Exhibit 10.11


 


OFFICE LEASE


 


MARLBOROUGH CAMPUS


 


by and between


 


MARLBOROUGH CAMPUS
LIMITED PARTNERSHIP,


 


as landlord


 


and


 


EXACT SCIENCES
CORPORATION,


as tenant


 

















 


MARLBOROUGH CAMPUS


 


OFFICE LEASE


 


This Office Lease (the “LEASE”), dated as of the date set forth in SECTION 1
of the Summary of Basic Lease Information (the “SUMMARY”), below, is made by
and between MARLBOROUGH CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited partnership
(“LANDLORD”), and EXACT Sciences Corporation, a corporation (“TENANT”).


 


SUMMARY
OF BASIC LEASE INFORMATION


 


	
  TERMS OF LEASE

  	
   

  	
  DESCRIPTION

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Date:

  	
   

  	
  January 23,
  2003

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Premises

  	
   

  	
   

  
	
   

  	
  (Article 1)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1                                 Building: 

  	
   

  	
  That
  certain six-story building located at 3Com Drive, Marlborough, Massachusetts
  in the “Project,” commonly referred to in the Project as “BUILDING 1.” 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2                                 Premises:

  	
   

  	
  Approximately
  55,740 rentable square feet of space, calculated per BOMA Standard Z65.1-1996
  (“BOMA Standard”), located on the fifth and sixth floors of the Building, as
  further set forth in EXHIBIT A to this Lease (“PREMISES”).

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3                                 Project:

  	
   

  	
  The
  Building is part of that certain building complex (the “PROJECT”)
  consisting of four (4) buildings comprising 530,895 rentable square feet
  of space, and other improvements, as depicted on EXHIBIT B and as
  further set forth in SECTION 1.2 of this Lease.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4                                 Interim
  Premises

  	
   

  	
  The
  portion of the Premises identified in accordance with SECTION 3.2,
  below.

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Lease
  Term

  	
   

  	
   

  
	
   

  	
  (Article 2)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1                                 Length of
  Initial Term:

  	
   

  	
  Approximately
  seven (7) years and six (6) months.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.2                                 Lease
  Commencement Date:

  	
   

  	
  January 23,
  2003.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.3                                 Rent
  Commencement Date:

  	
   

  	
  July 15,
  2003

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.4                                 Lease
  Expiration Date:

  	
   

  	
  July 31,
  2010 at 11:59 p.m. EST, unless sooner terminated pursuant to the provisions
  hereof.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.5                                 Option(s)
  to Extend

  	
   

  	
  One
  option to extend for three (3) years.

  
	
   

  	
   

  	
   

  	
   

  
	
  4.
  

  	
  Base
  Rent (Article 3):

  	
   

  	
   

  



 


1

















 


4.1         Base Rent
During Initial Term:


 


	
  Period

  	
   

  	
  Annual Base Rent

  	
   

  	
  Monthly Installment of

  Base Rent

  	
   

  	
  Annual Rental Rate per

  Rentable Square Foot

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7/15/2003-7/31/2004

  	
   

  	
  $

  	
  1,254,150.00

  	
   

  	
  $

  	
  104,512.50

  	
  *

  	
  $

  	
  22.50

  	
   

  
	
  8/1/2004-7/31/2005

  	
   

  	
  $

  	
  1,282,020.00

  	
   

  	
  $

  	
  106,835.00

  	
  *

  	
  $

  	
  23.00

  	
   

  
	
  8/1/2005-7/31/2006

  	
   

  	
  $

  	
  1,309,890.00

  	
   

  	
  $

  	
  109,157.70

  	
  *

  	
  $

  	
  23.50

  	
   

  
	
  8/1/2006-7/31/2007

  	
   

  	
  $

  	
  1,337,760.00

  	
   

  	
  $

  	
  111,480.00

  	
  *

  	
  $

  	
  24.00

  	
   

  
	
  8/1/2007-7/31/2008

  	
   

  	
  $

  	
  1,385,630.00

  	
   

  	
  $

  	
  113,802.50

  	
  *

  	
  $

  	
  24.50

  	
   

  
	
  8/1/2008-7/31/2009

  	
   

  	
  $

  	
  1,393,500.00

  	
   

  	
  $

  	
  116,125.00

  	
  *

  	
  $

  	
  25.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8/1/2009-7/31/2010

  	
   

  	
  $

  	
   1,421,370.00

  	
   

  	
  $

  	
  118,447.50

  	
  *

  	
  $

  	
   25.50

  	
   

  
																



 






*Monthly
installments of rent shall be reduced, to the extent applicable, by the credit
due in accordance with Section 21.2 of this Lease.


 


EXAMPLE:
Based on an initial letter of credit of $1,000,000, and a cost equal to or in
excess of 1% of the letter of credit amount, and if the reductions are effective
in accordance with Section 21.3 below, the net Base Rent payable, after
such credit, shall be as follows (provided, however, when the Base Rent for the
first month of the Lease Term (July, 2003) is paid upon execution of this
Lease, Tenant may deduct therefrom, the pro rata share of the credit due
in accordance with Section 21.2 (not to exceed $833.33 per month) for the
period from the date of issuance of the letter of credit to July 31,
2003): 


 


	
   

  	
   

  	
  Estimated

  	
   

  	
  Estimated

  	
   

  
	
   

  	
   

  	
  Net after L/C Credit:

  	
   

  	
  Net after L/C Credit:

  	
   

  
	
   

  	
   

  	
  Annual

  	
   

  	
  Monthly Installment

  	
   

  
	
  Period

  	
   

  	
  Base Rent

  	
   

  	
  of Base Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7/15/2003-7/31/2004

  	
   

  	
  $

  	
  1,244,150.00

  	
   

  	
  TBD

  	
   

  
	
  8/1/2003-7/31/2004

  	
   

  	
  $

  	
  1,244,150.00

  	
   

  	
  $

  	
  103,679.17

  	
   

  
	
  8/1/2004-7/31/2005

  	
   

  	
  $

  	
  1,272,020.00

  	
   

  	
  $

  	
  106,001.67

  	
   

  
	
  8/1/2005-7/31/2006

  	
   

  	
  $

  	
  1,300,890.00

  	
   

  	
  $

  	
  108,407.50

  	
   

  
	
  8/1/2006-7/31/2007

  	
   

  	
  $

  	
  1,329,760.00

  	
   

  	
  $

  	
  110,813.33

  	
   

  
	
  8/1/2007-7/31/2008

  	
   

  	
  $

  	
  1,358,630.00

  	
   

  	
  $

  	
  113,219.17

  	
   

  
	
  8/1/2008-7/31/2009

  	
   

  	
  $

  	
  1,387,500.00

  	
   

  	
  $

  	
  115,625.00

  	
   

  
	
  8/1/2009-7/31/2010

  	
   

  	
  $

  	
  1,416,370.00

  	
   

  	
  $

  	
  118,030.83

  	
   

  



 


	
   

  	
  4.2

  	
  Base
  Rent During Option Term:

  	
   

  	
  Fair
  market value, determined in accordance with SECTION 3.1.1 of this Lease.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.3

  	
  Interim
  Rent

  	
   

  	
  Interim
  Rent, as defined in SECTION 3.2, below

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Base
  Year (Article 4:)

  	
   

  	
  Calendar
  year 2003; it being understood that in calculating Tax Expenses for the Base
  Year, Landlord shall use one-half of the taxes for the fiscal

  



 


2

















 


	
   

  	
   

  	
   

  	
   

  	
  year
  from July 1, 2002 to June 30, 2003 and one-half of the taxes for
  the fiscal year from July 1, 2003 to June 30, 2004.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Tenant’s
  Share (Article 4:)

  	
   

  	
  10.5.%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Permitted
  Use (Article 5:)

  	
   

  	
  Tenant
  shall use the Premises for general office, laboratory and research purposes
  use, including but not limited to research and development, sales, training,
  biology, clinical and research lab.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Security
  Deposit (Article 21:)

  	
   

  	
  $1,000,000
  letter of credit, adjusted in accordance with SECTION 21.3 of this
  Lease.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Parking
  (Article 28:)

  	
   

  	
  Tenant’s
  Share of all parking available at the Project As of the Lease Commencement
  Date, the Project includes a total of 1,417 parking spaces.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Address
  of Tenant (Section 29.16:)

  	
   

  	
  See
  SECTION 29.16 of this Lease.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Address
  of Landlord (Section 29.16:)

  	
   

  	
  See
  SECTION 29.16 of this Lease.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Broker(s)
  (Section 29.22:)

  	
   

  	
  Cushman &
  Wakefield of MA, Inc.

  



 


3

















 


ARTICLE 1


 


PREMISES, BUILDING, PROJECT,
AND COMMON AREAS


 


1.1                                 THE
PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises set forth in SECTION 2.2 of the Summary (the “PREMISES”)
and shown on EXHIBIT A, attached hereto. The Premises consist of substantially
all of the fifth and sixth floors of the building designated in SECTION 2.1
of the Summary (the “BUILDING”) and shall be deemed to be the number of
rentable square feet as set forth in SECTION 2.2 of the Summary. Tenant
shall not have the right to remeasure the Premises. The parties hereto agree
that the lease of the Premises is upon and subject to the terms, covenants and
conditions (the “TCCS”) herein set forth, and Landlord and Tenant covenant as a
material part of the consideration for this Lease to keep and perform each
and all of such terms, covenants and conditions by it to be kept and performed
and that this Lease is made upon the condition of such performance. Tenant also
acknowledges that neither Landlord nor any agent of Landlord has made any representation
or warranty regarding the condition of the Premises, the Building or the
Project or with respect to the suitability of any of the foregoing for the
conduct of Tenant’s business, except as specifically set forth in this Lease.
Landlord shall not be obligated to provide or pay for any improvement work or
services related to the improvement of the Premises except as follows: Prior to
the Commencement Date, Landlord shall provide a tenant entry by installing
doors on the fifth and sixth floors to demise the Premises (the “Landlord’s
Work”). Tenant shall at its sole cost and expense make such doors secure by
installing an internal card reader system in accordance with SECTION 1.5,
below.


 


1.2                                 THE BUILDING
AND THE PROJECT. The Building is part of a complex of buildings located on
the Property consisting of four (4) buildings and other improvements. The
term “PROJECT,” as used in this Lease, shall mean (i) the Building and the
Common Areas (as such term is defined in SECTION 1.3 below), (ii) the
land (which is improved with landscaping, parking areas, access roads and other
improvements) upon which the Building and the Common Areas are located as shown
on the Project Site Plan, and (iii) the three other office buildings (including
without limitation, “BUILDING 2”, “BUILDING 3” and “BUILDING 4”) located
adjacent to the Building and the land upon which such adjacent office buildings
are located, all substantially as shown on the Project Site Plan attached
hereto as EXHIBIT B.


 


1.3                                 COMMON
AREAS. Tenant shall have the non-exclusive right to use in common with Landlord
and other tenants in the Project, and subject to the rules and regulations
referred to in ARTICLE 5 of this Lease and attached hereto as EXHIBIT D,
as applied uniformly to all tenants, those portions of the Building and the
Project which are provided, from time to time, for non-exclusive use in common
by Landlord, Tenant and any other tenants of the Project (such areas, including
without limitation parking areas, driveways, access roads and sidewalks on the
Project, whether or not shown on the Project Site Plan, and common facilities
within the Building such as lobbies, corridors, stairwells, elevators, loading
docks, and restrooms, the Conference Facilities (as defined in Section 1.31,
below), Cafeteria (as defined in Section 1.3.2, below) and Fitness Center
(as defined in Section 1.3.3, below), together with such other portions of
the Project designated to Tenant in writing by Landlord to be shared by
Landlord and certain tenants, are collectively referred to herein as the “COMMON
AREAS”). Landlord shall maintain and operate the Common Areas in a manner
consistent with Comparable Buildings (as defined in SECTION 6.1).


 


4

















 


Tenant
shall have the right, in common with other tenants of the Building, to use the
Cafeteria, the Conference Facilities, the Fitness Center, so long as the same
are available to other tenants of the Project, subject to the other terms and
conditions of this Lease and such reasonable rules and regulations as Landlord
may adopt with respect thereto. Landlord reserves the right to close temporarily
or permanently, make alterations or additions to, or change the location of
elements of the Project and the Common Areas, including, without limitation,
the right to (a) make changes in the location, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas and walkways
(except that under no circumstances shall the total number of parking spaces in
the Project be reduced below 1417); (b) to close temporarily any of the
Common Areas for maintenance purposes so long as reasonable access to the Premises
remains available; (c) to add additional improvements to the Common Areas;
(d) to use the Common Areas while engaged in making additional improvements,
repairs or alterations to the Project, or any portion thereof; (e) to do
and perform such other acts and make such other changes in, to or with respect
to the Project, Building and Common Areas as Landlord may deem to be appropriate;
and (f) to remove temporarily from use as Common Areas any portion of the
Common Areas; provided, however, that Landlord’s exercise of the foregoing
rights shall not materially, adversely interfere with Tenant’s access to the
Building and the Premises and/or with Tenant’s use and occupancy of the Premises
or the Common Areas, other than and excluding the Common Areas of Building 4,
which may be withdrawn from Common Areas, subject to the provisions set
forth below, and provided further that if Landlord permanently removes any portion
of the Conference Facilities, Cafeteria and/or Fitness Center from use as
Common Areas during the Lease Term (which right to remove shall be subject to the
provisions set forth below), the total square footage contained in the Project
and the Premises shall be re-calculated in accordance with the BOMA Standard
and Tenant’s Share shall be adjusted accordingly. If the Conference Facilities,
Cafeteria and/or Fitness Center are closed for a temporary period in excess of
six months, other than for reasons related to a casualty, the total square
footage in the Premises and Tenant’s Share shall be adjusted as set forth in
the preceding sentence until such time as those areas are restored to use as Common
Areas.


 


1.3.1                        CONFERENCE
FACILITIES. Subject to availability, and prior reservation in accordance with
any reasonable procedures implemented by Landlord and provided in writing to
Tenant, Tenant shall have the right to use the meeting and training rooms and
the auditorium located in Building 4 (collectively, the “CONFERENCE FACILITIES”)
in common with Landlord and other tenants of the Project, to the extent
otherwise permitted by Landlord. The use of such facilities shall be subject to
such reasonable rules and requirements as Landlord may establish and
provide in writing to Tenant, and to all other provisions of this SECTION 1.3.
In no event shall Tenant’s right to use such facilities have precedence over
Landlord’s use thereof (unless the facilities have been previously reserved by
Tenant in accordance with Landlord’s reasonably established rules and
requirements). Notwithstanding any other provision herein to the contrary,
Landlord reserves the right, upon written notice to Tenant, (a) to retain
a third party operator to operate the Conference Facilities, or (b) to lease
the Conference Facilities to a third party, provided, however, in either such
case, Landlord shall provide for the right of Tenant to rent, or otherwise use,
the Conference Facilities listed below on substantially the same basis as set
forth in this Lease. Tenant shall pay Landlord a fee for usage of the meeting
rooms and auditorium in accordance with the then current schedule set by Landlord,
in Landlord’s sole and


 


5

















 


absolute
discretion. The current schedule, which Landlord may change upon written
notice to Tenant, is as follows: 


 


	
  Meeting/Conference Room

  	
   

  	
  Daily Rate

  	
   

  	
  Half-Day Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Charles
  River (Auditorium)

  	
   

  	
  $

  	
  375

  	
   

  	
  $

  	
  250

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nashua River

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  125

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cornell
  (Building 4 training area)

  	
   

  	
  $

  	
  250

  	
   

  	
  $

  	
  125

  	
   

  



 


1.3.2                        CAFETERIA.
Tenant and its employees, contractors, visitors and consultants shall have the right
to use the cafeteria (the “CAFETERIA”) located in the Project so long as it is
operational provided such parties shall be responsible for payment of all
charges for meals and other items purchased at the cafeteria. The use of such
facilities by Tenant and/or its employees, contractors, visitors and
consultants shall be subject to compliance with the other provisions of this SECTION 1.3.
A third party provider currently provides food and beverage service in the
Cafeteria. Landlord shall use commercially reasonable efforts to continue to
operate the Cafeteria in substantially the same manner as it is operated now,
provided, however, that Landlord shall not be required to subsidize the
Cafeteria in any manner, and Landlord, in its reasonable discretion, may change
the size, configuration or location of the Cafeteria area. In the event that
Landlord is unable to locate an operator that will operate the Cafeteria on
terms acceptable to Landlord, in its reasonable business discretion, Landlord
shall have the right and option, in its sole discretion, to take any steps
necessary to reduce or eliminate such costs, including, without limitation,
modification or reduction of the food service, provided, however, if Landlord
discontinues cafeteria service during the Term, Landlord shall provide an
alternative fresh food (including breakfast items, sandwiches, and salads, but
not hot food) and vending service and a seating area or facility substantially
similar to that which currently exists at the Project.


 


1.3.3                        FITNESS
CENTER. Tenant and its employees, contractors and consultants shall have access
to and the right to use the fitness center (the “FITNESS CENTER”) located in
the Project so long as it is operational provided such parties shall be
responsible for payment of all charges customarily charged by Landlord for the
use of the fitness center (currently $25.00 per month). The use of such
facilities by Tenant and/or its employees, contractors, visitors and
consultants shall be subject to compliance with the other provisions of this SECTION 1.3.
Landlord shall have the right to require that Tenant’s employees sign customary
waivers of claims and comply with all safety and other procedures applicable to
use of the fitness center. Notwithstanding any other provision herein to the
contrary, Landlord reserves the right, upon written notice to Tenant, (a) to
retain a third party operator to operate the Fitness Center, (b) to lease
the Fitness Center to a third party who agrees to operate a fitness facility
which shall be available to tenants of the Project and their employees upon
payment of standard charges, and/or (c) to provide a Fitness Center which
is unattended, and does not provide amenities such as towels, provided,
however, in any such case, Landlord shall provide for the right of Tenant to 


 


6

















 


rent,
or otherwise use, the Fitness Center on substantially the same basis as set
forth in this Lease. Landlord shall use commercially reasonable efforts to continue
to make a fitness facility of substantially similar quality as in existence as
of the date of this Lease available at the Project during the Term, provided,
however, such facility need not be attended nor provide amenities such as
towels. Landlord shall have the right to terminate Tenant’s use of the Fitness
Center upon ten (10) days prior written notice to Tenant if the Fitness Center
is closed.


 


1.4                                 FURNITURE.
For no additional charge, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord those items of furniture and artwork situated in the
Premises (the “FURNITURE”) and described on the inventory list attached hereto
as EXHIBIT C (the “INVENTORY LIST”). Landlord hereby represents to Tenant
that Landlord owns the Furniture and has the right to lease the Furniture to
Tenant as described herein. Landlord and Tenant acknowledge that prior to the
Lease Commencement Date the parties will conduct a “walk-through” inspection of
the Premises in order to confirm the completeness and accuracy of the furniture
shown on the Inventory List, and to give Tenant the opportunity to confirm that
the Furniture is in good condition and repair. Subject to such “walk-through”
inspection, Tenant accepts the Furniture in its “as-is” condition, without any
representation or warranty by Landlord. LANDLORD SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS AND/OR WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
FURNITURE. During the Term of this Lease, Tenant shall maintain and repair the
Furniture as reasonably necessary, and shall insure the same along with its
other personal property pursuant to ARTICLE 10 hereof. Upon the expiration
or earlier termination of this Lease, Tenant shall surrender the Furniture to
Landlord in the same condition and repair as on the Lease Commencement Date,
reasonable wear and tear and damage by casualty excepted.


 


1.5                                 CARD KEY
ACCESS. If the Premises or the Building are equipped with a card key access
system, Tenant’s use of the card key access systems shall be subject to the Rules and
Regulations set forth on EXHIBIT D, attached hereto. Tenant shall install
and operate its own internal card reader system (including, without limitation,
card access to the entrance doors to the Premises), and shall provide Landlord
with cards providing Landlord with access to the Premises in accordance with
the terms of this Lease. Except as expressly provided herein, Tenant shall not
have access to those portions of the Building not comprising the Common Areas
or the Premises, which shall remain subject to Landlord’s sole and exclusive
control. Nothing herein shall preclude Landlord from accessing the Premises,
subject to the requirements of ARTICLE 27, for purposes of undertaking maintenance
or repairs or as otherwise provided in this Lease. Landlord makes no representations
or warranties (and hereby expressly disclaims any representations and
warranties, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE AND ANY WARRANTY OF MERCHANTABILITY) regarding the
suitability of any key card access system for Tenant’s particular purposes. In
no event shall Landlord be responsible or liable to Tenant or its employees for
any unauthorized entry upon the Premises or for any failure of the access system
to prevent such entry. Landlord agrees to continue to keep the Building and
Common Areas protected by the current card access monitoring system, or a substantially
similar system.


 


7

















 


ARTICLE 2


 


LEASE TERM


 


2.1                                 LEASE TERM.
The TCCs of this Lease shall be effective as of the date of this Lease as set
forth in SECTION 1 of the Summary (the “EFFECTIVE DATE”). The initial term
of this Lease (the “INITIAL TERM”) shall be as set forth in SECTION 3.1 of
the Summary, shall commence on the date set forth in SECTION 3.2 of the
Summary (the “LEASE COMMENCEMENT DATE”), and shall terminate on the date set
forth in SECTION 3.4 of the Summary (the “LEASE EXPIRATION DATE”) unless
this Lease is sooner terminated as hereinafter provided. 


 


2.2                                 OPTION TO
EXTEND. Provided Tenant is not in default under the TCC of this Lease beyond
any applicable notice and cure periods at the time it exercises the option or
at commencement of the Option Term, Tenant shall have the right and option to
extend this lease (“Option to Extend”) for one additional option period of
three years (the “Option Term”) upon the same terms and conditions herein set
forth except that the Base Rent shall be adjusted in accordance with SECTION 3.1.1,
below. To exercise its Option to Extend, Tenant must give Landlord notice in
writing sent so as to be received at least nine (9) months but not more
than twelve (12) months prior to the expiration of the initial Lease Term. At
Landlord’s election, Tenant’s exercise of its Option shall be void and of no
effect if Tenant is in default of this Lease beyond any applicable notice and
cure periods on the date it exercises its Option to Extend or on the expiration
of the initial Lease Term. Notwithstanding anything to the contrary, in no
event shall Tenant be allowed to exercise the Option to Extend when a subtenant
or assignee is in possession of more than fifty percent (50%) of the Premises.
As used in this Lease, “LEASE TERM” shall mean the Initial Term, and the Option
Term, if duly exercised. 


 


ARTICLE 3


 


BASE RENT AND INTERIM
RENT


 


3.1                                 BASE RENT.
Commencing on the Rent Commencement Date, Tenant shall pay, without prior
notice or demand, to Landlord or Landlord’s agent at the management office of
the Project, or, at Landlord’s option, at such other place as Landlord may from
time to time designate in writing, by a check for currency which, at the time
of payment, is legal tender for private or public debts in the United States of
America, base rent (“BASE RENT”) as set forth in SECTION 4 of the Summary,
payable in equal monthly installments as set forth in SECTION 4 of the
Summary in advance on or before the first day of each and every calendar month
during the Lease Term, without any setoff or deduction whatsoever, unless otherwise
expressly permitted under this Lease. The Base Rent for the first full month of
the Initial Term in which rent is due (i.e. the first month measured from the
Rent Commencement Date) shall be paid upon execution of this Lease (minus a
pro-rata share of the credit due pursuant to Section 21.2 (not to exceed
$833.33 per month) for the period from the date of issuance of the letter of
credit to July 31, 2003). If any Rent payment date (including the Rent Commencement
Date) falls on a day of the month other than the first day of such month or if
any payment of Rent is for a period which is shorter than one month, the Rent
for any fractional month shall accrue on a daily basis for the period from the
date such payment is due to the end of such calendar month or to the end of the
Lease Term at a rate per day which is equal to l/365 of the applicable annual
Rent. All other


 


8

















 


payments
or adjustments required to be made under the TCCs of this Lease that require
proration on a time basis shall be prorated on the same basis. The “RENT COMMENCEMENT
DATE” shall be July 15, 2003. 


 


3.1.1                        BASE RENT
DURING OPTION TERM. If Tenant exercises its Option to Extend, the Base Rent for
the Premises during the Option Term shall be equal to the then current fair
market rent for the Premises based on rents then being charged for space in
Comparable Buildings, as reasonably determined by Landlord.


 


3.2                                 INTERIM
RENT. Tenant may, upon notice to Landlord, occupy all or a portion of the
Premises (the “INTERIM PREMISES”) prior to the Rent Commencement Date, and in
such event, Tenant shall pay to Landlord “INTERIM RENT” for such portion of the
Premises equal to the actual Direct Expenses allocable to the Interim Premises
plus Tenant’s Electricity Cost for the Interim Premises (at the same rate set
forth in SECTION 4.7, below) plus any other Additional Rent payable under
this Lease with respect to the Interim Premises, based on Landlord’s reasonable
estimate of the total of such amounts, payable in monthly installments,
commencing on the date that Tenant first occupies any portion of the Interim
Premises and thereafter on the first day of each month until the Rent
Commencement Date. At least thirty (30) days prior to Tenant’s occupying any
portion of the Interim Premises, Landlord and Tenant shall agree in writing on
the amount and location of such space.


 


ARTICLE 4


 


ADDITIONAL RENT


 


4.1                                 GENERAL TERMS. In
addition to paying the Base Rent specified in ARTICLE 3 of this Lease,
Tenant shall pay “TENANT’S SHARE” of the annual “DIRECT EXPENSES,” as those
terms are defined in SECTIONS 4.2.6 and 4.2.2 of this Lease, respectively,
which are in excess of the amount of Direct Expenses applicable to the “Base
Year,” as that term is defined in SECTION 4.2.1, below; provided, however,
that in no event shall any decrease in Direct Expenses for any Expense Year
below Direct Expenses for the Base Year entitle Tenant to any decrease in Base
Rent or any credit against sums due under this Lease. In addition to the foregoing
obligations, Tenant shall also pay “TENANT’S ELECTRICITY COST,” as defined in Section 4.7
of this Lease, separately from any increases in Direct Expenses. Such payments
by Tenant, together with any and all other amounts payable by Tenant to
Landlord pursuant to the TCCs of this Lease, are hereinafter collectively
referred to as the “ADDITIONAL RENT,” and the Base Rent and the Additional Rent
are herein collectively referred to as “RENT.” All amounts due under this ARTICLE 4
as Additional Rent shall be payable for the same periods and in the same manner
as the Base Rent. The obligations of Tenant to pay the Additional Rent provided
for in this ARTICLE 4 shall survive the expiration or earlier termination
of the Lease Term for such period of time as is required to reconcile the
Estimated Excess and Overpayment Amount of Direct Expenses pursuant to SECTION 4.4.1
hereof; provided, however, that any other contingent or unliquidated
contractual claims of Landlord or Tenant (e.g., indemnity) shall survive the
expiration or earlier termination of this Lease only for so long as any
applicable statute of limitations would permit such actions under Massachusetts
law. 


 


9

















 


4.2                                 DEFINITIONS
OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in this ARTICLE 4, the
following terms shall have the meanings hereinafter set forth: 


 


4.2.1                        “BASE YEAR”
shall mean the period set forth in SECTION 5 of the Summary. 


 


4.2.2                        “DIRECT
EXPENSES” shall mean “Operating Expenses” and “Tax Expenses”.


 


4.2.3                        “EXPENSE
YEAR” shall apply only to Operating Expenses and shall mean each calendar year
in which any portion of the Lease Term falls, through and including the
calendar year in which the Lease Term expires. 


 


4.2.4                        “OPERATING
EXPENSES” shall mean, except as otherwise provided in this SECTION 4.2.4
or otherwise in this Lease, all expenses, costs and amounts of every kind and
nature which Landlord pays or accrues during any Expense Year because of or in
connection with the ownership, management, maintenance, security, repair,
replacement, restoration or operation of the Project, or any portion thereof,
subject to the allocation thereof as set forth in SECTION 4.3, below.
Without limiting the generality of the foregoing, Operating Expenses shall
specifically include any and all of the following: (i) the cost of
supplying utilities (excepting Tenant’s Electricity Cost and costs payable by
Tenant pursuant to Section 4.7.2), operating, repairing, maintaining, and
renovating the utility, telephone, and all other systems and equipment and components
thereof of the Buildings and the Project, and the cost of maintenance and
service contracts in connection therewith and payments under any equipment rental
agreements; (ii) the cost of all insurance carried by Landlord in connection
with the Project and any deductibles; (iii) the cost of landscaping the
Project, or any portion thereof; (iv) costs incurred in connection with
the parking areas servicing the Project; (v) fees and other costs,
including management fees (not to exceed three percent (3%) of gross receipts),
consulting fees, legal fees and accounting fees, of all contractors and
consultants in connection with the management, operation, maintenance and
repair of the Project; (vi) wages, salaries and other compensation and
benefits, including taxes levied thereon, of all persons engaged in the
operation, maintenance and security of the Project; provided, however, that
wages and/or benefits attributable to personnel above the level of property
manager for the Project or property engineer for the Project shall not be
included in Operating Expenses; (vii) the cost of janitorial, alarm,
security and other services, replacement of wall and floor coverings, ceiling
tiles and fixtures in common areas, maintenance and replacement of curbs and
walkways, repair to roofs and re-roofing; (viii) excepting the items that
are at Landlord’s sole cost under SECTION 7.1, repairs or replacements and
other costs incurred in connection with the Project that are capital in nature
under generally accepted accounting principles; provided, however, that any
such capital expenditure shall be amortized (with interest at a commercially
reasonable rate) over its useful life (determined in accordance with Treasury
Regulations) and the amortized portion and interest applicable to the
respective Expense Year shall be included in Operating Expenses; and (ix) costs,
fees, charges or assessments imposed by, or resulting from any mandate imposed
on Landlord by, any federal, commonwealth, state or local government for fire
and police protection, trash removal, community services, or other services
which are not duplicative of “Tax Expenses” as that term is defined in SECTION 4.2.5,
below. 


 


10

















 


Notwithstanding anything in this SECTION 4.2.4
to the contrary, for purposes of this Lease, Operating Expenses shall not,
however, include the following:


 


(A) marketing
costs, costs of leasing commissions, renovations, brokerage fees, attorneys’
fees and other costs and expenses incurred in connection with Landlord’s
preparation, negotiation, dispute resolution and/or enforcement of leases,
including court costs and attorneys’ fees and disbursements in connection with
any summary proceeding to dispossess any tenant, or incurred in connection with
disputes with prospective tenants, employees, purchasers or mortgagees;


 


(B) financing and
refinancing costs, interest, principal, points and fees on debts or
amortization on any mortgage or mortgages or any other debt instrument
encumbering the Building or the Project and any commissions in connection
therewith;


 


(C) the original
costs of constructing the Building and the Project, or any additions to or
expansions of the Property or the Building and all other capital additions
thereto;


 


(D) expenses to the
extent Landlord will be reimbursed by another source (excluding Operating
Expense reimbursements by tenants), including without limitation replacement of
any items covered by warranties;


 


(E) costs incurred
to benefit (or resulting from) a specific tenant or items and services
selectively supplied to any tenant other than Tenant (e.g., excess utilities);


 


(F) expenses for
the defense of Landlord’s title to the Project;


 


(G) expenses incurred
in the maintenance, repair and replacement of the Building Structure (as
defined in SECTION 7.1);


 


(H) charitable or
political contributions;


 


(I) expenses incurred to
comply with governmental regulations (including without limitation all
environmental laws and the Americans with Disabilities Act), court order,
decree or judgment in effect prior to the Effective Date, except to the extent
any noncompliance results from Tenant’s use and occupancy of the Premises;


 


(J) costs of repairs,
restoration or replacement occasioned by fire or other casualty or caused by
the exercise of the right of eminent domain, whether or not insurance proceeds
or condemnation award proceeds are recovered or adequate for such purposes
(except to the extent of the amount of the deductible, which shall be included
in Operating Expenses);


 


(K) rental on ground
leases or other underlying leases and costs of defending any lawsuits with
mortgagees or ground landlords;


 


(L) costs associated
with maintaining Landlord’s existence as a corporation or other legal entity;
and


 


11

















 


(M) All electrical
charges included in Tenant’s Electricity Cost;


 


(N) leasehold
improvements, alterations and decorations which are made in connection with the
preparation of any portion of the Project for occupancy of that portion of the
Project by a new tenant,


 


(O) costs incurred in
connection with the making of repairs or replacements which are the obligation
of another tenant or occupant of the Property;


 


(P) costs (including,
without limitation, attorneys’ fees and disbursements) incurred in connection
with any judgment, settlement or arbitration award resulting from any tort
liability;


 


(Q) federal and state
income taxes, excess profits taxes, franchise taxes, gift taxes, capital stock
tax, inheritance and succession taxes, profit, use, occupancy, gross receipts,
rental, capital gains, capital stocks income and transfer taxes imposed upon
Landlord or the Property, estate taxes and any other taxes to the extent applicable
to Landlord’s general or net income;


 


(R) any rent, additional
rent or other charges under any lease or sublease to or assumed by Landlord;


 


(S) legal and other
professional fees for matters not relating to the normal administration and
operation of the Property or relating to matters which are excluded from
Operating Expenses for the Project;


 


(T) any costs or expense
related to vacant space intended for occupancy by tenants which would not be
included in Operating Expenses is the space were occupied;


 


(U) sculpture, paintings
and other works of art;


 


(V) the cost of
environmental monitoring, compliance, testing and remediation performed in, on,
and around the Project as a result of the violation of any Environmental Law as
defined in Section 29.31, but not including ordinary environmental
monitoring and testing related to, for example, items such as air quality
monitoring and filtration in the Building; provided, however, nothing in this
subsection (V) shall limit Tenant’s liability for violations of
Environmental Law caused by, or contributed to by Tenant; and (W) any fees,
fines or penalties arising from Landlord’s violation of Applicable Laws, as
defined in Article 24, including costs of litigation and attorneys’ fees
related thereto.


 


4.2.5                        TAXES.


 


4.2.5.1                                  “TAX
EXPENSES” shall mean all federal, state, commonwealth, county, or local
governmental or municipal taxes, fees, charges or


 


12

















 


kind
and nature, whether general, special, ordinary or extraordinary, (including,
without limitation, real estate taxes, general and special assessments, transit
taxes, leasehold taxes or taxes based upon the receipt of rent, measured as if
the Project were the only property owned by Landlord, including gross receipts,
service tax, value added tax or sales taxes applicable to the receipt of rent
or services provided herein, and unless required to be paid by Tenant, personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
systems and equipment, appurtenances, furniture and other personal property
used in connection with the Project, or any portion thereof), which shall be
paid or accrued during any Tax Year (as defined in SECTION 4.2.5.4)
because of or in connection with the ownership, leasing and operation 


of
the Project, or any portion thereof.


 


4.2.5.2                                  Tax Expenses
shall include, without limitation: (i) any tax on the rent, right to rent
or other income from the Project, or any portion thereof, or as against the
business of leasing the Project, or any portion thereof (measured as if the
Project were the only property owned by Landlord); (ii) any assessment,
tax, fee, levy, or charge allocable to or measured by the area of the Premises
or the Rent payable hereunder, including, without limitation, any business or
gross income tax or excise tax with respect to the receipt of such rent, or
upon or with respect to the possession, leasing, operating, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or
any portion thereof (measured as if the Project were the only property owned by
Landlord); (iii) any assessment, tax, fee, levy or charge, upon this
transaction; and (iv) the amount of any payments, payments in lieu of
taxes, or other consideration (in cash or otherwise) that Landlord is required
to make to any taxing authority in connection with any tax abatement or tax
exemption agreements benefiting the Project. Notwithstanding the foregoing, Tax
Expenses shall expressly exclude any tax penalties incurred by, or assessed against,
Landlord relating to Landlord’s failure to pay Tax Expenses when due.


 


4.2.5.3                                  Any costs
and expenses (including, without limitation, reasonable attorneys’ fees)
incurred in attempting to protest, reduce or minimize Tax Expenses shall be included
in Tax Expenses in the Tax Year such expenses are paid. Tenant’s Share of any
refunds of Tax Expenses in excess of the Base Year Tax Expenses shall be
credited against Tenant’s Tax Expenses and any excess shall be refunded to
Tenant regardless of when received, based on the Tax Year to which the refund
is applicable, provided that in no event shall the amount to be refunded to
Tenant for any such Tax Year exceed the total amount paid by Tenant as
Additional Rent under this ARTICLE 4 for such Tax Year. If Tax Expenses
for any period during the Lease Term or any extension thereof are increased
after payment thereof for any reason, including, without limitation, error or
reassessment by applicable governmental or municipal authorities, Tenant shall
pay Landlord within fifteen (15) business days after receipt of Landlord’s
written demand Tenant’s Share of any such increased Tax Expenses included by
Landlord as Tax Expenses pursuant to the TCCs of this Lease. Notwithstanding
anything to the contrary contained in this SECTION 4.2.5 (except as set
forth in SECTION 4.2.5.1, above), there shall be excluded from Tax
Expenses (i) all excess profits taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal and
commonwealth/state income taxes, and other taxes to the extent applicable to Landlord’s
general or net income (as opposed to rents, receipts or income attributable to
operations at the Project), (ii) any items included as Operating Expenses,
and (iii) any items paid by Tenant under SECTION 4.5 of this Lease.


 


13

















 


4.2.5.4                                  Landlord and
Tenant agree that the Base Year for the purposes of calculating Tenant’s
Additional Rent liability for Tax Expenses shall be the calendar year 2003
(which shall be the sum of one-half of the Tax Expenses for the period from July 1,
2002 through June 30, 2003 and one-half of the Tax Expenses for the period
from July 1, 2003 through June 30, 2004). Each subsequent twelve (12)
month calendar year during the Lease Term shall be referred to as a “TAX YEAR”,
prorated for any partial Tax Year at the end of the Lease Term. At Landlord’s
election, Tenant shall pay Tenant’s Share of any Excess (as defined in SECTION 4.4)
of Tax Expenses pursuant to SECTIONS 4.4.1 and 4.4.2, or within fifteen (15)
business days after receipt of Landlord’s written demand following the
expiration or earlier termination of the Lease Term. Landlord shall provide
copies of any invoices or other notices from the taxing authorities evidencing
the Tax Expenses to Tenant after receipt of Tenant’s written request for such
documentation.


 


4.2.6                        “TENANT’S
SHARE” of Operating Expenses and Tax Expenses shall mean the percentage set
forth in SECTION 6 of the Summary.


 


4.3                                 ALLOCATION
OF DIRECT EXPENSES. The parties acknowledge that the Building is a part of
a multi-building project and that the costs and expenses incurred in connection
with the Project (i.e. the Direct Expenses) will be shared between the tenants
and occupants of the Building and the tenants and occupants of the other
buildings in the Project. Accordingly, as set forth in SECTION 4.2 above,
Direct Expenses shall be determined for the Project as a whole, and Tenant
shall be responsible for paying Tenant’s Share of the Direct Expenses,
provided, however, Landlord in its sole discretion, may determine and allocate
some or all Direct Expenses which are incurred for the benefit of only one
building to that building individually, in which case, if said expenses are allocated
to the Building, Tenant’s Share of such Direct Expenses shall be based on the
percentage determined by dividing the rentable square footage of the Premises
by the rentable square footage of the Building. To the extent the entire
Project is not at least 95% occupied in any year, Landlord shall adjust the
variable components of Operating Expenses for the Base Year, and for any such
Expense Year, based on Landlord’s reasonable, good faith estimate and reasonable
data available to Landlord, to reflect the expenses that would have been
incurred had the Project been 95% occupied, so that the Operating Expenses shall
be equitably allocate among the tenants of the Project; and the amount so determined
shall be deemed to have been the amount of Operating Expenses for such year
attributable to the Project. In no event shall Landlord be entitled to collect
from tenants more than 100% of Direct Expenses. 


 


4.4                                 CALCULATION
AND PAYMENT OF ADDITIONAL RENT. With respect to Operating Expenses, if for any
Expense Year ending or commencing within the Lease Term, Tenant’s Share of
Operating Expenses for such Expense Year exceeds the annualized amount of
Tenant’s Share of Operating Expenses applicable to the Base Year, then Tenant
shall pay to Landlord, in the manner set forth in SECTIONS 4.4.1 AND 4.4.2,
below, and as Additional Rent, an amount equal to the excess (the “OE EXCESS”).
With respect to Tax Expenses, if for any Tax Year ending or commencing within
the Lease Term, Tenant’s Share of Tax Expenses for such Tax Year exceeds the
annualized amount of Tenant’s Share of Tax Expenses applicable to the Base
Year, then Tenant shall pay to Landlord, in the manner set forth in SECTIONS
4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the excess
(the “TAX EXCESS”). The OE Excess plus the Tax Excess are sometimes referred to
herein collectively as the “EXCESS”.


 


14

















 


4.4.1                        STATEMENT OF
ACTUAL DIRECT EXPENSES AND PAYMENT BY TENANT. Within one hundred twenty (120)
days after the end of each applicable Expense Year, Landlord will deliver to
Tenant a statement (the “STATEMENT”), which shall state the Direct Expenses
incurred or accrued for such preceding Expense Year, and which shall indicate
the amount of the Excess, if any. Upon receipt of the Statement for each
applicable Expense Year, if an Excess is present, Tenant shall pay, with its
next installment of Base Rent due, the full amount of the Excess for such
Expense Year, less the amounts, if any, paid during such Expense Year as “ESTIMATED
EXCESS,” as that term is defined in SECTION 4.4.2, below. In the event the
Statement shows that the amount paid by Tenant under Section 4.4.2, below,
exceeded Tenant’s Share of Direct Expenses for the Expense Year in question
(the “OVERPAYMENT AMOUNT”), then Landlord shall credit the Overpayment Amount
against the next due installments of Base Rent and Additional Rent; provided,
however, that with respect to the final Expense Year of the Lease Term,
Landlord shall pay to Tenant the Overpayment Amount, if any, within thirty (30)
days after Tenant’s receipt of such Statement. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not prejudice Landlord
or Tenant from enforcing its rights under this ARTICLE 4. Even though the
Lease Term has expired and Tenant has vacated the Premises, when the final
determination is made of Tenant’s Share of Direct Expenses for the Expense Year
in which this Lease terminates, if an Excess if present, Tenant shall pay such
amount to Landlord within fifteen (15) business days after Tenant’s receipt of
such final determination. If Tenant provides a written request to Landlord
within thirty (30) days after receipt of the Statement provided in this SECTION 4.4.1,
Tenant shall be entitled, during reasonable business hours, to review Landlord’s
books and records on which Landlord has calculated Direct Expenses and shall
promptly thereafter provide its written analysis of Direct Expenses to
Landlord. If Tenant’s review discloses any overpayment by Tenant, Landlord
shall either, at Landlord’s option, credit such amount to Tenant’s next payment
of Rent, or refund such amounts within thirty (30) days after receipt of Tenant’s
calculations; if Tenant’s review discloses any underpayment by Tenant, Tenant
shall provide such calculations to Landlord and pay such amounts within thirty
(30) days from the time it calculates, or receives the calculation of such
amounts. Tenant’s audit shall be conducted by either Tenant or a certified
public accountant. Tenant’s audit may not be conducted by an individual or
entity that is retained by Tenant primarily on a contingent fee basis. Landlord
shall keep copies of all records relating to the calculation of, and the costs
included in, Direct Expenses (and Estimated Direct Expenses described in Section 4.4.2
below) for a period of at least two (2) years (or such longer period as
required by law). In the event the Tenant’s review establishes that Landlord’s
calculation of Tenant’s Share of the increase in Direct Expenses for any year
is overstated by more than ten percent (10%), Landlord shall also reimburse
Tenant for the reasonable cost of its out of pocket costs in conducting said
review, up to a maximum of $1,000.00. This section 4.4.1 shall survive the
expiration or early termination of the Lease. The results of the audit shall be
kept confidential by Tenant (except as disclosed to Tenant’s attorneys and
accountants (who shall also be bound by said confidentiality provision) or as
required to be disclosed by Tenant under federal securities laws) and shall
remain a private matter between Landlord and Tenant, except as may be
required by law. Any dispute between Landlord and Tenant concerning any item of
Direct Expenses shall not relieve Tenant of liability for payment of all other
Excess amounts of Direct Expenses. The provisions of this SECTION 4.4.1
shall survive the expiration or earlier termination of the Lease Term. 


 


4.4.2                        STATEMENT OF
ESTIMATED DIRECT EXPENSES. In addition, Landlord shall have the right to
deliver from time to time an expense estimate statement (the


 


15

















 


“ESTIMATE
STATEMENT”) which shall set forth Landlord’s reasonable estimate (the “ESTIMATE”)
of what the total amount of Direct Expenses for the then-current Expense Year
shall be and the estimated Excess (the “ESTIMATED EXCESS”) as calculated by
comparing the Direct Expenses for such Expense Year, which shall be based upon
the Estimate, to the amount of Direct Expenses for the Base Year. The failure
of Landlord to furnish an Estimate Statement for any Expense Year shall not
preclude Landlord from enforcing its rights to collect any Estimated Excess
under this ARTICLE 4, nor shall Landlord be prohibited from revising any Estimate
Statement or Estimated Excess theretofore delivered to the extent necessary.
Upon receipt of any Estimate Statement, Tenant shall pay, with its next
installment of Base Rent due, the monthly amount of the Estimated Excess for
the then-current Expense Year indicated on the Estimate Statement. Until a new
Estimate Statement is furnished (which Landlord shall have the right to deliver
to Tenant at any time), Tenant shall continue to pay monthly, with the monthly
Base Rent installments, the monthly amount of the Estimated Excess set forth in
any previous Estimate Statement delivered by Landlord to Tenant. Tenant shall
be entitled, upon five (5) business day notice to Landlord given within sixty
days after receipt of the Estimate Statement, to review Landlord’s books and
records to evaluate the accuracy of the Estimate Statements, subject to the same
provisions applicable to audits as stated in SECTION 4.4.1, above.


 


4.5                                 TAXES AND
OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.


 


4.5.1                        Tenant shall
be liable for and shall pay before delinquency taxes levied against Tenant’s
equipment, furniture, fixtures and any other personal properly located in or
about the Premises (including without limitation taxes levied against the
Furniture, if any). If any such taxes on Tenant’s equipment, furniture,
fixtures and any other personal property are levied against Landlord or
Landlord’s property or if the assessed value of Landlord’s property is
increased by the inclusion therein of a value placed upon such equipment,
furniture, fixtures or any other personal property and if Landlord pays any
properly assessed taxes based upon such increased assessment, which Landlord
shall have the right to do upon fifteen (15) business days prior written notice
to Tenant, including reasonably satisfactory backup documentation evidencing
such expenses, Tenant shall upon fifteen (15) business days notice to Tenant
repay to Landlord the taxes so levied against Landlord or the proportion of
such taxes resulting from such increase in the assessment, as the case may be.


 


4.5.2                        If the
Alterations in the Premises, whether installed and/or paid for by Landlord or
Tenant and whether or not affixed to the real property so as to become a part thereof,
are assessed for real property tax purposes at a valuation higher than the
valuation at which tenant improvements conforming to Landlord’s standard tenant
improvements in other space in the Building leased to or offered to lease to
other tenants, which improvements are substantially similar to those in the
Premises as of the Lease Commencement Date (the “BUILDING STANDARD”), are
assessed (as reasonably determined by Landlord), then the Tax Expenses levied
against Landlord or the property by reason of such excess assessed valuation
shall be deemed to be taxes levied against personal property of Tenant and
shall be governed by the provisions of SECTION 4.5.1, above. Landlord
shall reciprocally enforce this provision against other tenants in the Project.


 


16

















 


4.6                                 LANDLORD’S
BOOKS AND RECORDS. Subject to Tenant’s right to review as provided in SECTION 4.4.1,
Landlord’s books and records evidencing Operating Expenses will be conclusive
absent manifest error.


 


4.7                                 TENANT’S
ELECTRICITY COST. The Premises are currently not separately metered and, to
account for Tenant’s electrical use in the Premises, Tenant shall pay to
Landlord as Additional Rent an initial flat monthly fee of Four Thousand Six
Hundred Forty-five Dollars ($4,645.00), which amount is calculated based on the
rate of One Dollar ($1.00) per year per rentable square foot of the Premises (“TENANT’S
ELECTRICITY COST”), and is subject to adjustment based on Landlord’s reasonable
estimate of Tenant’s electrical usage.


 


4.7.1                        Notwithstanding
the preceding sentence, Landlord or Tenant (at the requesting party’s sole cost
and expense) shall have the right to separately meter (or install a sub-meter
or check meter for) the Premises at any time during the Lease Term and,
thereafter, all charges for Tenant’s electrical use shall be as reflected by
the meter.


 


4.7.2                        In the event
that Landlord or Tenant installs meters (direct, submeters, checkmeters or
flowmeters) which enable Landlord to measure the electricity usage for the air
handlers and chillers which service the Lab Areas (as defined in SECTION 6.2,
below) of the Premises, then, in addition to Tenant’s Electricity Cost, Tenant
shall pay to Landlord, as Additional Rent, the electrical expenses attributable
to the chillers and air handlers which service the labs within the Premises
(including, without limitation, the “freezer farm”). In the event that such
usage is not separately metered, then Landlord may give Tenant written
notice of Landlord’s estimate of Tenant’s share of such expenses, along with
the information utilized by Landlord in reaching such determination, and Tenant
shall reimburse Landlord, as Additional Rent for such electrical expenses (in
addition to Tenant’s Electricity Cost).


 


ARTICLE 5


 


USE OF PREMISES


 


5.1                                 PERMITTED
USE. Tenant shall use the Premises solely for the Permitted Use set forth in SECTION 7
of the Summary, and Tenant shall not use or permit the Premises or the Project
to be used for any other purpose or purposes whatsoever without the prior
written consent of Landlord, which may be withheld in Landlord’s sole
discretion.


 


5.2                                 PROHIBITED
USES. The uses prohibited under this Lease shall include, without limitation,
use of the Premises or a portion thereof for (i) offices of any agency or
bureau of the United States or any commonwealth or state or political
subdivision thereof; (ii) offices or agencies of any foreign governmental
or political subdivision thereof; (iii) offices of any health care professionals
or service organization (operation of a biological research and testing lab as
currently performed by Tenant excepted); (iv) schools or other training
facilities which are not ancillary to corporate, executive or professional
office use; (v) retail or restaurant uses; (vi) commercial broadcast
radio or television stations; (vii) telemarketing or call center; or (viii) collection
agency. Tenant further covenants and agrees that Tenant shall not use, or
suffer or permit any person or persons to use, the Premises or any part thereof
for any use or purpose contrary to the provisions of the Rules and Regulations
set forth in EXHIBIT D, attached hereto, or 


 


17

















 


in
violation of the laws of the United States of America, the Commonwealth of Massachusetts,
or the ordinances, regulations or requirements of the local municipal or county
governing body or other lawful authorities having jurisdiction over the Project
including, without limitation, any such laws, ordinances, regulations or
requirements relating to Hazardous Materials as defined in SUBSECTION 29.31.1
below. Tenant shall not do or permit anything to be done in or about the
Premises which will in any material way interfere with the rights, safety and
quiet enjoyment of other tenants or occupants of the Building and the Project,
or use or allow the Premises to be used for any unlawful purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises or
the Project.


 


5.3                                 CC&Rs.
Tenant shall comply with all recorded covenants, conditions, and restrictions (“CC&R’s”)
affecting the Project (including any future CC&R’s which Landlord in its
reasonable discretion may deem reasonably necessary or appropriate) to the
extent they apply to the Premises or the Common Areas provided they do not
materially interfere with Tenant’s use and occupancy of the Premises and,
subject to the TCC of this lease, the Common Areas, and this Lease shall be
subordinate to any CC&Rs provided that such CC&Rs do not materially interfere
with Tenant’s use and occupancy of the Premises and, subject to the TCC of this
Lease, the Common Areas.


 


5.4                                 CONDITION OF
PREMISES. Landlord shall deliver the Premises (including, but not limited to
HVAC (as hereinafter defined), electrical, plumbing, sewer and other Building
systems, and the exterior walls, roof, parking area, landscaping and walkways)
to Tenant on the Lease Commencement Date and Tenant shall accept the Premises
in their “AS IS” condition. To Landlord’s knowledge, as of the date of this
lease, all electrical, plumbing, sewer and other Building Systems servicing the
Premises and exterior walls are in good operating condition. In the event that
any electrical, plumbing, sewer or other Building Systems servicing the
Premises are not in good operating condition on the Lease Commencement Date,
provided that Tenant gives Landlord written notice of the nature of the problem
prior to the earlier of: (i) Tenant’s commencing any changes, alterations
or construction in the Premises, or (ii) thirty (30) days after the Lease
Commencement Date, time being of the essence, Landlord shall cause such systems
to be placed into good operating condition. Other than as expressly set forth
in this Lease, Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the Premises
or with respect to the present or future suitability of any part of the
Premises for the conduct of Tenant’s business or the uses proposed by Tenant.
Tenant hereby accepts the Premises, the Building, and all improvements thereon,
in their existing condition, subject to all applicable zoning, municipal,
county and state (commonwealth) laws, ordinances and regulations governing and
regulating the use of the Premises, and any covenants or restrictions of
record, and accepts this Lease subject to all of the foregoing and to all
matters disclosed in this Lease.


 


5.5                                 DEMISING
PLAN. The Premises are shown on the space plan attached hereto as EXHIBIT A
and hereby made a part hereof. Tenant shall pay its costs associated with
the installation of Tenant’s network and other cabling, telecommunications
infrastructure, and all of its moving costs incurred in connection with Tenant’s
occupancy of the Premises. 


 


5.6                              RULES AND
REGULATIONS. Tenant shall comply with Landlord’s rules and regulations
respecting the management, care, use and safety of the Premises, Building and 


 


18

















 


Project,
including without limitation, parking areas, landscaped areas, walkways,
elevators, loading docks, hallways and other Common Areas and facilities
provided for the common use and convenience of tenants. Such rules and
regulations are attached hereto as EXHIBIT D and may be amended from
time to time at Landlord’s reasonable discretion, upon written notice to Tenant
(as amended from time to time, the “RULES AND REGULATIONS”), so long as
such modifications do not materially diminish or interfere with Tenant’s use
and occupancy of the Premises for the Permitted Use. At no time shall Landlord modify
the Rules and Regulations to prohibit or materially interfere with Tenant’s
use of the Premises for the Permitted Use. Landlord agrees that any enforcement
of the Rules and Regulations shall be done in a reasonable, uniform and
non-discriminatory manner. Tenant’s use of the Premises for the conduct of Tenant’s
business and research activities, as currently conducted by Tenant as of the
date of this Lease, and otherwise in accordance with the Permitted Use and the
TCC of this Lease, shall not be deemed to be “injurious to the reputation of
the Building” under Section A. 20 of Schedule D.


 


ARTICLE 6


 


SERVICES AND UTILITIES


 


6.1                                 STANDARD
TENANT SERVICES. Landlord shall maintain and operate the Building in a manner
consistent with other Comparable Buildings (as defined below), and provide
ingress and egress control services to the Building in a first-class manner
consistent with the Comparable Buildings, shall keep the Building Structure and
Building Systems in first-class condition and repair consistent with the
Comparable Buildings, and all of such expenses shall be included in Operating
Expenses, except to the extent such expenses are specifically excluded from
Operating Expenses in accordance with Section 4.2.4. (As used in this
Lease, the term “COMPARABLE BUILDINGS” means buildings which are comparable to
the Building in terms of age, quality of construction, level of service and
amenities, size and appearance and located in a comparable geographical area,
as reasonably determined by Landlord.) During the Lease Term, Landlord shall
provide the following services (and shall include the costs thereof in
Operating Expenses, except as otherwise expressly set forth in this Lease):


 


6.1.1                        Subject to
limitations imposed by all governmental rules, regulations guidelines
applicable thereto, from Monday through Friday from 8 a.m. to 6 p.m.
(but excluding Holidays, as defined below) (such dates and times herein called “BUILDING
HOURS”), Landlord shall provide heating and air conditioning (“HVAC”) to the
office portions of the Premises. Tenant may request and Landlord shall provide
HVAC service at times other than during Building Hours to the Premises (other
than the Lab Areas, as defined in SECTION 6.2, below) at the rate of
$50.00 per hour, with a minimum charge of $100.00 (two hours); provided,
however, that Tenant shall only be charged for after hours HVAC actually
requested by Tenant. Landlord reserves the right reasonably to increase the
cost for after hours air conditioning. 


 


19














 


6.1.2                        Landlord
shall provide city water from the regular Building outlets for drinking,
lavatory and toilet purposes in the Common Areas within the Building.


 


6.1.3                        On
weekdays during the Lease Term, Landlord shall provide janitorial services to
the Premises (unless Tenant notifies Landlord that Tenant will be privately
contracting for janitorial services within its labs), except the date of
observation of the Holidays, in and about the Premises and window washing
services in a manner consistent with Comparable Buildings.


 


6.1.4                        Landlord
shall provide nonexclusive, non-attended automatic passenger elevator service
for all elevators in the Building during Building Hours and, subject to
closures for routine maintenance or repair, shall have one (1) elevator available
at all other times to provide service to the Premises; provided, however,
Landlord shall use reasonable efforts to schedule the timing of such
routine maintenance or repair, and shall otherwise use commercially reasonable
efforts to minimize any interference with Tenant’s Permitted Use and enjoyment
of the Premises.


 


6.1.5                        Landlord
shall provide electricity for lights and electrical outlets within the
Premises, and Tenant shall pay for such electricity pursuant to Tenant’s
obligation to pay Tenant’s Electricity Charge.


 


6.1.6                        Landlord
shall provide a security guard to patrol the Project between the hours of 6 p.m.
and 8 a.m., and shall maintain the existing current card access monitoring
system, or a substantially similar system.


 


6.1.7                        Landlord
shall provide exterior and interior window washing with frequency as reasonably
determined by Landlord.


 


6.1.8                        Landlord
shall provide disposal of garbage, trash and refuse from the Premises (other
than and excluding Tenant’s laboratories) and the Property, excluding the
disposal of Hazardous Materials (as defined in Section 29.31) and other
hazardous wastes or substances and medical wastes or substances used, stored or
generated by Tenant or in connection with Tenant’s use of the Premises, which
materials shall be disposed of in accordance with all Applicable Laws by Tenant
at its sole cost and expense.


 


6.1.9                        Landlord
shall provide for routine clearance and removal of snow and ice from the
parking areas, driveways and walkways of the Property.


 


6.1.10                  Landlord shall
provide a monument sign near the entrance to the Project with tenants’ names
listed on it.


 


6.1.11                  Such other
services as are specifically identified in this Lease.


 


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For the purposes of this Lease the term “HOLIDAY”
shall mean and refer to New Year’s Day, Presidents’ Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, day
after Thanksgiving Day and Christmas Day.


 


6.2                                 SPECIAL HVAC SERVICES.
Subject to the provisions of SECTIONS 4.7.2 AND 7.1, and provided that Tenant
designs and modifies the HVAC system ductwork and controls for the sixth floor
of the Premises to the “freezer farm” area of the Premises and any other lab
areas within the Premises (collectively, the “LAB AREAS”) designated on EXHIBIT A,
so that the Lab Areas can be cooled separately from the remainder of the
Building (e.g. while other areas of the Building are being heated, or not being
cooled), Landlord shall provide continuous air conditioning to the Lab Areas,
provided however, Landlord shall not be liable to Tenant for any unexpected
outages or reductions in electrical power or air conditioning supply or any
damages in connection therewith. Notwithstanding the foregoing, in the event that
Landlord must shut down HVAC or electrical power to the Premises or any portion
thereof for maintenance or repairs, Landlord shall give Tenant at least
twenty-four hours (24) advance notice of the estimated time and date for such
work, and the length of time service is expected to be interrupted and provided
that Landlord has given Tenant such notice, Landlord shall not be liable to
Tenant for any such scheduled outages or reductions in electrical power or air
conditioning supply or any damages in connection therewith. Tenant shall be
solely responsible for providing back-up power for air conditioning for the Lab
Areas and back-up air conditioning for the Lab Areas should Tenant deem it
necessary (for scheduled as well as unscheduled outages or reductions).


 


6.3                                 REQUIREMENTS OF
TENANT. At all times during the Lease Term, Tenant shall cooperate with
Landlord and abide by all regulations and requirements that Landlord may reasonably
prescribe and provide to Tenant in writing for the proper functioning and protection
of the Building HVAC, electrical, mechanical and plumbing systems.


 


6.4                                 INTERRUPTION OF USE.
Except as expressly provided herein, Tenant agrees that Landlord shall not be
liable for damages, by abatement of Rent or otherwise, for failure to furnish
or delay in furnishing any service (including telephone and telecommunication
services), or for any diminution in the quality or quantity thereof, when such
failure or delay or diminution is occasioned, in whole or in part, by breakage,
repairs, replacements, or improvements, by any strike, lockout or other labor
trouble, by inability to secure electricity, gas, water, or other fuel at the
Building or Project after reasonable effort to do so, by any riot or other
dangerous condition, emergency, accident or casualty whatsoever, by act or
default of Tenant or other parties, or by any other cause; and such failures or
delays or diminution shall never be deemed to constitute an eviction or
disturbance of Tenant’s use and possession of the Premises or relieve Tenant
from paying Rent or performing any of its obligations under this Lease
(provided, however, nothing in the foregoing sentence is intended to relieve
Landlord from its obligations under this Lease, and/or to excuse Landlord from
curing any default by Landlord under this Lease). Furthermore, Landlord shall
not be liable under any circumstances for a loss of, or injury to, property or
for injury to, or interference with, Tenant’s business, including, without
limitation, loss of profits, however occurring, through or in connection with
or incidental to a failure to furnish any of the services or utilities as set
forth in this ARTICLE 6. Under all circumstances, to the extent there is
an interruption in any service relating to the Premises for which Landlord maintains
repair responsibility under this Lease, Landlord shall use commercially
reasonable efforts to remedy


 


21

















 


the problem within twenty-four (24) hours of receipt of notice from
Tenant. Landlord may comply with voluntary controls or guidelines
promulgated by any governmental entity relating to the use or conservation of
energy, water, gas, light or electricity or the reduction of automobile or
other emissions without creating any liability of Landlord to Tenant under this
Lease, provided that (i) the Premises are not thereby rendered
untenantable, and (ii) the same does not materially adversely interfere
with Tenant’s Permitted Use of the Premises.


 


ARTICLE 7


 


REPAIRS


 


7.1                                 LANDLORD’S
OBLIGATIONS. Landlord shall maintain, repair and replace as necessary the
structural portions of the Building, including the foundation, floor/ceiling
slabs, roof structure, exterior walls, columns, beams and shafts (including
elevator shafts) (collectively, “BUILDING STRUCTURE”) at its sole cost and
expense. Landlord shall also maintain, repair and replace as necessary the
parking areas, sidewalks and access roads (including snow and ice removal),
landscaping, fountains, water falls, exterior Project signage, exterior glass
and mullions, stairs and stairwells, elevator cabs and equipment, plazas, art
work, sculptures, men’s and women’s washrooms, Building mechanical, electrical
and telephone closets, and all common and public areas and the Building
security, mechanical, electrical, life safety, plumbing, sprinkler systems and
HVAC systems (collectively, the “BUILDING SYSTEMS”) and all other Common Areas
within the Project, and the cost of such maintenance and repair (or the
amortized portion of the capital expenses of such maintenance and repairs, as
applicable), shall be included in Operating Expenses. Landlord shall undertake
reasonable efforts to perform all maintenance, repairs and replacements
pursuant to this SECTION 7.1 promptly after Landlord learns of the need
for such maintenance, repairs and replacements, but in any event within thirty
(30) days after Tenant provides written notice to Landlord of the need for such
maintenance, repairs and replacements; provided, however, that in cases of
emergency (i.e., circumstances which, if not addressed promptly, could result
in material damage to persons and property), Landlord shall perform any
maintenance, repairs and replacements as soon as reasonably practicable after
it learns of the need for such maintenance, repairs and replacements. In the
event that any maintenance, repair and/or replacement is required of the air
handlers and chillers servicing the Lab Areas, and Tenant expects that Tenant
will suffer monetary loss or damages if such work is not completed immediately,
Tenant shall give notice of such situation to Landlord and Landlord’s property
manager, clearly stating the emergency nature of the situation, and if Landlord
is unable to proceed to effect such maintenance, repairs or replacements
immediately, Tenant may do so, and the cost of such work shall be
allocated and paid for as provided in the next paragraph of this Section 7.1.


 


Notwithstanding anything herein to the
contrary, Tenant shall reimburse Landlord as Additional Rent, within thirty
(30) days after receipt of Landlord’s invoice, for all costs paid to third
parties associated with the repair, maintenance and replacement of the air
handlers and chillers which service the Lab Areas (as defined in SECTION 6.2,
above) of the Premises and such costs shall thereafter not be included in the
calculation of Operating Expenses. Notwithstanding the foregoing, with respect
to all costs for replacements of the air handlers and chillers (or components
thereof) which service the Lab Areas that are capital in nature under generally
accepted accounting principles, at Tenant’s option, to be exercised within
thirty days after receipt


 


22

















 


of Landlord’s first invoice for such costs, in lieu of reimbursing
Landlord within thirty days, such costs shall be amortized (with interest at a
twelve percent (12%) per annum) over the lesser of (i) the remaining Term
of the Lease, or (ii) the useful life of the item being replaced, and
Tenant shall pay Landlord, as Additional Rent, on a monthly basis, the
amortized portion and interest applicable thereto.


 


7.2                                 TENANT’S OBLIGATIONS.
Notwithstanding anything in this Lease to the contrary, Tenant shall be
required to repair any damage to the Building Structure and/or the Building
Systems to the extent caused due to Tenant’s use of the Premises for other than
its Permitted Use, unless and to the extent such damage is covered by insurance
carried (or required to be carried) by Landlord pursuant to ARTICLE 10 and
to which the waiver of subrogation is applicable. Tenant shall, at Tenant’s own
expense, pursuant to the TCCs of this Lease, including without limitation ARTICLE 8
hereof, maintain all Alterations, Furniture and other personal property of
Tenant within the Premises in good order, repair and condition at all times
during the Lease Term. Tenant hereby waives any and all rights to terminate
this Lease, complete repairs, and off-set the rent as may be provided
under the laws of the Commonwealth of Massachusetts, now or hereafter in effect
(provided, however, nothing in this sentence is intended to waive any
contractual rights Tenant may have under the specific terms and conditions
of this Lease).


 


ARTICLE 8


 


ADDITIONS AND ALTERATIONS


 


8.1                                 LANDLORD’S CONSENT TO
ALTERATIONS. Tenant may not make any improvements, alterations, additions
or changes to the Premises or any mechanical, plumbing or HVAC facilities or
systems pertaining to the Premises which affect the Building Structure,
Building Systems or exterior appearance of the Building (collectively, the “ALTERATIONS”)
without first procuring the prior written consent of Landlord to such
Alterations, which consent shall be requested by Tenant not less than twenty
(20) days prior to the commencement thereof, and which consent shall not be
unreasonably withheld, conditioned or delayed by Landlord, provided it shall be
deemed reasonable for Landlord to withhold its consent to any Alteration which
materially or adversely affects the Building Structure, Building Systems or
exterior appearance of the Building. Tenant shall use Landlord’s mechanical,
electrical and plumbing engineer(s) for all mechanical, electrical and plumbing
design(s) for the Premises, so long as such fees are reasonable and consistent
with market rates and so long as Landlord does not charge Tenant an
administrative fee as part of the work orders for such contractors. Tenant
shall not need the consent of Landlord for decorative changes to the Premises
costing less than $10,000. Tenant agrees that Landlord has no obligation to
upgrade the electrical service for the Building to meet Tenant’s needs, and
Tenant agrees that Tenant shall be responsible for the distribution or
redistribution of electrical service from the subpanels on the fifth and sixth
floors of the Building in connection with the improvements to the Premises to
be performed by Tenant. Tenant shall provide Landlord with electric load
calculations in connection with the construction of any Alterations, and Tenant
shall not exceed the total amperage available from the subpanels located on the
fifth and sixth floors of the Building. Notwithstanding the foregoing, subject
to Landlord’s review and approval of the proposed plans and specifications
(which approval shall not be unreasonably withheld, conditioned or delayed),
Landlord shall permit Tenant, at Tenant’s sole cost and expenses, to increase
electrical service to the Building or otherwise to modify the


 


23

















 


electrical system in the Building to the extent necessary to provide
electrical service required for the Lab Areas (including, without limitation,
the “freezer farm”), provided that such modifications do not reduce the power
available or interrupt the power service to the other tenants of the Building,
and/or to the Common Areas of the Building. Tenant shall not exceed the load
bearing capacity of the floors within the Building as currently designed, and
any modifications required for Tenant’s use shall be at Tenant’s sole cost and
expense, and subject to Landlord’s review and approval in accordance with this
Lease.


 


8.2                                 MANNER OF
CONSTRUCTION. Tenant shall utilize only competent contractors, subcontractors,
materials, mechanics and materialmen reasonably approved by Landlord for the
construction of any Alterations, which approval shall not be unreasonably
withheld, conditioned or delayed; provided, however, that Tenant shall be
entitled to use its employees to make Alterations which do not affect the
mechanical or structural portions of the Premises or the Building Structure so
long as Tenant complies with all other provisions of this ARTICLE 8. Upon
Landlord’s request (unless Landlord waived, at the time of Landlord’s approval
of any Alterations pursuant to the provisions of SECTION 8.5, below, its
right to make such request), Tenant shall, at Tenant’s expense, remove such
Alterations upon the expiration or any early termination of the Lease Term. If
such Alterations will involve the use of or disturb Hazardous Materials or
substances existing in the Premises, Tenant shall comply with Landlord’s rules and
regulations concerning, and all Applicable Laws pertaining to, Hazardous
Materials or substances with respect to such Alterations. Tenant shall
construct such Alterations and perform such repairs in a good and
workmanlike manner, in conformance with any and all applicable federal,
commonwealth, county or municipal laws, rules and regulations and pursuant
to a valid building permit, issued by the City of Marlborough, and in
conformance with Landlord’s construction rules and regulations, if any,
provided to Tenant in writing prior to construction of such Alterations. In the
event Tenant performs any Alterations in the Premises which require or give
rise to governmentally required changes to the “Base Building,” as that term is
defined below, then Landlord shall, at Tenant’s expense, make such changes to
the Base Building. The “BASE BUILDING” shall include the Building Structure,
and the public restrooms and the systems and equipment located in the internal
core of the Building on the floor or floors on which the Premises are located.
In performing the work of any such Alterations, Tenant shall have the work
performed in such manner so as not to obstruct access to the Project or any
portion thereof, by any other tenant of the Project, and so as not to obstruct
the business of Landlord or other tenants in the Project. Tenant shall not use
(and promptly after notice from Landlord shall cease using) contractors,
services, workmen, labor, materials or equipment that, in Landlord’s reasonable
judgment, would disturb labor harmony with the workforce or trades engaged in
performing other work, labor or services in or about the Building or the Common
Areas. In addition to Tenant’s obligations under ARTICLE 9 of this Lease,
upon completion of any Alterations which affect the Building Systems and
Building Structures, Tenant agrees to cause such notices as may be
necessary to evidence completion of any work undertaken by Tenant to be
recorded in the office of the Recorder of the County of Middlesex in accordance
with the laws of the Commonwealth of Massachusetts or any successor statute,
and Tenant shall deliver to the Project management office a reproducible copy
of the “as built” drawings of the Alterations as well as all permits, approvals
and other documents issued by any governmental agency in connection with the
Alterations.


 


24

















 


8.3                                 PAYMENT FOR
IMPROVEMENTS. If payment is made directly to contractors, Tenant shall comply
with all Applicable Laws relating to final lien releases and waivers in
connection with Tenant’s payment for work to contractors. Whether or not Tenant
orders any work directly from Landlord, Tenant shall reimburse Landlord for
Landlord’s reasonable out-of-pocket costs and expenses reasonably incurred in
connection with Landlord’s review of any Alterations.


 


8.4                                 CONSTRUCTION
INSURANCE. In addition to the requirements of ARTICLE 10 of this Lease, in
the event that Tenant makes any Alterations, prior to the commencement of such
Alterations, Tenant shall provide Landlord with evidence that Tenant carries “BUILDER’S
ALL RISK” insurance in an amount reasonably related to the value of such
Alterations, it being understood and agreed that all of such Alterations shall
be insured by Tenant pursuant to ARTICLE 10 of this Lease immediately upon
completion thereof.


 


8.5                                 LANDLORD’S PROPERTY.
All Alterations, improvements, fixtures, equipment and/or appurtenances other
than Tenant’s trade fixtures and equipment (which shall expressly include all
of Tenant’s laboratory equipment, testing devices, and ancillary equipment,
whether affixed to the Premises or not) which may be installed or placed
in or about the Premises, from time to time, shall be and become the property
of Landlord upon the expiration or earlier termination of this Lease, subject
to the requirements of SECTION 8.2 and Landlord’s right to require Tenant
to remove such items as provided in this SECTION 8.5. Under no
circumstances shall Tenant be required to remove standard office finishes from
the Premises (i.e. those office materials and fixtures that are commercially
reasonable, appropriate and common in Comparable Buildings). Upon the
expiration or earlier termination of this Lease, Tenant may remove any
equipment or fixtures installed by Tenant, provided Tenant repairs any damage
to the Premises and Building caused by such removal and returns the affected
portion of the Premises to Building Standard condition. Furthermore, Landlord
may, by written notice to Tenant prior to the end of the Lease Term, or given
following any earlier termination of this Lease, require Tenant, at Tenant’s
expense, to remove any Alterations in the Premises and to repair any damage to
the Premises and Building caused by such removal (reasonable wear and tear
excepted) and return the affected portion of the Premises to Building Standard
condition; provided, however, if, in connection with its request for Landlord’s
approval for particular Alterations, (1) Tenant requests Landlord’s
decision with regard to the removal of such Alterations, and (2) Landlord
thereafter agrees in writing to waive the removal requirement when approving
such Alterations, then Tenant shall not be required to so remove such
Alterations; provided further, however, that if Tenant requests such a determination
from Landlord and Landlord, in its approval of any Alterations, fails to
address the removal requirement with regard to such Alterations, Landlord shall
be deemed to have agreed to waive the removal requirement with regard to such
Alterations. If Tenant fails to complete such removal and/or to repair any
damage caused by the removal of any Alterations in the Premises and return the
affected portion of the Premises to Building Standard condition, then at
Landlord’s option, either (A) Tenant shall be deemed to be holding over in
the Premises and Rent shall continue to accrue in accordance with the TCCs of ARTICLE 16,
below, until such work shall be completed, or (B) Landlord may do so
and may charge the cost thereof to Tenant, and Tenant shall reimburse
Landlord for such costs within ten (10) days after receipt of Landlord’s
invoice therefore. Tenant hereby protects, defends, indemnifies and holds
Landlord harmless from any liability, cost, obligation, expense or claim of
lien in any manner relating to the Tenant’s installation, placement, removal or
financing of any such Alterations, improvements, fixtures and/or equipment in,
on or about the Premises, which obligations of Tenant shall survive


 


25

















 


the expiration or earlier termination of this Lease for one (1) year
following such expiration or earlier termination. At all times during the Term
of this Lease, Tenant shall be entitled to remove, and Landlord shall have no
interest in, Tenant’s trade fixtures and equipment.


 


ARTICLE 9


 


COVENANT AGAINST LIENS


 


Tenant shall keep the Project and Premises
free from any liens or encumbrances arising out of the work performed,
materials furnished or obligations incurred by or on behalf of Tenant, and
shall protect, defend, indemnify and hold Landlord harmless from and against
any claims, liabilities, judgments or costs (including, without limitation,
reasonable attorneys’ fees and costs) arising out of same or in connection
therewith. Tenant shall give Landlord notice at least ten (10) business
days prior to the commencement of any such work on the Premises (or such
additional time as may be necessary under Applicable Laws) to afford
Landlord the opportunity of posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within ten (10) days after notice by Landlord, and if Tenant
shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount so paid shall be deemed Additional Rent under this Lease
payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord’s title to the Building or
Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract.


 


ARTICLE 10


 


INSURANCE


 


10.1                           INDEMNIFICATION AND WAIVER.
Except as otherwise expressly provided herein, Tenant hereby assumes all risk
of damage to property or injury to persons in, upon or about the Premises from
any cause whatsoever and agrees that Landlord, its partners, subpartners and
their respective officers, agents, servants, employees, and independent
contractors (collectively, “LANDLORD PARTIES”) shall not be liable for, and are
hereby released from any responsibility for, any damage either to person or
property or resulting from the loss of use thereof, which damage is sustained
by Tenant or by other persons claiming through Tenant, except to the extent
such damage results from the negligent acts or omissions or willful misconduct
of


 


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Landlord, or from Landlord’s failure to perform its obligations
under this Lease, and in such event, only to the extent not covered by Tenant’s
insurance required to be carried hereunder. Tenant shall indemnify, defend,
protect, and hold harmless the Landlord Parties from any and all loss, cost,
damage, expense and liability (including without limitation court costs and
reasonable attorneys’ fees) incurred in connection with or arising from any
cause in the Premises, and to the extent arising from the negligent act or
omission of Tenant or of any person claiming by, through or under Tenant, or of
the contractors, agents, servants, employees, invitees, guests or licensees of
Tenant or any such person, in, on or about the Project or any breach of the
TCCs of this Lease, either prior to, during, or after the expiration or earlier
termination of the Lease Term, except to the extent such damage results from
the negligent acts or omissions or willful misconduct of Landlord, or from
Landlord’s failure to perform its obligations under this Lease, and in
such event, only to the extent not covered by Landlord’s insurance required to
be carried hereunder. Landlord shall indemnify, defend, protect, and hold
harmless Tenant and its officers, agents, employees and contractors from any
and all loss, cost damage, expense and liability (including without limitation
court costs and reasonable attorneys’ fees) to the extent arising from the
negligent acts or omissions or willful misconduct of Landlord, its agents,
employees and contractors in, on or about the Project, except to the extent
such damage results from the negligent acts or omissions or willful misconduct
of Tenant, its agents, employees and contractors or from Tenant’s failure to
perform its obligations under this Lease, but only to the extent covered
by Landlord’s insurance required to be carried hereunder. Further, Landlord’s
and Tenant’s agreements to indemnify pursuant to this SECTION 10.1 are not
intended and shall not relieve any insurance carrier of its obligations, to the
extent such policies cover the matters subject to the foregoing indemnification
obligations; nor shall they supersede any inconsistent agreement of the parties
set forth in any other provision of this Lease. The provisions of this SECTION 10.1
shall survive the expiration or sooner termination of this Lease with respect
to any claims or liability arising in connection with any event occurring prior
to such expiration or termination.


 


10.2                           TENANT’S COMPLIANCE WITH
LANDLORD’S FIRE AND CASUALTY INSURANCE. Tenant shall, at Tenant’s expense,
comply with all insurance company requirements pertaining to the use of the
Premises to the extent such requirements are provided by Landlord to Tenant in
writing. If Tenant’s conduct or use of the Premises causes any increase in the
premium for such insurance policies then Tenant shall reimburse Landlord for
any such increase within fifteen (15) business days after receipt of Landlord’s
written demand; provided, however, that Landlord shall provide reasonably
sufficient documentation or other evidence to Tenant that its use and occupancy
of the Premises caused such increase in connection with any demand for payment.
Landlord represents that as of the date of this Lease Landlord has reviewed
with its insurance carrier Tenant’s Permitted Use under this Lease and Landlord
has been advised that the Permitted Use does not currently subject Landlord to
increased insurance premiums. Tenant, at Tenant’s expense, shall comply with
all rules, orders, regulations or requirements of the American Insurance
Association (formerly the National Board of Fire Underwriters) and with any
similar body.


 


10.3                           TENANT’S INSURANCE. Tenant
shall maintain the following coverages in the following amounts.


 


10.3.1                  Commercial General Liability
Insurance covering the insured against claims of bodily injury, personal injury
and property damage (including loss of use thereof) arising out of Tenant’s
operations, and contractual liabilities (covering the performance by Tenant of
its indemnity agreements) including the equivalent of the coverage provided by
a Broad Form endorsement covering the insuring provisions of this Lease
and the performance by Tenant of the indemnity agreements set forth in SECTION 10.1
of this Lease, for limits of liability not less than:


 


	
  Bodily Injury and

  	
   

  	
  $4,000,000 each occurrence

  
	
  Property Damage Liability

  	
   

  	
  $4,000,000 annual aggregate

  



 


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  Personal Injury Liability

  	
   

  	
  $4,000,000 each occurrence

  
	
   

  	
   

  	
  $4,000,000 annual aggregate

  



 


10.3.2                  Physical Damage Insurance covering
any Alterations made to the Premises in accordance with ARTICLE 8 of this
Lease and property insurance covering the Furniture and Tenant’s personal
property, trade fixtures and equipment in the Premises at 100% replacement
cost. Such insurance shall be written on an “all risks” of physical loss or
damage basis, for the full replacement cost value (subject to reasonable
deductible amounts) new without deduction for depreciation of the covered items
and in amounts that meet any co-insurance clauses of the policies of insurance
and shall include coverage for damage or other loss caused by fire or other
peril including, but not limited to, vandalism and malicious mischief, theft,
water damage of any type, including sprinkler leakage, bursting or stoppage of
pipes, and explosion.


 


10.3.3                  Worker’s Compensation and Employer’s
Liability or other similar insurance pursuant to all applicable commonwealth,
state and local statutes and regulations.


 


10.4                           FORM OF POLICIES. The
minimum limits of policies of insurance required of Tenant under this Lease
shall in no event limit the liability of Tenant under this Lease. Tenant’s
liability insurance shall (i) name Landlord, Landlord’s lender and
Landlord’s managing agent, if any, as an additional insured; (ii) specifically
cover the liability assumed by Tenant under this Lease, including, but not
limited to, Tenant’s obligations under SECTION 10.1 of this Lease; (iii) be
issued by an insurance company having a rating of not less than A-VII in Best’s
Insurance Guide and licensed to do business in the Commonwealth of
Massachusetts; (iv) be primary insurance as to all claims thereunder and
provide that any insurance carried by Landlord is excess and is
non-contributing with any insurance requirement of Tenant; and (v) provide
that said insurance shall not be canceled or coverage reduced unless ten (10) days’
prior written notice shall have been given to Landlord. Tenant shall deliver
evidence of such coverage to Landlord on or before the Lease Commencement Date
and at the time of any renewal thereof. In the event Tenant shall fail to
procure such insurance, or to deliver such evidence, including a certificate of
insurance, Landlord may, at its option, if Tenant fails to provide evidence of
such insurance within five (5) business days after notice from Landlord,
procure such policies for the account of Tenant, and the cost thereof shall be
paid to Landlord within five (5) business days after delivery to Tenant of
bills therefor.


 


10.5                           SUBROGATION. Landlord and
Tenant shall cause their insurers to waive, and Landlord and Tenant hereby
expressly waive, all rights of subrogation in their respective insurance
policies during the Lease Term.


 


10.6                           LANDLORD’S INSURANCE.
Landlord shall insure the Building (including the Building Structure and
Building Systems) and the Project during the Lease Term against loss or damage
due to fire and other casualties covered within the classification of fire and
extended coverage at the full replacement cost of the Buildings and other
improvements which constitute the Project (excluding footings and foundations).
Such coverage shall be in such amounts, from such companies, and on such other
terms and conditions, as Landlord may from time to time reasonably
determine. Additionally, at the sole option of Landlord, such insurance
coverage may include the risk of flood damage and additional hazards, a
rental loss endorsement and one


 


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or more loss payee endorsements in favor of the holders of any mortgages
or deeds of trust encumbering the interest of Landlord in the Building or the
ground or underlying lessors of the Building, or any portion thereof. Landlord
shall maintain a Commercial General Liability Insurance policy covering the
insured against claims of bodily injury and personal injury, for limits of
liability not initially less than $5,000,000 each occurrence and $5,000,000
annual aggregate for each of bodily injury and personal injury.


 


ARTICLE 11


 


DAMAGE AND DESTRUCTION


 


11.1                           REPAIR OF DAMAGE BY
LANDLORD. Tenant shall promptly notify Landlord of any damage to, or affecting,
the Premises resulting from fire or any other casualty. If the Premises, the
Building or any Common Areas serving or providing access to the Premises shall
be damaged by fire or other casualty, Landlord shall promptly and diligently,
subject to reasonable delays for insurance adjustment or other delays due to
Force Majeure, and subject to all other TCCs of this ARTICLE 11, restore
the Premises, the Building and such Common Areas. Such restoration shall be to
substantially the same condition as existed prior to the casualty, except for
modifications required by zoning and building codes and other laws, provided
that access to the Premises and any common restrooms serving the Premises and
Tenant’s use of the Premises shall not be materially impaired. Upon the
occurrence of any damage to the Premises, upon notice (the “LANDLORD REPAIR
NOTICE”) to Tenant from Landlord, Tenant shall assign to Landlord (or to any
party designated by Landlord) all insurance proceeds payable to Tenant under
Tenant’s insurance required under SECTION 10.3.2 of this Lease to the
extent of the value of the Furniture, and Landlord shall replace the Furniture
to the extent of such insurance proceeds or, if this Lease is terminated as a
result of such casualty, Landlord shall retain such proceeds. Upon receipt of
any Landlord Repair Notice, and provided this Lease has not terminated as
provided in this ARTICLE 11, Tenant shall proceed to restore and repair
any injury or damage to the Alterations, trade fixtures and equipment (to the
extent the Building Structure and the Premises are in commercially acceptable
condition to proceed with restoration of Alterations, trade fixtures and
equipment), which have been completed or installed by or on behalf of Tenant,
in accordance with ARTICLE 8 of this Lease, in the Premises and shall
return such Alterations, trade fixtures and equipment to substantially the same
condition as existed prior to the casualty, except for modifications required
by zoning and building codes and other Applicable Laws. Following delivery of a
Landlord Repair Notice, prior to the commencement of construction, Tenant shall
submit to Landlord, for Landlord’s review and approval, all plans, specifications
and working drawings relating thereto, and Landlord shall review and approve
such plans and specifications and Tenant’s contractors to be used for such work
pursuant to the provisions of ARTICLE 8. Landlord shall not be liable for
any inconvenience or annoyance to Tenant or its visitors, or injury to Tenant’s
business resulting in any way from such damage or the repair thereof; provided
however, that if such fire or other casualty shall have damaged the Premises or
Common Areas necessary to Tenant’s occupancy, Landlord shall allow Tenant a
proportionate abatement of Rent (and, to the extent applicable, an adjustment
to Tenant’s Share), to the extent Tenant is unable to operate its business in
the Premises (measured by the proportion of square feet of the Premises in
which Tenant is unable to operate as compared to the total size of the
Premises, and continuing until such time as such areas and access thereto are
restored substantially to their condition prior to the casualty), regardless of
whether Landlord is


 


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reimbursed from the proceeds of rental interruption insurance purchased
or required to be purchased by Landlord as part of Operating Expenses,
during the time and to the extent the Premises are unfit for occupancy for the
purposes permitted under this Lease, and not occupied by Tenant as a result
thereof; provided, further, however, that if the damage or destruction is due
to the negligence or intentional misconduct of Tenant, Tenant shall be responsible
for any reasonable, applicable insurance deductible (which shall be payable to
Landlord upon demand).


 


11.2                           LANDLORD’S OPTION TO REPAIR.
Notwithstanding the TCCs of SECTION 11.1 of this Lease, Landlord may elect
not to rebuild and/or restore the Premises, Building and/or Project, and
instead terminate this Lease (or the applicable portion thereof), by notifying
Tenant in writing of such termination within sixty (60) days after the date of
discovery of the damage, such notice to include a termination date giving
Tenant sixty (60) days to vacate the Premises, but Landlord may so elect
only if the Premises, Building or Project shall be damaged by fire or other
casualty or cause, if one or more of the following conditions is present: (i) in
Landlord’s reasonable judgment, repairs cannot reasonably be completed within
nine (9) months after the date of discovery of the damage (when such
repairs are made without the payment of overtime or other premiums); (ii) the
damage is not fully covered by Landlord’s insurance policies required under
this Lease; (iii) the damage occurs during the last twelve (12) months of
the Lease Term; or (iv) Landlord’s mortgagee does not permit adequate
insurance proceeds to be applied to the rebuilding or repair of the Building or
Project. Within sixty (60) days after the date of discovery of the damage, if
Landlord does not elect to terminate this Lease pursuant to Landlord’s
termination right as provided above, Landlord shall give Tenant written notice
of the estimated time required to repair the Premises, Building and/or Project
(the “Repair Estimate”). If the estimated time to repair the Premises exceeds
twelve (12) months (measured from the date of discovery of the damage), then
Tenant shall have the right to terminate this Lease upon written notice given
within thirty (30) days after receipt of Landlord’s Repair Estimate, time being
of the essence. If neither Landlord nor Tenant elects to terminate this Lease
pursuant to the termination right as provided above, and if the repairs to be
made by Landlord are not actually completed within twelve (12) months of the
date of discovery of the damage, as extended for Force Majeure delays and/or
delays in insurance adjustment as reasonably demonstrated by Landlord to
Tenant, Tenant shall have the right to terminate this Lease by providing
written notice to Landlord (the “DAMAGE TERMINATION NOTICE”), such termination
to be effective five (5) business days after Landlord’s receipt of the
Damage Termination Notice (the “DAMAGE TERMINATION DATE”); provided, however,
that Landlord shall have the right to suspend the occurrence of the Damage
Termination Date for a period of thirty (30) days after the Damage Termination
Date by delivering to Tenant, on or before the Damage Termination Date, a certificate
of Landlord’s contractor responsible for the repair of the damage certifying
that it is such contractor’s good faith judgment that the repairs to be made by
Landlord shall be completed within thirty (30) days after the Damage
Termination Date. If such repairs shall be completed prior to the expiration of
such thirty-day period, then the Damage Termination Notice shall be of no force
or effect, but if such repairs shall not be completed within such thirty (30)
day period, then this Lease shall terminate upon the expiration of such thirty
(30) day period.


 


11.3                           WAIVER OF STATUTORY
PROVISIONS. The provisions of this Lease, including this ARTICLE 11,
constitute an express agreement between Landlord and Tenant with respect to any
and all damage to, or destruction of, all or any part of the Premises, the
Building or the Project, and any statute or regulation of the Commonwealth of
Massachusetts, with respect to any rights


 


30

















 


or obligations concerning damage or destruction in the absence of an
express agreement between the parties, and any other statute or regulation, now
or hereafter in effect, shall have no application to this Lease or any damage
or destruction to all or any part of the Premises, the Building or the
Project.


 


ARTICLE 12


 


NON-WAIVER


 


No provision of this Lease shall be deemed
waived by either party hereto unless expressly waived in a writing signed
thereby. The waiver by either party hereto of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of same or any other term, covenant or condition herein
contained. The subsequent acceptance of Rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant
or condition of this Lease, other than the failure of Tenant to pay the
particular Rent so accepted, regardless of Landlord’s knowledge of such
preceding breach at the time of acceptance of such Rent. No acceptance of a
lesser amount than the Rent herein stipulated shall be deemed a waiver of
Landlord’s right to receive the full amount due, nor shall any endorsement or
statement on any check or payment or any letter accompanying such check or
payment be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord’s right to recover the full
amount due. No receipt of monies by Landlord from Tenant after the termination
of this Lease shall in any way alter the length of the Lease Term or of Tenant’s
right of possession hereunder, or after the giving of any notice shall
reinstate, continue or extend the Lease Term or affect any notice given Tenant
prior to the receipt of such monies, it being agreed that after the service of
notice or the commencement of a suit, or after final judgment for possession of
the Premises, Landlord may receive and collect any Rent due, and the
payment of said Rent shall not waive or affect said notice, suit or judgment.


 


ARTICLE 13


 


CONDEMNATION


 


13.1                           CONDEMNATION. If the whole
or any part of the Premises, Building or Project shall be taken by power
of eminent domain or condemned by any competent authority for any public or
quasi-public use or purpose, or if any adjacent property or street shall be so
taken or condemned, or reconfigured or vacated by such authority in such manner
as to require the use, reconstruction or remodeling of any part of the
Premises, Building or Project, and if as a result thereof Tenant cannot conduct
its business operations in substantially the same manner such business
operations were conducted prior to such taking while still retaining
substantially the same material rights and benefits it bargained to receive
under this Lease, or if Landlord shall grant a deed or other instrument in lieu
of such taking by eminent domain or condemnation as a result thereof, Landlord
and Tenant shall each have the option to terminate this Lease on ninety (90)
days notice (or such shorter amount of time as is reasonable based on when
Landlord and Tenant learned of the effective date of the taking) to the other
party effective as of the date possession is required to be surrendered to the
authority. Subject to SECTION 13.2 below, Tenant shall not because of such
taking assert any claim against Landlord or the authority for any


 


31

















 


compensation because of such taking and Landlord shall be entitled to
the entire award or payment in connection therewith, except that Tenant shall
have the right to file any separate claim available to Tenant for any taking of
Tenant’s personal property and fixtures belonging to Tenant and removable by
Tenant upon expiration of the Lease Term pursuant to the TCCs of this Lease,
and for moving expenses, so long as such claims do not diminish the award
available to Landlord or its ground lessor, if any, with respect to the
Building or Project, or its mortgagee, and such claim is payable separately to
Tenant. All Rent shall be apportioned as of the date of such termination. If
any part of the Premises shall be taken, and this Lease shall not be so
terminated, the Rent shall be proportionately abated. Notwithstanding anything
to the contrary contained in this ARTICLE 13, in the event of a temporary
taking of all or any portion of the Premises for a period of sixty (60) days or
less, then this Lease shall not terminate but the Base Rent and the Additional
Rent shall be abated for the period of such taking in proportion to the ratio
that the amount of rentable square feet of the Premises taken bears to the
total rentable square feet of the Premises. Subject to SECTION 13.2 below,
Landlord shall be entitled to receive the entire award made in connection with
any such temporary taking. Landlord and Tenant hereby waive the provisions of
any statutes or other laws relating to the termination of leases in the event
of condemnation, and agrees that the rights and obligations of the parties in
such event shall be governed by the terms of this Lease.


 


13.2                           TENANT’S RIGHT TO AWARD.
Subject to the provisions of SECTION 13.1 above, Tenant shall have the
right to claim and recover (i) the fair market value of the Alterations to
the extent paid for solely by Tenant, (ii) any sum awarded to Tenant for
damages to or loss of Tenant’s business, and (iii) such compensation as may be
separately awarded or recoverable by Tenant on account of any and all costs or
losses related to removing Tenant’s merchandise, furniture, fixtures, leasehold
improvements, and equipment to a new location.


 


ARTICLE 14


 


ASSIGNMENT AND SUBLETTING


 


14.1                           TRANSFERS. Tenant shall not:
(A) mortgage, pledge, hypothecate, encumber, or permit any lien to attach
to this Lease or any interest hereunder without the prior written consent of
Landlord, which consent may be withheld in Landlord’s sole discretion; nor
(B) without the prior written consent (except as otherwise provided in SECTION 14.7
below) of Landlord, which consent will not be unreasonably withheld,
conditioned or delayed, assign, or otherwise transfer, this Lease or any
interest hereunder, permit any assignment, or other transfer of this Lease or
any interest hereunder by operation of law, sublet the Premises or any part thereof,
or enter into any license or concession agreements or otherwise permit the
occupancy or use of the Premises or any part thereof by any persons other
than Tenant and its employees and contractors; (all of the foregoing (in
Clauses (A) and (B)) are hereinafter sometimes referred to collectively as
“TRANSFERS” and any person to whom any Transfer is made or sought to be made is
hereinafter sometimes referred to as a “TRANSFEREE”). If Tenant desires
Landlord’s consent to any Transfer, Tenant shall notify Landlord in writing,
which notice (the “TRANSFER NOTICE”) shall include (i) the proposed
effective date of the Transfer, which shall not be less than twenty (20) days
nor more than ninety (90) days after the date of delivery of the Transfer
Notice, (ii) a description of the portion of the Premises to be
transferred (the “SUBJECT SPACE”), (iii) all of the TCCs of the proposed
Transfer and the consideration therefor, including calculation of the “TRANSFER


 


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PREMIUM,” as that term is defined in SECTION 14.3 below, in
connection with such Transfer, (iv) the name and address of the proposed
Transferee, and a copy of all existing executed and/or proposed documentation
pertaining to the proposed Transfer, including all existing operative documents
to be executed to evidence such Transfer or the agreements incidental or related
to such Transfer (excluding confidential information and documents (other than
financial information required pursuant to subsection (v) below) as
determined by Tenant in its reasonable business judgment), (v) current
financial statements of the proposed Transferee certified by an officer,
partner or owner thereof, business credit and personal references and history
of the proposed Transferee and any other information required by Landlord which
will enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee’s business and
proposed use of the Subject Space and (vi) an executed estoppel
certificate from Tenant in the form attached hereto as EXHIBIT E. Any
Transfer made without Landlord’s prior written consent shall, at Landlord’s
option, be null, void and of no effect, and shall, at Landlord’s option,
constitute a default by Tenant under this Lease. Whether or not Landlord
consents to any proposed Transfer, Tenant shall, within thirty (30) days after
written request by Landlord, reimburse Landlord for all reasonable and actual
out-of-pocket third-party costs and expenses incurred by Landlord in connection
with its review of a proposed Transfer; provided that such costs and expenses
shall not exceed One Thousand and No/100 Dollars ($1,000.00) for a Transfer in
the ordinary course of business.


 


14.2                           LANDLORD’S CONSENT. Landlord
shall not unreasonably withhold, condition or delay its consent to any proposed
Transfer under clause 14.1(B) of the Subject Space to the Transferee on
the terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any Applicable Law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:


 


14.2.1                  The Transferee is of a character or
reputation or engaged in a business which is not consistent with the quality of
the Building or the Project;


 


14.2.2                  The Transferee intends to use the
Subject Space for purposes which are not permitted under this Lease;


 


14.2.3                  The Transferee is either a
governmental agency or instrumentality thereof;


 


14.2.4                  Tenant is or has been in default
beyond any applicable notice and cure period under this Lease prior to the date
of the Transfer;


 


14.2.5                  The Transferee’s financial worth
and/or financial stability is insufficient to meet the proposed financial
obligations on the date consent is requested;


 


14.2.6                  The Transferee is an existing tenant
of the Project and Landlord has other comparable space available in the
Project;


 


14.2.7                  The parking requirements of the
Transferee are in excess of the proportionate share of parking which would be
allocable to the Subject Space based on the


 


33

















 


rentable square footage of the Subject Space compared to the total
rentable square footage of the Project;


 


14.2.8                  The Transfer would entail any
alterations which would lessen the value of the leasehold improvements in the
Premises; or


 


14.2.9                  There is an uncured event of default
under the Lease or Tenant has defaulted in the payment of rent (beyond
applicable notice and grace provisions) more than two times in the prior twelve
month period.


 


If Landlord consents to any Transfer pursuant
to the TCCs of this SECTION 14.2 (and does not exercise any recapture
rights Landlord may have under SECTION 14.4 of this Lease), Tenant may within
one (1) month after Landlord’s consent, but not later than the expiration
of said one-month period, enter into such Transfer of the Premises or portion
thereof, upon substantially the same terms and conditions as are set form in
the Transfer Notice furnished by Tenant to Landlord pursuant to SECTION 14.1
of this Lease, provided that if there are any material changes in the terms and
conditions from those specified in the Transfer Notice (i) such that
Landlord would initially have been entitled to refuse its consent to such
Transfer under this SECTION 14.2, or (ii) which would cause the
proposed Transfer to be materially more favorable to the Transferee than the
terms set forth in Tenant’s original Transfer Notice, Tenant shall again submit
the Transfer to Landlord for its approval and other action under this ARTICLE 14
(including Landlord’s right of recapture, if any, under SECTION 14.4 of
this Lease). Notwithstanding anything to the contrary in this Lease, if Tenant
or any proposed Transferee claims that Landlord has unreasonably withheld or
delayed its consent under SECTION 14.2 or otherwise has breached or acted
unreasonably under this ARTICLE 14, their remedies shall be restricted to
a declaratory judgment and an injunction for the relief sought, and shall
exclude money damages. Tenant shall indemnify, defend and hold harmless
Landlord from any and all liability, losses, claims, damages, costs, expenses,
causes of action and proceedings involving any third party or parties
(including without limitation Tenant’s proposed subtenant or assignee) who
claim they were damaged by Landlord’s wrongful withholding or conditioning of
Landlord’s consent.


 


14.3                           TRANSFER PREMIUM. If
Landlord consents to a Transfer, as a condition thereto which the parties
hereby agree is reasonable, Tenant shall pay to Landlord fifty percent (50%) of
any “Transfer Premium,” as that term is defined in this SECTION 14.3,
received by Tenant from such Transferee. “TRANSFER PREMIUM” shall mean all
rent, additional rent or other consideration payable by such Transferee in
connection with the Transfer in excess of the Rent and Additional Rent payable
by Tenant under this Lease during the term of the Transfer on a per rentable
square foot basis if less than all of the Premises is transferred, after
deducting all expenses incurred by Tenant (i) in making any changes,
alterations and improvements to the Premises in connection with the Transfer, (ii) any
free base rent provided to the Transferee, (iii) any brokerage commissions
or legal fees paid to third parties in connection with the Transfer, and (iv) any
architectural or engineering expenses incurred by Tenant. “Transfer Premium”
shall also include, but not be limited to, bonus money or other cash
consideration paid by Transferee to Tenant in connection with such Transfer,
and any payment in excess of fair market value for services rendered by Tenant
to Transferee or for assets, fixtures, inventory, equipment, or furniture
transferred by Tenant to Transferee in connection with such Transfer. In the
calculations of the Rent (as it relates to the Transfer Premium calculated
under this SECTION 14.3),


 


34














 


and
the Transferee’s Rent, the Rent paid during each annual period for the Subject
Space, and the Transferee’s Rent shall be computed after adjusting such rent to
the actual effective rent to be paid, taking into consideration any and all
leasehold concessions granted in connection therewith, including, but not
limited to, any rent credit and tenant improvement allowance. For purposes of
calculating any such effective rent all such concessions shall be amortized on
a straight-line basis over the relevant term.


 


14.4                           LANDLORD’S
OPTION AS TO SUBJECT SPACE. In the event that a proposed Transfer, if consented
to, would cause fifty percent (50%) or more of the Premises to be assigned or
subleased to a party other than Original Tenant (that is, EXACT Sciences Corporation)
and/or its Affiliates, then notwithstanding anything to the contrary contained
in this ARTICLE 14, Landlord shall have the option, by giving written
notice (the “LANDLORD RECAPTURE NOTICE”) to Tenant within thirty (30) days
after receipt of any Transfer Notice, to recapture the Subject Space. Within
five (5) business days of its receipt of the Landlord Recapture Notice,
Tenant may, by written notice to Landlord, withdraw its Transfer Notice (the “TENANT
SUBLEASE WITHDRAWAL NOTICE”). Provided Tenant does not deliver a Tenant
Sublease Withdrawal Notice pursuant to the preceding sentence, the Landlord
Recapture Notice shall cancel and terminate this Lease with respect to the
Subject Space as of the date stated in the Transfer Notice as the effective date
of the proposed Transfer until the last day of the term of the Transfer as set
forth in the Transfer Notice (or at Landlord’s option, shall cause the Transfer
to be made to Landlord or its agent, in which case the parties shall execute
the Transfer documentation promptly thereafter). In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Premises, the Rent reserved herein shall be prorated on the basis of the number
of rentable square feet retained by Tenant in proportion to the number of
rentable square feet contained in the Premises, and this Lease as so amended
shall continue thereafter in full force and effect, and upon request of either
party, the parties shall execute written confirmation of the same. If Landlord
declines, or fails to elect in a timely manner to recapture the Subject Space
under this SECTION 14.4, then, provided Landlord has consented to the
proposed Transfer, Tenant shall be entitled to proceed to transfer the Subject
Space to the proposed Transferee, subject to provisions of this ARTICLE 14.


 


14.5                           EFFECT OF
TRANSFER. If Landlord consents to a Transfer, (i) the TCCs of this Lease
shall in no way be deemed to have been waived or modified, (ii) such
consent shall not be deemed consent to any further Transfer by either Tenant or
a Transferee, (iii) Tenant shall deliver to Landlord, promptly after
execution, an original executed copy of all documentation pertaining to the
Transfer, and (iv) no Transfer relating to this Lease or agreement entered
into with respect thereto, whether with or without Landlord’s consent, shall
relieve Tenant from any liability under this Lease, including, without
limitation, in connection with the Subject Space. Landlord or its authorized
representatives shall have the right at all reasonable times and upon
reasonable prior notice to audit the books, records and papers of Tenant
relating to any Transfer, and shall have the right to make copies thereof. If
the Transfer Premium respecting any Transfer shall be found understated, Tenant
shall, within thirty (30) days after demand, pay the deficiency, and if
understated by more than five percent (5%), Tenant shall pay Landlord’s costs
of such audit.


 


14.6                           OCCURRENCE
OF DEFAULT. Any Transfer hereunder shall be subordinate and subject to the
provisions of this Lease, and if this Lease shall be terminated during the term
of any


 


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Transfer,
Landlord shall have the right to: (i) treat such Transfer as cancelled and
repossess the Subject Space by any lawful means, or (ii) require that such
Transferee attorn to and recognize Landlord as its landlord under any such
Transfer. If Tenant shall be in default under this Lease beyond any applicable
notice and cure periods, Landlord is hereby authorized to direct any Transferee
to make all payments under or in connection with the Transfer directly to
Landlord (which Landlord shall apply towards Tenant’s obligations under this
Lease) until such default is cured. Such Transferee shall rely on any
representation by Landlord that Tenant is in default hereunder, without any
need for confirmation thereof by Tenant. Upon any assignment, the assignee
shall assume in writing all obligations and covenants of Tenant thereafter to
be performed or observed under this Lease. No collection or acceptance of rent
by Landlord from any Transferee shall be deemed a waiver of any provision of
this ARTICLE 14 or the approval of any Transferee or a release of Tenant
from any obligation under this Lease, whether theretofore or thereafter
accruing. In no event shall Landlord’s enforcement of any provision of this
Lease against any Transferee be deemed a waiver of Landlord’s right to enforce
any term of this Lease against Tenant or any other person.


 


14.7                           NON-TRANSFERS.
Notwithstanding anything to the contrary contained in this ARTICLE 14, an
assignment or subletting of all or a portion of the Premises to any entity
which is controlled directly or indirectly by Tenant, or which entity controls,
directly or indirectly, Tenant (in each such case, an “AFFILIATE”), or any
entity which owns or is owned by an Affiliate, or any assignment by operation
of law or otherwise resulting from any merger or consolidation of Tenant or to
any entity which purchases all or substantially all the stock or assets of
Tenant, shall not be deemed a Transfer under this ARTICLE 14, provided
that at least ten (10) business days prior to such assignment or sublease
(or, if precluded by applicable securities laws from giving advance notice,
within ten (10) business days after such assignment or sublease, or, if
later, promptly after Tenant is legally permitted to inform Landlord): (i) Tenant
notifies Landlord of any such assignment or sublease and certifies that the
applicable Transfer is to an Affiliate; and (iii) such assignment or
sublease is not a subterfuge by Tenant to avoid its obligations under this
Lease. In the event an assignment or sublease to an Affiliate is made pursuant
to the TCCs of this SECTION 14.7, Tenant shall not be relieved of its
obligations under this Lease. “CONTROL,” as used in this SECTION 14.7,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person or entity,
whether by ownership of voting securities, by contract or otherwise.


 


ARTICLE 15


 


SURRENDER OF PREMISES;
OWNERSHIP AND REMOVAL OF TRADE FIXTURES


 


15.1                           SURRENDER OF
PREMISES. No act or thing done by Landlord or any agent or employee of Landlord
during the Lease Term shall be deemed to constitute an acceptance by Landlord
of a surrender of the Premises unless such intent is specifically acknowledged
in writing by Landlord or its management company. The delivery of keys to the
Premises to Landlord or any agent or employee of Landlord shall not constitute
a surrender of the Premises or effect a termination of this Lease, whether or
not the keys are thereafter retained by Landlord, and notwithstanding such
delivery Tenant shall be entitled to the return of such keys at any reasonable
time upon request until this Lease shall have been properly terminated. The


 


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voluntary
or other surrender of this Lease by Tenant, whether accepted by Landlord or
not, or a mutual termination hereof, shall not work a merger, and at the option
of Landlord shall operate as an assignment to Landlord of all subleases or
subtenancies affecting the Premises or terminate any or all such sublessees or
subtenancies.


 


15.2                           REMOVAL OF
TENANT PROPERTY BY TENANT. Upon the expiration of the Lease Term, or upon any
earlier termination of this Lease, Tenant shall, subject to the provisions of
this ARTICLE 15, quit and surrender possession of the Premises to Landlord
in as good order and condition as when Tenant took possession and as thereafter
improved by Landlord and/or Tenant, reasonable wear and tear, damage due to
casualty or condemnation, or repairs which are specifically made the
responsibility of Landlord hereunder excepted. Upon such expiration or
termination, Tenant shall, without expense to Landlord, remove or cause to be
removed from the Premises all debris and rubbish, and such items of furniture
(excepting the Furniture), equipment, business and trade fixtures,
free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the
Premises (excluding, however, Tenant’s Alterations), and Tenant shall repair at
its own expense all damage to the Premises and Building to the extent resulting
from such removal.


 


ARTICLE 16


 


HOLDING OVER


 


16.1                           AFTER
EXPIRATION OR EARLIER TERMINATION OF LEASE TERM. If Tenant holds over after the
expiration of the Lease Term or earlier termination thereof, with or without
the express or implied consent of Landlord, such tenancy shall be from
month-to-month only, and shall not, except as set forth below, constitute a
renewal hereof or an extension for any further term, and in such case Rent
shall be payable at a monthly rate equal to the product of (i) the Rent
applicable during the last rental period of the Lease Term under this Lease,
and (ii) one hundred fifty percent (150%). Such month-to-month tenancy
shall be subject to every other applicable TCCs contained herein. For purposes
of this ARTICLE 16, a holding over shall include Tenant’s remaining in the
Premises after the expiration or earlier termination of the Lease Term, as
required pursuant to the TCCs of SECTION 8.5, above, to remove any
Alterations located within the Premises and complete Tenant’s restoration
obligations. Nothing contained in this ARTICLE 16 shall be construed as
consent by Landlord to any holding over by Tenant, and Landlord expressly
reserves the right to require Tenant to surrender possession of the Premises to
Landlord as provided in this Lease upon the expiration or other termination of
this Lease. The provisions of this ARTICLE 16 shall not be deemed to limit
or constitute a waiver of any other rights or remedies of Landlord provided
herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities
to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and
hold Landlord harmless from all loss, costs (including reasonable attorneys’
fees) and liability resulting from such failure, including, without limiting
the generality of the foregoing, any claims made by any succeeding tenant
founded upon such failure to surrender and any lost profits to Landlord
resulting therefrom.


 


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ARTICLE 17


 


ESTOPPEL CERTIFICATES


 


Within ten (10) business days following a
request in writing by Landlord, Tenant, shall execute, acknowledge and deliver
to Landlord an estoppel certificate, which, as submitted by Landlord, shall be
substantially in the form of EXHIBIT E or EXHIBIT E-1, attached
hereto, or such other substantially similar form containing such other
information as shall be reasonably requested by any prospective mortgagee or
purchaser of the Project, or any portion thereof, indicating therein any
exceptions thereto that may exist at that time. Any such certificate may be
relied upon by any prospective mortgagee or purchaser of all or any portion of
the Project.


 


ARTICLE 18


 


SUBORDINATION


 


This Lease shall be subject and subordinate to
all present and future ground or underlying leases of the Building or Project
and to the lien of any mortgage, trust deed or other encumbrances now or
hereafter in force against the Building or Project or any part thereof, if
any, and to all renewals, extensions, modifications, consolidations and
replacements thereof, and to all advances made or hereafter to be made upon the
security of such mortgages or trust deeds, unless the holders of such
mortgages, trust deeds or other encumbrances (collectively, “LIENHOLDERS”), or
the lessors under such ground lease or underlying leases require in writing
that this Lease be superior thereto. Tenant covenants and agrees in the event
any proceedings are brought for the foreclosure of any such mortgage or deed in
lieu thereof (or if any ground lease is terminated), to attorn (so long as
lienholder provides Tenant with its standard form of Nondisturbance
Agreement), without any deductions or set-offs whatsoever, to the lienholder or
purchaser or any successors thereto upon any such foreclosure sale or deed in
lieu thereof (or to the ground lessor), if so requested to do so by such
purchaser or lienholder or ground lessor, and to recognize such purchaser or
lienholder or ground lessor as the lessor under this Lease. Landlord’s interest
herein may be assigned as security at any time to any lienholder. Landlord
shall obtain a non-disturbance agreement(s) between Tenant and all current and
future lienholders (the “NONDISTURBANCE Agreement”). The Nondisturbance
Agreement from Landlord’s current mortgagee shall be in the form attached
hereto as EXHIBIT I; otherwise, the form shall be reasonably
satisfactory to both Tenant and the applicable lienholder. Provided that Tenant
has received such Nondisturbance Agreement, Tenant shall, within ten (10) business
days of request by Landlord, execute such further instruments or assurances as
Landlord may reasonably deem necessary to evidence or confirm the
subordination or superiority of this Lease to any such mortgages, trust deeds,
ground leases or underlying leases in accordance with the TCCs of this ARTICLE 18.
Tenant waives the provisions of any current or future statute, rule or law
which may give or purport to give Tenant any right or election to
terminate or otherwise adversely affect this Lease and the obligations of the
Tenant hereunder in the event of any foreclosure proceeding or sale.


 


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ARTICLE 19


 


DEFAULTS: REMEDIES


 


19.1                           EVENTS OF
DEFAULT. The occurrence of any of the following shall constitute a default of
this Lease by Tenant:


 


19.1.1                  Any failure
by Tenant to pay any Rent or any other charge required to be paid under this
Lease, or any part thereof, when due unless such failure is cured within
five (5) business days, provided, however, Landlord shall be required to
give written notice to Tenant of such failure not more than two times in any
twelve month period, after which Tenant shall be in default without the
requirement of notice if Tenant fails to make such payments on or before the
due date; or


 


19.1.2                  Any failure
by Tenant to observe or perform any other provision, covenant or condition
of this Lease to be observed or performed by Tenant where such failure
continues for thirty (30) days after written notice thereof from Landlord to
Tenant; provided that if the nature of such default is such that the same
cannot reasonably be cured within a thirty (30) day period, Tenant shall not be
deemed to be in default if it diligently commences such cure within such period
and thereafter diligently proceeds to rectify and cure such default within
sixty (60) days after such written notice; or


 


19.1.3                  (a) The
making by Tenant of any general arrangement or general assignment for the
benefit of creditors; (b) Tenant becomes a “debtor” as defined in 11
U.S.C. ss. 101 or any successor statute thereto (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days);
(c), the appointment of a trustee or receiver to take possession of
substantially all of Tenant’s assets located at the Premises or of Tenant’s
interest in this Lease, where possession is not restored to Tenant within
thirty (30) days; (d) the attachment, execution or other judicial seizure
of substantially all of Tenant’s assets located at the Premises or of Tenant’s
interest in this Lease, where such seizure is not discharged within sixty (60)
days or the date of any sooner sale of any of such assets; or (e) Tenant
shall become subject to any proceeding in bankruptcy or insolvency.


 


The notice periods provided herein are in lieu
of, and not in addition to, any notice periods provided by law.


 


19.2                           REMEDIES
UPON DEFAULT. Upon the occurrence of any event of default by Tenant, Landlord
shall have, in addition to any other remedies available to Landlord at law or
in equity (all of which remedies shall be distinct, separate and cumulative),
the option to pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand
whatsoever.


 


19.2.1                  Terminate
this Lease, in which event Tenant shall immediately surrender the Premises to
Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any
other remedy which it may have for possession or arrearages in rent, use
any lawful means to expel or remove Tenant and any other person who may be
occupying the Premises or any part


 


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thereof,
without being liable for prosecution or any claim or damages therefor; and
Landlord may recover from Tenant the following:


 


(i)                                     The worth at
the time of award of the unpaid rent which had been earned at the time of such
termination; plus


 


(ii)                                  The worth at
the time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided; plus


 


(iii)                               The worth at
the time of award of the amount by which the unpaid rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus


 


(iv)                              At Landlord’s
election, such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable law.


 


The term “RENT” as used in this SECTION 19.2
shall be deemed to be and to mean all sums of every nature required to be paid
by Tenant pursuant to the TCCs of this Lease, whether to Landlord or to others.
As used in Paragraphs 19.2.1(i) and (ii), above, the “worth at the time of
award” shall be computed by allowing interest at the rate set forth in ARTICLE 25
of this Lease through the date of any judgment against Tenant, but in no case
greater than the maximum amount of such interest permitted by law. As used in
Paragraph 19.2.l(iii) above, the “worth at the time of award” shall be
computed by discounting future liabilities after the date of any judgment
against Tenant at the discount rate of the Federal Reserve Bank of New York.


 


19.2.2                  Maintain
Tenant’s right to possession in which case this Lease shall continue in effect
whether or not Tenant shall have vacated or abandoned the Premises. In such
event, Landlord shall be entitled to enforce all of Landlord’s rights and
remedies under this Lease, including the right to recover the rent as it
becomes due hereunder. No action by Landlord shall be deemed a termination of
this Lease except written notice by Landlord delivered to Tenant expressly
declaring a termination of this Lease. If Landlord maintains Tenant’s right to
possession, Landlord may thereafter elect to terminate this Lease.


 


19.2.3                  Terminate
this Lease and, in addition to any recoveries Landlord may seek under SECTION 19.2.1,
bring an action to reenter and regain possession of the Premises in the manner
provided by the laws of the Commonwealth of Massachusetts then in effect.


 


19.2.4                  Pursue any
other remedy now or hereafter available to Landlord under the laws or judicial
decisions of the Commonwealth of Massachusetts.


 


19.2.5                  Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies
available under SECTIONS 19.2.1 through 19.2.4, above, or any law or other
provision of this Lease), without prior demand or notice except as required by
applicable law, to seek any


 


40

















 


declaratory,
injunctive or other equitable relief, and specifically enforce this Lease, or restrain
or enjoin a violation or breach of any provision hereof; provided, however,
that Landlord shall use commercially reasonable efforts to mitigate damages.


 


19.3                           SUBLEASES OF
TENANT. If Landlord elects to terminate this Lease on account of any default by
Tenant, as set forth in this ARTICLE 19, Landlord shall have the right to
terminate any and all subleases, licenses, concessions or other consensual
arrangements for possession entered into by Tenant and affecting the Premises
or may, in Landlord’s sole discretion, succeed to Tenant’s interest in such
subleases, licenses, concessions or arrangements. If Landlord has terminated
this Lease and elected to succeed to Tenant’s interest in any such subleases,
licenses, concessions or arrangements, Tenant shall, as of the date of notice
by Landlord of such election, have no further right to or interest in the rent
or other consideration receivable thereunder.


 


19.4                           NO RELIEF
FROM FORFEITURE AFTER DEFAULT. Tenant waives all rights of redemption or relief
from forfeiture under any present or future laws or statutes, in the event
Tenant is evicted or Landlord otherwise lawfully takes possession of the
Premises by reason of any default by Tenant under this Lease.


 


19.5                           EFFORTS TO
RELET. No re-entry or repossession, repairs, maintenance, changes, alterations
and additions, reletting, appointment of a receiver to protect Landlord’s
interests hereunder, or any other action or omission by Landlord shall be
construed as an election by Landlord to terminate this Lease or Tenant’s right
to possession, or to accept a surrender of the Premises, nor shall same operate
to release Tenant in whole or in part from any of Tenant’s obligations
hereunder, unless express written notice of such intention is sent by Landlord
to Tenant. Tenant hereby irrevocably waives any right otherwise available under
any law to redeem or reinstate this Lease.


 


19.6                           LANDLORD
DEFAULT. Notwithstanding anything to the contrary set forth in this Lease,
Landlord shall be in default in the performance of any obligation required to
be performed by Landlord pursuant to this Lease if Landlord fails to perform such
obligation within thirty (30) days after the receipt of written notice from
Tenant specifying in detail Landlord’s failure to perform; provided, however,
if the nature of Landlord’s obligation is such that more than thirty (30) days
are required for its performance, then Landlord shall not be in default under
this Lease if it shall commence such performance within such thirty (30) day
period and thereafter diligently pursues the same to completion. Tenant shall
provide a copy of any notice of default given to Landlord to Landlord’s
mortgagee and Landlord’s mortgagee shall have the right to cure any such
default on behalf of the Landlord within thirty days after the receipt of such
notice, provided, however, if the nature of Landlord’s obligation is such that
more than thirty (30) days are required for its performance, then Landlord
shall not be in default under this Lease if Landlord’s mortgagee shall commence
such performance within such thirty (30) day period and thereafter diligently
pursues the same to completion. Upon any such default by Landlord (following
such notice and opportunity to cure) under this Lease, Tenant may, except as
otherwise specifically provided in this Lease to the contrary, exercise any of
its rights provided at law or in equity, provided, however, except as expressly
provided in SECTIONS 11.1, and 13.1, Tenant shall have no right to offset or
withhold the payment of Rent or to terminate this Lease as the result of
Landlord’s default.


 


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ARTICLE 20


 


COVENANT OF QUIET
ENJOYMENT


 


Landlord covenants that subject to Tenant’s
performance of its obligations under this Lease Tenant shall, during the Lease
Term, peaceably and quietly have, hold and enjoy the Premises subject to the
terms, covenants, conditions, provisions and agreements hereof without
interference by any persons lawfully claiming by or through Landlord. The
foregoing covenant is in lieu of any other covenant express or implied.


 


ARTICLE 21


 


SECURITY DEPOSIT


 


21.1                           SECURITY
DEPOSIT. Upon execution and delivery of this Lease, Tenant shall provide a
security deposit in the amount set forth in the Summary (the “Security Deposit”),
to be held by Landlord without liability for interest (unless required by State
laws) as security for the performance of Tenant’s obligations hereunder. The
Security Deposit is not an advance payment of Rent or a measure of Tenant’s
liability for damages. Landlord may, from time to time, without prejudice to
any other remedy, use all or a portion of the Security Deposit to satisfy past
due Rent or to cure any uncured default by Tenant. If Landlord uses all or a
portion of the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied cash
portion of the Security Deposit (plus accrued interest, if Landlord is required
by State law to pay interest on the Security Deposit) to Tenant within forty
five (45) days after the later to occur of: (1) the date Tenant surrenders
possession of the Premises in accordance with this Lease; or (2) the Lease
Expiration Date. Unless required by State law, Landlord shall not be required
to keep the Security Deposit separate from its other accounts.


 


21.2                           LETTER OF
CREDIT. The Security Deposit may be in the form of an irrevocable
standby letter of credit in favor of Landlord as beneficiary. Upon Landlord’s
sole but reasonable determination that an event of default has occurred under
the Lease, Landlord, in addition to all other rights and remedies provided
under the Lease, shall have the right to draw from the letter of credit and
apply the proceeds, or any part thereof, to amounts owing under the Lease;
but Tenant’s liability under the Lease shall thereby be discharged but only to
the extent that such draws cover the amount in default and Tenant shall remain
liable for any amounts that such draws shall be insufficient to pay. Landlord
is not required to exhaust any or all rights and remedies available at law or
equity against Tenant before resorting to the letter of credit. In the event
the letter of credit shall not be utilized for any purposes herein permitted,
then such letter of credit shall be returned by Landlord to Tenant within
forty-five (45) days after the expiration of the Term of this Lease. Landlord
shall reimburse Tenant for the annual cost of such letter of credit, by means
of a rent credit, up to, but not to exceed a credit equal to 1% of the required
amount of the letter of credit, per year, which credit shall be pro-rated
annually against Base Rent due for the entire year. The following terms and
conditions shall govern the letter of credit:


 


(i)                                     The letter
of credit shall be in favor of Landlord, or, at Landlord’s election, the
Landlord’s mortgagee, shall be issued by a commercial bank reasonably
acceptable


 


42

















 


to
Landlord and be in the form substantially similar to the form of
letter of credit attached hereto as EXHIBIT H (the form of which
shall be deemed “reasonably acceptable” to Landlord), provided, however, that
the final maturity date, if any, set forth in any letter of credit acceptable
to Landlord shall not, in any event, diminish the obligation of Tenant to
maintain such an irrevocable letter of credit in favor of Landlord through the
date set forth in subsection 21.2 (ii) below. The issuing bank shall
have a Standard & Poors rating of “A” or better (and Tenant shall
provide evidence annually that the issuer continues to meet this standard, and
if it does not, Tenant shall replace the letter or credit within twenty (20)
days after Landlord’s request with a letter of credit meeting all the
requirements of this Section 21.2, and Tenant’s failure to do so shall be
deemed to be an event of default entitling the beneficiary of the letter of
credit to draw thereon), shall comply with all of the terms and conditions of
this Lease and shall otherwise be in form reasonably acceptable to
Landlord. The initial letter of credit shall have an expiration date not
earlier than August 15, 2004.


 


(ii)                                  The letter
of credit or any replacement letter of credit shall be irrevocable for the term
thereof and shall automatically renew on a year to year basis until a period
ending not earlier than forty-five (45) days after the then current Expiration
Date of this Lease without any action whatsoever on the part of Landlord;
provided that the issuing bank shall have the right not to renew the letter of
credit by giving written notice to Landlord not less than sixty (60) days prior
to the expiration of the then current term of the letter of credit that it does
not intend to renew the letter of credit. Tenant understands that the election
by the issuing bank not to renew the letter of credit shall not, in any event,
diminish the obligation of Tenant to maintain such an irrevocable letter of
credit in favor of Landlord through such date.


 


(iii)                               Landlord, or
the beneficiary of the letter of credit, shall have the right from time to time
to make one or more draws on the letter of credit at any time that Landlord has
determined that an event of default has occurred under this Lease, or that
Landlord is entitled to draw on the letter of credit pursuant to subsection (vi) below.
Funds may be drawn down on the letter of credit upon presentation to the
issuing bank of Landlord’s (or Landlord’s then managing agent’s) certificate
stating as follows:


 


“The undersigned is
entitled to draw on this letter of credit pursuant to that certain Lease dated January    ,
2003 between
                   ,
Landlord, and EXACT Sciences Corporation, Tenant, as amended from time to time”


 


(iv)                              Tenant
acknowledges and agrees (and the letter of credit shall so state) that the
letter of credit shall be honored by the issuing bank without inquiry as to the
truth of the statements set forth in such draw request and regardless of
whether the Tenant disputes the content of such statement.


 


(v)                                 Landlord
shall have the right to transfer the letter of credit to Landlord’s mortgagee,
without cost to landlord or its mortgagee. In the event of a transfer of
Landlord’s interest in the Premises, Landlord shall have the right to transfer
the letter of credit to the transferee without cost to Landlord or its
transferee, and thereupon the Landlord shall, without any further agreement
between the parties, be released by Tenant from all liability therefor, and


 


43

















 


it
is agreed that the provisions hereof shall apply to every transfer or
assignment of said letter of credit to a new landlord.


 


(vi)                              Without
limiting the generality of the foregoing, if the letter of credit expires
earlier than forty-five days after the Expiration Date, or the issuing bank
notifies Landlord that it shall not renew the letter of credit, Landlord shall
accept a renewal thereof or substitute letter of credit (such renewal or
substitute letter of credit to be in effect not later than thirty (30) days
prior to the expiration thereof), irrevocable and automatically renewable as
above provided to the date which is forty-five days after the Expiration Date
upon the same terms as the expiring letter of credit or upon such other terms
as may be acceptable to Landlord. However, if (i) the letter of
credit is not timely renewed, or (ii) a substitute letter of credit,
complying with all of the terms and conditions of this Article 21 is not
timely received, the beneficiary may present such letter of credit to the
issuing bank, and the entire sum so obtained shall be paid to the beneficiary,
to be held until Tenant would otherwise be entitled to the return of the letter
of credit, subject to Landlord’s right to apply such sums as permitted under
this Lease.


 


21.3                           REDUCTION IN
SECURITY DEPOSIT. Provided that there is not then existing an uncured event of
default under this Lease, and provided further that Tenant has not defaulted in
the payment of Rent (after notice and opportunity to cure, if applicable) more
than twice during the term of this Lease, the Security Deposit shall decline by
$100,000 per year on the second, third, fourth, fifth and sixth anniversaries
of the Rent Commencement Date. In no event shall the Security Deposit total
less than $500,000.00.


 


ARTICLE 22


 


BACK-UP GENERATOR


 


22.1                           EXISTING
SYSTEM. Electrical service for the Building is supplied by National Grid. The
existing generator at the Bulding supports life-safety systems within the
Building, and may also be used by other tenants of the Project. Subject to
system capacity, Tenant shall have the right to install two 60-AMP circuits on
the UPS system and back-up generator currently existing at the Building at
Tenant’s sole cost and expense. Landlord makes no representation or warranty
concerning the said UPS system and/or back-up generator and SPECIFICALLY
DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE. TENANT’S USE OF, INTENDED USE OF, AND/OR RELIANCE ON SAID UPS SYSTEM
AND/OR BACK-UP GENERATOR SHALL BE AT TENANT’S SOLE RISK. The UPS system and
back-up generator shall be separately metered and Tenant shall be responsible
for a pro-rata share of electrical and maintenance costs and expenses. Landlord
shall have no obligation to maintain, repair, service or replace said UPS
System and/or back-up generator.


 


22.2                           TENANT’S
GENERATOR. In the event that Tenant requires its own emergency back up
generator, subject to there being an adequate space in Landlord’s sole judgment
where such generator could be located without diminishing the aesthetics of the
Project, and subject to


 


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Tenant’s
obtaining all governmental permits and approvals required in connection
therewith at the sole cost and expense of Tenant, and Landlord’s approval
(which shall not be unreasonably withheld or delayed) of plans and
specifications indicating, without limitation, sizes, profiles, screening and
proposed location, Tenant shall be permitted to install, use and maintain, at
Tenant’s sole cost and expense: (a) one exterior pad mounted emergency
back-up generator to service its needs at the Project consisting of a exterior
concrete pad, together with appurtenant items of equipment including fittings,
switches, and cabling, and such perimeter wooden fencing and landscaping to
shield the generator from view, and acoustical insulation as may be
reasonably required by Landlord (such equipment and appurtenances,
collectively, the “Generator”). The plans submitted to Landlord for approval
shall show any access Tenant may require outside the Premise for vertical
and horizontal access paths from Tenant’s Generator to the Building’s data
closet. Tenant shall be responsible for providing all additional support
required to the structure of the Building. Tenant shall insure that any
penetrations into the Building related to the Generator are properly sealed.
Tenant represents and warrants the Generator is for the sole purpose of storing
diesel fuel and generating emergency power in the event of a power outage in
the Premises. No changes in the specifications or location of the Generator
shall be permitted without the prior written consent of Landlord, such consent
not to be unreasonably withheld, conditioned, or delayed. Notwithstanding
anything to the contrary, the Generator shall be located on grade, and shall
not include any underground storage tank, or piping other than for electrical
transmission.


 


22.3                           Tenant
represents and warrants to Landlord that it is (and upon installation, shall
be) the sole owner of the Generator, free and clear of all liens and
encumbrances and that the Project shall not ever be subject to any liens,
claims or encumbrances, including construction/ mechanic’s lien claims arising
by reason of the presence of the Generator at the Project, or its installation,
maintenance or removal. Landlord expressly disclaims any interest or ownership
to any portion of the Generator, including any fuel, lubricant or component.


 


22.4                           Tenant shall
use the Generator solely for its business in the Premises and not for other
purposes or by unrelated third parties. Tenant’s installation, use, maintenance
and removal of the Generator shall be undertaken by Tenant in full compliance
with all applicable rules, regulations and legal requirements and shall be
subject to all governmental permits and approvals applicable thereto, including
municipal, Town of Marlborough and other governmental approvals, which Tenant
shall secure and maintain at its sole cost and expense, holding Landlord
harmless from any violation thereof.


 


22.5                           Tenant shall
be solely responsible for all costs related to the Generator including, without
limitation, the purchase, installation, maintenance, insurance, and repair of
the Generator, the relocation and /or replacement of any existing landscaping
to accommodate placement of the Generator, and the repair of any damage to the
Building and/or the Project related thereto. The Generator shall be installed
and maintained in a good and workmanlike manner by professional contractors,
and in compliance with the provisions of Article 8. Tenant’s installation,
operation, maintenance and removal of the Generator shall be subject to
Landlord’s inspection and technical review, the reasonable cost of which shall
be borne by Tenant.


 


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22.6                           Tenant
agrees to remove the Generator including the concrete pad and appurtenant
electrical conduits, and to restore the area of the Project and Building
affected by the installation, use and operation of the Generator to its
condition prior to such installation prior to the expiration or earlier
termination of the Lease Term and to provide Landlord at least fifteen days
advance written notice of its intent to undertake such removal, and an
opportunity to be present during such removal and restoration. If Tenant fails
to complete such removal and restoration prior to the expiration of the Lease
Term, then Landlord shall have the right (but not the obligation) to complete
such removal and restoration at Tenant’s cost and expense, and Tenant shall
reimburse Landlord for such cost and expense upon demand.


 


22.7                           Tenant
represents and warrants the Generator and its use and operation shall comply
with all environmental laws, rules and regulations. Tenant shall provide
Landlord with copies of all inspection reports for the Generator (which shall
be conducted at least annually) and copies of any correspondence, notices or
other communications from any governmental authority concerning the Generator.
Subject to the foregoing, Landlord hereby consents to Tenant’s storing diesel
fuel in the fuel tank comprising part of the Generator, such storage being
in strict compliance with all applicable laws, rules and regulations.


 


22.8                           Tenant shall
be responsible for and shall maintain any license, permit or registration
requirements relating to the installation or use of the Generator or the
storage of fuel at the Generator in the above ground storage tank. Tenant
shall, at Landlord’s request, provide a letter representing that no leaks have
occurred and the same shall be subject to Landlord’s inspection. In connection
with any expiration or sooner termination of the Lease, Landlord shall have the
right to cause the Generator to be inspected by an environmental consultant to
determine whether any spills or discharges have occurred which require
remediation. In the event such inspection discloses no need for remediation,
then Landlord shall bear the cost of the inspection. If such inspection
discloses necessary remediation, then Tenant shall bear the cost of the
inspection and shall remediate any identified areas of concern to applicable
standards at its sole cost and expense. In either event, Landlord shall, upon
receipt of the environmental inspection report, deliver a copy of it to Tenant.


 


22.9                           Tenant
agrees to indemnify, defend and hold harmless Landlord and its partners,
employees, contractors, agents and representatives from and against any claims,
loss or damage arising or asserted against Landlord, directly or indirectly, by
reason of the installation, presence, use or removal of the Generator at the
Project. Tenant releases Landlord from all liability for damage to or loss of
all or any portion of the Generator or injury to any third party which may result
from the presence, use or removal of the Generator. Tenant agrees that the
liability insurance policy required to be maintained by Tenant under Article 10
of this Lease shall contain contractual liability and indemnification insurance
coverage, but Tenant’s liability shall not be limited to such coverage.


 


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ARTICLE 23


 


SIGNS


 


Landlord shall provide directory signage for
Tenant in the lobby of the Building. Under no circumstances shall Tenant place
a sign on the exterior or any roof of the Building. Tenant shall also have the
right to be included, along with other tenants, on the monument signage owned
by Landlord located near the entrance to the Project.


 


ARTICLE 24


 


COMPLIANCE WITH LAW


 


Tenant shall not do anything or suffer anything
to be done in or about the Premises or the Project which will in any way
conflict with any law, statute, ordinance, decrees, codes (including without
limitation building, zoning and accessibility codes), common law, judgments,
orders, rulings, awards or other governmental or quasi-governmental rule,
regulation or requirement now in force or which may hereafter be enacted
or promulgated including any “Environmental Laws” as that term is defined in SECTION 29.31
of this Lease (“APPLICABLE LAWS”). Tenant shall promptly provide to Landlord a
copy of any written notice received by Tenant of violation of any federal,
state, county or municipal laws, regulations, ordinances, orders or directives
relating to the use or condition of the Premises. At its sole cost and expense,
Tenant shall promptly comply with all such governmental measures to the extent
that such governmental measures relate to Tenant’s particular use of the
Premises or any Alterations located in the Premises. Should any standard or
regulation now or hereafter be imposed on Landlord or Tenant by a commonwealth,
state, federal or local governmental body charged with the establishment,
regulation and enforcement of occupational, health or safety standards for
employers, employees, landlords or tenants, then Tenant agrees, at its sole
cost and expense, to comply promptly with such standards or regulations to the
extent such standards or regulations relate to Tenant’s particular use of the
Premises or any Alterations located in the Premises; provided that Landlord
shall comply in all material respects with any standards or regulations which
relate to the Base Building or the Building Systems, unless such compliance
obligations are triggered by the Alterations in the Premises, in which event
such compliance obligations shall be at Tenant’s sole cost and expense;
provided further, and notwithstanding the foregoing, that Tenant shall not be
required to make any repair to, modification of, or addition to the Base
Building or the Building Systems except and to the extent required because of
Tenant’s particular use of the Premises. The judgment of any court of competent
jurisdiction or the admission by either party hereto in any judicial action,
regardless of whether this other party is a party thereto, that such party has
violated any of said governmental measures, shall be conclusive of that fact as
between Landlord and Tenant. Landlord shall comply with all Applicable Laws
relating to the Project, Base Building and Building Systems, provided that
compliance with such Applicable Laws is not the responsibility of Tenant under
this Lease, and provided further that Landlord’s failure to comply therewith
would prohibit Tenant from obtaining or maintaining a certificate of occupancy
for the Premises, or would unreasonably and materially affect the safety of
Tenant’s Parties or create a significant health hazard for Tenant’s Parties or
otherwise materially interfere with or materially affect Tenant’s Permitted Use
and enjoyment of the Premises. Landlord shall be permitted to include in
Operating Expenses any costs or expenses incurred by Landlord under this ARTICLE 24
to the


 


47

















 


extent
consistent with, and amortized to the extent required by, the TCCs of SECTION 4.2.4
of this Lease.


 


ARTICLE 25


 


LATE CHARGES


 


If any installment of Rent or any other sum due
from Tenant shall not be received by Landlord or Landlord’s designee when due,
unless such failure is cured within five (5) business days after receipt
of notice from Landlord provided, however, Landlord shall not be required to
give written notice more than two times in any twelve month period (after which
the late charge shall be due without the requirement of notice if Tenant fails
to make such payments on or before the due date), then Tenant shall pay to
Landlord a late charge equal to five percent (5%) of the overdue amount. The
late charge shall be deemed Additional Rent and the right to require it shall
be in addition to all of Landlord’s other rights and remedies hereunder or at
law and shall not be construed as liquidated damages or as limiting Landlord’s
remedies in any manner. In addition to the late charge described above, any
Rent or other amounts owing hereunder which are not paid within five (5) business
days following the due date for Base Rent, or within five (5) business
days following written notice that such amount was not paid when due for
Additional Rent and other sums which may become due under this Lease shall
bear interest from the date when due until paid at an annual interest rate
equal to the Prime Rate (as stated under the column “Money Rates” in THE WALL
STREET JOURNAL) plus four percent (4%); provided, however, in no event shall
such annual interest rate exceed the highest annual interest rate permitted by
Applicable Law.


 


ARTICLE 26


 


LANDLORD’S RIGHT TO CURE
DEFAULT: PAYMENTS BY TENANT


 


26.1                           LANDLORD’S
CURE. All covenants and agreements to be kept or performed by Tenant under this
Lease shall be performed by Tenant at Tenant’s sole cost and expense and without
any reduction of Rent, except to the extent, if any, otherwise expressly
provided herein. If Tenant shall fail to perform any obligation under this
Lease, and such failure shall continue in excess of the time allowed under SECTION 19.1.2,
above, unless a specific time period is otherwise stated in this Lease,
Landlord may, but shall not be obligated to, make any such payment or perform any
such act on Tenant’s part without waiving its rights based upon any
default of Tenant and without releasing Tenant from any obligations hereunder.


 


26.2                           TENANT’S
REIMBURSEMENT. Except as may be specifically provided to the contrary in
this Lease, Tenant shall pay to Landlord, within ten (10) days following
delivery by Landlord to Tenant of receipts therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant’s defaults pursuant to the provisions
of SECTION 26.1; and (ii) sums equal to all losses, costs,
liabilities, damages and expenses referred to in ARTICLE 10 of this Lease.
All of such sums shall be deemed Additional Rent and the right to require it
shall be in addition to all of Landlord’s other rights and remedies hereunder
or at law and shall not be construed as liquidated damages or as


 


48

















 


limiting
Landlord’s remedies in any manner. Tenant’s obligations under this SECTION 26.2
shall survive the expiration or sooner termination of the Lease Term.


 


ARTICLE 27


 


ENTRY BY LANDLORD


 


Landlord reserves the right during normal
business hours, upon no less than 24 hours prior notice to Tenant (except in
the case of an emergency), and in compliance with Tenant’s reasonable security
measures, to enter the Premises to (i) inspect them; (ii) show the
Premises to prospective purchasers, current or prospective mortgagees, ground
or underlying lessors or insurers or, during the last nine (9) months of
the Lease Term, tenants, or prospective tenants; (iii) post notices of
nonresponsibility; or (iv) improve or repair the Premises or the Building,
or for structural alterations, repairs or improvements to the Building or the
Building’s systems and equipment. Notwithstanding anything to the contrary
contained in this ARTICLE 27, Landlord may enter the Premises at any
time to (A) perform services required of Landlord, including
janitorial service (unless Tenant has given Landlord written notice that it
does not want janitorial service provided in a particular area ); (B) take
possession, in compliance with law, due to any breach of this Lease in the
manner provided herein; and (C) during normal business hours, upon
forty-eight (48) hours prior notice, perform any covenants of Tenant which
Tenant fails to perform (after notice, and an opportunity to cure, if
expressly provided in this Lease). Landlord may make any such entries
without the abatement of Rent and may take such reasonable steps as
required to accomplish the stated purposes. In connection with any entry into
the Premises, Landlord agrees to make reasonable efforts to minimize
interference with Tenant’s operations in the Premises caused by such entry and
to minimize the duration of any such interference. Tenant hereby waives any
claims for damages or for any injuries or inconvenience to or interference with
Tenant’s business, lost profits, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby, except with respect to
damage to Tenant’s personal property or the amount of any physical injury, but
only to the extent such damage is caused by the negligent acts or omissions or
willful misconduct of Landlord, its agents, employees and contractors, and in
such event, only the extent not covered by Tenant’s insurance required to be
carried hereunder. For each of the above purposes, Landlord shall at all times
have a key or card key with which to unlock all the doors in the Premises,
excluding Tenant’s vaults, safes and special security areas designated in
advance by Tenant (the “SECURITY Areas”). Notwithstanding anything set forth in
this ARTICLE 27 to the contrary, Landlord shall have no access or
inspection rights as to the Security Areas, except in the event of an emergency
where such entry is reasonably required. In an emergency, Landlord and its
agents, employees and contractors shall have the right to use any means that
Landlord may deem proper to open the doors in and to the Premises,
provided Landlord has reasonably attempted, but to no avail, to obtain Tenant’s
immediate cooperation in connection therewith. Any entry into the Premises by
Landlord in the manner hereinbefore described shall not be deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an actual
or constructive eviction of Tenant from any portion of the Premises. No provision
of this Lease shall be construed as obligating Landlord to perform any
repairs, alterations or decorations except as otherwise expressly agreed to be
performed by Landlord herein.


 


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ARTICLE 28


 


TENANT PARKING


 


Tenant and the Tenant’s parties (including
Tenant’s visitors) shall be entitled to utilize, without charge, and on a
non-exclusive basis, commencing on the Lease Commencement Date, the amount of
unreserved and unassigned parking spaces set forth in SECTION 9 of the
Summary. Tenant shall cooperate with Landlord to ensure that Tenant’s agents,
servants, employees, and contractors (collectively, “TENANT PARTIES”) comply
with the Rules and Regulations which are prescribed from time to time by
Landlord for the orderly operation and use of the parking areas where the
parking spaces are located, including Tenant’s cooperation in seeing that
Tenant’s employees and visitors also comply with such Rules and
Regulations. Landlord specifically reserves the right to make reasonable
changes to the size, configuration, design, layout and all other aspects of the
Project parking areas and improvements at any time upon thirty (30) days’ prior
written notice to Tenant and Tenant acknowledges and agrees that Landlord may,
without incurring any liability to Tenant and without any abatement of Rent
under this Lease, from time to time, temporarily close-off or restrict access
to portions of the Project parking areas for purposes of permitting or
facilitating any such construction, alteration or improvements; provided,
however, that Landlord will undertake reasonable efforts to minimize the number
of parking spaces affected by and the duration of any such temporary
restrictions on use of the parking areas and provided further that Tenant is
provided commercially reasonable access to the Building at all times. In no
event shall Tenant’s Share of parking on the Project be permanently reduced
below any minimum parking ratio required under Applicable Laws or Tenant’s
parking allocation set forth in Section 9 of the Lease Summary, or in any
manner which would materially, adversely interfere with Tenant’s use and
occupancy of the Premises. Landlord may delegate its responsibilities
hereunder to a parking operator in which case such parking operator shall have
all the rights of parking area control attributed hereby to the Landlord. The
parking spaces available to Tenant pursuant to this ARTICLE 28 are
provided to Tenant solely for use by the Tenant Parties and such spaces may not
be transferred, assigned, subleased or otherwise alienated by Tenant, except on
a pro-rata basis in connection with an assignment or subletting of the Premises
permitted or approved in accordance with the TCCs of ARTICLE 14. Tenant
shall not utilize any of the Project parking areas for the overnight storage of
vehicles owned by Tenant or its employees, agents or contractors, although
Tenant may permit its employees to occasionally leave their personal
automobiles in the parking areas when traveling on business for periods under
one week at a time, provided that Tenant does not exceed its parking allocation
as set forth in Section 9 of the Summary.


 


ARTICLE 29


 


MISCELLANEOUS PROVISIONS


 


29.1                           TERMS;
CAPTIONS. The words “Landlord” and “Tenant” as used herein shall include the
plural as well as the singular. The necessary grammatical changes required to
make the provisions hereof apply either to corporations or partnerships or
individuals, men or women, as the case may require, shall in all cases be
assumed as though in each case fully expressed. The captions of Articles and
Sections are for convenience only and shall not be deemed to limit, construe,
affect or alter the meaning of such Articles and Sections.


 


50

















 


29.2                           BINDING
EFFECT. Subject to all other provisions of this Lease, each of the covenants,
conditions and provisions of this Lease shall extend to and shall, as the case may require,
bind or inure to the benefit not only of Landlord and of Tenant, but also of their
respective heirs, personal representatives, successors or assigns, provided
this clause shall not permit any assignment by Tenant contrary to the
provisions of ARTICLE 14 of this Lease.


 


29.3                           NO AIR
RIGHTS. No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant by this Lease.
If at any time any windows of the Premises are temporarily darkened or the
light or view therefrom is obstructed by reason of any repairs, improvements,
maintenance or cleaning in or about the Project, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant’s
obligations under this Lease.


 


29.4                           TRANSFER OF
LANDLORD’S INTEREST. Tenant acknowledges that Landlord has the right to
transfer all or any portion of its interest in the Project or Building and in
this Lease, and Tenant agrees that in the event of any such transfer, Landlord
shall automatically be released from all liability under this Lease not accrued
on or prior to the date of the transfer so long as the transferee has agreed to
assume Landlord’s future obligations under the Lease, and Tenant agrees to look
solely to such transferee for the performance of Landlord’s obligations
hereunder for events occurring after the date of transfer and to attorn to such
transferee. Tenant further acknowledges that Landlord may assign its
interest in this Lease to a mortgage lender as additional security. Landlord
acknowledges that to the extent any Landlord obligation or liability under this
Lease is accrued prior to the date of such transfer or assignment which is not
assumed by the transferee or assignee, the same shall remain an obligation of
Landlord.


 


29.5                           PROHIBITION
AGAINST RECORDING. Neither this Lease, nor any memorandum, affidavit or other
writing with respect thereto, shall be recorded by Tenant or by anyone acting
through, under or on behalf of Tenant, without Landlord’s written consent
thereto. Notwithstanding the foregoing, at Tenant’s request, Landlord shall
execute a Notice of Lease in recordable form.


 


29.6                           LANDLORD’S
TITLE. Landlord’s title is and always shall be paramount to the title of
Tenant. Nothing herein contained shall empower Tenant to do any act which can,
shall or may encumber the title of Landlord.


 


29.7                           RELATIONSHIP
OF PARTIES. Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal
and agent, partnership, joint venturer or any association between Landlord and
Tenant.


 


29.8                           APPLICATION
OF PAYMENTS. Landlord shall have the right to apply payments received from
Tenant pursuant to this Lease, regardless of Tenant’s designation of such
payments, to satisfy any obligations of Tenant hereunder, in such order and amounts
as Landlord, in its sole discretion, may elect.


 


29.9                           TIME OF
ESSENCE. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.


 


51

















 


29.10                     PARTIAL
INVALIDITY. If any term, provision or condition contained in this Lease shall,
to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, provision or condition to persons or circumstances other
than those with respect to which it is invalid or unenforceable, shall not be
affected thereby, and each and every other term, provision and condition of
this Lease shall be valid and enforceable to the fullest extent possible
permitted by law.


 


29.11                     NO WARRANTY.
In executing and delivering this Lease, Tenant has not relied on any
representations (except as specifically set forth in this Lease), including,
but not limited to, any representation as to the amount of any item comprising
Additional Rent or the amount of the Additional Rent in the aggregate or that
Landlord is furnishing the same services to other tenants, at all, on the same
level or on the same basis, or any warranty or any statement of Landlord which
is not set forth herein or in one or more of the exhibits attached hereto.


 


29.12                     LANDLORD
EXCULPATION. The liability of Landlord or the Landlord Parties to Tenant for
any default by Landlord under this Lease or arising in connection herewith or
with Landlord’s operation, management, leasing, repair, renovation, alteration
or any other matter relating to the Project or the Premises shall be limited
solely and exclusively to an amount which is equal to the interest of Landlord
in the Project or to insurance proceeds received by Landlord. Neither Landlord,
nor any of the Landlord Parties shall have any personal liability relating to
the Premises, the Project, the Building or this Lease, and Tenant hereby
expressly waives and releases such personal liability on behalf of itself and
all persons claiming by, through or under Tenant. The limitations of liability
contained in this SECTION 29.12 shall inure to the benefit of Landlord’s
and the Landlord Parties’ present and future partners, beneficiaries, officers,
directors, trustees, shareholders, agents and employees, and their respective
partners, heirs, successors and assigns. Under no circumstances shall any
present or future partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust), or
member (if Landlord is a limited liability company) have any liability for the
performance of Landlord’s obligations under this Lease. Notwithstanding any
contrary provision herein, neither Landlord nor the Landlord Parties shall be
liable under any circumstances for injury or damage to, or interference with,
Tenant’s business, including but not limited to, loss of profits, loss of rents
or other revenues, loss of business opportunity, loss of goodwill or loss of
use, in each case, however occurring.


 


29.13                     ENTIRE
AGREEMENT. It is understood and acknowledged that there are no oral agreements
between the parties hereto affecting this Lease and this Lease constitutes the
parties’ entire agreement with respect to the leasing of the Premises and
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understandings, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. None of the
TCCs of this Lease can be modified, deleted or added to except in writing
signed by the parties hereto.


 


29.14                     RIGHT TO
LEASE. Landlord reserves the absolute right to effect such other tenancies in
the Project as Landlord in the exercise of its sole business judgment shall
determine to best promote the interests of the Building or Project. Tenant does
not rely on the fact, nor does Landlord represent, that any specific tenant or
type or number of tenants shall, during the Lease Term, occupy any space in the
Building or Project.


 


52

















 


29.15                     FORCE
MAJEURE. Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God (including inclement weather), inability to obtain
utilities (subject to the provisions of SECTION 6.3), labor, or materials
or reasonable substitutes therefor, governmental actions, civil commotions,
fire or other casualty, and other causes beyond the reasonable control of the
party obligated to perform, except with respect to the obligations imposed with
regard to Rent and other charges to be paid by Tenant pursuant to this Lease
(collectively, a “FORCE MAJEURE”), notwithstanding anything to the contrary
contained in this Lease, shall excuse the performance of such party for a
period equal to any such prevention, delay or stoppage and, therefore, if
this Lease specifies a time period for performance of an obligation of either
party, that time period shall be extended by the period of any delay in such
party’s performance caused by a Force Majeure; provided, however, such
extension shall not exceed sixty (60) consecutive days.


 


29.16                     NOTICES. All
notices, demands, statements, designations, approvals or other communications
(collectively, “NOTICES”) given or required to be given by either party to the
other hereunder or by law shall be in writing, shall be (A) sent by United
States certified or registered mail, postage prepaid, return receipt requested
(“MAIL”), (B) transmitted by telecopy, if such telecopy is promptly
followed by a Notice sent by Mail or recognized overnight courier, (C) delivered
by a nationally recognized overnight courier, or (D) delivered personally.
Any Notice shall be sent, transmitted, or delivered, as the case may be,
to Tenant at the appropriate address set forth in SECTION 10 of the
Summary, or to such other place as Tenant may from time to time designate
in a Notice to Landlord, or to Landlord at the addresses set forth below, or to
such other places as Landlord may from time to time designate in a Notice
to Tenant. Any Notice will be deemed given (i) three (3) days after
the date it is posted if sent by Mail, (ii) the date the telecopy is
transmitted, (iii) the date the overnight courier delivery is made, or (iv) the
date personal delivery is made or attempted to be made. If Tenant is required
under any separate written agreement between Tenant and a mortgagee or ground
lessor to notify such party of any default by Landlord under this Lease, then
Tenant shall give to such mortgagee or ground or underlying lessor written
notice of any default by Landlord under the TCCs of this Lease by registered or
certified mail, and such mortgagee or ground or underlying lessor shall be
given a reasonable opportunity to cure such default prior to Tenant’s
exercising any remedy available to Tenant. As of the date of this Lease, any
Notices to Landlord and Tenant must be sent, transmitted, or delivered, as the
case may be, to the following addresses:


 


LANDLORD:


 


770 Township Line Road 

Suite 150 

Yardley, PA 19067 

Attn: John L. Brogan


 


with copies to: 

Berwind Property Group, Ltd. 

1500 Market Street 

3000 Centre Square West 

Philadelphia, PA 19102 

Attention:  Loretta M. Kelly 

General Counsel


 


53

















 


	
   

  	
  TENANT:
  

  
	
   

  	
   

  
	
   

  	
  Prior
  to July 1, 2003 

  EXACT Sciences Corporation 

  63 Great Road 

  Maynard, MA 01754 

  Attn: John McCarthy

  
	
   

  	
   

  
	
   

  	
  From
  and After July 1 to the Premises: 

  
	
   

  	
  Attn:  John McCarthy 

  	
   

  
	
   

  	
   

  
	
   

  	
  With
  copies to:

  
	
   

  	
   

  
	
   

  	
  Testa,
  Hurwitz & Thibeault, LLP 

  125 High Street - Oliver Street Tower 

  Boston, MA  02110 

  Attn:  Real Estate Department

  



 


29.17                     JOINT AND
SEVERAL. If there is more than one Tenant, the obligations imposed upon Tenant
under this Lease shall be joint and several.


 


29.18                     AUTHORITY.
Each individual executing this Lease hereby represents and warrants that
Landlord or Tenant, as applicable, is a duly formed and existing entity
qualified to do business in the Commonwealth of Massachusetts and has full
right and authority to execute and deliver this Lease and that each person
signing on behalf of Landlord or Tenant is authorized to do so.


 


29.19                     ATTORNEYS’
FEES. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease,
or because of the breach of any provision of this Lease or for any other relief
against the other, then all costs and expenses, including reasonable attorneys’
fees, incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action and shall be enforceable
whether or the action is prosecuted to judgment or disposed of through
settlement or otherwise.


 


29.20                     GOVERNING
LAW. This Lease shall be construed and enforced in accordance with the laws of
the Commonwealth of Massachusetts. Except as otherwise provided herein, all
disputes arising hereunder, and all legal actions and proceedings related
thereto, shall be solely and exclusively initiated and maintained in the court
with the appropriate jurisdiction located in the City of Marlborough, County of
Middlesex, Commonwealth of Massachusetts. IN ANY ACTION OR PROCEEDING ARISING
HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE JURISDICTION OF ANY
COMPETENT COURT WITHIN THE COMMONWEALTH OF MASSACHUSETTS, AND (II) SERVICE OF
PROCESS BY ANY MEANS AUTHORIZED BY MASSACHUSETTS LAW. IN THE EVENT LANDLORD


 


54














 


COMMENCES
ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF BASE RENT OR ADDITIONAL
RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION
(UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH PROCEEDING OR ACTION,
BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.


 


29.21   SUBMISSION OF LEASE. Submission of this
instrument for examination or signature by Tenant does not constitute a
reservation of, option for or option to lease, and it is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.


 


29.22   BROKERS. Landlord and Tenant hereby warrant
to each other that they have had no dealings with any real estate broker or
agent in connection with the negotiation of this Lease, excepting only the real
estate brokers or agents specified in SECTION 12 of the Summary (the “BROKERS”),
and that they know of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Landlord shall pay a commission or brokerage
fee to the Brokers pursuant to a separate written agreement between Landlord
and Brokers. Each party agrees to indemnify and defend the other party against
and hold the other party harmless from any and all claims, demands, losses,
liabilities, lawsuits, judgments, costs and expenses (including without
limitation reasonable attorneys’ fees) with respect to any leasing commission
or equivalent compensation alleged to be owing on account of any dealings with
any real estate broker or agent, other than the Brokers, occurring by, through,
or under the indemnifying party.


 


29.23   INDEPENDENT COVENANTS. As a material
inducement for Landlord and Tenant to enter into this Lease, both Landlord and
Tenant acknowledge and agree that this Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any currently existing or
hereinafter enacted statute or caselaw to the contrary and agrees that if
Landlord fails to perform its obligations set forth herein, except as otherwise
expressly set forth in this Lease, Tenant shall not be entitled to make any
repairs or perform any acts hereunder at Landlord’s expense or to any setoff of
the Rent or other amounts owing hereunder against Landlord or terminate this
Lease as a result of Landlord’s failure to perform or refraining from
performing any covenant or obligation of Landlord hereunder.


 


29.24   PROJECT OR BUILDING NAME AND SIGNAGE.
Landlord shall have the right at any time to change the name of the Project or
Building and to install, affix and maintain any and all signs on the exterior
and on the interior of the Project or Building as Landlord may, in Landlord’s
sole discretion, desire. Tenant shall not use the name of the Project or
Building or use pictures or illustrations of the Project or Building in
advertising or other publicity or for any purpose other than as the address of
the business to be conducted by Tenant in the Premises, without the prior
written consent of Landlord.


 


29.25
COUNTERPARTS. This Lease may be executed in counterparts with the same effect
as if both parties hereto had executed the same document. Both counterparts
shall be construed together and shall constitute a single lease. Signatures may
be made by facsimile provided the original is promptly delivered to the other
party by overnight courier.


 


55

















 


29.26   CONFIDENTIALITY. Tenant hereby acknowledges
that the contents of this Lease and any related documents are confidential
information, and Tenant shall keep such confidential information strictly
confidential and shall not disclose such confidential information to any person
or entity other than Tenant’s partners, administrators, consultants, financial,
legal, and space planning consultants, a prospective Transferee, and except as
required by Applicable Law or in connection with a dispute or litigation
hereunder or as required by subpoena, or as required to be disclosed publicly
by Tenant through filings with the Securities and Exchange Commission.


 


29.27   TRANSPORTATION MANAGEMENT. Tenant shall
comply with all present or future programs required by Applicable Law (provided
Landlord provides Tenant with sufficient prior notice of such program’s
requirements) which are intended to manage parking, transportation or traffic
in and around the Project, and in connection therewith, Tenant shall take
responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Landlord, any
governmental transportation management organization or any other
transportation-related committees or entities.


 


29.28   BUILDING RENOVATIONS. Except as expressly
set forth in SECTION 1.1 and in any other provisions of this Lease expressly
setting forth a maintenance obligation of Landlord, Landlord has no obligation
and has made no promises to alter, remodel, improve, renovate, repair or
decorate the Premises, Building, or any part thereof and Tenant acknowledges
that, except as expressly set forth in SECTION 5.4, no representations or
warranties respecting the condition of the Premises or the Building have been
made by Landlord to Tenant. However, Tenant hereby acknowledges that Landlord
may during the Lease Term renovate, improve, alter, or modify (collectively,
the “RENOVATIONS”) the Project, the Building and/or the Premises including
without limitation the parking structure, Common Areas, systems and equipment,
roof, and structural portions of the same. Tenant hereby agrees that such
Renovations and Landlord’s actions in connection with such Renovations shall in
no way constitute a constructive eviction of Tenant nor entitle Tenant to any
abatement of Rent. Landlord shall have no responsibility or for any reason be
liable to Tenant for any direct or indirect injury to or interference with
Tenant’s business arising from the Renovations, nor shall Tenant be entitled to
any compensation or damages from Landlord for loss of the use of the whole or
any part of the Premises or of Tenant’s personal property or improvements
resulting from the Renovations or Landlord’s actions in connection with such
Renovations, or for any inconvenience or annoyance occasioned by such
Renovations or Landlord’s actions provided the performance of such Renovations
does not materially adversely interfere with Tenant’s use or occupancy of the
Premises, the Project or the Common Areas for the Permitted Use.


 


29.29   NO VIOLATION. Landlord and Tenant hereby
warrant and represent that neither its execution of nor performance under this
Lease shall cause either party to be in violation of any agreement, instrument,
contract, law, rule or regulation by which it is bound, and each party shall
protect, defend, indemnify and hold the other harmless against any claims,
demands, losses, damages, liabilities, costs and expenses, including, without
limitation, reasonable attorneys’ fees and costs, arising from the other party’s
breach of this warranty and representation.


 


29.30   COMMUNICATIONS AND COMPUTER LINES. Landlord
has provided certain data, voice, and telecommunications infrastructure to the
boundary of the Premises, which Tenant


 


56

















 


accepts
on an “as-is” basis, and Tenant shall be responsible for expansion and maintenance
of such infrastructure within the Premises. Tenant shall have the use of any
existing communications or computer wires and cables (collectively, the “LINES”)
located on the fifth and sixth floor of the Building at Tenant’s sole risk,
cost and expense, and, subject to the provisions of ARTICLE 8 (including,
without limitation, Landlord’s conditioning its approval upon the restoration
of any portion of the Project disturbed by such installation) shall have the
right at its sole cost and expense to install its own wires, cables, conduits,
auxiliary equipment and other related equipment and facilities within the
Premises.


 


29.31   HAZARDOUS MATERIALS. Landlord and Tenant
agree as follows with respect to the existence or use of “Hazardous Material”
in or on the Premises and/or the Project.


 


29.31.1   Tenant, at its sole cost and expense, shall
comply with all laws, statutes, ordinances, rules and regulations of any local,
state or federal governmental authority (including, without limitation, the
Fire Department of the City of Marlborough, and the Local Emergency Planning Committee,
if any) having jurisdiction concerning environmental, health and safety matters
(collectively, “ENVIRONMENTAL LAWS”), including, but not limited to, any discharge
into the air, surface, water, sewers, soil or groundwater of any Hazardous
Material (as defined in SUBSECTION 29.31.3, below), whether within or outside
the Premises, within the Project. Notwithstanding the foregoing, nothing
contained in this Lease requires, or shall be construed to require, Tenant to
incur any liability related to or arising from environmental conditions (except
to the extent set forth in SUBSECTION 4.2.4 (V)): (i) for which the Landlord is
responsible pursuant to the express terms of this Lease, (ii) which existed
within the Premises or the Project prior to the date Tenant takes possession of
the Premises, (iii) which are unrelated to the acts or omissions of Tenant, its
employees, officers, contractors, representatives or agents (individually
and/or collectively, “Tenant Party”),or (iv) which were caused solely by a
third party which is not a Tenant Party.


 


29.31.2   Tenant shall not cause or permit any
Hazardous Material to be brought upon, handled, kept, stored or used in or
about the Premises or otherwise in the Project by Tenant, its agents,
employees, contractors or invitees, except for Hazardous Materials which are
typically used in the operation of offices, and except for Hazardous Material
which are used by Tenant in connection with the Permitted Use and which are
specifically listed on EXHIBIT G attached hereto, provided that all such
materials are stored, used and disposed of in strict compliance with all
applicable Environmental Laws and with good scientific and medical practice,
and provided further that all such materials shall be removed from the Premises
and the Project prior to the expiration or earlier termination of this Lease in
accordance with all applicable laws at the sole cost and expense of Tenant.
Subject to the provisions of this SECTION 29.31, Tenant shall update Landlord
in writing, monthly, or more often upon Landlord’s request, with increases,
changes and/or additions to EXHIBIT G (the “New Materials”) made after the date
of this Lease, and subject to the provisions of this SECTION 29.31, the update
shall be deemed to be incorporated into EXHIBIT G unless Landlord subsequently
objects thereto. If, upon Landlord’s receipt of notification from Tenant
regarding Tenant’s use of New Materials, Landlord objects to Tenant’s use of
any of the New Materials, Landlord and Tenant shall meet to determine what
protocols Tenant may institute in order to satisfy any concerns raised by
Landlord, and Tenant shall either (i) implement any such protocols reasonably
suggested by Landlord and/or Landlord’s consultants, or (ii) cease utilizing
the particular New Material(s) to


 


57

















 


which
Landlord objected and promptly remove same from the Premises and the Project
upon written notice from Landlord. Notwithstanding anything to the contrary,
Tenant shall not cause or permit any radioactive materials or radioactive
isotopes to be brought upon, handled, kept, stored or used in or about the
Premises or otherwise in the Project by Tenant, its agents, employees, contractors
or invitees without the prior written consent of Landlord (which consent shall
not be unreasonably withheld, conditioned or delayed, in light of the Permitted
Use and the safety protocols specifically identified by and utilized by
Tenant). Notwithstanding the foregoing, with respect to any of Tenant’s
Hazardous Material which Tenant does not properly handle, store or dispose of
in compliance with all applicable Environmental Laws and good scientific and
medical practice, Tenant shall, upon written notice from Landlord, no longer
have the right to bring such material into the buildings or the Project until
Tenant has demonstrated, to Landlord’s reasonable satisfaction, that Tenant has
implemented programs to thereafter properly handle, store or dispose of such
material.


 


29.31.3   As used herein, the term “Hazardous Material”
means any flammable substances, explosives, and radioactive materials, and any hazardous
or toxic substance, material or waste or petroleum derivative which is or
becomes regulated by any Environmental Law, specifically including live organisms,
viruses and fungi, medical waste, and so-called “biohazard” materials. The term
“Hazardous Material” includes, without limitation, any material or substance
which is (i) designated as a “hazardous substance” pursuant to Section 1311 of
the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ii) defined
as a “hazardous waste” pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
Section 6903), (iii) defined as a “hazardous substance” pursuant to Section 101
of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv) defined as “hazardous
substance” or “oil” under Chapter 21E of the General Laws of Massachusetts, or
(v) a so-called “biohazard” or medical waste, or is contaminated with blood or
other bodily fluids; and “Environmental Laws” include, without limitation, the
laws listed in the preceding clauses (i) through (iv).


 


29.31.4   Any increase in the premium for necessary
insurance on the Premises or the Project which arises from Tenant’s use and/or
storage of these Hazardous Materials shall be solely at Tenant’s expense.
Tenant shall procure and maintain at its sole expense such additional insurance
as may be necessary to comply with any requirement of any Federal, State or
local government agency with jurisdiction.


 


29.31.5   Tenant hereby covenants and agrees to
indemnify, defend and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities or losses
(collectively “Losses”) which Landlord may reasonably incur arising out of
contamination of real estate, the Project, or other property not a part of the
Premises, which contamination arises as a result of: (i) the presence of
Hazardous Material in the Premises or the Project, the presence of which is
caused or permitted by Tenant, its agents, employees, contractors or invitees,
or (ii) from a breach by Tenant of its obligations under this SECTION 29.31.
This indemnification of Landlord by Tenant includes, without limitation,
reasonable costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by
any federal, state or local governmental agency or


 


58

















 


political
subdivision because of Hazardous Material present in the soil or ground water
on or under the Premises based upon the circumstances identified in the first
sentence of this SUBSECTION 29.31.5. The indemnification and hold harmless
obligations of Tenant under this SUBSECTION 29.31.5 shall survive any termination
of this Lease. Without limiting the foregoing, if the presence of any Hazardous
Material in the buildings or otherwise in the Project caused or permitted by
Tenant results in any contamination of the Premises, Tenant shall give
immediate notice thereof to Landlord and shall promptly take all actions at its
sole expense as are necessary to return the Premises to a condition which complies
with all Environmental Laws; provided that Landlord’s approval of such actions
shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions, in Landlord’s reasonable discretion, would not potentially
have any materially adverse long-term or short-term effect on the Premises,
and, in any event, Landlord shall not withhold its approval of any proposed
actions which are required by applicable Environmental Laws. Notwithstanding
anything to the contrary in the Lease contained, the foregoing indemnity shall
not apply to: (i) any Hazardous Materials which exist in the Premises or
elsewhere in the Project prior to and as of the Lease Commencement Date, or
(ii) any Hazardous Materials introduced to the Project by other tenants within
their respective premises, or (iii) any Hazardous Materials the presence of
which were not caused or permitted by the acts or omissions of Tenant, its employees,
agents, consultants and/or contractors.


 


29.31.6   Notwithstanding anything to the contrary in
this Lease, if Tenant fails to cure any breach or default of this SECTION 29.31
within five (5) business days after written notice from Landlord (or if such default
cannot be cured within said five day period, to commence to cure said period
during said five day period and diligently proceed to cure such default within
thirty (30) days), such failure shall constitute a default under this Lease,
and in the event of such a default, in addition to any other remedies available
to Landlord under this Lease, Landlord may terminate this Lease upon ten (10)
days written notice to Tenant.


 


29.31.7   Tenant shall, after Tenant, and anyone
claiming by, through or under Tenant, vacate the Premises, and immediately
prior to the time that Tenant delivers the Premises to Landlord: (i) cause the
Premises to be decommissioned in accordance with the regulations of the U.S.
Nuclear Regulatory Commission and/or the Massachusetts Department of Public
Health for the control of radiation; (ii) provide a written report by a
licensed industrial hygienist or equivalent to confirm that the Premises
contain no contaminants per the National Institute of Health (or its successor
organization) rules and regulations on bio-safety as administered by the
Department of Health; and (iii) provide a copy of its most current chemical
waste removal manifest and a certification from an officer of Tenant that no
chemicals remain in the Premises.


 


29.31.8   Landlord shall have the right from time to
time to conduct (or retain one or more consultants to conduct) environmental
audits of the Premises to ensure and verify Tenant’s compliance with this
SECTION 29.31, upon three (3) business days advance written notice to Tenant.
Tenant agrees to cooperate with the person or entity conducting said audit and
to supply all information reasonably requested in connection therewith. Tenant
shall pay the cost of such audit if such audit discloses that Tenant has
materially violated any of the provisions of this SECTION 29.31; otherwise, the
cost of said audit shall be paid for by Landlord.


 


29.31.9   Tenant shall not dispose of any Hazardous
Materials at the Project (including, without limitation, placing, or permitting
any Hazardous Materials to be placed into


 


59

















 


the
sewer system servicing the Project), except as permitted by law in approved and
environmentally safe containers which Tenant will dispose of off-site. Tenant
shall give Landlord written notice annually (and from time to time, if changed)
of the name, address and telephone number of the contractor that will be
responsible for removal of all Hazardous Materials disposed of by Tenant from the
Premises and/or the Project.


 


29.31.10  Tenant shall provide Landlord with a copy of
its Chemical Hygiene Plan (as set forth in OSHA 1910.1450) annually, or more
often as and when it is amended.


 


29.32   DEVELOPMENT OF THE PROJECT.


 


29.32.1   SUBDIVISION. Subject to the requirements of
ARTICLE 28, Landlord reserves the right to further subdivide all or a portion
of the Project and to add to, remove, or otherwise change the parking areas and
Common Areas (subject to the restrictions set forth in SECTION 1.3, above), so
long as such adjustment does not materially interfere with Tenant’s use,
enjoyment or occupancy of the Premises. In the event of any such change, an
equitable adjustment to the Tenant’s Share, if appropriate, shall be made. In
the event of a reduction in the Common Areas, the square footage in the Project
and the Premises shall be recalculated, if applicable, as set forth in SECTION
1.3, above.


 


29.32.2   OTHER IMPROVEMENTS. If portions of the
Project or property adjacent to the Project (collectively, the “OTHER
IMPROVEMENTS”) are owned by an entity other than Landlord, Landlord, at its
option, may enter into an agreement with the owner or owners of any or all of
the Other Improvements to provide (i) for reciprocal rights of access and/or
use of the Project and the Other Improvements, (ii) for the common management,
operation, maintenance, improvement and/or repair of all or any portion of the
Project and the Other Improvements, (iii) for the allocation of a portion of
the Direct Expenses to the Other Improvements and the operating expenses and
taxes for the Other Improvements to the Project, and (iv) for the use or
improvement of the Other Improvements and/or the Project in connection with the
improvement, construction, and/or excavation of the Other Improvements and/or
the Project, provided, however, that if any Direct Expenses related to the
Other Improvements are being allocated to the Project, the limitations set
forth in Section 4 above shall apply to such Direct Expenses, and provided
further, that the Additional Rent payable by Tenant pursuant to Section 4 of
this Lease shall not increase solely as a result of such allocation (i.e. shall
not increase more than it would have increased in the absence of such
allocation). Nothing contained herein shall be deemed or construed to limit or
otherwise affect Landlord’s right to convey all or any portion of the Project
or any other of Landlord’s rights described in this Lease.


 


29.32.3   CONSTRUCTION OF PROJECT AND OTHER
IMPROVEMENTS. Tenant acknowledges that portions of the Project and/or the Other
improvements may be under construction following Tenant’s occupancy of the
Premises, and that such construction may result in levels of noise, dust,
obstruction of access, etc. which are in excess of that present in a fully
constructed project. Landlord agrees to exercise commercially reasonable
efforts to minimize any interference with Tenant’s use and enjoyment of the
Premises associated with such construction. Tenant hereby waives any and all
rent offsets or claims of constructive eviction which may arise in connection
with such construction, provided such construction by Landlord


 


60

















 


does
not interfere with Tenant’s use or occupancy of the Premises, the Project or
the Common Areas for the Permitted Use.


 


29.33   NO CONSEQUENTIAL DAMAGES. Notwithstanding
any provision of this Lease to the contrary, except as specifically set forth
in ARTICLE 16 of this lease, under no circumstances shall either party hereto
be liable to the other party for any consequential, incidental, punitive or
special damages.


 


29.34   COMPLIANCE WITH TIF AGREEMENT. Landlord and
Tenant acknowledge that there is a Tax Increment Financing Agreement by and
between the City of Marlborough and BNP Leasing Corporation dated January 31,
1997, as amended by an Agreement by and between the City of Marlborough and
3Com Corporation dated February 25, 2002, concerning the Property (the “TIF
Agreement”). Tenant agrees to provide Landlord on or before July 10 annually
with a statement substantially in the form attached hereto as EXHIBIT F for the
prior fiscal year ending June 30, and a statement setting forth the total
number of jobs located at the Premises for the same period, and such other
information as may reasonably be requested by Landlord to facilitate Landlord’s
compliance with any requirements of the TIF Agreement.


 


29.35   TENANT’S FINANCIAL CONDITION. Within ten
(10) days after written request from Landlord, but not more than once in any
twelve month period, Tenant shall deliver to Landlord such financial statements
as are reasonably required by Landlord to verify the net worth of Tenant, or
any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall
deliver to any lender designated by Landlord any financial statements required
by such lender to facilitate the financing or refinancing of the Premises,
Building or Project. Tenant represents and warrants to Landlord that each such
financial statement is a true and accurate statement as of the date of such
statement. All financial statements shall be confidential and shall be used
only for the purposes set forth herein. 


 


ARTICLE 30


 


RIGHT OF FIRST OFFER


 


Provided
that no event of default has occurred and is continuing under the terms of this
Lease, and subject to any rights granted to other tenants occupying such space
to extend or renew their lease(s), Tenant shall have the right of first offer
with respect to any space which becomes available on the fourth floor of the
Building. Landlord shall give Tenant written notice (“Landlord’s Notice”) at
least thirty (30) days prior to the date on which any such space (“Expansion
Space”) is expected to become available and the terms under which Landlord is
willing to lease such Expansion Space to Tenant (including the initial Base
Rent, rights to extend, if any, and how the Base Rent will be determined during
such extended terms), and Tenant shall have the right to be exercised in
writing within ten (10) days thereafter, to agree to lease such space upon said
terms and conditions. Landlord shall prepare and deliver to Tenant an amendment
to this lease or a lease for any such Expansion Space, substantially in the
same form as this Lease but incorporating the terms and conditions contained in
Landlord’s Notice, and if Tenant does not enter into such amendment or lease
within ten days thereafter, Tenant will be deemed to have waived its right of
first offer with respect to that particular portion of Expansion Space offered
and Landlord may offer the Expansion Space to any party upon terms


 


61

















 


that
Landlord deems appropriate. Tenant’s right of first offer shall be ongoing during
the duration of the Lease Term with respect to any portion of the Expansion
Space not previously included in a Landlord’s Notice, notwithstanding Tenant’s
refusal of any portion of Expansion Space offered to Tenant at any time during
the Lease Term. Nothing in this Section is intended to preclude or limit Landlord’s
right to grant tenants of such Expansion Space renewal rights or expansion
rights which shall have priority over the rights of Tenant under this Lease.


 


ARTICLE 31


 


SATELLITE DISH


 


31.1    SATELLITE DISH. Subject to the provisions
and conditions of this Article 31, Landlord hereby consents to the installation
of a satellite dish antenna in a portion of the roof of the Building (the “SATELLITE
DISH”), in such location as may be designated by Landlord, for the sole use of
Tenant. Tenant agrees and hereby covenants to Landlord as follows:


 


31.1.1    The Satellite Dish shall not be visible
from ground level, and shall not exceed thirty inches in diameter and shall not
project more than five feet above the roof surface of the Building, unless
otherwise approved by Landlord which approval shall not be unreasonably
withheld;


 


31.1.2    Installation, service, repair, maintenance
and removal of the Satellite Dish shall be performed by a reputable contractor
that has been approved by Landlord in writing. Installation, service, repair
and maintenance of the Satellite Dish shall be performed during normal office
hours (8:00 a.m. to 5:00 p.m., Monday to Friday). Tenant shall have access to
the roof of the Building for the purposes of such maintenance; provided,
however, that Tenant shall not have access to the roof of any building in the
Project unless accompanied by Landlord’s agent;


 


31.1.3    The installation, operation and maintenance
of the Satellite Dish shall not interfere with the peaceful enjoyment by any
other tenant of its respective premises and/or the operation of any other
antennae or satellite dishes which may be permitted by Landlord;


 


31.1.4    Tenant shall be solely liable for the
installation, maintenance, repair and removal of the Satellite Dish, and shall
remove the Satellite Dish and repair any damage caused by such removal prior to
the expiration or earlier termination of the Lease. The installation of the Satellite
Dish and operation, maintenance and removal of the Satellite Dish shall be
performed (i) in a good and workmanlike manner, so that they would not create a
hazard to life or property; (ii) in compliance with all applicable federal,
state and local laws, regulations and ordinances, (iii) with due care and
regard for safety and in a manner that will not cause injury or death to persons
or damage to property; (iv) so that no lien or other encumbrance shall be
placed on any portion of the Project, and (v) in a way that will not limit or void
any warranty on the roof nor cause nor permit leaking of the roof, nor impair
the structural integrity of any building in the Project; and


 


31.1.5    Tenant shall insure that its use and
operation of the Satellite Dish does not create a nuisance.


 


62

















 


IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed the
day and date first above written.


 


 


	
   

  	
  “LANDLORD”:

  
	
   

  	
   

  
	
   

  	
  MARLBOROUGH
  CAMPUS LIMITED

  PARTNERSHIP, a Massachusetts limited

  partnership

  
	
   

  	
   

  
	
   

  	
  By:
  Bergen of Marlborough, Inc., general

  partner

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  /s/
  John L. Brogan

  
	
   

  	
  Its:

  
	
   

  	
   

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “TENANT”:

  
	
   

  	
  EXACT
  SCIENCES CORPORATION

  
	
  Attest:

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  /s/
  John A. McCarthy, Jr.

  
	
   

  	
   

  	
  Name:
  John A. McCarthy, Jr.

  
	
   

  	
   

  	
  Title:
  EVP, COO and CFO

  
	
  By:

  	
  /s/
  Jeffrey R. Luber

  	
   

  	
   

  
	
   

  	
  Name:
  Jeffrey R. Luber

  	
   

  
	
   

  	
  Title:
  General Counsel

  	
  (Corporate
  Seal)

  
						



 


63

















 


(ACKNOWLEDGMENT FOR CORPORATION)


 


COMMONWEALTH
OF MASSACHUSETTS


 


SS.:


 


COUNTY
OF Middlesex


 


BE
IT REMEMBERED, that on this 23rd day of January, 2003, before me, the subscriber,
a Notary Public of the Commonwealth of Massachusetts personally appeared Jeffrey
R. Luber, who, being by me duly sworn on his oath, does depose and make proof
to my satisfaction that he is the Corporate Secretary of EXACT Sciences
Corporation, the Tenant named in the foregoing Lease; that John A. McCarthy Jr.
is Exec. Vice President of said corporation; that the execution of the
foregoing Lease was duly authorized; and the seal affixed to said instrument is
the corporate seal and was thereto affixed and said instrument signed and
delivered by said Exec. Vice President, as and for his voluntary act and deed
and as for the voluntary act and deed of said corporation, in presence of
deponent, who thereupon subscribed his name thereto as witness.


 


Subscribed
and sworn to

before me at Maynard, MA,

on the date aforesaid.


 


	
   

  	
  /s/
  Jeffrey R. Luber

  	
   

  
	
   

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Lanee L. Johnson

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Notarial
  Seal)

  	
   

  
				



 


64

















 


EXHIBIT A


 


OUTLINE OF PREMISES


 


[TO BE ATTACHED]


 


65

















 


EXHIBIT B


 


PROJECT SITE PLAN


 


[TO BE ATTACHED]


 


66

















 


EXHIBIT C


 


INVENTORY LIST


 


[TO BE ATTACHED]


 


67

















 


EXHIBIT D


 


RULES AND REGULATIONS


 


BUILDING RULES AND REGULATIONS


 


The
following rules and regulations (collectively, the “Rules”) shall apply, where
applicable, to the Premises, the Building, the parking lot, the Project and the
appurtenances thereto:


 


A.                         GENERAL


 


1.                             Sidewalks,
doorways, vestibules, halls, stairways and other similar areas shall not be
obstructed by Tenant or used by Tenant for any purpose other than ingress and
egress to and from the Premises. No rubbish, litter, trash, or material of any
nature shall be placed, emptied, or thrown in those areas. At no time shall
Tenant permit Tenant’s employees, contractors or other representatives to
loiter in common areas or elsewhere in or about the Building or Project.


 


2.                             Any Tenant
or vendor sponsored activity or event in Common Area must be approved and
scheduled through Landlord’s representative.


 


3.                             Plumbing
fixtures and appliances shall be used only for the purposes for which designed,
and no sweepings, rubbish, rags or other unsuitable material shall be thrown or
placed therein. Tenant shall pay for damage resulting to any such fixtures or
appliances from misuse by Tenant or its agents, employees or invitees, and
Landlord shall not in any case be responsible therefor.


 


4.                             Alcoholic
beverages (without Landlord’s prior written consent), illegal drugs or other
illegal controlled substances are not permitted in the Building nor will any
person under the influence of the same be permitted in the Building.


 


5.                             No firearms
or other weapons are permitted in the Building.


 


6.                             No fighting
or “horseplay” will be tolerated at any time in the Building.


 


7.                             Fire
protection and prevention practices implemented by Landlord from time to time,
including participation in fire drills, must be observed by Tenant at all times.


 


8.                             Tenant shall
not operate or disturb any Building equipment, machinery, valves or electrical
controls.


 


9.                             Tenant shall
not cause any unnecessary janitorial labor or services by reason of Tenant’s
carelessness or indifference in the preservation of good order and cleanliness.


 


68

















 


10.        No signs,
advertisements or notices shall be painted or affixed on or to any windows,
doors or other parts of the Building unless approved in writing by Landlord.


 


11.        Landlord
shall have the power to prescribe the weight and position of safes and other
heavy equipment or items, which in all cases shall not in the opinion of
Landlord exceed acceptable floor loading and weight distribution requirements.
All damage done to the Building by the installation, maintenance, operation,
existence or removal of any property of Tenant shall be repaired at the expense
of Tenant.


 


12.        No animals,
except seeing-eye dogs, shall be brought into or kept in, on or about the
Premises.


 


13.        Tenant shall
not take any action which would violate Landlord’s labor contracts affecting
the Building or which would cause any work stoppage, picketing, labor
disruption or dispute, or any interference with the business of Landlord or any
other tenant or occupant of the Building or with the rights and privileges of
any person lawfully in the Building. Tenant shall take any actions necessary to
resolve any such work stoppage, picketing, labor disruption, dispute or
interference and shall have pickets removed and, at the request of Landlord,
immediately terminate at any time any construction work being performed in the
Premises giving rise to such labor problems, until such time as Landlord shall
have given its written consent for such work to resume, which consent shall not
be unreasonably withheld, conditioned or delayed. Tenant shall have no claim
for damages of any nature against Landlord in connection therewith.


 


14.        Landlord
shall have the right to prohibit the use of the name of the Building or any
other publicity by Tenant that in Landlord’s opinion may tend to impair the
reputation of the Building or its desirability for Landlord or other tenants.
Upon written notice from Landlord, Tenant will refrain from and/or discontinue
such publicity immediately.


 


15.        Smoking and
discarding of smoking materials are permitted in designated exterior locations
only. No smoking is permitted outside the building entrances. Tenant will
instruct and notify its visitors and employees of such policy.


 


16.        No awnings
or other projections shall be attached to the outside walls (building
perimeter) of the Building. No curtains, blinds, shades, or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord, in Landlord’s sole
discretion. Window coverings must be Building Standard.


 


17.        Tenant shall
cooperate with the Landlord to conserve energy. Before closing and leaving the
Premises at any time, Tenant shall exercise reasonable efforts to minimize
energy use by turning off lights and equipment not in use.


 


18.        There shall
not be used in any space, or in the public halls of the Building, either by any
Tenant or by delivery personnel or others, in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and sole
guards.


 


69

















 


19.        Tenant shall
not use the Premises for housing, lodging or sleeping purposes or permit
preparation or warming of food in the Premises (except in Landlord provided or
approved equipment such as microwave ovens and toaster ovens). Tenant shall not
occupy or use the Premises or permit the Premises to be occupied or used for
any purpose or act that is in violation of any governmental legal requirement
or may be dangerous to persons or property.


 


20.        Tenant shall
not make or permit any noise, vibration or odor to emanate from the Premises,
or do anything that will create or maintain a nuisance, or do any act injuring
the reputation of the Building.


 


21.        Tenant shall
not disturb any other Building occupants.


 


22.        Tenant shall
not install or operate any musical or sound producing instrument or device,
radio receiver or transmitter, TV receiver or transmitter, or similar device in
the Premises, nor install or operate any antenna, aerial, wires or other
equipment inside or outside the Premises, nor operate any electrical device
from which may emanate electrical waves which may interfere with or impair
radio or television broadcasting or reception from or in the Premises or
elsewhere, without in each instance, the prior written approval of Landlord.
The use thereof, if permitted, shall be subject to control by Landlord to the
end that others shall not be disturbed. Ordinary televisions and radios not
requiring exterior antennas are excepted from this prohibition.


 


23.        Tenant shall
provide Landlord in writing the names and contact information of two (2)
representatives authorized by the Tenant to request Landlord services, either
billable or non billable and to act as a liaison for matters related to the
Premises.


 


B.         BUILDING
ACCESS & SECURITY


 


1.          No
additional locks shall be placed upon any doors, windows or transoms in or to
the Premises, nor shall Tenant change existing locks or the mechanism thereof,
without Landlord’s permission, which permission shall not be unreasonably
withheld, conditioned or delayed.


 


2.          Tenant shall
not use or occupy the Premises in any manner or for any purpose which would
injure the reputation or impair the present or future value of the Premises or
the Building.


 


3.          Bicycles and
other vehicles are not permitted inside or on the walkways outside the
Building, except in those areas specifically designated by Landlord for such
purposes.


 


4.          Landlord may
from time to time adopt appropriate systems and procedures for the security or
safety of the Building, its occupants, entry and use, or its contents, and
shall provide Tenant with notice thereof. Tenant, Tenant’s agents, employees,
contractors, guests and invitees shall comply with Landlord’s reasonable
requirements relative thereto.


 


5.          Canvassing,
soliciting, and peddling in or about the Building is prohibited. Tenant, its
employees, agents and contractors shall cooperate with said policy, and Tenant
shall use its best efforts to prevent the same by Tenant’s invitees.


 


70

















 


6.                             Tenant and
its employees, agents, contractors, invitees and licensees are limited to the
Premises and the Common Areas. Tenant and its employees, agents, contractors,
invitees and licensees may not enter other areas of the Building or Project
(other than the conference rooms) except when accompanied by an escort from
Landlord and shall sign in/out at building reception.


 


7.                             Tenant
acknowledges that Building security problems may occur which may require the
employment of extreme security measures in the day-to-day operation of the
Building. Accordingly, Tenant agrees to cooperate and cause its employees,
contractors and other representatives to cooperate fully with Landlord in the
implementation of any reasonable security procedures.


 


8.                             Tenant shall
comply with all federal, state and local, criminal, civil, safety, health and
environmental codes, laws, and ordinances relating to its use of leased space.


 


C.                           MAINTENANCE
& CUSTODIAL


 


1.                             All
contractors, contractor’s representatives, and installation technicians performing
work in the Building shall be subject to Landlord’s written prior approval and
shall be required to comply with Landlord’s standard rules, regulations,
policies, and procedures, as the same may be revised from time to time. Tenant
shall be solely responsible for complying with all applicable laws, codes and
ordinances pursuant to which said work shall be performed.


 


2.                             Tenant shall
not install, operate or maintain in the Premises or in any other area of the
Building, any electrical equipment which does not bear the U/L (Underwriters
Laboratories) seal of approval, or which would overload the electrical system
or any part thereof beyond its capacity for proper, efficient and safe
operation as determined by Landlord, taking into consideration the overall
electrical system and the present and future requirements therefor in the
Building. Tenant shall not operate personal electronic devices for individual
use such as coffeepots, toasters, refrigerators, space heaters, etc. without
Landlord’s prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed.


 


D.                          SHIPPING/RECEIVING


 


1.                             Movement in
or out of the Building of furniture or office equipment, or dispatch or receipt
by Tenant of any merchandise or materials which require the use of elevators,
stairways, lobby areas, or loading dock areas, shall be restricted to the hours
between 8 a.m. and 5 p.m., Monday through Friday, excluding Holidays. An
oversize delivery such as furniture and or equipment requires reservations with
written advance notification to the Landlord. Tenant is to assume all risk for
damage to articles moved and injury to any persons resulting from such
activity. If any equipment, property, and/or personnel of Landlord or of any
other tenant of the Building is damaged or injured as a result of or in
connection with such activity, Tenant shall be solely liable for any and all
damage or loss to the extent directly resulting therefrom.


 


71

















 


2.                             All
deliveries to or from the Premises shall be made only at such times, in the
areas and through the entrances and exits designated for such purposes by
Landlord. Tenant shall not permit the process of receiving deliveries to or
from the Premises outside of said areas or in a manner that may interfere with
the use by any other tenant of its premises or of any Common Areas, any
pedestrian use of such area, or any use that is inconsistent with good business
practice.


 


3.                             All Tenant
mail and small packages will be scheduled for pick-up and delivery by carrier
or supplier to and from the Premises.


 


4.                             Deliveries
will be delivered un-skidded (i.e., not on pallets) and arrangements made for
inside deliveries to Tenant space. Landlord personnel will not load/unload
cargo deliveries for Tenant from the dock.


 


5.                             Tenant
arranged shipping/receiving location outside the Premises to be approved by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed. Dock areas shall not be used for storage or staging by Tenant.


 


6.                             The
following rules and regulations apply to all loading docks which are available
for the use of more than one tenant (and shall not apply to loading docks
intended for the exclusive use of any tenant): No tenant shall park or permit
any truck or trailer to be parked in any loading dock area except during the
time actually need to load or unload materials. In no case shall any truck or
trailer be permitted to remain in a loading dock area overnight. If any tenant
has been utilizing the loading dock are for a time period in excess of one hour
and another tenant requires access to the loading dock area, the first tenant
shall vacate the loading dock area and make it available to the second tenant.
No tenant may utilize more than one loading dock at a time if another tenant
requires access to the loading dock and a loading dock is not available for the
second tenant’s use.


 


E.                            FOOD SERVICE


 


1.                             No open
flame cooking or competing food service or vending machines will be permitted
in the Premises.


 


2.                             Tenant shall
not remove food service property from the cafe including trays, dishes,
glasses, cups, utensils. Disposal utensils are provided.


 


F.                            RULES FOR
USE OF ACCESS CARDS


 


Each
of Tenant’s employees and on-site contractors shall be issued an access card.
The access card serves as a “key” that allows access to card reader controlled
doors.


 


The
access card will ONLY act as a key on doors leading to the Premises and Common
Areas. Care should be used to prevent excessive bending or abuse that may cause
damage to the card.


 


1.                             Do not allow
others to use your card.


 


72

















 


2.                             Report a
lost, stolen, or damaged card immediately.


 


3.                             If a door is
equipped with a card reader - use the reader to access. Do not “prop” doors
open to bypass the system.


 


4.                             A “Tailgater”
is an individual without an access card who follows an employee in or out of a
door after that employee has used their card to access a door. Tailgating is
not allowed.


 


5.                             If Landlord
provides Tenant with any access cards or badges, a fee of $20.00 will be
charged for each badge or access card issued.


 


6.                             In all
cases, Tenant agrees to promptly notify Landlord when access badges are to be
deactivated in cases such as termination, non-use, lost badge, etc.


 


73














 


EXHIBIT E


 


ESTOPPEL CERTIFICATE


 


Date
[Name and Address of Landlord/Purchaser] and/or


[Name
and Address of Mortgagee]


 


It
is our understanding that you are purchasing from                                                       
(“Landlord”), [and/or are providing financing in connection with the
acquisition or refinancing of the] property located at                                   ,
                                                        ,
Massachusetts (the “Property”) and in connection therewith have required this
certification by the undersigned.


 


Reference
is made to a Lease dated                                 ,
between Landlord and the undersigned as Tenant (the “Lease”) for certain
premises (the “Premises”) located at the Property. The undersigned, as Tenant,
hereby certifies that:


 


	
  1.

  	
   

  	
  The
  term of the Lease commenced on
                      ,
  20     and ends on
                      ,
  20     (the “Expiration Date”). Tenant has no right to
  renew or extend the term of the Lease, except as follows:

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  The
  undersigned has accepted and presently occupies the premises described in the
  Lease as Tenant.

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The
  Base Rent under the Lease is currently $per month, and has been paid through
                                      ,
  20    . Tenant currently pays $per month as its estimated
  Share of Operating Expenses in excess of Operating Expenses for
           (which is the Base Year),
  and $per month as its estimated Share of Tax Expenses in excess of Tax
  Expenses for fiscal year July, 200     to June,
  20    .

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The
  Lease is in full force and effect and has not been assigned, modified,
  supplemented or amended in any way and, to the knowledge of the undersigned,
  neither party is in default thereunder, and no event has occurred which, with
  the giving of notice or passage of time, or both, could result in a default
  except as follows:

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  The
  Lease represents the entire agreement between Landlord and the undersigned.

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  On
  this date, there are no existing defenses or offsets which the undersigned
  has against the enforcement of the Lease by Landlord.

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  The
  undersigned Tenant is in occupancy of the premises described in the Lease and
  is actually conducting its business therein, which business is the use
  permitted under the Lease. Tenant has not sublet nor assigned its interest in
  the Lease except as follows:

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  No
  rent has been paid more than one month in advance of its due date under the
  Lease.

  



 


74

















 


	
  9.

  	
   

  	
  Landlord
  holds a security deposit of $. Landlord has no obligation to segregate the
  security deposit or to pay interest thereon.

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Tenant
  has no option or right of first refusal to purchase all or any portion of the
  Property, no option(s) to expand, nor any option to terminate the Lease prior
  to the Expiration Date except as follows:

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  All
  construction, alterations or improvements required to be performed by
  Landlord have been completed and any payments, credits or abatements required
  to be given by Landlord to Tenant have been given.

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  To
  Tenant’s knowledge, no refunds or other credits are due to Tenant for Direct
  Expenses (as defined in the Lease) paid to Landlord as additional rent for
  any calendar years ending on or before December 31,
  200    .

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  No
  actions have been filed by or are pending against Tenant under the bankruptcy
  laws of the United States or any state thereof.

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  No
  work has been performed by or at the request of Tenant for which a mechanic’s
  or materialmen’s lien may be filed against the Premises.

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  The
  signatory below is authorized to execute this Estoppel Certificate on behalf
  of Tenant.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Executed
  as an instrument under seal on
                      ,
  20    .

  



 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Tenant

  



 


75

















 


EXHIBIT E-1


 


LESSEE ESTOPPEL CERTIFICATE


 


WELLS
FARGO BANK, NATIONAL


ASSOCIATION,
(“LENDER”)


c/o
Real Estate Group


1750
H Street, N.W.


Suite
400


Washington,
D.C. 20006


Attn:
Loan Administration Manager


 


RE:       Lease dated                                     ,
[AND AMENDED ON                                               ]
(the “LEASE”) by and between                                                                           ,
a            limited
liability company, as lessor (“LESSOR”) and                       ,
as lessee (“LESSEE”) with respect to certain premises (THE “LEASED PREMISES”)
located at 3Com Drive, Marlborough, Massachusetts (the “PROPERTY”)


 


Ladies/Gentlemen:


 


The
undersigned hereby acknowledges that Lessor intends to encumber the Property with
a deed of trust in favor of Lender. The undersigned further acknowledges the
right of Lessor, Lender and any and all of Lessor’s present and future lenders
to rely upon the statements and representations of the undersigned contained in
this Certificate and further acknowledges that any loan secured by any such
deed of trust or further deeds of trust will be made and entered into in
material reliance on this Certificate.


 


Given
the foregoing, the undersigned Lessee hereby certifies and represents unto Lender,
its successors and assigns, with respect to the above described Lease, a true
and correct copy of which is attached as EXHIBIT A hereto, as follows:


 


1.                           All space
and improvements covered by the Lease have been completed and furnished to the
satisfaction of Lessee, all conditions required under the Lease have been met,
and Lessee has accepted and taken possession of and presently occupies the
Leased Premises, consisting of approximately                             
square feet.


 


2.                           The Lease is
for a total term of                           
years,                   
months commencing                                 ,
and ending                                         ,
and has not been modified, altered or amended in any respect and contains the
entire agreement between Lessor and Lessee, except as follows:                                                                                                       
(LIST AMENDMENTS AND MODIFICATIONS OTHER THAN THOSE, IF ANY, ATTACHED TO AND
FORMING A PART OF THE LEASE AS WELL AS ANY VERBAL AGREEMENTS, OR WRITE “NONE”).


 


3.                           As of the
date hereof, the annual minimum rent under the Lease is $                              ,
subject to any escalation and/or percentage rent and/or common area maintenance
charges, in accordance with the terms and provisions of the Lease. The “BASE
YEAR” for any escalation is                               .


 


4.                           No rent has
been paid by Lessee in advance under the Lease except for $                      ,
which amount represents rent for the period beginning                                   
and ending                                     


 


76

















 


and Lessee has no charge or claim of offset
under said Lease or otherwise, against rents or other amounts due or to become
due thereunder. No “discounts”, “free rent” or “discounted rent” have been
agreed to or are in effect except for                                                                                                                  
                                                                                    .


 


5.                           A security
deposit of $                          
has been made and is currently being held by Lessor. Such security deposit
IS/IS NOT in the form of cash and, if not in the form of cash, a copy thereof
is attached hereto as EXHIBIT B.


 


6.                           Lessee has
no claim against Lessor for any deposit or prepaid rent except as provided in
PARAGRAPHS 4 AND 5 above.


 


7.                           The Lessor
has satisfied all commitments, arrangements or understandings made to induce
Lessee to enter into the Lease, and the Lessor is not in any respect in default
in the performance of the terms and provisions of the Lease, nor is there now
any fact or condition which, with notice or lapse of time or both, would become
such a default.


 


8.                           Lessee is
not in any respect in default under the terms and provisions of the Lease (nor
is there now any fact or condition which, with notice or lapse of time or both,
would become such a default) and has not assigned, transferred or hypothecated
its interest under the Lease, except as follows:                                                                       .


 


9.                           Except as
expressly provided in the Lease or in any amendment or supplement to the Lease,
Lessee: (i) does not have any right to renew or extend the term of the Lease;
(ii) does not have any option or preferential right to purchase all or any part
of the Leased Premises or all or any part of the building or premises of which
the Leased Premises are a part; and (iii) does not have right, title, or interest with
respect to the Leased Premises other than as lessee under the Lease. There are
no understandings, contracts, agreements, subleases, assignments, or
commitments of any kind whatsoever with respect to the Lease or the Leased
Premises except as expressly provided in the Lease or in any amendment or
supplement to the Lease set forth in PARAGRAPH 2 above, copies of which are
attached hereto.


 


10.                     The Lease is
in full force and effect and Lessee has no defenses, setoffs, or counterclaims
against Lessor arising out of the Lease or in any way relating thereto or
arising out of any other transactions between Lessee and Lessor.


 


11.                     The current
address to which all notices to Lessee as required under the Lease should be
sent is:


 


                                                                                                                    .


 


	
  Dated:

  	
  “LESSEE”

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LESSEE
  SIGNATURE BLOCK HERE

  
				



 


77

















 


EXHIBIT F


ANNUAL REPORTING FORM


MARLBOROUGH CAMPUS


(TENANT: EXACT Sciences Corporation)


 


1.                                       CONTACT
INFORMATION (please type or print):


Business
Name:  EXACT Sciences Corporation


Address:


City/State/Zip:


Contact
Person:


Telephone:


Fax:


Date
Project was certified by the EACC: 
January 31, 1997


 


2.                                       NEW HIRES AT
PROJECT LOCATION (ONLY PERMANENT FULL-TIME JOBS):


FY
20       Hires (7/1/20      
through 6/30/20    ):                 


Number
of FY 20       Hires That Reside in the Economic
Target Area of


Ashland*Framingham*Hudson*Marlborough*Northborough
:              


Total
Hires (                          
through 6/30/20    ):                   


Number
of Total Hires That Reside in the Economic Target


Area:
            


Average
Wage of Employees Hired Since Date of EACC


Certification:
                  


 


3.                                       TOTAL
PERMANENT FULL-TIME JOBS LOCATED AT THE PROJECT AS OF JUNE 30, 20        :
                


 


4.                                       AUTHORIZATION:


 


I
, (print name and title)                                                                                     
hereby certify that the information within this Annual Reporting Form is true
and accurate.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature)

  	
  (Date)

  	
   

  



 


 


PLEASE
RETURN COMPLETED FORM TO LANDLORD BY JULY 10, ANNUALLY


 


78

















 


EXHIBIT G


LIST OF HAZARDOUS MATERIALS USED BY TENANT IN
CONNECTION WITH THE PERMITTED USE


 


	
  Item

  	
   

  	
  Estimated Quantity

  
	
  0.1N
  HCL

  	
   

  	
  1L

  
	
  0.25M
  EDTA

  	
   

  	
  500mL

  
	
  1[3-(dimethylamino)propyl]-3-ethylearbodiimidehydrochloride,
  98%

  	
   

  	
  20g

  
	
  10x
  MOPS

  	
   

  	
  250mL

  
	
  11N
  Hydrochloric Acid

  	
   

  	
  300mL

  
	
  1-Hydroxybenzotriazole

  	
   

  	
  5g

  
	
  1-Methylimidazole,
  99%

  	
   

  	
  100ml

  
	
  2-Mercaptoethanol

  	
   

  	
  125mL

  
	
  Acetic
  Acid, glacial

  	
   

  	
  5L

  
	
  Acetone

  	
   

  	
  2L

  
	
  Acrylamide

  	
   

  	
  1.5kg

  
	
  Acrylamide/Bis-Acrylamide 19:1 Ratio

  	
   

  	
  1.6L

  
	
  Acrylamide/Bis-Acrylamide premix
  powder 20:1

  	
   

  	
  30g

  
	
  Alconox

  	
   

  	
  1kg

  
	
  Ammonium Acetate 7.5 M solution

  	
   

  	
  250mL

  
	
  Ammonium
  Acetate, molecular biology reagent

  	
   

  	
  1kg

  
	
  Ammonium
  Chloride, molecular biology reagent

  	
   

  	
  1kg

  
	
  Ammonium
  Hydroxide

  	
   

  	
  500mL

  
	
  Ammonium
  Persulfate

  	
   

  	
  148g

  
	
  Ammonium
  Sulfate, molecular biology reagent

  	
   

  	
  500g

  
	
  Argon,
  compressed

  	
   

  	
  4
  tanks

  
	
  BICINE

  	
   

  	
  250g

  
	
  Bind
  Saline

  	
   

  	
  600mL

  
	
  Boric
  Acid

  	
   

  	
  1kg

  
	
  Bromphenol
  Blue Sodium, molecular biology reagent

  	
   

  	
  12.5g

  
	
  Calcium
  Chloride Dihydrate, molecular biology reagent

  	
   

  	
  550g

  
	
  Chelex
  Resin

  	
   

  	
  100g

  
	
  Ches,
  Sigmaultra

  	
   

  	
  100g

  
	
  Chloroform,
  ACS grade

  	
   

  	
  500ml

  
	
  Chloroform,
  molecular biology reagent

  	
   

  	
  76L

  
	
  Citric
  Acid Free Acid Anhydrous Crystalline

  	
   

  	
  500g

  
	
  Citric
  Acid, monohydrate

  	
   

  	
  500g

  
	
  Citric
  Acid, trisodium salt dihydrate

  	
   

  	
  500g

  
	
  Clorox
  Germicidal Bleach

  	
   

  	
  20gal

  
	
  Coomasie
  Blue

  	
   

  	
  10g

  
	
  D-(+)-
  glucose

  	
   

  	
  250g

  
	
  Desiccant

  	
   

  	
  1kg

  
	
  Diatomaceous
  Earth

  	
   

  	
  500g

  



 


79

















 


	
  Dimethyl
  Sulfoxide, molecular biology reagent

  	
   

  	
  150ml

  
	
  Diphenyliodonium
  Chloride, 97%

  	
   

  	
  2g

  
	
  EDTA
  disodium dihydrate salt

  	
   

  	
  500g

  
	
  EDTA disodium salt

  	
   

  	
  500g

  
	
  EDTA, 0.5 M pH 8.0

  	
   

  	
  1.5L

  
	
  EGDA

  	
   

  	
  50g

  
	
  EGTA

  	
   

  	
  100g

  
	
  Ethanolamine
  free base

  	
   

  	
  450ml

  
	
  Ethidium
  Bromide, 95%

  	
   

  	
  200ml/5g

  
	
  Ethyl
  Alcohol USP, 200 proof

  	
   

  	
  18
  gal

  
	
  Ficoll,
  molecular biology reagent

  	
   

  	
  75g

  
	
  Formamide, HD

  	
   

  	
  300ml +/- 200ml

  
	
  Formamide, P.A.

  	
   

  	
  1.3L +/- 1L

  
	
  Gamma-Methacryloxypropyl
  Trimethoxysilane

  	
   

  	
  3ml

  
	
  Gelatin

  	
   

  	
  100g

  
	
  Glycerol

  	
   

  	
  3L

  
	
  Glycine
  free base, molecular biology reagent

  	
   

  	
  1.2kg

  
	
  Guanidine

  	
   

  	
  100g

  
	
  Guanidine
  Isothiocyanate

  	
   

  	
  6kg
  +/- 2kg

  
	
  HEPES

  	
   

  	
  100g

  
	
  Hexadecyltrimethylammonium
  bromide, for molecular biology

  	
   

  	
  250g

  
	
  Hexamine
  Cobalt (III) Chloride

  	
   

  	
  5g

  
	
  Hydrochloric
  Acid solution 1.0 N

  	
   

  	
  11L

  
	
  Hydrochloric
  Acid, ACS reagent

  	
   

  	
  400ml

  
	
  Hydrochloric
  Acid, Volumetric Standard 0.2N Solution in water

  	
   

  	
  1.5L

  
	
  Hydroquinone

  	
   

  	
  500g

  
	
  Isoamyl
  alcohol, ACS reagent

  	
   

  	
  10L

  
	
  Isopropanol,
  99%

  	
   

  	
  32gal
  +/- 25gal

  
	
  Isopropanol,
  molecular biology reagent

  	
   

  	
  1L

  
	
  Kanamyacin

  	
   

  	
  1g

  
	
  LICOR MSDS’s

  	
   

  	
   

  
	
  Lipids

  	
   

  	
  1g

  
	
  Manganese
  Chloride Hexahydrate

  	
   

  	
  325g

  
	
  Mangnesium
  Sulfate

  	
   

  	
  10mL

  
	
  Meatphor
  Agarose

  	
   

  	
  25g

  
	
  MES
  free acid, molecular biology reagent

  	
   

  	
  100g

  
	
  Methanol,
  spectrophotometric grade

  	
   

  	
  9L

  
	
  Methylene
  Blue

  	
   

  	
  25g

  
	
  Methylene
  Chloride

  	
   

  	
  500mL

  
	
  MICRO
  BCA Protein Assay Reagent Kit

  	
   

  	
  1
  kit

  
	
  Mineral
  Oil, white, light

  	
   

  	
  1.7L

  
	
  Mixed
  Bed Resin

  	
   

  	
  100g

  
	
  MOPS

  	
   

  	
  100g

  
	
  N,
  N- Dimethyl Formamide

  	
   

  	
  500mL

  
	
  N,N’-Methylene-Bis-Acrylamide

  	
   

  	
  25g

  
	
  Nickel
  Chloride Hexahydrate

  	
   

  	
  100g

  



 


80

















 


	
  Nusieve
  3:1 Agarose

  	
   

  	
  2.2kg
  +/- 2kg

  
	
  Orange
  G Sodium, molecular biology grade

  	
   

  	
  500mL

  
	
  PEG
  10000

  	
   

  	
  500g

  
	
  PEG
  8000

  	
   

  	
  5kg

  
	
  Phenol,
  buffer saturated

  	
   

  	
  20L
  +/- 10L

  
	
  Phosphate
  Buffered Saline, pH 7.4

  	
   

  	
  2.2L

  
	
  Phosphoric
  Acid, 99.999%

  	
   

  	
  500ml

  
	
  PicoGreen
  dsDNA Quantitation Kit

  	
   

  	
  2

  
	
  Pipes
  Free Acid GenAR

  	
   

  	
  100g

  
	
  Polyvinylpyrrolidone,
  molecular biology reagent

  	
   

  	
  350g

  
	
  POP-6

  	
   

  	
  1L
  +/- 500mL

  
	
  Potassium
  Acetate

  	
   

  	
  250g

  
	
  Potassium
  Acetate

  	
   

  	
  500g

  
	
  Potassium
  Chloride, molecular biology reagent

  	
   

  	
  2kg

  
	
  Potassium
  Ferrocyanide

  	
   

  	
  100g

  
	
  Potassium
  Hydroxide (0.1N)

  	
   

  	
  1L

  
	
  Potassium
  Phosphate Dibasic: Trihydrate, molecular biology reagent

  	
   

  	
  750g

  
	
  Potassium
  Phosphate, monobasic

  	
   

  	
  750g

  
	
  Prosieve
  50X gel Solution

  	
   

  	
  125mL

  
	
  Protease(Quiagen)

  	
   

  	
  30AU

  
	
  Qigagen
  Midi Prep Kits

  	
   

  	
  20
  tests

  
	
  Quiagen
  Mini Preps

  	
   

  	
  750
  tests

  
	
  Saline
  Sodium Citrate 20X Solution (SSC)

  	
   

  	
  8L

  
	
  Sand,
  white quartz

  	
   

  	
  1kg

  
	
  SDS
  Solution, 10%

  	
   

  	
  15L

  
	
  Seakem
  Agarose

  	
   

  	
  1.2kg
  +/- 500g

  
	
  Seaplaque Agarose GTG

  	
   

  	
  25g

  
	
  Sec-Butanol

  	
   

  	
  250mL

  
	
  Sephadex

  	
   

  	
  50g

  
	
  Sodium Acetate Anhydrous

  	
   

  	
  2.5kg

  
	
  Sodium Acetate Buffer Solution

  	
   

  	
  13L

  
	
  Sodium Azide

  	
   

  	
  50g

  
	
  Sodium Azide, Sigmaultra

  	
   

  	
  25g

  
	
  Sodium Bicarbonate, ACS Reagent

  	
   

  	
  1.5kg

  
	
  Sodium Bisulfite

  	
   

  	
  100g

  
	
  Sodium Borate

  	
   

  	
  500g

  
	
  Sodium Carbonate Anhydrous,
  Sigmaultra

  	
   

  	
  500g

  
	
  Sodium Chloride Anhydrous Sigmaultra

  	
   

  	
  1.5kg

  
	
  Sodium
  Chloride, molecular biology reagent

  	
   

  	
  17.5L

  
	
  Sodium Citrate Dihydrate, ACS Reagent

  	
   

  	
  1kg

  
	
  Sodium Cyanoborohydride

  	
   

  	
  75g

  
	
  Sodium Dodecyl Sulfate

  	
   

  	
  600g

  
	
  Sodium Hydroxide 10M

  	
   

  	
  100mL

  
	
  Sodium Hydroxide Anhydrous Pellets

  	
   

  	
  1150g

  
	
  Sodium
  Hydroxide, 50% solution in water

  	
   

  	
  500mL

  
	
  Sodium Hydroxide, standard solution,
  1 M (1 N)

  	
   

  	
  6L

  



 


81

















 


	
  Sodium Hydroxide, volumetric
  standard, 0.1 N

  	
   

  	
  5.5L

  
	
  Sodium Iodide, ACS Reagent

  	
   

  	
  100g

  
	
  Sodium
  Phosphate Dibasic Anhydrous, Sigmaultra

  	
   

  	
  5kg

  
	
  Sodium
  Phosphate Monobasic, Monohydrate, ACS Reagent

  	
   

  	
  1150g

  
	
  Sodium
  Phosphate Monobasic, Sodium Phosphate Monobasic

  	
   

  	
  750g

  
	
  Sodium Pyrophosphate Decahydrate,
  Sigmaultra

  	
   

  	
  100g

  
	
  Sodium
  Sulfate

  	
   

  	
  1kg

  
	
  Sodium
  Thiocynate

  	
   

  	
  250g

  
	
  Succinic
  Anhydride

  	
   

  	
  500g

  
	
  TAE
  50X

  	
   

  	
  2L

  
	
  TAE
  50X Solution

  	
   

  	
  101L

  
	
  TEMED

  	
   

  	
  225ml

  
	
  TEN
  Buffer

  	
   

  	
  150gal

  
	
  Tetramethylammonium
  Chloride Solution, molecular biology reagent

  	
   

  	
  25g

  
	
  Triethylene
  Glycol Diacrylate

  	
   

  	
  250g

  
	
  Trifluoroacetic
  Acid

  	
   

  	
  25mL

  
	
  Tris

  	
   

  	
  7kg

  
	
  Tris
  1.0M Sterile Solution pH 7.2

  	
   

  	
  4L

  
	
  Tris
  1.0M Sterile Solution pH 7.4

  	
   

  	
  9L

  
	
  Tris
  1.0M Sterile Solution pH 9.0

  	
   

  	
  1.750L

  
	
  Tris-Acetate-EDTA
  Buffer, 10x concentrate, molecular biology reagent

  	
   

  	
  7L

  
	
  Tris-Borate
  EDTA, 10X (TBE)

  	
   

  	
  50L

  
	
  Tris-EDTA
  Buffer, 100X concentrate, molecular biology reagent

  	
   

  	
  300mL

  
	
  Tris-EDTA
  Buffer, 1X solution, molecular biology reagent

  	
   

  	
  34L
  +/- 20L

  
	
  Triton
  X-100, molecular biology reagent

  	
   

  	
  250ml

  
	
  TRIZMA
  Sulfate

  	
   

  	
  100g

  
	
  Tween

  	
   

  	
  1.5L

  
	
  Urea

  	
   

  	
  1kg

  
	
  Water,
  Molecular Biology Reagent

  	
   

  	
  235L

  
	
  Wizard(R)PCR
  Preps DNA Purification System

  	
   

  	
  2
  kits

  
	
  Xylene Cyanole FF

  	
   

  	
  10.5g

  
	
  Xylenes, Mixed ACS Reagent

  	
   

  	
  1.5L

  



 


82

















 


	
   

  	
   

  	
  Estimated

  	
   

  	
  Estimated

  	
   

  
	
   

  	
   

  	
  Quantity in House

  	
   

  	
  Quantity in House

  	
   

  
	
  Item

  	
   

  	
  R and D

  	
   

  	
  Clinical

  	
   

  
	
  Stool samples

  	
   

  	
  1,000

  	
   

  	
  5,000

  	
   

  
	
  Stool homogenates

  	
   

  	
  125,000 X 32
  mL

  	
   

  	
  125,000 X 32
  mL

  	
   

  
	
  Blood samples

  	
   

  	
  50,000 X 5
  mL

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
  Plus an additional

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  200/wk

  	
   

  	
   

  	
   

  
	
  Biohazard Trash

  	
   

  	
  20 Boxes

  	
   

  	
  20 Boxes

  	
   

  
	
  Contaminated Hoods (Filters) (Low Grade
  Risk)

  	
   

  	
  10

  	
   

  	
  10

  	
   

  



 


83

















 


EXHIBIT H


 


FORM OF LETTER OF CREDIT


 


84














 


EXHIBIT I


NON-DISTURBANCE, ATTORNMENT


AND SUBORDINATION AGREEMENT


 


THIS
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT (this “AGREEMENT”) is
made and entered into as of                       ,
2003, by, between and among WELLS FARGO BANK, NATIONAL ASSOCIATION, as lead
arranger and administrative agent for itself and other banks (hereinafter
referred to as “BENEFICIARY” or “WELLS FARGO”),                                                                 
(“LESSEE”), and                                                                                                                 ,
a                           
limited liability company (“LESSOR”).


 


RECITALS


 


A.    Lessor
has requested that Beneficiary make a loan to be evidenced by a Promissory Note
(the “NOTE”), and secured, INTER ALIA, by a Mortgage, Security Agreement, and
Assignment of Leases and Rents (the “MORTGAGE “), which Mortgage shall
constitute a lien or encumbrance on that certain real property more particularly
described in the attached EXHIBIT A (the “PROPERTY”).


 


B.    Lessee
is the holder of a leasehold estate covering a portion of the Property (the
“DEMISED PREMISES”) pursuant to the terms of that certain lease dated                                       ,
         as amended pursuant to                             
(collectively, the “LEASE”). A true and correct copy of the Lease has
previously been delivered to Beneficiary.


 


C.    Lessee,
Lessor and Beneficiary desire to confirm their understanding with respect to
the Lease and the Mortgage.


 


AGREEMENT


 


1.     So
long as Lessee is not in default (beyond any period given Lessee to cure such
default) in the payment of rent or in the performance of any of the terms,
covenants or conditions of the Lease on Lessee’s part to be performed, Lessee’s
possession and occupancy of the Demised Premises shall not be interfered with
or disturbed by Beneficiary during the term of the Lease or any extension
thereof duly exercised by Lessee.


 


2.     Lessee
hereby consents to the assignment by Lessor to Beneficiary of the Lease, as set
forth in the Mortgage. If the interests of Lessor shall be transferred to
and/or owned by Beneficiary by reason of judicial foreclosure, power-of-sale
foreclosure or other proceedings brought by it, or by any other manner,
including, but not limited to Beneficiary’s exercise of its rights under the
Mortgage, and Beneficiary succeeds to the interest of the Lessor under the Lease,
Lessee shall be bound to Beneficiary under all of the terms, covenants and
conditions of the Lease for the balance of the remaining term thereof and any
extension thereof duly exercised by Lessee, with the same force and effect as
if Beneficiary were the Lessor under the Lease, and Lessee does hereby attorn to
Beneficiary as its lessor, said attornment to be effective and self-operative without
the execution of any further instruments on the part of any of the parties
hereto immediately upon Beneficiary’s succeeding to the interest of the lessor
under the Lease; provided, however, that Lessee shall be under no obligation to
direct its payment of rent to Beneficiary until Lessee receives written notice
from Beneficiary that it has succeeded to the interest of Lessor under the
Lease or that it has terminated the Lessor’s right to collect rents as provided
in the Mortgage. The respective rights and obligations of Lessee and Beneficiary
upon such attornment, to the extent of the then remaining balance of the term
of the Lease and any such extension, shall be and are the same as now set


 


85

















 


forth
therein, it being the intention of the parties hereto for this purpose to incorporate
the Lease in this Agreement by reference with the same force and effect as if
set forth in full herein.


 


3.     If
Beneficiary shall succeed to the interest of Lessor under the Lease,
Beneficiary shall, subject to the last sentence of this SECTION 3, be bound to
Lessee under all of the terms, covenants and conditions of the Lease; provided,
however, that Beneficiary shall not be:


 


(a)   Liable
for any act or omission of any prior lessor (including Lessor); or


 


(b)   Subject
to any offsets, defenses or counterclaims which Lessee might have against any
prior lessor (including Lessor); or


 


(c)   Bound
by any rent, additional rent or advance rent which Lessee might have paid for
more than the current month to any prior lessor (including Lessor) and all such
rent shall remain due and owing notwithstanding such advance payment; or


 


(d)   Bound
by any amendment or modification of the Lease made without its consent and written
approval; or


 


(e)           Required to restore the building,
complete any improvements or otherwise perform the obligations of Lessor under
the Lease in the event of a foreclosure of the Mortgage or acceptance by
Beneficiary of a deed in lieu of foreclosure, in either instance prior to full restoration
of the building or completion of any improvements.


 


Neither
Wells Fargo nor any other party who, from time to time, shall be included in
the definition of the term “Beneficiary” hereunder shall have any liability or
responsibility under or pursuant to the terms of this Agreement or the Lease
after it ceases to own a fee interest in or to the property described on
EXHIBIT A.


 


4.     Subject
to the terms of this Agreement (including, but not limited to, those in SECTION
2 hereof), the Lease and the terms thereof are, and shall at all times continue
to be, subject and subordinate in each and every respect, to the Mortgage and
their respective terms, to any and all renewals, modifications, extensions,
substitutions, replacements and/or consolidations of the Mortgage, and to all
other liens now or hereafter serving as security for the Note. Nothing herein
contained shall be deemed or construed as limiting or restricting the
enforcement by Beneficiary of any of the terms, covenants, provisions or remedies
of the Mortgage, whether or not consistent with the Lease.


 


5.     The
term “Beneficiary” shall be deemed to include Wells Fargo and all of its
successors and assigns, including anyone who shall have succeeded to Lessor’s
interest by, through or under judicial or power-of-sale foreclosure or other
proceedings brought pursuant to the Mortgage, or deed in lieu of such foreclosure
or proceedings, or otherwise.


 


6.     In
the absence of the prior written consent of Beneficiary, Lessee agrees not to
do any of the following: (a) prepay the rent under the Lease for more than one
(1) month in advance, (b) enter into any agreement with the Lessor to amend or
modify the Lease, (c) voluntarily surrender the Demised Premises or, except as
expressly permitted under the Lease, terminate the Lease prior to the expiration
date thereof set forth in the Lease, and (d) sublease or assign the Demised
Premises.


 


7.     In
the event Lessor shall fail to perform or observe any of the terms, conditions
or agreements in the Lease, Lessee shall give written notice thereof to
Beneficiary and Beneficiary shall


 


86

















 


have
the right (but not the obligation) to cure such failure. Lessee shall not take
any action with respect to such failure under the Lease, including, without limitation,
any action in order to terminate, rescind or avoid the Lease or to withhold any
rent thereunder, for a period of thirty (30) days after receipt of such written
notice by Beneficiary; provided, however, that in the case of any default which
cannot with diligence be cured within said 30-day period, if Beneficiary shall
proceed promptly to cure such failure and thereafter prosecute the curing of
such failure with diligence and continuity, the time within which such failure
may be cured shall be extended for such period as may be necessary to complete
the curing of such failure with diligence and continuity.


 


8.     So
long as the loan evidenced by the Note (the “LOAN”) is outstanding, Lessee
covenants to provide Beneficiary with all information, including, but not limited
to evidence of payment of taxes and insurance (if Lessee is obligated for such
payments under the Lease) to which the Lessor may be entitled under the Lease.


 


9.     So
long as the Loan is outstanding, Beneficiary or its designee may enter upon the
Property at all reasonable times, upon twenty-four (24) hours notice during
normal working hours, to visit or inspect the Property and discuss the affairs,
finances and accounts of Lessee applicable to the Property or the Lease at such
reasonable times as Beneficiary or its designee may request.


 


10.   Lessee
hereby represents and warrants that the Lease and this Agreement have been duly
authorized, executed and delivered by Lessee and constitute legal, valid and
binding instruments, enforceable against Lessee in accordance with their
respective terms, except as such terms may be limited by bankruptcy, insolvency
or similar laws affecting creditors’ rights generally.


 


11.   This
Agreement may not be modified orally or in any other manner than by an
agreement in writing signed by the parties hereto and their respective
successors in interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns.


 


12.   This
Agreement may be executed in several counterparts, and all so executed shall
constitute one agreement, binding on all parties hereto, notwithstanding that
all parties are not signatories to the original or the same counterpart.


 


13.   All
notices or other communications required or permitted to be given pursuant to
the provisions hereof shall be in writing and shall be considered as properly
given if mailed by first class United States mail, postage prepaid, registered
or certified with return receipt requested, or by delivering same in person to
the intended addressee, or by prepaid telegram. Notice so given in person or by
telegram shall be effective upon its deposit. Notice so given by mail shall be
effective two (2) days after deposit in the United States mail. Notice given in
any other manner shall be effective only if and when received by the addressee.
For purposes of notice, the addresses of the parties shall be:


 


	
  Lessor:

  	
  Marlborough
  Campus Limited Partnership

  	
   

  
	
   

  	
  c/o
  Berwind Property Group, Inc.

  	
   

  
	
   

  	
  770
  Township Line Road, Suite 150

  	
   

  
	
   

  	
  Yardley,
  PA 19067

  
	
   

  	
  Attention:

  	
  Scott
  A. Williams

  
	
   

  	
   

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
  Lessee:

  	
   

  	
   

  
				



 


87

















 


	
  Beneficiary:

  	
  Wells
  Fargo Bank, National Association

  	
   

  
	
   

  	
  c/o
  Real Estate Merchant Banking

  	
   

  
	
   

  	
  1750
  H Street, N.W., Suite 400

  	
   

  
	
   

  	
  Washington,
  D.C. 20006

  
	
   

  	
  Attention:

  	
  Manager
  - Loan Administration Department

  
				



 


provided,
however, that any party shall have the right to change its address for notice
hereunder to any other location within the continental United States by the
giving of thirty (30) days’ notice to the other parties in the manner set forth
hereinabove.


 


88

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  “Lessee”

  	
   

  
	
   

  	
   

  	
   

  
	
  STATE
  OF 

  	
   

  	
       )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  )  ss:

  	
   

  
	
  COUNTY
  OF 

  	
   

  	
       )

  	
   

  	
   

  



 


I,
a Notary Public in and for the aforesaid jurisdiction, do hereby certify that                                               ,
who is personally well known to me as, or satisfactorily proven to be, the
person named as                           
of in the foregoing Non-Disturbance, Attornment, Estoppel and Subordination
Agreement bearing date as of the         
day of                 ,
2003, personally appeared before me in the said jurisdiction, and by virtue of
the authority vested in him or her by said Agreement, acknowledged the same to
be the act and deed of said organization, and delivered the same as such.


 


GIVEN
under my hand and official seal this         
day of                   ,
2003.


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
					



 


[SIGNATURES CONTINUED ON NEXT PAGE]


 


89

















 


LESSOR:


 


	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
  STATE
  OF 

  	
   

  	
       )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  )  ss:

  	
   

  
	
  COUNTY
  OF 

  	
   

  	
       )

  	
   

  	
   

  



 


I,
a Notary Public in and for the aforesaid jurisdiction, do hereby certify that                                                     ,
who is personally well known to me as, or satisfactorily proven to be, the
person named as the                                               
of
                                                        ,
Lessor in the foregoing Non-Disturbance, Attornment, Estoppel and Subordination
Agreement bearing date as of the         
day of                   ,
2003, personally appeared before me in the said jurisdiction, and by virtue of
the authority vested in him or her by said Agreement, acknowledged the same to
be the act and deed of said organization, and delivered the same as such.


 


GIVEN
under my hand and official seal this         
day of                   ,
2003.


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
					



 


[SIGNATURES CONTINUED ON NEXT PAGE]


 


90

















 


WELLS
FARGO BANK, NATIONAL


ASSOCIATION


 


	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Erin
  P. Peart

  
	
   

  	
   

  	
  Vice
  President

  



 


	
  DISTRICT
  OF COLUMBIA

  	
  )  ss:

  	
   

  



 


I,
a Notary Public in and for the aforesaid jurisdiction, do hereby certify that
ERIN P. PEART, who is personally well known to me as, or satisfactorily proven
to be, the person named as Vice President of Wells Fargo Bank, National
Association in the foregoing Non-Disturbance, Attornment, Estoppel and
Subordination Agreement bearing date as of the         
day of
                  ,
2003, personally appeared before me in the said jurisdiction, and by virtue of
the authority vested in him/her by said Agreement, acknowledged the same to be
the act and deed of Wells Fargo Bank, National Association, and delivered the
same as such.


 


GIVEN
under my hand and official seal this         
day of                   ,
2003.


 


	
   

  	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
					



 


91

















 


EXHIBIT A


 


LEGAL DESCRIPTION OF THE PROPERTY


 


92

















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
  MARLBOROUGH
  OFFICE LEASE

  	
  1

  
	
   

  	
   

  
	
  ARTICLE
  1

  	
  PREMISES,
  BUILDING, PROJECT, AND COMMON AREAS

  	
  3

  
	
  1.1

  	
  The
  Premises

  	
  3

  
	
  1.2

  	
  The
  Building and The Project

  	
  3

  
	
  1.3

  	
  Common
  Areas

  	
  3

  
	
  1.4

  	
  Furniture

  	
  5

  
	
  1.5

  	
  Card
  Key Access

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
  LEASE
  TERM

  	
  5

  
	
  2.1

  	
  Lease
  Term

  	
  5

  
	
  2.2

  	
  Option
  to Extend

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
  BASE RENT AND INTERIM RENT

  	
  6

  
	
  3.1

  	
  Base
  Rent

  	
  6

  
	
  32

  	
  Interim
  Rent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
  ADDITIONAL
  RENT

  	
  7

  
	
  4.1

  	
  General
  Terms

  	
  7

  
	
  4.2

  	
  Definitions
  of Key Terms Relating to Additional Rent

  	
  7

  
	
  4.3

  	
  Allocation
  of Direct Expenses

  	
  10

  
	
  4.4

  	
  Calculation
  and Payment of Additional Rent

  	
  11

  
	
  4.5

  	
  Taxes
  and Other Charges for Which Tenant Is Directly Responsible

  	
  12

  
	
  4.6

  	
  Landlord’s
  Books and Records

  	
  12

  
	
  4.7

  	
  Tenant’s
  Electricity Cost

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
  USE
  OF PREMISES

  	
  13

  
	
  5.1

  	
  Permitted
  Use

  	
  13

  
	
  5.2

  	
  Prohibited
  Uses

  	
  13

  
	
  5.3

  	
  CC&Rs

  	
  13

  
	
  5.4

  	
  Condition
  of Premises

  	
  14

  
	
  5.5

  	
  Demising
  Plan

  	
  14

  
	
  5.5

  	
  Rules
  and Regulations

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
  SERVICES
  AND UTILITIES

  	
  14

  
	
  6.1

  	
  Standard
  Tenant Services

  	
  14

  
	
  6.2

  	
  Special
  Tenant Services

  	
  14

  
	
  6.3

  	
  Requirements
  of Tenant

  	
  15

  
	
  6.4

  	
  Interruption
  of Use

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7

  	
  REPAIRS

  	
  16

  
	
  7.1

  	
  Landlord’s
  Obligations

  	
  16

  
	
  7.2

  	
  Tenant’s
  Obligations

  	
  16

  



 


i

















 


	
   

  	
   

  	
  PAGE

  
	
  ARTICLE
  8

  	
  ADDITIONS
  AND ALTERATIONS

  	
  17

  
	
  8.1

  	
  Landlord’s
  Consent to Alterations

  	
  17

  
	
  8.2

  	
  Manner
  of Construction

  	
  17

  
	
  8.3

  	
  Payment
  for Improvements

  	
  18

  
	
  8.4

  	
  Construction
  Insurance

  	
  18

  
	
  8.5

  	
  Landlord’s
  Property

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  COVENANT AGAINST LIENS

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  INSURANCE

  	
  19

  
	
  10.1

  	
  Indemnification
  and Waiver

  	
  19

  
	
  10.2

  	
  Tenant’s
  Compliance With Landlord’s Fire and Casualty Insurance

  	
  20

  
	
  10.3

  	
  Tenant’s
  Insurance

  	
  20

  
	
  10.4

  	
  Form
  of Policies

  	
  21

  
	
  10.5

  	
  Subrogation

  	
  21

  
	
  10.6

  	
  Landlord’s
  Insurance

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
  DAMAGE
  AND DESTRUCTION

  	
  22

  
	
  11.1

  	
  Repair
  of Damage by Landlord

  	
  22

  
	
  11.2

  	
  Landlord’s
  Option to Repair

  	
  23

  
	
  11.3

  	
  Waiver
  of Statutory Provisions

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
  NON-WAIVER

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  CONDEMNATION

  	
  24

  
	
  13.1

  	
  Condemnation

  	
  24

  
	
  13.2

  	
  Tenant’s
  Right to Award

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  14

  	
  ASSIGNMENT
  AND SUBLETTING

  	
  25

  
	
  14.1

  	
  Transfers

  	
  25

  
	
  14.2

  	
  Landlord’s
  Consent

  	
  26

  
	
  14.3

  	
  Transfer
  Premium

  	
  27

  
	
  14.4

  	
  Landlord’s
  Option as to Subject Space

  	
  27

  
	
  14.5

  	
  Effect
  of Transfer

  	
  28

  
	
  14.6

  	
  Occurrence
  of Default

  	
  28

  
	
  14.7

  	
  Non-Transfers

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  15

  	
  SURRENDER
  OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES

  	
  29

  
	
  15.1

  	
  Surrender
  of Premises

  	
  29

  
	
  15.2

  	
  Removal
  of Tenant Property by Tenant

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  16

  	
  HOLDING
  OVER

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  17

  	
  ESTOPPEL
  CERTIFICATES

  	
  30

  



 


ii

















 


	
   

  	
   

  	
  PAGE

  
	
  ARTICLE 18

  	
  SUBORDINATION

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19

  	
  DEFAULTS: REMEDIES

  	
  31

  
	
  19.1

  	
  Events
  of Default

  	
  31

  
	
  19.2

  	
  Remedies
  Upon Default

  	
  32

  
	
  19.3

  	
  Subleases
  of Tenant

  	
  33

  
	
  19.4

  	
  No
  Relief From Forfeiture After Default

  	
  33

  
	
  19.5

  	
  Efforts
  to Relet

  	
  34

  
	
  19.6

  	
  Landlord
  Default

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  20

  	
  COVENANT
  OF QUIET ENJOYMENT

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  21

  	
  SECURITY
  DEPOSIT

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  22

  	
  BACK-UP
  GENERATOR

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  23

  	
  SIGNS

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  24

  	
  COMPLIANCE
  WITH LAW

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  25

  	
  LATE
  CHARGES

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  26

  	
  LANDLORD’S
  RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT

  	
  38

  
	
  26.1

  	
  Landlord’s
  Cure

  	
  38

  
	
  26.2

  	
  Tenant’s
  Reimbursement

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  27

  	
  ENTRY
  BY LANDLORD

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  28

  	
  TENANT
  PARKING

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  29

  	
  MISCELLANEOUS
  PROVISIONS

  	
  40

  
	
  29.1

  	
  Terms;
  Captions

  	
  40

  
	
  29.2

  	
  Binding
  Effect

  	
  40

  
	
  29.3

  	
  No
  Air Rights

  	
  40

  
	
  29.4

  	
  Transfer
  of Landlord’s Interest

  	
  40

  
	
  29.5

  	
  Prohibition
  Against Recording

  	
  40

  
	
  29.6

  	
  Landlord’s
  Title

  	
  41

  
	
  29.7

  	
  Relationship
  of Parties

  	
  41

  
	
  29.8

  	
  Application
  of Payments

  	
  41

  
	
  29.9

  	
  Time
  of Essence

  	
  41

  
	
  29.10

  	
  Partial
  Invalidity

  	
  41

  
	
  29.11

  	
  No
  Warranty

  	
  41

  
	
  29.12

  	
  Landlord
  Exculpation

  	
  41

  
	
  29.13

  	
  Entire
  Agreement

  	
  42

  
	
  29.14

  	
  Right
  to Lease

  	
  42

  
	
  29.15

  	
  Force
  Majeure

  	
  42

  



 


iii

















 


	
   

  	
   

  	
  PAGE

  
	
  29.16

  	
  Notices

  	
  42

  
	
  29.17

  	
  Joint
  and Several

  	
  43

  
	
  29.18

  	
  Authority

  	
  43

  
	
  29.19

  	
  Attorneys’
  Fees

  	
  43

  
	
  29.20

  	
  Governing
  Law

  	
  44

  
	
  29.21

  	
  Submission
  of Lease

  	
  44

  
	
  29.22

  	
  Brokers

  	
  44

  
	
  29.23

  	
  Independent
  Covenants

  	
  44

  
	
  29.24

  	
  Project
  or Building Name and Signage

  	
  44

  
	
  29.25

  	
  Counterparts

  	
  45

  
	
  29.26

  	
  Confidentiality

  	
  45

  
	
  29.27

  	
  Transportation
  Management

  	
  45

  
	
  29.28

  	
  Building
  Renovations

  	
  45

  
	
  29.29

  	
  No
  Violation

  	
  45

  
	
  29.30

  	
  Communications
  and Computer Lines

  	
  46

  
	
  29.31

  	
  Hazardous
  Materials

  	
  46

  
	
  29.32

  	
  Development
  of the Project

  	
  46

  
	
  29.33

  	
  No
  Consequential Damages

  	
  47

  
	
  29.34

  	
  Compliance
  with TIF Agreement

  	
  48

  
	
  29.35

  	
  Tenant’s
  Financial Condition

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  30

  	
  RIGHT
  OF FIRST OFFER

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  31

  	
  SATELLITE
  DISH

  	
  50

  
	
   

  	
   

  	
   

  
	
  List
  of Exhibits

  	
   

  	
   

  
	
  Exhibit
  A

  	
  Plan
  of the Premises

  	
   

  
	
  Exhibit
  B

  	
  Plan
  of the Project identifying Buildings 1, 2, 3, and 4

  	
   

  
	
  Exhibit
  C

  	
  Furniture
  Inventory List

  	
   

  
	
  Exhibit
  D

  	
  Rules
  and Regulations

  	
   

  
	
  Exhibit
  E

  	
  Form
  of Estoppel Certificate

  	
   

  
	
  Exhibit
  F

  	
  Annual
  Reporting Form

  	
   

  
	
  Exhibit
  G

  	
  List
  of Hazardous Materials

  	
   

  
	
  Exhibit
  H

  	
  Form
  of Letter of Credit

  	
   

  
	
  Exhibit
  I

  	
  Form
  of SNDA

  	
   

  
				



 


iv






 










 


FIRST AMENDMENT TO LEASE


 


This First Amendment to Lease (the “Amendment”),
dated as of August 28, 2003, is
made by  and between
MARLBOROUGH CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited partnership (“Landlord”),
and EXACT Sciences Corporation, a Delaware corporation (“Tenant”).


 


BACKGROUND


 


Landlord and Tenant entered into a lease dated as of
January 23, 2003 (the “Lease”) pursuant to which Landlord has leased to Tenant
certain premises (the “Premises”) located in Building 1, 3 Com Drive,
Marlborough Campus, in Marlborough, Massachusetts.


 


Landlord and Tenant wish to amend the Lease as more
particularly set forth herein.


 


AGREEMENT


 


In consideration of the
mutual covenants and agreements contained herein and in the Lease, and
intending to be legally bound hereby, the parties hereto agree as follows:


 


1.             Defined Terms.
Capitalized terms used in this Amendment and not otherwise defined herein shall
have the meaning set forth in the Lease.


 


2.             Furniture.
Tenant has advised Landlord that it does not desire to use all of the Furniture
and desires to remove some of the Furniture from the Premises. In particular,
Tenant has requested Landlord to take possession of, and to delete from the
terms of the Lease and from Exhibit C to the Lease, all of the Furniture not
listed on Exhibit J attached hereto and made a part hereof (the “Removed
Furniture”) (The furniture listed on Exhibit J shall be referred to herein as the
“Retained Furniture”). Landlord has agreed to do so, subject to the following
terms and conditions:


 


a.              All
“cubes” and other similarly constructed furniture which is part of the Removed Furniture,
shall, at the sole cost and expenses of Tenant, be disassembled by Tenant, and
each piece or component thereof shall be labeled so that the pieces can be readily
re-assembled;


 


b.             Tenant
shall have moved the Removed Furniture to a location designated by Landlord on
the first floor of Building 3 of the Project, in a commercially reasonable
manner so as to protect the Removed Furniture from damage;


 


c.              All
wiring connected to the Removed Furniture shall be pulled into the ceiling
space of the Premises immediately above where it is currently located and left
there so that it can be re-used in the future;


 


d.             Landlord
(and/or its authorized agent(s)) shall have the right to be present during the processes
described in clauses a., b. and c. above, and Tenant shall comply with all
reasonable requests of Landlord, or its authorized agent, concerning such work;


 


1

















 


e.             Upon delivery of
the Removed Furniture to the space identified by Landlord in Building 3,
Exhibit C to the Lease shall be replaced in its entirety by Exhibit C attached
hereto, and Tenant shall have no further rights or responsibilities with
respect to the Removed Furniture; and


 


f.             Tenant shall provide Landlord with evidence of the cost
paid by Tenant to third parties to move the Removed Furniture as set forth
above, and Landlord shall reimburse Tenant for one-half of said cost, up to a
maximum of $10,000.00.


 


3.             HVAC for Lab Areas in the Premises. Air
conditioning for Lab Areas being installed by Tenant is currently provided by
one of the two 110 nominal ton (all chiller capacities/allocations referred to
in this Amendment are understood to be “nominal tons”) chillers located on the
roof of the Building (the “Existing Chillers”). Landlord has agreed to permit
another tenant in the Building (the “Other Tenant”), to install a one new 110
nominal ton rooftop chiller (the “New Chiller”), and other components required
to create an integrated chiller  system (as used in this Lease, the term “Chiller System” will refer to
the existing system and to the system, as upgraded with the New Chiller)
including the New Chiller and the Existing Chillers to provide chilled water
cooling capacity for certain non-office areas of the Building (including,
without limitation, the Lab Areas within the Premises), and to connect the
Chiller System (including without limitation the New Chiller and the two
Existing Chillers) to the Other Tenant’s emergency back-up generators. Landlord
expects that the proposed upgrade to the Chiller System will be operational
sometime prior to March 1, 2004, but Landlord shall have no
obligation to cause the Chiller System to be upgraded as set forth above, and
no liability if such upgrade is not completed. In connection with such changes
to the Chiller System, the parties agree that the Lease is hereby amended as
follows:


 


a.              “Tenant’s
Chiller Share” under the Lease shall be 33.64% (based on 74/220 tons)”.


 


b.              Section
4.7.2 of the Lease will be amended in its entirety to read as follows:


 


“4.7.2 Landlord may install or cause to be installed
a separate submeter, checkmeter or flowmeter to measure the electricity
utilized by the Chiller System. Tenant shall be responsible for Tenant’s
Chiller Share of the electricity cost attributable to the Chiller System.
Tenant shall pay for its Chiller Share of said electricity cost, based upon
meter readings and the statements received from Landlord, within thirty days after
receipt thereof. The foregoing payments by Tenant shall be in addition to
Tenant’s Electricity Cost. In the event that such usage is not separately
metered, then Landlord may give Tenant written notice of Landlord’s estimate of
Tenant’s Chiller Share of such expenses, along with the information utilized by
Landlord in reaching such determination, and Tenant shall reimburse Landlord,
as Additional Rent for such electrical expenses (in addition to Tenant’s
Electricity Cost).”


 


c.              Section
6.2 of the Lease will be amended in its entirety to read as follows:


 


“ 6.2 Special HVAC Services. Tenant agrees
that it has designed and modified or will design and modify the HVAC system
ductwork and controls for the sixth


 


2

















 


floor of the Premises to the “freezer farm” area of
the Premises and any other lab areas within the Premises (collectively, the “Lab
Areas”) designated on Exhibit A to the Lease, so that the Lab Areas can be
cooled separately from the remainder of the Building (e.g. while other areas of
the Building are being heated, or not being cooled). To provide chilled water
cooling capacity for the Lab Areas, Landlord will allocate to Tenant a maximum
of 74 nominal tons of chilled water capacity from the Chiller System for the
Lab Areas. Subject to the provisions of Sections 4.7.2 and 7.1, and provided
that Tenant has designed, modified and installed the HVAC system ductwork and
controls for the Premises to the Lab Areas as required to provide such service,
Landlord shall provide continuous air conditioning to the Lab Areas from the
Chiller System, provided however, Landlord shall not be liable to Tenant for
any unexpected outages or reductions in electrical power or air conditioning
supply or any damages in connection therewith. Notwithstanding the foregoing,
in the event that Landlord must shut down HVAC, the Chiller System, or
electrical power to the Premises or any portion thereof for maintenance,
repairs, upgrade, or replacement, Landlord shall give Tenant at least
twenty-four hours (24) advance notice of the estimated time and date for such
work, and the length of time service is expected to be interrupted and provided
that Landlord has given Tenant such notice, Landlord shall not be liable to
Tenant for any such scheduled outages or reductions in electrical power or air
conditioning supply or any damages in connection therewith. Notwithstanding
anything to the contrary contained in this Lease, neither Landlord nor the
Other Tenant (nor their respective partners, members, officers, directors,
employees or representatives) shall have any liability whatsoever based on or
related to the failure of the Other Tenant’s generator to provide emergency
power to the Chiller System, and Tenant shall be solely responsible for
providing back-up power for air conditioning for the Lab Areas and back-up air
conditioning for the Lab Areas should Tenant deem it necessary (for scheduled
as well as unscheduled outages or reductions).”


 


d.             The last three sentences sentence of Section 7.1 of the
Lease will be amended in their entirety to read as follows:


 


“In the event that any maintenance, repair and/or
replacement is required of the Chiller System and its components (including,
without limitation, the Chillers, chilled water pumps, valves, and automatic
temperature controls) servicing the Lab Areas, and Tenant expects that Tenant
will suffer monetary loss or damages if such work is not completed immediately,
Tenant shall give notice of such situation to Landlord and Landlord’s property
manager, clearly stating the emergency nature of the situation, and if Landlord
is unable to proceed to effect such maintenance, repairs or replacements
immediately, Tenant may do so, and the cost of such work shall be allocated and
paid for as provided in the next paragraph of this Section 7.1.


 


Notwithstanding anything herein to the contrary,
Tenant shall reimburse Landlord as Additional Rent, within thirty (30) days
after receipt of Landlord’s invoice, for (i) Tenant’s Chiller Share of all
costs paid to third parties associated with the


 


3

















 


repair, maintenance and replacement of the Chiller
System, and (ii) one hundred percent (100%) of all costs associated with the
repair, maintenance and replacement of the fan coils exclusively servicing the
Lab Areas, and such costs shall thereafter not be included in the calculation
of Operating Expenses. Notwithstanding the foregoing, with respect to all costs
for replacements of the Chiller System (or components thereof) which service
the Lab Areas, that are capital in nature under generally accepted accounting
principles, at Tenant’s option, to be exercised within thirty days after
receipt of Landlord’s first invoice for such costs, in lieu of reimbursing
Landlord within thirty days, such costs shall be amortized (with interest at
twelve percent (12%) per annum) over the lesser of (i) the remaining Term of
the Lease, or (ii) the useful life of the item being replaced, and Tenant shall
pay Landlord, as Additional Rent, on a monthly basis, the amortized portion and
interest applicable thereto.”


 


4.             Windows. On
or before September 30, 2003, Landlord will install windows in the  corner conference room and in the adjacent
conference room on the fifth floor of the Premises, as more particularly shown
on Exhibit K attached hereto, and Tenant shall reimburse Landlord, within ten
(10) days after receipt of Landlord’s invoice therefore, for one-half of all
costs associated with such installation, up to a maximum of $18,000 (based on a
total estimated cost of $36,000.00).


 


5.             Parking. Section 9 of the Summary is amended in
its entirety to read as follows: “Tenant shall have non-exclusive use of 149
parking spaces at the Project, as more particularly set forth in Article 28.”


 


6.             Security. Section 6.1.6 of the Lease is amended
to read as follows: “Landlord shall provide a security guard to patrol the
Project between the hours of 6 p.m. and 8 a.m., Monday to Thursday, excluding
Holidays, and shall maintain the existing card access monitoring system, or a
substantially similar system, for entrance into the Building and the Common
Areas.”


 


7.             Lease Ratified and Confirmed. Except as
specifically modified hereby, the Lease shall remain unmodified and in full
force and effect. In the event of any inconsistency between


 


[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]


 


4

















 


the terms and conditions of this Amendment and the
terms and conditions of the Lease, the terms and conditions of this Amendment
shall govern.


 


IN WITNESS WHEREOF, Landlord and Tenant have caused
this Amendment to be executed the day and date first above written.


 


	
   

  	
  “Landlord”:

  
	
   

  	
   

  
	
   

  	
  MARLBOROUGH
  CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited 

  partnership

  
	
   

  	
   

  
	
   

  	
  By:
    Bergen of Marlborough, Inc., general

  
	
   

  	
  partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John L. Brogan

  
	
   

  	
   

  	
  Its:

  	
  VICE PRESIDENT

  
	
   

  	
   

  



 


	
   

  	
  “Tenant”:

  
	
   

  	
   

  
	
   

  	
  EXACT SCIENCES CORPORATION

  
	
  Attest:

  	
   

  
	
   

  	
  By: 

  	
  /s/ Stephen A. Read

  
	
   

  	
   

  	
  Name: Stephen A. Read

  
	
  By: 

  	
  /s/ Jeff Luber

  	
   

  	
   

  	
   Title: VP, Controller

  
	
   

  	
  Name: Jeff Luber

  	
   

  	
  (Corporate Seal)

  
	
   

  	
   Title: General Counsel

  	
   

  	
   

  	
   

  



 


5

















 


(ACKNOWLEDGMENT FOR CORPORATION)


 


COMMONWEALTH OF MASSACHUSETTS


 


	
  COUNTY
  OF Middlesex

  	
  SS.:

  	
   

  



 


BE IT REMEMBERED, that on this 22 day of August, 2003, before me, the subscriber,
a Notary Public of the Commonwealth of Massachusetts personally appeared
Jeffrey R. Luber, who, being by me duly sworn on his oath, does depose and make
proof to my satisfaction that he is the
                   Secretary
of EXACT Sciences Corporation, the Tenant named in the foregoing Lease; that
Steve Read is Vice President
of said corporation; that the execution of the foregoing Lease was duly authorized; and the seal affixed to said
instrument is the corporate seal and was thereto affixed and said instrument
signed and delivered by said Vice President, as and for his voluntary act and deed and as for the
voluntary act and deed of said corporation, in presence of deponent, who
thereupon subscribed his name thereto as witness.


 


Subscribed
and sworn to 

before me at Marlborough, MA 

on the date aforesaid. 


 


 


	
   

  	
  /s/ Jeffrey
  R. Luber

  
	
   

  	
  Secretary

  



 


 


	
  /s/ Lanee L. Johnson

  	
   

  
	
  Notary Public

  
	
  commission expires Jan. 29, 2010

  
	
   

  
	
  (Notarial
  Seal)

  



 


6

















 


EXHIBIT J


 


RETAINED FURNITURE


 


Exact Sciences/3-Com Furniture Inventory:


 


Cubicle workstations: 88 total; 68 installed and 20
in storage on 5th floor 


 


Cubicle conference tables: 9 


 


Red task chairs: 185 


 


Mustard sled chairs: 149


 


Grey conference chairs: 15 


 


Blue conference chairs: 22 


 


Tan reception chairs: 4 


 


Reception table: 1 


 


Bookcases: 9 


 


2-drawer lateral files: 6 


 


3-drawer lateral files: 11 


 


4-drawer lateral files: 1


 


Conference tables:


•        4’
x 4’ square: 6


•        4’ x
5’ rectangular: 1


•        4’ x
6’ rectangular: 1


•        4’
x 8’ rectangular: 1


 


Kitchen Areas


•        GE
Mircowave: 2


•        Curtis
Alpha coffee maker: 2


•        Oasis
water cooler: 2


•        Stainless
steel tables: 4


•        Stainless
steel chairs: 12


 


7

















 


EXHIBIT 
C


 


	
  Building 1 Fifth Floor 1/9/03

  	
   

  	
   

  
	
   

  	
   

  	
  Benches
  Chairs

  
	
  Lab 1.5.033

  	
   

  	
  None          None

  
	
  Lab 1.5.034

  	
   

  	
  27 Total     18 Total

  
	
  Lab 1.5.029

  	
   

  	
  6 ’ 1 Total  2 Total

  
	
   

  	
   

  	
   

  
	
  Kitchen Area

  	
   

  	
  1 GE Microwave

  
	
   

  	
   

  	
  1 Curtis Alpha Coffee Maker

  
	
   

  	
   

  	
  1 Oasis
  Water Cooler

  
	
   

  	
   

  	
  2 Stain.
  Steel (Indecasa) Tables 

  
	
   

  	
   

  	
  6 Stain.
  Steel Chairs

  
	
   

  	
   

  	
   

  
	
  Office Cubicles

  	
   

  	
  99 Total

  
	
  Office Trash Can

  	
   

  	
  99 Total

  
	
  Office Recycle Can

  	
   

  	
  99 Total

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  	
   

  
	
  four shelf bookcases

  	
   

  	
  10 Total

  
	
  two shelf bookcases

  	
   

  	
  5 Total

  
	
  five shelf bookcases

  	
   

  	
  2 Total

  
	
  three drawer file cabinets

  	
   

  	
  8 Total

  
	
  four drawer file cabinet

  	
   

  	
  1 Total

  
	
  36”Round Table near 1.5.238

  	
   

  	
  1 Total

  
	
   

  	
   

  	
   

  
	
  Conference
  Rooms

  	
   

  	
   

  
	
  1.5.002 Zion

  	
   

  	
  Table 8 chairs

  
	
  1.5.003 Myan
  Temple

  	
   

  	
  Table 8 chairs

  
	
  1.5.004 Yucatan

  	
   

  	
  Table 6 chairs

  
	
  1.5.006 Glacier
  Bay

  	
   

  	
  Table 8 chairs

  
	
  1.5.007 Acadia

  	
   

  	
  Table 17 chairs

  
	
  1.5.011 Ellis
  Island

  	
   

  	
  Table 6 chairs

  
	
  1.5.012 Mt
  Rushmore

  	
   

  	
  Table 6 chairs

  
	
  1.5.014 Grand
  Canyon

  	
   

  	
  Empty Room

  
	
  1.5.015 Denali
  

  	
   

  	
  Table 5 chairs

  
	
  1.5.201
  Niagra

  	
   

  	
  Table 10 chairs

  



 

















 


Exhibit K


 


[Diagram of Premises]


 














 


SECOND AMENDMENT TO LEASE


 


This
Second Amendment to Lease (the “Amendment”), dated as of January 20, 2005, is
made by and between MARLBOROUGH CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited
partnership (“LANDLORD”), and EXACT SCIENCES CORPORATION, a Delaware corporation
(“TENANT”).


 


BACKGROUND


 


Landlord
and Tenant entered into a lease dated as of January 23, 2003 (the “ORIGINAL
LEASE”), as amended by a First Amendment to lease dated as of August 28, 2003
(the “FIRST AMENDMENT”; Original Lease, as amended, the “LEASE”) pursuant to
which Landlord has leased to Tenant certain premises consisting of approximately
55,740 rentable square feet (the “Original Premises”) located on the fifth and
sixth floors of the building (the “BUILDING”) located at 100 Campus Drive, in
the Campus at Marlborough (the “Project”) in Marlborough, Massachusetts; and


 


Tenant
has requested Landlord to consent to a reduction in the size of the Original
Premises, to remove from the Premises the approximately 30,203 rentable square
feet of space comprising the fifth floor of the Building (the “Give Back Space”),
and to add to the Premises approximately 11,834 rentable square feet of space
located on the second floor of the Building (the “Expansion Premises”), as more
particularly shown on EXHIBIT A-1 attached hereto and made a part hereof; and


 


Landlord
and Tenant wish to amend the Lease as more particularly set forth herein.


 


AGREEMENT


 


NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and in the Lease, and for other good and valuable consideration, the
parties, intending to be legally bound hereby, the parties hereto agree as
follows:


 


1.     DEFINED
TERMS. Capitalized terms used in this Amendment and not otherwise defined
herein shall have the meaning set forth in the Lease.


 


2.     MODIFICATION
OF THE PREMISES. (a) Landlord hereby leases and rents unto the Tenant and the
Tenant hereby hires and takes from the Landlord the Expansion Premises. From
and after the date of this Amendment, all references in the Lease to the
Premises shall be deemed to include the Expansion Premises.


 


(b)   Tenant
agrees to vacate the Give Back Space on or before April 30, 2005, and to
surrender the Give Back Space to Landlord in accordance with the terms and
conditions of the Lease, as if such date were the expiration date of the Lease
with respect to the Give Back Space. Subject to the terms and conditions of
this Amendment, the Term of the Lease shall terminate with respect to the Give
Back Space on the date that Tenant vacates the Give Back Space and surrenders
it to Landlord as set forth above (such date, the “Give Back Date”). If Tenant
fails to


 


1

















 


vacate
the Give Back Space on or before April 30, 2005, other than due to Landlord’s
failure to enter into a lease with 3Com for the Give Back Space, Tenant shall
be a tenant at sufferance with respect to the Give Back Space and shall
continue paying Base Rent on the Give Back Space at the per rentable square
foot rate set forth in the Original Lease, in addition to the Base Rent set
forth in Section 5 below. Tenant acknowledges that Landlord has entered into,
or intends to enter into a lease with 3Com Corporation for the Give Back Space,
and that such lease is a material inducement to Landlord’s entering into this
Agreement, and that Landlord could suffer significant damages if Tenant defaults
under the terms of this Agreement. Nothing herein shall be deemed to constitute
Landlord’s consent or acquiescence to Tenant’s remaining in the Give Back Space
after April 30, 2005. From and after the Give Back Date, all reference in the
Lease to the Premises shall be deemed to exclude the Give Back Space.


 


(c)   From
and after the Give Back Date, the Premises shall consist of the remaining
portion of the Original Premises comprising the sixth floor of the Building
(the “Remaining Premises”) and the Expansion Premises, with the entire Premises
consisting of a total of approximately 37,371 rentable square feet, and Section
2.2 of the Summary is amended accordingly.


 


3.     TERM.
The Lease Term with respect to the Expansion Premises shall commence on the
date hereof and shall expire on July 31, 2010, concurrently with the expiration
of the Term of the Lease with respect to the Remaining Premises, unless sooner terminated
or extended pursuant to the provisions of the Lease.


 


4.     OPTION
TO EXTEND. The Option to Extend set forth in Section 2.2 of the Original Lease
may be exercised with respect to the entire Premises (as amended by this
Amendment), but not less than the entire Premises. Except as set forth in
Section 2.2 of the Original Lease, as modified by this Amendment, Tenant has no
rights to extend or renew the Lease Term.


 


5.     RENT.
(a) BASE RENT. SECTION 4 of the Summary of Basic  Lease Information in the Lease is amended to
read as follows: “4. Base Rent:


 


	
   

  	
   

  	
   

  	
   

  	
  Monthly

  	
   

  
	
   

  	
   

  	
  Annual

  	
   

  	
  Installment

  	
   

  
	
  Period

  	
   

  	
  Base Rent

  	
   

  	
  of Base Rent

  	
   

  
	
  8/1/2004-4/30/2005**

  	
   

  	
  $

  	
  1,282,020.00

  	
   

  	
  $

  	
  106,835.00

  	
  *

  
	
  5/1/2005**-7/31/2005

  	
   

  	
  $

  	
  892,826.89

  	
   

  	
  $

  	
  74,402.24

  	
  *

  
	
  8/1/2005-7/31/2006

  	
   

  	
  $

  	
  920,696.89

  	
   

  	
  $

  	
  76,724.76

  	
  *

  
	
  8/1/2006-7/31/2007

  	
   

  	
  $

  	
  948,566.89

  	
   

  	
  $

  	
  79,047.24

  	
  *

  
	
  8/1/2007-7/31/2008

  	
   

  	
  $

  	
  976,436.89

  	
   

  	
  $

  	
  81,369.74

  	
  *

  
	
  8/1/2008-7/31/2009

  	
   

  	
  $

  	
  1,004,306.89

  	
   

  	
  $

  	
  83,692.24

  	
  *

  
	
  8/1/2009-7/31/2010

  	
   

  	
  $

  	
  1,032,176.89

  	
   

  	
  $

  	
  86,014.74

  	
  *

  



 


2

















 






*Monthly
installment of rent shall be reduced, to the extent applicable, by the credit
referred to in Section 21.2 of the Original Lease.


 


**
Based on Give Back Date of April 30, 2005; to be adjusted if Give Back Date is
any date other than April 30, 2005.


 


Landlord
and Tenant agree that the Base Rent has been calculated, in part, to reimburse
Landlord for the fact that the Give Back Space is being re-leased with a base
year of calendar year 2005. The Base Rent for each year during the Lease Term
commencing on the Give Back Date shall be adjusted after the actual Direct Expenses
are determined for calendar year 2005, to add to the annual Base Rent set forth
above, the amount equal to the product of : (i) (a)the per square foot difference
in actual Direct Expenses for Building 1 for calendar year 2005 over Direct
Expenses for Building 1 for calendar year 2003 (each as adjusted in accordance
with Section 4.3 of the Original Lease, if applicable) minus (b) $24,109.39
(which is $1.312504 (the estimated difference in Direct Expenses for calendar
year 2005 over calendar year 2003), times (ii) 18,369 (the rentable square feet
in the Give Back Space). Landlord and Tenant agree that they shall enter into
an amendment setting forth the recalculated Base Rent after actual Direct
Expenses for 2005 have been determined.


 


6.     BASE
YEAR. The Base Year for the Premises shall remain as set forth in the Lease.


 


7.     TENANT’S
PRO RATA SHARE.


 


(a)   If
the Give Back Date has not occurred as of April 30, 2005, effective May 1, 2005
and continuing until the Give Back Date, Tenant’s Share shall be 12.73%, and
Tenant’s Building Share shall be 47.17%.


 


(b)   Effective
as of the Give Back Date, Tenant’s Share shall be 7.04% (based on
37,371/530,895) and Tenant’s Building Share shall be 25.53% (based on 37,371/146,362).


 


8.     “AS
IS”; NO TENANT IMPROVEMENT ALLOWANCE; NO LANDLORD LIABILITY. (a) Tenant hereby
accepts the Expansion Premises in “as is” condition. Tenant agrees to construct
the demising wall between the Expansion Premises and “3Com Proposed Area” as
shown on EXHIBIT A-1 (including without limitation, finishing the wall on the
3Com side) at Tenant’s sole cost and expense. Tenant agrees to complete such
improvements on or before February 28, 2005, subject to Force Majeure, time being
of the essence. Landlord shall not be required to perform any improvements to
the Expansion Premises or to provide Tenant with any tenant improvement allowance.
All provisions of the Lease concerning improvements constructed by Tenant shall
apply to the tenant improvements to be constructed in the Expansion Premises.


 


(b)   Tenant
acknowledges that the Expansion Space is not currently demised and that Tenant
shall be responsible for all costs to demise the Expansion Space as set forth
in Section 8(a) above. Landlord shall have no obligation to construct the said
demising wall and Landlord shall have no liability to Tenant by reason of
and/or related to any entry into the Expansion Premises through or from the
said 3Com Proposed Area.


 


3

















 


9.     TENANT’S
CHILLER SHARE. Effective on the Give Back Date, Tenant’s Chiller Share shall be
reduced to 27.5% (based on 60.5/220 tons).


 


10.   FURNITURE.
(a) All of the Furniture listed on EXHIBIT L attached hereto and made a part
hereof (the “GIVE BACK FURNITURE”) shall remain in the Give Back Space and
shall be returned to Landlord in good condition, and in accordance with the
terms and conditions of the Lease, on the Give Back Date.


 


(b)   Effective
as of the date of this Amendment, EXHIBIT C to the Lease (as amended by the
First Amendment) is deleted in its entirety and is replaced by EXHIBIT C-1 and
EXHIBIT C-2 attached hereto. Landlord and Tenant acknowledge that the parties
have conducted a “walk-through” inspection of the Expansion Premises in order
to confirm the completeness and accuracy of the Furniture shown on EXHIBIT C-2,
and to give Tenant the opportunity to confirm that the Furniture in the
Expansion Premises is in good condition and repair. Landlord shall have no
obligation to replace any Furniture that is not in good condition or repair.
Tenant accepts the Furniture in its “as-is” condition, without any representation
or warranty by Landlord. LANDLORD SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
AND/OR WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE FURNITURE.


 


11.   PARKING.
Section 9 of the Summary is amended in its entirety to read as follows,
effective as of the Give Back Date: “Tenant shall have non-exclusive use of 100
parking spaces at the Project, as more particularly set forth in Article 28.”


 


12.   TENANT’S
ELECTRICITY COST. The Expansion Premises are currently not separately metered.
If any portion of the electricity servicing the Expansion Premises is not
separately metered to Tenant, to account for Tenant’s electrical use in the
Expansion Premises, Tenant shall pay to Landlord as Additional Rent an initial
flat monthly fee calculated based on the rate of One Dollar ($1.00) per year
per rentable square foot of the portion of such space that is not separately
metered, subject to adjustment based on Landlord’s reasonable estimate of
Tenant’s electrical usage. Notwithstanding the preceding sentence, as set forth
in SECTION 4.7 of the Original Lease, Landlord shall have the right to
separately meter (or install a sub-meter or check meter for) the Expansion Premises
and/or certain systems or equipment in the Building, at Landlord’s sole cost,
at any time during the Lease Term and thereafter charge Tenant for Tenant’s
electrical use as reflected by such meter(s). Landlord and Tenant acknowledge
that the Original Premises were separately metered, and that 3Com has agreed to
install a separate meter or submeter (the “3Com Meter”) for the Give Back Space
as part of its tenant improvements in that space, so that Tenant’s electricity
usage in the Remaining Premises on the sixth floor will be separately metered.
Landlord shall have no responsibility for the installation or maintenance of
the 3Com Meter, nor for any electricity usage in the Give Back Space prior to
the installation of the 3Com Meter. The amount payable pursuant to this SECTION
12 shall be in addition to the amounts set forth in, and shall be payable as
provided in SECTION 4.7 of the Original Lease.


 


13.   NOTICES.
The Tenant’s addresses contained in Section 29.16 of the Lease are deleted and
the following addresses are substituted in lieu thereof:


 


4

















 


TENANT:


To
the Premises:


100
Campus Drive


Marlborough,
MA 01752


Attn:  Mr. Don Hardison


President
and Chief Executive Officer


 


With
copies to:


 


Testa,
Hurwitz & Thibeault, LLP


125
High Street - Oliver Street Tower


Boston,
MA  02110


Attn:  Real Estate Department


 


14.   RIGHT
OF FIRST OFFER. Article 30 of the Lease is hereby deleted in its entirety.
Tenant has no right of first offer or right to expand into any other space
within the Project.


 


15.   RATIFICATION
OF LEASE. Except as modified by this Second Amendment, the Lease is hereby
ratified and affirmed, and is in full force and effect and unmodified in all
other respects. In the event of any inconsistency between the terms and
conditions of this Second Amendment and the terms and conditions of the Lease,
the terms and conditions of this Second Amendment shall govern.


 


16.   NO
OTHER AMENDMENT. There are no other oral or written understandings, agreements
or obligations between Landlord and Tenant other than those expressly set forth
in the Lease and this Second Amendment. In the event of any inconsistency
between the terms of this Second Amendment and the terms of the Lease, the
terms of this Second Amendment shall control.


 


17.   NO
PRESUMPTION AGAINST DRAFTER. Landlord and Tenant understand, agree and
acknowledge that this Second Amendment has been freely negotiated by both parties;
and that, in any controversy, dispute, or contest over the meaning, interpretation,
validity or enforceability of this Second Amendment or any of its terms or
conditions, there shall be no inference, presumption, or conclusion drawn
whatsoever against either party by virtue of that party having drafted this
Second Amendment or any portion thereof.


 


18.   ENFORCEABILITY.
If any provision of this Second Amendment shall be invalid or unenforceable to
any extent, the remainder of this Second Amendment shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.


 


18.   BROKER.
Landlord and Tenant hereby warrant to each other that they have had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease, excepting only Cushman & Wakefield of Massachusetts, Inc. (“C &
W”) and LPC Commercial Services, Inc. (“LPC”; C&W and LPC, collectively,
“BROKERS”), and that they know of no other real estate broker or agent who is
entitled to a commission in connection with this Second


 


5

















 


Amendment.
Tenant shall be solely responsible for payment of any commission, fee, or other
compensation due to C & W in connection with the transactions contemplated
by this Amendment and the releasing of 18,369 rentable square feet of the Give
Back Space to 3Com Corporation. Landlord shall be responsible for payment of
any commission, fee, or other compensation to LPC pursuant to a separate
agreement between Landlord and LPC. Each party agrees to indemnify and defend
the other party against and hold the other party harmless from any and all
claims, demands, losses, liabilities, lawsuits, judgments, costs and expenses
(including without limitation reasonable attorneys’ fees) with respect to any
leasing commission or equivalent compensation to be paid by the indemnifying
party pursuant to the terms of this Section, and/or alleged to be owing on
account of any dealings with any real estate broker or agent other than Brokers
occurring by, through, or under the indemnifying party.


 


19.   COUNTERPARTS.
This Second Amendment may be executed in multiple counterparts, each of which
shall constitute an original.


 


20.   AUTHORITY.
Each individual executing this Second Amendment hereby represents and warrants
that Landlord, Landlord’s general partner, or Tenant, as applicable, is a duly
formed and existing entity in good standing qualified to do business in the
Commonwealth of Massachusetts and has full right and authority to execute and
deliver this Second Amendment and perform its obligations under the Lease (as
amended by this Second Amendment) and that each person or entity acting and/or
signing on behalf of Landlord, Landlord’s general partner, or Tenant, as
applicable, is authorized to do so. Each of the parties hereto represents and
warrants to the other that no consent from any other person or entity is
necessary as a condition precedent to the legal effect of this Second
Amendment, except that the approval of Landlord’s mortgagee may be required,
and if so, will be obtained by Landlord prior to Landlord’s execution of this
Second Amendment.


 


21.   CONTINGENCY.
This Second Amendment is contingent upon Landlord’s entering into a lease
amendment with 3Com Corporation with respect to the Give Back Space, and
certain other space on the second floor of the Building, all in form and
substance satisfactory to Landlord, in its sole discretion, on or before
January 21, 2005. In the event that Landlord has not executed such an amendment
within said time period, Landlord may terminate this Second Amendment upon
written notice given to Tenant on or before January 31, 2005, in which case this
Second Amendment shall be and become null and void and of no further force or
effect.


 


[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]


 


6

















 


IN
WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be executed
the day and date first above written.


 


	
   

  	
  “LANDLORD”:

  
	
   

  	
   

  
	
   

  	
  MARLBOROUGH
  CAMPUS LIMITED

  
	
   

  	
  PARTNERSHIP,
  a Massachusetts limited

  
	
   

  	
  partnership

  
	
   

  	
   

  
	
   

  	
  By:
  Bergen of Marlborough, Inc., general

  partner

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/
  John L. Brogan

  
	
   

  	
  Its:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “TENANT”:

  
	
   

  	
   

  
	
   

  	
  EXACT
  SCIENCES CORPORATION

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  	
   

  	
  By:
  

  	
  /s/
  Don Hardison

  
	
   

  	
   

  	
   

  	
   

  	
  Name:  Don
  Hardison

  
	
  By:

  	
  /s/
  Jeffrey Luber

  	
   

  	
   

  	
  Title:         President
  & CEO

  
	
   

  	
  Name:
  

  	
  Jeffrey
  Luber

  	
   

  	
   

  
	
   

  	
  Title:
  

  	
  General
  Counsel

  	
  (Corporate
  Seal)

  
							



 


7

















 


(ACKNOWLEDGMENT FOR CORPORATION)


 


COMMONWEALTH
OF MASSACHUSETTS


SS.:


COUNTY
OF MIDDLESEX


 


On
this 20th day of January, 2005, before me the undersigned notary public,
personally appeared Don Hardison, and provided to me through satisfactory
evidence of identification, which was                                   ,
to be the person whose name is signed on the preceding or attached document and
acknowledged to me that he/she signed it voluntarily for its stated purpose, as
President & CEO of EXACT Sciences Corporation.


 


Subscribed
and sworn to


before
me at Marlborough,


on
the date aforesaid.


 


	
   

  	
  /s/
  Jeffrey Luber

  
	
   

  	
  Secretary

  
	
   

  	
   

  
	
  /s/
  Lanee L. Johnson

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Notarial
  Seal)

  	
   

  
			



 


8

















 


EXHIBIT A-1


[Diagram Showing the Expansion Premises]


 


9

















 


EXHIBIT C-1


 


1

















 


EXHIBIT C-2


 


1

















 


EXHIBIT L


 


1