**Exhibit 10.2**

 

LEASE

 

by and between

 

INTERCONTINENTAL FUND III830 WINTER STREET LLC,

 

as Landlord

 

and

 

PRAECIS PHARMACEUTICALSINCORPORATED,

 

as Tenant

 

With respect to property

 

located at 830 WinterStreet,

 

Waltham, Massachusetts

 

 

October 18, 2005

 

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TABLE OF CONTENTS

 
| **ARTICLE I     REFERENCE  DATA**                                          | ** **                                        |
|----------------------------------------------------------------------------------------------------------|---------------------------------------------------|
| Section 1.1                                                                                         | Subjects Referred To.                             |   |
| Section 1.2                                                                                         | Exhibits                                          |   |
| ** **                                                                                               | ** **                                        | ** ** |
| **ARTICLE II     PREMISES  AND TERM**                                      | ** **                                        |
| Section 2.1                                                                                         | Premises and Term                                 |   |
| Section 2.2                                                                                         | Parking                                           |   |
| Section 2.3                                                                                         | Acceptance of Premises.                           |   |
| Section 2.4                                                                                         | Option to Extend.                                 |   |
| Section 2.5                                                                                         | Expansion Option.                                 |   |
| Section 2.6                                                                                         | Time of Essence                                   |   |
|                                                                                                     |                                              |   |
| **ARTICLE III     RENT;  CERTAIN OPERATING COSTS; REPAIR AND MAINTENANCE** | ** **                                        |
| Section 3.1                                                                                         | Base Rent; Additional Rent                        |   |
| Section 3.2                                                                                         | Late Payments.                                    |   |
| Section 3.3                                                                                         | Real Estate Taxes.                                |   |
| Section 3.4                                                                                         | Operating Expenses.                               |   |
| Section 3.5                                                                                         | Insurance                                         |   |
| Section 3.6                                                                                         | Utilities and Other  Services.                    |   |
| Section 3.7                                                                                         | Repair and Maintenance                            |   |
|                                                                                                     |                                              |   |
| **ARTICLE IV       TENANT’S ADDITIONAL COVENANTS**                    | ** **                                        |
| Section 4.1                                                                                         | Permitted Use                                     |   |
| Section 4.2                                                                                         | Prohibited Uses                                   |   |
| Section 4.3                                                                                         | Hazardous Materials                               |   |
| Section 4.4                                                                                         | Compliance with Legal and  Insurance Requirements |   |
| Section 4.5                                                                                         | Indemnity                                         |   |
| Section 4.6                                                                                         | Landlord’s Right to Enter                    |   |
| Section 4.7                                                                                         | Personal Property at Tenant’s  Risk          |   |
| Section 4.8                                                                                         | Yield Up                                          |   |
| Section 4.9                                                                                         | Personal Property Taxes                           |   |
| Section 4.10                                                                                        | Assignment and Subletting                         |   |
| Section 4.11                                                                                        | Installations, Alterations  or Additions          |   |
| Section 4.12                                                                                        | Signage                                           |   |
| Section 4.13                                                                                        | No Opposition to Development                      |   |
| ** **                                                                                               | ** **                                        | ** ** |
| **ARTICLE V     CASUALTY  OR TAKING**                                      | ** **                                        |
| Section 5.1                                                                                         | Casualty                                          |   |
| Section 5.2                                                                                         | Eminent Domain                                    |   |
| Section 5.3                                                                                         | Awards                                            |   |

 

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| **ARTICLE VI     DEFAULTS**                            | ** **                                          |
|--------------------------------------------------------------------------------------|-----------------------------------------------------|
| Section 6.1                                                                     | Default                                             |   |
| Section 6.2                                                                     | Landlord’s Right to  Terminate                 |   |
| Section 6.3                                                                     | Remedies                                            |   |
| Section 6.4                                                                     | Effect of Waivers of Default                        |   |
| Section 6.5                                                                     | No Accord and Satisfaction                          |   |
| Section 6.6                                                                     | Cumulative Remedies                                 |   |
| Section 6.7                                                                     | Landlord’s  Right to Self Help                 |   |
| Section 6.8                                                                     | Security Deposit                                    |   |
|                                                                                 |                                                |   |
| **ARTICLE VII     HOLDING  OVER**                      | ** **                                          |
| ** **                                                                           | ** **                                          | ** ** |
| **ARTICLE VIII    RIGHTS  OF MORTGAGEE**                    | ** **                                          |
| Section 8.1                                                                     | Definition of  Mortgage                             |   |
| Section 8.2                                                                     | Lease  Subordinate Superior                         |   |
| Section 8.3                                                                     | Mortgagee  Right to Cure                            |   |
| ** **                                                                           | ** **                                          | ** ** |
| **ARTICLE IX    LIMITATIONS  OF LANDLORD’S LIABILITY** | ** **                                          |
| Section 9.1                                                                     | Limitation.                                         |   |
| Section 9.2                                                                     | Sale of Property                                    |   |
| Section 9.3                                                                     | No Personal  Liability                              |   |
| Section 9.4                                                                     | Limitation on  Damages                              |   |
| ** **                                                                           | ** **                                          | ** ** |
| **ARTICLE X     GENERAL  PROVISIONS**                  | ** **                                          |
| Section 10.1                                                                    | Landlord’s  Covenant of Quiet Enjoyment; Title |   |
| Section 10.2                                                                    | No  Partnership or Joint Venture                    |   |
| Section 10.3                                                                    | Brokerage                                           |   |
| Section 10.4                                                                    | Estoppel  Certificate                               |   |
| Section 10.5                                                                    | Prevailing Party                                    |   |
| Section 10.6                                                                    | Notice                                              |   |
| Section 10.7                                                                    | Notice of Lease                                     |   |
| Section 10.8                                                                    | Partial  Invalidity                                 |   |
| Section 10.9                                                                    | Gender                                              |   |
| Section 10.10                                                                   | Bind and Inure                                      |   |
| Section 10.11                                                                   | Entire Agreement                                    |   |
| Section 10.12                                                                   | Applicable Law                                      |   |
| Section 10.13                                                                   | Headings                                            |   |
| Section 10.14                                                                   | Not An Offer                                        |   |
| Section 10.15                                                                   | Time Is of the  Essence                             |   |
| Section 10.16                                                                   | Multiple  Counterparts                              |   |
| Section 10.17                                                                   | Waiver of Jury  Trial                               |   |

 

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**LEASE**

 

# **ARTICLE I**REFERENCE DATA

 

Section 1.1                                      SubjectsReferred To.

 

Each reference in this Lease to any of the followingsubjects shall be construed to incorporate the following data.

 
| DATE:                    | October 18,  2005                                                                                                                                                                                                                                                                                                |
|--------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                     |                                                                                                                                                                                                                                                                                                                  |
| LANDLORD:                | Intercontinental  Fund III 830 Winter Street LLC                                                                                                                                                                                                                                                                      |
|                     |                                                                                                                                                                                                                                                                                                                  |
| TENANT:                  | PRAECIS  PHARMACEUTICALS INCORPORATED                                                                                                                                                                                                                                                                                 |
|                     |                                                                                                                                                                                                                                                                                                                  |
| PREMISES:                | Approximately 65,464  rentable square feet of space located (1) on the first floor of the  South wing of the Building (inclusive of an approximately 225 square foot NMR  Room), (2) on the first, second and third floors of the West wing of the  Building, and (3) in the basement of the Building. |
|                     |                                                                                                                                                                                                                                                                                                                  |
| LAND:                    | The land in  Waltham, Middlesex County, Massachusetts, as more particularly described in **Exhibit A** attached hereto  and made a part hereof, together with any rights appurtenant thereto.                                                                                                                    |
|                     |                                                                                                                                                                                                                                                                                                                  |
| PROPERTY:                | The Land and all  of the buildings and improvements now or hereafter located thereon.                                                                                                                                                                                                                                 |
|                     |                                                                                                                                                                                                                                                                                                                  |
| BUILDING:                | The existing  three (3) story building located on the Land.                                                                                                                                                                                                                                                      |
|                     |                                                                                                                                                                                                                                                                                                                  |
| BUILDING  RENTABLE AREA: | As of the Commencement  Date, 179,855 square feet.                                                                                                                                                                                                                                                                    |
|                     |                                                                                                                                                                                                                                                                                                                  |
| COMMENCEMENT  DATE:      | October 18,  2005.                                                                                                                                                                                                                                                                                               |
|                     |                                                                                                                                                                                                                                                                                                                  |
| TERM:                    | Commencing on  the Commencement Date and expiring at the close of the day on October 31,  2010, subject to extension as provided herein.                                                                                                                                                                         |

 

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| BASE RENT:                          | Base Rent for  the Premises shall be:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
|-------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| ** **                          | **Time Period**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  | ** ** | **Annual Rent** | ** ** | **Monthly Installment** | ** ** |
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |   |   |   |   |
|                                | Commencement  Date – October 31, 2007                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |   | $ | 2,127,580 |   | $ | 177,298.33 |   |
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |   |   |   |   |   |   |   |
|                                | November 1,  2007 – October 31, 2010                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |   | $ | 2,291,240 |   | $ | 190,936.66 |   |
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| PERMITTED USES:                     | See **Section 4.1.**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| TENANT’S  PROPORTIONATE SHARE: | Tenant’s  Proportionate Share at any time shall be calculated by dividing the total  rentable area of the Premises (65,464 s.f.) at such time by the Building  Rentable Area (179,855 s.f.).  It is  hereby agreed that as of the Commencement Date of this Lease Tenant’s  Proportionate Share shall be equal to thirty-six and four tenths of a percent  (36.4%).  However, Tenant’s  Proportionate Share of Lab Dedicated Expenses (as defined in **Section 3.4.2(e) **shall be as determined in accordance  with the terms of **Section 3.4.2(e)**). |
|                                |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| LETTER OF  CREDIT:                  | A Letter of  Credit as security for Tenant’s performance of its obligations under this  Lease, in the amount of Seven Hundred and Ten Thousand Dollars ($710,000) to  be held subject to the terms and conditions of **Section 6.8**  and subject to reduction as provided in **Section 6.8**.                                                                                                                                                                                                                                                                                    |

 

Section 1.2                                      Exhibits.  The exhibits listed below are attached heretoand incorporated in this Lease by reference and are to be construed as a partof this Lease:

 
| **Exhibit A:** | ** ** | **Legal Description**                              |
|---------------------|------------|----------------------------------------------------|
| **Exhibit B:** | ** ** | **Site Plan**                                      |
| **Exhibit C:** | ** ** | **Exclusions from Operating Expenses**             |
| **Exhibit D:** | ** ** | **Fixtures Tenant May Remove at End of Term** |
| **Exhibit E:** | ** ** | **Form of SNDA**                              |
| **Exhibit F:** | ** ** | **Form of Letter of Credit**                  |
| **Exhibit G:** | ** ** | **Tenant-Provided Services**                       |

 

# **ARTICLE II**PREMISES AND TERM

 

Section 2.1                                      Premisesand Term.  Landlord hereby leases toTenant and Tenant hereby leases from Landlord the Premises, subject to and withthe benefit of the terms, covenants,

 

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conditions and provisionsof this Lease, for the Term unless sooner terminated as provided herein.

 

Tenant shall have, as appurtenant to thePremises:  (a) the non-exclusiveright to use, and permit its invitees to use in common with Landlord and others,the elevators, walkways, access roads, and driveways necessary for access tothe Premises and the parking areas, loading areas, pedestrian sidewalks,landscaped areas, trash enclosures, recreation areas and other areas andfacilities, if any, which are located on the Land and designated by Landlordfrom time to time for the non-exclusive use of tenants and other occupants ofthe Building or improvements on the Land (the **“CommonAreas”**); and (b) during any period of time that, pursuant to anyof **Sections 3.6.6**, **3.6.7** or **3.6.8**, Tenant (ratherthan Landlord) is providing the contemplated services, Tenant shalladditionally have the exclusive right to use the following areas in, on orabout the Building (together with the associated equipment) which are locatedoutside of the Premises:  (A) theCafeteria, (B) two (2) roof-top RTU units that serve the vivariumlocated within the Premises, and the roof area and related HVAC systemsassociated therewith, which roof-top area is shown on **Exhibit B**attached hereto, (C) the liquid Nitrogen tank and Carbon Dioxide cylindersand their respective distribution systems, and the areas associated therewith,located in the basement of the Building, (D) the General pH System and thearea associated therewith located in the basement of the Building, (E) theRODI Water system, vacuum pumps, automatic temperature control (ATC) compressorand lab compressed air system and the areas associated therewith, each of whichis located in the basement of the Building, (F) the Mo flo laser andNitrogen generator and compressor and the area associated therewith, each ofwhich is located in the basement of the Building, and (G) the standby910KW generator located outside of, but adjacent to, the Building and the areaassociated therewith.

 

At any such time thatLandlord has assumed responsibility for providing any of the services thatrequire control of any of the areas described in clause (B) above,then Landlord’s obligations shall, during such times, include the delivery of suchservices, and consequently, since Landlord will during such times requirecontrol of such areas and equipment, Landlord shall have exclusive use thereoffor such purpose, and they shall not be considered exclusive use areas andequipment under said clause (B).

 

Section 2.2                                      Parking.  During the Term, Tenant shall have the rightto use, on a nonexclusive, unreserved basis, two and eight tenths (2.8) parkingspaces per 1,000 rentable square feet of space leased by Tenant during theTerm, with such spaces to be allocated between the structured garage parkingfacility and outdoor common lot in a manner whereby Tenant shall have use of atleast the Tenant’s Proportionate Share percentage of parking spaces located in thestructured garage parking.

 

Section 2.3                                      Acceptanceof Premises.

 

### 2.3.1                        Status of the Premises.  Tenant acknowledges: that Landlord hasacquired the fee interest in the Premises from 830 Winter Street, LLC, anaffiliate of Tenant, as of the date hereof; that prior to the date hereof,Tenant was and that Tenant currently remains in possession of the Premises; andthat Tenant has examined the Premises, is familiar with the physical conditionof the Premises and is leasing the same in “as is” condition.  Landlord has not made and does not make anyrepresentations or warranties as to the physical condition, expenses,

 

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### operation and maintenance, zoning, status of title, the use underapplicable law that may be made of the Premises or any other matter or thingaffecting or related to the Premises.  Notwithstandingthe foregoing, Landlord is responsible for ensuring compliance with allapplicable governmental laws, rules and regulations at the Building exceptas set forth below.  Tenant shall, in itsuse of the Premises, comply with the requirements of all applicablegovernmental laws, rules and regulations.

###  

2.3.2                        Landlord’sDemising Work.  Notwithstanding theabove **Section 2.3.1**, Landlord willundertake, at its sole cost and expense, all work necessary to convert the Buildinginto a multi-tenant building.  Such workshall include creating demising walls to separate the Premises from theremaining portions of the Building, separate base building systems (including,without limitation, creation of the Premises pH System as further described in **Section 3.6.8** hereinbelow) and undertake all other worknecessary for such a multi-tenant conversion (the “**BuildingConversion Work**”).  Landlordagrees that there shall be no interruption of or material interference withTenant’s conduct of business and operations in the Premises as a result of theBuilding Conversion Work.  Landlordagrees and warrants that it will conduct such Building Conversion Work at timesand in a manner that is responsive to and respectful of Tenant’s use requirements,with special consideration to Tenant’s operations in the laboratory spacelocated within the Premises.  Suchaccommodations by Landlord shall include, but not be limited to, conductingwork on an after-hours or overtime basis if necessary, installing specialvibration reducing materials, or any other such steps as Tenant may reasonablyrequest.

 

Section 2.4                                      Optionto Extend.

 

### 2.4.1                        Extension Terms.  Provided that, at the time of each suchexercise and at the time that each Extended Term (as hereinafter defined) wouldcommence (each an **“Extension TermCommencement Date”**), (i) this Lease is in full force andeffect, and (ii) no Event of Default of Tenant shall have occurred and becontinuing, Tenant shall have the right and option to extend the Term for three(3) extended terms of five (5) years each (each, an **“Extended Term”**) by giving written notice to Landlord notlater than twelve (12) months prior to the last day of the Term or theapplicable Extended Term, as applicable. The giving of such notice of extension by Tenant shall automaticallyextend the Term for the Extended Term, and no instrument of renewal orextension need be executed.  In the eventthat Tenant fails timely to give such notice to Landlord, this Lease shallautomatically terminate at the end of the initial Term, and Tenant shall haveno further option to extend the Term of this Lease.  The Extended Term shall commence on the dayimmediately succeeding the expiration date of the initial Term.  Tenant shall have no further option to extendthe Term beyond the Extended Terms provided for in this **Section 2.4**.  The Extended Term shall otherwise be on allthe terms and conditions of this Lease, except that the monthly Base Rentpayable under this Lease shall be 95% of the fair market value of laboratory/officespace of similar age and finish in the Waltham market taking into account allrelevant factors, including without limitation, improvement allowances or rentconcessions granted in connection with such other leases (the **“Fair Market Rental Value**”), provided, however, that in noevent shall any leasehold improvement made by Tenant following the CommencementDate ever be considered in any valuation of the fair market value of the space.

 

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### 2.4.2                        Within thirty (30) days afterreceiving Tenant’s notice extending the Term of this Lease pursuant to **Section 2.4.1** above, Landlord shall provide Tenant withLandlord’s good faith estimate of 95% of the Fair Market Rental Value of thePremises for the Extended Term.  IfTenant is unwilling to accept Landlord’s estimate of the Fair Market RentalValue as set forth in Landlord’s notice referred to above, and the parties areunable to reach agreement thereon within thirty (30) days after the delivery ofsuch notice by Landlord, then either party may submit the determination of theFair Market Rental Value of the Premises to arbitration by giving notice to theother party naming the initiating party’s arbitrator within ten (10) daysafter the expiration of such thirty (30) day period.  Within fifteen (15) days after receiving anotice of initiation of arbitration, the responding party shall appoint its ownarbitrator by notifying the initiating party of the responding party’sappraiser.  If the second arbitratorshall not have been so appointed within such fifteen (15) day period, the FairMarket Rental Value of the Premises shall be determined by the initiating party’sarbitrator.  If the second arbitratorshall have been so appointed, the two arbitrators thus appointed shall, withinfifteen (15) days after the responding party’s notice of appointment of thesecond arbitrator, appoint a third arbitrator. If the two initial arbitrator are unable timely to agree on the thirdarbitrator, then either may, on behalf of both, request such appointment by theBoston office of JAMS Inc., or its successor, or, on its failure, refusal orinability to act, by a court of competent jurisdiction.  Within fifteen (15) days after the appointmentof the third arbitrator, the three arbitrators shall determine the Fair MarketRental Value of the Premises and give notice thereof to the parties hereto, andthe arbitrators’ determination shall be binding upon the parties.  All arbitrators shall be appraisers or otherqualified real estate professionals who are independent from the parties whohave had at least ten (10) years commercial real estate experience in thegreater Boston area and significant experience dealing with the laboratoryspace sub-market.  Each party shall paythe fees of its own appraiser, and the fees of the third appraiser shall beshared equally by the parties.

###  

Section 2.5                                      ExpansionOption.

 

### 2.5.1                        Subject to the terms andconditions of this **Section 2.5**,from and after the initial leasing of the Building to third-parties by Landlord,before Landlord leases any Available Space (as defined below) other than toTenant, Landlord will first offer such Available Space to Tenant for lease, bywritten notice to Tenant (“**Landlord’s Offer Notice**”).  As used in this **Section 2.5**,“Available Space” shall mean and refer to office or laboratory space in theBuilding, which from time to time during the Term will become available forlease after the then existing tenant thereof has had its lease expire withoutextending or renewing such lease, or such lease has otherwise been terminated,provided that no space shall constitute Available Space hereunder unless anduntil any rights of other tenants in the Building as of the date of this Leaseto expand the premises under such leases, including, without limitation, anyrights of first offer, have been refused or deemed waived by such tenants.  Landlord’s Offer Notice shall specify thelocation and rentable area of the Available Space and Landlord’s estimate ofthe Fair Market Rental Value for the Available Space.  Fair Market Rental Value of such AvailableSpace for such term shall be calculated in the same manner as the Fair MarketRental Value is calculated under **Section 2.4.2**.  Tenant will notify Landlord, within thirty (30)days of Landlord’s Offer Notice, that (i) Tenant elects to lease theAvailable Space on the same terms as are set forth in this Lease, except withregard to the Base Rent, which shall be the Fair Market Rental Value set forthin Landlord’s Offer Notice, or (ii) Tenant elects to lease the AvailableSpace, but that Tenant disputes Landlord’s determination of Fair Market RentalValue set forth in Landlord’s Offer

 

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### Notice; or (iii) Tenant rejects Landlord’s offer.  If Tenant elects to lease the AvailableSpace, but disputes Landlord’s determination of Landlord’s Fair Market RentalValue for the Available Space, and the parties do not agree on the Fair MarketRental Value within thirty **(30)** days afterdelivery of such notice from Tenant, then either party may initiate thearbitration procedure set forth in **Section 2.4.2**by giving notice to the other within an additional thirty (30) days after theend of such thirty (30) day period.  IfTenant has accepted Landlord’s terms for the Available Space, or upondetermination of the Fair Market Rental Value through arbitration, Landlord andTenant shall execute an amendment to this Lease incorporating the AvailableSpace into the Premises on the same terms as are set forth in this Lease,except with regard to the Base Rent, which shall be the Fair Market RentalValue set forth in Landlord’s Offer Notice, within ten (10) days, butfailure of the parties to execute such an amendment shall have no effect on theeffectiveness of the expansion of the Premises to include the Available Spaceand the economic terms associated therewith, as set forth above.  If Tenant rejects Landlord’s offer, or failsto notify Landlord within said thirty (30) day period that Tenant intends tolease such Available Space, Landlord shall be entitled to lease such AvailableSpace to any third party on such terms and conditions and for such rent asLandlord determines in its sole discretion.

###  

### 2.5.2                        Notwithstanding any contraryprovision of this **Section 2.5**or any other provision of this Lease, Tenant’s right to expand the Premises toinclude any Available Space is conditioned upon (which condition may be waivedby Landlord in its sole discretion) the absence, on the date Tenant notifiesLandlord that it elects to lease Available Space and on the date that wouldotherwise be the date upon which the Available Space is incorporated into thePremises, of any default under this Lease by Tenant after any applicable noticeand opportunity to cure.

###  

Section 2.6                                      Timeof Essence.  Time shall be of theessence with respect to **Sections 2.4 and 2.5**.

 

# **ARTICLE III**RENT; CERTAIN OPERATING COSTS; REPAIR AND MAINTENANCE

 

Section 3.1                                      BaseRent; Additional Rent.  Base Rent atthe rates set forth in **Section 1.1**shall be payable in advance on the first day of each calendar month during theTerm to Landlord without setoff or deduction (except as otherwise expresslyprovided herein) at the address set forth herein for notices or such otheraddress as Landlord may thereafter specify by notice to Tenant.  Base Rent for any partial month at thebeginning or end of the Term shall be pro-rated.  All amounts payable by Tenant to Landlordunder this Lease other than Base Rent shall constitute **“AdditionalRent”** and shall be paid without setoff or deduction (except asotherwise expressly provided herein).  **“Rent”** shall mean Base Rent and Additional Rent.

 

Section 3.2                                      LatePayments.

 

### 3.2.1                        Interest.  If Tenant fails to make any payment of Renton or before the date due, then at Landlord’s option, without notice and inaddition to all other rights and remedies of Landlord, Tenant shall pay upondemand to Landlord as Additional Rent interest thereon at an annual rate equalto twelve percent (12%) per annum (the **“Default Rate”**).  The interest at the

 

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### Default Rate provided for by this **Subsection 3.2.1**shall not apply to any late payment of Rent provided that such payment is notmore than five (5) days past due.

###  

### 3.2.2                        Late Charge.  In addition to any interest due on overdueRent pursuant to **Subsection 3.2.1**, if anypayment of Base Rent or regularly scheduled payment of Additional Rent is notpaid before, on or within five (5) days after the date due, such latepayment shall be subject to a late charge equal to four percent (4%) of suchlate payment.

 

Section 3.3                                      RealEstate Taxes.

 

### 3.3.1                        Tax Year and Taxes.  **“Tax Year”**shall mean a twelve month period commencing on July 1 and falling whollyor partially within the Term, and **“Taxes”** shallmean (a) all ad valorem real estate taxes, assessments (special orotherwise), levies, fees and all other government levies, exactions and chargesof every kind and nature, general and special, ordinary and extraordinary,foreseen and unforeseen, which are, at any time prior to or during the Term,imposed or levied upon or assessed against (i) the Premises or any portionthereof, or (ii) the Land (including Common Areas), and (b) Landlord’sreasonable expenses of any proceeding to contest, determine or reduce any ofthe foregoing items included in Taxes, but the amount of special taxes orspecial assessments included in Taxes shall be limited to the amount of theinstallment (plus any interest, other than penalty interest, payable thereon)of such special tax or special assessment required to be paid during the yearin respect of which such Taxes are being determined.  There shall be excluded from Taxes (x) allTaxes assessed on buildings located on any portion of the Land other than theBuilding, and (y) all income, estate, succession, inheritance and transfertaxes of Landlord; provided, however, that if at any time during the Term thepresent system of ad valorem taxation of real property shall be changed so thata capital levy, franchise, income, profits, sales, rental, use and occupancy,or other tax or charge shall (a) in whole or in part be substituted forsuch ad valorem tax or (b) be imposed solely on or with respect to realproperty or the income generated thereby, and, in either case, be leviedagainst, or be payable by, Landlord with respect to the Premises or any portionthereof, such tax or charge shall be included in the term **“Taxes”**for the purposes of this Article.

###  

### 3.3.2                        Payment of Taxes.  Beginning on the Commencement Date, Tenantshall pay to Landlord for each Tax Year, as Additional Rent, an amount equal toTenant’s Proportionate Share of the Taxes. Such amount shall be apportioned (i) to account for any adjustmentin Tenant’s Proportionate Share during any Tax Year, and (ii) for anypartial Tax Year that falls in any portion of the Term.  Estimated payments by Tenant on account ofTaxes shall be made on the first day of each and every calendar month duringthe Term of this Lease, in the fashion herein provided for the payment of BaseRent.  Promptly after receipt by Landlordof bills for such Taxes, Landlord shall provide copies of such bills to Tenantalong with Landlord’s allocation of the Taxes and Landlord’s computation ofTenant’s payment on account thereof.  Ifestimated payments theretofore made by Tenant for the Tax Year covered by suchbills exceed the required payment on account thereof for such Tax Year,Landlord shall promptly refund such overpayment to Tenant (less any amount thenowed to Landlord by Tenant under this Lease, in which case Landlord promptlyshall notify Tenant of such offset ); but if the required payments on accountthereof for such Tax Year are greater than estimated payments theretofore madeon account thereof for such Tax Year, Tenant shall pay the difference toLandlord within thirty (30) days after being so advised by Landlord, and theobligation to make such refund or payment for

 

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### any period within the Term shall survive expiration of the Term.  Except for the foregoing reconciliation onaccount of Taxes for Tenant’s estimated payments, Tenant shall not be liable toLandlord to pay any Taxes first billed to Tenant by Landlord more than one yearafter the end of the fiscal year in which Landlord received a final billtherefor.

###  

### 3.3.3                        Refund Sharing.  If Landlord shall receive any tax refund orreimbursement of Taxes of which Tenant paid a share under this Lease, then outof any balance remaining thereof after deducting Landlord’s reasonable expensesin obtaining such refund not previously included in such Taxes as providedabove and any other amounts then due and owing by Tenant under this Lease,Landlord shall pay to Tenant, a portion of such refund or reimbursement or sumin lieu thereof (apportioned if such refund is for a Tax Year a portion ofwhich falls outside the applicable Term) that bears the same proportion to theentire refund or reimbursement as the portion of the Taxes as to which therefund or reimbursement was obtained that were paid by Tenant bears to theentire amount of such Taxes.

###  

### 3.3.4                        Abatement Initiated byTenant.  Tenant may from time to time(but not more frequently than once a year) request that a real estate taxabatement be sought on the tax parcel(s) on which the Premises and the Land arelocated, whereupon Landlord shall either (a) prosecute a contest of thetax and assessment basis of such tax parcel(s) and the taxes and assessmentlevied thereon, or (b) permit Tenant to contest on behalf of Landlord thetax and assessment basis of the tax parcel(s) on which the Premises and theLand are located and the taxes and assessments levied thereon.  In the event Landlord makes the electiondescribed in clause (b) above and Tenant performs such contest, thenTenant (i) shall pay all costs and expenses in connection therewith, (ii) shallkeep Landlord informed about the status of such contest, and (iii) shallindemnify and hold Landlord harmless from any and all costs, claims andliabilities relating thereto, provided that if Tenant is successful inobtaining a real estate tax abatement, Tenant shall be entitled toreimbursement from the abatement proceeds of its reasonable costs and expensesin connection with obtaining such abatement. Tenant shall not settle any tax abatement proceeding without the priorconsent of Landlord, which shall not be unreasonably withheld or delayed.  Furthermore, Tenant shall post with theapplicable governmental authority any and all necessary bonds or deposits orsimilar security required by such authority so that the Landlord’s interestsshall not be jeopardized by reason of such contest by the Tenant.  Notwithstanding the foregoing, Landlord mayrefuse to permit or undertake any contest requested by Tenant as provided inthis Section, so long as Landlord has a reasonable basis for doing so andpromptly notifies Tenant thereof. Without limiting the generality of the foregoing: (x) the filing of asubdivision plan or the request for zoning relief or approvals, whether siteplan approval, special permit or otherwise, shall be a reasonable basis forLandlord to refuse to permit or undertake any such contest; and (y) at any timewhen an Event of Default has occurred and remains outstanding, Landlord mayrefuse to permit or undertake any contest requested by Tenant or may requireTenant to terminate any contest then underway, and in such event, Tenant agreesto terminate any such ongoing contest.

 

Section 3.4                                      OperatingExpenses.

 

### 3.4.1                        Payment of OperatingExpenses; Definitions.  From andafter the Commencement Date, during the Term Tenant shall pay to Landlord, asAdditional Rent, the Tenant’s Proportionate Share of Operating Expenses, ashereinafter defined, in accordance with

 

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### this **Section 3.4. **The amounts due from Tenant under this**Section 3.4**are collectivelyreferred to as **“Tenant’s Proportionate Share of OperatingExpenses”**.  Payments by theTenant on account of the Tenant’s Proportionate Share of Operating Expensesshall be made monthly at the time and in the fashion herein provided for thepayment of Base Rent.  The amount so tobe paid to the Landlord shall be an amount from time to time reasonablyestimated by the Landlord to be sufficient to aggregate a sum equal to theTenant’s Proportionate Share of Operating Expenses for each calendar year.  Operating Expenses for any partial calendaryear at the beginning or end of the Term shall be prorated.

###  

### 3.4.2                        Certain Definitions.

###  

#### (a)                             **“Building Operating Expenses”** means, without duplicating anycost included in Land Operating Expenses (as hereinafter defined), to theextent not borne directly by Tenant under this Lease, Landlord’s cost ofoperating the Building, which shall include, without limitation:  the cost of premiums for all insurancecarried by the Landlord on the Building, or in connection with the use andoccupancy thereof, including but not limited to all risk, general liability,excess liability, rent loss (including extended rent loss coverage), boiler andequipment, flood and earthquake; the reasonable amount of any deductible fromany insurance claim of Landlord (but only in the event of an actual claim paidand settled); compensation and all fringe benefits, worker’s compensationinsurance premiums and payroll taxes paid to, for or with respect to allpersons directly engaged in managing the Building; the cost of steam, water,sewer, gas, oil and electricity, and other utility charges, excluding suchutility charges separately chargeable to tenants, whether for additional orspecial services or otherwise; the cost of security and fire protectionservices, if any; the cost of property level accounting; and other expensespaid in connection with the Building and not related to operation, cleaning,maintenance or repair thereof that are the obligation of Tenant under thisLease.

####  

#### (b)                            **“Land Operating Expenses”** means, without duplicating anycost included in Building Operating Expenses, Landlord’s cost of operating andmaintaining the Land, which shall include, without limitation:  premiums for all general liability and excessliability insurance carried by Landlord on the Land; operational, maintenanceand repair costs of easements benefiting the Land (including the cost ofoperation, maintenance and repair of any water loop providing fire protectionto the Premises); costs of compliance with all Legal Requirements applicable toimprovements on the Land other than buildings (provided, however, that any suchcost that constitutes a capital expenditure shall be subject to theamortization requirements applicable to Ordinary Capital Improvementshereunder); the reasonable amount deductible from any insurance claim of theLandlord (but only in the event of an actual claim paid and settled);compensation and all fringe benefits, worker’s compensation, insurance premiumsand payroll taxes paid to, for or with respect to all persons directly engagedin operating or maintaining the Land; the cost of landscaping; the cost ofmaintenance; water, electricity, and other utility charges, excluding suchutility charges separately chargeable to tenants, whether for additional orspecial services or otherwise; the cost of maintenance, repairs andreplacements (other than repairs and replacements reasonably collectible fromcontractors under guarantees); the cost of snow, ice and sand removal; paymentsunder service contracts with independent contractors; the cost of any OrdinaryCapital Improvements, provided that the cost of any such Ordinary Capital

 

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#### Improvements shall beamortized over the customary useful life of the improvement in question,together with interest on the unamortized balance at a rate equal to the PrimeRate of interest then published in The Wall Street Journal at the time theimprovement is commenced plus four percent (4%) (the “Interest Rate”); andother expenses paid in connection with operation or maintenance of the Land.

####  

#### (c)                             TheBuilding Operating Expenses and the Land Operating Expenses are collectivelyreferred to herein as the “**Operating Expenses**”.

####  

#### (d)                            Notwithstandingthe foregoing, Operating Expenses:

####  

##### (i)                                     shallnot include any expense of further development of the Land, without limitation,any costs of site work, demolition, constructing additions to any existingbuildings on the Property (including the Building), or new buildings on theProperty, or otherwise further developing or redeveloping the Property;

 

##### (ii)                                  shallnot include any of the items specified in **Exhibit C**;and

 

##### (iii)                               shallbe subject to the limitations specified in **Exhibit C**.

 

#### (e)                             Withregard to any Operating Expenses that are incurred in connection with anyBuilding service or system that is dedicated solely to servicing either (i) exclusivelythe laboratory uses in the Premises, or (ii) the laboratory uses in thePremises collectively with other laboratory uses being conducted within theBuilding (“**Lab Dedicated Expenses**”), such LabDedicated Expenses shall be equitably shared among all laboratory space tenantsin the Building benefiting from such service, with respective shares of the LabDedicated Expenses being either (i) shared proportionally, based on thesquare footage served thereby, if applicable (such as wherever usage is notreasonably measurable by metering or other such measurement method), or (ii) separatelymetered for the various lab spaces being served thereby, but in any case equitablyallocated by Landlord to account for consumption or use of such service orsystem resource.

####  

### 3.4.3                        Estimated Payments.  Annually, the Landlord shall render to theTenant a statement in reasonable detail showing for the preceding calendar yearor fraction thereof, as the case may be, the Operating Expenses and Tenant’sProportionate Share of the Operating Expenses. The Landlord shall use diligent efforts to deliver the statement notlater than ninety (90) days after the end of each calendar year or fractionthereof at the beginning or at the end of the Term.  Said statement to be rendered to Tenant alsoshall show for the preceding calendar year or fraction thereof, as the case maybe, the amounts of Operating Expenses already paid by Tenant.  If at the time such statement is rendered itis determined with respect to any calendar year that Tenant has paid (i) lessthan Tenant’s Proportionate Share of Operating Expenses or (ii) more thanTenant’s Proportionate Share of Operating Expenses, then, in the case of (i) Tenantshall pay to the Landlord, as Additional Rent, within thirty (30) days of suchstatement the

 

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### amounts of such underpayment and, in the case of (ii) the Landlordshall refund such overpayment to the Tenant within thirty (30) days (less anyamount then owed to Landlord by Tenant under this Lease, in which case Landlordpromptly shall notify Tenant of such offset ). The obligation to make such payment or refund for any partial calendaryear at the end of the Term shall survive the Term.  In no event shall Tenant be obligated to makeany payment with respect to any Operating Expense first billed to Tenant morethan eighteen (18) months after the end of the calendar year in which theOperating Expense was incurred.

###  

### 3.4.4                        Tenant’s Right to Review.  Tenant shall have the right to examine, copyand audit Landlord’s books and records relating to Operating Expenses and theallocation of expenses made by Landlord establishing Tenant’s ProportionateShare of Operating Expenses for any calendar year for a period of one yearfollowing the date that Tenant receives the statement of Operating Expenses andTenant’s Proportionate Share of Operating Expenses for such year fromLandlord.  Tenant shall give Landlord notless than thirty (30) days’ prior notice of its intention to examine and auditsuch books and records, and such examination and audit shall take place at theLandlord’s offices; provided, however, that so long as Landlord maintains anoffice in the Greater Boston Area, Landlord shall keep the books and recordsrelating to the Premises in such office. All costs of the examination and audit shall be borne by Tenant;provided, however, that if such examination and audit establishes that theactual Operating Expenses or the amount allocated to Tenant’s ProportionateShare of Operating Expenses for the year in question are less than the amountset forth as the annual Operating Expenses on the annual statement delivered toTenant by at least five percent (5%), then Landlord shall pay the reasonablecosts of such examination and audit.  If,pursuant to such examination and audit, the payments made for such year byTenant exceed Tenant’s required payment on account thereof for such calendaryear, Landlord shall promptly refund such overpayment.  If the payments made by Tenant for such yearare less than Tenant’s required payment as established by the examination andaudit, Tenant shall pay the deficiency to Landlord within thirty (30) daysafter conclusion of the examination and audit as well as Landlord’s actualout-of-pocket costs in connection with such examination and audit.  The obligation to make such payment or refundfor any period within the Term shall survive expiration of the Term.  If Tenant does not elect to exercise itsright to examine and audit Landlord’s books and records for any calendar yearwithin the time period provided for by this paragraph, Tenant shall have nofurther right to challenge Landlord’s statement of Operating Expenses andTenant’s Proportionate Share of Operating Expenses.

 

Section 3.5                                      Insurance.

 

### 3.5.1                        Tenant’s Insurance.  Tenant shall maintain in full force from theCommencement Date and thereafter throughout the Term the following types ofinsurance:

 

#### (a)                             Comprehensivecommercial general liability insurance with respect to the Premises, their use,occupancy and operation, under which Tenant is the named insured and Landlordand any Mortgagee (as defined in **Section 8.1**below) (provided that Landlord has identified such Mortgagee by notice toTenant) are named as additional insureds with respect to their vicariousliability for covered claims arising from Tenant’s use or occupancy of thePremises.  Such coverage shall include acontractual liability endorsement, and such coverage shall be written on anoccurrence basis, with a minimum combined single limit of liability of not lessthan Ten Million Dollars ($10,000,000.00);

 

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#### (b)                            Commercialproperty insurance on an “all risk” basis, and specifically including sprinklerleakages, vandalism, and malicious mischief and plate glass damage covering allthe items specified as Tenant’s Property and all other property of everydescription including stock-in-trade, furniture, fittings, installations,alterations, additions, partitions and fixtures or anything in the nature of aleasehold improvement made or installed by or on behalf of the Tenant in anamount of not less than one hundred percent (100%) of the full replacement costthereof as shall from time to time be determined by Tenant in form satisfactoryto Landlord in its reasonable discretion;

####  

#### (c)                             Policiesof insurance against loss or damage arising from incidents relating to theair-conditioning and/or heating system, electrical systems, flywheels, steampipes, steam turbines, steam engines, steam boilers, other pressure vessels,high pressure piping and machinery, if any, installed in the Premises in anamount satisfactory to Landlord in its reasonable discretion;

####  

#### (d)                            Worker’scompensation and occupational disease insurance with statutory limits, providedthat Tenant may self-insure for such purposes to the extent permitted by LegalRequirements; and

####  

#### (e)                             anyother form or forms of insurance as Landlord may reasonably require from timeto time (other than insurance that Landlord is required to maintain) in amountsand for insurable risks (on commercially reasonable terms) against which aprudent tenant would protect itself to the extent landlords of comparablebuildings in the vicinity of the Premises require their tenants to carry suchother form(s) of insurance.

####  

In addition, during the performance of anyconstruction by Tenant on the Premises, in addition to the above coveragerequired to be maintained by Tenant, Tenant shall cause the general contractorperforming the work under any contract costing in excess of One Million Dollars($1,000,000.00) to carry: (a) Workers’ compensation and occupationaldisease insurance in statutory amounts; (b) employer’s liability insurancewith a limit of not less than One Million Dollars ($1,000,000); (c) commercialgeneral liability insurance, including personal injury and property damage, onan occurrence basis in the amount of a combined single limit of not less thanOne Million Dollars ($1,000,000.00) for each occurrence; and (d) all riskinstallation floater insurance (on the complete value/full coverage form) toprotect Landlord’s interest and that of Tenant, contractors and subcontractorsduring the course of the construction, with limits of not less than the totalreplacement cost of the completed improvements under construction.  Such contractor insurance policies shall beendorsed to include Landlord and any Mortgagee (provided that Landlord hasidentified such Mortgagee by notice to Tenant) as additional insureds.

 

Each policy of insurance required under this **Subsection 3.5.1** shall be issued by companies rated notless than AVIII by Best’s Rating Service (or its successor) or otherwiseacceptable to Landlord in the Landlord’s reasonable discretion and licensed todo business in the Commonwealth of Massachusetts, and shall be noncancellablewith respect to Landlord and any Mortgagee (provided that Landlord hasidentified such Mortgagee by notice to Tenant), without thirty (30) days’ priornotice to Landlord and such Mortgagee. Tenant shall deliver to Landlord and any Mortgagee (provided thatLandlord has identified such Mortgagee by notice to Tenant) certificate(s) ofinsurance evidencing the coverage required hereunder upon commencement of

 

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the Term and no laterthan thirty (30) days prior to the expiration of the coverage evidenced by aprior certificate.  Notwithstandinganything to the contrary hereinabove contained, Tenant may, at its option,include any of the insurance coverage hereinabove set forth in general orblanket policies of insurance, and the coverage afforded may be effected by anycombination of basic, excess or umbrella coverage; provided that as to propertyinsurance, any blanket policy shall include an agreed amount clause or itsequivalent.

 

### 3.5.2                        Waiver of Subrogation.  All insurance (except for workers’compensation insurance) which is carried by either party with respect to thePremises, whether or not required, shall include provisions which deny to theinsurer acquisition by subrogation of rights of recovery against the otherparty to the extent such rights have been waived by the insured party prior tothe occurrence of loss or injury, insofar as, and to the extent that suchprovisions may be effective without making it commercially unreasonable toobtain insurance coverage from responsible companies qualified to do businessin the Commonwealth of Massachusetts as otherwise provided herein (but if extrapremium results therefrom, the other party shall reimburse the insuring partytherefor, on demand).  Each party shallbe entitled to have duplicates or certificates of any policies containing suchprovisions.  Each party hereby waives allrights of recovery against the other for loss or injury against which thewaiving party is protected by insurance containing said provisions, reserving,however, any rights with respect to any excess of loss or injury over theamount recovered by such insurance.

 

Section 3.6                                      Utilitiesand Other Services.

 

### 3.6.1                        Tenant shall pay or cause to bepaid directly to the proper authorities charged with the collection thereof allcharges for any utilities or services separately metered to Tenant used orconsumed on the Premises.  For thoseutilities not separately metered to Tenant, to the extent feasible, Landlordwill undertake to determine Tenant’s utility charge for the cost to serve thePremises based on the comparative usage of such utility (such as undertaking areasonable survey of electricity usage), and shall charge Tenant a “utilitycharge” for such service, which such charge shall specifically not be includedin the Operating Expenses.  Notwithstandinganything contained in this Lease to the contrary, if (i) an interruptionor curtailment, suspension or stoppage of an Essential Service (as saidterm is hereinafter defined) shall occur, except any of the same due to any actor neglect of Tenant or Tenant’s agents employees, contractors or invitees orany person claiming by, through or under Tenant or due to any Casualty asprovided for in **Article 5** (any suchinterruption of an Essential Service being hereinafter referred to as a **“Service Interruption”**), and (ii) such ServiceInterruption occurs or continues as a result of the negligence or a wrongfulconduct of Landlord or Landlord’s agents, servants, employees or contractors,and (iii) such Service Interruption continues for more than five (5) consecutiveBusiness Days after Landlord shall have received notice thereof from Tenant,and (iv) as a result of such Service Interruption, the conduct of Tenant’snormal operations in the Premises is materially and adversely affected, thenthere shall be an abatement of one day’s Base Rent and Additional Rent for eachday during which such Service Interruption continues after such five (5) consecutiveBusiness Day period; provided, however, that if any part of the Premises isreasonably useable for Tenant’s normal business operations or if Tenantconducts all or any part of its operations in any portion of the Premisesnotwithstanding such Service Interruption, then the amount of each dailyabatement of Base Rent and Additional Rent shall only be proportionate to thenature and extent of the interruption of Tenant’s normal

 

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### operations or ability to use the Premises.  For purposes hereof, the term **“Essential Services”** shall mean the following services:access to the Premises, water and sewer/septic service, air circulation to thechemical hoods, HVAC service (to the extent controlled by Landlord),electricity and natural gas.

###  

### 3.6.2                        Landlord shall provide waterfor fire protection purposes to the Premises during the Term by means of theexisting fire loop system and City of Waltham hydrants located at the Property,as the same may be improved or replaced from time to time.  Landlord shall provide domestic water andwater for the conduct of Tenant’s business, without limitation utilizing theexisting domestic water booster pumps, so that water pressure of between 80 –100 pounds per square inch is delivered to the Premises.

###  

### 3.6.3                        Landlord covenants and agreesthat, as Landlord adds additional tenants as beneficiaries of the back-up powerservice made available by the existing 910 KW standby generator, Landlord shallnot permit any overloading of such equipment.

###  

### 3.6.4                        Landlord shall provide on-sitesecurity services to the Building on a 24-hour per day, 7 days per week, 52weeks per year, basis, with walk-through surveillance of the Premises and alarmmonitoring during non-business hours included in such security services.  Tenant shall have access to the Premises andthe parking facilities on a 24-hour per day, 7 days per week, 52 weeks peryear, basis, with after hours access provided via an electronic card accesssystem.

###  

### 3.6.5                        Tenant’s SpecializedEquipment.  Tenant shall be permittedto remove all such specialized equipment and other fixtures as are set forth onthe attached **Exhibit D**.

###  

### 3.6.6                        Cafeteria.  Landlordagrees that, so long as Tenant is the sole tenant occupying space at theBuilding, Tenant has the right, but not the obligation, to occupy and operatethe existing cafeteria located in the Common Areas of the Building (the “**Cafeteria**”) as an appurtenance to the Premises,at Tenant’s sole cost and expense. Landlord and Tenant agree that, upon the occupancy at the Building ofone or more additional tenants, Tenant shall relinquish to Landlord its rightsto use and operate the Cafeteria and Landlord shall provide Cafeteria services(whether operated by Landlord or by an independent contractor) for use byTenant and other tenants and occupants in the Building; provided, however, thatif Landlord’s (or such contractor as Landlord may employ) commerciallyreasonable operation of the Cafeteria is sufficiently proven to Tenant to notbe economically viable (i.e., incapable of operating other than at a net loss),as may be confirmed by Tenant’s reasonable review of Landlord’s books and operatingrecords relating to the Cafeteria, at Tenant’s election, then Landlord shallallow Tenant to elect to either (i) pay to the Cafeteria operator, on amonthly basis, its pro rata share (based on a fraction, the numerator of whichwould be the number of Tenant’s employees, and the denominator of which wouldbe the total number of employees of tenants in the Building that have electedto participate in use of the Cafeteria (the “**CafeteriaPro Rata Share**”)) of the amount of money required each month topermit the Cafeteria operator’s operation to break even; or (ii) elect notto pay such amount, in which case Landlord shall be relieved of the obligationto provide an operational Cafeteria.  IfTenant elects to pay its Cafeteria Pro Rata Share, then Landlord shall ensurethat the Cafeteria remains operational and in any such month when the Cafeteriaoperator requires payment of the Cafeteria Pro Rata Share by Tenant (i.e.,

 

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### operates at a net loss), the Cafeteriaoperator will provide Tenant with a written statement of income and expensesfor Tenant’s review, along with Tenant’s Cafeteria Pro Rata Share that is due.  Landlord agrees that it shall not permit theemployees of any tenant of the Building that does not elect to participate inusing the Cafeteria to have access to or use of the Cafeteria and the servicesprovided there.  Tenant may elect, at anytime during the Term to stop paying such Cafeteria Pro Rata Share to theCafeteria operator, at which such time Landlord shall be relieved from anyobligation to operate the Cafeteria.  Theoperator of the Cafeteria from time to time may modify the hours of operation,the menu or the method of service, provided however that the Cafeteriawill, at a minimum, be open on Business Days for service of breakfast food from7:30 a.m. through 9:30 a.m. and service of lunch meals (the lunchmenu consisting of at least one hot entrée, a cold cut bar and a salad bar eachday) from 11:30 a.m. through 1:30 p.m. whenever the Cafeteria isrequired to be operational during the Term.

###  

### 3.6.7                        Tenant Provided Services.  Notwithstanding anything to the contrarycontained in this Article 3, Tenant may elect, so long as Tenant remainsthe sole tenant of the Building, to provide, at its own cost and expense(subject to the terms herein below), in lieu of Landlord providing the sameunder this Lease, any of the Building services set forth on the attached **Exhibit G** (the “TenantProvided Services”).  Tenant’s costand expense in connection with providing itself with the Tenant ProvidedServices shall be strictly limited to only those expenses which would beproperly charged to Tenant as an Operating Expense if Landlord were to providesuch services; any other costs associated with the provision of such servicesshall remain Landlord’s sole responsibility. Upon the tenancy of one or more other tenants at the Building, Tenantshall cease from providing itself any Tenant Provided Services as Tenant mayhave elected to provide as aforesaid, and Landlord shall assume the obligationto provide Tenant with what had previously been Tenant Provided Services.  Nothing herein above shall be deemed torelease Landlord from its obligation to provide any of the aforementionedTenant Provided Services in the event that Tenant chooses, at any time prior tothe Building being occupied by other tenants, to cease provision of the TenantProvided Services to itself.

###  

### 3.6.8                        pH System.  Unless Tenant shall elect under Section 3.6.7to have Landlord perform the pH system services, Tenant shall, at its own costand expense (subject to the terms herein below), be responsible for its own useand operation of the existing pH balancing system which is located in an areaof the basement of the Building that is outside the Premises (the “**General pH System**”), in connection with Tenant’s occupancyof the Premises.  Tenant’s cost andexpense in connection with providing itself with the services of the General pHSystem shall be strictly limited to only those expenses which would be properlycharged to Tenant as an Operating Expense if Landlord were to provide suchservices; any other costs associated with the provision of such services shallremain Landlord’s sole responsibility. Upon the occupancy of any additional tenants in the Building, Landlordshall, as part of the Building Conversion Work, provide the Premises with itsown operationally dedicated pH system, including without limitation allequipment associated therewith equal in quality and serviceability as theGeneral pH System (“**Premises pH System**”),in an area of the Basement comprising a portion of the Premises, which Landlordshall determine subject to Tenant’s approval. Tenant’s rights as aforesaid with respect to the General pH System shallapply until the Premises pH System is tested and fully operational and Tenantis capable of using the Premises pH System in connection with its occupancy ofthe Premises.  Landlord specificallyagrees that at no point while Tenant is using the General pH System shall anyother tenant or

 

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occupant of the Buildingbe permitted to use the General pH System.  Nothing hereinabove shall release Landlordfrom its obligation to provide any services in connection with the General pHSystem in the event that Tenant chooses, at any time prior to the delivery of atested and operational Premises pH System, to cease provision of such serviceto itself.

 

Section 3.7                                      Repairand Maintenance.

 

### 3.7.1                        Tenant Repairs andMaintenance.  Tenant agrees to keepthe Premises in as good order condition and repair excepting only those repairswhich Landlord is responsible under the terms of this Lease, reasonable use andwear and tear and damage by fire or other casualty or condemnation excepted.  Landlord agrees to cooperate with Tenant to permitTenant, to the extent possible, to obtain the benefit of any warranties andguaranties in favor of Landlord on any part of the Premises.

###  

### 3.7.2                        Landlord Repairs andMaintenance.  Except as otherwiseprovided in this Lease, Landlord agrees to keep in good order, condition andrepair the roof, public areas, exterior walls (including exterior glass) andstructure of the Building (including all plumbing, mechanical and electricalsystems installed by Landlord, but specifically excluding any supplemental heating,ventilation or air conditioning equipment or systems exclusively serving thePremises and installed at Tenant’s request or as a result of Tenant’srequirements in excess of building standard design criteria), all insofar asthey affect the Premises, except that Landlord shall in no event be responsibleto Tenant for the repair of glass in the Premises, the doors (or related glassand finish work) leading to the Premises, or any condition in the Premises orthe Building caused by any act or neglect of Tenant, its invitees orcontractors.  Landlord shall also keepand maintain all Common Facilities in a good and clean order, condition andrepair, free of snow and ice and accumulation of dirt and rubbish, shall providefor regular removal of trash and rubbish from the Property, and shall keep andmaintain all landscaped areas on the Property in a neat and orderlycondition.  Landlord shall not beresponsible to make any improvements or repairs to the Building other than asexpressly in this **Section 3.7.2**provided, unless expressly provided otherwise in this Lease.

###  

### 3.7.3                        Tenant’s Right to Self Help.  If Tenant shall have given written notice toLandlord, and any ground lessor or mortgagee of whose identity Tenant shallhave been given notice, of Landlord’s obligation to perform repairs for whichLandlord is responsible under this Lease, and Landlord shall have failed tocommence performance of the same within a reasonable time period followingTenant’s notice as aforesaid, Tenant may (but shall not be obligated to) makesuch repairs, and Landlord shall reimburse the Tenant for the reasonable costthereof no later than thirty (30) days after receipt of Tenant’s invoicetherefor (if not paid by Landlord within said thirty days, together withinterest at the Default Rate, from the expiration of such thirty (30) dayperiod until paid); provided, however, that Landlord may offset against anyamounts payable by Landlord under this Section any amounts then due andowing by Tenant under this Lease, but, in such event, Landlord shall notifyTenant of the offset.  If Landlord hastimely commenced the performance of such repairs, but fails to continuediligently to complete the same, except to the extent caused by External Causes(as defined herein), Tenant shall have the aforesaid right to self help ifLandlord does not cure its failure within a reasonable time.  Nothing in this **Section 3.7**shall entitle Tenant to an abatement or set off any such costs incurred againstthe payment of rent or any other sums payable to Landlord under thisLease.  As used in

 

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### this Lease, **“External Causes”**means any of the following:  Acts of God,war, civil commotion, fire, flood or other casualty, strikes or otherextraordinary labor difficulties, shortages of labor or materials or equipmentin the ordinary course of trade, government order or regulations or other causenot reasonably within the control of the party in question, and not due to thefault or neglect of such party, excluding, however, inability to payobligations as they become due.

###  

# **ARTICLE IV**TENANT’S ADDITIONAL COVENANTS

 

Section 4.1                                      PermittedUse.  Tenant agrees:  (a)  to use the Building only for generalbusiness and professional offices, research laboratories, animal researchfacility/vivarium, light manufacturing, accessory manufacturing and customaryuses accessory to the foregoing (the **“Permitted Uses”**).  Tenant shall not use or occupy the Premisesfor any other purpose without the prior written consent of the Landlord, whichshall not be unreasonably withheld or delayed as to any manufacturing orassembly use but may be granted or withheld in Landlord’s sole discretion as toany other use.

 

Section 4.2                                      ProhibitedUses.  Notwithstanding the provisionsof **Section 4.1**, Tenant shall not usethe Premises or allow the Premises to be used for any illegal or immoralpurpose, or so as to create waste, constitute a private or public nuisance, orunreasonably disturb other occupants of the Property; provided, however, thatthe currently existing uses shall not be deemed to disturb any other occupantsof the Property.  Tenant shall not placeany loads upon the floors, walls, or ceiling which endanger the structure, orplace any harmful fluids or other materials in the drainage system of theBuilding, or overload existing electrical or other mechanical systems.  Tenant shall not use any machinery orequipment in the Building which causes noise or vibration materially in excessof current levels.  No waste materials orrefuse shall be dumped upon or permitted to remain outside of the Premisesexcept in trash containers placed inside exterior enclosures designated byLandlord for that purpose.  No materials,supplies, equipment, finished products or semi-finished products, raw materialsor articles of any similar nature shall be permitted to remain outside thePremises or on any portion of the Common Areas unless otherwise approved by Landlordin its sole discretion.

 

Section 4.3                                      HazardousMaterials.

 

### 4.3.1                        Hazardous Materials.  Tenant agrees not to generate, store or useany Hazardous Materials (as hereinafter defined) on or about the Premises,except those customarily used by Tenant in connection with its Permitted Usesand operations and janitorial services, in both cases limited to such HazardousMaterials in such amounts as are customarily used in connection with Tenant’sPermitted Uses and for janitorial service provided to Tenant.  Tenant agrees to provide Landlord with accessto copies of all Material Safety Data Sheets (**“MSDS”**)for Hazardous Materials used at the commencement of the Term and to provideaccess to copies of MSDS upon the introduction of any new HazardousMaterials.  Tenant also agrees not torelease or permit any Tenant Responsible Parties to release any Hazardous Materialson the Premises in violation of or that requires reporting under anyEnvironmental Law, and not to dispose of Hazardous Materials (a) on thePremises or (b) from the Property to any other location except a properlyapproved disposal facility and then only in compliance with any and all

 

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### Environmental Laws regulating such activity, nor permit any occupant ofthe Premises to do so.  In accordancewith **Section 4.5** below, Tenant shallindemnify, defend, and hold harmless Landlord, and the holder of any mortgageon the Premises or any larger parcel of land of which the Premises may be apart, from and against any claim, cost, expense, liability, loss, obligation ordamage, including, without limitation, attorney’s fees and the cost oflitigation, arising from or relating to the breach by Tenant or anyone claimingby, through or under Tenant of the provisions of this **Subsection 4.3.1**,and shall immediately discharge or cause to be discharged any lien imposed uponthe Premises or any larger parcel of land of which the Premises may be a partin connection with any such claim.  Forpurposes of this Lease, **“Hazardous Materials”**shall mean any substance regulated under any Environmental Law, including thosesubstances defined in 42 U.S.C. Sec. 9601(14) or any related or applicablefederal, state or local statute, law, regulation, or ordinance, pollutants ofcontaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crudeoil or any fraction thereof), any form of natural or synthetic gas, sludge (asdefined in 42 U.S.C. Sec. 6903(26A), radioactive substances, hazardous waste(as defined in 42 U.S.C. Sec. 6903(27)) and any other hazardous wastes,hazardous substances, contaminants, pollutants or materials as defined,regulated or described in any of the Environmental Laws.  As used in this Lease, **“EnvironmentalLaws”** means all federal, state and local laws relating to theprotection of the environment or health and safety, and any rule orregulation promulgated thereunder and any order, standard, interim regulation,moratorium, policy or guideline of or pertaining to any federal, state or localgovernment, department or agency, including but not limited to theComprehensive Environmental Response, Compensation and Liability Act of 1980,as amended (**“CERCLA”**), the SuperfundAmendments and Reauthorization Act of 1986 (**“SARA”**),the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, theOccupational Safety and Health Act, the Federal Insecticide, Fungicide andRodenticide Act, the Marine Protection, Research, and Sanctuaries Act, theNational Environmental Policy Act, the Noise Control Act, the Safe DrinkingWater Act, the Resource Conservation and Recovery Act (**“RCRA”**),as amended, the Hazardous Material Transportation Act, the Refuse Act, theUranium Mill Tailings Radiation Control Act and the Atomic Energy Act andregulations of the Nuclear Regulatory Agency, Massachusetts General LawsChapters 21C and 21E and any other state and local counterparts or relatedstatutes, laws, regulations, and order and treaties of the United States.

###  

### 4.3.2                        Environmental Assessments.  Tenant shall permit Landlord and Landlord’sagents, representatives and employees, including, without limitation, legalcounsel and environmental consultants and engineers, access to the Premisesduring the Term upon at least twenty-four (24) hours’ prior notice (which maybe verbal) to the chief financial officer of Tenant or such other employee ofTenant as Tenant may designate to Landlord from time to time, and at reasonabletimes convenient to Tenant for purposes of conducting environmentalassessments.  Landlord shall permitTenant or Tenant’s representatives to be present during any such assessment,and any investigation and sampling. Landlord shall avoid materially interfering with Tenant’s use of thePremises, and upon completion of Landlord’s assessment, investigation, andsampling, shall substantially repair and restore the affected areas of thePremises from any damage caused by the assessment.  Such assessment shall be at Landlord’sexpense, provided that if the assessment shows that a release of HazardousMaterials in violation of this Lease has occurred, then Landlord’s actual,reasonable, out-of-pocket costs relating to such assessment shall be reimbursedby Tenant.  Landlord shall permit Tenantor Tenant’s representatives to be present during any test conducted as part ofsuch assessment.  If Landlord takes anysamples

 

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### from the Property in connection with any such assessment, Landlordshall give Tenant reasonable prior notice thereof and Tenant shall be permittedto take split samples, and, if Tenant so requests, Landlord shall provide toTenant a portion of any sample being tested to allow Tenant, if Tenant sochooses, to perform its own testing.

###  

### 4.3.3                        Tenant’s Obligation toRemediate.  Tenant shall investigate,assess, monitor and report as required by applicable Environmental Law, atTenant’s sole cost and expense, any release of Hazardous Materials required tobe reported under any Environmental Law that arises out of the use, operation,or occupancy of the Premises or Property by Tenant or any Tenant ResponsibleParties during the Term and any further period during which Tenant or anyTenant Responsible Party retains use, operation or occupancy of the Premises (a**“Tenant’s Release”**).  Further, Tenant shall remediate, incompliance with applicable Environmental Laws, at Tenant’s sole cost andexpense, any Tenant’s Release requiring Response Action (as defined in 310C.M.R. 40.0000).  Tenant shall submit toLandlord for Landlord’s prior approval a work plan outlining in reasonabledetail any Remedial Work to be performed by Tenant hereunder (the **“Remedial Work Plan”**). Landlord shall not unreasonably withhold or delay its approval of suchRemedial Work Plan if (i) it complies with all applicable EnvironmentalLaws; and (ii) the Remedial Work outlined therein reasonably appearssufficient to remediate the releases to the level provided for in thisSection.  If Tenant is obligated toremediate a Tenant’s Release under this Lease, Tenant shall be obligated toremediate the Tenant’s Release to a level that will permit the portion of theProperty to be used for its highest and best use under applicable LegalRequirements (expressly excluding, however, any residential, child educational,day care, agricultural or horticultural use, except to the extent such uses areincluded in Landlord’s then-current development plans for the Property), but inno event shall Tenant be obligated to remediate the release to a higher levelthan a commercially reasonable owner of similar property with similardevelopment potential would undertake. Tenant shall make available to Landlord copies of drafts of anysubmittals to governmental authorities in connection with the Remedial Work forLandlord’s review and comment at least seven (7) days prior to suchsubmittal, and Tenant shall consider in good faith and incorporate as Tenantreasonably deems appropriate Landlord’s comments thereon.  Tenant shall sign any manifests or otherdocuments as the waste generator for any Hazardous Materials it disposes of orsends off site or otherwise arising from a Tenant’s Release.  This Subsection shall survive the Termand shall be subject to the provisions of **Section 4.5**.  Tenant’s remediation obligation set forth inthis Subsection shall not limit Landlord’s right to damages, if any, whichLandlord may incur due to any unremediated Hazardous Materials resulting from aTenant’s Release.

 

Section 4.4                                      Compliancewith Legal and Insurance Requirements.

 

### 4.4.1                        Compliance with LegalRequirements.  Tenant, at Tenant’scost and expense, agrees to comply with all Legal Requirements applicable tothe use, operation, or occupancy of the Premises by Tenant or any TenantResponsible Parties or any Alterations made by or on behalf of Tenant or anyTenant Responsible Parties, and to provide Landlord with a copy of any noticealleging violation of any such Legal Requirement given to Tenant by anygovernmental authority or third party; except that Tenant may defer complianceso long as the validity of any such Legal Requirement shall be contested byTenant in good faith and by appropriate legal proceedings, if such contest wouldnot subject Landlord to any possible civil or criminal penalties and suchconsent would not place Landlord in default under any Mortgage

 

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### applicable to the Premises, and if Tenant first gives Landlord appropriateassurance in Landlord’s reasonable judgment against any loss, cost or expenseon account thereof.  If any present orfuture Legal Requirement requires any licenses or permits for Tenant’s or anyTenant Responsible Party’s particular use, operation, and occupancy of thePremises, Tenant will obtain and maintain such licenses and permits at Tenant’sown expense, and, upon Landlord’s request, will promptly provide copies toLandlord of all such licenses and permits. If any Legal Requirement requires any Alterations to the Premises,Tenant shall make all such Alterations at its sole cost and expense and incompliance with the terms hereof.

###  

### 4.4.2                        Insurance Requirements.  Tenant shall not do anything, or permitanything to be done, in or about the Premises that would: (i) invalidateor be in conflict with the provisions of or cause any increase in theapplicable rates for any fire or other insurance policies covering the Buildingor any property located therein (unless Tenant pays for such increased costs), (ii) resultin a refusal by fire insurance companies of good standing to insure theBuilding or any such property in amounts reasonably satisfactory to Landlord(which amounts shall be comparable to the amounts required by comparablelandlords of comparable buildings, or (iii) result in the cancellation ofany policy of insurance maintained by or for the benefit of Landlord. Tenant,at Tenant’s expense, shall comply with all rules, orders, regulations orrequirements of the American Insurance Association (formerly the National Boardof Fire Underwriters) and with any similar body that shall hereafter performthe function of such Association.

 

Section 4.5                                      Indemnity.

 

### 4.5.1                        Tenant.  To the maximum extent this agreement may bemade effective according to law, and except as otherwise expressly provided inthis Lease, Tenant agrees to indemnify and save harmless Landlord, LandlordResponsible Parties (as hereinafter defined) and any mortgagee providingfinancing with respect to the Property of which Tenant has received notice fromand against all costs, expenses, liabilities, claims, loss, and damage ofwhatever nature to the extent:

###  

##### (i)                                          arisingfrom the use, occupancy or operation of the Premises and/or the Common Areas byTenant or Tenant’s contractors, subtenants, licensees, invitees, agents,servants or employees or others for whom Tenant is legally responsible(collectively, with Tenant, **“Tenant ResponsibleParties”**) during the Term and any further period during which Tenantretains occupancy of the Premises or the use or occupancy of the Property byTenant or Tenant Responsible Parties during the Term and any further periodduring which Tenant or any Tenant Responsible Party retains occupancy of thePremises;

#####  

##### (ii)                                       arisingfrom any accident, physical injury or physical damage occurring on any portionof the Premises during the Term or an Extended Term; or

#####  

##### (iii)                                    arisingfrom Tenant’s or Tenant Responsible Parties’ violation of or failure to complywith the provisions of **Section 4.3**above with regard to Hazardous Materials;

 

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provided, however, that (x) the foregoing indemnityshall not include any cost or damage to the extent arising from any negligentact or omission or willful misconduct of Landlord or Landlord’s contractors,licensees, invitees, agents, servants or employees or others for whom theLandlord is legally responsible (collectively, with Landlord, **“Landlord Responsible Parties”**) and (y) in no event shallTenant be liable under this indemnity for consequential damages, but thelimitation in this clause (y) shall not apply to the indemnity set forth in **Section 4.3** entitled “Hazardous Materials”.  This indemnity and hold harmless agreementshall include indemnity against reasonable attorneys’ fees and all other costs,expenses and liabilities incurred or in connection with any such claim orproceeding brought thereon, the defense thereof, and the enforcement of rightsunder this indemnity.

 

### 4.5.2                        Landlord.  To the maximum extent this agreement may bemade effective according to law, and except as otherwise expressly provided inthis Lease, Landlord agrees to indemnify and save harmless Tenant from andagainst all claims, loss, or damage of whatever nature to the extent arisingfrom any negligent act or omission or willful misconduct of Landlord orLandlord Responsible Parties on or about the Premises or the Property duringthe Term; or provided, however, that (x) the foregoing indemnity shall notinclude any cost or damage to the extent arising from any negligent act oromission or willful misconduct of Tenant or any Tenant Responsible Parties and(y) in no event shall Landlord be liable under this indemnity for consequentialdamages.  This indemnity and hold harmlessagreement shall include indemnity against reasonable attorneys’ fees and allother costs, expenses and liabilities incurred or in connection with any suchclaim or proceeding brought thereon, and the defense thereof.

###  

### 4.5.3                        General Provisions RegardingIndemnity.  If a party (the **“Indemnified Party”**) becomes aware of a claim, action orproceeding or any other event which could result in an obligation to indemnifythe Indemnified Party by the other party (the **“ObligatedParty”**) under this Lease, the Indemnified Party shall notify theObligated Party thereof in writing within sixty (60) days after it becomes soaware, giving a reasonably detailed description of the claim, action,proceeding or other event to the extent then known, and providing a copy of anywritten demand, notice, summons or other paper received by the IndemnifiedParty.  If the Indemnified Party fails toso notify the Obligated Party, to the extent, if any, that the failure tonotify causes the obligation to indemnify to increase, then to the extent ofsuch increase, the Obligated Party’s obligation to indemnify under this Leaseshall thereupon cease.  In any action orproceeding that is subject to an indemnity obligation of an Obligated Partyunder this Lease, the Obligated Party shall have the exclusive right andobligation to defend the Indemnified Party at the Obligated Party’s expensewith legal counsel chosen by the Obligated Party and reasonably acceptable tothe Indemnified Party.  If at any time,the Indemnified Party in its reasonable discretion determines that the ObligatedParty is not diligently and adequately pursuing such defense, the IndemnifiedParty may immediately assume control of its defense by so notifying theObligated Party and may appoint substitute counsel chosen by the IndemnifiedParty.  All expenses incurred by theIndemnified Party in connection with such substitute defense including, withoutlimitation, reasonable attorneys’ fees and expenses, shall be payable by theObligated Party on demand.  Each party,as an Indemnified Party, agrees to cooperate with the Obligated Party in thedefense of any claim, and the failure to cooperate shall release the ObligatedParty from its obligation to defend and indemnify.  An Obligated Party shall not settle anyclaim, action or proceeding against an Indemnified Party without theIndemnified Party’s prior written consent, which consent shall not beunreasonably withheld or delayed.

 

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### 4.5.4                        Survival.  The indemnifications contained in this **Section 4.5** shall survive the expiration or earliertermination of this Lease with respect to any matters arising or accruing priorthereto or during any holdover period by Tenant or any Tenant ResponsibleParty.

###  

Section 4.6                                      Landlord’sRight to Enter.  Tenant agrees topermit Landlord and purchasers and Mortgagees and their authorizedrepresentatives and, during the last nine (9) months of the Term withrespect to any portion of the Premises, any prospective tenants, to enter thePremises (or, as to prospective tenants, the applicable portion of thePremises) to inspect the same or to exercise any of Landlord’s rights underthis Lease (i) after at least 24 hours prior notice (which may be oral) toTenant’s representative at all reasonable times during usual business hours;provided, however, that any such entry shall be made so as to minimizeinterference with the operation and use of the Premises by Tenant and withoutdamage to the Premises or any portion thereof; and (ii) at any time andwithout notice in the event of emergency. In addition, Tenant agrees to permit Landlord to enter the Premisesafter at least twenty-four hours prior notice (which may be oral) to Tenant’srepresentative at all reasonable times during business hours for purposesrelated to Landlord’s planned redevelopment of the Property such as inspection,measurement, design and testing, so long as such entry is made without materialinterference with the operation and use of the Premises by Tenant and withoutdamage to the Premises or any portion thereof.

 

Section 4.7                                      PersonalProperty at Tenant’s Risk.  Tenantagrees that all of the furnishings, fixtures, equipment, effects and propertyof every kind, nature and description of Tenant and of all persons claiming by,through or under Tenant which may be on any part of the Premises during thecontinuance of the Term applicable to that portion of the Premises or anyoccupancy of that portion of the Premises by Tenant or anyone claiming underTenant, shall be at the sole risk and hazard of Tenant, and if the whole or anypart thereof shall be destroyed or damaged by fire, water or otherwise, or bythe leakage or bursting of water pipes, by theft or from any other cause, nopart of said loss or damage is to be charged to or to be borne by Landlord,except that Landlord shall in no event be exonerated from any liability toTenant or to any other person, for any injury, loss, damage or liability to theextent prohibited by law.  During thefirst sixty (60) days of the Term (which may be accelerated by Landlord to onlythe first thirty (30) days if reasonably required by Landlord), Tenant may keeppersonal property in other portions of the Building that Tenant has previouslyoccupied with Landlord’s permission.

 

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Section 4.8                                      YieldUp.

 

### 4.8.1                        Covenant.  Tenant agrees, on or before the expiration orearlier termination of the Term:  tosurrender all keys to the Premises, to remove, at Tenant’s sole cost andexpense, the Tenant’s personal property, and to yield up the Premises, broomclean, cleaned and decommissioned as required by **Section 4.8.2**,in the same condition in which Tenant is obliged to keep and maintain thePremises by the provisions of this Lease, reasonable use and wear and tear anddamage by fire or other casualty or condemnation excepted.  In no event shall Tenant be required tosurrender the Premises in any better condition than they were in on theCommencement Date or thereafter improved.

###  

### 4.8.2                        Tenant’s Removal Obligation.  The property that Tenant is required toremove from the Premises pursuant to **Section 4.8.1**above consists of all trade fixtures, manufacturing materials and supplies,work in process, any other personal property not attached to the Building, aninitial list of which is attached hereto as **Exhibit D**;provided however that no later than thirty (30) days prior to the TerminationDate of this Lease, Tenant and Landlord shall agree upon a specific list ofitems which Tenant shall be required to remove from the Property (which suchlist shall include, at a minimum, the items listed on **Exhibit D**).  Tenant shall patch or cap any damage to thePremises caused by removal of any of the foregoing, but shall not be requiredto further repair such damage.  Further,Tenant shall clean and otherwise decommission (or, at Tenant’s election,remove) all process piping, process supply lines, process waste lines andprocess plumbing in the Premises, and all exhaust or other ductwork in thePremises, in each case which has carried or released any Hazardous Materials,and shall otherwise clean the Premises so as to permit the report hereinaftercalled for by this Subsection to be issued.  Within thirty (30) days after completion ofsuch cleaning and decommissioning as to the Building, Tenant, at Tenant’sexpense, shall obtain for Landlord a report addressed to Landlord (and, atTenant’s election, Tenant) by a reputable licensed environmental engineer thatis designated by Tenant and acceptable to Landlord in Landlord’s reasonablediscretion, which report shall be based on the environmental engineer’sinspection of such Building and shall show:

###  

##### (i)                                          thatthe Hazardous Materials carried or processed by such supply lines, waste lines,and plumbing or released through such exhaust or ductwork, to the extent, ifany, existing prior to such decommissioning, have been removed as necessary sothat the remaining process piping, process supply lines, process waste linesand process plumbing, and all such exhaust or other ductwork, may be disposedof in compliance with applicable Environmental Laws without taking any specialprecautions for Hazardous Materials (excluding asbestos or asbestos-containingmaterials), without incurring special costs or undertaking special proceduresfor demolition, disposal, investigation, assessment, cleaning or removal ofHazardous Materials (excluding asbestos or asbestos-containing materials or anyHazardous Materials currently existing as part of the Building or otherimprovements) and without incurring regulatory compliance requirements orgiving notice in connection with Hazardous Materials (excluding asbestos orasbestos-containing materials or any Hazardous Materials currently existing aspart of the Building or other improvements); and

 

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##### (ii)                                       thatthe Premises may be reoccupied for use consistent with Tenant’s Permitted Uses,demolished or renovated without taking any special precautions for HazardousMaterials (excluding (x) asbestos or asbestos-containing materials, and (y) anyHazardous Materials currently existing as part of the Building or otherimprovements, without incurring special costs or undertaking special proceduresfor disposal, investigation, assessment, cleaning or removal of HazardousMaterials (excluding (x) asbestos or asbestos-containing materials, and (y) anyHazardous Materials currently existing as part of the Building or otherimprovements, and without incurring regulatory requirements or giving notice inconnection with Hazardous Materials (excluding (x) asbestos or asbestos-containingmaterials, and (y) any Hazardous Materials currently existing as part of theBuilding or other improvements.

#####  

Further, for purposes of clauses (i) and (ii): (a) materialspreviously or hereafter generated from operations shall not be deemed part ofthe Building or other improvements, and (b) ”special costs” or “specialprocedures” shall mean costs or procedures, as the case may be, that would notbe incurred but for the nature of the Hazardous Materials as HazardousMaterials instead of non-hazardous materials. The report shall include reasonable detail concerning the clean-uplocation, the tests run and the analytic results.  At Tenant’s request, Landlord will notifyTenant if Landlord intends to demolish the applicable portion of the Premisesor substantially rehabilitate the applicable portion of the Premises, and inthat event, Landlord shall give Tenant Landlord’s good faith estimate of thecosts to Landlord of removing any of the property otherwise required to beremoved by Tenant hereunder, and Tenant may elect, instead of removing any ofsuch property, to make eighty percent (80%) of such payment to Landlord insatisfaction of Tenant’s removal obligation; provided, that in any such event,Landlord may require Tenant to remove from the Premises the Hazardous Materialsprovided for above in this **Section 4.8.2**.

 

### 4.8.3                        Certain Rights of Landlord.  If Tenant fails to perform its removalobligations hereunder, without limiting any other right or remedy, Landlordmay, on five (5) Business Days prior written notice to Tenant perform suchobligations at Tenant’s expense, and Tenant shall promptly reimburse Landlordupon demand for all out-of-pocket costs and expenses incurred by Landlord inconnection with such work.  In addition,any such reimbursement shall include five percent (5%) administrative fee tocover Landlord’s overhead in undertaking such work.  The reimbursement and administrative feeshall be Additional Rent. Tenant’s removal obligations under this Section shallsurvive the termination of this Lease. Any items of Tenant’s personal property or trade fixtures which remainin the applicable portion of the Premises after the expiration date of theapplicable Term may, on five (5) Business Days prior written notice toTenant, at the option of Landlord, be deemed abandoned and in such case mayeither be retained by Landlord as its property or be disposed of, withoutaccountability, at Tenant’s expense in such manner as Landlord may see fit.

###  

Section 4.9                                      PersonalProperty Taxes.  Tenant agrees to pay,on or before the due date thereof, all taxes charged, assessed or imposed uponthe personal property (including, without limitation, fixtures and equipment)of Tenant in or upon the Premises.

 

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Section 4.10                                Assignmentand Subletting.

 

### 4.10.1                  Consent Required.  Except as otherwise expressly providedherein, Tenant shall not, directly or indirectly, voluntarily or by operationof law, sell, assign, encumber, pledge or otherwise transfer or hypothecate allor any part of its interest in or rights with respect to the Premises or itsleasehold estate (collectively, **“Assignment”**),or permit all or any portion of the Premises to be occupied by anyone otherthan itself or sublet all or any portion of the Premises (collectively, **“Sublease”**) without Landlord’s prior written consent, whichsuch consent shall not be unreasonably withheld or delayed.  No Assignment or Sublease shall relieveTenant of Tenant’s primary liability under this Lease.  A consent to one Assignment or Sublease shallnot constitute consent to any further Assignment or Sublease.  Acceptance by Landlord of rent from anyassignee or subtenant shall not constitute consent to such Assignment orSublease.

###  

### 4.10.2                  Successor Entity.  Notwithstanding the foregoing, Tenant shallhave the right to make an Assignment to a Successor Entity (hereinafterdefined) without Landlord’s consent, provided that upon consummation of thetransaction resulting in the Assignment to the Successor Entity, the credit ofthe party or parties liable for Tenant’s obligations under this Lease(including any assignor tenant that has not been released), taken as a whole,shall be at least as good (as determined by the major rating agencies if thecredit of any such party is rated at such time) as that of the assignor Tenantexisting immediately prior to such consummation.  A **“Successor Entity”**,as used in this Section shall mean a corporation or other business entity (i) intowhich or with which Tenant, its corporate or other successors or permittedassigns, is merged or consolidated, in accordance with applicable statutoryprovisions for the merger or consolidation of a corporation or other businessentity, or (ii) which acquires control of Tenant in a *bona fide*transaction not entered into for the purpose of avoiding the restrictions ontransfer set forth in this Lease, or (iii) which acquires in a *bona fide* arms-length transaction all or substantially allof the assets of Tenant or all or substantially all of the assets of any operatingunit of Tenant; provided that:  (a) inthe case of a merger or consolidation, if the Tenant under this Lease is a newTenant as a result of such merger or consolidation, by operation of law or byeffective provisions contained in the instruments of merger or consolidation oracquisition, the liabilities of Tenant under this Lease are assumed by thecorporation or other business entity surviving such merger or consolidation;and (b) in the case of an asset sale, by operation of law or by effectiveprovisions contained in the instruments of sale, the liabilities of Tenantunder this Lease are assumed by the corporation or other business entityacquiring Tenant’s assets.  Tenant shallnotify Landlord promptly upon consummation of any Assignment hereunder notrequiring Landlord’s consent, and, within thirty (30) days after theconsummation of such Assignment shall deliver to Landlord the Assignee’swritten confirmation that the Assignee has assumed and agreed to pay orperform, as applicable, all of Tenant’s obligations under this Lease.  In addition, within twenty (20) Business Daysafter Landlord’s request therefor, the Assignee shall execute and deliver awritten assumption in form and substance satisfactory to Landlord in Landlord’sreasonable discretion of Tenant’s obligations under this Lease.  In addition, Tenant may Sublease all or anyportion of the Premises without Landlord’s consent to any corporation,partnership, trust, association or other business organization directly orindirectly controlling or controlled by or under common control with Tenant(any such Sublease, an **“Affiliate Sublease”**),so long as Tenant gives Landlord not less than a fifteen (15) days’ priorwritten notice thereof.  Within thirty(30) days after entering into any such Sublease, Tenant shall give Landlord acopy of the

 

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### fully-signed Sublease, which shall incorporate the terms of the lastsentence of **Subsection 4.10.6**.

###  

### 4.10.3                  Excess Payments.  If Tenant assigns this Lease or subleases thePremises or any portion thereof (other than pursuant to an Affiliate Subleaseor an Assignment to a Successor Entity), Tenant shall pay to Landlord asAdditional Rent fifty percent (50%) of the amount, if any, by which (a) thecompensation received by Tenant from such Assignment or Sublease (prorated overthe term of the Assignment or Sublease), net of expenses actually incurred byTenant in connection with such Assignment or Sublease, as pro-rated over theSublease term or remaining Term of this Lease, as applicable, exceeds (b) inthe case of an Assignment, the Base Rent and Additional Rent under this Lease,and in the case of a Sublease, the portion of the Base Rent and Additional Rentallocable to the portion of the Premises subject to such Sublease.  Such payments shall be made on the date thecorresponding payments under this Lease are due.

###  

### 4.10.4                  Further Requirements.  If this Lease be assigned, or if the Premisesor any part thereof be sublet or occupied by anyone other than Tenant, whetheror not in violation of the terms and conditions of the Lease, Landlord may, atany time and from time to time, collect rent and other charges from theassignee, subtenant or occupant, and apply the net amount collected to the rentand other charges herein reserved, but no such assignment, subletting,occupancy, collection or modification of any provisions of this Lease shall bedeemed a waiver of this covenant, or the acceptance of the assignee, subtenantor occupant as a tenant or a release of Tenant from the further performance ofcovenants on the part of Tenant to be performed hereunder.  Any consent by Landlord to a particularassignment, subletting or occupancy or other act for which Landlord’s consentis required under this **Section 4.10**shall not in any way diminish the prohibition stated in this **Section 4.10** as to any further such assignment,subletting or occupancy or other act or the continuing liability of theoriginal named Tenant. No assignment or subletting hereunder shall relieveTenant from its obligations hereunder, and Tenant shall remain fully andprimarily, jointly and severally liable therefor.  Tenant shall reimburse Landlord on demand, asAdditional Rent, for any reasonable out-of-pocket costs (including reasonableattorneys’ fees and expenses) incurred by Landlord in connection with anyrequest for consent to any proposed Assignment or Sublease, whether or notconsummated, including the costs of making investigations as to theacceptability of the proposed assignee or subtenant.  Any Sublease to which Landlord gives itsconsent shall not be valid unless and until Tenant and the sublessee execute aconsent agreement in form and substance satisfactory to Landlord in itsreasonable discretion and a fully executed counterpart of such Sublease hasbeen delivered to Landlord.  Any Subleaseshall provide that: (i) the term of the Sublease ends no later than oneday before the last day of the Term of this Lease; (ii) such Sublease issubject and subordinate to this Lease; (iii) Landlord may enforce theprovisions of the Sublease, including collection of rents; and (iv) in theevent of termination of this Lease or reentry or repossession of the Premisesby Landlord, Landlord may, at its sole discretion and option, take over all ofthe right, title and interest of Tenant, as sublessor, under such Sublease, andsuch subtenant shall, at Landlord’s option, attorn to Landlord but neverthelessLandlord shall not (a) be liable for any previous act or omission ofTenant under such Sublease; (b) be subject to any defense or offsetpreviously accrued in favor of the subtenant against Tenant; or (c) bebound by any previous modification of such Sublease made without Landlord’swritten consent or by any previous prepayment of more than one month’s rent.

 

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### 4.10.5                  No Merger.  The voluntary or other surrender of thisLease by Tenant, or a mutual cancellation thereof, shall not work a merger, andat the option of Landlord shall terminate all or any existing Assignments orSubleases, or at the option of Landlord may operate as an assignment toLandlord of any or all Assignments or Subleases.  Furthermore, any foreclosure of a mortgagethat may be held by a Tenant on the Land and/or the Premises shall not work a merger,and in such instance, the Lease hereunder shall remain in full force andeffect.

 

Section 4.11                                Installations,Alterations or Additions.

 

### 4.11.1                  Alterations by Tenant.  Tenant shall not make any improvements,alterations or additions in or to the Premises (**“Alterations”**)without the prior consent of Landlord, which consent shall not be unreasonablywithheld or delayed, provided that if the proposed Alterations will adverselyaffect the structural integrity of the Building, Landlord may withhold its consentto such Alterations in Landlord’s sole discretion.  Notwithstanding the foregoing, the consent ofLandlord shall not be required with respect to any Alterations costing lessthan $100,000 in any given instance that do not perforate or penetrate the roofor other exterior portions of the Building in question and do not adverselyaffect the structural integrity of the Building.  Without limitation, it shall not beunreasonable for Landlord to deny its consent to any Alterations which wouldimpose on Landlord any special maintenance, repair, or replacement obligationsnot within the scope of those expressly provided for herein, unless Tenantagrees, at the time of its request for approval or notice of such Alterations,to pay all costs associated with Landlord’s meeting the additionalobligations.  All Alterations shall besubject to the provisions of **Subsection 4.11.2**hereof.

###  

### 4.11.2                  Additional Covenants RegardingAlterations.

###  

#### (a)                             AllAlterations shall be made (i) at Tenant’s sole expense, (ii) accordingto plans and specifications approved in writing by Landlord (to the extentplans, specifications, and/or Landlord’s consent is required), (iii) incompliance with all applicable Legal Requirements, (iv) by a licensedcontractor, and (v) in a good and workmanlike manner.  Tenant shall provide Landlord with as-builtplans for any Alterations for which plans are used, regardless of whether theAlterations require Landlord’s consent hereunder.

####  

#### (b)                            Tenantshall keep the Premises and the Building free from any liens arising out of anywork performed, materials ordered or obligations incurred by or on behalf ofTenant.  Without limitation, Tenant shallbe responsible for, and shall pay when due, all costs associated with thepreparation of plans and the performance of Alterations, and the same shall beperformed in a lien-free, good and workmanlike manner, and in accordance withapplicable codes and requirements, including the requirements of the Americanswith Disabilities Act (**“ADA”**).  In the event that Tenant shall fail to paythe costs associated with Alterations on a timely basis, as a result of suchfailure, a statutory and/or common law lien is asserted against the Premises orthe applicable Building, and Tenant shall fail, within ten (10) days afternotice of such assertion, to cause (by payment, posting of a proper bond, orotherwise) such lien to be released of record, Landlord shall have the right(but not the obligation), at Tenant’s expense, to cause such lien to be bondedover or released of record.

 

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#### (c)                             Tenantshall ensure that all contractors and subcontractors performing Alterations areinsured in amounts required by law.  IfLandlord requests, certificates of such insurance shall be delivered to Landlord.

####  

#### (d)                            Tenantagrees that Landlord will have the right to inspect any Alterations.  In the performance of Alterations inaccordance with this Lease, Tenant shall cause its contractor to use reasonableand diligent efforts not to interfere with ongoing operations on the rest ofthe Property outside of the Premises, to keep all construction areas clean andfree of trash and debris, and otherwise to comply with any other reasonable rules andregulations established by Landlord with regard to construction activities.

####  

#### (e)                             Tenantshall provide copies of any warranties for Alterations and the materials andequipment which are incorporated into the Building and Premises in connectiontherewith, and either assign to Landlord, or enforce on Landlord’s behalf, allsuch warranties to the extent repairs and/or maintenance on warranted itemswould be covered by such warranties and are otherwise Landlord’s responsibilityunder this Lease.

####  

### 4.11.3                  Removal of Alterations.  Landlord shall notify Tenant in writing atthe time of Landlord’s approval of any Alterations, whether or not the proposedAlterations will be required to be removed by Tenant at the end of theTerm.  Tenant shall be obligated toremove any Alterations that Landlord has not designated in writing will bepermitted to remain on the Premises in accordance with **Section 4.8**.

###  

Section 4.12                                Signage.  Landlord, at its sole cost and expense, maymodify the signage plan of the Building in place as of the Commencement Date, solong as Landlord shall provide appropriate signage and monuments directingemployees and customers to the Building and the Premises.  Any such changes to the signage plan shall besubject to obtaining any necessary permits from the City of Waltham and Tenant’sapproval, and any other applicable approvals, which will not unreasonably bewithheld or delayed.  Tenant shall not beunreasonable in withholding its consent to any change in the signage plan whichTenant determines, in its reasonable judgment, renders Tenant’s signageinsufficient in relation to the amount of and percentage of building floorspace which Tenant occupies at the Building.  Tenant, at its sole cost and expense, shallhave the non-exclusive right to place its name on any such monument(s) createdby Landlord, in accordance with any applicable Building standards.  Tenant shall have the right to place itscorporate name on the entry door to the Building, or alternatively, at somelocation near the door or on the exterior of the Building, each in accordancewith any applicable Building standards.** **Except as set forth above,****Tenant agrees not to install, inscribe, paint, affix orotherwise display any sign or advertisement on any part of the Premises thatcan be seen from outside of the Premises without Landlord’s prior written consent.

 

Section 4.13                                NoOpposition to Development.  Tenantagrees not to take any action to oppose any application by Landlord for anypermits, consents or approvals from any governmental authorities for anyredevelopment or additional development of all or any part of the Property, andwill use all commercially reasonable efforts to prevent any Tenant ResponsibleParties from doing so.  For purposeshereof, action to oppose any such application shall include,

 

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without limitation,communications with any governmental authorities requesting that any suchapplication be limited or altered.  Alsofor purposes hereof, commercially reasonable efforts shall include, withoutlimitation, commercially reasonable efforts, upon receiving notice of any suchaction to oppose any application on the part of any Tenant Responsible Party,to obtain injunctive relief, and, in the case of a subtenant, exercisingremedies against the subtenant under its Sublease.

 

# **ARTICLE V**CASUALTY OR TAKING

 

Section 5.1                                      Casualty.

 

### 5.1.1                        Termination Option.  If the Premises or Building is damaged byfire or other casualty (**“Casualty”**),such that the damage cannot be repaired under the laws and regulations of thefederal, state and local governmental authorities having jurisdiction withinone year after the date of such damage (or in the case of damage occurringduring the last twelve (12) months of the applicable Term, such that repairscannot be completed before the 180th day before the end of the applicableTerm), then either party may elect to terminate this Lease by written notice tothe other party given within thirty (30) days after the date of suchdamage.  If such a notice to terminate isgiven, this Lease shall terminate as of the date of such notice.

###  

### 5.1.2                        Repair Obligation.  If neither Landlord nor Tenant is entitled orelects to terminate this Lease as provided in **Subsection 5.1.1**,then Landlord promptly shall repair the same, but the repairs to be made byLandlord under this Article shall not include, and Landlord shall not berequired to repair, any Casualty damage to Tenant’s personal property or tradefixtures.  Landlord shall commence suchrepair promptly and diligently prosecute the repair to completion.  Landlord shall not be obligated to carryinsurance of any kind on Tenant’s personal property or trade fixtures andLandlord shall not be obligated to repair any damage thereto or replace thesame.  Tenant shall be responsible at itsown expense for the repair and replacement of Tenant’s personal property andtrade fixtures which Tenant elects to repair or replace.

###  

### 5.1.3                        Abatement.  If all or any part of the Premises shall berendered Untenantable by reason of a Casualty, the Base Rent and the AdditionalRent shall be abated in the proportion that the Untenantable area of thePremises bears to the total area of the Premises, for the period from the dateof the Casualty to the date of substantial completion of any work required ofLandlord so that such portion of the Premises is no longer Untenantable.  Each party hereby waives the provisions ofany statute or law that may be in effect at the time of a casualty under whicha lease is automatically terminated or a tenant is given the right to terminatea lease due to a casualty other than as provided in **Subsection 5.1.1**.

###  

Section 5.2                                      EminentDomain.

 

### 5.2.1                        Taking.  If the whole or a substantial part (ashereinafter defined) of the Premises shall be taken or condemned by anygovernmental or quasi governmental authority for any public or quasi public useor purpose (including a sale thereof under threat of such a taking), then thisLease shall terminate on the date title thereto vests in such governmental orquasi governmental authority, and all Base Rent and Additional Rent payable hereundershall be

 

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### apportioned as of such date.  Ifless than a substantial part of the Premises is taken or condemned by anygovernmental or quasi governmental authority for any public or quasi public useor purpose (including a sale thereof in lieu of such a taking), this Leaseshall continue in full force and effect, but the Base Rent thereafter payablehereunder shall be equitably adjusted as of the date title vests in thegovernmental or quasi governmental authority. For purposes of this Section, a “substantial part” of the Premises shallbe considered to have been taken if Tenant reasonably determines that theremaining portion of the Premises is not suitable for Tenant’s use for thebalance of the Term.  If this Lease isnot terminated as aforesaid as to such space, Landlord promptly shall use allreasonable efforts to restore the Premises to usable condition for Tenant’scurrent use thereof as of the date of this Lease; provided, however, thatLandlord shall not be obligated to expend an amount in excess of the totalaward, damages and other compensation paid by the condemning authority onaccount of such taking or condemnation (or sale under threat of such a taking)(less, in any case, the reasonable expenses of Landlord in obtaining suchcompensation) on such restoration.

###  

Section 5.3                                      Awards.  All awards, damages and other compensationpaid by the condemning authority on account of such taking or condemnation (orsale under threat of such a taking) shall belong to Landlord; Tenant herebyreleases and assigns to Landlord all Tenant’s rights to such awards, damagesand other compensation, and covenants to deliver such further assignments andassurances thereof as Landlord may from time to time reasonably request.  Tenant agrees not to make any claim againstLandlord or the condemning authority for any portion of such award orcompensation attributable to damages to the Premises, the value of theunexpired term of this Lease, the loss of profits or goodwill, leaseholdimprovements or severance damages. Nothing contained herein, however, shall prevent Tenant from pursuing aseparate claim against the condemning authority for the value of furnishings,equipment and trade fixtures installed in the Premises at Tenant’s expense andfor relocation expenses, provided Landlord’s award is not reduced thereby.

 

# **ARTICLE VI**DEFAULTS

 

Section 6.1                                      Default.  The occurrence of any of the following shallconstitute an **“Event of Default”** by Tenant underthis Lease:

 

#### (a)                             ifTenant shall fail to pay any Rent when due; provided, however, that any suchfailure to pay any installment of Base Rent or any regularly scheduled paymentof Additional Rent shall not constitute a default under this Lease so long assuch failure shall not continue for more than thirty (30) days after writtennotice from Landlord to Tenant, and any such failure to pay any other paymentof Rent shall not constitute a default under this Lease so long as such failureshall not continue for more than thirty (30) days after written notice fromLandlord to Tenant; or

####  

#### (b)                            ifTenant shall fail to comply with its obligation to carry insurance hereunderand such violation or failure shall continue for more than thirty (30) days(or, if shorter, the period prior to cancellation of such insurance) afterwritten notice thereof

 

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#### from Landlord, whichnotice shall specifically state that Tenant has only thirty (30) days (or, ifshorter, the period prior to cancellation of such insurance) to cure suchdefault; or

####  

#### (c)                             ifTenant shall fail to cause any mechanic’s or materialmen’s lien associated withTenant’s Alterations to be released of record (by payment, posting of a properbond, or otherwise) within thirty (30) days after written notice from Landlordof Tenant’s failure to have caused such lien to be released

####  

#### (d)                            ifTenant shall violate or fail to perform any term, condition, covenant oragreement to be performed or observed by Tenant under this Lease other thanthose provided for in paragraphs (a), (b) or (c) above and suchviolation or failure shall continue for more than thirty (30) days afterwritten notice thereof from Landlord plus such additional time, if any, as isreasonably necessary to cure the default if it is of such a nature that itcannot reasonably be cured in thirty (30) days, provided Tenant commences suchcure within such thirty (30) days and thereafter diligently proceeds to curesuch default; or

####  

#### (e)                             ifTenant shall admit in writing its inability to pay its debts generally as theybecome due, commence any case, proceeding or other action seekingreorganization, arrangement, adjustment, liquidation, dissolution orcomposition of Tenant or any of its debts under any law relating to bankruptcy,insolvency, reorganization, liquidation or relief of debtors, or seekingappointment of a receiver, trustee, custodian or other similar official forTenant or for all or any substantial part of the Premises; or

####  

#### (f)                               ifany case, proceeding or other action against Tenant shall be commenced seekingto have an order for relief entered against Tenant as debtor, or seekingreorganization, arrangement, adjustment, liquidation, dissolution orcomposition of Tenant or any of its debts under any law relating to bankruptcy,insolvency, reorganization, liquidation or relief of debtors, or seekingappointment of a receiver, trustee, custodian or other similar official forTenant or for all or any substantial part of its property, and such case,proceeding or other action (i) results in the entry of an order for reliefagainst Tenant or (ii) remains undismissed for a period of sixty (60)days; or

####  

#### (g)                            ifTenant is obligated to provide a replacement Letter of Credit pursuant to **Section 6.8**, and Tenant fails to do so within fifteen(15) days after written notice from Landlord that Tenant is required to do soand that failure to do so will constitute an Event of Default.

####  

Section 6.2                                      Landlord’sRight to Terminate.  Upon theoccurrence of an Event of Default, Landlord and the agents and servants ofLandlord may, in addition to and not in derogation of any remedies for anypreceding breach of covenant, immediately or at any time thereafter and withoutdemand or notice, at Landlord’s election, do any one or more of thefollowing:  (i) give Tenant noticestating that this Lease is terminated, effective upon the giving of such noticeor upon a date stated in such notice, as Landlord may elect, in which eventthis Lease shall be irrevocably extinguished and terminated as stated in suchnotice without any further action, or (ii) with or without process of law,in a lawful manner enter and repossess the

 

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Premises as of Landlord’sformer estate, and expel Tenant and those claiming through or under Tenant, andremove its and their effects, without being guilty of trespass, in which eventthis Lease shall be irrevocably extinguished and terminated at the time of suchentry, or (iii) pursue any other rights or remedies permitted by law orequity.  Any such termination of thisLease shall be without prejudice to any remedies which might otherwise be usedfor arrears of rent or prior breach of covenant, and in the event of suchtermination Tenant shall remain liable under this Lease as hereinafter provided.  Landlord, without notice to Tenant, may storeTenant’s effects and those of any person claiming through or under Tenant, atthe expense and risk of Tenant.

 

Section 6.3                                      Remedies.  In the event that this Lease is terminatedunder any of the provisions contained in **Section 6.2**or shall be otherwise terminated for breach of any obligation of Tenant, Tenantshall pay the Base Rent, Additional Rent and other sums payable hereunder up tothe time of such termination, and thereafter Tenant, until the end of whatwould have been the Term of this Lease in the absence of such termination, andwhether or not the Premises shall have been re-let, shall be liable to Landlordfor, and shall pay to Landlord, as liquidated current damages the Base Rent,Additional Rent and other sums that would be payable hereunder if suchtermination had not occurred, less the net proceeds, if any, of any re-lettingof the Premises, after deducting all expenses in connection with suchtermination and/or re-letting, including, without limitation, all repossessioncosts, brokerage commissions, legal expenses, attorneys’ fees, advertising,expenses of employees, alteration costs and expenses of preparation for suchre-letting.  Tenant shall pay suchcurrent damages to Landlord monthly on the days which the Base Rent would havebeen payable hereunder if this Lease had not been terminated.

 

At any time after such termination, whether or notLandlord shall have collected any such current damages, as liquidated finaldamages and in lieu of all such current damages beyond the date of such demand,at Landlord’s election Tenant shall pay to Landlord an amount equal to theexcess, if any, of the Base Rent, Additional Rent and other sums ashereinbefore provided which would be payable hereunder from the date of suchdemand assuming that, for the purposes of this paragraph, Taxes would be thesame as Taxes for the immediately preceding Tax Year for what would be the thenunexpired Term of this Lease if the same remained in effect, over the then fairnet rental value of the Premises for the same period, in each case asdiscounted to present value, using as a discount rate the then-current yield onUS Treasury Bonds with a ten year maturity, plus 300 basis points.

 

In case of any default by Tenant, re entry, expirationand dispossession by summary proceedings or otherwise, Landlord may (i) re-letthe applicable portion of the Premises or any part or parts thereof, either inthe name of Landlord or otherwise, for a term or terms which may at Landlord’soption be equal to or less than or exceed the period which would otherwise haveconstituted the balance of the applicable Term of this Lease and may grantconcessions or free rent to the extent that Landlord considers advisable andnecessary to re let the same and (ii) may make such reasonablealterations, repairs and decorations in the applicable portion of the Premisesas Landlord considers advisable and necessary for the purpose of re-letting theapplicable portion of the Premises, and the costs of any and all of theforegoing shall be Additional Rent payable by Tenant to Landlord.  No action of Landlord in accordance with theforegoing shall operate or be construed to release or reduce Tenant’s liabilityhereunder as aforesaid.  Tenant herebyexpressly waives any and all rights of redemption granted by or under

 

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any present or futurelaws in the event of Tenant being evicted or dispossessed, or in the event ofLandlord obtaining possession of the Premises, by reason of the violation byTenant of any of the covenants and conditions of this Lease.  Nothing contained in this Lease shall,however, limit or prejudice the right of Landlord to prove for and obtain inproceedings for bankruptcy or insolvency by reason of the termination of thisLease, an amount equal to the maximum allowed by any statute or rule oflaw in effect at the time when, and governing the proceedings in which, thedamages are to be proved, whether or not the amount be greater than, equal to,or less than the amount of the loss or damages referred to above.

 

Section 6.4                                      Effectof Waivers of Default.  Any consentor permission by either party to any act or omission which otherwise would be abreach of any covenant or condition herein, or any waiver by either party ofthe breach of any covenant or condition herein, shall not in any way be held orconstrued (unless expressly so declared) to operate so as to impair thecontinuing obligation of any covenant or condition herein, or otherwise, exceptas to the specific instance, operate to permit similar acts or omissions.

 

The failure of either party to seek redress forviolation of, or to insist upon the strict performance of, any covenant orcondition of this Lease shall not be deemed a waiver of such violation norprevent a subsequent act, which would have originally constituted a violation,from having all the force and effect of an original violation.  The receipt by Landlord of rent withknowledge of the breach of any covenant of this Lease shall not be deemed tohave been a waiver of such breach by Landlord. No consent or waiver, express or implied, by either party to or of anybreach of any agreement of duty shall be construed as a waiver or consent to orof any other breach of the same or any other agreement or duty.

 

Section 6.5                                      NoAccord and Satisfaction.  Noacceptance by Landlord of a lesser sum than the Base Rent, Additional Rent orany other charge then due shall be deemed to be other than on account of theearliest installment of such rent or charge due, unless Landlord elects bynotice to Tenant to credit such sum against the most recent installment due,nor shall any endorsement or statement on any check or any letter accompanyingany check or payment as rent or other charge be deemed an accord andsatisfaction, and Landlord may accept such check or payment without prejudiceto Landlord’s right to recover the balance of such installment or pursue anyother remedy in this Lease provided.

 

Section 6.6                                      CumulativeRemedies.  All rights and remedies ofLandlord and Tenant set forth herein are in addition to all other rights andremedies available at law or in equity. All rights and remedies available hereunder or at law or in equity areexpressly declared to be cumulative.  Theexercise by Landlord or Tenant of any such right or remedy shall not preventthe concurrent exercise of any other right or remedy hereunder or subsequentexercise of the same or any other right or remedy.  No delay in the enforcement or exercise ofany such right or remedy shall constitute a waiver of any default hereunder orof any of Landlord’s or Tenant’s rights or remedies in connectiontherewith.  Landlord or Tenant shall notbe deemed to have waived any default hereunder unless such waiver is set forthin a written instrument.  If Landlord orTenant waives in writing any default, such waiver shall not be construed as awaiver of any covenant, condition or agreement set forth in this Lease exceptas to the specific circumstances described in such written waiver.

 

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Section 6.7            Landlord’sRight to Self Help.  If Tenantdefaults in the making of any payment or in the doing of any act hereinrequired to be made or done by Tenant, then, unless Tenant shall have curedsuch default within the period set forth in **Section 6.1**or such shorter period set forth in **clause (b) of Subsection 4.11.2**(or such shorter period as may be necessary in the event of an emergency),Landlord may, but shall not be required to, make such payment or do suchact.  If Landlord elects to make suchpayment or do such act, all costs and expenses incurred by Landlord, plusinterest thereon at the Default Rate, from the date paid by Landlord to thedate of payment thereof by Tenant, shall be immediately paid by Tenant toLandlord as Additional Rent; provided however, that nothing contained hereinshall be construed as permitting Landlord to charge or receive interest inexcess of the maximum legal rate then allowed by law.

 

Section 6.8            SecurityDeposit.

 

### 6.8.1       Delivery/Expiration.  Simultaneously with the execution of thisLease, Tenant shall deliver to and deposit with Landlord the Letter of Creditas a security deposit to be held in accordance with the provisions of thisSection.  Tenant shall keep the Letter ofCredit in force throughout the Term or until such later date as Tenant deliversto Landlord the report described in **Subsection 4.8.2**.  Tenant shall deliver to Landlord a renewalLetter of Credit no later than sixty (60) days prior to the expiration date ofthe Letter of Credit, and, if Tenant fails to do so, without limiting any otherremedies that may be available to Landlord, Landlord may draw the entire amountof the expiring Letter of Credit and hold the proceeds in Landlord’s name (butidentified as the security deposit under this Lease) in cash as a securitydeposit, as hereinafter provided, but in that event, Tenant shall, upon demand,provide Landlord with a new Letter of Credit meeting the requirements of thisLease, in lieu of such cash, and upon receipt of such replacement Letter of Credit,Landlord shall promptly return such cash security deposit to Tenant.

###  

### 6.8.2       Form andIssuer.  The Letter of Credit shallbe a clean, irrevocable, unconditional Letter of Credit, substantially in theform attached hereto as **Exhibit F**and issued by a commercial bank, trust company or national banking association,which has outstanding, unsecured, uninsured and unguaranteed indebtedness, orshall have issued a letter of credit or other credit facility that constitutesthe primary security for an outstanding indebtedness (which is otherwiseuninsured and unguaranteed), that is then (and thereafter continues to be)rated, without regard to qualification of such rating by symbols such as “+” or“-” or numerical notation “A” or better by Moody’s Investment Service (or itssuccessor) and “A” or better by Standard & Poor’s Ratings Service (orits successor) (and is not on credit-watch or similar credit review withnegative implication), and has combined capital, surplus and undivided profitsof not less than $1,000,000,000.  In theevent the issuer of the Letter of Credit is downgraded so that it no longersatisfies the rating requirements set forth in this **Section 6.8**,  Landlord shall have the right, to requireTenant to procure a replacement Letter of Credit from an issuer that satisfiesthe requirements of this **Section 6.8**within fifteen (15) days after Landlord notifies Tenant of such requirement;provided that Landlord shall cooperate with Tenant in exchanging the existingLetter of Credit for the new Letter of Credit so that Tenant is not required tohave two Letters of Credit outstanding simultaneously.

 

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### 6.8.3       Decreasein Amount.  Upon the 3rd anniversaryof the Commencement Date, (the “**Security Deposit ReductionDate**”) the amount of the security deposit held pursuant to this **Section 6.8** shall be reduced to Three Hundred Eighty TwoThousand Dollars ($382,000), provided that such decrease shall be contingentupon Tenant not being in default under the Lease beyond all applicable cure andgrace periods as of the Security Deposit Reduction Date:

###  

### 6.8.4       Drawson Default.  If, and as soon as,there shall exist an Event of Default (and on the occasion of each Event ofDefault if there shall be more than one), Landlord may draw upon the Letter ofCredit at any time and from time to time in such amount or amounts as may benecessary to cure the default(s) or to reimburse Landlord for any sum(s) whichLandlord may have spent to cure the default(s), and if Landlord has terminatedthis Lease due to Tenant’s default(s), Landlord may also draw upon the Letterof Credit in such amount (or all) as may be necessary to obtain any amountsfrom time to time owed to Landlord by Tenant after termination.  In the case of each such drawing (except adrawing occurring after termination or expiration of this Lease), Tenant shall,on demand, cause the existing Letter of Credit to be amended to be once againin the full amount required under this Lease or a new Letter of Credit, in theamount so drawn, to be issued to Landlord. Notwithstanding the foregoing, Landlord shall have the right, at anytime when an Event of Default exists, to draw the entire Letter of Credit andhold the proceeds thereof to be applied from time to time against damages andlosses under this Lease, but in that event, if Landlord does not terminate thisLease as a result of such Event of Default and permits (without implying anyobligation to permit) Tenant to cure all outstanding Events of Default, so longas no new Event of Default occurs within sixty (60) days thereafter, Tenantshall be permitted to replace the cash security deposit with a Letter ofCredit, and upon receipt of the Letter of Credit, Landlord shall release thecash security deposit to Tenant.  Anyamount drawn by Landlord shall not be deemed to fix or determine the amounts towhich Landlord is entitled under this Lease or otherwise, and Landlord shall beentitled to pursue any remedies provided for in this Lease to the extentLandlord is unable or elects, in its sole and absolute discretion, not toobtain complete or partial satisfaction by drawing upon the Letter ofCredit.  If at the end of Term, nodefault of Tenant shall exist, or if such a default shall exist, upon cure ofsuch default, the Letter of Credit, or any cash held in lieu thereof, shall bereturned to Tenant within ten (10) days thereafter.  Notwithstanding any provisions limitingLandlord’s liability under this Lease, nothing shall prevent Tenant fromrecovering any portion of the security deposit hereunder that was wrongfullydrawn or retained by Landlord in the event of the breach or default by Landlordunder any of the provisions hereof relating to the security deposit.  For purposes of this Subsection, an Event ofDefault shall also include any default that is prevented or delayed fromripening into an Event of Default due to Landlord’s inability to give anyrequired notice or the tolling of any grace or cure period caused by any stayor injunction arising from the bankruptcy of Tenant.

###  

### 6.8.5       OtherTerms.  Landlord shall not commingleany cash constituting the security deposit with other funds of Landlord, andLandlord shall pay reasonable interest on any cash security deposit to Tenant.  If Landlord conveys Landlord’s interest underthis Lease, the Letter of Credit (or cash in lieu thereof) shall be turned overby Landlord to Landlord’s transferee, and, if so turned over, Tenant agrees tolook solely to such transferee for proper application thereof in accordancewith the terms of this Lease and the return thereof in accordance therewith,and it is agreed that the provisions hereof shall apply to every transfer orassignment made of the Letter of Credit to a new landlord.  Upon the request of Landlord, from

 

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### time to time, Tenant shall make arrangements satisfactory to Landlordin its reasonable discretion for the transfer of the Letter of Credit, atLandlord’s sole cost and expense, to any successor landlord or mortgagee of theProperty, and from any such mortgagee to Landlord or any successormortgagee.  Tenant shall not assign orencumber or attempt to assign or encumber the Letter of Credit and neitherLandlord nor its successors or assigns shall be bound by any such assignment,encumbrance or attempted assignment or encumbrance.  Upon ten (10) Business Days priorwritten notice from Landlord, Tenant shall cause the Letter of Credit to bemodified so that it names any Mortgagee as a co-beneficiary.

###  

# **ARTICLE VII**HOLDING OVER

 

In the event that Tenant shall not immediatelysurrender the applicable portion of the Premises on the date of the expirationof the applicable portion of the Term or the sooner termination of the Term,Landlord may forthwith re-enter and take possession of the applicable portionof Premises.  Until Tenant shall havebeen evicted from or quit the applicable portion of Premises, Tenant shall be atenant at sufferance, subject to all the terms, conditions, covenants and agreementsof this Lease, except that Tenant’s monthly Base Rent obligation shall be OneHundred Fifty Percent (150%) of the monthly Base Rent for the applicableportion of the Premises immediately prior to the expiration or termination ofthe Term with respect thereto.

 

# **ARTICLE VIII**RIGHTS OF MORTGAGEE

 

Section 8.1            Definitionof Mortgage.  The term **“Mortgage”** shall mean any one or more mortgages, deeds oftrust or ground leases which may now or hereafter exist on Landlord’s interestin the Premises (or the interest of any ground lessor in the Premises) and allrenewals, extensions, supplements, amendments, modifications, consolidations,and replacements thereof or thereto, substitutions therefor, and advances madethereunder.  The term **“Mortgagee”** shall mean the holder of or landlord under anyMortgage.

 

Section 8.2            LeaseSubordinate Superior.  This Leaseshall be subject and subordinate to any Mortgage now or hereafter encumberingthe Property or any portion thereof and to all advances thereunder, providedthe Mortgagee shall have entered into a subordination, nondisturbance andattornment agreement in favor of Tenant that is acceptable to Tenant in it’sreasonable discretion and in substantially the form attached hereto as **Exhibit E** and made a parthereof (or such other form as the Mortgagee may request that is not materiallymore disadvantageous to Tenant) pursuant to which the Mortgagee agrees torecognize Tenant’s rights under this Lease and that Tenant shall not bedisturbed in its possession of the Premises upon exercise of any rights underthe Mortgage (including, but not limited to, foreclosure or conveyance by adeed in lieu of foreclosure), provided no Event of Default is thenoutstanding.  In the event that theMortgagee or any purchaser at a foreclosure sale or otherwise (a **“Successor”**) shall succeed to the interest of Landlord, thenTenant shall and does hereby agree to attorn to such Successor and to recognizesuch Successor as its Landlord.  AnySuccessor shall recognize Tenant’s rights and be bound by Landlord’sobligations hereunder, except that a

 

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Successor shall not,except to the extent consented to in writing by itself or any holder of theMortgage pursuant to which it has become a Successor, be:

 

#### (a)         liablefor any act or omission of a prior landlord (including Landlord); or

####  

#### (b)         subjectto any offset or defenses which Tenant might have against any prior landlord(including Landlord); or

####  

#### (c)          boundby any rent which Tenant might have paid more than 30 days in advance to anyprior landlord (including Landlord); or

####  

#### (d)         boundby any agreement or modification of this Lease made without the consent of theSuccessor or any holder of the Mortgage pursuant to which it has become aSuccessor; or

####  

#### (e)          liablefor any fact or circumstance or condition to the extent existing or arisingprior to such Successor’s succession to the interest of Landlord under thisLease (but such Successor shall be obligated to cure ongoing defaults ofLandlord); or

####  

#### (f)          liablefor the obligations of Landlord under this Lease except during the period oftime, if any, during which such Successor is the owner of Landlord’s interestin the Premises.

####  

Any claim by Tenant under this Lease against aSuccessor shall be satisfied solely out of such Successor’s interest in thePremises and Tenant shall not seek recovery against or out of any other assetsof such Successor.

 

Notwithstanding the foregoing, a Mortgagee may at itselection subordinate its Mortgage to this Lease without the consent or approvalof Tenant.  Any such Mortgage to whichthis Lease shall be subordinate may contain such terms, provisions andconditions as the Mortgagee reasonably deems usual or customary.

 

This **Section 8.2**shall be self-operative; provided, however, that in confirmation of thesubordination provided for above, Tenant shall promptly execute, acknowledgeand deliver any instrument that Landlord or any Mortgagee shall reasonablyrequest to evidence such subordination on the terms set forth herein, andTenant shall in all events respond to any such request within fifteen (15) daysthereafter.  Tenant hereby irrevocablyappoints Landlord as Tenant’s attorney-in-fact, coupled with an interest, toexecute, acknowledge and deliver any such instrument for and on behalf Tenantin the event that Tenant fails to comply with its obligation to do so underthis paragraph

 

Section 8.3            MortgageeRight to Cure.  If any act oromission of Landlord would give Tenant the right, immediately or after a lapseof a period of time, to cancel or terminate this Lease, or to claim a partialor total eviction, Tenant shall not exercise such right:

 

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#### (a)         UntilTenant has given written notice of the act or omission to Landlord and to eachMortgagee whose name and address shall have been previously furnished to Tenantby a notice specifically referring to this Section.  Any such notice from Tenant shallspecifically refer to this **Section 8.3**and shall describe Landlord’s default with reasonable specificity and detail;and

####  

#### (b)         Untila reasonable period of time for remedying the act or omission shall haveelapsed following the giving of Tenant’s notice and following the time duringwhich any such Mortgagee would be entitled under its Mortgage to remedy the actor omission, so long as such Mortgagee notifies Tenant that it will use allreasonable efforts to cure Landlord’s default no later than fifteen (15) daysafter receiving such notice from Tenant, and thereafter diligently commencesthe required remedial action and prosecutes it to completion.

 

# **ARTICLE IX**LIMITATIONS OF LANDLORD’S LIABILITY

 

Section 9.1            Limitation.  Landlord shall not be responsible or liableto Tenant for and Tenant hereby releases Landlord from, waives all claimsagainst Landlord arising out of and assumes the risk of, any injury, loss ordamage to any person or property in or about the Premises, the Building or theProperty by or from any cause whatsoever, including, without limitation, (a) actsor omissions of persons occupying adjoining premises, (b) theft orvandalism, (c) burst, stopped or leaking water, gas, sewer or steam pipes,(d) loss of utility service, (e) accident, fire or casualty, (f) nuisance,and (g) work done by Landlord in the Property, the Building, the CommonAreas or the Premises; except, in any case, any such injury, loss or damagearising from the negligence or willful misconduct of Landlord or any LandlordResponsible Parties.  Notwithstanding theforegoing, Landlord shall remain liable for compliance with its expressobligations hereunder.

 

Section 9.2            Saleof Property.  It is agreed thatLandlord may at any time sell, assign or transfer its interest in and to theProperty and sell, assign or transfer its interest as landlord in and to thisLease to the purchaser, assignee or transferee in connection with any suchsale, assignment or transfer.  In theevent of any transfer of Landlord’s interest in the Property, the transferorshall be automatically relieved of any and all of Landlord’s obligations andliabilities accruing from and after the date of such transfer; provided thatthe transferee assumes all of Landlord’s obligations under this Lease.  Tenant hereby agrees to attorn to Landlord’sassignee, transferee, or purchaser from and after the date of notice to Tenantof such assignment, transfer or sale, in the same manner and with the sameforce and effect as though this Lease were made in the first instance by andbetween Tenant and the assignee, transferee or purchaser.

 

Section 9.3            NoPersonal Liability.  In the event ofany default by Landlord hereunder, Tenant shall look only to Landlord’sinterest in the Property and rents therefrom and any available insuranceproceeds for the satisfaction of Tenant’s remedies, and no other property orassets of Landlord or any trustee, partner, member, officer or directorthereof, disclosed or

 

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undisclosed, shall besubject to levy, execution or other enforcement procedure for the satisfactionof Tenant’s remedies under or with respect to this Lease.

 

Section 9.4            Limitationon Damages.  In no event shall Tenanthave the right to seek or recover from Landlord any consequential damages onaccount of any claim or matter arising out of or relating to this Lease of thePremises, and Tenant hereby irrevocably waives any right which it mightotherwise have to seek or receive any such consequential damages.  In no event shall Landlord have the right toseek or recover from Tenant any consequential damages on account of any claimor matter arising out of or relating to this Lease of the Premises, andLandlord hereby irrevocably waives any right which it might otherwise have toseek or receive any such consequential damages.

 

# **ARTICLE X**GENERAL PROVISIONS

 

Section 10.1          Landlord’sCovenant of Quiet Enjoyment; Title. Landlord covenants that Tenant, upon paying the Base Rent and AdditionalRent provided for hereunder and performing and observing all of the othercovenants and provisions hereof, may peaceably and quietly hold and enjoy theapplicable portion of the Premises for the applicable Term as aforesaid, freefrom any party claiming by, under or through Landlord, subject, however, to allof the terms and provisions of this Lease.

 

Section 10.2          NoPartnership or Joint Venture. Nothing contained in this Lease shall be construed as creating apartnership or joint venture of or between Landlord and Tenant, or to createany other relationship between the parties hereto other than that of landlordand tenant.

 

Section 10.3          Brokerage.  Landlord and Tenant each represents andwarrants to the other that it has not dealt with any broker in connection withthis transaction other than Richards, Barry, Joyce and Partners LLC, and eachagrees to hold harmless the other and indemnify the other from and against anyand all damages, costs or expenses (including, but not limited to, reasonableattorneys’ fees and disbursements) suffered by the indemnified party as aresult of acts of the indemnifying party that would constitute a breach of itscovenant or representation and warranty in this **Section 10.4**.

 

Section 10.4          EstoppelCertificate.  Tenant shall, at anytime and from time to time, upon not less than ten (10) Business Days’prior written notice from Landlord, execute and deliver to Landlord an estoppelcertificate containing such statements of fact as Landlord may reasonablyrequest including, but not limited to, the following: (a) that this Leaseis unmodified and in full force and effect (or, if modified, stating the natureof such modification and certifying that this Lease, as so modified, is in fullforce and effect); (b) the date to which the Base Rent and other chargesare paid in advance and the amounts then payable; (c) that there are not,to Tenant’s knowledge, any uncured defaults or unfulfilled obligations on thepart of Landlord, or specifying such defaults or unfulfilled obligations, ifany are claimed; and (d) that Tenant has taken possession of thePremises.  Any such certificate may beconclusively relied upon by any prospective purchaser or encumbrancer of thePremises.

 

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Landlord shall, at any time and from time to time,upon not less than ten (10) Business Days’ prior written notice fromTenant, execute and deliver to Tenant an estoppel certificate containing suchstatements of fact as Tenant may reasonably request including, but not limitedto, the following: (a) that this Lease is unmodified and in full force andeffect (or, if modified, stating the nature of such modification and certifyingthat this Lease, as so modified, is in full force and effect); (b) thedate to which the Base Rent and other charges are paid in advance and theamounts then payable; and (c) that there are not, to Landlord’s knowledge,any uncured defaults or unfulfilled obligations on the part of Tenant, orspecifying such defaults or unfulfilled obligations, if any are claimed.  Any such certificate may be conclusivelyrelied upon by any prospective subtenant or assignee or any purchaser or encumbrancerof Tenant or its assets.

 

Section 10.5          PrevailingParty.  Landlord and Tenant eachshall pay all reasonable costs and counsel and other fees incurred by the otherparty in connection with the successful enforcement by other party from time totime of any obligation under this Lease.

 

Section 10.6          Notice.  Except as otherwise expressly providedherein, all notices given under this Lease shall be in writing and shall beaddressed to parties at the addresses indicated below:

 
| Notices to  Landlord shall be addressed to:                    |
|----------------------------------------------------------------|
|                                                           |
|                                                           | Intercontinental  Fund III 830 Winter Street LLC |
|                                                           | 1270 Soldiers  Field Road |
|                                                           | Boston, MA 02135 |
|                                                           | Attention: Tom  Taranto |
|                                                           |   |
|                                                           | Tel.:     617.782.2600 |
|                                                           | Fax:     617.782.9442 |
|                                                           |
| With a copy  (which by itself shall not constitute notice) to: |
|                                                           |
|                                                           | Bradley &  Associates |
|                                                           | 1270 Soldiers  Field Road |
|                                                           | Boston, MA 02135 |
|                                                           | Attention: James  M. Bradley, Esq. |
|                                                           |   |
|                                                           | Tel.:     617.782.2600 |
|                                                           | Fax:     717.782.9442 |

 

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| Notices to  Tenant shall be addressed to:                      |
|----------------------------------------------------------------|
|                                                           |
|                                                           | Praecis  Pharmaceuticals Incorporated |
|                                                           | 830 Winter  Street |
|                                                           | Waltham,  Massachusetts |
|                                                           | Attention:  Edward C. English |
|                                                           | Tel.:     781-795-4320 |
|                                                           | Fax:     781-890-7469 |
|                                                           |
| With a copy  (which by itself shall not constitute notice) to: |
|                                                           |
|                                                           | Goodwin Procter  LLP |
|                                                           | One Exchange  Place |
|                                                           | Boston, MA 02109 |
|                                                           | Attention:  Michael Litchman, Esq. |
|                                                           | Tel.:    617-570-1862 |
|                                                           | Fax:    617-523-1231 |

 

Any notice may be mailed, delivered by hand ormessenger or transmitted by facsimile and shall be deemed to have beendelivered if and when received by the addressee, except that any notice givenby facsimile, if not given on a Business Day, shall not be deemed to have beendelivered until the next Business Day. Any party may, by giving written notice to the other party, change theaddresses to which notices shall be given to such party.  A certified or registered mail receipt orreceipt from a generally recognized commercial delivery service evidencingreceipt by the addressee or refusal at the address of the addressee statedabove or as changed pursuant to this Section shall be deemed conclusiveevidence of receipt.  Counsel designatedfor a party under this Lease may give notice on behalf of such party in themanner provided herein, and any such notice shall be effective as if given bythe party.

 

Section 10.7          Noticeof Lease.  Each party hereto agrees,promptly on the request of the other, to execute, acknowledge and deliver anotice of this Lease in form suitable for filing or recording and complyingwith applicable law, to provide necessary evidence of authority for filing orrecording, and to permit the requesting party to duly record or file the samein the real property records for the location of the Premises.  In no event shall such document set forth therent or other charges payable by Tenant under this Lease; and any such documentshall expressly state that it is executed pursuant to the provisions containedin this Lease, and is not intended to vary the terms and conditions of thisLease.  At Landlord’s request, promptlyupon expiration of or earlier termination of the Term as to any portion of thePremises.  Tenant shall execute,acknowledge and deliver to Landlord a release with respect to such portion ofthe Premises of any notice of leases filed or recorded, together with necessaryevidence of authority for recording or filing the same, and Tenant herebyappoints Landlord Tenant’s attorney-in-fact, coupled with an interest, toexecute any such document if Tenant fails to respond to Landlord’s request todo so within fifteen (15) days.  Theobligations of Tenant under this **Section 10.8**shall survive the expiration or any earlier termination of the Term.

 

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Section 10.8          PartialInvalidity.  If any provision of thisLease or the application thereof to any person or circumstances shall to anyextent be invalid or unenforceable, the remainder of this Lease, or theapplication of such provision to persons or circumstances other than those asto which it is invalid or unenforceable, shall not be affected thereby, and eachprovision of this Lease shall be valid and enforced to the fullest extentpermitted by law.

 

Section 10.9          Gender.  Feminine or neuter pronouns shall besubstituted for those of the masculine form, and the plural shall besubstituted for the singular number, in any place or places herein in which thecontext may require such substitution.

 

Section 10.10       Bindand Inure.  The provisions of thisLease shall be binding upon, and shall inure to the benefit of, the partieshereto and each of their respective successors and assigns, subject to theprovisions hereof restricting assignment or subletting by Tenant.

 

Section 10.11       EntireAgreement.  This Lease contains andembodies the entire agreement of the parties hereto with respect to Tenant’sleasehold estate hereunder and supersedes all prior agreements, negotiationsand discussions between the parties hereto with respect thereto.  Any representation, inducement or agreementwith respect thereto that is not contained in this Lease shall not be of anyforce or effect.  This Lease may not bemodified or changed in whole or in part in any manner other than by aninstrument in writing duly signed by both parties hereto.

 

Section 10.12       ApplicableLaw.  This Lease shall be governed byand construed in accordance with the laws of Massachusetts.

 

Section 10.13       Headings.  Headings are used herein for the convenienceof reference and shall not be considered when construing or interpreting thisLease.

 

Section 10.14       NotAn Offer.  The submission of anunsigned copy of this document to Tenant for Tenant’s consideration does notconstitute an offer to lease the Premises or an option to or for thePremises.  This document shall becomeeffective and binding only upon the execution and delivery of this Lease byboth Landlord and Tenant.

 

Section 10.15       TimeIs of the Essence.  Time is of theessence of each provision of this Lease.

 

Section 10.16       MultipleCounterparts.  This Lease may beexecuted in multiple counterparts, each of which shall be deemed an originaland all of which together shall constitute one and the same document.

 

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Section 10.17       Waiverof Jury Trial.  Landlord and Tenanthereby each waive trial by jury in any action, proceeding or counterclaimbrought by either against the other, on or in respect of any matter whatsoeverarising out of or in any way connected with this Lease, the relationship ofLandlord and Tenant or Tenant’s use or occupancy of the Premises under thisLease.

 

*[signatures on next page]*

 

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EXECUTED under seal as of the date first abovewritten.

 
|       | **LANDLORD:**                                                                                    |
|------------|--------------------------------------------------------------------------------------------------|
|       |                                                                                             |
|       | **INTERCONTINENTAL  FUND III 830  WINTER STREET, LLC,**a Massachusetts limited liability company |
|       |                                                                                             |
|       | **BY:**                                                                                          |
| ** ** | **INTERCONTINENTAL  REAL ESTATE  INVESTMENT FUND III, LLC,**                                     |
|       | a Massachusetts  limited liability company,  its Manager                                         |
|       |                                                                                             |
|       | **BY:**                                                                                          |
|       | **INTERCONTINENTAL  REAL ESTATE  CORPORATION,**a                                                 |
|       | Massachusetts  corporation,                                                                      |
|       | its Manager                                                                                      |
|       |                                                                                             |
|       |                                                                                             |
|       | By:                                                                                              | /s/ Peter  Palandjian |   |
|       |                                                                                             | Name: Peter  Palandjian |
|       |                                                                                             | Title:   President  and Treasurer |
|       |                                                                                             |
|       | **TENANT:**                                                                                      |
|       |                                                                                             |
|       |                                                                                             |
|       | **PRAECIS  PHARMACEUTICALS  INCORPORATED**                                                       |
|       | ** **                                                                                       |
|       |                                                                                             |
|       | By:                                                                                              | /s/ Edward C.  English |   |
|       |                                                                                             | Name: Edward C.  English |
|       |                                                                                             | Title:  Vice  President and C.F.O. |
|            |                                                                                                  |  |  |  |  |

 

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***GLOSSARY***

 

**DEFINITIONS**

 

As used in this Lease, the following terms shall havethe following meanings, applicable, as appropriate, to both the singular andplural form of the terms defined below:

 

**“*Additional Rent*”**is defined in **Section 3.1**.

 

**“*AffiliateSublease”*** is defined in **Subsection 4.10.2**.

 

**“*Alterations*”**is defined in **Section 4.11**.

 

**“*Assignment*”**is defined in **Section 4.10**.

 

***“Bankruptcy Code”***means Title 11 of the United States Code, as amended.

 

**“*Base Rent*”**means the amount stated in Article 1, to be adjusted and payable inaccordance with **Article 3**.

 

**“*Building*”**is defined in **Article 1**.

 

**“*Building Conversion Work*”**  is defined in **Article 2.3.2**.

 

***“Building Operating Expenses”*** is defined in **Section 3.4**.

 

***“Building Systems”*** is defined in **Section 3.7.1**.

 

**“*B**usiness Days*”** means Monday through Friday,excluding Saturdays, Sundays and federal or state legal holidays.

 

**“*Cafeteria*”**  is defined in **Article 3.6.5**.

 

**“*Cafeteria Pro Rata Share*”**  is defined in **Article 3.6.5**.

 

**“*Casualty*”**  is defined in **Section 5.1**.

 

**“*CERCLA*”** is defined in **Subsection 4.3.1.**

 

**“*Commencement Date*”**means the date specified in **Article 1**.

 

***“Common Areas”***is defined in **Section 2.1**.

 

***“Default Rate”***is defined in **Section 3.2.**

 

**“*Environmental Laws*”**is defined in **Section 4.3**.

 

**“*Essential Services*”**is defined in **Section 3.7**.

 

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**“*Event of Default*”**is defined in **Section 6.1**.

 

***“External Causes”***isdefined in **Section 3.8**.

 

**“*General pH System*”**  is defined in **Article 3.6.7.**

 

**“*Hazardous Materials*”**is defined in **Section 4.3**.

 

**“*Indemnified Party*”**is defined in **Section 4.5**.

 

**“*Interest Rate*”**is defined in **Subsection 3.4.2**.

 

**“*Lab Dedicated Expenses*”**  is defined in **Section 3.4.2(e)**.

 

**“*Land*”**  is defined in **Article 1**.

 

“***Landlord***” is defined in **Article 1**.

 

**“*Landlord ResponsibleParties*”** is defined in **Section 4.5**.

 

**“*Legal Requirements*”**means applicable laws, statutes, codes, ordinances, orders, rules, regulations,conditions of approval, and requirements, of all federal, state, county,municipal and other governmental authorities and the departments, commissions,boards, bureaus, instrumentalities, and officers thereof, and alladministrative or judicial orders or decrees and all permits, licenses,approvals, and other entitlements issued by governmental entities, and rules ofcommon law, relating to or affecting the Building or the use, operation oroccupancy of the Premises, whether now existing or hereafter enacted.

 

***“Lien”***meansany lien, mortgage, deed of trust, encumbrance, chattel mortgage, securityagreement, or order for the payment of money filed against the Premises or theProperty.

 

*** “Mortgage”*** is defined in**Section 8.1**.

 

***“Mortgagee”***is defined in **Section 8.1**.

 

***“MSDS”*** isdefined in **Subsection 4.3.1**.

 

**“*Obligated Party*”**is defined in **Section 4.5**.

 

***“Operating Expenses*”**is defined in **Section 3.4**.

 

**“*Ordinary CapitalImprovement*”** means any capital improvement which (i) isrequired to be made in order to cause the Land or its systems to comply withLegal Requirements, or (ii) is a replacement or repair of existingstructures, systems, improvements or equipment necessary to keep the CommonAreas in good repair and working order, taking into account the intended lifeof the relevant structure, system, improvement, or equipment.

 

***“Permitted Uses”***is defined in **Section 4.1**.

 

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**“*Premises*”**is defined in **Article 1**.

 

**“*Premises pH System*”**  is defined in **Article 3.6.7.**

 

***“**Property*”** is defined in **Article 1**.

 

***“Property Rentable Area”*** is defined in **Article 1**.

 

** “*RCRA*”** is defined in **Subsection 4.3.1**.

 

**“*Remedial Work*”**meansany Response Action (as defined in 310 CMR 40.0000), remedial work, excavation,treatment, drilling, pumping, site restoration, monitoring or any other similaraction on or relating to the Premises performed by Tenant pursuant to **Subsection 4.3.3** of this Lease.

 

“***RemedialWork Plan***” is defined in **Subsection 4.3.3**.

 

**“*Rent*”**is defined in **Article 3**.

 

**“*SARA*”**is defined in **Section 3.7**.

 

**“*Service Interruption*”**is defined in **Subsection 4.3.1**.

 

***“Sublease*”**is defined in **Section 4.10**.

 

***“Successor”*** is defined in **Section 8.2**.

 

***“Successor Entity*”**is defined in **Section 4.10**.

 

***“Tax Parcel”*** is defined in **Subsection 3.3.1**.

 

**“*Tax Year*”**is defined in **Subsection 3.3.1**.

 

**“*Taxes*”**is defined in **Subsection 3.3.1**.

 

“***Tenant***”is defined in **Article 1**.

 

“***Tenant’s Property***” is defined in **Section 4.8**.

 

**“*Tenant Provided Services*”**  is defined in **Section 3.6.6**.

 

**“*Tenant Responsible Parties*”**is defined in **Section 4.5**.

 

** “*Tenant’s Proportionate Share*”** is definedin **Article 1**.

 

“***Tenant’s Release***” is defined in **Subsection 4.3.3**.

 

***“Term*”** isdefined in **Article 1**.

 

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***“Untenantable*”**means that, in the reasonable judgment of Tenant, Tenant shall be unable tooccupy, and shall not be occupying, the Premises or the applicable portionthereof for the ordinary conduct of Tenant’s business.

 

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**Exhibit A**

 

Legal Description

 

A certain parcel of land off Winter Street, inWaltham, Middlesex County, Massachusetts, shown as Lot 9 on Land Court Plan No. 30618E,a copy of a portion of which is filed with the Middlesex South RegistryDistrict of the Land Court with Certificate of Title No. 214324 inRegistration Book 1201, Page 174.

 

Together with the benefit of rights reserved inEasement dated July 14, 1997, filed as Document No. 1036276, andrecorded in Book 27478, Page 136; as affected by Utility Easement fromowners of Lots 2 and 3 on Land Court Plan #30618C and Lots 2, 3, B and C onPlan #669 of 1997, to Boston Edison Company and New England Telephone andTelegraph Company, d/b/a/ Bell Atlantic, dated August 27, 1998, filed asDocument No. 1078157; as further affected by Reciprocal Access and UtilityEasement dated March 25, 1999, filed as Document No. 1101665 andrecorded March 26, 1999, as Instrument No. 503.

 

Together with the benefit of grant and reservationrecited in Reciprocal Access and Utility Easement with the owner of Lots 5 and6 on Land Court Plan No. 30618D dated March 31, 1998, filed asDocument No. 1061070, and recorded in Book 28405, Page 421, affectingareas shown as “Reserved Easement Area” on a plan entitled “Easement Plan ofLand in Waltham, Massachusetts”, dated March 30, 1998, recorded therewith;as affected by First Amendment to Reciprocal Access and Utility Easement and toReciprocal Easement Agreement dated September 10, 1998, filed as Document No. 1079645,and recorded in Book 29108, Page 346; as further affected by ReciprocalAccess and Utility Easement dated March 25, 1999, filed as Document No. 1101665and recorded March 26, 1999 as Instrument No. 503, and by ReciprocalEasement Agreement dated March 25, 1999 filed as document No. 1101666.

 

Together with the benefit of Reciprocal EasementAgreement with the owner of Lots 5 and 6 on Land Court Plan No. 30618Ddated March 31, 1998, filed as Document No. 1061071, and recorded inBook 28405, Page 443, affecting areas shown on a plan entitled “EasementPlan of Land in Waltham, Massachusetts”, dated March 30, 1998, recordingtherewith; as affected by First Amendment to Reciprocal Access and Utility Easementand to Reciprocal Easement Agreement dated September 10, 1998, filed asDocument No. 1079645, and recorded in Book 29108, Page 346; asfurther affected by Reciprocal Easement Agreement dated March 25, 1999,filed as Document No. 1101666.

 

Together with the benefit of Reciprocal EasementAgreement with the owner of Lot 8 on Land Court Plan No. 30618E dated March 10,1999, filed as Document No. 1099963.

 

Together with the benefit of Reciprocal Access andUtility Easement Agreement with the owner of Lot 8 on Land Court Plan No. 30618Edated March 10, 1999, filed as Document No. 1099964, and recorded March 10,1999 as Instrument No. 1121; as further affected by Reciprocal Access andUtility Easement dated March 25, 1999, filed as Document No. 1101665and recorded March 26, 1999, as Instrument No. 503.

 

Together with the benefit of Reciprocal Access andUtility Easement, dated March 25, 1999, filed as document No. 1101665.

 

A-1

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Together with the benefit of Reciprocal EasementAgreement dated March 25, 1999, filed as Document No. 1101666.

 

Together with the benefit of Mutual CovenantsAgreement dated March 25, 1999, filed as Document No. 1101667.

 

Together with the benefit of Landscape LicenseAgreement dated March 25, 1999, filed as Document No. 1101668.

 

A-2

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**Exhibit B**

 

Site Plan

 

[Six Schematic drawings of the Basement, First, Second and Third Floorsand the Roof of 830 Winter Street, Waltham, MA showing BOMA Space Boundariesand identifying RTU #4A and RTU #4B.]

 

B-1

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**Exhibit C**

** **

Exclusions from OperatingExpenses

 
| (1)    |   | any costs of managing the property other than a  management fee not to exceed that charged by similar property managers in the  surrounding area of the Building.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (2)    |   | wages, salaries, taxes, workers compensation  insurance premiums or fringe benefits paid to employees of Landlord or  affiliates of Landlord above the grade of field manager or, where such  employees at the grade of field manager or below devote time to properties  other than the Property, the portion not allocable to the Property; and any  portion of payments to independent contractors not allocable to the Property.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (3)    |   | costs of repairs or replacements to the extent  actually reimbursed by insurance, other tenants of the Property or other  third parties or resulting from eminent domain takings to the extent covered  by the award;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (4)    |   | Taxes on the Property, and any costs which have been  previously included in Operating Expenses (whether under the same or a  different category);                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (5)    |   | financing and refinancing costs in respect of any  financing of the Property, including debt service, amortization, points and  commissions in connection therewith and rent or other charges payable under  any ground or underlying lease;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (6)    |   | costs of selling or syndicating any of Landlord’s  interest in the Premises and/or the Property;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (7)    |   | promotional, advertising, public relations or brokerage  fees or commissions;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (8)    |   | costs incurred in connection with Landlord’s  preparation, negotiation and enforcement of remedies under leases with other  tenants, including court costs and attorneys’ fees and disbursements in  connection with any summary proceeding to dispossess any such other tenant;  the cost of any disputes, including, without limitations, legal fees, between  Landlord, any employee or agent of Landlord, or any mortgagees or ground  lessors of Landlord; costs (including, without limitation, attorneys’ fees  and disbursements) incurred in connection with any judgment, settlement or  arbitration award resulting from tort liability; and legal expenses incurred  for the maintenance of the Landlord entity or in connection with a transfer  or proposed transfer of an interest in the Building, Land or Landlord; 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 Property; |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (9)    |   | rent, additional rent or other charges under any  space lease or sublease assumed from a tenant or subtenant;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| (10)   |   | any expenses incurred by Landlord for use of any  public portions of the Property for purposes such as, but not limited to  shows, promotions, kiosks, and advertising, beyond                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |

 

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|   |   | the expenses attributable to providing normal  services, such as, but not limited to, lighting and HVAC, to such public  portions of the Property;                                                                                                                                                                                                                            |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (11)   |   | interest or  penalties for any delinquent payments by Landlord unless and to the extent  resulting from the Tenant’s failure to pay, when and as due, the Tenant’s  Proportionate Share of Operating Expenses (in which case the Tenant shall be  responsible for 100% of such interest or penalties);                                                              |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (12)   |   | the cost of  making leasehold improvements and decorations to any leasable space to  prepare the same for occupancy by a tenant thereof, or thereafter for the  benefit of a particular tenant or tenants;                                                                                                                                                                    |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (13)   |   | services  performed for or provided to any tenant to the extent the same exceeds the  level of services which Landlord is required to furnish under this Lease;                                                                                                                                                                                                               |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (14)   |   | any expenditures  on account of Landlord’s acquisition of air or similar development rights;                                                                                                                                                                                                                                                                             |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (15)   |   | the cost of  capital improvements that do not constitute Ordinary Capital Improvements  unless Tenant shall request or approve any such improvement or replacement.                                                                                                                                                                                                           |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (16)   |   | Landlord’s  depreciation of the Building or other improvements or amortization of  personal property or equipment, except as provided in**Subsection 3.5.2**;                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (17)   |   | repairs  necessitated by the negligence or willful misconduct of (a) Landlord or  its employees, agents and contractors; or (b) by other tenants;                                                                                                                                                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (18)   |   | any amounts  payable by Landlord by way of indemnity or for damages, including without  limitation, damages for any default, breach, claim, judgment, settlement or  late payment, or any amounts payable by Landlord which constitute a fine,  interest on a late payment or penalty unless caused by the Tenant’s failure  to pay or perform as provided in the Lease; |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (19)   |   | any cost  representing an amount paid for services or materials to a related person,  firm or entity to the extent such amount exceeds the amount that would be  paid for such services or materials at the then-existing market rates to an  unrelated person, firm or entity; and                                                                                           |
|   |   |                                                                                                                                                                                                                                                                                                                                                                          |
| (20)   |   | any costs  incurred in remediating any release of Hazardous Materials on or onto the  Property or removal or other remediation of asbestos.                                                                                                                                                                                                                                   |

 

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**Exhibit D**

 

Fixtures, Furnishings andEquipment Tenant May Remove at End of Term

 

•  NMRs, LCMSs, Mass Spectrometers, and all other Analytical and Research laboratory equipment, whether fastened to the building or not.

 

•  PRAECIS customized production and research-based equipment, as follows, whether fastened to the building or not:

 

a.             Mo flo laser and associated systems;

 

b.             Nitrogen generator and compressor (used with mass spectrometers);

 

c.             Split air conditioning units related to mass spectrometers and NMR.

 

•  Biosafety cabinets, incubators, stability chambers – each, whether fastened to the building or not.

 

•  External N2 storage tank which is leased from vendor.

 

•  Equipment located in Server Room and Network closets.

 

•  Built-in A/V equipment, including videoconferencing, teleconferencing, and telecommunications equipment.

 

•  All office equipment and furniture (phones, copiers/faxes (whether leased or not), office suites, waiting area furniture, shelves, etc.).

 

•  Furniture (all chairs and tables located in the Cafeteria).

 

•  All equipment added after the signing of the Lease, whether fastened to the building or not.

 

•  Exemptions do not include fume hoods, casework, and lab benches.

 

D-1

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**Exhibit E**

 

Form of SNDA

 

**SUBORDINATION,NON-DISTURBANCE AND ATTORNMENT AGREEMENT**

 

**THIS SUBORDINATION, NON-DISTURBANCEAND ATTORNMENT AGREEMENT** (the “**Agreement**”)made and entered into as of the         day of                     ,20    by and between                                  ,a                                  (“**Secured Party**”), and                                                                ,a                                      (“**Tenant**”),

 

**WHEREAS**, Tenant and                           ,                                     (“**Landlord**”) have entered into a certainLease dated as of                      ,20    (the “**Lease**”)pursuant to which Tenant has leased from Landlord certain premises located at                               ,as more particularly described in the Lease (the “**Premises**”);and

 

**WHEREAS**, SecuredParty is the holder of                                             pursuant to that certain                            dated as of                       ,20    (the “**Superior Agreement**”)between Landlord and Secured Party; and

 

**WHEREAS**, SecuredParty and Tenant desire to evidence their understanding with respect to theSuperior Agreement and the Lease as hereinafter provided;

 

**NOW THEREFORE**, inconsideration of the mutual agreements hereinafter set forth, the partieshereto hereby agree as follows:

 

**Section 1.  Nondisturbance**.  So long as Tenant is not in default (beyondany period given Tenant under the Lease to cure such default) in the payment ofrent or other sums payable by Tenant under the Lease or in the performance ofany of the terms, covenants or conditions of the Lease on Tenant’s part to beperformed, then possession and right of use of the Premises and Tenant’s rightsand privileges under the Lease, or any extensions or renewals thereof which maybe effected in accordance with any option therefor in the Lease, shall not bediminished or interfered with by Secured Party; Secured Party will notdisaffirm the Lease; Secured Party will affirmatively recognize the validity ofthe Lease and Secured Party will not join Tenant as a party defendant in anyaction or proceeding for the purpose of terminating Tenant’s interest under theLease.  Notwithstanding anything to thecontrary in the Superior Agreement, all insurance and condemnation proceeds orawards paid or payable with respect to the Premises and received by SecuredParty or Landlord shall be made available by Secured Party to be held, appliedand paid in the manner set forth in the Lease.

 

**Section 2.  Attornment.**

 

**2.1.  Succession by Secured Party.**  If the interest of Landlord shall betransferred to and owned by Secured Party or a purchaser at foreclosure sale(collectively with Secured Party, a “New Owner”) by reason of foreclosure orother proceedings, or by any other

 

E-1

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manner, and the New Ownersucceeds to the interest of Landlord under the Lease, Tenant shall be bound tothe New Owner under all of the terms, covenants and conditions of the Lease forthe balance of the term thereof remaining and any extensions or renewalsthereof which may be effected in accordance with any option therefor in theLease, with the same force and effect as if the New Owner were Landlord underthe Lease, and Tenant does hereby attorn to the New Owner as its landlord, saidattornment to be effective and self-operative without the execution of anyfurther instruments on the part of either party hereto immediately upon the NewOwner succeeding to the interest of Landlord under the Lease; provided,however, that Tenant shall be under no obligation to pay to the New Owner anyrent or other sum payable pursuant to the Lease until Tenant receives writtennotice from the New Owner that it has succeeded to the interest of Landlordunder the Lease.  The respective rightsand obligations of Tenant and the New Owner upon such attornment, to the extentof the then remaining balance of the term of the Lease and any such extensionsand renewals, shall be and are the same as now set forth therein; it being theintention of the parties hereto for this purpose to incorporate the Lease inthis Agreement by reference with the same force and effect as if set forth atlength herein.

 

**2.2.  Limitation of Duties of New Owner.**  If the New Owner shall succeed to theinterest of Landlord under the Lease, the New Owner shall be bound to Tenantunder all the terms, covenants and conditions of the Lease, and Tenant shall,from and after the New Owner’s succession to the interest of Landlord under theLease, have the same remedies against the New Owner for the breach of anyagreement contained in the Lease that Tenant might have had under the Leaseagainst Landlord if the New Owner had not succeeded to the interest ofLandlord; provided, however, that the New Owner shall not be (i) liablefor any damages associated with any act or omission of any prior landlord(including Landlord), but the aforesaid proviso shall not affect Tenant’srights under the Lease or Landlord’s obligations to cure defaults thereunder;or (ii) subject to any offsets or defenses which Tenant might have againstany prior landlord (including Landlord); or (iii) bound by any rent oradditional rent which Tenant might have paid for more than the then currentrental period to any prior landlord (including Landlord); or (iv) bound byany amendment or modification of the Lease made without the New Owner’s priorwritten consent, which shall not be unreasonably withheld; or (v) bound byor responsible for any security deposit not actually received by the New Owner;or (vi) liable for or incur any obligation with respect to any breach ofwarranties or representations of any nature under the Lease or otherwiseincluding without limitation any warranties or representations respecting use,compliance with zoning, landlord’s title, landlord’s authority, habitabilityand/or fitness for any purpose, or possession.

 

**2.3.  Landlord’s Trustee.**  In the event that any court of competent jurisdictiondetermines, in connection with any bankruptcy, insolvency, liquidation,dissolution, receivership or other similar proceeding affecting Landlord, thatany amounts paid by Tenant to Secured Party under Section 2.2 hereofshould have been paid by Tenant to Landlord or Landlord’s trustee, receiver,liquidator or other person exercising similar powers in connection with anysuch proceeding (any of the foregoing being referred to as a “Trustee”) andorders Tenant to pay such amounts to Landlord or the Trustee, Secured Partyshall promptly pay such amount, together with any interest or costs imposed bysuch court, on behalf of Tenant.  SecuredParty shall hold Tenant harmless from any claims of Landlord or the Trustee,damages or expenses in any such proceedings arising out of any amounts paid byTenant to Secured Party under Section 2.2 hereof, which expenses shallinclude reasonable attorney’s fees.

 

E-2

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**Section 3.  Subordination of Lease.**

 

**3.1.  Subordination.**  Tenant covenants, stipulates and agrees thatthe Lease is hereby, and shall, at all times that the Secured Party, itssuccessors and assigns are bound by this Agreement, continue to be,subordinated and made secondary and inferior in each and every respect to theSuperior Agreement and to any and all renewals, modifications, extensions,substitutions, replacements and/or consolidations of the Superior Agreement,but any and all such renewals, modifications, extensions, substitutions,replacements and/or consolidations shall nevertheless be subject to andentitled to the benefits of the terms of this Agreement.

 

**3.2.  Subordination Conditioned UponNon-Disturbance. **Notwithstandingany other provision of this Agreement, however, the subordination createdand/or evidenced by this Agreement (the “Subordination”) is conditioned uponthis Agreement being the valid and binding obligation of the Secured Party, itssuccessors and assigns, including but not limited to any receiver, conservator,trustee in bankruptcy, dissolution or liquidation, the Federal DepositInsurance Corporation or any other state or federal governmental agency,corporation or instrumentality exercising similar functions or powers.  If for any reason this Agreement shall ceaseto be binding on the Secured Party or its successors or assigns for any reasonwhatsoever, then the Subordination, and this Agreement in its entirety, shallbe void from its inception as though the Agreement had never been executed anddelivered.  This Section 3.2 isspecifically intended to render the Agreement void *ab initio*under circumstances including, but not limited to,rejection of the Agreement in bankruptcy, liquidation, reorganization, or othersimilar proceedings; invalidity of the Agreement under the doctrine enunciatedin *D’Oench, Duhme & Co. v. FederalDeposit Insurance Corp.*, 315 U.S. 447 (1942) and subsequent judicialdecisions, or similar doctrines under the judicial decisions or statutes of anystate; or repudiation, unenforceability or invalidity of the Agreement underSections 212 or 217 of the Financial Institutions Reform, Recovery andEnforcement Act of 1989, 12 U.S.C. Sections 1821 or 1823(e), or any similarfederal or state statute, or any other statutory power of avoidance, whetherstate or federal.

 

**Section 4. Notice and Right to Cure**.  Tenant agrees to provide Secured Party with acopy of each notice of default under the Lease that can lead to termination ofthe Lease or abatement of rent, at the same time as Tenant provides Landlordwith such notice of default (subject to the next following sentence of this Section 4),and thereupon Secured Party shall have the right (but not the obligation),concurrently with any cure period Landlord may have under the Lease, to curesuch default, and Tenant shall not terminate the Lease or abate the rentpayable thereunder by reason of such default until it has afforded SecuredParty the same concurrent opportunity to cure as afforded to Landlord under theLease.  If Tenant fails to givecontemporaneous notice to Landlord as contemplated above, the aforesaid cureperiod that Landlord would otherwise have had shall not begin to accrue untilsuch notice of default is given.  It isspecifically agreed that Secured Party shall have no obligation to cure anydefault under the Lease.

 

**Section 5.  Miscellaneous.**

 

**5.1.  Waiver.**  No purported waiver by either party of anydefault by the other party of any term or provision contained herein shall bedeemed to be a waiver of such term or

 

E-3

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provision unless thewaiver is in writing and signed by the waiving party.  No such waiver shall in any event be deemed awaiver of any subsequent default under the same or any other term or provisioncontained herein.

 

**5.2.  Entire Agreement.**  This Agreement sets forth the entireunderstanding between the parties concerning the subject matter of thisAgreement and incorporates all prior negotiations and understandings.  There are no covenants, promises, agreements,conditions or understandings, either oral or written, between the partiesrelating to the subject matter of this Agreement other than those set forthherein.  No representation or warrantyhas been made by or on behalf of either party to this Agreement (or anyofficer, director, employee or agent thereof) to induce the other party toenter into this Agreement or to abide by or consummate any transactionscontemplated by any terms of this Agreement, except representations andwarranties, if any, expressly set forth herein. No alteration, amendment, change or addition to this Agreement shall bebinding upon either party unless in writing and signed by the party to becharged.

 

**5.3.  Successors.**  Each and all of the provisions of thisAgreement shall be binding upon and inure to the benefit of the parties heretoand their respective successors and assigns.

 

**5.4.  Notices.**  Any consent, waiver, notice, demand, requestor other instrument required or permitted to be given under this Agreementshall be in writing and be sent by certified or registered United States mail,return receipt requested, or delivered by personal or courier delivery, or sentby facsimile (immediately followed by one of the preceding methods), postageprepaid, addressed:

 

If toTenant:

 

 

 

If toSecured Party:

 

 

 

Any such consent, waiver, notice, demand, request orother instrument shall be deemed given upon receipt or upon the refusal of theaddressee to receive the same as indicated on the return receipt.  Either party may change its address fornotices by notice in the manner set forth above.

 

**5.5.  Captions.**  The captions and section numbersappearing in this Agreement are inserted only as a matter of convenience.  They do not define, limit, construe ordescribe the scope or intent of the provisions of this Agreement.

 

**5.6.  Partial Invalidity.**  Subject to and limited by Section 3.2,if any term or provision of this Agreement or the application thereof to anyperson, firm or corporation, or

 

E-4

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circumstance, shall beinvalid or unenforceable, the remainder of this Agreement, or the applicationof such term or provision to persons, firms or corporations, or circumstances,other than those as to which it is held invalid, shall both be unaffectedthereby, and each term or provision of this Agreement shall be valid and beenforced to the fullest extent permitted by law.  Notwithstanding the foregoing, the provisionsof Section 1 and Section 3.2 are of the essence of this Agreement,and any invalidity or unenforceability of Section 1 or Section 3.2shall render this entire Agreement invalid and unenforceable.

 

**5.7.  Governing Law.**  This Agreement shall be governed by andconstrued in accordance with the laws of the State of               applicable to agreements to be performed in the State of            .

 

**5.8.  Counterparts.**  This Agreement may be executed incounterparts, each of which when executed by the parties hereto shall be deemedan original and all of which together shall be deemed the same Agreement.

 

(The remainder of this page isintentionally left blank.)

 

E-5

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The parties hereto have caused this Agreement to beexecuted as of the day and year first above written.

 
| ** **           | **SECURED  PARTY:** |
|----------------------|---------------------|
|                 |                |
| In the Presence  of: |                |
|                 |                |
|                 |                |
|                 |                | By: |   |   |
|                 |                | Its: |   |   |
|                 |                |
| ** **           | ** **          |
| ** **           | **TENANT:**         |
|                 |                |
| In the Presence  of: |                |
|                 |                |
|                 |                |
|                 |                | By: |   |   |
|                 |                | Its: |   |   |

 

E-6

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| Commonwealth of  Massachusetts | )     |
|--------------------------------|-------|
|                           | ) ss. |
| County of                      | )     |

 

On this             day of                 ,20   , before me, the undersigned notary public, personallyappeared                                 ,proved to me through satisfactory evidence of identification, which were                                ,to be the person whose name is signed on the preceding or attached document andacknowledged to me that (he)(she) signed it voluntarily for its stated purposeas                                   for                                ,a                                    .

 
|   |                    |
|--------|-------------------------|
|   | Notary Public           |
|   | My Commission  Expires: |   |

 
| Commonwealth of  Massachusetts | )     |
|--------------------------------|-------|
|                           | ) ss. |
| County of                      | )     |

 

On this             day of                ,20   , before me, the undersigned notary public, personallyappeared                                   ,proved to me through satisfactory evidence of identification, which were                                   ,to be the person whose name is signed on the preceding or attached document andacknowledged to me that (he)(she) signed it voluntarily for its stated purposeas                            for                            ,a                            .

 
|   |                    |
|--------|-------------------------|
|   | Notary Public           |
|   | My Commission  Expires: |   |

 

E-7

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**Exhibit F**

 

(NAME OF BANK)

IRREVOCABLE STANDBYLETTER OF CREDIT

 
| Date of Issue:                             , 2001 | No.        |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------|
|                                                                                                                                                                                     |                                          |
| APPLICANT:                                                                                                                                                                               | BENEFICIARY:                                  |
|                                                                                                                                                                                     |                                          |
|                                                                                                                                                                                     |                                          |
|                                                                                                                                                                                     |                                          |   |
|                                                                                                                                                                                     |                                          |   |
|                                                                                                                                                                                     |                                          |   |

 

AMOUNT:            $                

 

At the request and for the account of [                           ](the “Account Party”), we hereby establish in your favor our irrevocable Letterof Credit No.                 in the amount of                               Dollars ($          ).

 

This Letter of Credit is issued with respect to thatcertain lease agreement, by and between you, as Landlord, and the AccountParty, as Tenant, with respect to property located on Winter Street, Waltham,Massachusetts.  Said lease agreement, andany amendments or modifications thereof, is hereinafter referred to as the “Lease.”  Our obligations under this Letter of Creditare solely as set forth herein and are completely independent of theobligations of the Account Party under the Lease.  We do not undertake any obligation under theLease, nor do we undertake any responsibility to ascertain any facts, or totake any other action, with respect to the Lease, and we acknowledge that ourobligations under this Letter of Credit shall not be affected by anycircumstance, claim or defense of any party as to the enforceability of theLease or any dispute as to the accuracy of the Statement (as defined below).  The references to the Lease in this Letter ofCredit are solely to describe the required contents of the Statement.

 

Funds under this Letter of Credit are available to youagainst presentation of the following documents at our office at                             prior to close of business on the expiration date set forth below.  It is not a condition to the making of drawshereunder that this Letter of Credit be presented to us.

 

1.             Yoursight draft in the form of Annex 1 on us in an amount not exceeding the amountof this Letter of Credit (less sums previously paid by us hereunder) executedby the person executing the Statement and bearing the number of this Letter ofCredit; and

 

2.             Astatement (the “Statement”) in the form of Annex 2.

 

F-1

----

 

The expiration date of this Letter of Credit is                                ,provided, however, that the expiration date of this Letter of Credit shall beautomatically extended, without notice of amendment, for successive one (1) yearperiods, unless we give you written notice of our election not to extend theexpiration date (“Notice of Non-Renewal”) not later than sixty (60) days priorto the date this Letter of Credit is scheduled to expire.  A Notice of Non-Renewal shall be effectivewhen actually delivered by certified mail, return receipt requested, or courierservice to your address set forth above or such other address and/or person asyou shall specify to us for such purpose by written notice received by us priorto the time the Notice of Non-Renewal is sent.

 

This Letter of Credit is transferable in its entiretythrough us and successive transfers shall be permitted.  We will honor complying drafts presentedhereunder by a transferee (and cease to honor drafts presented hereunder byyou) upon our receipt of the fully executed transfer form attached hereto as **Exhibit 1**.

 

We hereby issue this Letter of Credit in your favor,and we hereby undertake to honor all drafts drawn under and in compliance withthe terms of this Letter of Credit.

 

This Letter of Credit shall be governed by andconstrued in accordance with the Uniform Customs and Practices for DocumentaryCredits (1993 Revision) International Chamber of Commerce Publication 500.

 

 
|                 |   |
|----------------------|--------|
| Authorized Signature |

 

F-2

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EXHIBIT 1

 

[TRANSFER FORM - tobe provided by Bank]

 

F-3

----

 

ANNEX 1 to Letter ofCredit

 

SIGHT DRAFT

 

[PLACE] [DATE]

 

 

At sight, pay to the order of                                 ,the Beneficiary, the sum of US$                ,drawn under the [Name of Bank], Letter of Credit Number             ,dated                          ,2001.

 

 

[NAME OF BENEFICIARY]

 

 

(Name and Time)

 

 

Drawn on:

[Name and Address of Bank]

 

F-4

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ANNEX 2 to Letter ofCredit

 

FORM OF CERTIFICATE FOR DRAWING ON LETTER OFCREDIT

 

 

[DATE]

 

 

[Name of Address of Bank]

 

 

Re:  irrevocableLetter of Credit No.               

 

Ladies and Gentlemen:

 

The undersigned certifies that s/he is an authorizedrepresentative of [name of Beneficiary] the Beneficiary under your irrevocableLetter of Credit No.               ,that [name of Beneficiary] is entitled to draw on the Letter of Credit and thats/he has executed the within sight draft on behalf of the Beneficiary.

 

 
|                 |   |
|----------------------|--------|
| Authorized Signatory |

 

F-5

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**EXHIBIT G**

 

**Tenant Provided Services**

 

RODI Water System

 

Vacuum Pumps

 

Automatic Temperature Control (ATC) Compressor

 

Lab Compressed Air System

 

Liquid Nitrogen Tank and distribution system

 

CO2 Distribution Cylinders and distribution system

 

Standby power utilizing 910KW Generator

 

Supplemental HVAC system utilizing RTU’s 4-A and 4-B (shownon **Exhibit B**) serving thevivarium in the Premises

 

G-1

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