Lease Termination Date.
38. Additional Provisions.
(C) Deleted
(d) Right of First Refusal LESSOR shall provide LESSEE with the First Right of
Refusal as long as LESSEE is not in default of the Lease, LESSOR shall grant to
LESSEE a First Right of Refusal on 6,612 square feet of space on the first floor
as marked on Exhibit E, option space. The rental rate for the option space shall
be $17.00 per square foot. This First Right of Refusal must be accepted by
LESSEE within 15 days of notification from LESSOR, that the space is available.
If the LESSEE decides not to take the additional space this Right of First
Refusal will terminate upon the expiration of the 15 day acceptance period.
Unless modified herein, all other terms and conditions of the LEASE remain in
full force and effect.
Executed as of the 8th day of December, 1998
LESSOR: PERINI CORPORATION
By: /s/ XXXXXXX X. XXXX Xxxxxxx X. Xxxx
----------------------------- -----------------------------
Signature Print or type name
December 15, 1998
----------------------------- -----------------------------
Title X.X. Xxxxxx Corp Date
LESSEE: MAKER COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXXX Xxxxxxx Xxxxxx
----------------------------- -----------------------------
Signature Print or type name
Vice President & CFO December 8, 1998
----------------------------- -----------------------------
Title Date
EXHIBIT "D"
THIRD LEASE AMENDMENT
PERINI CORP. & MAKER COMMUNICATIONS
[GRAPHIC OMITTED]
18,498 Sq. Ft. SECOND FLOOR
|_| GROUP EXECUTIVE
|_| SAFETY
|_| CORPORATE DEVELOPMENT
|_| LEGAL
|_| CORPORATE CONTROLLER
|_| INTERNAL AUDIT
|_| GENERAL EXECUTIVE
|_| CORPORATE FINANCE
|_| TAX
|_| TREASURY
|_| HUMAN RESOURCES
|_| ACCOUNTING DEPARTMENT
|_| PAYROLL
EXHIBIT "E"
THIRD LEASE AMENDMENT
PERINI CORP. & MAKER COMMUNICATIONS
[GRAPHIC OMITTED]
6,612 Sq. Ft. FIRST FLOOR
|_| GROUP EXECUTIVE
|_| SAFETY
|_| CORPORATE DEVELOPMENT
|_| LEGAL
|_| CORPORATE CONTROLLER
|_| INTERNAL AUDIT
