EXHIBIT 10.2


 


Purchase Agreement


 


This PURCHASE AGREEMENT (this “Purchase Agreement”)
is made this 31st day of October, 2007 between Momenta Pharmaceuticals, Inc. (“Seller”)
and Alnylam Pharmaceuticals, Inc. (“Buyer”).


 


WHEREAS, Seller is the subtenant under that certain
sublease dated as of September 8, 2006 (the “Sublease”) with Archemix
Corp., as sublandlord (“Sublandlord”) with respect to approximately
22,364 rentable square feet (the “Subleased Premises”) located on the
second floor of the Building located at 300 Third Street, Cambridge,
Massachusetts (the “Building”). A true copy of the Sublease is attached
hereto as Exhibit A-1.


 


WHEREAS, Sublandlord, as tenant, and ARE-MA Region No.
28, LLC (successor-in-interest to Three Hundred Third Street L.L.C.) as
landlord (“Landlord”) are parties to that certain Lease dated April 11,
2005, as amended by that certain First Amendment to Lease dated July 9, 2006
and that certain Second Amendment to Lease dated October 31, 2007 (as amended,
the “Overlease”).


 


WHEREAS, Seller, Sublandlord and Landlord are parties
to that certain Consent to Sublease dated as of October 23, 2006 (the “Sublease
Consent”). A true copy of the Sublease Consent is attached hereto as Exhibit
A-2. The Sublease and the Sublease Consent are collectively referred to as
the “Sublease Documents”.


 


WHEREAS, Seller is in the process of completing
Subtenant’s Work (as defined in the Sublease) to prepare the Subleased Premises
for Seller’s use and occupancy.


 


WHEREAS, the Subtenant’s Work is being completed by
F.L. Caulfield & Sons, Inc. (the “General Contractor”) pursuant to
an agreement dated as of May 2, 2007, as modified by three Prime Contract
Change Orders dated July 10, 2007, August 27, 2007 and October 1, 2007 (as so
modified, the “Construction Contract”). A true copy of the Construction
Contract is attached hereto as Exhibit B.


 


WHEREAS, the Subtenant’s Work is shown on construction
plans and specifications (the “Drawings”) prepared by Olson Lewis Dioli
& Doktor, Architects & Planners Incorporated (the “Architect”)
pursuant to a fee proposal agreement dated October 4, 2006, as modified by
letter agreement dated August 19, 2007 (as so modified, the “Architect
Contract”). A complete list of the Drawings is attached hereto as Exhibit
C, and a true copy of the Architect Contract is attached hereto as Exhibit
D.


 


WHEREAS, Seller has purchased the items of equipment
and furniture for the Subleased Premises itemized on Exhibit E-1
attached hereto (the “Equipment”), and has ordered various additional
items of equipment and furniture for the Subleased Premises as shown on the
purchase orders (the “Purchase Orders”), true copies of which are
attached hereto as Exhibit E-2.


 


WHEREAS, Seller holds the permits and approvals (the “Approvals”)
relating the Subtenant’s Work listed on Exhibit F attached hereto.


 


WHEREAS, as of the Effective Date (as defined in
Section 2.4 herein), Seller wishes to assign to Buyer, and Buyer wishes to
assume from Seller, all Seller’s rights under the Sublease Documents, the
Construction Contract, the Drawings, the Architect Agreement, the Equipment,
the Purchase Orders, the Approvals, together with all Seller’s rights to
insurance benefits, claims against third parties, and rights to deposits and
refunds (other than the security deposit paid to Sublandlord under the
Sublease) in connection with the foregoing (collectively, the “Purchased
Assets”) upon the terms and conditions set forth herein. Notwithstanding
the foregoing, the Purchased Assets do not include, and Seller reserves all rights
to, any proceeds from the claim made by Seller to the General Contractor for
reimbursement in the amount of $14,527.23 paid by Seller to Sublandlord for
sprinkler valve damage incurred during the performance of the Subtenant’s Work.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer
agree as follows:


 


1.                                       Purchase and Sale.  Seller
agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the
Purchased Assets. Notwithstanding the foregoing, as between
Buyer and Seller, the transfer of the Purchased Assets pursuant to this
Purchase Agreement shall not include the assumption of any liability or
obligation related to the Purchased Assets unless Buyer expressly assumes that
liability or obligation pursuant to Section 2.1.


 


2.                                       Purchase Price and Assumption of
Obligations.  In consideration of the purchase and sale
described in Section 1, Buyer shall, on the Effective Date:


 


 

















 


2.1                                 Assumption
of Obligations.  Assume and perform
Seller’s obligations under the Sublease Documents (in accordance with the terms
of the Sublease Assignment and Amendment (as defined in Section 3.1.1 herein)),
the Construction Contract, the Drawings, the Architect Agreement, the Purchase
Orders, and the Approvals arising on or after the Effective Date (but excluding
any liability or obligation arising out of or relating to a breach of or
default by Seller under any of Seller’s obligations under the Construction
Contract, the Drawings, the Architect Agreement, the Purchase Orders, and the
Approvals that occurred before the Effective Date), and no other liabilities or
obligations of Seller, whether fixed or contingent (subject, however, to the
terms of the Sublease Assignment and Amendment).  In addition, Buyer shall be responsible for
all “Rent” payable under the Sublease Documents relating to the period (the “Rent
Assumption Period”) on or after May 1, 2007 through the Effective
Date.  The Purchase Price (as defined in
Section 2.3 herein) includes all “Rent” with respect to the Rent Assumption
Period paid by Seller to Sublandlord as of the Effective Date.  In the event that after the Effective Date,
Seller shall make additional payments  to
Sublandlord or Landlord with respect to adjustments in “Rent” pursuant to the
Sublease Documents including, but not limited to, payments regarding
recalculation of estimated operating expenses or real estate taxes,  and such 
payments relate to the Rent Assumption Period, Buyer agrees to reimburse
Seller for such payments, which such obligation shall survive the Effective
Date.   Notwithstanding anything to the
contrary in this Purchase Agreement or any other document, as to Sublandlord,
if there shall be any conflict or inconsistency between the terms, covenants
and conditions of this Purchase Agreement and the terms, covenants and
conditions of the Sublease Assignment and Amendment), then the terms, covenants
and conditions of the Sublease Assignment shall control and prevail.


 


For clarity and without limitation, as between Buyer
and Seller, the following shall remain the sole responsibility of
and shall be retained, paid, performed and discharged solely by Seller:


 


(a)                                  any Environmental, Health and
Safety Liabilities arising out of or relating to Seller’s subleasing or
operation of the Subleased Premises, or Seller’s ownership of the Purchased
Assets;


 


(b)                                 any liability or obligation arising out of
or resulting from Seller’s compliance or noncompliance with any applicable law
or order of any governmental authority;


 


(c)                                  any liability or obligation for taxes,
including (i) any taxes arising as a result of Seller’s ownership of the
Purchased Assets prior to the Effective Date, (ii) any taxes that will arise as
a result of the sale of the Purchased Assets pursuant to this Agreement and
(iii) any deferred taxes with respect to the foregoing;


 


(d)                                 any
liability or obligation of Seller under this Purchase Agreement; and


 


(e)                                  any
liability or obligation of Seller based upon Seller’s acts or omissions
occurring on or after the Effective Date.


 


2.2                                 Condition of Certain Purchase Assets. 
Buyer has had the opportunity to inspect and evaluate the condition of
the Subleased Premises, the construction of the Subtenant’s Work, the Drawings
and the Equipment, and agrees to accept the same on the Effective Date in their
“AS-IS” condition. Notwithstanding anything to the contrary in this Purchase
Agreement or any instrument delivered pursuant to this Purchase Agreement
(including Exhibits H-1, H-2, H-3, H-4 H-5, H-6 and H-7), (i) Buyer shall have
no claim against Seller, and hereby releases Seller from the same, for any
deficiencies in the condition of the Subleased Premises, the construction of
the Subtenant’s Work, the Drawings or the Equipment, except to the extent said
deficiencies are caused by Seller’s negligence or willful misconduct; and (ii)
Buyer shall have no claim against Sublandlord, and hereby releases Sublandlord
from the same, for any deficiencies in the condition of the Subleased Premises
and the construction of the Subtenant’s Work. For clarification, Buyer is not
hereby releasing Sublandlord for any deficiencies in the condition of the
Subleased Premises to the extent said deficiencies first arise after the
Effective Date (except, however, to the extent such deficiencies arise from the
construction of the Subtenant’s Work, the Drawings or the Equipment, for which
deficiencies, Buyer hereby releases Sublandlord entirely).


 


2.3                                 Cash Payment. Pay Seller $4,430,548.23 in good U.S.
funds (the “Purchase Price”). The Purchase Price is detailed on Exhibit
G attached hereto.


 


2.4                                 Definitions.


 


2.4.1                         “Effective Date” shall have the same meaning
as such term has under the Sublease Assignment and Amendment (as defined in
Section 3.1.1 herein).


 


2.4.2                        “Environmental, Health and Safety Liabilities”
means any cost, damages, expense, liability, obligation or other responsibility
arising from or under any Environmental Law or Occupational Safety and Health
Law.


 


2.4.3                        “Environmental Law” means any federal, state or
local laws, rules, regulations, directives, orders, decrees, judgments, and the
like relating to pollution or protection of human health, safety or the
environment, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., as amended


 


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(CERCLA), the Resource Conservation and Recovery Act,
as amended 42 U.S.C. 6901 et seq., the Clean Water Act, 33 U.S.C. 1251 et seq.,
the Clean Air Act, 42 U.S.C. 7401 et seq., the Toxic Substance Control Act, 15
U.S.C. 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. 300f through 300j,
the Massachusetts Oil and Hazardous Material Release Prevention and Response
Act of 1993, and Massachusetts General Laws, Chapter 21E, as amended, and the
regulations promulgated thereunder.


 


2.4.4                        “Hazardous Activity” means the distribution,
generation, handling, importing, management, manufacturing, processing,
production, refinement, release, storage, transfer, transportation, treatment
or use (including any withdrawal or other use of groundwater) of Hazardous
Material at the Subleased Premises or any part thereof into the environment and
any other act, business, operation or thing that increases the danger, or risk
of danger, or poses an unreasonable risk of harm, to persons or property on or
off the Subleased Premises.


 


2.4.5                        “Hazardous Material” means any substance,
material or waste which is regulated by any governmental authority, including
any material, substance or waste which is defined as a “hazardous waste,” “hazardous
material,” “hazardous substance,” “extremely hazardous waste,” “restricted
hazardous waste,” “contaminant,” “toxic waste” or “toxic substance” under any
provision of Environmental Law, and including petroleum, petroleum products,
asbestos, presumed asbestos-containing material or asbestos-containing
material, urea formaldehyde and polychlorinated biphenyls.


 


2.4.6                        “Occupational Safety and Health Law” means any
applicable law designed to provide safe and healthful working conditions and to
reduce occupational safety and health hazards, including the Occupational
Safety and Health Act, and any program, whether governmental or private (such
as those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.


 


2.4.7                        “Knowledge of Seller” or words to that effect
means the actual knowledge of Richard P. Shea, Chief Financial Officer.


 


3.                                       Conditions.


 


3.1                               Assignments. 
On the Effective Date, Seller and Buyer shall execute and deliver the
following instruments:


 


3.1.1                        Assignment, Assumption and Consent
Agreement; and First Amendment to Sublease in the form of Exhibit H-1
attached hereto (“Sublease Assignment and Amendment”);


 


3.1.2                        Assignment and Assumption of Construction
Contract in the form of Exhibit H-4 attached hereto;


 


3.1.3                        Assignment and Assumption of Architect
Contract in the form of Exhibit H-5 attached hereto;


 


3.1.4                        Bill of Sale in for the Equipment in the
form of Exhibit H-6 attached hereto; and


 


3.1.5                        Assignment and Assumption of Purchase
Orders in the form of Exhibit H-7 attached hereto.


 


3.2                               Third Party Consents. 
On the Effective Date, Seller shall deliver to Buyer consents or
approvals of (i) the Sublandlord pursuant to the Sublease Assignment and
Amendment (i.e. Exhibit H-1), (i) the Landlord pursuant to the form of
consent attached hereto as Exhibit H-2, (iii) the General Contractor
pursuant to the form of consent included as part of Exhibit H-4, and the
Architect pursuant to the form of consent included as part of Exhibit H-5
to consummate the transactions contemplated hereby and transfer each and all of
the Purchased Assets in conformity with this Purchase Agreement. Except as
provided in Section 3.6 herein, Seller shall be responsible for any fees
payable to such third parties to obtain their consents and/or approvals.


 


3.3                               Sublease Amendment; Overlease Amendment. 
On the Effective Date, Buyer shall have obtained (i) from the
Sublandlord (with the written consent of the Landlord), the amendment to the
Sublease as contained in the Sublease Assignment and Amendment; and (ii) from
Landlord and Sublandlord, an amendment to the Overlease as more particularly
described in that certain Second Amendment to Lease in the form attached hereto
as Exhibit H-3.


 


3.4                               Security
Deposit.  Simultaneously with the
execution of this Purchase Agreement, Buyer shall deliver to Sublandlord a
security deposit complying with Paragraph 5 of the Sublease, as amended by the
terms of the Sublease Assignment and Amendment.


 


3.5                               Deliverables. 
In addition to the foregoing, the parties to this Purchase Agreement
shall, on the Effective Date, deliver to each other such documents and
instruments as legal counsel of the parties reasonably require to consummate
the transactions contemplated hereby and evidence Buyer’s assumption of Seller’s
obligations under Subsection 2.1 herein and Seller’s transfer to Buyer of the
Purchased Assets in conformity with this Purchase Agreement.


 


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3.6                               Sublandlord’s Costs. 
Seller shall be responsible for reimbursing Sublandlord for Sublandlord’s
Costs (as defined in Section 12(g) of the Sublease Assignment and Amendment) (“Sublandlord’s
Costs”). As between Seller and Buyer only, Buyer shall then reimburse
Seller for one-third (1/3) of the aforementioned Sublandlord’s Costs, which
such obligation shall survive the Effective Date or the expiration or
termination of this Purchase Agreement; provided, however, to the
extent any such Sublandlord’s Costs relate to the Subtenant’s Work (e.g. plan
approval [including architects fees and engineering costs], overtime services,
service shutdowns, etc), Buyer shall reimburse Seller for 100% of such costs,
which such obligation shall survive the Effective Date.


 


4.                                       Representations and Warranties of Seller.


 


Seller represents and
warrants to Buyer that the following statements are true and correct.


 


4.1                                 Corporate Organization. 
Seller is a corporation duly organized, validly existing and in good
standing under the laws of Delaware.


 


4.2                                 Corporate Authority. 
Seller has all requisite corporate power and authority to enter into
this Purchase Agreement and related agreements and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Purchase Agreement and any related agreements and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action of Seller, including adoption of appropriate
resolutions by Seller’s board of directors. This Purchase Agreement and related
agreements have been duly executed and delivered by Seller and constitute the
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, subject to laws of general application
relating to the rights of creditors and to the availability of equitable
remedies.


 


4.3                                 No Defaults; Environmental Matters.


 


(a)                                  Seller is in compliance with its
obligations under the Purchased Assets and has not received any notices of
default with respect to said Purchased Assets, nor is Seller aware of any event
or conditions which, with after notice to Seller or the passage of time, or
both, would constitute a default by Seller under such Purchased Assets.


 


(b)                                 Neither Seller nor any person for whose
conduct it is or may be held responsible, or to the knowledge of Seller (having
made no independent investigation whatsoever), any other person, has permitted
or conducted any Hazardous Activity conducted with respect to the Subleased
Premises or the Purchased Assets except in full compliance with all applicable
Environmental Laws.


 


(c)                                  To the Knowledge of Seller (having made
no independent investigation whatsoever), there has been no release or, threat
of release, of any Hazardous Materials at or from the Subleased Premises or the
Purchased Assets.


 


4.4                                 Compliance with Laws. 
The execution of this Purchase Agreement and any related agreements by
Seller does not, and Seller’s performance of its obligations thereunder will
not, conflict or violate Seller’s certificate of incorporation, by-laws, any
laws applicable to Seller or by which any of its assets or properties are bound
or affected, result in any breach of or constitute a default under any
agreement, lease, license or other instrument or obligation to which Seller is
a party or by which Seller’s properties are bound or affected.


 


4.5                                 Governmental Approval. 
No governmental approval, consent or authorization is required for
Seller to enter into this Purchase Agreement and any related agreement and to
perform its obligations thereunder and consummate the transactions contemplated
hereby or thereby.


 


4.6                                 Contracts.  Seller is not
a party to any contract or agreement, written or oral, with respect to the
Subleased Premises and the Subtenant’s Work, other than the Purchased Assets.


 


4.7                                 Litigation. 
There is no private or governmental action, suit, proceeding, claim,
arbitration or investigation pending before any agency, court or tribunal, or,
to the knowledge of Seller, threatened (including allegations that could form
the basis for future legal action), against Seller or any of the Purchased
Assets.


 


4.8                                 Good Title. 
Seller has good and marketable title to, or in the case of leased
properties or assets, a valid leasehold interest in, all of the Purchased
Assets, in each case free and clear of all liens, encumbrances or claims and,
on the Effective Date, Buyer shall acquire good and marketable title to or a
valid leasehold interest in, each and all of the Purchased Assets, free and clear
of all liens, claims, and encumbrances.


 


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4.9                                 Transferability. 
Except for obtaining the third party consents described in Subsection
3.2 herein, Seller is entitled to transfer and assign all of the Purchased
Assets to Buyer without any restriction or payment of any kind to any third
party by Seller or Buyer.


 


4.10                           Taxes.  Seller has
paid all federal, state and local taxes and fees, including interest and
penalties thereon, if any, and collected, withheld and remitted to the
applicable governmental authority any taxes that it was obligated to collect,
withhold or remit, as of the Effective Date, and there are no unpaid taxes or
fees which could result in the imposition of a lien, encumbrance or claim on
the Purchased Assets or against Buyer.


 


4.11                           No Brokers or Finders. 
Seller has had no dealings with any broker or other finder with respect
to the transactions contemplated by this Purchase Agreement.


 


4.12                           Additional Representations. 
On the Effective Date, Seller shall be deemed to have made the
representations of Seller as set forth in Exhibits H-1, H-2, H-4, H-5 and H-7
attached hereto.


 


4.13                           Disclosure.  No
representation or warranty or other statement made by Seller in this Purchase
Agreement or any related agreements (including without limitation Exhibits H-1,
H-2, H-4, H-5 and H-7) contains any untrue statement or omits to state a
material fact necessary to make any of them, in light of the circumstances in
which it was made, not misleading. Seller does not have Knowledge of any fact
that has specific application to Seller (other than general economic or
industry conditions) and that may materially adversely affect the Purchased
Assets that has not been set forth in this Purchase Agreement or otherwise
disclosed to Buyer in writing.


 


5.                                       Representations and Warranties of Buyer.


 


Buyer represents to
Seller that the following statements are true and correct:


 


5.1                                 Corporate Organization. 
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Delaware.


 


5.2                                 Corporate Authority. 
Buyer has all requisite corporate power and authority to enter into this
agreement and related agreements and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this agreement
and any related agreements and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action of Buyer, including adoption of appropriate resolutions by
Buyer’s board of directors and stockholders. This agreement and related
agreements have been duly executed and delivered by Buyer and constitute the
legal, valid and binding obligations of Buyer enforceable against Buyer in
accordance with their respective terms, subject to laws of general application
relating to the rights of creditors and to the availability of equitable
remedies.


 


5.3                                 Compliance with Laws. 
The execution of this Purchase Agreement and any related agreements by
Buyer does not, and Buyer’s performance of its obligations thereunder will not,
conflict or violate Buyer’s certificate of incorporation, by-laws, any laws
applicable to Buyer or by which any of its assets or properties are bound or
affected, result in any breach of or constitute a default under any agreement,
lease, license or other instrument or obligation to which Buyer is a party or
by which Buyer’s properties are bound or affected.


 


5.4                                 Governmental Approval. 
No governmental approval, consent or authorization is required for Buyer
to enter into this Purchase Agreement and any related agreement and to perform
its obligations thereunder and consummate the transactions contemplated hereby
or thereby.


 


5.5                                 No Brokers or Finders. 
Buyer has had no dealings with any broker or other finder with respect
to the transactions contemplated by this Purchase Agreement, except for
Richards Barry Joyce & Partners. Buyer shall be responsible for fees
payable to Richards Barry Joyce & Partners with respect to such engagement
(the “Broker’s Fee”). Buyer represents to Seller that the Broker’s Fee
is $89,456.00. Seller shall reimburse Buyer for one-half (1/2) of the Broker’s
Fee as a credit against the Purchase Price.


 


6.                                       Post-Closing Agreements.


 


Following the Effective
Date,


 


6.1.                              Further Assurances. The parties shall execute such further
documents, and perform such further acts, as may be necessary to transfer and
convey the Purchased Assets to Buyer on the terms herein contained and
otherwise to comply with the terms of this agreement and consummate the transactions
contemplated hereby.


 


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6.2                                 Transfer Taxes. 
Seller shall be responsible for and shall pay any and all transfer
taxes, use, value-added, documentary, recordation or other similar taxes in
connection with the transfer of the Purchased Assets as contemplated by this
Purchase Agreement.


 


7.                                       Indemnification.


 


7.1                                 Survival.  Buyer’s and
Seller’s representations and warranties in this agreement shall survive the
Effective Date.


 


7.2                                 Indemnification of Buyer. 
From and after the Effective Date, Seller shall indemnify and hold
harmless Buyer and its stockholders, directors, officers, employees, agents,
and attorneys and shall reimburse them for, any third-party claim, liability,
loss, damage, or expense (including reasonable attorneys’ fees and expenses)
paid or reasonably incurred by them as a result of any material breach of any
representation, warranty, agreement or covenant of Seller under this Purchase
Agreement or any related agreements, or arising out of the ownership or
operation of the Purchased Assets or the Subleased Premises prior to the
Effective Date, or relating to any liability or obligation not assumed by Buyer
under Subsection 2.1 hereof.


 


7.3                                 Indemnification of Seller. 
From and after the Effective Date, Buyer shall indemnify and hold
harmless Seller and its stockholders, directors, officers, employees, agents,
and attorneys and shall reimburse them for, any third-party claim, liability,
loss, damage, or expense (including reasonable attorneys’ fees and expenses and
the costs of investigation) paid or reasonably incurred by them as a result of
any material breach of any representation, warranty, agreement or covenant on
the part of Buyer under this Purchase Agreement or any related agreements, or
arising exclusively out of the ownership or operation by Buyer of the Purchased
Assets or the Subleased Premises on or after the Effective Date, or arising
from any liabilities assumed by Buyer under Subsection 2.1 hereof.


 


8.                                       Miscellaneous.


 


8.1                                 Notices.  All notices
or other communications required or given hereunder shall be in writing and
shall be deemed duly given if delivered in person (with receipt therefor), or
if sent by certified or registered mail, return receipt requested, postage
prepaid, to the following addresses: (i) if to Seller, to Richard P. Shea, CFO,
Momenta Pharmaceuticals, Inc., 675 W. Kendall Street, Cambridge, MA 02142, with
a copy to General Counsel, Momenta Pharmaceuticals, Inc., 675 W. Kendall
Street, Cambridge, MA 02142 and to Jonathan E. Book, Esq., Foley Hoag LLP, 155
Seaport Boulevard, Boston, MA 02210 and (ii) if to Buyer, to Philip T. Chase,
Esq., General Counsel, Alnylam Pharmaceuticals, Inc., 300 Third Street,
Cambridge, MA 02142, with a copy to Joseph L. Faber, Esq., Faber Daeufer &
Rosenberg PC., 950 Winter Street, Waltham, MA 02451 . Either party may change
its address for the giving of notices by notice given in accordance with this
section.


 


8.2                                 No Third Party Beneficiary. 
This Purchase Agreement and any related agreement are not intended to
confer upon any other person any rights or remedies, except for any right to
indemnification that a person may have pursuant to Subsections 7.2 or 7.3
hereof.


 


8.3                                 Choice of Law. 
This Purchase Agreement shall be governed by and construed in accordance
with the laws of Massachusetts without regard to applicable principles of
conflict or choice of law.


 


8.4                                 Amendments and Waivers. 
No amendment of any provision in this Purchase Agreement shall be valid,
unless in writing and signed by the party to be charged. No failure or delay on
the part of any party to exercise any rights under this Purchase Agreement
shall operate or imply a waiver thereof, unless in a writing signed by the
party to be charged.


 


8.5                                 Final and Binding Arbitration. 
Any dispute arising solely between Seller and Buyer from or relating to
this Purchase Agreement or any related agreement or the transactions
contemplated hereby or thereby shall be resolved exclusively and finally by
arbitration pursuant to the rules for commercial arbitration of the American
Arbitration Association, and judgment upon any arbitral award may be entered in
any court of competent jurisdiction. No such arbitral award may include
exemplary, punitive or statutory damages or legal fees or expenses of any
party.


 


8.6                                 Coordination of Publicity.       Except
for disclosures required by Securities and Exchange Commission regulations or
other applicable Federal, state or local law, Buyer and Seller agree to
coordinate any publicity or other public disclosure of the transactions
contemplated under this Purchase Agreement.


 


{Signatures Follow}


 


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IN WITNESS WHEREOF, the
parties hereto have executed this agreement as of the date first written above.


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  ALNYLAM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Patricia Allen

  	
   

  
	
   

  	
  Name: Patricia Allen

  
	
   

  	
  Title:     VP, Finance,
  duly authorized

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  MOMENTA PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/  Richard P. Shea

  	
   

  
	
   

  	
  Richard P. Shea,
  its Vice President, Treasurer and

  
	
   

  	
  Chief Financial
  Officer, duly authorized

  



 


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EXHIBIT A-1


 


Copy of Sublease


 


SUBLEASE


 


This Sublease (the “Sublease”)
is made as of September 8, 2006 by and between Archemix Corp., a Delaware
corporation, having an address of 300 Third Street, Cambridge, Massachusetts
02142 (“Sublandlord”) and Momenta Pharmaceuticals, Inc., a Delaware
corporation, having an address of 675 West Kendall Street, Cambridge, MA 02142
(“Subtenant”).


 


W
I  T  N  E  S  S  E  T  H:


 


A.                                   Three
Hundred Third Street L.L.C., predecessor-in-interest to ARE-MA Region No. 28,
LLC, a Delaware limited liability company (“Landlord”), as landlord, and
Sublandlord, as tenant, entered into a Lease dated April 11, 2005, as amended
by (i) that First Amendment to Lease dated July 9, 2006, between Sublandlord
and Landlord (collectively, the “Overlease”), pursuant to which Sublandlord
leases approximately 67,451 rentable square feet of space (the “Premises”)
located on the first, second and P-1 and P-2 levels of the building known as
300 Third Street, Cambridge, Massachusetts (the “Building”). A partially
redacted copy of the Overlease is attached hereto and incorporated herein as “Exhibit
A”;


 


B.                                     Subtenant
desires to sublease from Sublandlord and Sublandlord desires to sublease to
Subtenant, a portion of the Premises as identified on “Exhibit B” attached
hereto and incorporated herein (hereinafter referred to as the “Subleased
Premises”), which Subleased Premises shall consist of approximately 22,364
rentable square feet located on a portion of the second floor of the Building
as set forth on attached “Exhibit B”.


 


NOW, THEREFORE, in
consideration of the mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:


 


1.  DEMISE OF SUBLEASED PREMISES.  Sublandlord hereby demises and subleases to
Subtenant, and Subtenant hereby hires and takes from Sublandlord, the Subleased
Premises for the term and upon the conditions hereinafter set forth, in “AS IS,
WHERE IS” condition, subject to the completion of Sublandlord’s Work (as
hereinafter defined), together with the right to use, on a non-exclusive basis,
the lavatories, hallways, lobbies and other common elements of the Building
and/or the Premises appurtenant to the Subleased Premises. If Subtenant desires
additional premises for purposes of solvent storage or waste neutralization (“Storage
Space”), Subtenant shall notify Sublandlord in writing thereof and Sublandlord
shall cooperate with Subtenant and use commercially reasonable efforts to lease
from Landlord such Storage Space desired by Subtenant and to thereupon sublease
same to Subtenant. Subtenant shall be responsible for all Fixed Rent and
Additional Rent charged by Landlord applicable to any Storage Space.  Notwithstanding the foregoing, the securing
of such Storage Space by Sublandlord shall not be a condition to the
effectiveness of this Sublease. If Subtenant does not elect to lease any
Storage Space, then Sublandlord shall cooperate with Subtenant to share a
portion of Sublandlord’s waste neutralization and solvent storage areas located
within Sublandlord’s Premises to accommodate Subtenant’s reasonable
requirements, subject to Sublandlord’s reasonable requirements for Sublandlord’s
operations. Subtenant agrees to pay its proportionate share of the costs
thereof.


 


2.
TERM.                                            (a)
 Initial
Term.  The initial term of
this Sublease (the “Term”) shall commence on the later to occur of (i) the date
of this Sublease, (ii) the date on which Landlord’s written consent to this
Sublease is obtained and delivered to Subtenant, and (iii) the date on which
Sublandlord delivers possession of the Subleased Premises to Subtenant (the “Commencement
Date”). Notwithstanding the foregoing, in the event such Landlord’s consent to
this Sublease is not obtained in accordance with Section 15 herein and
possession of the Subleased Premises delivered to Subtenant on or before the
date which is sixty (60) days following the date of Sublandlord’s execution of
this Sublease, then either party shall have the right to cancel this Sublease
on fifteen (15) days written notice to the other (the “Cancellation Notice”) and with the giving of such notice, this
Sublease shall be deemed canceled and no further force or effect and neither
party shall have any liability or obligation to the other in respect thereof.
Notwithstanding the foregoing, if within fifteen (15) days after the giving of
the Cancellation Notice, Landlord’s consent is received and possession of the
Subleased Premises delivered to Subtenant, then the Cancellation Notice shall
be deemed null and void and this Sublease shall continue in full force and
effect. The Term shall of this Sublease shall end on April 30, 2011 (the “Expiration
Date”), as it may be extended hereunder, or shall end on such earlier date upon
which such term may expire or be terminated pursuant to the provisions hereof
or pursuant to law. The Term and any extension thereof in accordance with the
provisions of this Sublease is referred to as the “Term”.


 


                                                (b)                                 Extended Term.  Provided that, at the time Subtenant elects
to exercise the option herein granted, (i) this Sublease is in full force and
effect, (ii) Subtenant is not in default beyond any applicable notice and grace
periods hereunder, and (iii) Subtenant or an Affiliated Transferee (as defined
in Section 16.B of the Overlease) is occupying all of the Subleased Premises,
Subtenant shall have the option, upon written notice to Sublandlord (“Subtenant’s
Extension Notice”) given not less than six (6) months prior to the expiration
of the Expiration Date, to extend the Term of this Sublease for an additional
four (4) year period (the “Extended Term”)


 


1

















 


expiring
on April 30, 2015, subject to Sublandlord’s Termination Option and Subtenant’s
Termination Option (as such terms are hereinafter defined). The Extended Term
shall commence immediately following the end of the initial Term hereof. All
terms and conditions applicable during the initial Term shall apply during the
Extended Term including without limitation the obligation of Subtenant to pay
Fixed Rent and its Pro Rata Share of Operating Expenses and Taxes except that
(x) Subtenant shall have no further right to extend this Sublease beyond the
Extended Term hereinabove provided, (y) there shall be no tenant improvement
allowance, and (z) such Extended Term shall be subject to the parties’
Termination Options.


 


(c)                                  Sublandlord’s Termination Option.
From and after the earlier to occur of (i) the date of Subtenant’s Extension
Notice, if any, and (ii) October 1, 2010 and continuing through the Term as
such Term may be extended, Sublandlord shall have the right to terminate this
Sublease (“Sublandlord’s Termination Option”) as follows:


 


(i)
where Subtenant has delivered to Sublandlord Subtenant’s Extension Notice as
hereinabove provided, upon delivery of written notice to Subtenant within
thirty (30) days following the date of Sublandlord’s receipt of Subtenant’s
Extension Notice, which termination shall be effective upon the Expiration Date
hereof; or


 


(ii)
where Subtenant has delivered to Sublandlord Subtenant’s Extension Notice as
hereinabove provided, and Sublandlord has failed to deliver written notice to
Subtenant within such thirty (30) day period as provided in subsection (i)
above, upon delivery of written notice to Subtenant, which termination shall be
effective on a date specified in Sublandlord’s notice which shall be not less
than nine (9) months following the date of such notice (“Sublandlord’s Early
Termination Date”).


 


If
Sublandlord exercises Sublandlord’s Termination Option under subsection (i)
above, then (i) all rent payable under this Sublease shall be paid and
apportioned as of the Expiration Date; (ii) neither party shall have any
rights, estates, liabilities, or obligations under this Sublease for the period
accruing after Expiration Date, except those which are incurred, have accrued
or relate to the period prior to Expiration Date, and (iii) Subtenant shall surrender
and vacate the entire Subleased Premises and deliver possession thereof to
Sublandlord on or before the Expiration Date in the condition required under
both this Sublease and the Overlease.


 


If
Sublandlord exercises Sublandlord’s Termination Option under subsection (ii)
above, then (i) all rent payable under this Sublease shall be paid and
apportioned as of the Sublandlord’s Early Termination Date; (ii) neither party
shall have any rights, estates, liabilities, or obligations under this Sublease
for the period accruing after Sublandlord’s Early Termination Date, except
those which are incurred, have accrued or relate to the period prior to
Sublandlord’s Early Termination Date, and (iii) Subtenant shall surrender and
vacate the entire Subleased Premises and deliver possession thereof to
Sublandlord on or before Sublandlord’s Early Termination Date in the condition
required under both this Sublease and the Overlease.


 


(d)                                 Subtenant’s Termination Option.  Provided that Subtenant is not in default
under this Sublease beyond any applicable notice and grace periods on either
the date Subtenant exercises Subtenant’s Termination Option (as hereinafter
defined) or, or unless waived in writing by Sublandlord, on Subtenant’s Early
Termination Date (as hereinafter defined), after the earlier to occur of (i)
the date of Subtenant’s Extension Notice, if any, and (ii) October 1, 2010, and
continuing through the Term as such Term may be extended, Subtenant shall have
the right to terminate this Sublease upon the giving of nine (9) months’ prior
written notice to Sublandlord (“Subtenant’s Termination Option”), which
termination shall be effective on the date that is nine (9) months following
the date of such written notice to Sublandlord (“Subtenant’s Early Termination
Date”). If Subtenant exercises Subtenant’s Termination Option, then (i) all
rent payable under this Sublease shall be paid and apportioned as of the
Subtenant’s Early Termination Date; (ii) neither party shall have any rights,
estates, liabilities, or obligations under this Lease for the period accruing
after Subtenant’s Early Termination Date, except those which are incurred, have
accrued or relate to the period prior to Subtenant’s Early Termination Date,
and (iii) Subtenant shall surrender and vacate the entire Subleased Premises
and deliver possession thereof to Sublandlord on or before Subtenant’s Early
Termination Date in the condition required under both this Sublease and the
Overlease.


 


(e)                                  Notwithstanding
anything to the contrary contained herein, in no event shall the exercise of
Subtenant’s Termination Option or Sublandlord’s Termination Option cause the
Sublease Term to terminate prior to April 30, 2011.


 


2

















 


3.  SUBORDINATION TO AND INCORPORATION OF THE
OVERLEASE.


 


                                                (a)  This Sublease is in all respects subject and
subordinate to the terms and conditions of the Overlease and to the matters to
which the Overlease, including any amendments thereto, is or shall be
subordinate. Subtenant agrees that Subtenant has reviewed and is familiar with
the Overlease and the Sublease, and will not do or suffer or permit anything to
be done which would result in a default or breach (whether or not subject to
notice or grace periods) on the part of Sublandlord under the Overlease or
cause the Overlease to be terminated. Sublandlord agrees that it will not (i)
do or suffer or permit anything to be done which would result in a default or
breach under the Overlease or cause the Overlease to be terminated, or (ii)
modify or amend the Overlease, or take any other action which results in the
modification, surrender or cancellation of Overlease to the extent such
modification, surrender or cancellation decreases any of Subtenant’s rights
under this Sublease or increases any of Subtenant’s obligations under this
Sublease, without the prior written consent of Subtenant. If, however, the
Overlease is terminated prior to its scheduled expiration for any reason
whatever, this Sublease shall likewise terminate, without further notice.


 


(b)  Except as otherwise expressly provided in
this Sublease, the terms, covenants, conditions, rights, obligations, remedies
and agreements of the Overlease are incorporated into this Sublease by
reference and made a part hereof as if fully set forth herein and shall
constitute the terms of this Sublease, mutatis, mutandis,
Sublandlord being substituted for “Landlord” thereunder, Subtenant being
substituted for “Tenant” thereunder and “Subleased Premises” being substituted
for “Premises” thereunder, except to the extent that such terms do not relate to
the Subleased Premises or are inapplicable to, or specifically inconsistent
with the terms of this Sublease, it being understood and agreed that
Sublandlord will not be acting as, or assuming any of the responsibilities of,
Landlord, and all references in the Overlease to Landlord-provided services or
Landlord insurance requirements, and any other references which by their nature
relate to the owner or operator of the Building, rather than to a tenant of the
Building subleasing space to a subtenant, shall continue to be references to
Landlord and not to Sublandlord. All capitalized terms used and not otherwise
defined herein shall have the same meaning as set forth in the Overlease.


 


(c)  The following provisions of the Overlease
shall not be incorporated herein by reference and are expressly excluded from
the terms of this Sublease: any redacted portions of the Overlease, Article 1
(clauses A - N, P, Q & S), Article 2 [Premises, Term and Commencement
Date], Article 3 [Rent], Article 5(A) and (B) [Tenant’s Work/Alterations and
Additions], Article 12(E) [Signs], the second and third sentences of Article
12(G) [Condition of Premises], Article 16(C) [Recapture], Articles 23(e) and
(h) [Security Deposit], 24 [Brokerage Commission], 28(A), (B), (C), (E), (G) and
(H) [Additional Rights Reserved By Landlord], 30(C) [Notices], 30(J)
[Limitation of Liability], 30(K) [Memorandum of Lease], 30(Z) [Dispute
Resolution], 31 [Right of First Refusal], 32 [Right of First Option], 33
[Termination Option], 34 [Generator], Attachment No. 1 to Exhibit B, Exhibit C
and attachments thereto [Workletter], Exhibit F [Generator Space], Exhibit E
[Rent Commencement Date Confirmation], Exhibit G [Tenant’s List of Hazardous
Materials], and Exhibit K [Flammables License Application].


 


(d)                               For the purposes of incorporation herein, the terms of the Overlease are
subject to the following additional modifications:


 


(i)                                     In all provisions of the Overlease (under the terms thereof and without
regard to modifications thereof for purposes of incorporation into this
Sublease) requiring the approval or consent of Landlord, Subtenant shall be
required to obtain the approval or consent of both Sublandlord (which approval
or consent of Sublandlord shall not be unreasonably withheld, conditioned or
delayed) and Landlord.


 


(ii)                                In all provisions of the Overlease requiring the tenant to submit,
exhibit to, supply or provide Landlord with evidence, certificates, or any
other matter or thing, Subtenant shall be required to submit, exhibit to,
supply or provide, as the case may be, the same simultaneously to both Landlord
and Sublandlord. In any such instance, Sublandlord shall reasonably determine
if such evidence, certificate or other matter or thing shall be satisfactory.


 


(iii)                                Notwithstanding anything to the contrary contained in Article 10 or
Article 11 of the Overlease, Sublandlord shall have no obligation to restore or
rebuild any portion of the Subleased Premises after any destruction or taking
by eminent domain.


 


(iv)                            Sublandlord shall not be deemed to have made any of Landlord’s
representations, warranties and indemnities under the Overlease (provided,
however, that to the extent permitted under the Overlease, or as otherwise
consented to by Landlord, Sublandlord hereby assigns to Subtenant the third
party benefits of such representation, warranties and indemnities of Landlord
and the right to enforce same, provided, however, that Sublandlord shall also
retain the rights to enforce such representations, warranties and indemnities).


 


(v)                                 Sublandlord shall not be deemed or construed in any way to indemnify
Subtenant for any breach of Landlord under the Overlease or any other actions
or omissions of Landlord.


 


(vi)                              Section
30(T) of the Overlease shall be amended by including the following language at
the end of the paragraph: “, or to the Securities Exchange Commission or such
other entity as required by law.”


 


3
















 


4. RENT.


 


(a) Beginning on the
earlier to occur of (i) March 10, 2007 and (ii) Subtenant’s beneficial use of
the Subleased Premises for the conduct of its business, and continuing through
the Sublease Term, including any Extended Term (if applicable), Subtenant shall
pay to Sublandlord annual fixed rent (the “Fixed Rent”) per annum in the amount
of One Million Seventy-Three Thousand Four Hundred Seventy-Two and No/100
Dollars ($1,073,472.00) in advance in equal monthly installments of Eight-Nine
Thousand Four Hundred Fifty-Six and No/100 Dollars ($89,456.00), pro-rated on a
per diem basis in the case of any partial months during the Term addressed to
Sublandlord at the address set forth in this Sublease, Attn: Chief Financial
Officer, or such other address set forth in a written notice to Subtenant. Subtenant’s
Fixed Rent shall be proportionately adjusted in the event Subtenant leases any
Storage Space from Sublandlord.


 


(b)                                 Except
as otherwise set forth herein, each monthly installment shall be payable on or
before the first day of the calendar month for which such payment is made,
without notice or demand and without abatement, set-off or deduction.


 


(c)                                  In
addition to the Fixed Rent and any other sums which Subtenant may be obligated
to pay pursuant to any other provision of this Sublease, Subtenant agrees to
pay to Sublandlord as “Additional Rent” hereunder as and when such sums are due
and payable by Sublandlord under the Overlease, or as otherwise hereinafter
provided:


 


(i)  “Expense Adjustment Amount” in an amount
equal to 33.15%, (“Subtenant’s Pro Rata Share”) of the amounts payable by
Sublandlord on account of Operating Expenses and Real Estate Taxes pursuant to
Article 4(A) of the Overlease, which Subtenant’s Pro Rata Share shall be
proportionately adjusted in the event Subtenant leases any Storage Space from
Sublandlord;


 


(ii)  the cost of all utilities consumed by
Subtenant in the Subleased Premises, including but not limited to electricity,
natural gas and water, sewer, steam, fire protection, telephone and other
communication and alarm services (the “Utility Charges”). Subtenant agrees that
Subtenant’s usage of electricity and gas shall be measured by separate
sub-meter to be installed by Subtenant, and Subtenant shall pay Subtenant’s Pro
Rata Share of all other utilities supplied to the Subleased Premises and not
directly billed to Subtenant by the utility provider;


 


(iii)                               the
Parking Fee (as hereinafter defined in Section 22 hereof);


 


(iv)                              all
Subtenant Surcharges (as hereinafter defined); and


 


(v)                                 if
pursuant to Section 1 above, Subtenant leases any Storage Space, Subtenant
shall pay all Fixed Rent and Additional Rent charged by Landlord in respect of
the Storage Space (“Storage Space Charges”).


 


(d)  As used
herein, the term “Subtenant Surcharges” shall mean any and all amounts other
than the Expense Adjustment Amount, Utility Charges, Parking Fee and the
Storage Space Charges which become due and payable by Sublandlord to Landlord
under the Overlease whether as additional rent or for any extra services or
otherwise, which would not have become due and payable but for the acts and
omissions of Subtenant under this Sublease or which are otherwise attributable
to the Subleased Premises, including, but not limited to: (i) any
increases in the Landlord’s fire, rent or other insurance premiums resulting
from any act or omission of Subtenant, (ii) any additional rent under the
Overlease payable by Sublandlord on account of Subtenant’s use of other extra
services above those provided in Article VII of the Overlease, and
(iii) any additional rent under the Overlease payable by Sublandlord on
account of any other additional service as may be provided to the Subleased
Premises. Notwithstanding the
foregoing, Subtenant Surcharges shall not include (i) amounts which relate to
the acts or omissions of Sublandlord under the Overlease and not the acts or
omissions of Subtenant under this Sublease, (ii) maintenance and repairs with
respect to any non-common areas of the Premises (other than the Subleased
Premises); or (iii) Fixed Rent pursuant to the Overlease, and, except as
expressly provided in this Sublease, items of Additional Rent pursuant to the
Overlease. Subtenant shall pay the Additional Rent set forth in subsections (c)
and (d) of this Section 4 within thirty (30) days after the presentation of
statements therefor by the Landlord or Sublandlord to Subtenant.


 


(e)                                  To
the extent any utilities to the Subleased Premises are not separately
sub-metered, if Subtenant or any other occupant of the Premises makes use of
any utilities during hours other than during Building business hours, or if
Subtenant or any other occupant of the Premises adds any machinery, appliances
or equipment which materially increases or decreases the aggregate electrical
load in the Subleased Premises or other portions of the Premises, as the case
may be, the applicable Utility Charges shall be adjusted proportionately to
reflect any change in such use.


 


(f)                                    Sublandlord
shall provide copies of all bills (or relevant portions thereof) received from
Landlord affecting or relating to Subtenant’s use of the Subleased Premises to
Subtenant promptly upon receipt. Notwithstanding the foregoing, (i) if the
Overlease provides that a payment of additional rent is payable by the
Sublandlord to Landlord within a shorter period of time,


 


4

















 


Subtenant shall pay the
additional rent provided for in this Section 4 relating to such payment of
additional rent not later than the business day preceding the date that
Sublandlord shall be so required to pay, and (ii) if the Overlease
provides that a payment of additional rent thereunder is payable by Sublandlord
to Landlord, on demand, then Subtenant shall pay any additional rent provided
for in this Section 4 relating to such payment of additional rent under the
Overlease, upon the demand of Sublandlord. Any failure or delay by Sublandlord
in billing any sum set forth in this Section 4 shall not constitute a waiver of
Subtenant’s obligation to pay the same in accordance with the terms of this
Sublease.


 


(g)  Upon its receipt thereof, Sublandlord shall
furnish to Subtenant a copy of each notice or statement from Landlord affecting
the Subleased Premises with respect to Subtenant’s obligations hereunder,
together with Sublandlord’s calculation (if applicable) of the amount owed by
Subtenant hereunder and the basis for such calculation. If Sublandlord disputes
the correctness of any such notice or statement and if such dispute is resolved
in Sublandlord’s favor, or if Sublandlord shall receive any refund of rent
without a dispute, Sublandlord shall promptly pay to Subtenant Subtenant’s Pro
Rata Share of any refund (after deducting from the amount of any such refund an
equitable portion of all expenses, including court costs and reasonable
attorneys’ fees, incurred by Sublandlord in resolving such dispute) received by
Sublandlord in respect (but only to the extent) of any related payments of rent
made by Subtenant less any amounts theretofore received by Subtenant directly
from Landlord, and relating to such refund; provided, however,
that, if Sublandlord is required under the terms of the Overlease to pay such
amounts pending the determination of any such dispute (by agreement or
otherwise), Subtenant shall pay the full amount of the Fixed Rent, Expense
Adjustment Amounts, Utility Charges, the Parking Fee, the Storage Space Charges
and Subtenant Surcharges in accordance with this Sublease and the Landlord’s
statement or notice.


 


(h)   Subtenant’s obligation to pay the Fixed Rent,
the Expense Adjustment Amount, Utility Charges, the Parking Fee, the Storage
Space Charges, Subtenant Surcharges and all other sums payable under this
Section 4 or otherwise under this Sublease and Sublandlord’s obligation to pay
any amounts due to Subtenant under this Sublease shall survive the termination
or earlier expiration of this Sublease until such amounts have been paid in
full.


 


(i)  The Fixed Rent, Expense Adjustment Amount,
Utility Charges, the Parking Fee, the Storage Space Charges, Subtenant
Surcharges and any other amounts payable pursuant to this Sublease (“Rent”)
shall be paid by Subtenant to Sublandlord at the address first set forth above,
or at such other place as Sublandlord may hereafter designate from time to time
in writing, in lawful money of the United States of America, by, at Sublandlord’s
option, a good unendorsed check, subject to collection, as and when the
same become due and payable, without demand therefor and without any deduction,
set-off or abatement whatsoever. Any other amounts of additional rents and
other charges herein reserved and payable shall be paid by Subtenant in the
manner and to the persons set forth in the statement from Sublandlord
describing the amounts due. In the event of nonpayment of any component of Rent
reserved hereunder, Sublandlord shall have all the rights and remedies with
respect thereto as are herein provided for in case of nonpayment of the Fixed
Rent reserved hereunder.


 


(j)  All past due installments of rent shall bear
interest at the Default Rate reserved under the Overlease from the date due
until paid. Additionally, Subtenant shall be responsible for all late charges
payable by Sublandlord under Article 3 of the Overlease as a result of any
late payment by Subtenant hereunder.


 


5.                                       SECURITY
DEPOSIT.


 


(a)                                  To
secure the full and faithful performance by Subtenant of all the terms,
provisions, conditions, covenants and obligations (including, without
limitation, the payment of rent) on Subtenant’s part to be performed hereunder,
on or before the Commencement Date hereof, Subtenant shall deliver to
Sublandlord a security deposit (“Security Deposit”) in the amount of Two
Million Nine Hundred Seven Thousand Three Hundred Twenty Dollars
($2,907,320.00) in either (i) cash or (ii) an unconditional, clean,
irrevocable “evergreen” letter of credit, payable on sight, in form and
substance satisfactory to Sublandlord and otherwise in accordance with the
requirements of Article 23 of the Overlease. Said Security Deposit shall be
proportionately increased in the event Subtenant leases any Storage Space. Sublandlord
hereby approves Silicon Valley Bank, N.A. as the issuer of the letter of credit.
The failure to timely deliver any subsequent or extension letter of credit
shall constitute a material default hereunder for which no notice need be
given, and for which no grace or cure period need be allowed (notwithstanding
anything herein set forth to the contrary) and the letter of credit, then in
effect, may be presented for payment and negotiated notwithstanding that no
other default may then exist under this Sublease and upon such presentment and
negotiation, the default for Subtenant’s failure to so deliver shall be deemed
to have been cured. In the event Subtenant defaults beyond any applicable
notice and cure periods herein set forth in respect of any of the terms,
provisions, conditions, covenants and obligations of this Sublease, including,
but not limited to, the payment of Fixed Rent and Additional Rent, Sublandlord
may, without first applying any other security, use, apply or retain the whole
or any part of the proceeds of the letter of credit or cash security
deposit delivered as security hereunder to the extent required for the
payment of any Fixed Rent or Additional Rent or any other sum as to which Subtenant
is in default or for any sum which Sublandlord may incur or may be required to
incur by reason of Subtenant’s default in respect of any of the terms,
provisions, conditions, covenants and obligations on Subtenant’s part to be
performed hereunder, including but not limited to, any actual out-of-pocket
damages or


 


5

















 


deficiencies which accrued before or after the commencement of summary
proceedings or other re-entry by Sublandlord. If Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions
of this Sublease, the letter of credit or cash security deposit shall be
returned to Subtenant after the Expiration Date and after delivery of
possession of the Sublease Premises to Sublandlord. Every cash security
deposit or letter of credit deposited with Sublandlord hereunder shall be
transferable by its terms to an assignee of Sublandlord’s interests under the
Overlease without charge to Sublandlord and without any further responsibility
and liability with respect to such security and Subtenant agrees to look solely
to such assignee of Sublandlord (who may be an assignee/successor-in-interest,
by way of example and not by limitation, as a result of a merger with Sublandlord,
as a result of a purchase of substantially all of Sublandlord’s assets, etc.)
for the return of the cash security deposit or letter of credit or
the proceeds thereof. The provisions of the preceding sentence are
self-operative without the need for further documentation. Subtenant shall not
assign or encumber or attempt to assign or encumber any cash security
deposit or letter of credit or any of the proceeds thereof.


 


(h)                                 If
Subtenant shall faithfully perform all of the covenants and agreements
contained in this Sublease on the part of Subtenant to be performed and
provided that there is not an Event of Default under the terms and conditions
of this Sublease, the Security Deposit shall be reduced as follows:


 


(i)            to
an amount equal to Two Million Four Hundred Ninety-Three Thousand Five Hundred
Eighty-Six and No/100 Dollars ($2,493,586.00) upon Subtenant having fully
satisfied its obligations set forth in Section III (D) of Exhibit C attached
hereto;


 


(ii)           to
an amount equal to One Million Eight Hundred Seventy Thousand Three Hundred One
Dollars ($1,870,301.00) upon the end of the third Sublease Year (for purposes
hereof, the term “Sublease Year” shall refer to the first 12 month period
following the Commencement Date hereof and each succeeding 12 month period
following such Commencement Date); and


 


(iii)          in
the event this Sublease is extended as hereinabove provided, to an amount equal
to One Million Two Hundred Forty-Six Thousand Seven Hundred Ninety-Three and
No/100 Dollars ($1,246,793.00) upon the end of the fifth Sublease Year.


 


If the Security
Deposit is a letter of credit, Subtenant shall, upon thirty (30) days’ prior
written notice to Landlord, effectuate a substitution of the then current
letter of credit, with a new letter of credit reflecting the applicable reduced
amount set forth above, and otherwise subject to all of the terms and
conditions set forth in this Section. If the Security Deposit is in the form of
cash, Sublandlord shall, upon thirty (30) days’ prior written request of
Subtenant, and provided that there is not an Event of Default under the terms
and conditions of this Sublease either at the time of such request or at the
time that such reduction is to take effect, refund to Subtenant the applicable
difference between the then current amount of the Security Deposit and the
reduced amount.


 


6. USE OF SUBLEASED
PREMISES. Subtenant shall use the Subleased Premises only for those
purposes allowed under the Overlease, and for no other purposes whatsoever. Sublandlord
agrees that Subtenant shall be permitted, subject to Subtenant obtaining all
applicable permits and approvals and to Sublandlord’s rights under the
Overlease.


 


7. CONDITION OF
SUBLEASED PREMISES.


 


(a)                                  Subtenant
represents and warrants that it has made a thorough examination of the Subleased
Premises and it is familiar with the condition thereof. Subtenant acknowledges
that it enters into this Sublease without any representation or warranties by
Sublandlord or anyone acting or purporting to act on behalf of Sublandlord, as
to present or future condition of the Subleased Premises or the appurtenances
thereto or any improvements therein or of the Building, except as otherwise
expressly set forth herein. Sublandlord hereby represents that the Subleased
Premises shall be in broom clean condition and free of all occupants and from
all personalty when delivered to Subtenant. It is further agreed that, other
than the Sublandlord’s Work, Sublandlord has no obligation to perform any work
therein or contribute to the cost of any work.


 


(b)                                 On
or before the date that is three (3) months following the Commencement Date,
subject to Sublandlord’s receipt of all necessary approvals, Sublandlord shall
substantially complete a demising wall within the Subleased Premises, demising
the Subleased Premises from the remainder of the Premises (“Sublandlord’s Work”),
provided that Sublandlord shall use commercially reasonable efforts not to
materially interfere with the performance by Subtenant of Subtenant’s Work (as
hereinafter defined) within the Subleased Premises.


 


(c)                                  Subtenant,
at its sole cost and expense, in accordance with the attached “Exhibit C”,
subject to Subtenant’s receipt of the Subtenant Allowance (as hereinafter
defined) and Subtenant’s receipt of all necessary approvals, shall design,
perform and complete all other improvements to the Subleased Premises as more
particularly set forth in the work letter attached hereto as “Exhibit C”
(herein called “Subtenant’s Work”). Subtenant shall complete all of Subtenant’s
Work in good and workmanlike manner, fully paid for and free from liens, in
accordance with the plans and specifications approved by Landlord and
Sublandlord as provided in


 


6

















 


“Exhibit
C”. Notwithstanding the fact that the foregoing activities may occur prior to
the Rent Commencement Date, Subtenant agrees that all of Subtenant’s
obligations provided for in this Sublease shall apply during the period from
the Commencement Date to the Rent Commencement Date, with the exception of any
obligation to pay Fixed Rent, Expense Adjustment Amounts and the Storage Space
Charges. Notwithstanding the foregoing, Subtenant shall pay to Sublandlord all
Utility Charges and Subtenant Surcharges applicable to such period. Sublandlord
shall provide Subtenant with a Subtenant Work Allowance to reimburse Subtenant
for all or part of the cost of Subtenant’s Work as more particularly set forth
in the attached “Exhibit C”. Subtenant shall use all commercially reasonable
efforts during the performance of Subtenant’s Work to minimize interference
with the business operations of other tenants in the Building.


 


(d)                                 Subtenant
shall, at its sole cost and expense, provide janitorial and cleaning services
to the Subleased Premises.


 


8. ALTERATIONS. Other
than as expressly set forth herein, Subtenant shall make no alterations,
installations, additions or improvements in or to the Subleased Premises (“Alterations”),
without first obtaining Sublandlord’s prior written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, all Subtenant Alterations, including Subtenant’s Work, shall be
subject to the terms of the Overlease and to the consent of Landlord.


 


9. FAILURE OF
SUBLANDLORD TO PERFORM OBLIGATIONS. Subtenant acknowledges and agrees that
Sublandlord shall have no obligation to provide any services to the Subleased
Premises or to perform the terms, covenants, conditions or obligations
contained in the Overlease on the part of Landlord to be performed. Subtenant
agrees to look solely to Landlord for the furnishing of such services and the
performance of such terms, covenants, conditions or obligations. In the event
that Landlord shall fail to furnish such services or to perform any of the
terms, covenants, conditions or obligations contained in the Overlease on its
part to be performed, Sublandlord shall be under no obligation or liability
whatsoever to Subtenant for such failure. In any event, Subtenant shall not be
allowed any abatement or diminution of rent under this Sublease because of
Landlord’s failure to perform any of its obligations under the Overlease unless
Sublandlord is entitled to an abatement under the terms of the Sublease, in
which event, Subtenant shall be entitled to a proportionate and equitable
abatement. Sublandlord agrees, however, that in the event that if Landlord
shall fail to provide the services or perform the obligations to be provided or
performed by it pursuant to the terms of the Overlease, Sublandlord shall, upon
written notice from Subtenant, use commercially reasonable efforts to enforce
the terms of the Overlease, at Subtenant’s sole cost and expense. If Landlord
shall default in the performance of any of its obligations under the Overlease,
Sublandlord shall, upon request and at the expense of Subtenant, timely
institute and diligently prosecute any action or proceeding reasonably
requested by Subtenant in order to have Landlord comply with any obligation of
Landlord under the Overlease or as required by law. Subtenant shall indemnify
and hold harmless Sublandlord from and against any and all costs or claims
arising out of or in connection with any such action or proceeding undertaken
by Sublandlord on behalf of Subtenant. Subtenant shall not make any claim
against Sublandlord for any damage which may arise, nor shall Subtenant’s
obligations hereunder be diminished, by reason of (i) the failure of Landlord
to keep, observe or perform any of its obligations pursuant to the Overlease,
unless such failure is due to Sublandlord’s default under this Sublease, or
(ii) the acts or omissions of Landlord, its agents, contractors, servants,
employees, invitees or licensees. In the event that Sublandlord elects to
enforce its rights under the Overlease with respect to the Subleased Premises,
Sublandlord shall charge Subtenant for its pro rata share of such costs. The
provisions of this Section 9 shall survive the expiration or earlier
termination of the Term hereof.


 


10. ACCESS. Sublandlord
and Landlord and their respective agents may, at reasonable times and upon
reasonable notice, enter to view the Subleased Premises, and make repairs and
alterations as Sublandlord and/or Landlord should elect to do and may show the
Subleased Premises to others, before the expiration of the Term; provided,
however, that Sublandlord may show the Subleased Premises to prospective
tenants only during the last twelve (12) months of the Term; provided, further,
at Subtenant’s election, except in cases of emergency, access to the Subleased
Premises shall be in the presence of a representative of Subtenant. Upon entry
by Sublandlord to the Subleased Premises, Sublandlord shall use commercially
reasonable efforts to minimize interference with Subtenant’s use and occupancy
of the Subleased Premises.


 


11. INDEMNIFICATION/INSURANCE.


 


(a)                                  Subtenant shall defend, indemnify and
hold harmless Sublandlord and its agents, successors and assigns, from and
against any and all injury, loss, costs, expenses, liabilities, claims or
damage (including attorneys’ fees and disbursements) to any person or property
(i) arising from, related to, or in connection with any use or occupancy of the
Subleased Premises by Subtenant, (ii) arising from, related to, or in
connection with any act or omission (including, without limitation,
construction and repair of the Subleased Premises in connection with Subtenant’s
Work or subsequent work) of Subtenant, its agents, contractors, employees,
customers and invitees, or (iii) which occurs in any part of the Property
other than the Subleased Premises and is caused by the negligence or willful
misconduct of Subtenant, which indemnity extends to any and all claims arising
from any breach or default in the performance of any obligation on Subtenant’s
part to be performed under the terms of this Sublease. This indemnification
shall survive the expiration or termination of the Sublease Term.


 


(b)  Sublandlord shall defend, indemnify and hold
Subtenant harmless from and against all claims, causes of action, liabilities,
losses, costs and expenses arising from or in connection with any injury or
other damage or damages to any person or


 


7

















 


property resulting from the negligence or willful
misconduct of Sublandlord, its agents, contractors, employees, customers and
invitees. This indemnification shall survive the expiration or termination of
the Sublease Term.


 


(c)                                  In
no event shall Sublandlord be liable for any consequential damages hereunder
nor shall Subtenant be liable for any consequential damages hereunder, except
as may result from Subtenant’s failure to timely surrender the Subleased
Premises at the expiration or earlier termination of the Term.


 


(d)                                 Subtenant
shall carry insurance for all personal property and trade fixtures on the
Subleased Premises and for all Alterations, including but not limited to
Subtenant’s Work, performed by Subtenant or on its account. Subtenant shall
also carry all insurance as required in the Overlease, naming Sublandlord and
Landlord as additional insureds on all policies required thereunder.


 


(e)                                  The
parties agree that all property insurance carried by either party with respect
to the Subleased Premises, whether or not required by this Sublease, shall
include a waiver of the subrogation of rights of recovery to the extent such
rights have been waived by the insured party prior to the occurrence of loss or
injury. Each party shall be entitled to have duplicates or certificates of any
policies containing such provisions. Each party hereby waives any rights of
recovery against the other for loss or injury against which the waiving party
is protected by insurance containing provisions denying to the insurer
acquisition by subrogation of rights of recovery, reserving, however, any
rights with respect to any excess of loss or injury over the amount recovered
by such insurance.


 


12. ASSIGNMENT AND
SUBLETTING. Subtenant shall not assign, sell, transfer (whether by
operation of law or otherwise), pledge, mortgage or otherwise encumber this
Sublease or any portion of its interest in the Subleased Premises, nor sublet
all or any portion of the Subleased Premises or permit any other person or
entity to use or occupy all or any portion of the Subleased Premises, without
the prior written consent of Sublandlord (which consent of Sublandlord shall
not be unreasonably withheld, conditioned or delayed) and Landlord, and in
accordance with the terms of Article 16 of the Overlease. Notwithstanding the
foregoing, the provisions of Section 16.B of the Overlease shall apply to an
assignment or sublease by Subtenant to an “Affiliated Transferee” as if such
transfer were an assignment or sublease, as applicable, by Sublandlord, as
Tenant, under the Overlease. Notwithstanding anything in the Overlease to the
contrary, if Subtenant desires to assign this Sublease or sublet more than
sixty-seven percent (67%) of the Subleased Premises (other than to an
Affiliated Transferee), Subtenant shall have the right to notify Sublandlord in
writing in advance. Sublandlord shall have thirty (30) days from the date of
receipt of Subtenant’s notice, to elect to recapture the Subleased Premises
effective upon the proposed effective date of the sublease or assignment (but
not earlier than sixty (60) days following the date of Subtenant’s notice),
which election shall be in writing and delivered within said thirty (30) day
period. If Sublandlord does not elect to recapture or fails to notify Subtenant
of its election within such thirty day period, upon Subtenant’s receipt of a
bona fide offer for an assignment of this Sublease or sublease of more than
sixty-seven percent (67%) of the Subleased Premises and the giving of written
notice to Sublandlord of such offer and the receipt by Sublandlord of any
information related to the proposed sublease or assignment reasonably requested
by Sublandlord, Sublandlord shall have five (5) business days in which to
either consent to or deny the proposed sublease or assignment. To the extent
not inconsistent with the terms of this Section 12, the terms and provisions of
Article 16 of the Overlease shall apply to this Sublease between Subtenant and
Sublandlord.


 


13. CASUALTY AND
CONDEMNATION. Notwithstanding anything to the contrary contained in this
Sublease or in the Overlease, Subtenant shall not have the right to terminate
this Sublease as to all or any part of the Subleased Premises, or be entitled
to an abatement of Fixed Rent, the Expense Adjustment Amounts, Utility Charges,
the Parking Fee, the Storage Space Charges , Subtenant Surcharges, or any other
component of Rent or additional rent, by reason of a casualty or condemnation
affecting the Subleased Premises unless Sublandlord is entitled to terminate
the Overlease or is entitled to a corresponding abatement under the Overlease. If
Sublandlord is entitled to terminate the Overlease for all or any portion of
the Subleased Premises by reason of casualty or condemnation, Sublandlord shall
notify Subtenant thereof prior to giving any notice to Landlord and Subtenant
may terminate this Sublease as to any corresponding part of the Subleased
Premises by written notice to Sublandlord given at least five (5) business days
prior to the date(s) Sublandlord is required to give notice to Landlord of such
termination under the terms of the Overlease.


 


14. CONSENTS. In
no event shall Sublandlord be liable for failure to give its consent or
approval in any situation where consent or approval has been withheld or
refused by Landlord, whether or not such withholding or refusal was proper,
provided, however that Sublandlord shall use commercially reasonable efforts to
obtain such consents.


 


15. CONSENT OF
LANDLORD. (a)  Sublandlord and
Subtenant hereby acknowledge and agree that this Sublease is subject to and
conditioned upon Sublandlord obtaining the written consent (the “Consent”) of
Landlord as provided in the Overlease. Sublandlord agrees to use commercially
reasonable efforts to obtain the Consent. Promptly following the execution and
delivery of this Sublease by Sublandlord and Subtenant, Sublandlord shall
submit this Sublease to Landlord. It is expressly understood and agreed that
notwithstanding anything to the contrary contained herein, the Term shall not
commence, Subtenant shall not take possession of the Subleased Premises or any
part thereof, nor shall Subtenant’s other obligations hereunder begin to
accrue, until the Consent has been obtained. Subtenant hereby agrees that it
shall cooperate in good faith with Sublandlord and shall comply with any
reasonable requests made of Subtenant by Sublandlord or Landlord in the
procurement of the Consent.


 


8

















 


(b)                                 In
addition to the Consent, Sublandlord agrees to request from Landlord, and to
use commercially reasonable efforts to obtain, at no expense to Sublandlord, a
recognition agreement, whereby Landlord agrees to recognize Subtenant upon the
terms of this Sublease upon a termination of the Overlease. Any such
recognition agreement, however, shall not be a condition to the commencement of
this Sublease and the failure to obtain such recognition agreement shall not
give Subtenant the right to terminate this Sublease pursuant to Section 2(a)
hereof.


 


16. DEFAULTS. Subtenant covenants and agrees
that in the event that it shall default in the performance of any of the terms,
covenants and conditions of this Sublease beyond any applicable notice, grace
or cure periods or of the Overlease as incorporated herein (collectively, an “Event
of Default”), Sublandlord shall have the right to (i) any and all remedies
reserved by Landlord under the Overlease, which are incorporated herein and made
a part hereof, with the same force and effect as if herein specifically set
forth in full, and (ii) any and all other rights and remedies available to
Sublandlord at law and in equity.


 


17. NOTICE. Whenever,
by the terms of this Sublease, any notice, demand, request, approval, consent
or other communication (each of which shall be referred to as a “notice”) shall
or may be given either to Sublandlord or to Subtenant, such notice shall be in
writing and shall be sent by nationally recognized overnight courier providing
for receipted delivery, or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows (or to such other address or
addresses as may from time to time hereafter be designated by Sublandlord or
Subtenant, as the case may be, by like notice):


 


(a)                                  If
intended for Sublandlord, to:


 


Archemix Corp.


300 Third Street


Cambridge, Massachusetts
02142


Attn: Chief Financial
Officer


 


and to:


 


Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C.


One Financial Center


Boston, MA 02111


Attention: Stuart A.
Offner, Esq.


 


(b)                                 If
intended for Subtenant, to:


 


Momenta Pharmaceuticals,
Inc.


675 West Kendall Street


Cambridge, MA 02142


Attention: Richard P.
Shea, CFO


 


and to:


 


 


Foley Hoag LLP


155 Seaport Boulevard


Boston, MA 02210


Attn: Real Estate
Department


 


All such notices shall be
deemed to have been served on the date of actual receipt (in the case of hand
delivery), or one (1) business day after such notice shall have been deposited
with a nationally recognized overnight courier, or three (3) business days
after such notice shall have been deposited in the United States mails within
the continental United States (in the case of mailing by registered or
certified mail as aforesaid).


 


18. SURRENDER OF
SUBLEASED PREMISES. Subtenant shall at the expiration or other termination
of this Sublease remove all Subtenant’s goods and effects from the Subleased
Premises. Subtenant shall deliver to Sublandlord the Subleased Premises and all
keys, locks thereto, and other fixtures connected therewith and all alterations
and additions made to or upon the Subleased Premises, except those alterations
and additions that may be required by Landlord or Sublandlord to be removed, in
good order and condition, normal wear and tear and damage by fire or other
casualty not caused by Subtenant excepted; provided, however, Sublandlord
agrees that Subtenant shall have no obligation to remove any alterations or
additions if, with respect to any given alteration or addition, Subtenant
previously requested in writing a written waiver of such obligation by
Sublandlord and Landlord and Sublandlord and Landlord have delivered such
written waiver to Subtenant. In addition, if Subtenant fails to surrender the
Subleased


 


9

















 


Premises in the condition
required hereunder, Sublandlord shall have the right to cause the Subleased
Premises to be restored to such condition and charge the cost thereof to
Subtenant. In the event of Subtenant’s failure to remove any of Subtenant’s property
from the Subleased Premises, Sublandlord and Landlord are hereby authorized,
without liability to Subtenant for loss or damage thereto, and at the sole risk
of Subtenant, to remove and store any of the property at Subtenant’s expense,
or to retain same under Sublandlord’s or Landlord’s control or to sell at
public or private sale, without 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.


 


19. BROKER. Subtenant
represents and warrants to Sublandlord that Subtenant has not dealt, either
directly or indirectly, with any broker in connection with this Sublease, or
the sub-subletting of the Subleased Premises to Subtenant, other than CB
Richard Ellis and GVA Thompson Doyle Hennessy & Stevens (the “Brokers”) and
Sublandlord shall be solely responsible for all fees of the Brokers. Subtenant
shall indemnify Sublandlord from and against any and all loss, costs and
expenses, including reasonable attorney’s fees, incurred by Sublandlord,
resulting from a breach of such representation and warranty. Sublandlord
represents and warrants to Subtenant that Sublandlord has not dealt, either
directly or indirectly, with any broker in connection with this Sublease, or
the sub-subletting of the Subleased Premises to Subtenant, other than the
Brokers. Sublandlord shall indemnify Subtenant from and against any and all
loss, cost and expenses, including reasonable attorneys’ fees, incurred by
Subtenant, resulting from a breach of such representation and warranty.


 


20. COUNTERPARTS. This
Sublease may be executed in one or more counterparts, and by different parties
hereto on separate counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


21. PARKING. Subject
to the terms of Article 26 of the Overlease, Sublandlord shall provide
Subtenant with, and Subtenant shall lease from Sublandlord, twenty-four (24) of
the parking spaces allocated to Sublandlord under the Overlease, which parking
spaces shall be on an unassigned, unreserved basis, at the fair market parking
rates as established by Landlord from time to time (the “Parking Fee”), which
Parking Fee shall be paid by Subtenant at the same time and in the same manner
as Subtenant’s monthly payments of Fixed Rent.


 


22. ROOF RIGHTS. If
Subtenant desires to locate telecommunications equipment, an emergency
generator and/or HVAC equipment on the roof of the Building (collectively “Roof
Rights”), Subtenant shall notify Sublandlord in writing thereof and Sublandlord
shall cooperate with Subtenant and use commercially reasonable efforts to
obtain same from Landlord on Subtenant’s behalf, at Subtenant’s expense. Subtenant
shall be responsible for any and all Additional Rent charged by Landlord
applicable to any Roof Rights. Any Roof Rights shall be subject to Subtenant
securing of all necessary permits and approvals and the terms of the Overlease.
Notwithstanding the foregoing, the securing of such Roof Rights by Sublandlord
shall not be a condition to the effectiveness of this Sublease.


 


23.
LOADING DOCK. Subtenant shall have the non-exclusive right to utilize the
loading dock and freight elevator as Sublandlord on the same terms and
conditions as set forth in Article 7(B) of the Overlease.


 


24. SIGNAGE. Subtenant shall have the right, at
Subtenant’s expense, to install (i) Subtenant’s identification signage,
including its name and logo, in the second floor elevator lobby, and (ii)
building standard signage in the first floor lobby, provided that such signage
is coordinated with Landlord, consistent with other signage in the Building and
in compliance with all applicable laws.


 


25. LIMITATION OF ESTATE. Subtenant’s estate
shall in all respects be limited to, and be construed in a fashion consistent
with, the estate granted to Sublandlord by Landlord. From and after the
Commencement Date, Subtenant shall stand in the place of Sublandlord and shall
defend, indemnify and hold Sublandlord harmless with respect to all covenants,
warranties, and obligations of Subtenant hereunder. In the event Sublandlord is
prevented from performing any of its obligations under this Sublease by a
breach by Landlord of a term of the Overlease, then, except as otherwise
expressly agreed to herein, Sublandlord’s sole obligation in regard to its
obligation under this Sublease shall be to use reasonable efforts in diligently
pursuing the correction or cure by Landlord of Landlord’s breach under the
Overlease.


 


26. ENTIRE
AGREEMENT. It is understood and acknowledged that there are no oral agreements
between the parties hereto affecting this Sublease, and this Sublease
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Sublandlord to Subtenant with respect to the subject matter
thereof, and none thereof shall be used to interpret or construe this Sublease.
This Sublease and any exhibits and schedules attached hereto contain all of the
terms, covenants, conditions, warranties and agreements of the parties relating
in any manner to the rental, use and occupancy of the Subleased Premises and
shall be considered to be the only agreements between the parties hereto and
their representatives and agents. None of the terms, covenants, conditions or
provisions of this Sublease can be modified, deleted or added to except in a
writing signed by the parties hereto which is consented to by Landlord. All
negotiations and oral agreements acceptable to both parties have been merged
into and are included herein. There are no representations or warranties
between the 


 


10

















 


parties, except any express
representations and agreements contained in this Sublease.


 


27.                                 NOTICE
OF SUBLEASE. At the request of either party, Sublandlord and Subtenant will
execute and record a notice of sublease pursuant to M.G.L. c.183, § 4.


 


IN WITNESS WHEREOF,
Sublandlord and Subtenant herein have duly executed this instrument on the day
and year first above written.


 


	
   

  	
  SUBLANDLORD:

  	
  ARCHEMIX CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
         /s/
  Gregg Beloff

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  CFO, VP, Secretary

  	
   

  
	
   

  	
   

  	
   

  	
  Duly authorized

  
	
   

  	
   

  	
   

  
	
   

  	
  SUBTENANT:     MOMENTA
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
         /s/
  Richard P. Shea

  	
   

  
	
   

  	
   

  	
  Richard P. Shea, its
  Chief Financial Officer and Treasurer, duly authorized

  
										



 


11

















 


EXHIBIT A-2


 


Copy of Sublease Consent


 


12

















 


CONSENT
TO SUBLEASE


 


This Consent to Sublease
(this “Consent”) is made as of
October 23, 2006, by ARE-MA Region No. 28,
LLC, a Delaware limited liability company, having an address of 385
East Colorado Boulevard, Suite 299, Pasadena, California 91101 (“Landlord”), Archemix Corp., a Delaware corporation, having an address of
300 Third Street, Cambridge, Massachusetts 02142 (“Tenant”), and Momenta
Pharmaceuticals, Inc., a Delaware corporation, having an address of
675 West Kendall Street, Cambridge, Massachusetts 02142 (“Sublessee”) with reference to the following
Recitals.


 


R E C I T A L S


 


A.                                    Landlord
and Tenant have entered into that certain Office Lease dated as of April 11,
2005, as amended by that certain First Amendment to Lease dated as of July 9,
2006, (as so amended, the “Lease”)
wherein Landlord leased to Tenant certain premises located on Levels 01, 02,
P-1 and P-2 (the “Premises”) of
the building commonly known as and located at 300 Third Street, Cambridge,
Massachusetts, which Premises are more particularly described in the Lease.


 


B.                                    Tenant
desires to sublease to Sublessee a portion of the Premises consisting of
approximately 22,364 rentable square feet located on Level 02 of the building
(the “Subleased Premises”), more
particularly described in and pursuant to the provisions of that certain
Sublease dated as of September 8, 2006 (the “Sublease”),
a copy of which is attached hereto as Exhibit A. A redacted version of
the Lease is attached to the Sublease.


 


C.                                    Tenant
and Sublessee desire to obtain Landlord’s consent to the Sublease.


 


NOW, THEREFORE,
in consideration of the foregoing and the agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord hereby consents to the sublease of the Subleased
Premises to Sublessee, such consent being subject to and upon the following
terms and conditions, to which Tenant and Sublessee hereby agree:


 


1.                                       All
initially capitalized terms not otherwise defined in this Consent shall have
the meanings set forth in the Lease unless the context clearly indicates
otherwise.


 


2.                                       This
Consent shall not be effective and the Sublease shall not be valid nor shall
Sublessee take possession of the Subleased Premises unless and until Landlord
shall have received a fully executed counterpart of this Consent. Tenant and Sublessee each represents and warrants to
Landlord that the copy of the Sublease attached hereto as Exhibit A is
true, correct and complete in all respects.


 


3.                                       Landlord’s
consent set forth herein is subject to the following:


 


a.                                       Any
and all proposed alterations, additions or improvements to be made in
connection with Sublessee’s occupancy of the Subleased Premises (collectively, “Sublease
Improvements”) shall only be performed pursuant to and in compliance with all
of the terms of the Lease;


 


300 Third Street, Cambridge


Archemix/Momenta Sublease


© Alexandria Real Estate
Equities, Inc. 1999


CONFIDENTIAL-DO NOT COPY


 


1

















b.                                      Tenant
and Sublessee shall comply with the provisions of the Lease regarding any and
all Hazardous Materials to be used, stored or maintained in connection with
Sublessee’s proposed use of the Subleased Premises; and


 


c.                                       Pursuant
to and in accordance with the terms of the Lease, those Sublease Improvements
which constitute specialty Alterations may be required to be removed at the
expiration or earlier termination of the Lease at no cost or expense to
Landlord, with all damage occasioned by such removal being fully repaired.


 


d.                                      Pursuant
to Article 16 of the Lease, Tenant shall pay to Landlord monthly, as Additional
Rent under the Lease, a sum equal to fifty percent (50%) of the Excess Income
(as such term is defined in Section 16(D) of the Lease) payable in connection
with the Sublease, if any. Within sixty (60) days after the date on which
Tenant delivers possession of the Subleased Premises to Sublessee, Tenant shall
provide Landlord with written documentation in form, scope and substance
reasonably acceptable to Landlord verifying any and all of Tenant’s Transfer
Expenses (as such term is defined in Section 16(D) of the Lease), or they shall
be disregarded in computing Excess Income.


 


4.                                       Landlord
neither approves nor disapproves the terms, conditions and agreements contained
in the Sublease, all of which shall be subordinate and at all times subject to:
(a) all of the covenants, agreements, terms, provisions and conditions
contained in the Lease, (b) superior ground leases, mortgages, deeds of trust,
or any other hypothecation or security now existing or hereafter placed upon
the real property of which the Premises are a part and to any and all advances
secured thereby and to all renewals, modifications, consolidations,
replacements and extensions thereof, and (c) all matters of record affecting
the Premises and all laws, ordinances and regulations now or hereafter
affecting the Premises.


 


5.                                       Nothing
contained herein or in the Sublease shall be construed to:


 


a.                                       modify,
waive, impair, or affect any of the terms, covenants or conditions contained in
the Lease (including Tenant’s obligation to obtain any required consents for
any other or future sublettings), or to waive any breach thereof, or any rights
or remedies of Landlord under the Lease against any person, firm, association
or corporation liable for the performance thereof, or to enlarge or increase
Landlord’s obligations or liabilities under the Lease (including, without
limitation, any liability to Sublessee for any portion of the security deposit
held by Tenant under the Sublease), and all terms, covenants and conditions of
the Lease are hereby declared by each of Landlord and Tenant to be in full
force and effect.


 


b.                                      require
Landlord to accept any payments from Sublessee on behalf of Tenant, except as
expressly provided in Section 8 hereof.


 


Tenant shall remain
liable and responsible for the due keeping, performance and observance of all
the terms, covenants and conditions set forth in the Lease on the part of the
Tenant to be kept, performed and observed and for the payment of the Base Rent,


 


2

















 


Additional Rent and
all other sums now and hereafter becoming payable thereunder for all of the
Premises, including, without limitation, the Subleased Premises.


 


6.                                       Notwithstanding
anything in the Sublease to the contrary:


 


a.                                       Sublessee
shall not do anything which violates the terms of the Lease to the extent
applicable to the Subleased Premises.


 


b.                                      Landlord
and Sublessee each hereby release the other, and waive their respective rights
of recovery against the other for direct or consequential loss or damage
arising out of or incident to the perils covered by property insurance carried
by such party to the extent of such insurance and waive any right of
subrogation which might otherwise exist in or accrue to any person on account
thereof.


 


c.                                       Tenant
and Sublessee agree to each of the terms and conditions of this Consent, and
upon any conflict between the terms of the Sublease and this Consent, the terms
of this Consent shall control; provided, however, that as between Tenant and
Sublessee only, nothing in this Consent shall be deemed to reduce Sublessee’s
rights or increase Sublessee’s obligations under the Sublease.


 


d.                                      The
Sublease shall be deemed and agreed to be a sublease only and not an assignment
and there shall be no further subletting or assignment of all or any portion of
the Premises demised under the Lease (including the Subleased Premises demised
by the Sublease) except in accordance with the terms and conditions of the
Lease.


 


e.                                       If
Landlord terminates the Lease as a result of a default by Tenant thereunder or
the Lease terminates for any other reason, the Sublease shall automatically
terminate concurrently therewith; provided, however, that if
Landlord elects, in its sole and absolute discretion and without obligation,
exercisable by giving written notice to Sublessee within ten (10) days after
such termination (a “Reinstatement Notice”),
to reinstate the Sublease, then in such event Sublessee shall attorn to
Landlord and the Sublease shall become and be deemed to be a direct lease
between Landlord and Sublessee. If Landlord exercises the reinstatement option
provided under this section, Landlord shall undertake the obligations of Tenant
under the Sublease from the time of the Reinstatement Notice through the expiration
or earlier termination of the Sublease, but Landlord shall not (a) be liable
for more than one (1) month’s rent or any security deposit paid by Sublessee
(except to the extent actually delivered to Landlord), (b) be liable for any
prior act or omission of Tenant under the Lease prior to the Reinstatement
Notice or for any other defaults of Tenant under the Sublease prior to the
Reinstatement Notice, (c) be subject to any defenses or offsets previously
accrued which Sublessee may have against Tenant for any period prior to the
Reinstatement Notice, or (d) be bound by any changes or modifications made to
the Sublease without the prior written consent of Landlord.


 


f.                                         Tenant
and Sublessee acknowledge and agree that if Tenant or Landlord elects to terminate
the Lease pursuant to the terms thereof, or if Landlord and Tenant voluntarily
elect to terminate the Lease, Landlord shall have no responsibility,


 


3

















 


liability or obligation to Sublessee, and the
Sublease shall terminate unless reinstated in Landlord’s sole and absolute
discretion as expressly provided in Section 6(e) above.


 


g.                                      Within
thirty (30) days after request therefor, Tenant shall reimburse Landlord for
all of Landlord’s reasonable out-of-pocket costs and expenses incurred to third
parties in connection with the Sublease and this Consent.


 


h.                                      Tenant
and Sublessee agree that, as between Tenant and Sublessee only, (i) all
references in this Consent to the Lease shall be deemed to refer only to the
non-redacted portions of the Lease attached to the Sublease, and (ii) Tenant
shall indemnify and hold Sublessee harmless from and against any liabilities or
obligations which may by this Consent be imposed on Sublessee under redacted
portions of the Lease.


 


7.                                       Any
act or omission of Sublessee or anyone claiming under or through Sublessee that
violates any of the provisions of the Lease shall be deemed a violation of the
Lease by Tenant.


 


8.                                       Upon
a default by Tenant under the Lease, Landlord may proceed directly against
Tenant, any guarantors or anyone else liable under the Lease or the Sublease
without first exhausting Landlord’s remedies against any other person or entity
liable thereon to Landlord. If Landlord gives Sublessee notice that Tenant is
in default under the Lease after the giving of any applicable notice and the
expiration of any applicable grace or cure period, Sublessee shall thereafter
make directly to Landlord all payments otherwise due Tenant, which payments
will be received by Landlord without any liability to Landlord except to credit
such payments against amounts due under the Lease. The mention in this Consent
of any particular remedy shall not preclude Landlord from any other remedy in
law or in equity.


 


9.                                       Tenant
shall pay any brokerage commissions or fees that may be payable as a result of
or in connection with the Sublease, and Tenant hereby indemnifies and agrees to
hold Landlord harmless from and against any loss or liability arising therefrom
or from any other commissions or fees payable in connection with the Sublease
which result from the actions of Tenant. Sublessee hereby indemnifies and
agrees to hold Landlord harmless from and against any loss or liability arising
from any commissions or fees payable in connection with the Sublease which
result from the actions of Sublessee.


 


10.                                 Tenant
and Sublessee agree that the Sublease will not be modified or amended in any
way without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. Tenant and Sublessee hereby agree that it
shall be reasonable for Landlord to withhold its consent to any modification or
amendment of the Sublease which would change the permitted use of the Subleased
Premises or which would affect Landlord’s status as a real estate investment
trust. Any modification or amendment of the Sublease without Landlord’s prior
written consent shall be void and of no force or effect.


 


11.                                 This
Consent may not be changed orally, but only by an agreement in writing signed
by Landlord and the party against whom enforcement of any change is sought.


 


4

















 


12.                                 This
Consent may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which when taken together shall constitute but
one and the same instrument.


 


13.                                 This
Consent and the legal relations between the parties hereto shall be governed by
and construed and enforced in accordance with the internal laws of the
Commonwealth of Massachusetts, without regard to its principles of conflicts of
law.


 


[
Signatures on next page ]


 


5

















 


IN WITNESS WHEREOF,
Landlord, Tenant and Sublessee have caused their duly authorized
representatives to execute this Consent as of the date first above written.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  ARE-MA
  REGION NO. 28, LLC,

  	
   

  
	
   

  	
  a Delaware limited
  liability company

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Alexandria Real Estate
  Equities, L.P.,

  
	
   

  	
   

  	
  a Delaware limited
  partnership, member

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  ARE-QRS Corp., a Maryland

  
	
   

  	
   

  	
   

  	
  corporation, general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
      /s/ Jennifer Pappas

  	
   

  
	
   

  	
   

  	
              Name:
  Jennifer Pappas

  
	
   

  	
   

  	
  Title: V.P. & Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARCHEMIX CORP.,

  	
   

  
	
   

  	
  a Delaware corporation

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ John A. Harre

  	
   

  
	
   

  	
              Name:
  John A. Harre

  	
   

  
	
   

  	
  Title: Asst. Secretary, V.P. Intellectual Property

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUBLESSEE:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MOMENTA PHARMACEUTICALS, INC.,

  
	
   

  	
  a Delaware corporation

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
        /s/ Richard P.
  Shea

  	
   

  
	
   

  	
   

  	
  Name: Richard P. Shea

  
	
   

  	
   

  	
  Title: V.P. & CFO

  
										



 


6

















 


EXHIBIT B


 


Copy of Construction
Contract


 


 
















1997 EDITION


 


AIA DOCUMENT A111-1997


 


U Standard Form of Agreement Between Owner and Contractor where the basis for payment is the COST
OF THE WORK PLUS A FEE with a negotiated Guaranteed Maximum Price


 


	
  AGREEMENT made as of the

  	
   

  	
   

  	
   

  	
  This document has important legal consequences. Consultation with an attorney
  is encouraged with respect to its completion or modification.

  
	
  in the year 2nd
  day of May

  	
   

  	
   

  	
   

  
	
  (In words, indicate day, month and
  year)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B

  	
   

  	
   

  
	
  BETWEEN the Owner:

  	
   

  	
  Momenta Pharmaceuticals,
  Inc

  	
   

  	
   

  
	
  (Name,
  address and other information)

  	
   

  	
  675 West
  Kendall Street

  	
   

  	
   

  
	
   

  	
   

  	
  Cambridge,
  MA  02142

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  This document is not intended for use in
  competitive bidding.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  and the Contractor:

  	
   

  	
  F.L.
  Caulfield & Sons , Inc.

  	
   

  	
  AIA Document A201-1997, General
  Conditions of the Contract for Construction, is adopted in
  this document by reference.

  
	
  (Name,
  address and other information)

  	
   

  	
  13 Clover
  Street

  	
   

  
	
   

  	
   

  	
  Dorchester,
  MA02122

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Project is:

  	
   

  	
   

  	
   

  	
   

  
	
   (Name
  and address)

  	
   

  	
  Momenta

  	
   

  	
  This document has been approved and endorsed by
  The Associated General Contractors of America.

  
	
   

  	
   

  	
  3rd Floor
  Renovations

  	
   

  
	
   

  	
   

  	
  300 Third
  Street

  	
   

  
	
   

  	
   

  	
  Cambridge,
  MA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Architect is:

  	
   

  	
  Olson
  Lewis Dioli & Doktor

  	
   

  	
   

  
	
  (Name,
  address and other information)

  	
   

  	
  Architects
  & Planners, Inc.

  	
   

  	
   

  
	
   

  	
   

  	
  17 Elm
  Street

  	
   

  	
   

  
	
   

  	
   

  	
  Manchester,
  MA  01944

  	
   

  	
   

  



 


 


The Owner and Contractor agree as follows.


 


Copyright 1920, 1925, 1951, 1958, 1961,
1963, 1967, 1974, 1978, 1987, O 1997 by The American Institute of Architects. Reproduction of the material
herein or substantial quotation of its provisions without written permission of
the AIWA violates the copyright laws of the United States and will subject the violator to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.


 





 


01997 AIA®


AIA DOCUMENT A111-1997


OWNER-CONTRACTOR

AGREEMENT


 


The American Institute


of Architects


1735
New York Avenue, N.W.


Washington,
D.C. 20006-5292


 

















 


ARTICLE 1 THE CONTRACT DOCUMENTS


 


The Contract Documents consist of this Agreement,
Conditions of the Contract (General, Supplementary and other Conditions),
Drawings, Specifications, Addenda issued prior to execution of this Agreement,
other documents listed in this Agreement and Modifications issued after
execution of this Agreement; these form the Contract, and are as fully a part
of the Contract as if attached to this Agreement or repeated herein. The
Contract represents the entire and integrated agreement between the parties
hereto and supersedes prior negotiations, representations or agreements, either
written or oral. An enumeration of the Contract Documents, other than
Modifications, appears in Article 15. If anything in the other
Contract Documents, other than language set forth in a Modification expressly
amending the Agreement, is inconsistent with this Agreement, this Agreement
shall govern.


 


In the
event of any inconsistency or discrepancy within or among the Contract
Documents, the Contractor shall proceed with the Work and give preference according
to the following priorities: 
Modification agreed to by the Owner and Contractor after the date hereof
as specified in such Modification; the Agreement; the Conditions of Contract;
Specifications; Drawings. Work relating to any such inconsistency or discrepancy
which is performed by or on behalf of the Contractor shall be at the Contractor’s
sole risk and expense.


 


ARTICLE 2 THE WORK OF THIS CONTRACT


 


The Contractor shall fully execute the Work described
in the Contract Documents, except to the extent specifically indicated in the
Contract Documents to be the responsibility of others. All Work shall be
performed in compliance with (i) customary good practices and (ii) all
applicable laws, statutes, professional standards, building codes and regulations.


 


ARTICLE 3 RELATIONSHIP OF THE PARTIES


 


The Contractor accepts the relationship of trust and
confidence established by this Agreement and covenants with the Owner to
cooperate with the Architect and exercise the Contractor’s skill and judgment
in furthering the interests of the Owner; to furnish efficient business
administration and supervision; to furnish at all times an adequate supply of
workers and materials; and to perform the Work in an expeditious and economical
manner consistent with the Owner’s interests. The Owner agrees to furnish and
approve, in a timely manner, information required by the Contractor and to make
payments to the Contractor in accordance with the requirements of the Contract
Documents.


 


ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


 


4.1 The date of commencement of the Work
shall be the date of this Agreement unless a different date is stated below or
provision is made for the date to be fixed in a notice to proceed issued by the
Owner.


 


If, prior to commencement of the Work, the Owner
requires time to file mortgages, mechanic’s liens and other security
interests, the Owner’s time requirement shall be as follows:


 


(Insert the date of commencement, if it differs from the
date of this Agreement or, if applicable, state that the date will be fixed in
a notice to proceed.)


 


4.2          The Contract Time
shall be measured from the date of commencement.


 

















 


4.3          The
Contractor shall achieve Substantial Completion of the entire Work not later
than
                              days from the date of commencement, or as
follows:


 


(Insert number of calendar days.
Alternatively, a calendar date may be used when coordinated with the date of
commencement. Unless stated elsewhere in the Contract Documents, insert any
requirements for earlier Substantial Completion of certain portions of the
Work.)    10/1/2007, subject to adjustments of this Contract
Time as provided in the Contract Documents.


 


(Insert provisions, if any, for liquidated damages relating to failure
to complete on time, or for bonus payments for early completion of the Work.)


 


ARTICLE 5 BASIS FOR PAYMENT


 


5.1          CONTRACT
SUM


 


5.1.1 The Owner
shall pay the Contractor the Contract Sum in current funds for the Contractor’s
performance of the Contract. The Contract Sum is the Cost of the Work as
defined in Article 7 plus the Contractor’s Fee.


 


5.1.2 The
Contractor’s Fee is:  2.75%


 


(State a lump sum, percentage of
Cost of the Work or other provision for determining the Contractor’s Fee, and
describe the method of adjustment of the Contractor’s Fee for changes in the
Work.)


 


5.2          GUARANTEED
MAXIMUM PRICE


 


5.2.1 The sum of
the Cost of the Work and the Contractor’s Fee is guaranteed by the contractor
not to exceed Four million Two Hundred Twenty Five Thousand
Eight Hundred Sixty Six Dollars ($4,225,866), subject to additions
and deductions by Change Order as provided in the Contract Documents. Such
maximum sum is referred to in the Contract Documents as the Guaranteed Maximum
Price. Costs which would cause the Guaranteed Maximum Price to be exceeded
shall be paid by the Contractor without reimbursement by the Owner.


 


(Insert specific provisions if the
Contractor is to participate in any savings.) 
Unavailable at this
time


 


5.2.2 The
Guaranteed Maximum Price is based on the following alternates, if any, which
are described in the Contract Documents and are hereby accepted by the Owner: N/A


 


(State the
numbers or other identification of accepted alternates. If decisions on other
alternates are to be made by the Owner subsequent to the execution of this
Agreement, attach a schedule of such other alternates showing the amount for
each and the date when the amount expires.)


 


WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the
violator to legal prosecution.


 

















 


5.2.3 Unit prices, if any, are as follows:  N/A


 


5.2.4 Allowances, if any, are as follows:


(Identify and state the amounts of any allowances, and state
whether they include labor, materials, or both.)


 


Please refer to F. L. Caulfield & Sons, Inc. cost
estimate list


 


5.2.5 Assumptions, if any, on which the
Guaranteed Maximum Price is based are as follows:


 


• Contractor has not included
a Performance and Payment Bond


• Contractor has not included
Builders Risk Insurance


• Contractor has not included
handling of Hazardous Materials encountered during the course of the work


• Contractor has not included
overtime costs other than final tie-ins


 


5.2.6 To the extent that the Drawings and
Specifications are anticipated to require further development by the Architect,
the Contractor has provided in the Guaranteed Maximum Price for such further
development consistent with the Contract Documents and reasonably inferable
therefrom. Such further development does not include such things as changes in
scope, systems, kinds and quality of materials, finishes or equipment, all of
which, if required, shall be incorporated by Change Order.


 


ARTICLE 6 CHANGES IN THE WORK


 


6.1    Adjustments
to the Guaranteed Maximum Price on account of changes in the Work may be
determined by any of the methods listed in Subparagraph 7.3.3 of AIA Document A201-1997.


 


6.2  In calculating
adjustments to subcontracts (except those awarded with the Owner’s prior
consent on the basis of cost plus a fee), the terms “cost” and “fee” as used in
Clause 7.3.3.3 of AIA Document A201-1997 and the terms “costs”
and “a reasonable allowance for overhead and profit” as used in Subparagraph
7.3.6 of AIA Document A201-1997 shall have the meanings assigned to -them in
AIA Document A201-1997 and shall not be modified by Articles 5, 7 and 8 of this
Agreement. Adjustments to subcontracts awarded with the Owner’s prior consent
on the basis of cost plus a fee shall be calculated in accordance with the
terms of those subcontracts.


 


6.3
 In calculating adjustments to
the Guaranteed Maximum Price, the terms “cost” and “costs” has used in the
above-referenced provisions of AIA Document A201-1997 shall mean the Cost of
the -Work as defined in Article 7 of this Agreement and the terms “fee”
and “a reasonable allowance for overhead and profit” shall
mean the Contractor’s Fee as defined in Subparagraph 5.1.2 of -this
Agreement.


 

















 


6.4 If no specific provision is made in
Paragraph 5.1 for adjustment of
the Contractor’s Fee in the case of changes in the Work, or if the
extent of such changes is such, in the aggregate, that application of the
adjustment provisions of Paragraph 5.1 will
cause substantial inequity to the Owner or Contractor, the Contractor’s Fee
shall be equitably adjusted on the basis of the Fee established for the
original Work, and the Guaranteed Maximum Price shall be adjusted accordingly.


 


ARTICLE 7 COSTS TO BE REIMBURSED


 


7.1      COST OF THE
WORK


 


The term Cost of the Work shall mean costs necessarily
incurred by the Contractor in the proper performance of the Work. Such costs
shall be at rates not higher than the standard paid at the place of the Project
except with prior consent of the Owner. The Cost of the Work shall include only
the items set forth in this Article 7.


 


7.2      LABOR COSTS


 


7.2.1 Wages of construction workers
directly employed by the Contractor to perform the construction of the Work at
the site or, with the Owner’s approval, at off-site workshops.


 


7.2.2 Wages or salaries of the Contractor’s
supervisory and administrative personnel when stationed at the site with the
Owner’s approval.


 


(If it is intended that the wages or salaries of certain
personnel stationed at the Contractor’s principal or other offices shall be
included in the Cost of the Work, identify in Article 14 the personnel to be included
and whether for all or only part of their time, and the rates at which their
time will be charged to the Work.)


 


7.2.3 Wages and salaries of the Contractor’s
supervisory or administrative personnel engaged, at factories, workshops or on
the road, in expediting the production or transportation of materials or
equipment required for the Work, but only for that portion of their time
required for the Work.


 


7.2.4 Costs paid or
incurred by the Contractor for taxes, insurance, contributions, assessments and
benefits required by law or collective bargaining agreements and, for personnel
not covered by such agreements, customary benefits such as sick leave, medical
and health benefits, holidays, vacations and pensions, provided such costs are
based on wages and salaries included in the Cost of the Work under
Subparagraphs 7.2.1 through
7.2.3.


 


7.3      SUBCONTRACT
COSTS


 


7.3.1 Payments made by the Contractor to
Subcontractors in accordance with the requirements of the subcontracts.


 


7.4      COSTS OF
MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION


 


7.4.1 Costs, including transportation and
storage, of materials and equipment incorporated or to be incorporated in the
completed construction.


 


7.4.2 Costs of
materials described in the preceding Subparagraph 7.4.1 in excess of those actually
installed to allow for reasonable waste and spoilage. Unused excess materials,
if any, shall become the Owner’s property at the completion of the
Work or, at the Owner’s option, shall be sold by the Contractor. Any
amounts realized from such sales shall be credited to the Owner as a deduction
from the Cost of the Work.


 


7.5      COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS


 


7.5.1 Costs, including transportation and
storage, installation, maintenance, dismantling and removal of materials,
supplies, temporary facilities, machinery, equipment, and hand tools not
customarily owned by construction workers, that are provided by the Contractor
at the site and


 

















 


fully consumed in the performance of the Work; and cost (less salvage
value) of such items if not fully consumed, whether sold to others or retained
by the Contractor. Cost for items previously used by the Contractor shall mean
fair market value.


 


7.5.2 Rental
charges for temporary facilities, machinery, equipment, and hand tools not
customarily owned by construction workers that are provided by the Contractor
at the site, whether rented from the Contractor or others, and costs of
transportation, installation, minor repairs and replacements, dismantling and
removal thereof. Rates and quantities of equipment rented shall be subject to
the Owner’s prior approval.


 


7.5.3 Costs
of removal of debris from the site.


 


7.5.4 Costs
of document reproductions, facsimile transmissions and long-distance telephone
calls, postage and parcel delivery charges, telephone service at the site and
reasonable petty cash expenses of the site office.


 


7.5.5 That
portion of the reasonable expenses of the Contractor’s personnel incurred while
traveling in discharge of duties connected with the Work.


 


7.5.6 Costs
of materials and equipment suitably stored off the site at a mutually
acceptable location, if approved in advance by the Owner.


 


7.6                               MISCELLANEOUS COSTS


 


7.6.1 That
portion of insurance and bond premiums that can be directly attributed to this
Contract


 


7.6.2 Sales,
use or similar taxes imposed by a governmental authority that are related to
the. Work.


 


7.6.3 Fees
and assessments for the building permit and for other permits, licenses and
inspections for which the Contractor is required by the Contract Documents to
pay.


 


7.6.4 Fees
of laboratories for tests required by the Contract Documents, except those
related to defective or nonconforming Work for which reimbursement is excluded
by Subparagraph 13.5.3 of AIA Document A201-1997 or other provisions of the Contract Documents, and
which do not fall within the scope of Subparagraph 7.7.3.


 


7.6.5 Royalties
and license fees paid for the use of a particular design, process or product
required by the Contract Documents; the cost of defending suits or claims for
infringement of patent rights arising from such requirement of the Contract
Documents; and payments made in accordance with legal judgments against the
Contractor resulting from such suits or claims and payments of settlements made
with the Owner’s consent. However, such costs of legal defenses, judgments and
settlements shall not be included in the calculation of the Contractor’s Fee or
subject to the Guaranteed Maximum Price. If such royalties, fees and costs are
excluded by the last sentence of Subparagraph 3.17.1 of AIA Document
A201-1997 or other provisions of
the Contract Documents, then they shall not be included in the Cost of the
Work.


 


7.6.6 Data
processing costs related to the Work.


 


7.6.7 Deposits lost for causes other
than the Contractor’s negligence or failure to fulfill a specific
responsibility to the Owner as set forth in the Contract Documents.


 

















 


7.6.8 Legal, mediation and arbitration
costs, including attorneys’ fees, other than those arising from disputes
between the Owner and Contractor, reasonably incurred by the Contractor in the
performance of the Work and with the Owner’s prior written approval;
which approval shall not be unreasonably withheld.


 


7.6.9 Expenses
incurred in accordance with the Contractor’s standard personnel policy for
relocation and temporary living allowances of personnel required for the Work,
if approved by the Owner.


 


7.7    OTHER COSTS AND EMERGENCIES


 


7.7.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.


 


7.7.2 Costs due to
emergencies incurred in taking action to prevent threatened damage, injury or
loss in case of an emergency affecting the safety of persons and property, as
provided in Paragraph 10.6 of
AIA Document A201-1997.


 


ARTICLE 8 COSTS NOT TO BE REIMBURSED


 


8.1  The
Cost of the Work shall not include:


 


8.1.1 Salaries and other compensation of
the Contractor’s personnel stationed at the Contractor’s principal
office or offices other than the site office, except as specifically provided
in Subparagraphs 7.2.2 and 7.2.3 or as may be provided in Article 14.


 


8.1.2 Expenses of the Contractor’s
principal office and offices other than the site office. 8.1.3 Overhead and
general expenses, except as may be expressly included in Article 7.


 


8.1.4 The Contractor’s capital expenses, including interest on the
Contractor’s capital employed For the Work.


 


8.1.5 Rental costs of machinery and equipment, except as specifically
provided in Subparagraph 7.5.2.


 


8.1.6 Costs due to the negligence or Failure
to fulfill a specific responsibility of the Contractor, Subcontractors and
suppliers or anyone directly or indirectly employed by any of them or for whose
acts any of them may be liable.


 


8.1.7 Any cost not specifically and expressly described in Article 7.


 


8.1.8 Costs, other than costs included in Change Orders approved by the
Owner, that would cause the Guaranteed Maximum Price to be exceeded.


 


ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS


 


9.1      Cash
discounts obtained on payments made by the Contractor shall accrue to the Owner
if (i) before making the payment, the Contractor included them in an
Application for Payment


 

















 


and received payment therefore from the Owner, or (2) the Owner has deposited funds with
the Contractor with which to make payments; otherwise, cash discounts shall
accrue to the Contractor. Trade discounts, rebates, refunds and amounts
received from sales of surplus materials and equipment shall accrue to the
Owner, and the Contractor shall make provisions so that they can be secured.


 


9.2    Amounts
that accrue to the Owner in accordance with the provisions of Paragraph 9.1 shall be credited to the Owner as a
deduction from the Cost of the Work.


 


ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS


 


10.1 Those portions of the Work that the
Contractor does not customarily perform with the Contractor’s own personnel
shall be performed under subcontracts or by other appropriate agreements with
the Contractor. The Owner may designate specific persons or entities from whom
the Contractor shall obtain bids. The Contractor shall obtain bids from
Subcontractors and from suppliers of materials or equipment fabricated
especially for the Work and shall deliver such bids to the Architect. The Owner
shall then determine, with the advice of the Contractor and the Architect,
which bids will be accepted. The Contractor shall not be required to contract
with anyone to whom the Contractor has reasonable objection.


 


10.2 If a specific bidder among those whose
bids are delivered by the Contractor to the Architect (i) is recommended to the
Owner by the Contractor; (2) is
qualified to perform that portion of the Work; and (3) has submitted a bid that conforms to the requirements of the
Contract Documents without reservations or exceptions, but the Owner requires
that another bid be accepted, then the Contractor may require that a Change
Order be issued to adjust the Guaranteed Maximum Price by the difference
between the bid of the person or entity recommended to the Owner by the
Contractor and the amount of the subcontract or other agreement actually signed
with the person or entity designated by the Owner.


 


10.3 Subcontracts or other agreements shall
conform to the applicable payment provisions of this Agreement, and shall not
be awarded on the basis of cost plus a fee without the prior consent of the
Owner.


 


ARTICLE 11 ACCOUNTING RECORDS


 


The Contractor shall keep full and detailed accounts
and exercise such controls as may be necessary for proper financial management
under this Contract, and the accounting and control systems shall be
satisfactory to the Owner. The Owner and the Owner’s accountants shall be
afforded access to, and shall be permitted to audit and copy, the Contractor’s
records, books, correspondence, instructions, drawings, receipts, subcontracts,
purchase orders, vouchers, memoranda and other data relating to this Contract,
and the Contractor shall preserve these for a period of three years after final
payment, or for such longer period as may be required by law.


 


ARTICLE 12 PAYMENTS


 


T2.1 PROGRESS PAYMENTS


 


12.1.1 Based upon Applications for Payment
submitted to the Architect by the Contractor and Certificates for Payment
issued by the Architect, the Owner shall make progress payments on account of
the Contract Sum to the Contractor as provided below and elsewhere in the
Contract Documents.


 


12.1.2 The period covered by each Application for
Payment shall be one calendar month ending on the last day of the month, or as
follows:


 

















 


12.1.3 Provided that an Application for
Payment is received by the Architect not later than the day of a month, the
Owner shall make payment to the Contractor not later than the             day
of the month. If an Application for Payment is received by the Architect after
the application date fixed above, payment shall be made by the Owner not later
than              
days              
after              
the Architect receives the Application for Payment.


Requisitions shall be received by the Architect on or about
the 1st of each month. Payments are due from the Owner within 30 days
of receipt of Requisition.


 


12.1.4 With each Application for Payment,
the Contractor shall submit payrolls, petty cash accounts, receipted invoices
or invoices with check vouchers attached, and any other evidence required by
the Owner or Architect to demonstrate that cash disbursements already made by
the Contractor on account of the Cost of the Work equal or exceed (i) progress
payments already received by the Contractor; less (2) that portion of those
payments attributable to the Contractor’s Fee; plus (3) payrolls for the period covered by the present Application
for Payment. No application for payment shall
include any amounts for labor or Work not yet performed or materials and/or
equipment not yet incorporated into the Project (or delivered to and securely
stored at the Project Site), or which are defective.


 


12.1.5 Each Application for Payment shall
be based on the most recent schedule of values submitted by the Contractor in
accordance with the Contract Documents. The schedule of values shall allocate
the entire Guaranteed Maximum Price among the various portions of the Work,
except that the Contractor’s Fee shall be shown as a single separate item. The
schedule of values shall be prepared in such form and supported by such data to
substantiate its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for reviewing the
Contractor’s Applications for Payment.


 


12.1.6 Applications for Payment shall show
the percentage of completion of each portion of the Work as of the end of the
period covered by the Application for Payment. The percentage of completion
shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed; or
(2) the percentage obtained by dividing (a) the expense that has actually been
incurred by the Contractor on account of that portion of the Work for which the
Contractor has made or intends to make actual payment prior to the next
Application for Payment by (b) the share of the Guaranteed Maximum Price
allocated to that portion of the Work in the schedule of values.


 


12.1.7 Subject to other provisions of the Contract
Documents, the amount of each progress payment shall be computed as follows:


 


.1  take that portion of the Guaranteed Maximum Price properly
allocable to completed Work as determined by multiplying the percentage of
completion of each portion of the Work by the share of the Guaranteed Maximum
Price allocated to that portion of the Work in the schedule of values. Pending
final determination of cost to the Owner of changes in the Work, amounts not in
dispute shall be included as provided in Subparagraph 7.3.8 of AIA Document A201-1997;


 


.2  add that portion of the Guaranteed Maximum Price properly allocable
to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work, or if approved in advance by the Owner,
suitably stored off the site at a location agreed upon in writing;


 


 .3 add
the Contractor’s Fee, less retainage of percent (10%)**. The Contractor’s Fee shall be computed upon the Cost
of the Work described in the two preceding Clauses at the rate stated in
Subparagraph 5.1.2 or, if the Contractor’s Fee is stated as a fixed
sum in that Subparagraph, shall be an amount that bears the same ratio to that
fixed-sum fee as the Cost of the Work in the two preceding Clauses bears to a
reasonable estimate of the probable Cost of the Work upon its completion;


 


.4  subtract the aggregate of previous payments made by the Owner;


 


.5  subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.1.4 to substantiate prior Applications
for Payment, or resulting from errors subsequently discovered by the Owner’s
accountants in such documentation; and


 


.6  subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of AIA
Document A201-1997.


 






**Retainage
reduced to 5% after 50% completion


 

















 


12.1.8 Except with the Owner’s prior
approval, payments to Subcontractors shall be subject to retainage of not less
than percent (10 %)**. The Owner
and the Contractor shall agree upon a mutually acceptable procedure for review
and approval of payments and retention for Subcontractors. **Retainage
reduced to 5% after 50% completion


 


12.1.9 In taking action on the Contractor’s
Applications for Payment, the Architect shall be entitled to rely on the
accuracy and completeness of the information furnished by the Contractor and
shall not be deemed to represent that the Architect has made a detailed
examination, audit or arithmetic verification of the documentation submitted in
accordance with Subparagraph 12.1.4 or other supporting data; that the
Architect has made exhaustive or continuous on-site inspections or that the
Architect has made examinations to ascertain how or for what purposes the
Contractor has used amounts previously paid on account of the Contract. Such
examinations, audits and verifications, if required by the Owner, will be
performed by the Owner’s accountants acting in the sole interest of the Owner.


 


12.2 FINAL
PAYMENT


 


12.2.1 Final payment, constituting the entire unpaid
balance of the Contract Sum, shall be made by the Owner to the Contractor when:


 


.1  the Contractor has fully performed the
Contract except for the Contractor’s responsibility to correct Work
as provided in Subparagraph 12.2.2 of AIA Document A201-1997,
and to satisfy other requirements, if any, which extend beyond final payment;
and


 


.2 a
final Certificate for Payment has been issued by the Architect.


 


12.2.2 The Owner’s final payment to the Contractor
shall be made no later than 30 days after the issuance of the Architect’s final
Certificate for Payment, or as follows: N/A


 


12.2.3 The Owner’s accountants
will review and report in writing on the Contractor’s final
accounting within 30 days after delivery of the final accounting to the
Architect by the Contractor. Based upon such Cost of the Work as the Owner’s
accountants report to be substantiated by the Contractor’s final accounting,
and provided the other conditions of Subparagraph 12.2.1 have been met, the
Architect will, within seven days after receipt of the written report of the
Owner’s accountants, either issue to the Owner a final Certificate for Payment
with a copy to the Contractor, or notify the Contractor and Owner in writing of
the Architect’s reasons for withholding a certificate as provided in
Subparagraph 9.5.1 of the AIA Document A201-1997. The time periods stated in
this Subparagraph 12.2.3 supersede those stated in Subparagraph 9.4.1 of the
AIA Document A201-1997.


 


12.2.4 If the Owner’s
accountants report the Cost of the Work as substantiated by the Contractor’s
final accounting to be less than claimed by the Contractor, the Contractor
shall be entitled to demand arbitration of the disputed amount without a
further decision of the Architect. Such demand for arbitration shall be made by
the Contractor within 30 days after the Contractor’s receipt of a
copy of the Architect’s final Certificate for Payment; failure to
demand arbitration within this 3o-day period shall result in the substantiated
amount reported by the Owner’s accountants becoming binding on the
Contractor. Pending a final resolution by arbitration, the Owner shall pay the
Contractor the amount certified in the Architect’s final Certificate
for Payment.


 


12.2.5 If, subsequent to final payment and at the
Owner’s request, the Contractor incurs costs described in Article 7
and not excluded by Article 8 to correct defective or nonconforming Work,


 

















 


the Owner shall reimburse
the Contractor such costs and the Contractor’s Fee applicable thereto on the
same basis as if such costs had been incurred prior to final payment, but not
in excess of the Guaranteed Maximum Price. If the Contractor has participated in
savings as provided in Paragraph 5.2, the amount of such savings shall be
recalculated and appropriate credit given to the Owner in determining the net
amount to be paid by the Owner to the Contractor.


 


ARTICLE 13
TERMINATION OR SUSPENSION


 


13.1 The Contract may be terminated by the Contractor, or by the Owner for
convenience, as provided in Article 14 of AIA Document A201-1997. However, the
amount to be paid to the Contractor under Subparagraph 14.1.3 of AIA Document
A201-1997 shall not exceed the amount the Contractor would be entitled to
receive under Paragraph 13.2 below.


 


13.2 The Contract may be terminated by the Owner for cause as provided in
Article 14 of AIA Document A201-1997. The amount, if any, to be paid to the
Contractor under Subparagraph 14.2.4 of AIA Document A201-1997 shall not cause
the Guaranteed Maximum Price to be exceeded, nor shall it exceed an amount
calculated as follows:


 


13.2.1 Take the Cost of the Work incurred by the Contractor to the date of
termination;


 


13.2.2 Add the Contractor’s Fee computed upon the Cost of the Work to the date
of termination at the rate stated in Subparagraph 5.1.2 or, if the Contractor’s
Fee is stated as a fixed sum in that Subparagraph, an amount that bears the
same ratio to that fixed-sum Fee as the Cost of the Work at the time of
termination bears to a reasonable estimate of the probable Cost of the Work
upon its completion; and


 


13.2.3 Subtract the aggregate of previous payments made by the Owner.


 


13.3 The Owner shall also pay the Contractor fair compensation, either by
purchase or rental at the election of the Owner, for any equipment owned by the
Contractor that the Owner elects to retain and that is not otherwise included
in the Cost of the Work under Subparagraph 13.2.1. To the extent that the Owner
elects to take legal assignment of subcontracts and purchase orders (including
rental agreements), the Contractor shall, as a condition of receiving the
payments referred to in this Article 13, execute and deliver all such papers
and take all such steps, including the legal assignment of such subcontracts
and other contractual rights of the Contractor, as the Owner may require for
the purpose of fully vesting in the Owner the rights and benefits of the
Contractor under such subcontracts or purchase orders.


 


13.4 The Work may be suspended by the Owner as
provided in Article 14 of AIA Document A201-1997; in such case, the Guaranteed
Maximum Price and Contract Time shall be increased as provided in Subparagraph
14.3.2 of AIA Document A201-1997 except that the term “profit” shall be
understood to mean the Contractor’s Fee as described in Subparagraphs 5.1.2 and
Paragraph 6.4 of this Agreement.


 


ARTICLE 14 MISCELLANEOUS
PROVISIONS


 


14.1 Where reference is made in this Agreement to a provision AIA Document
A201-1997 or another Contract Document, the reference refers to that provision
as amended or supplemented by other provisions of the Contract Documents.


 

















 


14.2 Payments
due and unpaid under the Contract shall bear interest from the date payment is
due at the rate stated below, or in the absence thereof, at the legal rate
prevailing from time to time at the place where the Project is located.


 


(Insert rate of interest agreed upon, if any.)


 


(Usury laws and requirements under the Federal Truth
in Lending Act, similar state and local consumer credit laws and other
regulations at the Owner’s and Contractor’s principal places of business, the
location of the Project and elsewhere may affect the validity of this
provision. Legal advice should be obtained with respect to deletions or
modifications, and also regarding requirements such as written disclosures or
waivers.)


 


	
  14.3 The Owner’s representative is:

  	
  John
  Shearns

  
	
  (Name,
  address and other information.)

  	
  Microbia,
  Inc.

  
	
   

  	
  320 Bent
  Street

  
	
   

  	
  Cambridge,
  MA 02141

  
	
   

  	
   

  
	
  14.4 The
  Contractor’s representative is:

  	
  Thomas
  Caulfield/Dick Martin

  



 


14.5 Neither the Owner’s nor the
Contractor’s representative shall be changed without ten days’
written notice to the other party.


 


14.6   Other
provisions:   N/A


 


ARTICLE 15
ENUMERATION OF CONTRACT DOCUMENTS


 


15.1     The
Contract Documents, except for Modifications issued after execution of this Agreement,
are enumerated as follows:


 


15.1.1 The Agreement is this executed 1997 edition
of the Standard Form of Agreement Between Owner and Contractor, AIA Document
AM-1997.


 


15.1.2 The
General Conditions are the 1997 edition of the General Conditions of the
Contract for Construction, AIA Document A201-1997.


 

















 


15.1.3 The Supplementary and other
Conditions of the Contract are those contained in the Project Manual dated
            , and
are as follows:      N/A


 


	
  Document

  	
   

  	
  Title

  	
   

  	
  Pages

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


15.1.4 The Specifications are those
contained in the Project Manual dated as in Subparagraph 15.1.3, and are as follows:


(Either list the Specifications here or refer to an
exhibit attached to this Agreement.)


 


	
  Section

  	
   

  	
  Title

  	
   

  	
  Pages

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


No formal specifications were issued


 


 


15.1.5 The Drawings are as follows, and are
dated different date is shown below:


(Either
list the Drawings here or refer to an exhibit attached to this Agreement.)


 


	
  Number

  	
   

  	
  Title

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


SEE
ATTACHED


 

















 


15.1.6 The Addenda, if any, are as follows:


 


	
  Number

  	
   

  	
  Date

  	
   

  	
  Pages

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


No formal specifications were issued


 


 


WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the
violator to legal prosecution


 


 


Portions of Addenda relating to bidding requirements
are not part of the Contract Documents unless the bidding requirements are also
enumerated in this Article 15.


 


15.1.7 Other Documents, if any, forming part of the
Contract Documents are as follows:


(List here any additional documents, such as a list of
alternates that are intended to form part of the Contract Documents.AlA
Document A201-1997 provides that bidding requirements such as advertisement or
invitation to bid, Instructions to Bidders, sample forms and the Contractor’s
bid are not part of the Contract Documents unless enumerated in this Agreement.
They should be listed here only if intended to be part of the Contract
Documents.)


N/A


 

















 


 





 


1997 AIA®


AIA DOCUMENT A111-1997


OWNER-CONTRACTOR AGREEMENT


 


The American Institute


of Architects


1735 New York Avenue, N.W.


Washington, D.C. 20006-5292


 

















 


ARTICLE 16 INSURANCE AND BONDS


(List
required limits of liability for insurance and bonds. AIA Document A201-1997
gives other specific requirements for insurance and bonds.)


 


Contractor
shall purchase from and maintain in a company or companies lawfully authorized
to do business in the Commonwealth of Massachusetts and having an A.M. Best’s
Insurance Rating of A:VIII or better, insurance for not less than the
following, or greater if required by law:


 


	
  Type of Insurance

  	
   

  	
  Limit of Liability ($0.00)

  
	
   

  	
   

  	
   

  
	
  Commercial General Liability

  	
   

  	
  $1,000,000 per
  occurrence/$2,000,000 in the aggregate

  
	
   

  	
   

  	
   

  
	
  Excess/Umbrella Liability

  	
   

  	
  $6,000,000 per occurrence and in the Aggregate

  
	
   

  	
   

  	
   

  
	
  Automobile Liability (schedules,
  hired And non-owned autos)

  	
   

  	
  $1,000,000 combined single limit per per accident

  



 


Liability insurance shall include all major divisions
of coverage and be of a comprehensive basis including:


 


1.              Premises Operations
(including X-C/U as applicable).


2.              Independent Contractors’
Protective


3.              Products:  and Completed Operations


4.              Personal Injury Liability
with Employment Exclusion deleted.


5.              Contractual-including
specified provisions for the Contractor’s indemnification obligation Under the
Contract Documents


6.     Broad form
Property Damage including Completed Operations.


 


Contractor
shall name Owner, Archemix Corporation (“Sublandlord”), Three Hundred Third
Street LLC and BioMed Realty Trust, Inc. (collectively, “Master Landlord”) and Momenta
Pharmaceuticals (“subtenant”), and any other interested
party of whom Contractor shall be given written notice as an additional
insurance on all liability policies of Contractor throughout the Project and
for Completed Operations Coverage for an additional two year period after
completion of the Work. The insurance policy shall be endorsed stating that
such insurance shall be primary to and non-contributory with any other
insurance maintained by Owner, Sublandlord or Master Landlord.


 


Contractor’s
insurance shall provide that the insurer waives all rights of recovery or
subrogation against Owner, Sublandlord and Master Landlord, and their officers,
directors, employees, agents and insurers for (i) damages for injury to or
death of persons; (ii) damage to property; and (iii) claims arising by reason
of the foregoing due to hazards covered by insurance, to the extend of proceeds
recovered therefrom.


 


Certificates
of Insurance for all insurance required hereby shall be furnished by the
Contractor to Owner, Sublandlord and Master Landlord before Contractor or any
Subcontractor commences any Work and thereafter at least thirty (30) days prior
to each cancellation, non-renewal or material reduction in coverage that causes
the insurance to no longer meet the requirements herein. The insurance
certificates required hereby shall provide that he insurance carrier shall
endeavor to provide the certificate holders with at least ten (10) days notice
prior to the cancellation, non-renewal or adverse material change in any policy
covered thereby. If any policy of Insurance required to be maintained by Contractor
herein is cancelled or non-renewed, Contractor shall promptly replace the
policy with a substantially similar policy from an insurer with an A.M. Best’s
Insurance Rating of A:  VIII or better,
and Contract will provide evidence of same to owner.


 

















 


This Agreement is entered into as of the day and year
first written above and is executed in at least three original copies, of which
one is to be delivered to the Contractor, one to the Architect for use in the
administration of the Contract, and the remainder to the Owner.


 


	
  /s/ Richard P. Shea

  	
   

  	
  /s/ Thomas P.
  Caulfield

  	
   

  
	
  OWNER
  (Signature)

  	
   

  	
  CONTRACTOR
  (Signature)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Richard P. Shea CFO

  	
   

  	
  Thomas P. Caulfield, President

  	
   

  
	
  (Printed name and title)

  	
   

  	
  (Printed name and title)

  	
   

  



 


CAUTION: You should sign an original AIA document or a
licensed reproduction. Originals contain the AIA logo printed in red; licensed reproductions are those produced
in accordance with the
Instructions to this document.


 

















 


EXHIBIT C


 


List of Drawings


 


New Laboratories & Offices for: MOMENTA, Level Four, 300 Third
Street Cambridge, Massachusetts. Construction Set 19 June 2007. Alexandria Real
Estate as the Owner, Momenta Pharmaceuticals Inc as the Tenant, FL Caulfield
& Sons as the Construction Manager and Olsen Lewis Dioli & Doktor
Architect as the Architect.


 


Architectural:


 


A1.0, Existing/Demolition Parking Level 1 Plan, Construction Set, 19
June 2007


A1.1, Proposed Plan Parking Level 1 & 2, Construction Set, 19 June
2007


A2.0, Existing Plan, Construction Set, 19 June 2007


A2.1, Proposed Plan, Construction Set, 19 June 2007


A2.2, Reflected Ceiling Plan, Construction Set, 19 June 2007


A2.3, Equipment Plan, Construction Set, 19 June 2007


A2.4, Dimensioned Plan, Construction Set, 19 June 2007


A2.5, Furniture & Cubicles Plan, 19 June 2007


A2.6, Fire Extinguisher Location Plan, Construction Set, 19 June 2007


A5.0, Casework Elevations, Construction Set, 19 June 2007


A6.0, Wall and Door Types, Schedules, Construction Set, 19 June 2007


AF2.1, Proposed Flooring/ Paint Plan and Finish Schedule, Construction
Drawings, 27 March 2007


 


Structural:


 


S1, (Dated in general notes 25 April 2007)


S2, (Not dated, drawing reflect new generator and fan location)


 


Fire Alarm:


 


FA.0, Legend, Detail and Notes, Value Engineering Changes, 8 May 2007


FA.1, Parking Levels One & Two, Partial Plans, Value Engineering
Changes, 8 May 2007


FA.2, Fourth Floor Office Plan, Value Engineering Changes, 8 May 2007


 


Fire Protection:


 


FP.0,  Legend, Details and Notes,
Value Engineering Changes, 8 May 2007


FP.1, Parking Levels One & Two, Partial Plans, Value Engineering
Changes, 8 May 2007


FP.2D, Fourth Floor, Demolition Plan,Value Engineering Changes, 8 May
2007


FP.2, Fourth Floor, New York Plan, Value Engineering Changes, 8 May
2007


 


Plumbing:


 


P0.1, Legend and Diagrams, Value Engineering Changes, 8 May 2007


P1.1, Parking Level 1 (First Floor), Value Engineering Changes, 8 May
2007


P1.2, Parking Level 1 (Second Floor), Value Engineering Changes, 8 May
2007


P2.1. Office Level 1 Part Plan (Third Floor),Value Engineering Changes,
8 May 2007


P2.2, Office Level 1 Part Plan (Third Floor),Value Engineering Changes,
8 May 2007


P2.3, Office Level 1 Part Plan (Third Floor),Value Engineering Changes,
8 May 2007


P3.1, Office Level II Part Plan (Fourth Floor), Value Engineering
Changes, 8 May 2007


P3.2, Office Level II Part Plan (Fourth Floor), Value Engineering
Changes, 8 May 2007


P3.3, Office Level II Part Plan (Fourth Floor), Value Engineering
Changes, 8 May 2007


P4.1, Roof Plan, Value Engineering Changes, 8 May 2007


P5.1, Part Plan, Value Engineering Changes, 8 May 2007


 


Mechanical:


 


H0.1, HVAC Legend & General Notes, Value Engineering Changes, 8 May
2007


H0.2, HVAC Schedules, Value Engineering Changes, 8 May 2007


H0.3, HVAC Details, Value Engineering Changes, 8 May 2007


H0.4, HVAC Details, Value Engineering Changes, 8 May 2007


 

















 


H1.1. HVAC Parking Level 1 Plan, Value Engineering Changes, 8 May 2007


H1.2, HVAC Fourth Floor Ductwork Plan, Value Engineering Changes, 8 May
2007


H1.3, HVAC Fourth Floor Piping Plan, Value Engineering Changes, 8 May
2007


H1.4, HVAC Roof Plan, Value Engineering Changes, 8 May 2007


 


Electrical:


 


E0.1, Legend, Notes and Schedules, Value Engineering Changes, 8 May
2007


E0.2, Power Riser Distribution Diagram, Value Engineering Changes, 8
May 2007


E0.3, Schedules and Details, Value Engineering Changes, 8 May 2007


E0.4, Details, Value Engineering Changes, 8 May 2007


E1.1, First Floor Lighting Part Plans, Value Engineering Changes, 8 May
2007


E1.2, Fourth Floor Lighting Plan, Value Engineering Changes, 8 May 2007


E2.1, First Floor Power Part Plans, Value Engineering Changes, 8 May
2007


E2.2, Fourth Floor Power Plan, Value Engineering Changes, 8 May 2007


E2.3, Roof Level Power Plan, Value Engineering Changes, 8 May 2007


ED1.1, First Floor Demolition Part Plans, Value Engineering Changes, 8
May 2007


TD1.2, Fourth Floor Communications Plan, Value Engineering Changes, 8
May 2007


 

















 


EXHIBIT D


 


Copy of Architect Contract


 
















4 October 2006


 


Mr. Richard Shea


Momenta Pharmaceuticals, Inc.


675 West Kendall Street


Cambridge, Massachusetts 02142


 


Re: Fee Proposal for Design of
New Offices and Laboratories for Momenta, 2nd Floor, 300 Third
Street, Cambridge, Mass


 


Mr. Shea:


 


I am
pleased to submit this fee proposal for the above described project. This fee
proposal covers Schematic Design, Permit Drawings, Construction Drawings, and
Construction Observation of the approximately 20,000 sq ft space at 300 Third.


 


We
assume that you will develop a program which would include names of spaces in
the project, areas of the individual spaces (or desired dimensions), projected
head counts and an equipment matrix which would list all floor standing
equipment and any benchtop equipment which might have specific utility
requirements such as 208 volt power, RODI water, CO2, etc. We are available to
consult with you to assist you in the preparation of the above documents.
Should you wish to hire us to prepare the above documents we will do so for the
additional fee of $10,000.


 


We will act as Architect for the above project and will provide all the
Basic Services as described, for a fixed fee of $180,700. The fee is divided
into the following Phases:


 


	
  Phase Name

  	
   

  	
  Fee

  	
   

  
	
  Schematic Design

  	
   

  	
  $

  	
  22,800

  	
   

  
	
  Permit Set

  	
   

  	
  $

  	
  43,410

  	
   

  
	
  Construction
  Drawings

  	
   

  	
  $

  	
  74,690

  	
   

  
	
  Construction
  Observation

  	
   

  	
  $

  	
  39,800

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  180,700

  	
   

  



 


The fee includes normal expenses such as travel to and from the site
and your offices, and all prints needed to execute the project (except those to
be used for bidding and construction). MEPFP Engineering services only are
included (AHA Engineers) in this proposal. We assume that no structural
engineering is required as there is already rooftop areas allocated for your
air handling equipment. Any


 

















 


additional consultants for the project will be hired only with your
agreement and will be billed to you at their cost.


 


This fee is based on the assumption that you will work with an
experienced BioTech contractor to build the project, such as Linbeck, The
Richmond Group, or other similarly capable company.


 


We will supply all working prints for the project except those used for
construction (typically paid for by the contractor). We expect no additional
reimbursable expenses for the project.


 


We will bill you monthly on a basis of percentage completion of the
various phases.


 


Looking forward to working with you towards a successful collaboration
on this project, I remain...


 


	
  Yours Truly,

  	
   

  
	
   

  	
   

  
	
  /s/ Randy Lewis

  	
   

  	
   

  
	
   

  	
   

  
	
  Randy Lewis, President

  	
    /s/ Richard P. Shea

  	
   

  
	
   

  	
   

  	
  For Momenta

  
					



 

















 


STANDARD SCHEDULE OF CHARGES AND CONDITIONS


 


I. Fees


Work covered by a fixed fee in the Letter of Agreement will be billed
monthly on a basis of percentage of completion of the Architect’s work. The
fees will not exceed the amount in the Letter Agreement unless an amendment or
Change Order is signed by both parties.


 


II. Consultants


Fees for consultants not included in the Letter of Agreement, will be
charged at a multiple of 1.10 times professional service charges. Additional
consultants shall be used only when authorized in writing by the Owner.


 


III. Reimbursable Expenses


Reimbursable Expenses are in addition to compensation for the Architect’s
services and include expenses incurred by the Architect and Architect’s
employees and consultants directly related to the Project. The following items
of direct non-salary expenses will be billed at a multiple of 1 times the
actual direct cost.


 


1.                       authorized
out-of-town travel and subsistence,;


2.                       fees paid
for securing approval of authorities having jurisdiction over the Project;


3.                       reproductions,
plots, standard form documents, postage, handling and delivery of Instruments
of Service;


4.                       renderings,
models and mock-ups requested by the Owner;


5.                       expense of
professional liability insurance dedicated exclusively to this Project or the
expense of additional insurance coverage or limits requested by the Owner in
excess of that normally carried by the Architect and the Architect’s
consultants;


6.                       other
similar direct Project-related expenditures, approved in advance by Owner in
writing.


 


IV. Change in Services


Change in Services of the Architect, including services required of the
Architect’s consultants, may be accomplished after execution of this Agreement,
without invalidating the Agreement, if mutually agreed in writing. The
Architect shall notify the Owner prior to providing such services. If the Owner
deems that all or a part of such Change in Services is not required, the Owner
shall give prompt written notice to the Architect, and the Architect shall have
no obligation to provide those services. Except for a change due to the fault
of the Architect, Change in Services of the Architect shall entitle the
Architect to an adjustment in compensation and to any Reimbursable Expenses.


 


The following circumstances that affect the Architect’s services for
the Project, shall entitle the Architect to an appropriate adjustment in the
Architect’s schedule and compensation:


 


1.                       change in
the instructions or approvals given by the Owner that necessitate revisions in
Instruments of Service;


2.                       enactment
or revision of codes, laws or regulations or official interpretations which
necessitate  changes to previously
prepared Instruments of Service;


3.                       decisions
of the Owner not rendered in a timely manner;


4.                       significant
change in the Project including, but not limited to, size, quality, complexity,
the Owner’s  schedule or budget, or
procurement method;


5.                       failure of
performance on the part of the Owner or the Owner’s consultants or contractors;


6.                       preparation
for and attendance at a public hearing, a dispute resolution proceeding or a
legal  proceeding except where the
Architect is party thereto;


 


The Architect shall be paid at the rate or rates set forth herein for
Change in Services:


 


	
  Principals

  	
   

  	
  $150.00/hour

  	
   

  
	
  Associates

  	
   

  	
  $125.00/hour

  	
   

  
	
  Project
  Architects

  	
   

  	
  $100.00/hour

  	
   

  
	
  Designers

  	
   

  	
    $55.00 - 95.00/hour

  	
   

  



 

















 


V. Invoices and Retainers


A.    Where
included in the Letter of Agreement, retainers are due with the execution of
the Agreement. Invoices will generally be submitted monthly for services
performed during the previous month or at the end of phases described in the
Letter of Agreement. Payment will be due within 30 days of receipt of the
invoice. Interest will be added to accounts in arrears over 30 days.


 


B.    Unless a
maximum sum is agreed upon and incorporated into the Letter of Agreement, the
Owner’s obligation for Architect’s services shall be limited to the accrued
services performed, consultants, fees and reimbursable expenses to date of
invoice.


 


VI. Insurance and Liability


We are protected by Workers Compensation Insurance, Professional
Liability Insurance and by Standard Public Liability Insurance. We will furnish
information and Certificates at your request. Our Professional Liability
Insurance Limit is $1,000,000. Additional coverage at the Owner’s request is
available upon reimbursement to the Architect of increased premium charge.


 


VII. Ownership and Use of Documents


A.    Drawings,
specifications, and other documents
produced by the Architect under the Agreement (“Developments”), shall be “works
made for hire” and the exclusive property of Owner. Architect shall keep and
maintain complete records of all Developments and all work carried out by
Architect under the terms of this Agreement. These records shall also be “works
made for hire” and the exclusive property of Owner. Architect may keep one copy
of these records in its files solely for reference purposes. Architect assigns
to Owner all of its right, title and interest in and to any and all Developments.
During and after the term of this Agreement, Architect will cooperate fully in
obtaining proprietary protection for any and all Developments, all in the name
of the Owner and at Owner’s cost and expense, and, without limitation, shall
execute and deliver all requested applications, assignments and other
documents, and take such other measures as Owner shall reasonably request, in
order to perfect and enforce Owner’s rights in any and all Developments. Architect
hereby appoints Owner its attorney-in-fact to execute and deliver any such
documents on behalf of Architect in the event Architect shall fail to do so.


B.    Architect
shall not  use any third party
intellectual property or facilities in performing the Services contemplated by
this Agreement or engage in any other activities that would result in a third
party having an ownership interest in any Developments.


 


VIII. Confidential Information.


 


A.    As used in this Agreement,
the term “Confidential Information” shall mean any and all proprietary information
of Owner, including, without limitation, that pertaining to its technologies,
products, intellectual property, finances, operations and/or business, which is
disclosed to Architect by Owner, or which Architect learns or observes through
the course of performing services hereunder. Architect shall hold in strict
confidence all Confidential Information and shall not disclose to any other
person any of the Confidential Information.


 


B.    Limitation on Obligations.
The obligations of Architect specified herein shall not apply, and Architect
shall have no further obligations, with respect to any Confidential Information
to the extent Architect can demonstrate that such Confidential Information:


 


(1)          is generally known to the public at the time
of disclosure or becomes generally known through no wrongful act on the part of
Architect;


 


(2)          is lawfully in Architect’s possession at the
time of disclosure other than as a result of a breach of any legal obligation
by any party; or


 

















 


(3)          becomes known to Architect through disclosure
by a third party having the legal right to disclose such Confidential
Information, provided that such disclosure is made to Architect without any
obligation of non-use or non-disclosure.


 


C. Ownership. Architect agrees that Owner is and shall remain the
exclusive owner of the Confidential Information and all patent, copyright,
trade secret, trademark and other intellectual property rights therein. No
license or conveyance of any such rights to Architect is granted or implied
under this Agreement.


 


D. Return of Confidential Information. Upon the written request
of Owner, Architect shall return or destroy (as instructed by Owner), within
ten business days of such request, all tangible manifestations of the
Confidential Information. Subsequent to any return of the Confidential
Information, Architect will continue to be bound by his/her obligations
hereunder.


 


IX. Construction Cost Estimates


Since the Architect has no control over construction cost or
contractors’ prices, any construction cost estimates are made on the basis of
the Architect’s experience and judgment as a design professional, but the
Architect cannot and does not warrant or guarantee that contractors’ proposals,
bids or costs will not vary from the Architect’s estimates.


 


X. Owner’s Responsibilities


A.    The Owner
shall furnish such legal, accounting, and insurance counseling services as may
be required for the project and shall provide the Architect with all existing
information relating to the project which the Architect may request. If the
Owner becomes aware of any fault or default in the project or the Architect’s
services, the Owner shall promptly notify the Architect. The Owner shall
furnish required information or services as expeditiously as necessary for the
orderly performance of the work.


 


XI. Architect’s Role During Construction


If this Agreement provides for construction phase services by the
Architect, the Architect shall visit the site at intervals appropriate to the
stage of construction, to become generally familiar with the progress and
quality of the work and to determine, in general, if the work is proceeding in
accordance with the drawings, specifications, and other contract documents. On
the basis of the on-site observations as an Architect, the Architect shall
endeavor to guard the Owner against defects and deficiencies in the work of the
Contractor. However, it is understood that the Contractor, not  the Architect, is responsible for the
construction of the project, and that the Architect is not responsible for the
acts or omissions of any contractor or subcontractor, for safety programs or
enforcement, or for construction means, methods, techniques, sequences, and
procedures employed by the Contractor.


 


XII. Termination and Suspension of Service


A.    This Letter
of Agreement may be terminated by either party in case of substantial breach by
the other, upon fifteen days prior written notice, provided that the breaching
party has not cured such breach within the aforementioned fifteen days. In
addition, Owner may terminate this Agreement at any time upon 30 days prior
written notice. In the event of termination for reasons other than the
Architect’s breach, the Architect shall be compensated for all services
performed up to the termination date, together with reimbursable expenses then
due.


 


B.    In the
event the Architect’s services are terminated prior to completion of
construction of the project: the Architect shall not be responsible for any
changes made by others in any documents furnished by the Architect, hereunder,
for any components of the Project for which shop drawings or other submissions
are required, for the failure of any construction contractor to construct the
Project or any portion thereof in accordance with documents furnished by the
Architect, or for any errors or omissions in documents furnished by the
Architect which could have been discovered and corrected by the Architect had
it been engaged for subsequent phases of work on the Project.


 


C.    Except for
damages resulting from a breach of confidentiality obligations hereunder, the
Architect and the Owner waive consequential damages for claims, disputes or
other matters in question arising


 

















 


out of or relating to this Agreement. This mutual
waiver is applicable, without limitation, to all consequential damages due to
either party’s termination in accordance with Section


 


XIII. Promotional and Professional Materials


The Architect shall have the right to include photographic or artistic
representations of the design of the Project among the Architect’s promotional
and professional materials. The Architect shall be given reasonable access to
the completed Project to make such representations. However, the Architect’s
materials shall not include the Owner’s confidential or proprietary information
if the Owner has previously advised the Architect in writing of the specific
information considered by the Owner to be confidential or proprietary. The
Owner shall provide professional credit for the Architect in the Owner’s
promotional materials for the Project.


 


XIV. Basic Agreement


This Agreement represents the complete integrated agreement between the
parties, supersedes all prior agreements, may be amended only in writing, and
is binding upon the parties, their successors, assigns, and legal
representatives.


 

















 


19 August 2007


 


Mr. Richard Shea


Momenta Pharmaceuticals, Inc.


675 West Kendall Street


Cambridge, Massachusetts 02142


 


Re: Request for Fee Increase –
Design of New Offices and Laboratories for Momenta, 2nd Floor, 300
Third Street, Cambridge, Mass


 


Mr. Shea:


 


I
apologize for sending this along to you now ... I have had this on my list of
things to do for a long time. At firtst, it was actually doing the work
described in this letter, then, it was dealing with the change to Alnylam’s
occupancy of the space and also, a few hundred other things ...


 


I request a fee increase in the amount of $33,000.00. This increase is
requested due to the additional work required when we are asked to make various
changes to reduce the cost of the project after we had completed our
Construction Documents. This caused the most work to be done by AHA Engineers
as the changes affected more of their work (and drawings) than mine. Also, AHA
has included in their request, an item which lists a fee amount covering
additional site visits which were not a part of their original fee proposal as
discussed with John Shearns.


 


The amounts requested are:


 


	
  OLD&D
  additional Fee:

  	
   

  	
  $

  	
  2,100.00

  	
   

  
	
  AHA additional
  Fee:

  	
   

  	
  $

  	
  11,400.00

  	
   

  
	
  AHA additional
  site visits Fee:

  	
   

  	
  $

  	
  19,500.00

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  33,000.00

  	
   

  



 


Should this letter meet your approval, please sign and return a copy to
me.


 


Call or email me if you have any question regarding this request.


 


	
  Yours Truly,

  	
   

  
	
   

  	
   

  
	
  /s/ Randy Lewis

  	
   

  	
   

  
	
   

  	
   

  
	
  Randy Lewis, President

  	
    /s/ Richard P. Shea

  	
   

  
	
   

  	
   

  	
  For Momenta

  
	
   

  	
   

  
	
  Attch: AHA letter May 16, 2007

  	
   

  
					



 

















 


EXHIBIT E-1


 


List of Equipment


 


	
  Vendor

  	
   

  	
  Description

  	
   

  	
  PO

  Number

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
  300 3rd St Café Furniture

  	
   

  	
  10834

  	
   

  	
  $

  	
  8,344.05

  	
   

  
	
   

  	
   

  	
  300 3rd St Large
  Conference Room

  	
   

  	
   

  	
   

  	
  $

  	
  17,585.10

  	
   

  
	
  W. B. Mason

  	
   

  	
  300 3rd St
  Office Furniture

  	
   

  	
   

  	
   

  	
  $

  	
  33,182.00

  	
   

  
	
   

  	
   

  	
  300 3rd St
  Lobby/Waiting Area

  	
   

  	
   

  	
   

  	
  $

  	
  3,557.59

  	
   

  
	
   

  	
   

  	
  300 3rd St
  Chairs

  	
   

  	
   

  	
   

  	
  $

  	
  3,422.26

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Air Energy

  	
   

  	
  “Domnick Hunter” Nitrogen
  Generator model N2MAX104

  	
   

  	
  12008

  	
   

  	
  $

  	
  28,076.00

  	
   

  
	
  Incorporated

  	
   

  	
  “Powerex” Air Compressor model SEH3007

  	
   

  	
   

  	
   

  	
  $

  	
  35,696.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signs on Site

  	
   

  	
  Signage

  	
   

  	
  11604

  	
   

  	
  $

  	
  4,137.00

  	
   

  



 

















 


EXHIBIT E-2


 


Copies of Purchase Orders


 


	
  Vendor

  	
   

  	
  Description

  	
   

  	
  PO

  Number

  	
   

  	
  PO Amount

  	
   

  	
  Amount

  Remaining

  	
   

  
	
  F.L. Caulfield
  & Sons, Inc.

  	
   

  	
  General Contractor

  	
   

  	
  11792

  	
   

  	
  $

  	
  4,225,198.00

  	
   

  	
  $

  	
  1,002,634.00

  	
   

  
	
  Olson Lewis
  Dioli & Doktor

  	
   

  	
  Architect

  	
   

  	
  9241

  	
   

  	
  $

  	
  213,700.00

  	
   

  	
  $

  	
  18,182.00

  	
   

  
	
  Dick Burnham

  	
   

  	
  “Better Built” Glassware Dryer model D900

  	
   

  	
  12005

  	
   

  	
  $

  	
  13,819.00

  	
   

  	
  $

  	
  13,819.00

  	
   

  
	
  Dick Burnham

  	
   

  	
  “Better Built” Glassware Washer model G302

  	
   

  	
  12006

  	
   

  	
  $

  	
  54,219.00

  	
   

  	
  $

  	
  54,219.00

  	
   

  
	
  Dick Burnham

  	
   

  	
  “Consolidated” Sterilizer, model SSR-3A-PB

  	
   

  	
  12007 01

  	
   

  	
  $

  	
  36,020.00

  	
   

  	
  $

  	
  36,020.00

  	
   

  
	
  John Sherns

  	
   

  	
  Project Management

  	
   

  	
  12197

  	
   

  	
  $

  	
  10,000.00

  	
   

  	
  $

  	
  780.00

  	
   

  



 

















 


EXHIBIT F


 


Copies of Approvals


 


	
  Description

  	
   

  	
  No.

  	
   

  	
  Issuer

  	
   

  	
  Date

  	
   

  
	
  Building Permit

  	
   

  	
  0407075

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  5/3/07

  	
   

  
	
  Application for
  Gas Permit

  	
   

  	
  0507055

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  5/8/07

  	
   

  
	
  Application for
  Plumbing Permit

  	
   

  	
  0507055

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  5/8/07

  	
   

  
	
  Application
  Automatic Sprinkler Permit

  	
   

  	
   

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  5/25/07

  	
   

  
	
  Application for
  Electrical Permit

  	
   

  	
  0507079

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  5/8/07

  	
   

  
	
  Application for
  Roof Top Permit

  	
   

  	
  applied for - not issued

  	
   

  	
  City of Cambridge ISD

  	
   

  	
  applied for- not issued

  	
   

  
	
  Application and
  Permit for Cutting and Welding

  	
   

  	
  07-1653

  	
   

  	
  City of Cambridge Fire
  Department

  	
   

  	
  7/9/07

  	
   

  



 

















 


EXHIBIT G


 


Detail Breakdown of
Purchase Price


 


	
  1.             Sublease Rent for May 1, 2007 -
  October 31, 2007:

  	
   

  	
   

  	
   

  	
  $

  	
  773,328.34

  	
   

  
	
  2.             Payments to Architect, Contractor
  and Vendors:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  F.L. Caufield
  & Sons, Inc. (General Contractor)

  	
   

  	
  $

  	
  3,222,564.00

  	
   

  	
   

  	
   

  
	
   

  	
  Archemix Corp.
  (reimbursement for construction-related expenses)(1)

  	
   

  	
  $

  	
  95,966.90

  	
   

  	
   

  	
   

  
	
   

  	
  Nancy E. Weil
  (Project Manager)

  	
   

  	
  $

  	
  21,079.20

  	
   

  	
   

  	
   

  
	
   

  	
  John J. Shearns
  (Project Manager)

  	
   

  	
  $

  	
  32,820.00

  	
   

  	
   

  	
   

  
	
   

  	
  Olson Lewis
  Dioli & Doktor (Architect)

  	
   

  	
  $

  	
  195,518.00

  	
   

  	
   

  	
   

  
	
   

  	
  W.B. Mason
  (furniture purchase as itemized on Exhibit E-1)

  	
   

  	
  $

  	
  66,091.44

  	
   

  	
   

  	
   

  
	
   

  	
  Air Energy
  Incorporated (equipment purchase as itemized on Exhibit E-1)

  	
   

  	
  $

  	
  63,771.75

  	
   

  	
   

  	
   

  
	
   

  	
  Signs on Site
  (signage)

  	
   

  	
  $

  	
  4,136.60

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  3,701,947.89

  	
   

  
	
  3.             Credit for Seller’s share of
  Broker Fee

  	
   

  	
   

  	
   

  	
  $

  	
  (44,728.00

  	
  )

  
	
  Total Net
  Purchase Price payable to Momenta(2)

  	
   

  	
   

  	
   

  	
  $

  	
  4,430,548.23

  	
   

  



 






(1) Does not include $14,527.23 paid by Momenta to Archemix as
reimbursement for repair of damaged sprinkler valves.  As described in the last recital of the
Purchase Agreement, such amount is not being reimbursed by Alnylam.


 


(2) Does not include reimbursement of Alnylam’s share of “Sublandlord’s
Costs” paid by Momenta pursuant to Section 3.6 of the Purchase Agreement.


 

















 


EXHIBIT H-1


 


[Form of Assignment,
Assumption and Consent Agreement, and First Amendment to Sublease]


 
















 


ASSIGNMENT, ASSUMPTION AND
CONSENT AGREEMENT; AND 


FIRST AMENDMENT TO SUBLEASE


 


ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT; AND FIRST AMENDMENT TO
SUBLEASE (this “Agreement”) dated as of October     ,
2007 by and among Momenta Pharmaceuticals, Inc., a Delaware corporation (“Assignor”),
Alnylam Pharmaceuticals, Inc., a Delaware corporation (“Assignee”), and
Archemix Corp., a Delaware corporation (“Sublandlord”).


 


RECITALS


 


A.                                   ARE-MA Region No. 28, LLC, a Delaware
limited liability company and successor-in-interest to Three Hundred Third
Street L.L.C., (“Overlandlord” or “Landlord”) is the landlord
under that certain Lease dated April 11, 2005, as amended by that certain First
Amendment to Lease dated July 9, 2006 (“First Amendment to Lease”) and
that certain Second Amendment to Lease dated October     ,
2007 (“Second Amendment to Lease”), (collectively, the “Overlease”),
pursuant to which Overlease, Sublandlord leases approximately 67,543 rentable
square feet of space in that certain building commonly known as 300 Third
Street, Cambridge, Massachusetts (“Building”).


 


B.                                     Assignor is the subtenant under that
certain Sublease dated September 8, 2006, as consented to by Overlandlord
pursuant to that certain Consent to Sublease dated October 23, 2006 between
Overlandlord, Sublandlord and Assignor (“Sublease Consent”)
(collectively, said sublease, as affected by the Sublease Consent is referred
to herein as the “Sublease”), wherein Sublandlord subleases to Assignor
the Subleased Premises consisting of approximately 22,364 rentable square feet
located on a portion of the second floor in the Building, which Subleased
Premises are more particularly described in the Sublease (the “Subleased
Premises”). A true, complete and correct copy of the Sublease is attached
hereto as Exhibit A.


 


C.                                     Assignor
desires to assign its rights under the Sublease to Assignee, and Assignee
desires to accept such assignment and to assume the performance of Assignor’s
obligations thereunder, upon the terms and conditions set forth herein.


 


D.                                    Section
12 of the Sublease provides that the Sublease may not be assigned without the
written consent of Sublandlord and Overlandlord.


 


E.                                      Sublandlord
is willing to consent to the assignment of the Sublease from Assignor to
Assignee upon the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, paid by each of the parties hereto to the other,
the receipt and sufficiency of which is hereby acknowledged, and in further
consideration of the provisions herein, the parties hereto agree as follows:


 

















 


1.                                       Effective Date. The “Effective Date” of this
Agreement shall be the date upon which all of the following shall have
occurred:


 


(a)                                  Each of Assignor, Assignee, Sublandlord
and Landlord shall have unconditionally received a fully executed counterpart
of this Agreement;


 


(b)                                 Overlandlord shall have provided (i) a
fully executed Second Amendment to the Overlease to Sublandlord in a form
acceptable to Sublandlord, and (ii) its fully executed written consent, to the
parties hereto (in a form acceptable to the parties hereto), to the assignment
and assumption referenced in Section 2(a) hereof, the amendment of Sublease
provisions referenced in Section 9 hereof, and the Subtenant’s Work plans in
accordance with the terms of the Overlease and Sublease;


 


(c)                                  Sublandlord shall have unconditionally
received from Assignee the Security Deposit required of the subtenant under the
Sublease pursuant to Section 5 of the Sublease, as amended herein; and


 


(d)                                 the conditions set forth in Section 2 of
that certain Consent to Assignment of Sublease dated as of October     ,
2007 (“Landlord’s Assignment Consent”) have been completed.


 


It shall be a condition precedent to the occurrence of the Effective
Date that there then exist neither an Event of Default under the Sublease, nor
any state of facts which, with the giving of notice or passage of time or both,
would constitute an Event of Default under the Sublease. If for any reason the
Effective Date shall not have occurred on or before October 31, 2007, any party
hereto shall have the right to terminate this Agreement by written notice to
the other parties hereto, provided however, that in the event of such
termination, (i) Assignor’s obligation to pay Sublandlord the Sublandlord’s
Costs (as defined hereinafter) and (ii) Assignor’s and Assignee’s obligations
set forth in Section 11 of this Agreement shall survive the termination of this
Agreement. Promptly after the occurrence of the Effective Date, Sublandlord,
Assignor and Assignee shall confirm the Effective Date in writing.


 


2.                                       Assignment and Assumption; Indemnities. Effective as of the Effective Date:


 


(a)                                  Assignor assigns and transfers to
Assignee all of its right, title and interest as subtenant under the Sublease. Effective
as of the Effective Date, Assignee (i) accepts such assignment, assumes the
performance of all of the obligations as subtenant under the Sublease and
agrees to be directly bound and fully liable to Sublandlord for, and to duly
observe and comply with, all of the terms, covenants, agreements, provisions,
obligations and conditions on the part of the subtenant and the Assignee to be
performed or observed under the Sublease and this Agreement, respectively, and
(ii) agrees for the benefit of Sublandlord and Overlandlord that Sublandlord
and Overlandlord shall have the right to enforce against Assignee all of the
Assignor’s obligations, liabilities, and duties under the Sublease to be
performed by Assignee as fully and completely as if Assignee had originally
executed the Sublease as the subtenant thereunder;


 


2

















 


(b)                                 Assignor covenants and agrees to
indemnify and hold harmless Assignee and Sublandlord from and against all
costs, expenses, claims and losses, including, without limitation, reasonable
attorneys’ fees, arising out of or in connection with any defaults in Assignor’s
performance of its obligations as subtenant under the Sublease, which defaults
occurred or arose out of the acts or failure to act of Assignor prior to the
Effective Date;


 


(c)                                  Assignee covenants and agrees to
indemnify and hold harmless Sublandlord and Assignor from and against all
costs, expenses, claims and losses, including, without limitation, reasonable
attorneys’ fees, arising out of or in connection with any defaults in Assignee’s
performance of its obligations as subtenant under the Sublease, including, but
not limited to, those defaults which occur or arise out of the acts or failure
to act of Assignee from and after the Effective Date; and


 


(d)                                 On the Effective Date, (i) Assignor shall
deliver the Subleased Premises to Assignee vacant, as-is-where-is and subject
to the construction work in process associated with Subtenant’s Work (as
defined in the Sublease) and Equipment (as defined in Section 10 hereof), and
(ii) upon such delivery, Assignee automatically is deemed to accept possession
of the Subleased Premises in such condition.


 


3.                                       Assignment
Subject to Lease. The assignment in Section 2(a) above shall be subject at
all times to the Sublease and to all of the provisions, covenants, agreements,
terms and conditions of the Sublease and this Agreement, and Assignee shall not
do or permit anything to be done in connection with Assignee’s use and
occupancy of the Subleased Premises which would violate any of said provisions,
covenants, agreements, terms and conditions.


 


4.                                       Consent. Effective as of the Effective Date, Sublandlord (i)
consents to the assignment and assumption set forth in Section 2(a) above,
subject to the covenants, agreements, terms, provisions, and conditions
contained in the Sublease and subject to and in reliance upon, the
representations, warranties, covenants, agreements, terms, provisions and
conditions, contained in this Agreement and in Landlord’s Assignment Consent,
and (ii) shall, on the next business day following the Effective Date, return
to Silicon Valley Bank the Silicon Valley Bank letter of credit no.
SVB-8800061917 in the amount of $2,907,320.00, request that Silicon Valley Bank
cancel said letter of credit no. SVB-8800061917, and provide a copy of such
request to Assignor. Sublandlord’s consent shall be deemed limited solely to
this assignment and assumption, and Sublandlord reserves the right to consent
or withhold consent, and all other rights as set forth in the Sublease, with
respect to any other matters.


 


5.                                       Representations,
Warranties and Acknowledgments.


 


(a)                                  Assignor
and Assignee represent, warrant and acknowledge to Sublandlord that:


 


(i)                                     no
money or other consideration has been or will be paid or given to Assignor by
Assignee for this assignment or corresponding right to use or occupy the
Subleased Premises other than as set forth in this Agreement, in Section 2.3 of
that 


 


3

















 


certain Purchase Agreement dated as of the date hereof
by and between Assignor and Assignee (“Purchase Agreement”), and as set
forth in Section 2.1 of the Purchase Agreement regarding potential adjustments
to rent under the Sublease (including, but not limited to, those adjustments
arising from recalculation of operating expenses or real estate taxes
thereunder) for the time period set forth in item 1 of Exhibit G to the
Purchase Agreement;


 


(ii)                                  As
to Sublandlord, (A) this Agreement embodies the complete and entire agreement
between Assignor and Assignee with respect to the assignment and assumption of
the Sublease and (B) further, in the event of any conflict or inconsistency
between the terms, covenants or conditions of this Agreement, and the terms, covenants
or conditions of any other agreement between Assignor and Assignee, the terms,
covenants and conditions of this Agreement shall control;


 


(iii)                               Sublandlord’s
Work (as defined in the Sublease) and any other improvements required to be
made by Sublandlord under the Sublease have been satisfactorily completed; as
of the Effective Date, none of the Subtenant Allowance (as defined in the
Sublease) has been requested by Assignor or paid by Sublandlord to Assignor
(and Assignor and Assignee, respectively, have no claims arising therefrom or
in connection therewith), the rent commencement date under the Sublease
occurred on March 10, 2007, and there are no concessions, inducements or work
to which the subtenant under the Sublease is entitled other than the remaining
unpaid portion of the Subtenant Allowance payable by Sublandlord to Assignee
pursuant to and in accordance with the terms of the Sublease;


 


(iv)                              to
the best of their knowledge, no default on the part of Sublandlord exists under
the Sublease, and there are no rights of off-set, counterclaims, or credits
against rent or other charges under the Sublease;


 


(v)                                 all
of the representations and warranties made by Assignor as subtenant under the
Sublease are valid and enforceable as of the Effective Date of this Agreement
(which representations and warranties shall hereby be deemed remade by Assignee
as of the Effective Date);


 


(vi)                              notwithstanding
any representations by Sublandlord or provisions to the contrary in the
Sublease or this Agreement, the Subleased Premises (including, but not limited
to, the Existing P-1 Subleased Premises and Additional P-1 Sublease Premises
(which are defined hereinafter in this Agreement)), when delivered by Assignor
(or by Sublandlord, as the case may be for part of the Existing P-1 Subleased
Premises and/or Additional P-1 Sublease Premises) to Assignee, as of the
Effective Date, are delivered by Assignor (or by Sublandlord, as the case may
be for part of the Existing P-1 Subleased Premises and/or Additional P-1
Sublease Premises) and accepted by Assignee in their as-is-where-is
condition and Sublandlord shall not be responsible or liable in any way to any
party for the condition, progress or state or quality of construction of
Subtenant’s Work or any other work to or condition of the Subleased Premises;
and


 


4

















 


(vii)                           there
are no rights of off-set, counterclaims, or credits against rent or other
charges under the Sublease based upon facts, circumstances, occurrences, or
events existing prior to or on the Effective Date.


 


(b)                                 Assignor
hereby represents and warrants to Assignee, as of the date hereof (which
representations and warranties shall be deemed remade as of the Effective Date
and shall survive the Effective Date) as follows, and agrees to indemnify and
save Assignee harmless from and against any and all suits, actions, damages,
reasonable costs and expenses (including, without limitation, reasonable
attorneys’ fees and other charges) which Assignee may sustain by reason of Assignor’s
breach of any of such representations and warranties:


 


(i)                                     The
Sublease (except as (A) modified hereby and (B) set forth in this Agreement) is
a complete statement of the agreement between the parties hereto with respect
to the subletting of the Subleased Premises. A copy of the Sublease is attached
hereto as Exhibit A.


 


(ii)                                  The
Sublease is presently in full force and effect as a valid and binding
obligation according to its terms.


 


(iii)                               Assignor
has not assigned, mortgaged, pledged, encumbered or otherwise transferred or
sublet, in whole or in part, its subleasehold estate with respect to the
Subleased Premises.


 


(iv)                              The
term of the Sublease has commenced and the full rental is now accruing and
payable thereunder. Fixed Rent under the Sublease has been paid through October
31, 2007.


 


(v)                                 Assignor
has accepted possession of the Subleased Premises, and any improvements
required by the terms of the Sublease to be made by Sublandlord have been
completed to Assignor’s satisfaction.


 


(vi)                              None
of the Subtenant Allowance (as defined in the Sublease) has been requested by
Assignor or paid by Sublandlord to Assignor (and Assignor has no claims arising
therefrom or in connection therewith).


 


(vii)                           As of
the Effective Date, Assignor is not in default under the terms of the Sublease
and has no charge, lien or claim (under the Sublease or otherwise) against
rents or other charges due or to become due to Sublandlord thereunder. To
Assignor’s knowledge, Sublandlord is not in default or breach of its
obligations under the Sublease and Assignor has not sent or received any notice
to the contrary.


 


(c)                                  Sublandlord
hereby represents and warrants to Assignee and Assignor, as follows:


 


5

















 


(i)                                     The
Sublease (except as modified by this Agreement and Landlord’s Assignment
Consent) is unmodified and in full force and effect as of the date hereof.


 


(ii)                                  Fixed
Rent and Additional Rent (subject to possible adjustments to and recalculation
thereof pursuant to the terms of the Sublease and Overlease) have been paid
through October 31, 2007 and, as of the date hereof, no other Additional Rent
is due from Assignor under the Sublease.


 


(iii)                               To
Sublandlord’s knowledge, neither Sublandlord nor Assignor is in default under
the Sublease past applicable notice and cure periods, and Sublandlord has not
sent or received any notice to the contrary.


 


(iv)                              Sublandlord
has not assigned, mortgaged, pledged, encumbered or otherwise transferred or
sublet, in whole or in part its leasehold estate with respect to the Subleased
Premises, except as set forth in the Sublease.


 


6(a).                         Partial Release of Assignor.
This Agreement shall not operate to waive, modify (except as specifically set
forth in Section 9 hereof), impair, release or in any manner affect any of the
covenants, agreements, terms, provisions, obligations or conditions contained
in the Sublease or to waive any breach thereof, or any rights of Sublandlord
against any person, firm, association or corporation liable or responsible for
the performance thereof. All terms, covenants, agreements, provisions and
conditions of the Sublease are hereby ratified (as modified in Section 9
hereof) and declared by Assignee to be in full force and effect. As of the
Effective Date, Assignee hereby unconditionally affirms its primary, direct and
ongoing liability to Sublandlord for the performance of all obligations to be
performed by the subtenant under the Sublease, including, without limitation,
the obligations to pay Fixed Rent, Additional Rent and all other charges in the
full amount, in the manner and at the times provided for in the Sublease. Sublandlord
hereby releases Assignor from its obligations under the Sublease arising on and
after the Effective Date of this Agreement. Assignor, however, agrees that nothing
herein shall release or cause to be released Assignor from any of its
obligations under the Sublease arising prior to the Effective Date of this
Agreement, and Assignor shall remain fully liable therefor.


 


6(b).                        Excess Income. Only to
the extent that Landlord expressly agrees and acknowledges in writing in
Section 3(d) of the Landlord’s Assignment Consent that the consideration paid
by Assignee to Assignor in connection with this transaction, is not considered
as a sum or value given in consideration of this transaction for purposes of
determining Excess Income (as defined in the Overlease) under the Overlease,
Sublandlord also hereby agrees and acknowledges the same for purposes of
determining Excess Income under the Sublease solely as to this transaction. Sublandlord
is in no way making any representations, agreements or acknowledgements about
what consideration is or is not considered as Excess Income as to any future
transactions.


 


7.                                       Further
Assignment or Subletting. Assignor and Assignee hereby agree that the
terms, conditions, restrictions and prohibitions set forth in the Sublease
regarding subletting and 


 


6

















 


assignment (as modified hereby), including, without limitation, Section
12 of the Sublease, shall, notwithstanding this Agreement, (i) continue to be
binding upon Assignor and Assignee with respect to all future assignments and
transfers of the Sublease and all future sublettings of the Subleased Premises,
and (ii) apply to Assignee with the same effect as if Assignee had been the
original subtenant named in the Sublease. This Agreement shall not be construed
either as a consent by Overlandlord, Sublandlord and/or Assignor to, or as
permitting, any other or further assignment or transfer of the Sublease,
whether in whole or in part, or any further subletting of the Subleased
Premises or any part thereof, or as a waiver of the restrictions and
prohibitions set forth in the Sublease regarding subletting and assignment.


 


8.                                       Remedies
for Default. In the event (i) of any default by Assignor or Assignee in the
full performance and observance of any of their respective obligations
hereunder or (ii) any representation or warranty of Assignor and Assignee made
herein is false or misleading in any material respect, either of such event
may, at Sublandlord’s option, be deemed an Event of Default under the Sublease,
and Sublandlord shall have the right to and may pursue all of the rights,
powers and remedies provided for in the Sublease or at law or in equity or by
statute or otherwise with respect to defaults, provided however, that if and to
the extent the Sublease provides for notice of and/or an opportunity to cure
the failure to perform any such obligation, such event shall only be deemed to
be an Event of Default under the Sublease if it is not cured after the giving
of any such notice to the party who failed to perform (with a copy of such
notice to the other party) and the expiration of any such cure period.


 


9.                                       Amendment of Sublease. Effective as of the Effective Date, the
Sublease shall be deemed amended as follows:


 


(a)                                  Surrender of Return Space and Addition of
P-1 Subleased Premises.


 


(i)  Surrender
of Return Space and P-1 Subleased Premises. 
The following language shall hereby be added at the end of the first
paragraph of Recital Section B of the Sublease and incorporated directly into
the Sublease as a part thereof:


 


“Subtenant hereby returns and surrenders to
Sublandlord the “Return Space” consisting of approximately 415 rentable
square feet of space on the second floor of the Building, as such Return Space
is more particularly described on Exhibit B-1 to the Sublease attached
hereto and incorporated herein by reference. Said Return Space shall no longer
be deemed a part of the Subleased Premises under the Sublease and Subtenant
hereby acknowledges that, with Subtenant’s express consent, pursuant to the
Second Amendment to Lease, Sublandlord surrendered said Return Space to
Landlord.


 


Subtenant further desires to sublease from Sublandlord
and Sublandlord desires to sublease to Subtenant three hundred and forty-three
(343) rentable square feet of space located on the P-1 level of the Building,
plus an additional seventy-two (72) rentable  square
feet of space located on the P-1 level of the Building (collectively, yielding
415 rentable square feet of space referred to herein as the “Existing P-1


 


7

















 


Subleased Premises”) and an additional ninety-two (92) rentable square
feet of space located on the P-1 level of the Building (“Additional P-1
Sublease Premises”), both of which are more particularly depicted on Exhibit
B-1 to the Sublease attached hereto and incorporated herein by reference. The
Existing P-1 Subleased Premises and Additional P-1 Sublease Premises shall
henceforth be deemed to be included as part of the “Subleased Premises” as
referenced throughout this Agreement (where applicable) and throughout the
Sublease. By way of clarification, (i) after accounting for the surrender of
the Return Space, the Existing P-1 Subleased Premises are included in the
22,364 rentable square feet of the subleased premises referenced in this
Recital B of the Sublease, and (ii) the net effect of the foregoing surrender
of the Return Space and addition of the Existing P-1 Subleased Premises and
Additional P-1 Sublease Premises yields, (A) an additional 92 rentable square
feet of space added to the Subleased Premises and rent and all other charges
under the Sublease shall be adjusted proportionately as contemplated under the Sublease,
and (B) the total rentable square footage of the Subleased Premises consisting
of approximately 22,456 rentable square feet of space.”


 


(ii)  Subtenant
Allowance Calculation Not To Include Additional P-1 Sublease Premises. Notwithstanding
anything to the contrary in the Overlease, Sublease (including, but not limited
to, Section B of Exhibit C to the Sublease), this Agreement or any other
document, the amount of the Subtenant Allowance (as defined in the Sublease)
shall not increase to include and shall not reflect inclusion of the addition
of the Additional P-1 Sublease Premises in the Subleased Premises. The rentable
square footage area of the Additional P-1 Sublease Premises shall not be
included in calculating the dollar amount of the Subtenant Allowance.


 


(b)                                 Expiration Date. The next to last sentence of Section
2(a) of the Sublease shall hereby be deleted and replaced with the following:


 


“The Term of this Sublease shall end on September 30,
2011 (the “Expiration Date”), as it may be extended hereunder, or shall
end on such earlier date upon which such term may expire or be terminated
pursuant to the provisions hereof or pursuant to law.”


 


(c)                                  Extended Term. The first sentence of Section 2(b) of
the Sublease shall hereby be deleted and replaced with the following:


 


“Provided that, at the time Subtenant elects to
exercise the option herein granted, (i) this Sublease is in full force and
effect, (ii) Subtenant is not in default beyond any applicable notice and grace
period hereunder, and (iii) Subtenant or an Affiliated Transferee (as defined
in Section 16.B of the Overlease) is occupying all of the Subleased Premises,
Subtenant shall have the option, upon written notice to Sublandlord (“Subtenant’s
Extension Notice”) given not less then twelve (12) months prior to the
expiration of the Expiration Date, to extend the Term of this Sublease for an
additional three (3) year and seven (7) month period (the “Extended Term”)
expiring on April 30, 2015, subject to 


 


8

















 


Sublandlord’s Termination Option and Subtenant’s
Termination Option (as such terms are hereinafter defined).”


 


(d)                                 Sublandlord’s Termination Option. Section 2(c-ii) of the Sublease is
hereby deleted and replaced with the following:


 


“where Subtenant has delivered to Sublandlord
Subtenant’s Extension Notice as hereinabove provided, and Sublandlord expressly
accepts said extension in writing delivered to Subtenant within thirty (30)
days after Sublandlord receives Subtenant’s Extension Notice, Sublandlord shall
subsequently have the right to terminate the Sublease effective as of the date
specified in Sublandlord’s subsequent notice to Subtenant (“Sublandlord’s
Early Termination Date”), provided, however, that Sublandlord’s Early
Termination Date shall be not less than nine (9) months following the date of
such subsequent termination notice by Sublandlord to Subtenant.”


 


(e)                                  Early Termination. Section 2(e) of the Sublease shall
hereby be deleted and replaced with the following:


 


“Notwithstanding anything to the contrary in Section 2
of the Sublease and without limiting Sublandlord’s rights set forth in Section
9(m) of this Agreement, in no event shall the exercise of Subtenant’s
Termination Option or Sublandlord’s Termination Option cause the Sublease to
terminate prior to September 30, 2011.”


 


(f)                                    Failure to Respond to Subtenant Extension
Notice. The
following sentence shall hereby be added to the Sublease as Section 2(f):


 


“ (f)                           Notwithstanding anything to the contrary in this
Sublease, in the event that Sublandlord fails to expressly, in writing, respond
to, reject, or accept Subtenant’s Extension Notice within thirty (30) days of
Sublandlord’s receipt of Subtenant’s Extension Notice, Sublandlord shall
automatically be deemed to have rejected Subtenant’s Extension Notice and (i)
the Sublease shall expire on the Expiration Date, (ii) all rent payable under
this Sublease shall be paid and apportioned as of the Expiration Date, (iii)
neither party shall have any rights, estates, liabilities or obligations under
this Sublease for the period accruing after the Expiration Date, except those
which are incurred, have accrued or relate to the period prior to the
Expiration Date, and (iv) Subtenant shall surrender and vacate the entire
Subleased Premises and deliver possession thereof to Sublandlord on or before
the Expiration Date in the condition required under both this Sublease and the
Overlease.”


 


(g)                                 Security Deposit. The first sentence of Section 5(a) of
the Sublease is hereby deleted and replaced with the following:


 


“To secure the full and faithful performance by
Subtenant of all the terms, provisions, conditions, covenants and obligations
(including, without limitation, the payment of rent) on Subtenant’s part to be
performed hereunder, on or before the Commencement Date 


 


9

















 


hereof, Subtenant shall deliver to Sublandlord a
security deposit (“Security Deposit”) in the amount of Eight Hundred
Thirty-Eight Thousand Six Hundred Thirty-Four Dollars ($838,634.00)  in either (i) cash or (ii) an unconditional, clean
irrevocable “evergreen” letter of credit, payable on sight, in form and
substance satisfactory to Sublandlord and otherwise in accordance with the
requirements of Article 23 of the Overlease.”


 


(h)                                 Security Deposit Reductions.


 


(i)                                     As of the Effective Date, Section 5(h) of
the Sublease shall henceforth be deleted in its entirety.


 


(ii)                                  To the extent that the security deposit
set forth in that certain lease dated as of September 26, 2003 by and between
Overlandlord, as successor-in-interest to Cornerstone Real Estate Advisors,
Inc., and Assignee of other space located in the Building (“Assignee’s Other
Lease”) is reduced on or after the Effective Date, the Security Deposit
required pursuant to this Sublease, as assigned to and assumed by Assignee,
shall be reduced pro rata per rentable square foot reduction in the security
deposit required under Assignee’s Other Lease, provided however, that the
Security Deposit hereunder shall in no event be reduced below the amount of six
(6) months’ Fixed Rent under this Sublease.


 


(i)                                     Condition of Subleased Premises. The second to last sentence of Section
7(a) of the Sublease is hereby deleted in its entirety.


 


(j)                                     Subtenant Notice Address. Section 17(b) of the Sublease shall
hereby be deleted and replaced with the following:


 


“If intended for Subtenant, to:


 


Alnylam Pharmaceuticals, Inc.


300 Third Street


Cambridge, MA 02142


Attn: Philip T. Chase, Esq., General Counsel,


 


and to:


 


Joseph L. Faber, Esq.


Faber Daeufer & Rosenberg PC.


950 Winter Street


Waltham, MA 02451”


 


(k)                                  Surrender of Subleased Premises. The following paragraph shall be added
to the end of Section 18 of the Sublease:


 


10

















 


“Without limiting or affecting Sublandlord’s rights
and Subtenant’s obligations set forth in the foregoing paragraph, upon the
expiration, or pursuant to the terms of the Sublease, the earlier termination
of the Sublease or recapture of any part or all of the Subleased Premises
(including, but not limited to, the Existing P-1 Subleased Premises and
Additional P-1 Sublease Premises), Sublandlord shall have the right, to require
Subtenant (to the extent that Landlord so requires), at Subtenant’s sole
expense, to (i) remove any alterations or additions made (by the current
Subtenant or by any predecessor subtenant) to the Subleased Premises
(including, but not limited to, the Existing P-1 Subleased Premises and
Additional P-1 Sublease Premises) or any part thereof, and (ii) reconstruct, to
their former location and condition (before the Commencement Date of the
Sublease), any demising walls, floors, ceilings, and access points formerly
separating the Existing P-1 Subleased Premises and/or Additional P-1 Sublease
Premises from the adjacent areas, horizontally and/or vertically.”


 


(l)                                     Subtenant’s Construction Representative. The second paragraph of Section IV(A)
of Exhibit C to the Sublease shall be deleted and replaced with the following:


 


“Subtenant’s Construction Representative: Richard P.
Shea or any replacement designated in writing by Subtenant; Notwithstanding the
foregoing, as of the “Effective Date” under that certain ASSIGNMENT, ASSUMPTION
AND CONSENT AGREEMENT; AND FIRST AMENDMENT TO SUBLEASE dated October ____, 2007
between Sublandlord, Subtenant and Alnylam Pharmaceuticals, Inc., Subtenant’s
Construction Representative shall be John Palmieri or any replacement
designated in writing by Subtenant.”


 


(m)                               Overlease Termination. Notwithstanding anything to the
contrary in the Sublease (as amended), including Section 2 of the Sublease,
Subtenant hereby acknowledges and recognizes (i) Sublandlord’s right, pursuant
to the terms of the Overlease, to terminate the Overlease prior to the
Overlease Expiration Date, and (ii) Sublandlord shall have no liability of any
kind to Subtenant or any successor arising from or in connection with the
exercise, pursuant to the terms of the Overlease, of Sublandlord’s early
termination right under the Overlease.


 


(n)                                 Assignee as Subtenant. From and after the Effective Date of
this Agreement, all references to the “Subtenant” in the Sublease shall be
deemed to mean Assignee.


 


10.                                 Equipment. Assignor hereby agrees not to remove the furniture,
furnishings, fixtures, equipment and personal property located in the Subleased
Premises, as described on Exhibit B hereto (the “Equipment”), but
rather to transfer such Equipment to Assignee, subject to and except for any
rights of Overlandlord and/or Sublandlord to said Equipment (i) under the
Overlease and Sublease and/or (ii) to the extent said Equipment constitutes
leasehold fixtures. Assignee shall accept the Equipment on the Effective Date
in its “as is” and “where is” condition, subject to reasonable wear and tear,
without any representation or warranty whatsoever by Sublandlord or Assignor,
oral or written, express or implied (including, without limitation, any
representation or warranty with respect to suitability or fitness for any
particular use or purpose).


 


11

















 


11.                                 Brokerage;
Fees.


 


(a)                                  Assignor
represents and warrants to Sublandlord that Assignor has dealt with no broker,
finder or like agent in connection with this transaction, except the Assignee
Broker (as more particularly described in the next succeeding section) and that
Assignee shall be solely and completely responsible for payment of any fees,
commissions or other costs or expenses to the Assignee Broker. In the event any
claim is made against Sublandlord relative to dealings by Assignor with any
broker, finder or like agent in connection with this transaction (including,
but not limited to, by the Assignee Broker), Assignor shall defend the claim
against Sublandlord with counsel of Assignor’s selection first reasonably
approved by Sublandlord and save harmless and indemnify Sublandlord on account
of loss, cost or damage which may arise by reason of such claim.


 


(b)                                 Assignee represents and warrants to
Sublandlord that Assignee has dealt with no broker, finder or like agent in
connection with this transaction, except for Richards Barry Joyce and Partners
(“Assignee Broker”), and that Assignee shall be solely and completely
responsible for payment of any fees, commissions or other costs or expenses to
Assignee’s Broker. In the event any claim is made against Sublandlord relative
to dealings by Assignee with any broker, finder or like agent in connection
with this transaction (including, but not limited to, by the Assignee Broker),
Assignee shall defend the claim against Sublandlord with counsel of Assignee’s
selection first reasonably approved by Sublandlord and save harmless and
indemnify Sublandlord on account of loss, cost or damage which may arise by
reason of such claim.


 


(c)                                  As between Assignor and Assignee only,
Assignor represents and warrants to Assignee that Assignor shall reimburse
Assignee, upon written demand therefor, for one-half (1/2) of the amount of any
fees, commissions or other costs or expenses payable by Assignee to Assignee’s
Broker.


 


12.                                 Miscellaneous.


 


(a)                                  Successors and Assigns. The terms and provisions of this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


(b)                                 Captions. The captions contained in this Agreement are for
convenience only and shall in no way define, limit or extend the scope or
intent of this Agreement, nor shall such captions affect the construction
hereof.


 


(c)                                  Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement.


 


(d)                                 Authority. Each party hereto represents and warrants that it
has full right, power and authority to enter into this Agreement and that the
person executing this Agreement on behalf of such party is duly authorized to
do so.


 


12

















 


(e)                                  Capitalized Terms. All capitalized terms and words used in
this instrument shall have the same meaning as set forth in the Sublease unless
a contrary meaning is expressly set forth herein.


 


(f)                                    Notices.
Any notices or other communications given or required to be given under this
Agreement shall be effective only if in writing and delivered in the manner set
forth in the Sublease, addressed, if to Sublandlord, at the address set forth
in the Sublease or at such other address for such purpose designated by notice
in accordance with the provisions of the Sublease, if to Assignor, to Richard
P. Shea, CFO, Momenta Pharmaceuticals, Inc., 675 W. Kendall Street, Cambridge,
MA 02142, with a copy to Momenta Pharmaceuticals, Inc., Attention: General
Counsel, 675 W. Kendall Street, Cambridge, MA 02142, and to Jonathan E. Book,
Esq., Foley Hoag LLP, 155 Seaport Boulevard, Boston, MA 02210, or at such other
address for such purpose designated by notice in accordance with the provisions
of the Sublease, and if to Assignee, at Philip T. Chase, Esq., General Counsel,
Alnylam Pharmaceuticals, Inc., 300 Third Street, Cambridge, MA 02142, with a
copy to Joseph L. Faber, Esq., Faber Daeufer & Rosenberg PC., 950 Winter
Street, Waltham, MA 02451 until the Effective Date and thereafter at the
Subleased Premises or at such other address for such purpose designated by
notice in accordance with the provisions of the Sublease.


 


(g)                                 Sublandlord’s
Costs. Assignor shall be liable to reimburse Sublandlord on demand for any
costs incurred by Sublandlord in connection with the assignment and this
Agreement, including, without limitation, the costs of making investigations as
to the acceptability of Assignee, legal costs incurred in connection with the preparation
of this Agreement and review of or work on any related agreements, architect’s
fees, engineering costs, or related costs in connection with review and
approval of any construction work performed or to be performed to the Subleased
Premises, and any costs passed through to Sublandlord by Overlandlord in
connection with any of the foregoing or as passed through to Sublandlord
pursuant to the terms of the Overlease (collectively, “Sublandlord’s Costs”).
As between Assignor and Assignee only, the percentage reimbursement of Sublandlord’s
Costs for which Assignee is responsible to reimburse Assignor shall be as set
forth in the Purchase Agreement.


 


(h)                                 Remedies
Cumulative. Each right and remedy of Sublandlord provided for in this
Agreement or in the Sublease shall be cumulative and shall be in addition to
every other right and remedy provided for herein and therein or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise by Sublandlord of any one or more of the rights or remedies so
provided for or existing shall not preclude the simultaneous or subsequent
exercise by Sublandlord of any or all other rights or remedies so provided for
or so existing.


 


(i)                                     Sublandlord’s
Liability. Sublandlord’s liability under this Agreement shall be limited to
the same extent Sublandlord’s liability is limited under the Sublease.


 


(j)                                     Severability.
If any one or more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.


 


13

















 


(k)                                  Binding
Effect. This Agreement is offered to Assignor and Assignee for signature
and it is understood that this Agreement shall be of no force and effect and
shall not be binding upon Sublandlord unless and until (i) the Effective Date,
(ii) Sublandlord shall have executed and delivered a copy of this Agreement to
both Assignor and Assignee, (iii) Overlandlord has provided Sublandlord with a
copy of Overlandlord’s written fully executed consent to the (a) assignment and
assumption herein, (b) amendment to Sublease provisions in Section 9 hereof,
and (c) Subtenant’s Work plans in accordance with the terms of the Overlease
and Sublease, and, (iv) Overlandlord has provided Sublandlord with the fully
executed 2nd Amendment to Overlease.


 


(l)                                     Governing
Law. This Agreement shall for all purposes be construed in accordance with,
and governed by, the laws of the Commonwealth of Massachusetts.


 


(m)                               Conflict.
As to Sublandlord, if there shall be any conflict or inconsistency between the
terms, covenants and conditions of this Agreement and those of the Sublease,
and the terms, covenants and conditions of any other document, then the terms,
covenants and conditions of this Agreement and the Sublease shall prevail. The
parties hereto agree that, as to Sublandlord, this Agreement is the sole
agreement and instrument (as affected by Landlord’s Assignment Consent)
governing the terms of the assignment and that Sublandlord is not a party to
any other documents pertaining to the assignment of the Sublease from Assignor
to Assignee, except the Landlord’s Assignment Consent. Further, as to
Sublandlord, if there shall be any conflict or inconsistency between this
Agreement and the terms, covenants or conditions of any other document related
to the assignment, the terms, covenants and conditions of this Agreement shall
prevail. For clarity, as between Assignor and Assignee only, no provision in
this Agreement extinguishes or otherwise reduces Assignor’s obligations to
Assignee set forth in the Purchase Agreement to retain, discharge, hold
harmless and indemnify Assignee for certain obligations and liabilities as
provided therein.


 


(n)                                 Survival.
Assignor’s and Assignee’s representations and warranties in this Agreement to
Sublandlord and to each other shall survive the Effective Date. Sublandlord’s
representations in this Agreement to Assignor and Assignee shall survive the
Effective Date.


 


(o)                                 Amendments
and Waivers.     No amendment of any
provision in this Agreement shall be valid, unless in writing and signed by the
parties hereto and consented to in writing by Overlandlord (except that an
amendment after the Effective Date hereof to the provisions of Section 9 hereof
shall not require the signature or consent of Assignor). No failure or delay on
the part of any party to exercise any rights under this Agreement shall operate
or imply a waiver thereof, unless in a writing signed by the party to be
charged.


 


[Signatures on next
page.]


 


14

















 


EXECUTED under seal as of the date and year first above written.


 


 


	
   

  	
  SUBLANDLORD

  
	
   

  	
   

  
	
   

  	
  ARCHEMIX CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  MOMENTA PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard P. Shea

  	
   

  
	
   

  	
  Title:

  	
  its Vice President,
  Treasurer and Chief

  	
   

  
	
   

  	
   

  	
  Financial Officer, duly
  authorized

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALNYLAM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
									



 


15

















 


EXHIBIT H-2


 


Form of Landlord Consent


 
















 


CONSENT TO ASSIGNMENT OF SUBLEASE


 


This Consent to Assignment
of Sublease (this “Consent”) is
made as of October     , 2007, by ARE-MA Region No. 28, LLC, a Delaware
limited liability company, having an address of 385 East Colorado Boulevard,
Suite 299, Pasadena, California 91101 (“Landlord”),
Archemix Corp., a Delaware
corporation, having an address of 300 Third Street, Cambridge, Massachusetts
02142 (“Tenant”), Momenta Pharmaceuticals, Inc., a Delaware
corporation, having an address of 675 West Kendall Street, Cambridge,
Massachusetts 02142 (“Assignor”),
and Alnylam Pharmaceuticals, Inc.,
a Delaware corporation with an address of 300 Third Street, Cambridge,
Massachusetts 02142 (“Assignee”)
with reference to the following Recitals.


 


R E C I T A L S


 


A.                                    Landlord and Tenant have entered into that
certain Office Lease dated as of April 11, 2005, as amended by that certain
First Amendment to Lease dated as of July 9, 2006, and that certain Second
Amendment to Lease dated October 31, 2007 (as so amended, the “Lease”) wherein Landlord leased to Tenant
certain premises located on Levels 01, 02, P-1 and P-2 (the “Premises”) of the building commonly known
as and located at 300 Third Street, Cambridge, Massachusetts, which Premises
are more particularly described in the Lease.


 


B.                                    Tenant has subleased to Assignor a portion of
the Premises consisting of approximately 22,364 rentable square feet located on
Level 02 of the building (the “Original
Subleased Premises”), more particularly described in and pursuant to
the provisions of that certain Sublease dated as of September 8, 2006 (the “Sublease”).


 


C.                                    Assignor desires to assign to assign to
Assignee its rights under the Sublease, and Assignee desire to assume the
performance of Assignor’s obligations under the Sublease, upon the terms and
conditions set forth herein and in that certain Assignment, Assumption and
Consent Agreement and First Amendment to Sublease dated October     ,
2007 (the “Assignment”), a copy of
which is attached hereto as Exhibit A.


 


D.                                    Pursuant to said Assignment, Tenant is
amending the location of a portion of the Original Subleased Premises, as set
forth more specifically in such Assignment, and subleasing to Assignee an
additional 164 rentable square feet located on Level P-1 of the building, whereby
the Original Subleased Premises are amended pursuant to the Assignment to
constitute 22,456 rentable square feet located on Levels 02 and P-1 of the
building (the “Subleased Premises”).


 


E.                                      Tenant, Assignor and Assignee desire to
obtain Landlord’s consent to the Assignment.


 


NOW,
THEREFORE, in
consideration of the foregoing and the agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord hereby consents to the assignment of the Sublease
to Assignee, such consent being subject to and upon the following terms and
conditions, to which Tenant, Assignor and Assignee hereby agree:


 


1.                                       All initially capitalized terms not otherwise
defined in this Consent shall have the meanings set forth in the Lease unless
the context clearly indicates otherwise.


 


300 Third Street, Cambridge


Archemix/Momenta Sublease


© Alexandria Real Estate Equities, Inc. 1999


CONFIDENTIAL-DO NOT COPY


 


1

















 


2.                                       This Consent shall not be effective and the
Assignment shall not be valid nor shall Assignee take possession of the
Subleased Premises (i) unless and until Landlord shall have received a fully
executed counterpart of this Consent and a fully executed counterpart of the
Assignment, and (ii) provided that the foregoing conditions are satisfied,
until the “Effective Date,” as that term is defined in the Assignment. Tenant
and Assignor each represent and warrant to Landlord that the copy of the
Assignment attached hereto as Exhibit A is true, correct and complete in
all respects. 


 


3.                                       Landlord’s consent set forth herein is
subject to the following:


 


a.                                       Any and all proposed alterations, additions
or improvements to be made in connection with Assignee’s occupancy of the
Subleased Premises (collectively, “Assignment
Improvements”) shall only be performed pursuant to and in compliance
with all of the terms of the Lease;


 


b.                                      Tenant and Assignee shall comply with the
provisions of the Lease regarding any and all Hazardous Materials to be used,
stored or maintained in connection with Assignee’s proposed use of the
Subleased Premises; and


 


c.                                       Pursuant to and in accordance with the terms
of the Lease, those Assignment Improvements which constitute specialty
Alterations may be required to be removed at the expiration or earlier
termination of the Lease at no cost or expense to Landlord, with all damage
occasioned by such removal being fully repaired.


 


d.                                      Pursuant to Article 16 of the Lease, Tenant
shall pay to Landlord monthly, as Additional Rent under the Lease, a sum equal
to fifty percent (50%) of the Excess Income (as such term is defined in Article
16(D) of the Lease) payable in connection with the Assignment and the Sublease,
if any. Within sixty (60) days after the date of this Consent, Tenant shall
provide Landlord with written documentation in form, scope and substance
reasonably acceptable to Landlord verifying any and all of Tenant’s Transfer
Expenses (as such term is defined in Article 16(D) of the Lease), or they shall
be disregarded in computing Excess Income. Notwithstanding the foregoing, for
purposes of this Consent only and for no other purpose, Landlord acknowledges
and agrees that (i) the amount of $4,430,548.23, the components of which are
itemized on the document entitled “Exhibit G, Detail Breakdown of Purchase
Price,” which is attached hereto as Schedule 1, which amount is to be paid by
Assignee for reimbursement of certain tenant improvement build-out costs
(including sublease rent during the period of such buildout) and any
adjustments to such sublease rent, whether paid by Assignor or Assignee,
arising from the recalculation of operating expenses, utilities, real estate
taxes and/or other rent adjustments provided for in the Sublease, for the period
prior to the effective date of the Assignment, shall not be considered as a sum
or value given in consideration of the assignment for purposes of determining
Excess Income under Article16(D) of the Lease, (ii) the “Sublandlord’s Costs”
(as defined in the Assignment) reimbursed to Tenant by Assignor or Assignee
(and as may be reimbursed between Assignor and Assignee) shall not be
considered as a sum or value given in consideration of the assignment for
purposes of determining Excess Income under Article 16(D) of the Lease, and
(iii) the “Transfer Expenses” (as defined in Article 16(D) of the 


 


2

















 


Lease) in the amount of
$256,210.77 have been approved and acknowledged by Landlord in connection with
any Excess Income under Article 16(D) of the Lease arising from the Sublease or
Assignment.


 


4.                                       Landlord neither approves nor disapproves the
terms, conditions and agreements contained in the Assignment, all of which in
all events shall be subordinate and at all times subject to: (a) all of the
covenants, agreements, terms, provisions and conditions contained in the Lease,
(b) superior ground leases, mortgages, deeds of trust, or any other
hypothecation or security now existing or hereafter placed upon the real property
of which the Premises are a part and to any and all advances secured thereby
and to all renewals, modifications, consolidations, replacements and extensions
thereof, and (c) all matters of record affecting the Premises and all laws,
ordinances and regulations now or hereafter affecting the Premises. Without
limiting the foregoing, pursuant to the terms of Section 10 of the Consent to
Sublease (as defined in Section 11 hereof) and the terms of Article 16 of the
Lease, Landlord hereby consents to the amendment of the Sublease as set forth
in the Assignment.


 


5.                                       Nothing contained herein or in the Assignment
or the Sublease shall be construed to:


 


a.                                       Modify, waive, impair, or affect any of the
terms, covenants or conditions contained in the Lease, including Tenant’s
obligation to obtain any required consents for any other or future assignments
or sublettings (except that it is understood that the amendments to the
Sublease contained in the Assignment, as consented to by Landlord in Section 4
hereof, by their terms modify and affect the terms of the Sublease), or to
waive any breach thereof, or any rights or remedies of Landlord under the Lease
against any person, firm, association or corporation liable for the performance
thereof, or to enlarge or increase Landlord’s obligations or liabilities under
the Lease (including, without limitation, any liability to Assignor or Assignee
for any portion of the security deposit held by Tenant under the Sublease), and
all terms, covenants and conditions of the Lease are hereby declared by each of
Landlord, Tenant, Assignor and Assignee to be in full force and effect;
provided, however that from and after the time that this Consent is effective
and the Assignment is valid as set forth in Section 2 hereof and Section 1 of
the Assignment, as between Assignor and Landlord only (but not as between
Assignor and any other party), notwithstanding anything contained in the Lease
or Consent to Sublease (as defined in Section 11 hereof), Assignor shall have
no further ongoing obligations to pay rent or other sums due under the Lease
with respect to the Subleased Premises or to perform the obligations of Tenant
under the Lease with respect to the Subleased Premises (it being understood
that the foregoing shall not affect any obligations of Assignor with respect to
the time prior to the effective date of the Assignment).


 


b.                                      require Landlord to accept any payments from
Assignor or Assignee on behalf of Tenant, except as expressly provided in
Section 8 hereof.


 


Tenant shall remain liable
and responsible for the due keeping, performance and observance of all the
terms, covenants and conditions set forth in the Lease on the part of the
Tenant to be kept, performed and observed and for the payment of the Base Rent,
Additional Rent and all other sums now and hereafter becoming payable
thereunder for all of the Premises, including, without limitation, the
Subleased Premises.


 


3

















 


6.                                       Notwithstanding anything in the Assignment or
Sublease to the contrary:


 


a.                                       Assignee does hereby expressly assume and
agree to be bound by and to perform and comply with, for the benefit of
Landlord, each and every obligation of Assignee under the Sublease and, to the
extent applicable to the Subleased Premises or the Sublease, each and every
obligation of Tenant under the Lease, Assignee agrees that it shall not do
anything which violates the terms of the Lease to the extent applicable to the
Subleased Premises or the Sublease.


 


b.                                      Landlord and Assignee each hereby release the
other, and waive their respective rights of recovery against the other for
direct or consequential loss or damage arising out of or incident to the perils
covered by property insurance carried by such party to the extent of such
insurance and waive any right of subrogation which might otherwise exist in or
accrue to any person on account thereof.


 


c.                                       Tenant, Assignor and Assignee each agree to
each of the terms and conditions of this Consent, and upon any conflict between
the terms of the Sublease and this Consent, or between the terms of the
Assignment and this Consent, the terms of this Consent shall control; provided,
however, that as between Tenant, Assignor and Assignee only, upon any conflict
between the terms of the Assignment and this Consent, the terms of the
Assignment shall control.


 


d.                                     Except in accordance with the terms and
conditions of the Lease, there shall be no further subletting or assignment of
all or any portion of the Premises demised under the Lease (including the
Subleased Premises demised by the Sublease) or further assignment of the Lease
or Sublease.


 


e.                                      If Landlord terminates the Lease as a result
of a default by Tenant thereunder, Tenant terminates the Lease pursuant to the
terms of Article 33 of the Lease (and in such event Assignee shall have no
claims against Tenant for exercising such Lease termination right), or the
Lease terminates before the expiration date thereof (as the same may be
extended pursuant to and in accordance with the Lease) for any other reason (an
“Early Lease Termination”), the
Sublease shall automatically terminate concurrently therewith; provided,
however, Landlord and Assignee agree that, as between Landlord and Assignee
only, if such termination of the Lease occurs during the time period of
Assignee’s tenancy under the Sublease of the Subleased Premises, then
immediately upon such termination of the Lease: 


 


(i)                                        The Subleased Premises shall automatically be
added to and made a part of the premises that are leased by Landlord to
Assignee pursuant to that certain Lease dated as of September 26, 2003 by and
between Landlord, as successor in interest to Three Hundred Third Street LLC,
as landlord, and Assignee as tenant (the “Alnylam
Lease”) with respect to premises on Levels 03 and 04 and Peripheral
Spaces (as defined in the Alnylam Lease and referred to herein as the “Existing Alnylam Premises”) in the
Building, such that the Subleased Premises shall be made subject to and part of
the Alnylam Lease and subject to the terms and conditions of the Alnylam Lease and
the additional provisions set forth in Section 6(e)(iii) hereof; 


 


4

















 


(ii)                                     Assignee as tenant shall attorn to Landlord
and shall have the rights and obligations of tenant under the Alnylam Lease
with respect to the Subleased Premises, and all of the terms and conditions of
the Alnylam Lease, together with the additional provisions as set forth in
Section 6(e)(iii) hereof, shall apply only as between Landlord and Assignee
with respect to the Subleased Premises; and 


 


(iii)                                  the Alnylam Lease shall be automatically
amended accordingly to add the Subleased Premises to the Existing Alnylam
Premises demised under the Alnylam Lease, to adjust the Tenant’s Pro Rata Share
under the Alnylam Lease for the addition of the Subleased Premises to the
rentable square feet of the Existing Alnylam Premises, and to add the following
additional provisions to the Alnylam Lease:


 


(1)  The Monthly Rent (as defined in the Alnylam
Lease) for the Subleased Premises shall be at the rate set forth for Base Rent
under the Lease, subject to adjustment for specific Lease Year time periods as
set forth in the Lease as follows:  (A)
$43.00 per rentable square foot of the Subleased Premises through the last day
of Lease Year 3 (as such Lease Year is defined in the Lease), (B) $45.00 per
rentable square foot of the Subleased Premises from the first day of Lease Year
4 through the last day of Lease Year 6 (as such Lease Years are defined in the
Lease) and (C) $46.00 per rentable square foot of the Subleased Premises from
the first day of Lease Year 7 through the last day of Lease Year 10 (as such
Lease Years are defined in the Lease). Monthly Rent (under the Alnylam Lease)
with respect to the Subleased Premises for any Extended Term of the Alnylam
Lease shall be determined in the same manner as provided in the Alnylam Lease
for the determination of Extended Term Monthly Rent for the remainder of the
Existing Alnylam Premises;


 


(2)  If at the time of the Early Lease Termination
Landlord is obligated (A) under Section III of the “Work Letter” (as defined in
the Lease) to provide Tenant thereunder with any unpaid portion of the “Tenant
Work Allowance” or “Additional Work Allowance” (as such terms are defined in
the Lease), or (B) under Section III of such Work Letter to apply any credits
to Monthly Rent under the Lease on account of any ”Allowance Excess” (as such
term is defined in the Lease), then to the extent that Assignee is fulfilling
the obligations of the Tenant under the Work Letter with respect to the
Subleased Premises and is entitled to such portion of the Tenant Work Allowance
and/or Additional Work Allowance allocable to the Subleased Premises, and to
the extent that neither Tenant, nor Assignor, is entitled to payment for such
allocable portion of the Tenant Work Allowance and/or Additional Work Allowance
and/or entitled to such credit on account of any Allowance Excess, and provided
further that Assignee is not in default under the Alnylam Lease, Landlord
shall, subject to and in accordance with the provisions of said Work Letter,
provide Assignee with any such unpaid part, if any, of the portion of the
Tenant Work Allowance and Additional Work Allowance allocable to the Subleased
Premises, and apply such allocable portion of such credit, if 


 


5

















 


any, to Assignee’s
obligations with respect to the Subleased Premises to pay Monthly Rent under
the Alnylam Lease; and


 


(3)  Subject to payment of the Parking Fee (as
that term is defined in the Alnylam Lease) therefor and the terms and
conditions of the Alnylam Lease pertaining to parking, the number of parking
spaces under the Alnylam Lease shall be increased by 24 parking spaces, which
is, as between Tenant and Assignee, the number of parking spaces to which
Assignee is entitled under the Sublease as of the effective date of the
Assignment.


 


In the event of such Early
Lease Termination and upon request of Landlord, Assignee shall execute and
deliver a written confirmation of the foregoing amendment to the Alnylam Lease
as such amendment is contained in this Section 6(e).


 


f.                                        Landlord shall not be (a) liable for any
prior act or omission of Tenant under the Lease prior to any Early Lease
Termination or for any defaults of Assignor under the Sublease prior to such
Early Lease Termination, (b) subject to any defenses or offsets previously
accrued which Assignee may have against Tenant or Assignor for any period prior
to such Early Lease Termination, or (c) be bound by any changes or
modifications made to the Sublease without the prior written consent of
Landlord. Landlord and Assignee agree that, as between Landlord and Assignee
only, interpretation of individual provisions of the Alnylam Lease, if as
amended as contemplated hereby in the event of any Early Lease Termination,
shall give effect to the parties’ mutual intention that, in the event of such
Early Lease Termination and automatic amendment of the Alnylam Lease,
notwithstanding anything contained in the Lease or Sublease as of the date
hereof, the rights and obligations of Landlord and Assignee with respect to the
Subleased Premises when added to the Alnylam Lease shall be as “Landlord” and
“Tenant” respectively under the Alnylam Lease subject to the inclusion of the
additional provisions in the Alnylam Lease with respect to the Subleased
Premises, as set forth in Section 6(e)(iii) hereof.


 


g.                                     Within thirty (30) days after request
therefor, Tenant shall reimburse Landlord for all of Landlord’s reasonable
out-of-pocket costs and expenses incurred to third parties in connection with
the Assignment and this Consent.


 


h.                                     Tenant and Assignee agree that, as between
Tenant and Assignee only, (i) all references in this Consent to the Lease shall
be deemed to refer only to the non-redacted portions of the Lease attached to
the Sublease, and (ii) Tenant shall indemnify and hold Assignee harmless from
and against any liabilities or obligations which may by this Consent be imposed
on Assignee under redacted portions of the Lease.


 


7.                                       Any act or omission of Assignor or Assignee
or anyone claiming under or through either Assignor or Assignee, which act or
omission violates any of the provisions of the Lease shall be deemed a
violation of the Lease by Tenant.


 


6

















 


8.                                       Upon a default by Tenant under the Lease,
Landlord may proceed directly against Tenant, any guarantors or anyone else
liable under the Lease or the Sublease without first exhausting Landlord’s
remedies against any other person or entity liable thereon to Landlord. If
Landlord gives Assignee notice that Tenant or Assignor is in default under the
Lease after the giving of any applicable notice and the expiration of any
applicable grace or cure period, Assignee shall thereafter make directly to
Landlord all payments otherwise due Tenant or Assignor, which payments will be
received by Landlord without any liability to Landlord except to credit such
payments against amounts due under the Lease. The mention in this Consent of
any particular remedy shall not preclude Landlord from any other remedy in law
or in equity.


 


9.                                       Tenant shall pay any brokerage commissions or
fees that may be payable as a result of or in connection with the Sublease
and/or Assignment, and Tenant hereby indemnifies and agrees to hold Landlord
harmless from and against any loss or liability arising therefrom or from any
other commissions or fees payable in connection with the Sublease and/or
Assignment which result from the actions of Tenant. Assignor hereby indemnifies
and agrees to hold Landlord harmless from and against any loss or liability
arising from any commissions or fees payable in connection with the Sublease
and/or Assignment which result from the actions of Assignor. Assignee hereby
indemnifies and agrees to hold Landlord harmless from and against any loss or
liability arising from any commissions or fees payable in connection with the
Sublease and/or Assignment which result from the actions of Assignee. As
between Tenant, Assignor and Assignee only, however, responsibility for the
payment of any brokerage commissions or fees that may be payable as a result of
or in connection with the Assignment is specifically set forth in Section 11 of
the Assignment.


 


10.                                 Tenant, Assignor and Assignee each agrees
that it will not modify or amend the Sublease or Assignment in any way without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Tenant, Assignor and Assignee hereby agree that it shall
be reasonable for Landlord to withhold its consent to any modification or
amendment of the Sublease which would change the permitted use of the Subleased
Premises or which would affect Landlord’s status as a real estate investment
trust. Any modification or amendment of the Sublease without Landlord’s prior
written consent shall be void and of no force or effect.


 


11.                                 This Consent may not be changed orally, but
only by an agreement in writing signed by Landlord and the party against whom
enforcement of any change is sought. This Consent supersedes all prior understandings
and agreements, whether written or oral, between Landlord and any other party
hereto with respect to the consent of the Landlord to the assignment of the
Sublease; provided, however, that the Consent to Sublease dated October 23,
2006 by and among Landlord, Tenant and Assignor (the “Consent to Sublease”) shall continue to
apply and remains in full force and effect with respect to the subject matter
contained therein. As between Tenant and Assignor only, and as between Tenant
and Assignee only, however, in the event of any conflict between the terms of
this Consent, the terms of any other document and the terms of this Assignment,
the Assignment controls.


 


12.                                 This Consent may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute but one and the same instrument.


 


7

















 


13.                                 This Consent and the legal relations between
the parties hereto shall be governed by and construed and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts, without
regard to its principles of conflicts of law.


 


[remainder
of page intentionally left blank]


 


8

















 


IN WITNESS
WHEREOF, Landlord,
Tenant, Assignor and Assignee have caused their duly authorized representatives
to execute this Consent as of the date first above written.


 


	
  

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  ARE-MA
  REGION NO. 28, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Alexandria Real Estate
  Equities, L.P.,

  
	
   

  	
   

  	
  a Delaware limited
  partnership, member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  ARE-QRS Corp., a Maryland

  corporation, general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  ARCHEMIX
  CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  MOMENTA
  PHARMACEUTICALS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  ALNYLAM
  PHARMACEUTICALS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 


9

















 


EXHIBIT
H-3


 


Form
of Second Amendment to Overlease


 


Note: Momenta
Pharmaceuticals, Inc. is not a party to this Exhibit H-3. Pursuant to
Item 601 of Regulation S-K, such exhibit is not being filed herewith.


 

















 


EXHIBIT
H-4


 


ASSIGNMENT
AND ASSUMPTION OF CONSTRUCTION CONTRACT


 


THIS ASSIGNMENT AND
ASSUMPTION OF CONSTRUCTION CONTRACT (the “Assignment”) is made as of October         ,
2007 (the “Effective Date”) by Momenta Pharmaceuticals, Inc. (“Assignor”)
and Alnylam Pharmaceuticals, Inc. (“Assignee”).


 


WHEREAS, Assignor is the
owner under that certain Standard Form of Agreement between Owner and
Contractor (AIA Document A111-1997) dated May 2, 2007, as modified by three
Prime Contract Change Orders dated July 10, 2007, August 27, 2007 and October
1, 2007 (as so modified, the “Contract”), with F.L. Caulfield &
Sons, Inc., as contractor (“Contractor”) with respect to the project
(the “Project”) on the second floor of the Building located at 300 Third
Street, Cambridge, Massachusetts. A true copy of the Contract is attached
hereto as Exhibit A; and


 


WHEREAS, Assignor wishes to
assign to Assignee, and Assignee wishes to assume Assignor’s interest in the
Contract;


 


NOW, THEREFORE, incorporating
the recitals above and in consideration of the mutual promises herein contained
and other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, Assignor and Assignee hereby agree as follows:


 


1.                                       Assignment of Contract. Assignor, for value received, hereby
transfers and assigns to Assignee all of Assignor’s right, title and interest
in and to the Contract. Notwithstanding the foregoing, Assignor does not
assign, and hereby reserves all rights to, any proceeds from the claim made by
Assignor to the Contractor (and/or subcontractor) for reimbursement in the
amount of $14,527.23 paid by Assignor to Archemix Corp. for sprinkler valve
damage incurred in connection with the Project.


 


2.                                       Assumption of Obligations by Assignee. By acceptance of this Assignment, Assignee
hereby unconditionally assumes and agrees to perform all of the obligations and
covenants of Assignor as owner under the Contract, arising from and after the
Effective Date. Assignee agrees for the benefit of Contractor that Contractor
shall have the right to enforce against Assignee all of the Assignor’s
obligations, liabilities and duties under the Contract to be performed by
Assignor as fully and completely as if Assignee had originally executed the
Contract as the owner thereunder.


 


3.                                       Representations. Assignor represents as follows:


 


a.                                       The Contract is a complete statement of the
agreement between the parties with respect to Project referred to therein.


 


b.                                      A true and complete copy of the Contract is
attached hereto as Exhibit A. A copy of a Project Book maintained by
Assignor for the Project including true copies of the schedule of values,
releases of liens and insurance certificates received by Assignor is attached
hereto as Exhibit B.


 


c.                                       The Contract is presently in full force and
effect according to its terms and is the valid and binding obligation of the
undersigned as of the Effective Date.


 


d.                                      Contractor has been paid $3,222,564.00 of the
Contract Sum due under the Contract. 


 


g.                                      Assignor, as of the Effective Date, is not in
default under the terms of the Contract. To Assignor’s knowledge, Contractor is
not in default in the performance of its obligations to Assignor under the
Contract.


 


4.                                       Successors and Assigns. This Assignment shall inure to the benefit
of the parties, their assigns and successors in interest or in title or in
both.


 


5.                                       Governing Law. This Assignment shall be governed by and
construed in accordance with laws of the Commonwealth of Massachusetts.


 


6.                                       Consent. This Assignment shall be of no force or effect unless and until
Contractor shall give its written consent hereto.


 


{Signatures
Follow}


 

















 


IN WITNESS WHEREOF, this
Assignment has been executed by Assignor and Assignee as a sealed instrument as
of the day and year first above written.


 


Assignor:


 


MOMENTA PHARMACEUTICALS, INC.


 


	
  

  	
  Exhibit
  - Do Not Sign

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Richard P. Shea, its Vice
  President, Treasurer and Chief Financial Officer, duly authorized

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignee:

  
	
   

  	
   

  
	
   

  	
  ALNYLAM PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
               Exhibit
  - Do Not Sign

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:                                        ,
  duly authorized

  
					



 

















 


CONTRACTOR
CONSENT


 


The undersigned, being the
Contractor under the above described Contract, subject to the covenants,
agreements, terms, provisions and conditions contained in the Contract and this
Assignment, hereby consents to the assignment of the Contract to Assignee, and
agrees to accept the Assignee as the owner under the Contract.


 


	
  

  	
  Contractor:

  
	
   

  	
   

  
	
   

  	
  F.L. Caulfield & Sons,
  Inc.

  
	
   

  	
   

  
	
   

  	
               Exhibit
  - Do Not Sign

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
               Duly Authorized

  



 

















 


EXHIBIT
H-5


 


ASSIGNMENT
AND ASSUMPTION OF ARCHITECT CONTRACT


 


THIS ASSIGNMENT AND
ASSUMPTION OF ARCHITECT CONTRACT (the “Assignment”) is made as of October         ,
2007 (the “Effective Date”) by Momenta Pharmaceuticals, Inc. (“Assignor”)
and Alnylam Pharmaceuticals, Inc. (“Assignee”).


 


WHEREAS, Assignor and Olson
Lewis Dioli & Doktor, Architects & Planners Incorporated (the “Architect”)
are parties to that certain pursuant to a fee proposal agreement dated October
4, 2006, as modified by letter agreement dated August 19, 2007 (as so modified,
the “Contract”) with respect to the project (the “Project”) on
the second floor of the Building located at 300 Third Street, Cambridge,
Massachusetts. A true copy of the Contract is attached hereto as Exhibit
A-1;


 


WHEREAS, pursuant to the
Architect Contract, the Architect has produced certain drawings and specifications
(the “Drawings”). True copies of the Drawings are attached hereto as Exhibit
A-2; and


 


WHEREAS, Assignor wishes to
assign to Assignee, and Assignee wishes to assume Assignor’s interest in the
Contract and the Drawings;


 


NOW, THEREFORE,
incorporating the recitals above and in consideration of the mutual promises
herein contained and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree
as follows:


 


1.                                       Assignment of Contract. Assignor, for value received, hereby
transfers and assigns to Assignee all of Assignor’s right, title and interest
in and to the Contract and the Drawings.


 


2.                                       Assumption of Obligations by Assignee. By acceptance of this Assignment, Assignee
hereby unconditionally assumes and agrees to perform all of the obligations and
covenants of Assignor as owner under the Contract, arising from and after the
Effective Date. Assignee agrees for the benefit of the Architect that the
Architect shall have the right to enforce against Assignee all of the
Assignor’s obligations, liabilities and duties under the Contract to be
performed by Assignor as fully and completely as if Assignee had originally
executed the Contract.


 


3.                                       Representations. Assignor represents as follows:


 


a.                                       The Contract is a complete statement of the
agreement between the parties with respect to Project referred to therein.


 


b.                                      True and complete copies of the Contract and
the Drawings are attached hereto as Exhibit A-1 and A-2.


 


c.                                       The Contract is presently in full force and
effect according to its terms and is the valid and binding obligation of the
undersigned as of the Effective Date.


 


d.                                      The Architect has been paid $195,518.00 under
the Contract. 


 


g.                                      Assignor, as of the Effective Date, is not in
default under the terms of the Contract. To Assignor’s knowledge, the Architect
is not in default in the performance of its obligations to Assignor under the
Contract.


 


4.                                       Successors and Assigns. This Assignment shall inure to the benefit
of the parties, their assigns and successors in interest or in title or in
both.


 


5.                                       Governing Law. This Assignment shall be governed by and
construed in accordance with laws of the Commonwealth of Massachusetts.


 


6.                                       Consent. This Assignment shall be of no force or effect unless and until the
Architect shall give its written consent hereto.


 


{Signatures
Follow}


 

















 


IN WITNESS WHEREOF, this
Assignment has been executed by Assignor and Assignee as a sealed instrument as
of the day and year first above written.


 


	
  

  	
  Assignor:

  
	
   

  	
   

  
	
   

  	
  MOMENTA PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
              Exhibit
  - Do Not Sign

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Richard P. Shea, its Vice
  President, Treasurer and Chief Financial Officer, duly

  authorized

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignee:

  
	
   

  	
   

  
	
   

  	
  ALNYLAM PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
              Exhibit
  - Do Not Sign

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:                                                ,
  duly authorized

  



 

















 


ARCHITECT
CONSENT


 


The undersigned, being the
Architect under the above described Contract, subject to the covenants,
agreements, terms, provisions and conditions contained in the Contract and this
Assignment, hereby consents to the assignment of the Contract to Assignee, and
agrees to accept the Assignee in the place and stead of the Assignor under the
Contract.


 


	
  

  	
  Architect:

  
	
   

  	
   

  
	
   

  	
  Olson Lewis Dioli &
  Doktor, Architects & Planners Incorporated

  
	
   

  	
   

  
	
   

  	
  Exhibit - Do Not Sign

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Duly Authorized

  



 

















 


EXHIBIT
H-6


 


Bill
of Sale


 


KNOW ALL MEN BY THESE
PRESENTS that Momenta Pharmaceuticals, Inc., a Delaware corporation (“Seller”)
for consideration of Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby grant, sell, transfer and deliver unto Alnylam
Pharmaceuticals, Inc., a Delaware corporation (“Purchaser”), the furniture,
non-leasehold fixtures(3)  and
equipment described on Schedule A attached hereto.


 


And Seller does hereby
warrant, covenant and agree that it has marketable title to said furniture,
fixtures and equipment, free of all liens and encumbrances arising by or
through Seller.


 


By acceptance of said
furniture, fixtures and equipment, Purchaser hereby agrees that said furniture,
fixtures and equipment is sold “AS-IS,” “WHERE-IS,” WITH ALL FAULTS, WITHOUT
WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED (EXCEPT, SELLER WARRANTS
THAT IT HAS TITLE TO THE SAID furniture,
fixtures and equipment), INCLUDING NO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, CONFORMITY TO ANY SPECIFICATIONS AND
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.


 


IN WITNESS WHEREOF, the
undersigned has hereunto set its hand and seal as of the         
day of October, 2007.


 


 


	
  Witness:

  	
  Momenta Pharmaceuticals,
  Inc.

  
	
   

  	
   

  
	
   

  	
                              Exhibit
  - Do Not Sign

  
	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Richard P. Shea, its Vice
  President, Treasurer and Chief Financial Officer, duly

  authorized

  
	
  :

  	
   

  
						



 






(3)  To the extent any fixtures are part of the
leasehold estate pursuant to that certain Sublease dated as of September 8,
2006, as amended (the “Sublease”) between Archemix Corp., as sublandlord, and
Seller, as subtenant, ownership of such fixtures shall be governed by the
Sublease.


 

















 


EXHIBIT
H-7


 


ASSIGNMENT
AND ASSUMPTION OF PURCHASE ORDERS


 


THIS ASSIGNMENT AND
ASSUMPTION OF PURCHASE ORDERS (the “Assignment”) is made as of October         ,
2007 (the “Effective Date”) by Momenta Pharmaceuticals, Inc. (“Assignor”)
and Alnylam Pharmaceuticals, Inc. (“Assignee”).


 


WHEREAS, Assignor has made
certain purchase orders (each, a “Purchase Order” and collectively, the “Purchase
Orders”) with respect to equipment and furniture for the project on the
second floor of the Building located at 300 Third Street, Cambridge,
Massachusetts. True copies of the Purchase Orders are attached hereto as Exhibit
A-1;  and


 


WHEREAS, Assignor wishes to
assign to Assignee, and Assignee wishes to assume Assignor’s interest in the
Purchase Orders;


 


NOW, THEREFORE,
incorporating the recitals above and in consideration of the mutual promises
herein contained and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree
as follows:


 


1.                                       Assignment of Purchase Orders. Assignor, for value received, hereby
transfers and assigns to Assignee all of Assignor’s right, title and interest
in and to the Purchase Orders, including all deposits made by Assignor
thereunder (the “Deposits”).


 


2.                                       Assumption of Obligations by Assignee. By acceptance of this Assignment, Assignee
hereby unconditionally assumes and agrees to perform all of the obligations and
covenants of Assignor under the Purchase Orders, arising from and after the
Effective Date.


 


3.                                       Representations. Assignor represents as follows:


 


a.                                       True and complete copies of the Purchase
Orders are attached hereto as Exhibit A-1.


 


b.                                      Assignor has paid Deposits under the Purchase
Orders in the amounts set forth on Exhibit A-2 attached hereto. 


 


c.                                       Assignor, as of the Effective Date, is not in
default under the terms of the Purchase Orders. To Assignor’s knowledge, the
respective vendors under the Purchase Orders are not in default in the
performance of its obligations to Assignor under the Purchase Orders.


 


4.                                       Further Assurances. Assignor agrees to reasonably cooperate
with Assignee to enforce Assignor’s rights under the Purchase Orders; provided,
that, such cooperation shall be without material expense to Assignor. If any
action to enforce the Purchase Orders must be made in Assignor’s name, Assignor
hereby irrevocably appoints Assignee its attorney-in-fact to enforce Assignor’s
rights under the Purchase Orders, such appointment being deemed coupled with an
interest.


 


5.                                       Successors and Assigns. This Assignment shall inure to the benefit
of the parties, their assigns and successors in interest or in title or in
both.


 


6.                                       Governing Law. This Assignment shall be governed by and
construed in accordance with laws of the Commonwealth of Massachusetts.


 


{Signatures
Follow}


 

















 


IN WITNESS WHEREOF, this
Assignment has been executed by Assignor and Assignee as a sealed instrument as
of the day and year first above written.


 


	
  

  	
  Assignor:

  
	
   

  	
   

  
	
   

  	
  MOMENTA PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
              Exhibit
  - Do Not Sign

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Richard P. Shea, its Vice
  President, Treasurer and Chief Financial Officer, duly

  authorized

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Assignee:

  
	
   

  	
   

  
	
   

  	
  ALNYLAM PHARMACEUTICALS,
  INC.

  
	
   

  	
   

  
	
   

  	
              Exhibit
  - Do Not Sign

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:                                                ,
  duly authorized