Exhibit 10.2


 


LEASE


 


by and between


 


INTERCONTINENTAL FUND III
830 WINTER STREET LLC,


 


as Landlord


 


and


 


PRAECIS PHARMACEUTICALS
INCORPORATED,


 


as Tenant


 


With respect to property


 


located at 830 Winter
Street,


 


Waltham, Massachusetts


 


 


October 18, 2005


 





















 


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

  	
   

  



 


ii





















 


LEASE


 


ARTICLE I

REFERENCE DATA


 


Section 1.1                                      Subjects
Referred To.


 


Each reference in this Lease to any of the following
subjects 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.

  



 





















 


	
  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 hereto
and incorporated in this Lease by reference and are to be construed as a part
of 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                                      Premises
and Term.  Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the Premises, subject to and with
the benefit of the terms, covenants,


 


2





















 


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


 


Tenant shall have, as appurtenant to the
Premises:  (a) the non-exclusive
right to use, and permit its invitees to use in common with Landlord and others,
the elevators, walkways, access roads, and driveways necessary for access to
the Premises and the parking areas, loading areas, pedestrian sidewalks,
landscaped areas, trash enclosures, recreation areas and other areas and
facilities, if any, which are located on the Land and designated by Landlord
from time to time for the non-exclusive use of tenants and other occupants of
the Building or improvements on the Land (the “Common
Areas”); and (b) during any period of time that, pursuant to any
of Sections 3.6.6, 3.6.7 or 3.6.8, Tenant (rather
than Landlord) is providing the contemplated services, Tenant shall
additionally have the exclusive right to use the following areas in, on or
about the Building (together with the associated equipment) which are located
outside of the Premises:  (A) the
Cafeteria, (B) two (2) roof-top RTU units that serve the vivarium
located within the Premises, and the roof area and related HVAC systems
associated therewith, which roof-top area is shown on Exhibit B
attached hereto, (C) the liquid Nitrogen tank and Carbon Dioxide cylinders
and their respective distribution systems, and the areas associated therewith,
located in the basement of the Building, (D) the General pH System and the
area associated therewith located in the basement of the Building, (E) the
RODI Water system, vacuum pumps, automatic temperature control (ATC) compressor
and lab compressed air system and the areas associated therewith, each of which
is located in the basement of the Building, (F) the Mo flo laser and
Nitrogen generator and compressor and the area associated therewith, each of
which is located in the basement of the Building, and (G) the standby
910KW generator located outside of, but adjacent to, the Building and the area
associated therewith.


 


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


 


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


 


Section 2.3                                      Acceptance
of Premises.


 


2.3.1                        Status of the Premises.  Tenant acknowledges: that Landlord has
acquired the fee interest in the Premises from 830 Winter Street, LLC, an
affiliate 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; and
that Tenant has examined the Premises, is familiar with the physical condition
of the Premises and is leasing the same in “as is” condition.  Landlord has not made and does not make any
representations or warranties as to the physical condition, expenses,


 


3





















 


operation and maintenance, zoning, status of title, the use under
applicable law that may be made of the Premises or any other matter or thing
affecting or related to the Premises.  Notwithstanding
the foregoing, Landlord is responsible for ensuring compliance with all
applicable governmental laws, rules and regulations at the Building except
as set forth below.  Tenant shall, in its
use of the Premises, comply with the requirements of all applicable
governmental laws, rules and regulations.


 


2.3.2                        Landlord’s
Demising Work.  Notwithstanding the
above Section 2.3.1, Landlord will
undertake, at its sole cost and expense, all work necessary to convert the Building
into a multi-tenant building.  Such work
shall include creating demising walls to separate the Premises from the
remaining 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 work
necessary for such a multi-tenant conversion (the “Building
Conversion Work”).  Landlord
agrees that there shall be no interruption of or material interference with
Tenant’s conduct of business and operations in the Premises as a result of the
Building Conversion Work.  Landlord
agrees and warrants that it will conduct such Building Conversion Work at times
and in a manner that is responsive to and respectful of Tenant’s use requirements,
with special consideration to Tenant’s operations in the laboratory space
located within the Premises.  Such
accommodations by Landlord shall include, but not be limited to, conducting
work on an after-hours or overtime basis if necessary, installing special
vibration reducing materials, or any other such steps as Tenant may reasonably
request.


 


Section 2.4                                      Option
to Extend.


 


2.4.1                        Extension Terms.  Provided that, at the time of each such
exercise and at the time that each Extended Term (as hereinafter defined) would
commence (each an “Extension Term
Commencement Date”), (i) this Lease is in full force and
effect, and (ii) no Event of Default of Tenant shall have occurred and be
continuing, 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 not
later than twelve (12) months prior to the last day of the Term or the
applicable Extended Term, as applicable. 
The giving of such notice of extension by Tenant shall automatically
extend the Term for the Extended Term, and no instrument of renewal or
extension need be executed.  In the event
that Tenant fails timely to give such notice to Landlord, this Lease shall
automatically terminate at the end of the initial Term, and Tenant shall have
no further option to extend the Term of this Lease.  The Extended Term shall commence on the day
immediately succeeding the expiration date of the initial Term.  Tenant shall have no further option to extend
the Term beyond the Extended Terms provided for in this Section 2.4.  The Extended Term shall otherwise be on all
the terms and conditions of this Lease, except that the monthly Base Rent
payable under this Lease shall be 95% of the fair market value of laboratory/office
space of similar age and finish in the Waltham market taking into account all
relevant factors, including without limitation, improvement allowances or rent
concessions granted in connection with such other leases (the “Fair Market Rental Value”), provided, however, that in no
event shall any leasehold improvement made by Tenant following the Commencement
Date ever be considered in any valuation of the fair market value of the space.


 


4





















 


2.4.2                        Within thirty (30) days after
receiving Tenant’s notice extending the Term of this Lease pursuant to Section 2.4.1 above, Landlord shall provide Tenant with
Landlord’s good faith estimate of 95% of the Fair Market Rental Value of the
Premises for the Extended Term.  If
Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental
Value as set forth in Landlord’s notice referred to above, and the parties are
unable to reach agreement thereon within thirty (30) days after the delivery of
such notice by Landlord, then either party may submit the determination of the
Fair Market Rental Value of the Premises to arbitration by giving notice to the
other party naming the initiating party’s arbitrator within ten (10) days
after the expiration of such thirty (30) day period.  Within fifteen (15) days after receiving a
notice of initiation of arbitration, the responding party shall appoint its own
arbitrator by notifying the initiating party of the responding party’s
appraiser.  If the second arbitrator
shall not have been so appointed within such fifteen (15) day period, the Fair
Market Rental Value of the Premises shall be determined by the initiating party’s
arbitrator.  If the second arbitrator
shall have been so appointed, the two arbitrators thus appointed shall, within
fifteen (15) days after the responding party’s notice of appointment of the
second arbitrator, appoint a third arbitrator. 
If the two initial arbitrator are unable timely to agree on the third
arbitrator, then either may, on behalf of both, request such appointment by the
Boston office of JAMS Inc., or its successor, or, on its failure, refusal or
inability to act, by a court of competent jurisdiction.  Within fifteen (15) days after the appointment
of the third arbitrator, the three arbitrators shall determine the Fair Market
Rental Value of the Premises and give notice thereof to the parties hereto, and
the arbitrators’ determination shall be binding upon the parties.  All arbitrators shall be appraisers or other
qualified real estate professionals who are independent from the parties who
have had at least ten (10) years commercial real estate experience in the
greater Boston area and significant experience dealing with the laboratory
space sub-market.  Each party shall pay
the fees of its own appraiser, and the fees of the third appraiser shall be
shared equally by the parties.


 


Section 2.5                                      Expansion
Option.


 


2.5.1                        Subject to the terms and
conditions 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 to
Tenant, Landlord will first offer such Available Space to Tenant for lease, by
written 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 the
Building, which from time to time during the Term will become available for
lease after the then existing tenant thereof has had its lease expire without
extending or renewing such lease, or such lease has otherwise been terminated,
provided that no space shall constitute Available Space hereunder unless and
until any rights of other tenants in the Building as of the date of this Lease
to expand the premises under such leases, including, without limitation, any
rights of first offer, have been refused or deemed waived by such tenants.  Landlord’s Offer Notice shall specify the
location and rentable area of the Available Space and Landlord’s estimate of
the Fair Market Rental Value for the Available Space.  Fair Market Rental Value of such Available
Space for such term shall be calculated in the same manner as the Fair Market
Rental 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 the
Available Space on the same terms as are set forth in this Lease, except with
regard to the Base Rent, which shall be the Fair Market Rental Value set forth
in Landlord’s Offer Notice, or (ii) Tenant elects to lease the Available
Space, but that Tenant disputes Landlord’s determination of Fair Market Rental
Value set forth in Landlord’s Offer


 


5





















 


Notice; or (iii) Tenant rejects Landlord’s offer.  If Tenant elects to lease the Available
Space, but disputes Landlord’s determination of Landlord’s Fair Market Rental
Value for the Available Space, and the parties do not agree on the Fair Market
Rental Value within thirty (30) days after
delivery of such notice from Tenant, then either party may initiate the
arbitration procedure set forth in Section 2.4.2
by giving notice to the other within an additional thirty (30) days after the
end of such thirty (30) day period.  If
Tenant has accepted Landlord’s terms for the Available Space, or upon
determination of the Fair Market Rental Value through arbitration, Landlord and
Tenant shall execute an amendment to this Lease incorporating the Available
Space 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 Rental
Value set forth in Landlord’s Offer Notice, within ten (10) days, but
failure of the parties to execute such an amendment shall have no effect on the
effectiveness of the expansion of the Premises to include the Available Space
and the economic terms associated therewith, as set forth above.  If Tenant rejects Landlord’s offer, or fails
to notify Landlord within said thirty (30) day period that Tenant intends to
lease such Available Space, Landlord shall be entitled to lease such Available
Space to any third party on such terms and conditions and for such rent as
Landlord determines in its sole discretion.


 


2.5.2                        Notwithstanding any contrary
provision of this Section 2.5
or any other provision of this Lease, Tenant’s right to expand the Premises to
include any Available Space is conditioned upon (which condition may be waived
by Landlord in its sole discretion) the absence, on the date Tenant notifies
Landlord that it elects to lease Available Space and on the date that would
otherwise be the date upon which the Available Space is incorporated into the
Premises, of any default under this Lease by Tenant after any applicable notice
and opportunity to cure.


 


Section 2.6                                      Time
of Essence.  Time shall be of the
essence with respect to Sections 2.4 and 2.5.


 


ARTICLE III

RENT; CERTAIN OPERATING COSTS; REPAIR AND MAINTENANCE


 


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


 


Section 3.2                                      Late
Payments.


 


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


 


6





















 


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


 


3.2.2                        Late Charge.  In addition to any interest due on overdue
Rent pursuant to Subsection 3.2.1, if any
payment of Base Rent or regularly scheduled payment of Additional Rent is not
paid before, on or within five (5) days after the date due, such late
payment shall be subject to a late charge equal to four percent (4%) of such
late payment.


 


Section 3.3                                      Real
Estate Taxes.


 


3.3.1                        Tax Year and Taxes.  “Tax Year”
shall mean a twelve month period commencing on July 1 and falling wholly
or partially within the Term, and “Taxes” shall
mean (a) all ad valorem real estate taxes, assessments (special or
otherwise), levies, fees and all other government levies, exactions and charges
of 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 portion
thereof, or (ii) the Land (including Common Areas), and (b) Landlord’s
reasonable expenses of any proceeding to contest, determine or reduce any of
the foregoing items included in Taxes, but the amount of special taxes or
special assessments included in Taxes shall be limited to the amount of the
installment (plus any interest, other than penalty interest, payable thereon)
of such special tax or special assessment required to be paid during the year
in respect of which such Taxes are being determined.  There shall be excluded from Taxes (x) all
Taxes assessed on buildings located on any portion of the Land other than the
Building, and (y) all income, estate, succession, inheritance and transfer
taxes of Landlord; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be changed so that
a capital levy, franchise, income, profits, sales, rental, use and occupancy,
or other tax or charge shall (a) in whole or in part be substituted for
such ad valorem tax or (b) be imposed solely on or with respect to real
property or the income generated thereby, and, in either case, be levied
against, or be payable by, Landlord with respect to the Premises or any portion
thereof, 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, Tenant
shall pay to Landlord for each Tax Year, as Additional Rent, an amount equal to
Tenant’s Proportionate Share of the Taxes. 
Such amount shall be apportioned (i) to account for any adjustment
in Tenant’s Proportionate Share during any Tax Year, and (ii) for any
partial Tax Year that falls in any portion of the Term.  Estimated payments by Tenant on account of
Taxes shall be made on the first day of each and every calendar month during
the Term of this Lease, in the fashion herein provided for the payment of Base
Rent.  Promptly after receipt by Landlord
of bills for such Taxes, Landlord shall provide copies of such bills to Tenant
along with Landlord’s allocation of the Taxes and Landlord’s computation of
Tenant’s payment on account thereof.  If
estimated payments theretofore made by Tenant for the Tax Year covered by such
bills exceed the required payment on account thereof for such Tax Year,
Landlord shall promptly refund such overpayment to Tenant (less any amount then
owed to Landlord by Tenant under this Lease, in which case Landlord promptly
shall notify Tenant of such offset ); but if the required payments on account
thereof for such Tax Year are greater than estimated payments theretofore made
on account thereof for such Tax Year, Tenant shall pay the difference to
Landlord within thirty (30) days after being so advised by Landlord, and the
obligation 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 on
account of Taxes for Tenant’s estimated payments, Tenant shall not be liable to
Landlord to pay any Taxes first billed to Tenant by Landlord more than one year
after the end of the fiscal year in which Landlord received a final bill
therefor.


 


3.3.3                        Refund Sharing.  If Landlord shall receive any tax refund or
reimbursement of Taxes of which Tenant paid a share under this Lease, then out
of any balance remaining thereof after deducting Landlord’s reasonable expenses
in obtaining such refund not previously included in such Taxes as provided
above 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 sum
in lieu thereof (apportioned if such refund is for a Tax Year a portion of
which falls outside the applicable Term) that bears the same proportion to the
entire refund or reimbursement as the portion of the Taxes as to which the
refund or reimbursement was obtained that were paid by Tenant bears to the
entire amount of such Taxes.


 


3.3.4                        Abatement Initiated by
Tenant.  Tenant may from time to time
(but not more frequently than once a year) request that a real estate tax
abatement be sought on the tax parcel(s) on which the Premises and the Land are
located, whereupon Landlord shall either (a) prosecute a contest of the
tax and assessment basis of such tax parcel(s) and the taxes and assessment
levied thereon, or (b) permit Tenant to contest on behalf of Landlord the
tax and assessment basis of the tax parcel(s) on which the Premises and the
Land are located and the taxes and assessments levied thereon.  In the event Landlord makes the election
described in clause (b) above and Tenant performs such contest, then
Tenant (i) shall pay all costs and expenses in connection therewith, (ii) shall
keep Landlord informed about the status of such contest, and (iii) shall
indemnify and hold Landlord harmless from any and all costs, claims and
liabilities relating thereto, provided that if Tenant is successful in
obtaining a real estate tax abatement, Tenant shall be entitled to
reimbursement from the abatement proceeds of its reasonable costs and expenses
in connection with obtaining such abatement. 
Tenant shall not settle any tax abatement proceeding without the prior
consent of Landlord, which shall not be unreasonably withheld or delayed.  Furthermore, Tenant shall post with the
applicable governmental authority any and all necessary bonds or deposits or
similar security required by such authority so that the Landlord’s interests
shall not be jeopardized by reason of such contest by the Tenant.  Notwithstanding the foregoing, Landlord may
refuse to permit or undertake any contest requested by Tenant as provided in
this Section, so long as Landlord has a reasonable basis for doing so and
promptly notifies Tenant thereof. 
Without limiting the generality of the foregoing: (x) the filing of a
subdivision plan or the request for zoning relief or approvals, whether site
plan approval, special permit or otherwise, shall be a reasonable basis for
Landlord to refuse to permit or undertake any such contest; and (y) at any time
when an Event of Default has occurred and remains outstanding, Landlord may
refuse to permit or undertake any contest requested by Tenant or may require
Tenant to terminate any contest then underway, and in such event, Tenant agrees
to terminate any such ongoing contest.


 


Section 3.4                                      Operating
Expenses.


 


3.4.1                        Payment of Operating
Expenses; Definitions.  From and
after the Commencement Date, during the Term Tenant shall pay to Landlord, as
Additional Rent, the Tenant’s Proportionate Share of Operating Expenses, as
hereinafter defined, in accordance with


 


8





















 


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


 


3.4.2                        Certain Definitions.


 


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


 


(b)                            “Land Operating Expenses” means, without duplicating any
cost included in Building Operating Expenses, Landlord’s cost of operating and
maintaining the Land, which shall include, without limitation:  premiums for all general liability and excess
liability insurance carried by Landlord on the Land; operational, maintenance
and repair costs of easements benefiting the Land (including the cost of
operation, maintenance and repair of any water loop providing fire protection
to the Premises); costs of compliance with all Legal Requirements applicable to
improvements on the Land other than buildings (provided, however, that any such
cost that constitutes a capital expenditure shall be subject to the
amortization requirements applicable to Ordinary Capital Improvements
hereunder); the reasonable amount deductible from any insurance claim of the
Landlord (but only in the event of an actual claim paid and settled);
compensation and all fringe benefits, worker’s compensation, insurance premiums
and payroll taxes paid to, for or with respect to all persons directly engaged
in operating or maintaining the Land; the cost of landscaping; the cost of
maintenance; water, electricity, and other utility charges, excluding such
utility charges separately chargeable to tenants, whether for additional or
special services or otherwise; the cost of maintenance, repairs and
replacements (other than repairs and replacements reasonably collectible from
contractors under guarantees); the cost of snow, ice and sand removal; payments
under service contracts with independent contractors; the cost of any Ordinary
Capital Improvements, provided that the cost of any such Ordinary Capital


 


9





















 


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


 


(c)                             The
Building Operating Expenses and the Land Operating Expenses are collectively
referred to herein as the “Operating Expenses”.


 


(d)                            Notwithstanding
the foregoing, Operating Expenses:


 


(i)                                     shall
not include any expense of further development of the Land, without limitation,
any costs of site work, demolition, constructing additions to any existing
buildings on the Property (including the Building), or new buildings on the
Property, or otherwise further developing or redeveloping the Property;


 


(ii)                                  shall
not include any of the items specified in Exhibit C;
and


 


(iii)                               shall
be subject to the limitations specified in Exhibit C.


 


(e)                             With
regard to any Operating Expenses that are incurred in connection with any
Building service or system that is dedicated solely to servicing either (i) exclusively
the laboratory uses in the Premises, or (ii) the laboratory uses in the
Premises collectively with other laboratory uses being conducted within the
Building (“Lab Dedicated Expenses”), such Lab
Dedicated Expenses shall be equitably shared among all laboratory space tenants
in the Building benefiting from such service, with respective shares of the Lab
Dedicated Expenses being either (i) shared proportionally, based on the
square footage served thereby, if applicable (such as wherever usage is not
reasonably measurable by metering or other such measurement method), or (ii) separately
metered for the various lab spaces being served thereby, but in any case equitably
allocated by Landlord to account for consumption or use of such service or
system resource.


 


3.4.3                        Estimated Payments.  Annually, the Landlord shall render to the
Tenant a statement in reasonable detail showing for the preceding calendar year
or fraction thereof, as the case may be, the Operating Expenses and Tenant’s
Proportionate Share of the Operating Expenses. 
The Landlord shall use diligent efforts to deliver the statement not
later than ninety (90) days after the end of each calendar year or fraction
thereof at the beginning or at the end of the Term.  Said statement to be rendered to Tenant also
shall show for the preceding calendar year or fraction thereof, as the case may
be, the amounts of Operating Expenses already paid by Tenant.  If at the time such statement is rendered it
is determined with respect to any calendar year that Tenant has paid (i) less
than Tenant’s Proportionate Share of Operating Expenses or (ii) more than
Tenant’s Proportionate Share of Operating Expenses, then, in the case of (i) Tenant
shall pay to the Landlord, as Additional Rent, within thirty (30) days of such
statement the


 


10





















 


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


 


3.4.4                        Tenant’s Right to Review.  Tenant shall have the right to examine, copy
and audit Landlord’s books and records relating to Operating Expenses and the
allocation of expenses made by Landlord establishing Tenant’s Proportionate
Share of Operating Expenses for any calendar year for a period of one year
following the date that Tenant receives the statement of Operating Expenses and
Tenant’s Proportionate Share of Operating Expenses for such year from
Landlord.  Tenant shall give Landlord not
less than thirty (30) days’ prior notice of its intention to examine and audit
such books and records, and such examination and audit shall take place at the
Landlord’s offices; provided, however, that so long as Landlord maintains an
office in the Greater Boston Area, Landlord shall keep the books and records
relating 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 the
actual Operating Expenses or the amount allocated to Tenant’s Proportionate
Share of Operating Expenses for the year in question are less than the amount
set forth as the annual Operating Expenses on the annual statement delivered to
Tenant by at least five percent (5%), then Landlord shall pay the reasonable
costs of such examination and audit.  If,
pursuant to such examination and audit, the payments made for such year by
Tenant exceed Tenant’s required payment on account thereof for such calendar
year, Landlord shall promptly refund such overpayment.  If the payments made by Tenant for such year
are less than Tenant’s required payment as established by the examination and
audit, Tenant shall pay the deficiency to Landlord within thirty (30) days
after conclusion of the examination and audit as well as Landlord’s actual
out-of-pocket costs in connection with such examination and audit.  The obligation to make such payment or refund
for any period within the Term shall survive expiration of the Term.  If Tenant does not elect to exercise its
right to examine and audit Landlord’s books and records for any calendar year
within the time period provided for by this paragraph, Tenant shall have no
further right to challenge Landlord’s statement of Operating Expenses and
Tenant’s Proportionate Share of Operating Expenses.


 


Section 3.5                                      Insurance.


 


3.5.1                        Tenant’s Insurance.  Tenant shall maintain in full force from the
Commencement Date and thereafter throughout the Term the following types of
insurance:


 


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


 


11





















 


(b)                            Commercial
property insurance on an “all risk” basis, and specifically including sprinkler
leakages, vandalism, and malicious mischief and plate glass damage covering all
the items specified as Tenant’s Property and all other property of every
description including stock-in-trade, furniture, fittings, installations,
alterations, additions, partitions and fixtures or anything in the nature of a
leasehold improvement made or installed by or on behalf of the Tenant in an
amount of not less than one hundred percent (100%) of the full replacement cost
thereof as shall from time to time be determined by Tenant in form satisfactory
to Landlord in its reasonable discretion;


 


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


 


(d)                            Worker’s
compensation and occupational disease insurance with statutory limits, provided
that Tenant may self-insure for such purposes to the extent permitted by Legal
Requirements; and


 


(e)                             any
other form or forms of insurance as Landlord may reasonably require from time
to time (other than insurance that Landlord is required to maintain) in amounts
and for insurable risks (on commercially reasonable terms) against which a
prudent tenant would protect itself to the extent landlords of comparable
buildings in the vicinity of the Premises require their tenants to carry such
other form(s) of insurance.


 


In addition, during the performance of any
construction by Tenant on the Premises, in addition to the above coverage
required to be maintained by Tenant, Tenant shall cause the general contractor
performing the work under any contract costing in excess of One Million Dollars
($1,000,000.00) to carry: (a) Workers’ compensation and occupational
disease insurance in statutory amounts; (b) employer’s liability insurance
with a limit of not less than One Million Dollars ($1,000,000); (c) commercial
general liability insurance, including personal injury and property damage, on
an occurrence basis in the amount of a combined single limit of not less than
One Million Dollars ($1,000,000.00) for each occurrence; and (d) all risk
installation floater insurance (on the complete value/full coverage form) to
protect Landlord’s interest and that of Tenant, contractors and subcontractors
during the course of the construction, with limits of not less than the total
replacement cost of the completed improvements under construction.  Such contractor insurance policies shall be
endorsed to include Landlord and any Mortgagee (provided that Landlord has
identified 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 not
less than AVIII by Best’s Rating Service (or its successor) or otherwise
acceptable to Landlord in the Landlord’s reasonable discretion and licensed to
do business in the Commonwealth of Massachusetts, and shall be noncancellable
with respect to Landlord and any Mortgagee (provided that Landlord has
identified such Mortgagee by notice to Tenant), without thirty (30) days’ prior
notice to Landlord and such Mortgagee. 
Tenant shall deliver to Landlord and any Mortgagee (provided that
Landlord has identified such Mortgagee by notice to Tenant) certificate(s) of
insurance evidencing the coverage required hereunder upon commencement of


 


12





















 


the Term and no later
than thirty (30) days prior to the expiration of the coverage evidenced by a
prior certificate.  Notwithstanding
anything to the contrary hereinabove contained, Tenant may, at its option,
include any of the insurance coverage hereinabove set forth in general or
blanket policies of insurance, and the coverage afforded may be effected by any
combination of basic, excess or umbrella coverage; provided that as to property
insurance, any blanket policy shall include an agreed amount clause or its
equivalent.


 


3.5.2                        Waiver of Subrogation.  All insurance (except for workers’
compensation insurance) which is carried by either party with respect to the
Premises, whether or not required, shall include provisions which deny to the
insurer acquisition by subrogation of rights of recovery against the other
party to the extent such rights have been waived by the insured party prior to
the occurrence of loss or injury, insofar as, and to the extent that such
provisions may be effective without making it commercially unreasonable to
obtain insurance coverage from responsible companies qualified to do business
in the Commonwealth of Massachusetts as otherwise provided herein (but if extra
premium results therefrom, the other party shall reimburse the insuring party
therefor, on demand).  Each party shall
be entitled to have duplicates or certificates of any policies containing such
provisions.  Each party hereby waives all
rights of recovery against the other for loss or injury against which the
waiving party is protected by insurance containing said provisions, reserving,
however, any rights with respect to any excess of loss or injury over the
amount recovered by such insurance.


 


Section 3.6                                      Utilities
and Other Services.


 


3.6.1                        Tenant shall pay or cause to be
paid directly to the proper authorities charged with the collection thereof all
charges for any utilities or services separately metered to Tenant used or
consumed on the Premises.  For those
utilities not separately metered to Tenant, to the extent feasible, Landlord
will undertake to determine Tenant’s utility charge for the cost to serve the
Premises based on the comparative usage of such utility (such as undertaking a
reasonable survey of electricity usage), and shall charge Tenant a “utility
charge” for such service, which such charge shall specifically not be included
in the Operating Expenses.  Notwithstanding
anything contained in this Lease to the contrary, if (i) an interruption
or curtailment, suspension or stoppage of an Essential Service (as said
term is hereinafter defined) shall occur, except any of the same due to any act
or neglect of Tenant or Tenant’s agents employees, contractors or invitees or
any person claiming by, through or under Tenant or due to any Casualty as
provided for in Article 5 (any such
interruption of an Essential Service being hereinafter referred to as a “Service Interruption”), and (ii) such Service
Interruption occurs or continues as a result of the negligence or a wrongful
conduct of Landlord or Landlord’s agents, servants, employees or contractors,
and (iii) such Service Interruption continues for more than five (5) consecutive
Business Days after Landlord shall have received notice thereof from Tenant,
and (iv) as a result of such Service Interruption, the conduct of Tenant’s
normal operations in the Premises is materially and adversely affected, then
there shall be an abatement of one day’s Base Rent and Additional Rent for each
day during which such Service Interruption continues after such five (5) consecutive
Business Day period; provided, however, that if any part of the Premises is
reasonably useable for Tenant’s normal business operations or if Tenant
conducts all or any part of its operations in any portion of the Premises
notwithstanding such Service Interruption, then the amount of each daily
abatement of Base Rent and Additional Rent shall only be proportionate to the
nature and extent of the interruption of Tenant’s normal


 


13





















 


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 the
chemical hoods, HVAC service (to the extent controlled by Landlord),
electricity and natural gas.


 


3.6.2                        Landlord shall provide water
for fire protection purposes to the Premises during the Term by means of the
existing 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 and
water for the conduct of Tenant’s business, without limitation utilizing the
existing 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 agrees
that, as Landlord adds additional tenants as beneficiaries of the back-up power
service made available by the existing 910 KW standby generator, Landlord shall
not permit any overloading of such equipment.


 


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


 


3.6.5                        Tenant’s Specialized
Equipment.  Tenant shall be permitted
to remove all such specialized equipment and other fixtures as are set forth on
the attached Exhibit D.


 


3.6.6                        Cafeteria.  Landlord
agrees that, so long as Tenant is the sole tenant occupying space at the
Building, Tenant has the right, but not the obligation, to occupy and operate
the 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 of
one or more additional tenants, Tenant shall relinquish to Landlord its rights
to use and operate the Cafeteria and Landlord shall provide Cafeteria services
(whether operated by Landlord or by an independent contractor) for use by
Tenant and other tenants and occupants in the Building; provided, however, that
if Landlord’s (or such contractor as Landlord may employ) commercially
reasonable operation of the Cafeteria is sufficiently proven to Tenant to not
be 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 operating
records relating to the Cafeteria, at Tenant’s election, then Landlord shall
allow Tenant to elect to either (i) pay to the Cafeteria operator, on a
monthly basis, its pro rata share (based on a fraction, the numerator of which
would be the number of Tenant’s employees, and the denominator of which would
be the total number of employees of tenants in the Building that have elected
to participate in use of the Cafeteria (the “Cafeteria
Pro Rata Share”)) of the amount of money required each month to
permit the Cafeteria operator’s operation to break even; or (ii) elect not
to pay such amount, in which case Landlord shall be relieved of the obligation
to provide an operational Cafeteria.  If
Tenant elects to pay its Cafeteria Pro Rata Share, then Landlord shall ensure
that the Cafeteria remains operational and in any such month when the Cafeteria
operator requires payment of the Cafeteria Pro Rata Share by Tenant (i.e.,


 


14





















 


operates at a net loss), the Cafeteria
operator will provide Tenant with a written statement of income and expenses
for Tenant’s review, along with Tenant’s Cafeteria Pro Rata Share that is due.  Landlord agrees that it shall not permit the
employees of any tenant of the Building that does not elect to participate in
using the Cafeteria to have access to or use of the Cafeteria and the services
provided there.  Tenant may elect, at any
time during the Term to stop paying such Cafeteria Pro Rata Share to the
Cafeteria operator, at which such time Landlord shall be relieved from any
obligation to operate the Cafeteria.  The
operator of the Cafeteria from time to time may modify the hours of operation,
the menu or the method of service, provided however that the Cafeteria
will, at a minimum, be open on Business Days for service of breakfast food from
7:30 a.m. through 9:30 a.m. and service of lunch meals (the lunch
menu consisting of at least one hot entrée, a cold cut bar and a salad bar each
day) from 11:30 a.m. through 1:30 p.m. whenever the Cafeteria is
required to be operational during the Term.


 


3.6.7                        Tenant Provided Services.  Notwithstanding anything to the contrary
contained in this Article 3, Tenant may elect, so long as Tenant remains
the 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 same
under this Lease, any of the Building services set forth on the attached Exhibit G (the “Tenant
Provided Services”).  Tenant’s cost
and expense in connection with providing itself with the Tenant Provided
Services shall be strictly limited to only those expenses which would be
properly charged to Tenant as an Operating Expense if Landlord were to provide
such services; any other costs associated with the provision of such services
shall remain Landlord’s sole responsibility. 
Upon the tenancy of one or more other tenants at the Building, Tenant
shall cease from providing itself any Tenant Provided Services as Tenant may
have elected to provide as aforesaid, and Landlord shall assume the obligation
to provide Tenant with what had previously been Tenant Provided Services.  Nothing herein above shall be deemed to
release Landlord from its obligation to provide any of the aforementioned
Tenant Provided Services in the event that Tenant chooses, at any time prior to
the Building being occupied by other tenants, to cease provision of the Tenant
Provided Services to itself.


 


3.6.8                        pH System.  Unless Tenant shall elect under Section 3.6.7
to have Landlord perform the pH system services, Tenant shall, at its own cost
and expense (subject to the terms herein below), be responsible for its own use
and operation of the existing pH balancing system which is located in an area
of the basement of the Building that is outside the Premises (the “General pH System”), in connection with Tenant’s occupancy
of the Premises.  Tenant’s cost and
expense in connection with providing itself with the services of the General pH
System shall be strictly limited to only those expenses which would be properly
charged to Tenant as an Operating Expense if Landlord were to provide such
services; any other costs associated with the provision of such services shall
remain Landlord’s sole responsibility. 
Upon the occupancy of any additional tenants in the Building, Landlord
shall, as part of the Building Conversion Work, provide the Premises with its
own operationally dedicated pH system, including without limitation all
equipment associated therewith equal in quality and serviceability as the
General pH System (“Premises pH System”),
in an area of the Basement comprising a portion of the Premises, which Landlord
shall determine subject to Tenant’s approval. 
Tenant’s rights as aforesaid with respect to the General pH System shall
apply until the Premises pH System is tested and fully operational and Tenant
is capable of using the Premises pH System in connection with its occupancy of
the Premises.  Landlord specifically
agrees that at no point while Tenant is using the General pH System shall any
other tenant or


 


15





















 


occupant of the Building
be permitted to use the General pH System.  Nothing hereinabove shall release Landlord
from its obligation to provide any services in connection with the General pH
System in the event that Tenant chooses, at any time prior to the delivery of a
tested and operational Premises pH System, to cease provision of such service
to itself.


 


Section 3.7                                      Repair
and Maintenance.


 


3.7.1                        Tenant Repairs and
Maintenance.  Tenant agrees to keep
the Premises in as good order condition and repair excepting only those repairs
which Landlord is responsible under the terms of this Lease, reasonable use and
wear and tear and damage by fire or other casualty or condemnation excepted.  Landlord agrees to cooperate with Tenant to permit
Tenant, to the extent possible, to obtain the benefit of any warranties and
guaranties in favor of Landlord on any part of the Premises.


 


3.7.2                        Landlord Repairs and
Maintenance.  Except as otherwise
provided in this Lease, Landlord agrees to keep in good order, condition and
repair the roof, public areas, exterior walls (including exterior glass) and
structure of the Building (including all plumbing, mechanical and electrical
systems installed by Landlord, but specifically excluding any supplemental heating,
ventilation or air conditioning equipment or systems exclusively serving the
Premises and installed at Tenant’s request or as a result of Tenant’s
requirements in excess of building standard design criteria), all insofar as
they affect the Premises, except that Landlord shall in no event be responsible
to Tenant for the repair of glass in the Premises, the doors (or related glass
and finish work) leading to the Premises, or any condition in the Premises or
the Building caused by any act or neglect of Tenant, its invitees or
contractors.  Landlord shall also keep
and maintain all Common Facilities in a good and clean order, condition and
repair, free of snow and ice and accumulation of dirt and rubbish, shall provide
for regular removal of trash and rubbish from the Property, and shall keep and
maintain all landscaped areas on the Property in a neat and orderly
condition.  Landlord shall not be
responsible to make any improvements or repairs to the Building other than as
expressly 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 to
Landlord, and any ground lessor or mortgagee of whose identity Tenant shall
have been given notice, of Landlord’s obligation to perform repairs for which
Landlord is responsible under this Lease, and Landlord shall have failed to
commence performance of the same within a reasonable time period following
Tenant’s notice as aforesaid, Tenant may (but shall not be obligated to) make
such repairs, and Landlord shall reimburse the Tenant for the reasonable cost
thereof no later than thirty (30) days after receipt of Tenant’s invoice
therefor (if not paid by Landlord within said thirty days, together with
interest at the Default Rate, from the expiration of such thirty (30) day
period until paid); provided, however, that Landlord may offset against any
amounts payable by Landlord under this Section any amounts then due and
owing by Tenant under this Lease, but, in such event, Landlord shall notify
Tenant of the offset.  If Landlord has
timely commenced the performance of such repairs, but fails to continue
diligently to complete the same, except to the extent caused by External Causes
(as defined herein), Tenant shall have the aforesaid right to self help if
Landlord 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 against
the payment of rent or any other sums payable to Landlord under this
Lease.  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 other
extraordinary labor difficulties, shortages of labor or materials or equipment
in the ordinary course of trade, government order or regulations or other cause
not reasonably within the control of the party in question, and not due to the
fault or neglect of such party, excluding, however, inability to pay
obligations as they become due.


 


ARTICLE IV

TENANT’S ADDITIONAL COVENANTS


 


Section 4.1                                      Permitted
Use.  Tenant agrees:  (a)  to use the Building only for general
business and professional offices, research laboratories, animal research
facility/vivarium, light manufacturing, accessory manufacturing and customary
uses accessory to the foregoing (the “Permitted Uses”).  Tenant shall not use or occupy the Premises
for any other purpose without the prior written consent of the Landlord, which
shall not be unreasonably withheld or delayed as to any manufacturing or
assembly use but may be granted or withheld in Landlord’s sole discretion as to
any other use.


 


Section 4.2                                      Prohibited
Uses.  Notwithstanding the provisions
of Section 4.1, Tenant shall not use
the Premises or allow the Premises to be used for any illegal or immoral
purpose, or so as to create waste, constitute a private or public nuisance, or
unreasonably disturb other occupants of the Property; provided, however, that
the currently existing uses shall not be deemed to disturb any other occupants
of the Property.  Tenant shall not place
any loads upon the floors, walls, or ceiling which endanger the structure, or
place any harmful fluids or other materials in the drainage system of the
Building, or overload existing electrical or other mechanical systems.  Tenant shall not use any machinery or
equipment in the Building which causes noise or vibration materially in excess
of current levels.  No waste materials or
refuse shall be dumped upon or permitted to remain outside of the Premises
except in trash containers placed inside exterior enclosures designated by
Landlord for that purpose.  No materials,
supplies, equipment, finished products or semi-finished products, raw materials
or articles of any similar nature shall be permitted to remain outside the
Premises or on any portion of the Common Areas unless otherwise approved by Landlord
in its sole discretion.


 


Section 4.3                                      Hazardous
Materials.


 


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


 


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Environmental Laws regulating such activity, nor permit any occupant of
the Premises to do so.  In accordance
with Section 4.5 below, Tenant shall
indemnify, defend, and hold harmless Landlord, and the holder of any mortgage
on the Premises or any larger parcel of land of which the Premises may be a
part, from and against any claim, cost, expense, liability, loss, obligation or
damage, including, without limitation, attorney’s fees and the cost of
litigation, arising from or relating to the breach by Tenant or anyone claiming
by, 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 upon
the Premises or any larger parcel of land of which the Premises may be a part
in connection with any such claim.  For
purposes of this Lease, “Hazardous Materials”
shall mean any substance regulated under any Environmental Law, including those
substances defined in 42 U.S.C. Sec. 9601(14) or any related or applicable
federal, state or local statute, law, regulation, or ordinance, pollutants of
contaminants (as defined in 42 U.S.C. Sec. 9601(33), petroleum (including crude
oil or any fraction thereof), any form of natural or synthetic gas, sludge (as
defined 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, “Environmental
Laws” means all federal, state and local laws relating to the
protection of the environment or health and safety, and any rule or
regulation promulgated thereunder and any order, standard, interim regulation,
moratorium, policy or guideline of or pertaining to any federal, state or local
government, department or agency, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (“CERCLA”), the Superfund
Amendments and Reauthorization Act of 1986 (“SARA”),
the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the
Occupational Safety and Health Act, the Federal Insecticide, Fungicide and
Rodenticide Act, the Marine Protection, Research, and Sanctuaries Act, the
National Environmental Policy Act, the Noise Control Act, the Safe Drinking
Water Act, the Resource Conservation and Recovery Act (“RCRA”),
as amended, the Hazardous Material Transportation Act, the Refuse Act, the
Uranium Mill Tailings Radiation Control Act and the Atomic Energy Act and
regulations of the Nuclear Regulatory Agency, Massachusetts General Laws
Chapters 21C and 21E and any other state and local counterparts or related
statutes, laws, regulations, and order and treaties of the United States.


 


4.3.2                        Environmental Assessments.  Tenant shall permit Landlord and Landlord’s
agents, representatives and employees, including, without limitation, legal
counsel and environmental consultants and engineers, access to the Premises
during the Term upon at least twenty-four (24) hours’ prior notice (which may
be verbal) to the chief financial officer of Tenant or such other employee of
Tenant as Tenant may designate to Landlord from time to time, and at reasonable
times convenient to Tenant for purposes of conducting environmental
assessments.  Landlord shall permit
Tenant 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 the
Premises, and upon completion of Landlord’s assessment, investigation, and
sampling, shall substantially repair and restore the affected areas of the
Premises from any damage caused by the assessment.  Such assessment shall be at Landlord’s
expense, provided that if the assessment shows that a release of Hazardous
Materials in violation of this Lease has occurred, then Landlord’s actual,
reasonable, out-of-pocket costs relating to such assessment shall be reimbursed
by Tenant.  Landlord shall permit Tenant
or Tenant’s representatives to be present during any test conducted as part of
such assessment.  If Landlord takes any
samples


 


18





















 


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


 


4.3.3                        Tenant’s Obligation to
Remediate.  Tenant shall investigate,
assess, monitor and report as required by applicable Environmental Law, at
Tenant’s sole cost and expense, any release of Hazardous Materials required to
be reported under any Environmental Law that arises out of the use, operation,
or occupancy of the Premises or Property by Tenant or any Tenant Responsible
Parties during the Term and any further period during which Tenant or any
Tenant Responsible Party retains use, operation or occupancy of the Premises (a
“Tenant’s Release”).  Further, Tenant shall remediate, in
compliance with applicable Environmental Laws, at Tenant’s sole cost and
expense, any Tenant’s Release requiring Response Action (as defined in 310
C.M.R. 40.0000).  Tenant shall submit to
Landlord for Landlord’s prior approval a work plan outlining in reasonable
detail any Remedial Work to be performed by Tenant hereunder (the “Remedial Work Plan”). 
Landlord shall not unreasonably withhold or delay its approval of such
Remedial Work Plan if (i) it complies with all applicable Environmental
Laws; and (ii) the Remedial Work outlined therein reasonably appears
sufficient to remediate the releases to the level provided for in this
Section.  If Tenant is obligated to
remediate a Tenant’s Release under this Lease, Tenant shall be obligated to
remediate the Tenant’s Release to a level that will permit the portion of the
Property to be used for its highest and best use under applicable Legal
Requirements (expressly excluding, however, any residential, child educational,
day care, agricultural or horticultural use, except to the extent such uses are
included in Landlord’s then-current development plans for the Property), but in
no event shall Tenant be obligated to remediate the release to a higher level
than a commercially reasonable owner of similar property with similar
development potential would undertake. 
Tenant shall make available to Landlord copies of drafts of any
submittals to governmental authorities in connection with the Remedial Work for
Landlord’s review and comment at least seven (7) days prior to such
submittal, and Tenant shall consider in good faith and incorporate as Tenant
reasonably deems appropriate Landlord’s comments thereon.  Tenant shall sign any manifests or other
documents as the waste generator for any Hazardous Materials it disposes of or
sends off site or otherwise arising from a Tenant’s Release.  This Subsection shall survive the Term
and shall be subject to the provisions of Section 4.5.  Tenant’s remediation obligation set forth in
this Subsection shall not limit Landlord’s right to damages, if any, which
Landlord may incur due to any unremediated Hazardous Materials resulting from a
Tenant’s Release.


 


Section 4.4                                      Compliance
with Legal and Insurance Requirements.


 


4.4.1                        Compliance with Legal
Requirements.  Tenant, at Tenant’s
cost and expense, agrees to comply with all Legal Requirements applicable to
the use, operation, or occupancy of the Premises by Tenant or any Tenant
Responsible Parties or any Alterations made by or on behalf of Tenant or any
Tenant Responsible Parties, and to provide Landlord with a copy of any notice
alleging violation of any such Legal Requirement given to Tenant by any
governmental authority or third party; except that Tenant may defer compliance
so long as the validity of any such Legal Requirement shall be contested by
Tenant in good faith and by appropriate legal proceedings, if such contest would
not subject Landlord to any possible civil or criminal penalties and such
consent would not place Landlord in default under any Mortgage


 


19





















 


applicable to the Premises, and if Tenant first gives Landlord appropriate
assurance in Landlord’s reasonable judgment against any loss, cost or expense
on account thereof.  If any present or
future Legal Requirement requires any licenses or permits for Tenant’s or any
Tenant Responsible Party’s particular use, operation, and occupancy of the
Premises, Tenant will obtain and maintain such licenses and permits at Tenant’s
own expense, and, upon Landlord’s request, will promptly provide copies to
Landlord 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 in
compliance with the terms hereof.


 


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


 


Section 4.5                                      Indemnity.


 


4.5.1                        Tenant.  To the maximum extent this agreement may be
made effective according to law, and except as otherwise expressly provided in
this Lease, Tenant agrees to indemnify and save harmless Landlord, Landlord
Responsible Parties (as hereinafter defined) and any mortgagee providing
financing with respect to the Property of which Tenant has received notice from
and against all costs, expenses, liabilities, claims, loss, and damage of
whatever nature to the extent:


 


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


 


(ii)                                       arising
from any accident, physical injury or physical damage occurring on any portion
of the Premises during the Term or an Extended Term; or


 


(iii)                                    arising
from Tenant’s or Tenant Responsible Parties’ violation of or failure to comply
with the provisions of Section 4.3
above with regard to Hazardous Materials;


 


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


 


4.5.2                        Landlord.  To the maximum extent this agreement may be
made effective according to law, and except as otherwise expressly provided in
this Lease, Landlord agrees to indemnify and save harmless Tenant from and
against all claims, loss, or damage of whatever nature to the extent arising
from any negligent act or omission or willful misconduct of Landlord or
Landlord Responsible Parties on or about the Premises or the Property during
the Term; or provided, however, that (x) the foregoing indemnity shall not
include any cost or damage to the extent arising from any negligent act or
omission or willful misconduct of Tenant or any Tenant Responsible Parties and
(y) in no event shall Landlord be liable under this indemnity for consequential
damages.  This indemnity and hold harmless
agreement shall include indemnity against reasonable attorneys’ fees and all
other costs, expenses and liabilities incurred or in connection with any such
claim or proceeding brought thereon, and the defense thereof.


 


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


 


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4.5.4                        Survival.  The indemnifications contained in this Section 4.5 shall survive the expiration or earlier
termination of this Lease with respect to any matters arising or accruing prior
thereto or during any holdover period by Tenant or any Tenant Responsible
Party.


 


Section 4.6                                      Landlord’s
Right to Enter.  Tenant agrees to
permit Landlord and purchasers and Mortgagees and their authorized
representatives and, during the last nine (9) months of the Term with
respect to any portion of the Premises, any prospective tenants, to enter the
Premises (or, as to prospective tenants, the applicable portion of the
Premises) to inspect the same or to exercise any of Landlord’s rights under
this Lease (i) after at least 24 hours prior notice (which may be oral) to
Tenant’s representative at all reasonable times during usual business hours;
provided, however, that any such entry shall be made so as to minimize
interference with the operation and use of the Premises by Tenant and without
damage to the Premises or any portion thereof; and (ii) at any time and
without notice in the event of emergency. 
In addition, Tenant agrees to permit Landlord to enter the Premises
after at least twenty-four hours prior notice (which may be oral) to Tenant’s
representative at all reasonable times during business hours for purposes
related to Landlord’s planned redevelopment of the Property such as inspection,
measurement, design and testing, so long as such entry is made without material
interference with the operation and use of the Premises by Tenant and without
damage to the Premises or any portion thereof.


 


Section 4.7                                      Personal
Property at Tenant’s Risk.  Tenant
agrees that all of the furnishings, fixtures, equipment, effects and property
of 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 the
continuance of the Term applicable to that portion of the Premises or any
occupancy of that portion of the Premises by Tenant or anyone claiming under
Tenant, shall be at the sole risk and hazard of Tenant, and if the whole or any
part thereof shall be destroyed or damaged by fire, water or otherwise, or by
the leakage or bursting of water pipes, by theft or from any other cause, no
part 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 to
Tenant or to any other person, for any injury, loss, damage or liability to the
extent prohibited by law.  During the
first sixty (60) days of the Term (which may be accelerated by Landlord to only
the first thirty (30) days if reasonably required by Landlord), Tenant may keep
personal property in other portions of the Building that Tenant has previously
occupied with Landlord’s permission.


 


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Section 4.8                                      Yield
Up.


 


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


 


4.8.2                        Tenant’s Removal Obligation.  The property that Tenant is required to
remove 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, an
initial list of which is attached hereto as Exhibit D;
provided however that no later than thirty (30) days prior to the Termination
Date of this Lease, Tenant and Landlord shall agree upon a specific list of
items which Tenant shall be required to remove from the Property (which such
list shall include, at a minimum, the items listed on Exhibit D).  Tenant shall patch or cap any damage to the
Premises caused by removal of any of the foregoing, but shall not be required
to 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 and
process plumbing in the Premises, and all exhaust or other ductwork in the
Premises, in each case which has carried or released any Hazardous Materials,
and shall otherwise clean the Premises so as to permit the report hereinafter
called for by this Subsection to be issued.  Within thirty (30) days after completion of
such cleaning and decommissioning as to the Building, Tenant, at Tenant’s
expense, shall obtain for Landlord a report addressed to Landlord (and, at
Tenant’s election, Tenant) by a reputable licensed environmental engineer that
is designated by Tenant and acceptable to Landlord in Landlord’s reasonable
discretion, which report shall be based on the environmental engineer’s
inspection of such Building and shall show:


 


(i)                                          that
the Hazardous Materials carried or processed by such supply lines, waste lines,
and plumbing or released through such exhaust or ductwork, to the extent, if
any, existing prior to such decommissioning, have been removed as necessary so
that the remaining process piping, process supply lines, process waste lines
and process plumbing, and all such exhaust or other ductwork, may be disposed
of in compliance with applicable Environmental Laws without taking any special
precautions for Hazardous Materials (excluding asbestos or asbestos-containing
materials), without incurring special costs or undertaking special procedures
for demolition, disposal, investigation, assessment, cleaning or removal of
Hazardous Materials (excluding asbestos or asbestos-containing materials or any
Hazardous Materials currently existing as part of the Building or other
improvements) and without incurring regulatory compliance requirements or
giving notice in connection with Hazardous Materials (excluding asbestos or
asbestos-containing materials or any Hazardous Materials currently existing as
part of the Building or other improvements); and


 


23





















 


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


 


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


 


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


 


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


 


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Section 4.10                                Assignment
and Subletting.


 


4.10.1                  Consent Required.  Except as otherwise expressly provided
herein, Tenant shall not, directly or indirectly, voluntarily or by operation
of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all
or any part of its interest in or rights with respect to the Premises or its
leasehold estate (collectively, “Assignment”),
or permit all or any portion of the Premises to be occupied by anyone other
than itself or sublet all or any portion of the Premises (collectively, “Sublease”) without Landlord’s prior written consent, which
such consent shall not be unreasonably withheld or delayed.  No Assignment or Sublease shall relieve
Tenant of Tenant’s primary liability under this Lease.  A consent to one Assignment or Sublease shall
not constitute consent to any further Assignment or Sublease.  Acceptance by Landlord of rent from any
assignee or subtenant shall not constitute consent to such Assignment or
Sublease.


 


4.10.2                  Successor Entity.  Notwithstanding the foregoing, Tenant shall
have the right to make an Assignment to a Successor Entity (hereinafter
defined) without Landlord’s consent, provided that upon consummation of the
transaction resulting in the Assignment to the Successor Entity, the credit of
the 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 the
credit of any such party is rated at such time) as that of the assignor Tenant
existing immediately prior to such consummation.  A “Successor Entity”,
as used in this Section shall mean a corporation or other business entity (i) into
which or with which Tenant, its corporate or other successors or permitted
assigns, is merged or consolidated, in accordance with applicable statutory
provisions for the merger or consolidation of a corporation or other business
entity, or (ii) which acquires control of Tenant in a bona fide
transaction not entered into for the purpose of avoiding the restrictions on
transfer set forth in this Lease, or (iii) which acquires in a bona fide arms-length transaction all or substantially all
of the assets of Tenant or all or substantially all of the assets of any operating
unit of Tenant; provided that:  (a) in
the case of a merger or consolidation, if the Tenant under this Lease is a new
Tenant as a result of such merger or consolidation, by operation of law or by
effective provisions contained in the instruments of merger or consolidation or
acquisition, the liabilities of Tenant under this Lease are assumed by the
corporation or other business entity surviving such merger or consolidation;
and (b) in the case of an asset sale, by operation of law or by effective
provisions contained in the instruments of sale, the liabilities of Tenant
under this Lease are assumed by the corporation or other business entity
acquiring Tenant’s assets.  Tenant shall
notify Landlord promptly upon consummation of any Assignment hereunder not
requiring Landlord’s consent, and, within thirty (30) days after the
consummation of such Assignment shall deliver to Landlord the Assignee’s
written confirmation that the Assignee has assumed and agreed to pay or
perform, as applicable, all of Tenant’s obligations under this Lease.  In addition, within twenty (20) Business Days
after Landlord’s request therefor, the Assignee shall execute and deliver a
written assumption in form and substance satisfactory to Landlord in Landlord’s
reasonable discretion of Tenant’s obligations under this Lease.  In addition, Tenant may Sublease all or any
portion of the Premises without Landlord’s consent to any corporation,
partnership, trust, association or other business organization directly or
indirectly 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’ prior
written notice thereof.  Within thirty
(30) days after entering into any such Sublease, Tenant shall give Landlord a
copy of the


 


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fully-signed Sublease, which shall incorporate the terms of the last
sentence of Subsection 4.10.6.


 


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


 


4.10.4                  Further Requirements.  If this Lease be assigned, or if the Premises
or any part thereof be sublet or occupied by anyone other than Tenant, whether
or not in violation of the terms and conditions of the Lease, Landlord may, at
any time and from time to time, collect rent and other charges from the
assignee, subtenant or occupant, and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment, subletting,
occupancy, collection or modification of any provisions of this Lease shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder.  Any consent by Landlord to a particular
assignment, subletting or occupancy or other act for which Landlord’s consent
is 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 the
original named Tenant. No assignment or subletting hereunder shall relieve
Tenant from its obligations hereunder, and Tenant shall remain fully and
primarily, jointly and severally liable therefor.  Tenant shall reimburse Landlord on demand, as
Additional Rent, for any reasonable out-of-pocket costs (including reasonable
attorneys’ fees and expenses) incurred by Landlord in connection with any
request for consent to any proposed Assignment or Sublease, whether or not
consummated, including the costs of making investigations as to the
acceptability of the proposed assignee or subtenant.  Any Sublease to which Landlord gives its
consent shall not be valid unless and until Tenant and the sublessee execute a
consent agreement in form and substance satisfactory to Landlord in its
reasonable discretion and a fully executed counterpart of such Sublease has
been delivered to Landlord.  Any Sublease
shall provide that: (i) the term of the Sublease ends no later than one
day before the last day of the Term of this Lease; (ii) such Sublease is
subject and subordinate to this Lease; (iii) Landlord may enforce the
provisions of the Sublease, including collection of rents; and (iv) in the
event of termination of this Lease or reentry or repossession of the Premises
by Landlord, Landlord may, at its sole discretion and option, take over all of
the right, title and interest of Tenant, as sublessor, under such Sublease, and
such subtenant shall, at Landlord’s option, attorn to Landlord but nevertheless
Landlord shall not (a) be liable for any previous act or omission of
Tenant under such Sublease; (b) be subject to any defense or offset
previously accrued in favor of the subtenant against Tenant; or (c) be
bound by any previous modification of such Sublease made without Landlord’s
written 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 this
Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, and
at the option of Landlord shall terminate all or any existing Assignments or
Subleases, or at the option of Landlord may operate as an assignment to
Landlord of any or all Assignments or Subleases.  Furthermore, any foreclosure of a mortgage
that 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 and
effect.


 


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 unreasonably
withheld or delayed, provided that if the proposed Alterations will adversely
affect the structural integrity of the Building, Landlord may withhold its consent
to such Alterations in Landlord’s sole discretion.  Notwithstanding the foregoing, the consent of
Landlord shall not be required with respect to any Alterations costing less
than $100,000 in any given instance that do not perforate or penetrate the roof
or other exterior portions of the Building in question and do not adversely
affect the structural integrity of the Building.  Without limitation, it shall not be
unreasonable for Landlord to deny its consent to any Alterations which would
impose on Landlord any special maintenance, repair, or replacement obligations
not within the scope of those expressly provided for herein, unless Tenant
agrees, at the time of its request for approval or notice of such Alterations,
to pay all costs associated with Landlord’s meeting the additional
obligations.  All Alterations shall be
subject to the provisions of Subsection 4.11.2
hereof.


 


4.11.2                  Additional Covenants Regarding
Alterations.


 


(a)                             All
Alterations shall be made (i) at Tenant’s sole expense, (ii) according
to plans and specifications approved in writing by Landlord (to the extent
plans, specifications, and/or Landlord’s consent is required), (iii) in
compliance with all applicable Legal Requirements, (iv) by a licensed
contractor, and (v) in a good and workmanlike manner.  Tenant shall provide Landlord with as-built
plans for any Alterations for which plans are used, regardless of whether the
Alterations require Landlord’s consent hereunder.


 


(b)                            Tenant
shall keep the Premises and the Building free from any liens arising out of any
work performed, materials ordered or obligations incurred by or on behalf of
Tenant.  Without limitation, Tenant shall
be responsible for, and shall pay when due, all costs associated with the
preparation of plans and the performance of Alterations, and the same shall be
performed in a lien-free, good and workmanlike manner, and in accordance with
applicable codes and requirements, including the requirements of the Americans
with Disabilities Act (“ADA”).  In the event that Tenant shall fail to pay
the costs associated with Alterations on a timely basis, as a result of such
failure, a statutory and/or common law lien is asserted against the Premises or
the applicable Building, and Tenant shall fail, within ten (10) days after
notice of such assertion, to cause (by payment, posting of a proper bond, or
otherwise) 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 bonded
over or released of record.


 


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(c)                             Tenant
shall ensure that all contractors and subcontractors performing Alterations are
insured in amounts required by law.  If
Landlord requests, certificates of such insurance shall be delivered to Landlord.


 


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


 


(e)                             Tenant
shall provide copies of any warranties for Alterations and the materials and
equipment which are incorporated into the Building and Premises in connection
therewith, and either assign to Landlord, or enforce on Landlord’s behalf, all
such warranties to the extent repairs and/or maintenance on warranted items
would be covered by such warranties and are otherwise Landlord’s responsibility
under this Lease.


 


4.11.3                  Removal of Alterations.  Landlord shall notify Tenant in writing at
the time of Landlord’s approval of any Alterations, whether or not the proposed
Alterations will be required to be removed by Tenant at the end of the
Term.  Tenant shall be obligated to
remove any Alterations that Landlord has not designated in writing will be
permitted to remain on the Premises in accordance with Section 4.8.


 


Section 4.12                                Signage.  Landlord, at its sole cost and expense, may
modify the signage plan of the Building in place as of the Commencement Date, so
long as Landlord shall provide appropriate signage and monuments directing
employees and customers to the Building and the Premises.  Any such changes to the signage plan shall be
subject to obtaining any necessary permits from the City of Waltham and Tenant’s
approval, and any other applicable approvals, which will not unreasonably be
withheld or delayed.  Tenant shall not be
unreasonable in withholding its consent to any change in the signage plan which
Tenant determines, in its reasonable judgment, renders Tenant’s signage
insufficient in relation to the amount of and percentage of building floor
space which Tenant occupies at the Building.  Tenant, at its sole cost and expense, shall
have the non-exclusive right to place its name on any such monument(s) created
by Landlord, in accordance with any applicable Building standards.  Tenant shall have the right to place its
corporate name on the entry door to the Building, or alternatively, at some
location near the door or on the exterior of the Building, each in accordance
with any applicable Building standards.  Except as set forth above, Tenant agrees not to install, inscribe, paint, affix or
otherwise display any sign or advertisement on any part of the Premises that
can be seen from outside of the Premises without Landlord’s prior written consent.


 


Section 4.13                                No
Opposition to Development.  Tenant
agrees not to take any action to oppose any application by Landlord for any
permits, consents or approvals from any governmental authorities for any
redevelopment or additional development of all or any part of the Property, and
will use all commercially reasonable efforts to prevent any Tenant Responsible
Parties from doing so.  For purposes
hereof, action to oppose any such application shall include,


 


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without limitation,
communications with any governmental authorities requesting that any such
application be limited or altered.  Also
for purposes hereof, commercially reasonable efforts shall include, without
limitation, commercially reasonable efforts, upon receiving notice of any such
action to oppose any application on the part of any Tenant Responsible Party,
to obtain injunctive relief, and, in the case of a subtenant, exercising
remedies 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 by
fire or other casualty (“Casualty”),
such that the damage cannot be repaired under the laws and regulations of the
federal, state and local governmental authorities having jurisdiction within
one year after the date of such damage (or in the case of damage occurring
during the last twelve (12) months of the applicable Term, such that repairs
cannot be completed before the 180th day before the end of the applicable
Term), then either party may elect to terminate this Lease by written notice to
the other party given within thirty (30) days after the date of such
damage.  If such a notice to terminate is
given, this Lease shall terminate as of the date of such notice.


 


5.1.2                        Repair Obligation.  If neither Landlord nor Tenant is entitled or
elects to terminate this Lease as provided in Subsection 5.1.1,
then Landlord promptly shall repair the same, but the repairs to be made by
Landlord under this Article shall not include, and Landlord shall not be
required to repair, any Casualty damage to Tenant’s personal property or trade
fixtures.  Landlord shall commence such
repair promptly and diligently prosecute the repair to completion.  Landlord shall not be obligated to carry
insurance of any kind on Tenant’s personal property or trade fixtures and
Landlord shall not be obligated to repair any damage thereto or replace the
same.  Tenant shall be responsible at its
own expense for the repair and replacement of Tenant’s personal property and
trade fixtures which Tenant elects to repair or replace.


 


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


 


Section 5.2                                      Eminent
Domain.


 


5.2.1                        Taking.  If the whole or a substantial part (as
hereinafter defined) of the Premises shall be taken or condemned by any
governmental or quasi governmental authority for any public or quasi public use
or purpose (including a sale thereof under threat of such a taking), then this
Lease shall terminate on the date title thereto vests in such governmental or
quasi governmental authority, and all Base Rent and Additional Rent payable hereunder
shall be


 


29





















 


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


 


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


 


ARTICLE VI

DEFAULTS


 


Section 6.1                                      Default.  The occurrence of any of the following shall
constitute an “Event of Default” by Tenant under
this Lease:


 


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


 


(b)                            if
Tenant shall fail to comply with its obligation to carry insurance hereunder
and such violation or failure shall continue for more than thirty (30) days
(or, if shorter, the period prior to cancellation of such insurance) after
written notice thereof


 


30





















 


from Landlord, which
notice shall specifically state that Tenant has only thirty (30) days (or, if
shorter, the period prior to cancellation of such insurance) to cure such
default; or


 


(c)                             if
Tenant shall fail to cause any mechanic’s or materialmen’s lien associated with
Tenant’s Alterations to be released of record (by payment, posting of a proper
bond, or otherwise) within thirty (30) days after written notice from Landlord
of Tenant’s failure to have caused such lien to be released


 


(d)                            if
Tenant shall violate or fail to perform any term, condition, covenant or
agreement to be performed or observed by Tenant under this Lease other than
those provided for in paragraphs (a), (b) or (c) above and such
violation or failure shall continue for more than thirty (30) days after
written notice thereof from Landlord plus such additional time, if any, as is
reasonably necessary to cure the default if it is of such a nature that it
cannot reasonably be cured in thirty (30) days, provided Tenant commences such
cure within such thirty (30) days and thereafter diligently proceeds to cure
such default; or


 


(e)                             if
Tenant shall admit in writing its inability to pay its debts generally as they
become due, commence any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Tenant or any of its debts under any law relating to bankruptcy,
insolvency, reorganization, liquidation or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
Tenant or for all or any substantial part of the Premises; or


 


(f)                               if
any case, proceeding or other action against Tenant shall be commenced seeking
to have an order for relief entered against Tenant as debtor, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Tenant or any of its debts under any law relating to bankruptcy,
insolvency, reorganization, liquidation or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
Tenant 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 relief
against Tenant or (ii) remains undismissed for a period of sixty (60)
days; or


 


(g)                            if
Tenant 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 so
and that failure to do so will constitute an Event of Default.


 


Section 6.2                                      Landlord’s
Right to Terminate.  Upon the
occurrence of an Event of Default, Landlord and the agents and servants of
Landlord may, in addition to and not in derogation of any remedies for any
preceding breach of covenant, immediately or at any time thereafter and without
demand or notice, at Landlord’s election, do any one or more of the
following:  (i) give Tenant notice
stating that this Lease is terminated, effective upon the giving of such notice
or upon a date stated in such notice, as Landlord may elect, in which event
this Lease shall be irrevocably extinguished and terminated as stated in such
notice 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’s
former estate, and expel Tenant and those claiming through or under Tenant, and
remove its and their effects, without being guilty of trespass, in which event
this Lease shall be irrevocably extinguished and terminated at the time of such
entry, or (iii) pursue any other rights or remedies permitted by law or
equity.  Any such termination of this
Lease shall be without prejudice to any remedies which might otherwise be used
for arrears of rent or prior breach of covenant, and in the event of such
termination Tenant shall remain liable under this Lease as hereinafter provided.  Landlord, without notice to Tenant, may store
Tenant’s effects and those of any person claiming through or under Tenant, at
the expense and risk of Tenant.


 


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


 


At any time after such termination, whether or not
Landlord shall have collected any such current damages, as liquidated final
damages 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 the
excess, if any, of the Base Rent, Additional Rent and other sums as
hereinbefore provided which would be payable hereunder from the date of such
demand assuming that, for the purposes of this paragraph, Taxes would be the
same as Taxes for the immediately preceding Tax Year for what would be the then
unexpired Term of this Lease if the same remained in effect, over the then fair
net rental value of the Premises for the same period, in each case as
discounted to present value, using as a discount rate the then-current yield on
US Treasury Bonds with a ten year maturity, plus 300 basis points.


 


In case of any default by Tenant, re entry, expiration
and dispossession by summary proceedings or otherwise, Landlord may (i) re-let
the applicable portion of the Premises or any part or parts thereof, either in
the name of Landlord or otherwise, for a term or terms which may at Landlord’s
option be equal to or less than or exceed the period which would otherwise have
constituted the balance of the applicable Term of this Lease and may grant
concessions or free rent to the extent that Landlord considers advisable and
necessary to re let the same and (ii) may make such reasonable
alterations, repairs and decorations in the applicable portion of the Premises
as Landlord considers advisable and necessary for the purpose of re-letting the
applicable portion of the Premises, and the costs of any and all of the
foregoing shall be Additional Rent payable by Tenant to Landlord.  No action of Landlord in accordance with the
foregoing shall operate or be construed to release or reduce Tenant’s liability
hereunder as aforesaid.  Tenant hereby
expressly waives any and all rights of redemption granted by or under


 


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any present or future
laws in the event of Tenant being evicted or dispossessed, or in the event of
Landlord obtaining possession of the Premises, by reason of the violation by
Tenant 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 in
proceedings for bankruptcy or insolvency by reason of the termination of this
Lease, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, the
damages 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                                      Effect
of Waivers of Default.  Any consent
or permission by either party to any act or omission which otherwise would be a
breach of any covenant or condition herein, or any waiver by either party of
the breach of any covenant or condition herein, shall not in any way be held or
construed (unless expressly so declared) to operate so as to impair the
continuing obligation of any covenant or condition herein, or otherwise, except
as to the specific instance, operate to permit similar acts or omissions.


 


The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease shall not be deemed a waiver of such violation nor
prevent 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 with
knowledge of the breach of any covenant of this Lease shall not be deemed to
have been a waiver of such breach by Landlord. 
No consent or waiver, express or implied, by either party to or of any
breach of any agreement of duty shall be construed as a waiver or consent to or
of any other breach of the same or any other agreement or duty.


 


Section 6.5                                      No
Accord and Satisfaction.  No
acceptance by Landlord of a lesser sum than the Base Rent, Additional Rent or
any other charge then due shall be deemed to be other than on account of the
earliest installment of such rent or charge due, unless Landlord elects by
notice to Tenant to credit such sum against the most recent installment due,
nor shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent or other charge be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord’s right to recover the balance of such installment or pursue any
other remedy in this Lease provided.


 


Section 6.6                                      Cumulative
Remedies.  All rights and remedies of
Landlord and Tenant set forth herein are in addition to all other rights and
remedies available at law or in equity. 
All rights and remedies available hereunder or at law or in equity are
expressly declared to be cumulative.  The
exercise by Landlord or Tenant of any such right or remedy shall not prevent
the concurrent exercise of any other right or remedy hereunder or subsequent
exercise of the same or any other right or remedy.  No delay in the enforcement or exercise of
any such right or remedy shall constitute a waiver of any default hereunder or
of any of Landlord’s or Tenant’s rights or remedies in connection
therewith.  Landlord or Tenant shall not
be deemed to have waived any default hereunder unless such waiver is set forth
in a written instrument.  If Landlord or
Tenant waives in writing any default, such waiver shall not be construed as a
waiver of any covenant, condition or agreement set forth in this Lease except
as to the specific circumstances described in such written waiver.


 


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Section 6.7            Landlord’s
Right to Self Help.  If Tenant
defaults in the making of any payment or in the doing of any act herein
required to be made or done by Tenant, then, unless Tenant shall have cured
such 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 such
act.  If Landlord elects to make such
payment or do such act, all costs and expenses incurred by Landlord, plus
interest thereon at the Default Rate, from the date paid by Landlord to the
date of payment thereof by Tenant, shall be immediately paid by Tenant to
Landlord as Additional Rent; provided however, that nothing contained herein
shall be construed as permitting Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law.


 


Section 6.8            Security
Deposit.


 


6.8.1       Delivery/Expiration.  Simultaneously with the execution of this
Lease, Tenant shall deliver to and deposit with Landlord the Letter of Credit
as a security deposit to be held in accordance with the provisions of this
Section.  Tenant shall keep the Letter of
Credit in force throughout the Term or until such later date as Tenant delivers
to Landlord the report described in Subsection 4.8.2.  Tenant shall deliver to Landlord a renewal
Letter of Credit no later than sixty (60) days prior to the expiration date of
the Letter of Credit, and, if Tenant fails to do so, without limiting any other
remedies that may be available to Landlord, Landlord may draw the entire amount
of the expiring Letter of Credit and hold the proceeds in Landlord’s name (but
identified as the security deposit under this Lease) in cash as a security
deposit, as hereinafter provided, but in that event, Tenant shall, upon demand,
provide Landlord with a new Letter of Credit meeting the requirements of this
Lease, 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 and
Issuer.  The Letter of Credit shall
be a clean, irrevocable, unconditional Letter of Credit, substantially in the
form 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, or
shall have issued a letter of credit or other credit facility that constitutes
the primary security for an outstanding indebtedness (which is otherwise
uninsured 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 its
successor) and “A” or better by Standard & Poor’s Ratings Service (or
its successor) (and is not on credit-watch or similar credit review with
negative implication), and has combined capital, surplus and undivided profits
of not less than $1,000,000,000.  In the
event the issuer of the Letter of Credit is downgraded so that it no longer
satisfies the rating requirements set forth in this Section 6.8,  Landlord shall have the right, to require
Tenant to procure a replacement Letter of Credit from an issuer that satisfies
the 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 existing
Letter of Credit for the new Letter of Credit so that Tenant is not required to
have two Letters of Credit outstanding simultaneously.


 


34





















 


6.8.3       Decrease
in Amount.  Upon the 3rd anniversary
of the Commencement Date, (the “Security Deposit Reduction
Date”) the amount of the security deposit held pursuant to this Section 6.8  shall be reduced to Three Hundred Eighty Two
Thousand Dollars ($382,000), provided that such decrease shall be contingent
upon Tenant not being in default under the Lease beyond all applicable cure and
grace periods as of the Security Deposit Reduction Date:


 


6.8.4       Draws
on Default.  If, and as soon as,
there shall exist an Event of Default (and on the occasion of each Event of
Default if there shall be more than one), Landlord may draw upon the Letter of
Credit at any time and from time to time in such amount or amounts as may be
necessary to cure the default(s) or to reimburse Landlord for any sum(s) which
Landlord may have spent to cure the default(s), and if Landlord has terminated
this Lease due to Tenant’s default(s), Landlord may also draw upon the Letter
of Credit in such amount (or all) as may be necessary to obtain any amounts
from time to time owed to Landlord by Tenant after termination.  In the case of each such drawing (except a
drawing occurring after termination or expiration of this Lease), Tenant shall,
on demand, cause the existing Letter of Credit to be amended to be once again
in the full amount required under this Lease or a new Letter of Credit, in the
amount so drawn, to be issued to Landlord. 
Notwithstanding the foregoing, Landlord shall have the right, at any
time when an Event of Default exists, to draw the entire Letter of Credit and
hold the proceeds thereof to be applied from time to time against damages and
losses under this Lease, but in that event, if Landlord does not terminate this
Lease as a result of such Event of Default and permits (without implying any
obligation to permit) Tenant to cure all outstanding Events of Default, so long
as no new Event of Default occurs within sixty (60) days thereafter, Tenant
shall be permitted to replace the cash security deposit with a Letter of
Credit, and upon receipt of the Letter of Credit, Landlord shall release the
cash security deposit to Tenant.  Any
amount drawn by Landlord shall not be deemed to fix or determine the amounts to
which Landlord is entitled under this Lease or otherwise, and Landlord shall be
entitled to pursue any remedies provided for in this Lease to the extent
Landlord is unable or elects, in its sole and absolute discretion, not to
obtain complete or partial satisfaction by drawing upon the Letter of
Credit.  If at the end of Term, no
default of Tenant shall exist, or if such a default shall exist, upon cure of
such default, the Letter of Credit, or any cash held in lieu thereof, shall be
returned to Tenant within ten (10) days thereafter.  Notwithstanding any provisions limiting
Landlord’s liability under this Lease, nothing shall prevent Tenant from
recovering any portion of the security deposit hereunder that was wrongfully
drawn or retained by Landlord in the event of the breach or default by Landlord
under any of the provisions hereof relating to the security deposit.  For purposes of this Subsection, an Event of
Default shall also include any default that is prevented or delayed from
ripening into an Event of Default due to Landlord’s inability to give any
required notice or the tolling of any grace or cure period caused by any stay
or injunction arising from the bankruptcy of Tenant.


 


6.8.5       Other
Terms.  Landlord shall not commingle
any cash constituting the security deposit with other funds of Landlord, and
Landlord shall pay reasonable interest on any cash security deposit to Tenant.  If Landlord conveys Landlord’s interest under
this Lease, the Letter of Credit (or cash in lieu thereof) shall be turned over
by Landlord to Landlord’s transferee, and, if so turned over, Tenant agrees to
look solely to such transferee for proper application thereof in accordance
with 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 or
assignment made of the Letter of Credit to a new landlord.  Upon the request of Landlord, from


 


35





















 


time to time, Tenant shall make arrangements satisfactory to Landlord
in its reasonable discretion for the transfer of the Letter of Credit, at
Landlord’s sole cost and expense, to any successor landlord or mortgagee of the
Property, and from any such mortgagee to Landlord or any successor
mortgagee.  Tenant shall not assign or
encumber or attempt to assign or encumber the Letter of Credit and neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance or attempted assignment or encumbrance.  Upon ten (10) Business Days prior
written notice from Landlord, Tenant shall cause the Letter of Credit to be
modified so that it names any Mortgagee as a co-beneficiary.


 


ARTICLE VII

HOLDING OVER


 


In the event that Tenant shall not immediately
surrender the applicable portion of the Premises on the date of the expiration
of the applicable portion of the Term or the sooner termination of the Term,
Landlord may forthwith re-enter and take possession of the applicable portion
of Premises.  Until Tenant shall have
been evicted from or quit the applicable portion of Premises, Tenant shall be a
tenant at sufferance, subject to all the terms, conditions, covenants and agreements
of this Lease, except that Tenant’s monthly Base Rent obligation shall be One
Hundred Fifty Percent (150%) of the monthly Base Rent for the applicable
portion of the Premises immediately prior to the expiration or termination of
the Term with respect thereto.


 


ARTICLE VIII

RIGHTS OF MORTGAGEE


 


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


 


Section 8.2            Lease
Subordinate Superior.  This Lease
shall be subject and subordinate to any Mortgage now or hereafter encumbering
the Property or any portion thereof and to all advances thereunder, provided
the Mortgagee shall have entered into a subordination, nondisturbance and
attornment agreement in favor of Tenant that is acceptable to Tenant in it’s
reasonable discretion and in substantially the form attached hereto as Exhibit E and made a part
hereof (or such other form as the Mortgagee may request that is not materially
more disadvantageous to Tenant) pursuant to which the Mortgagee agrees to
recognize Tenant’s rights under this Lease and that Tenant shall not be
disturbed in its possession of the Premises upon exercise of any rights under
the Mortgage (including, but not limited to, foreclosure or conveyance by a
deed in lieu of foreclosure), provided no Event of Default is then
outstanding.  In the event that the
Mortgagee or any purchaser at a foreclosure sale or otherwise (a “Successor”) shall succeed to the interest of Landlord, then
Tenant shall and does hereby agree to attorn to such Successor and to recognize
such Successor as its Landlord.  Any
Successor shall recognize Tenant’s rights and be bound by Landlord’s
obligations hereunder, except that a


 


36





















 


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


 


(a)         liable
for any act or omission of a prior landlord (including Landlord); or


 


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


 


(c)          bound
by any rent which Tenant might have paid more than 30 days in advance to any
prior landlord (including Landlord); or


 


(d)         bound
by any agreement or modification of this Lease made without the consent of the
Successor or any holder of the Mortgage pursuant to which it has become a
Successor; or


 


(e)          liable
for any fact or circumstance or condition to the extent existing or arising
prior to such Successor’s succession to the interest of Landlord under this
Lease (but such Successor shall be obligated to cure ongoing defaults of
Landlord); or


 


(f)          liable
for the obligations of Landlord under this Lease except during the period of
time, if any, during which such Successor is the owner of Landlord’s interest
in the Premises.


 


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


 


Notwithstanding the foregoing, a Mortgagee may at its
election subordinate its Mortgage to this Lease without the consent or approval
of Tenant.  Any such Mortgage to which
this Lease shall be subordinate may contain such terms, provisions and
conditions as the Mortgagee reasonably deems usual or customary.


 


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


 


Section 8.3            Mortgagee
Right to Cure.  If any act or
omission of Landlord would give Tenant the right, immediately or after a lapse
of a period of time, to cancel or terminate this Lease, or to claim a partial
or total eviction, Tenant shall not exercise such right:


 


37





















 


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


 


(b)         Until
a reasonable period of time for remedying the act or omission shall have
elapsed following the giving of Tenant’s notice and following the time during
which any such Mortgagee would be entitled under its Mortgage to remedy the act
or omission, so long as such Mortgagee notifies Tenant that it will use all
reasonable efforts to cure Landlord’s default no later than fifteen (15) days
after receiving such notice from Tenant, and thereafter diligently commences
the 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 liable
to Tenant for and Tenant hereby releases Landlord from, waives all claims
against Landlord arising out of and assumes the risk of, any injury, loss or
damage to any person or property in or about the Premises, the Building or the
Property by or from any cause whatsoever, including, without limitation, (a) acts
or omissions of persons occupying adjoining premises, (b) theft or
vandalism, (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 Common
Areas or the Premises; except, in any case, any such injury, loss or damage
arising from the negligence or willful misconduct of Landlord or any Landlord
Responsible Parties.  Notwithstanding the
foregoing, Landlord shall remain liable for compliance with its express
obligations hereunder.


 


Section 9.2            Sale
of Property.  It is agreed that
Landlord may at any time sell, assign or transfer its interest in and to the
Property and sell, assign or transfer its interest as landlord in and to this
Lease to the purchaser, assignee or transferee in connection with any such
sale, assignment or transfer.  In the
event of any transfer of Landlord’s interest in the Property, the transferor
shall be automatically relieved of any and all of Landlord’s obligations and
liabilities accruing from and after the date of such transfer; provided that
the transferee assumes all of Landlord’s obligations under this Lease.  Tenant hereby agrees to attorn to Landlord’s
assignee, transferee, or purchaser from and after the date of notice to Tenant
of such assignment, transfer or sale, in the same manner and with the same
force and effect as though this Lease were made in the first instance by and
between Tenant and the assignee, transferee or purchaser.


 


Section 9.3            No
Personal Liability.  In the event of
any default by Landlord hereunder, Tenant shall look only to Landlord’s
interest in the Property and rents therefrom and any available insurance
proceeds for the satisfaction of Tenant’s remedies, and no other property or
assets of Landlord or any trustee, partner, member, officer or director
thereof, disclosed or


 


38





















 


undisclosed, shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant’s remedies under or with respect to this Lease.


 


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


 


ARTICLE X

GENERAL PROVISIONS


 


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


 


Section 10.2          No
Partnership or Joint Venture. 
Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord and Tenant, or to create
any other relationship between the parties hereto other than that of landlord
and tenant.


 


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


 


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


 


39





















 


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


 


Section 10.5          Prevailing
Party.  Landlord and Tenant each
shall pay all reasonable costs and counsel and other fees incurred by the other
party in connection with the successful enforcement by other party from time to
time of any obligation under this Lease.


 


Section 10.6          Notice.  Except as otherwise expressly provided
herein, all notices given under this Lease shall be in writing and shall be
addressed 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

  



 


40





















 


	
  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 or
messenger or transmitted by facsimile and shall be deemed to have been
delivered if and when received by the addressee, except that any notice given
by facsimile, if not given on a Business Day, shall not be deemed to have been
delivered until the next Business Day. 
Any party may, by giving written notice to the other party, change the
addresses to which notices shall be given to such party.  A certified or registered mail receipt or
receipt from a generally recognized commercial delivery service evidencing
receipt by the addressee or refusal at the address of the addressee stated
above or as changed pursuant to this Section shall be deemed conclusive
evidence of receipt.  Counsel designated
for a party under this Lease may give notice on behalf of such party in the
manner provided herein, and any such notice shall be effective as if given by
the party.


 


Section 10.7          Notice
of Lease.  Each party hereto agrees,
promptly on the request of the other, to execute, acknowledge and deliver a
notice of this Lease in form suitable for filing or recording and complying
with applicable law, to provide necessary evidence of authority for filing or
recording, and to permit the requesting party to duly record or file the same
in the real property records for the location of the Premises.  In no event shall such document set forth the
rent or other charges payable by Tenant under this Lease; and any such document
shall expressly state that it is executed pursuant to the provisions contained
in this Lease, and is not intended to vary the terms and conditions of this
Lease.  At Landlord’s request, promptly
upon expiration of or earlier termination of the Term as to any portion of the
Premises.  Tenant shall execute,
acknowledge and deliver to Landlord a release with respect to such portion of
the Premises of any notice of leases filed or recorded, together with necessary
evidence of authority for recording or filing the same, and Tenant hereby
appoints Landlord Tenant’s attorney-in-fact, coupled with an interest, to
execute any such document if Tenant fails to respond to Landlord’s request to
do so within fifteen (15) days.  The
obligations of Tenant under this Section 10.8
shall survive the expiration or any earlier termination of the Term.


 


41





















 


Section 10.8          Partial
Invalidity.  If any provision of this
Lease or the application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.


 


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


 


Section 10.10       Bind
and Inure.  The provisions of this
Lease shall be binding upon, and shall inure to the benefit of, the parties
hereto and each of their respective successors and assigns, subject to the
provisions hereof restricting assignment or subletting by Tenant.


 


Section 10.11       Entire
Agreement.  This Lease contains and
embodies the entire agreement of the parties hereto with respect to Tenant’s
leasehold estate hereunder and supersedes all prior agreements, negotiations
and discussions between the parties hereto with respect thereto.  Any representation, inducement or agreement
with respect thereto that is not contained in this Lease shall not be of any
force or effect.  This Lease may not be
modified or changed in whole or in part in any manner other than by an
instrument in writing duly signed by both parties hereto.


 


Section 10.12       Applicable
Law.  This Lease shall be governed by
and construed in accordance with the laws of Massachusetts.


 


Section 10.13       Headings.  Headings are used herein for the convenience
of reference and shall not be considered when construing or interpreting this
Lease.


 


Section 10.14       Not
An Offer.  The submission of an
unsigned copy of this document to Tenant for Tenant’s consideration does not
constitute an offer to lease the Premises or an option to or for the
Premises.  This document shall become
effective and binding only upon the execution and delivery of this Lease by
both Landlord and Tenant.


 


Section 10.15       Time
Is of the Essence.  Time is of the
essence of each provision of this Lease.


 


Section 10.16       Multiple
Counterparts.  This Lease may be
executed in multiple counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same document.


 


42





















 


Section 10.17       Waiver
of Jury Trial.  Landlord and Tenant
hereby each waive trial by jury in any action, proceeding or counterclaim
brought by either against the other, on or in respect of any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant or Tenant’s use or occupancy of the Premises under this
Lease.


 


[signatures on next page]


 


43





















 


EXECUTED under seal as of the date first above
written.


 


	
   

  	
  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.

  
						



 


44





















 


GLOSSARY


 


DEFINITIONS


 


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


 


“Additional Rent”
is defined in Section 3.1.


 


“Affiliate
Sublease” 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 in
accordance 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.


 


“Business 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.


 


1





















 


“Event of Default”
is defined in Section 6.1.


 


“External Causes” is
defined 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 Responsible
Parties” 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 all
administrative or judicial orders or decrees and all permits, licenses,
approvals, and other entitlements issued by governmental entities, and rules of
common law, relating to or affecting the Building or the use, operation or
occupancy of the Premises, whether now existing or hereafter enacted.


 


“Lien”  means
any lien, mortgage, deed of trust, encumbrance, chattel mortgage, security
agreement, or order for the payment of money filed against the Premises or the
Property.


 


 “Mortgage” is defined in
Section 8.1.


 


“Mortgagee”
is defined in Section 8.1.


 


“MSDS” is
defined in Subsection 4.3.1.


 


“Obligated Party”
is defined in Section 4.5.


 


“Operating Expenses”
is defined in Section 3.4.


 


“Ordinary Capital
Improvement” means any capital improvement which (i) is
required to be made in order to cause the Land or its systems to comply with
Legal Requirements, or (ii) is a replacement or repair of existing
structures, systems, improvements or equipment necessary to keep the Common
Areas in good repair and working order, taking into account the intended life
of the relevant structure, system, improvement, or equipment.


 


“Permitted Uses”
is defined in Section 4.1.


 


2





















 


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


 


“Remedial
Work 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 defined
in Article 1.


 


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


 


“Term” is
defined in Article 1.


 


3





















 


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


 


4





















 


Exhibit A


 


Legal Description


 


A certain parcel of land off Winter Street, in
Waltham, 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 Registry
District of the Land Court with Certificate of Title No. 214324 in
Registration Book 1201, Page 174.


 


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


 


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


 


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


 


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


 


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


 


A-1





















 


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


 


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


 


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


 


A-2





















 


Exhibit B


 


Site Plan


 


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


 


B-1





















 


Exhibit C


 


Exclusions from Operating
Expenses


 


	
  (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

  



 


C-1





















 


	
   

  	
   

  	
  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.

  



 


C-2





















 


Exhibit D


 


Fixtures, Furnishings and
Equipment 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





















 


Exhibit E


 


Form of SNDA


 


SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT


 


THIS SUBORDINATION, NON-DISTURBANCE
AND 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 certain
Lease 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, Secured
Party is the holder of                                             
pursuant to that certain                            
dated as of                       ,
20    (the “Superior Agreement”)
between Landlord and Secured Party; and


 


WHEREAS, Secured
Party and Tenant desire to evidence their understanding with respect to the
Superior Agreement and the Lease as hereinafter provided;


 


NOW THEREFORE, in
consideration of the mutual agreements hereinafter set forth, the parties
hereto hereby agree as follows:


 


Section 1.  Nondisturbance.  So long as Tenant is not in default (beyond
any period given Tenant under the Lease to cure such default) in the payment of
rent or other sums payable by Tenant under the Lease or in the performance of
any of the terms, covenants or conditions of the Lease on Tenant’s part to be
performed, then possession and right of use of the Premises and Tenant’s rights
and privileges under the Lease, or any extensions or renewals thereof which may
be effected in accordance with any option therefor in the Lease, shall not be
diminished or interfered with by Secured Party; Secured Party will not
disaffirm the Lease; Secured Party will affirmatively recognize the validity of
the Lease and Secured Party will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant’s interest under the
Lease.  Notwithstanding anything to the
contrary in the Superior Agreement, all insurance and condemnation proceeds or
awards paid or payable with respect to the Premises and received by Secured
Party or Landlord shall be made available by Secured Party to be held, applied
and paid in the manner set forth in the Lease.


 


Section 2.  Attornment.


 


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


 


E-1





















 


manner, and the New Owner
succeeds to the interest of Landlord under the Lease, Tenant shall be bound to
the New Owner under all of the terms, covenants and conditions of the Lease for
the balance of the term thereof remaining and any extensions or renewals
thereof which may be effected in accordance with any option therefor in the
Lease, with the same force and effect as if the New Owner were Landlord under
the Lease, and Tenant does hereby attorn to the New Owner as its landlord, said
attornment to be effective and self-operative without the execution of any
further instruments on the part of either party hereto immediately upon the New
Owner succeeding to the interest of Landlord under the Lease; provided,
however, that Tenant shall be under no obligation to pay to the New Owner any
rent or other sum payable pursuant to the Lease until Tenant receives written
notice from the New Owner that it has succeeded to the interest of Landlord
under the Lease.  The respective rights
and obligations of Tenant and the New Owner upon such attornment, to the extent
of the then remaining balance of the term of the Lease and any such extensions
and renewals, shall be and are the same as now set forth therein; it being the
intention of the parties hereto for this purpose to incorporate the Lease in
this Agreement by reference with the same force and effect as if set forth at
length herein.


 


2.2.  Limitation of Duties of New Owner.  If the New Owner shall succeed to the
interest of Landlord under the Lease, the New Owner shall be bound to Tenant
under 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 the
Lease, have the same remedies against the New Owner for the breach of any
agreement contained in the Lease that Tenant might have had under the Lease
against Landlord if the New Owner had not succeeded to the interest of
Landlord; provided, however, that the New Owner shall not be (i) liable
for any damages associated with any act or omission of any prior landlord
(including Landlord), but the aforesaid proviso shall not affect Tenant’s
rights under the Lease or Landlord’s obligations to cure defaults thereunder;
or (ii) subject to any offsets or defenses which Tenant might have against
any prior landlord (including Landlord); or (iii) bound by any rent or
additional rent which Tenant might have paid for more than the then current
rental period to any prior landlord (including Landlord); or (iv) bound by
any amendment or modification of the Lease made without the New Owner’s prior
written consent, which shall not be unreasonably withheld; or (v) bound by
or 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 of
warranties or representations of any nature under the Lease or otherwise
including without limitation any warranties or representations respecting use,
compliance with zoning, landlord’s title, landlord’s authority, habitability
and/or fitness for any purpose, or possession.


 


2.3.  Landlord’s Trustee.  In the event that any court of competent jurisdiction
determines, in connection with any bankruptcy, insolvency, liquidation,
dissolution, receivership or other similar proceeding affecting Landlord, that
any amounts paid by Tenant to Secured Party under Section 2.2 hereof
should have been paid by Tenant to Landlord or Landlord’s trustee, receiver,
liquidator or other person exercising similar powers in connection with any
such proceeding (any of the foregoing being referred to as a “Trustee”) and
orders Tenant to pay such amounts to Landlord or the Trustee, Secured Party
shall promptly pay such amount, together with any interest or costs imposed by
such court, on behalf of Tenant.  Secured
Party 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 by
Tenant to Secured Party under Section 2.2 hereof, which expenses shall
include reasonable attorney’s fees.


 


E-2





















 


Section 3.  Subordination of Lease.


 


3.1.  Subordination.  Tenant covenants, stipulates and agrees that
the Lease is hereby, and shall, at all times that the Secured Party, its
successors and assigns are bound by this Agreement, continue to be,
subordinated and made secondary and inferior in each and every respect to the
Superior 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 and
entitled to the benefits of the terms of this Agreement.


 


3.2.  Subordination Conditioned Upon
Non-Disturbance.  Notwithstanding
any other provision of this Agreement, however, the subordination created
and/or evidenced by this Agreement (the “Subordination”) is conditioned upon
this Agreement being the valid and binding obligation of the Secured Party, its
successors and assigns, including but not limited to any receiver, conservator,
trustee in bankruptcy, dissolution or liquidation, the Federal Deposit
Insurance Corporation or any other state or federal governmental agency,
corporation or instrumentality exercising similar functions or powers.  If for any reason this Agreement shall cease
to be binding on the Secured Party or its successors or assigns for any reason
whatsoever, then the Subordination, and this Agreement in its entirety, shall
be void from its inception as though the Agreement had never been executed and
delivered.  This Section 3.2 is
specifically intended to render the Agreement void ab initio under circumstances including, but not limited to,
rejection of the Agreement in bankruptcy, liquidation, reorganization, or other
similar proceedings; invalidity of the Agreement under the doctrine enunciated
in D’Oench, Duhme & Co. v. Federal
Deposit Insurance Corp., 315 U.S. 447 (1942) and subsequent judicial
decisions, or similar doctrines under the judicial decisions or statutes of any
state; or repudiation, unenforceability or invalidity of the Agreement under
Sections 212 or 217 of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, 12 U.S.C. Sections 1821 or 1823(e), or any similar
federal or state statute, or any other statutory power of avoidance, whether
state or federal.


 


Section 4. 
Notice and Right to Cure.  Tenant agrees to provide Secured Party with a
copy of each notice of default under the Lease that can lead to termination of
the Lease or abatement of rent, at the same time as Tenant provides Landlord
with 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 cure
such default, and Tenant shall not terminate the Lease or abate the rent
payable thereunder by reason of such default until it has afforded Secured
Party the same concurrent opportunity to cure as afforded to Landlord under the
Lease.  If Tenant fails to give
contemporaneous notice to Landlord as contemplated above, the aforesaid cure
period that Landlord would otherwise have had shall not begin to accrue until
such notice of default is given.  It is
specifically agreed that Secured Party shall have no obligation to cure any
default under the Lease.


 


Section 5.  Miscellaneous.


 


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


 


E-3





















 


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


 


5.2.  Entire Agreement.  This Agreement sets forth the entire
understanding between the parties concerning the subject matter of this
Agreement and incorporates all prior negotiations and understandings.  There are no covenants, promises, agreements,
conditions or understandings, either oral or written, between the parties
relating to the subject matter of this Agreement other than those set forth
herein.  No representation or warranty
has been made by or on behalf of either party to this Agreement (or any
officer, director, employee or agent thereof) to induce the other party to
enter into this Agreement or to abide by or consummate any transactions
contemplated by any terms of this Agreement, except representations and
warranties, if any, expressly set forth herein. 
No alteration, amendment, change or addition to this Agreement shall be
binding upon either party unless in writing and signed by the party to be
charged.


 


5.3.  Successors.  Each and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.


 


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


 


If to
Tenant:


 


 


 


If to
Secured Party:


 


 


 


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


 


5.5.  Captions.  The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience.  They do not define, limit, construe or
describe 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 any
person, firm or corporation, or


 


E-4





















 


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


 


5.7.  Governing Law.  This Agreement shall be governed by and
construed 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 in
counterparts, each of which when executed by the parties hereto shall be deemed
an original and all of which together shall be deemed the same Agreement.


 


(The remainder of this page is
intentionally left blank.)


 


E-5





















 


The parties hereto have caused this Agreement to be
executed 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





















 


	
  Commonwealth of
  Massachusetts

  	
  )

  
	
   

  	
  ) ss.

  
	
  County of

  	
  )

  



 


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


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  My Commission
  Expires:

  	
   

  



 


	
  Commonwealth of
  Massachusetts

  	
  )

  
	
   

  	
  ) ss.

  
	
  County of

  	
  )

  



 


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


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  My Commission
  Expires:

  	
   

  



 


E-7





















 


Exhibit F


 


(NAME OF BANK)


IRREVOCABLE STANDBY
LETTER 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 Letter
of Credit No.                 
in the amount of                               
Dollars ($          ).


 


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


 


Funds under this Letter of Credit are available to you
against 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 draws
hereunder that this Letter of Credit be presented to us.


 


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


 


2.             A
statement (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 be
automatically extended, without notice of amendment, for successive one (1) year
periods, unless we give you written notice of our election not to extend the
expiration date (“Notice of Non-Renewal”) not later than sixty (60) days prior
to the date this Letter of Credit is scheduled to expire.  A Notice of Non-Renewal shall be effective
when actually delivered by certified mail, return receipt requested, or courier
service to your address set forth above or such other address and/or person as
you shall specify to us for such purpose by written notice received by us prior
to the time the Notice of Non-Renewal is sent.


 


This Letter of Credit is transferable in its entirety
through us and successive transfers shall be permitted.  We will honor complying drafts presented
hereunder by a transferee (and cease to honor drafts presented hereunder by
you) 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 with
the terms of this Letter of Credit.


 


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


 


 


	
   

  	
   

  
	
  Authorized Signature

  



 


F-2





















 


EXHIBIT 1


 


[TRANSFER FORM - to
be provided by Bank]


 


F-3





















 


ANNEX 1 to Letter of
Credit


 


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





















 


ANNEX 2 to Letter of
Credit


 


FORM OF CERTIFICATE FOR DRAWING ON LETTER OF
CREDIT


 


 


[DATE]


 


 


[Name of Address of Bank]


 


 


Re:  irrevocable
Letter of Credit No.               


 


Ladies and Gentlemen:


 


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


 


 


	
   

  	
   

  
	
  Authorized Signatory

  



 


F-5





















 


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 (shown
on Exhibit B) serving the
vivarium in the Premises


 


G-1