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Exhibit 10.57
SIXTH AMENDMENT TO LEASE
THIS SIXTH AMENDMENT TO LEASE ("Amendment") is made as of the 29th day
of January, 1999 by and between MASSACHUSETTS INSTITUTE OF TECHNOLOGY, a
Massachusetts educational corporation with an address of 000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Lessor"), and MILLENNIUM PHARMACEUTICALS, INC.,
a Delaware corporation with an address of 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Lessee").
Reference is made to a lease dated August 26, 1993 by and between
Lessor and Lessee, as amended by amendments dated as of May 18, 1994, January 9,
1996, June 12, 1996, March 1, 1997 and June 19, 1997 (collectively, the
"Lease"), concerning certain premises located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, as more particularly described in the Lease. A Notice of Lease
was filed with the Middlesex Southern Registry District of the Land Court on
March 2, 1994 as Document No. 939638, and noted on Certificate of Title No.
89497, as amended. Capitalized terms used in this Amendment which are defined in
the Lease and not otherwise defined herein shall have the same meaning in this
Amendment as in the Lease.
Lessee desires (i) to lease approximately 75,450 square feet of
rentable area on the first and second floors of the Building as shown on the
plans attached hereto, collectively, as Exhibit I, currently occupied by
Lifeline Systems, Inc. ("Lifeline") (the "Additional Expansion Premises") and
(ii) to expand the Basement Space to include approximately 8,861 additional
square feet of rentable area approximately in the location shown on the plan
attached hereto as Exhibit II. Lessor is willing so to lease to Lessee the space
on the first and second floors of the Building and such additional Basement
Space, on the terms and conditions set forth in this Amendment.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and legal sufficiency
of which are hereby acknowledged, Lessor and Lessee hereby agree to amend the
Lease as follows:
1. Definitions. For purposes of the Lease, the following terms shall
have the meaning set forth opposite them:
"Area A" shall mean the portion of the Additional Expansion
Premises marked as "Area A" on Exhibit I, containing 51,353
square feet of rentable area.
"Area B" shall mean the portion of the Additional Expansion
Premises marked as "Area B" on Exhibit I, containing 24,097
square feet of rentable area.
"Area A Commencement Date" shall mean the date on which Lessor
delivers Area A to Lessee, free of occupants but otherwise in
the condition in which such space is redelivered to Lessor by
Lifeline, which date shall be
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fifteen (15) days after Lifeline vacates Area A and delivers
possession thereof to Lessor.
"Area B Commencement Date" shall mean the date on which Lessor
delivers Area B to Lessee, free of occupants but otherwise in
the condition in which such space is redelivered to Lessor by
Lifeline, which date shall be fifteen (15) days after Lifeline
vacates Area B and delivers possession thereof to Lessor.
"Basement Space" shall mean, from and after the Second
Additional Basement Space Commencement Date, collectively the
Basement Space, as that term was amended and defined in the
Lease prior to this Amendment, together with the Second
Additional Basement Space.
"Office Tenant Improvement Costs" shall mean the actual
out-of-pocket costs and expenses paid by Lessee to third
parties in connection with the construction of alterations or
improvements to the Additional Expansion Premises to prepare
the same for office use by Lessee, which alterations and
improvements are intended to become part of the Building and
are not to be removed by Lessee. As an example but not in
limitation of the foregoing, there shall be excluded from
Office Tenant Improvement Costs (a) all costs and expenses
paid in connection with the construction of alterations or
improvements to the Additional Expansion Premises to prepare
the same for any use by Lessee other than office use
(including, without limitation, laboratory, research or
manufacturing use), (b) all costs and expenses paid in
connection with the Second Additional Basement Space, and (c)
all furniture costs. For purposes of the Lease, in no event
shall Office Tenant Improvement Costs exceed $17.50 per square
foot of rentable area of the Additional Expansion Premises
leased by Lessee hereunder.
"Second Additional Basement Space" shall mean that portion of
the basement floor of the Building containing approximately
8,861 square feet of rentable area shown cross-hatched on the
plan attached hereto as Exhibit II.
"Second Additional Basement Space Commencement Date" shall
mean the earlier of (i) the date on which the Second
Additional Basement Space is ready for occupancy by Lessee, or
(ii) February 15, 1999.
"Unamortized Office Tenant Improvement Amount" shall mean, as
of the date such determination is being made, the remaining
unamortized portion of Lessee's Office Tenant Improvement
Costs, amortized on a straight line basis over a period of
nine (9) years commencing on the Area A Commencement Date.
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2. Delivery of Additional Expansion Premises to Lessee.
(a) Effective as of the Area A Commencement Date, Area A shall
be deemed to be part of the Premises for all purposes of the
Lease, without the necessity of any further written instrument
or other action by the parties, and all rights and obligations
of the parties under the Lease with respect to the Premises
shall apply equally to Area A. It is the current expectation
of Lessor and Lessee that the Area A Commencement Date will
occur between February 1, 1999 and March 1, 1999. Lessee
hereby acknowledges that Lifeline has given notice that it
intends to vacate Area A on or about January 31, 1999, so the
anticipated Area A Commencement Date is February 15, 1999.
From and after the date on which Lifeline vacates Area A, and
while Lifeline is removing its property therefrom, until the
Area A Commencement Date, Lessee shall have the right to enter
upon Area A to commence preparations for its occupancy
thereof, which entry shall be subject to all of the terms of
the Lease other than the obligation to pay Rent on account of
Area A. Lessee hereby agrees that any delay in the
construction of the temporary demising partition separating
Area A from Area B will not delay the Area A Commencement Date
hereunder. In the event that, for any reason whatsoever, the
Area A Commencement Date has not occurred by March 31, 1999,
Lessee shall have the right to terminate its obligation to
lease the Additional Expansion Premises by giving written
notice to Lessor, which termination shall be effective not
less than ten (10) days after the date on which such notice is
given to Lessor unless, prior to the expiration of such 10-day
period, the Area A Commencement Date occurs. Except as
otherwise set forth in clause (Y) below, Lessee's right so to
terminate its obligation to lease the Additional Expansion
Premises shall be Lessee's sole remedy hereunder or at law or
in equity for any such delay in the occurrence of the Area A
Commencement Date, and such termination shall not effect
Lessee's obligations under the Lease or Lessee's obligations
hereunder relating to the Second Additional Basement Space.
(b) Effective as of the Area B Commencement Date, Area B shall
be deemed to be part of the Premises for all purposes of the
Lease, without the necessity of any further written instrument
or other action by the parties, and all rights and obligations
of the parties under the Lease with respect to the Premises
shall apply equally to Area B. It is the current expectation
of Lessor and Lessee that the Area B Commencement Date will
occur between July 1, 1999 and August 1, 1999. In the
"Lifeline Termination Agreement" (defined below), Lessor has
required Lifeline to use reasonable efforts to give Lessor and
Lessee seven (7) days' advance notice of the date on which it
will vacate Area B. From and after the date on which Lifeline
vacates Area B, and while Lifeline is removing its property
therefrom, until the Area B Commencement Date, Lessee shall
have the right to enter upon Area B to commence preparations
for its occupancy thereof, which entry shall be subject to all
of the terms of the Lease other than the obligation to pay
Rent on account of Area B. In the event that, for any reason
whatsoever, the
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Area B Commencement Date has not occurred by August 31, 1999,
Lessee shall have the right to terminate its obligation to
lease Area B only by giving written notice to Lessor, which
termination shall be effective not less than ten (10) days
after the date on which such notice is given to Lessor unless,
prior to the expiration of such 10-day period, the Area B
Commencement Date occurs. Except as otherwise set forth in
clause (Z) below, Lessee's right so to terminate its
obligation to lease Area B shall be Lessee's sole remedy
hereunder or at law or in equity for any such delay in the
occurrence of the Area B Commencement Date, and such
termination shall not effect Lessee's obligations under the
Lease or Lessee's obligations hereunder with respect to Area A
or the Second Additional Basement Space.
(c) Lessee acknowledges that (i) the Additional Expansion
Premises are currently occupied by Lifeline pursuant to a
lease between Lessor, as lessor, and Lifeline, as lessee (the
"Lifeline Lease"), and (ii) contemporaneously with the
execution and delivery of this Amendment, Lessor and Lifeline
shall execute and deliver an agreement (the "Lifeline
Termination Agreement") terminating the Lifeline Lease in
phases consistent with the delivery of the Additional
Expansion Premises to Lessee as provided in this Amendment.
Lessor hereby represents to Lessee that the Lifeline
Termination Agreement provides, in part, that:
(A) Lessor may, at any time after
March 31, 1999, terminate such agreement in its
entirety and maintain the Lifeline Lease in full
force and effect if Area A is not surrendered and
redelivered to Lessor in accordance with the
provisions of the Lifeline Termination Agreement by
March 31, 1999;
(B) Lifeline is required to pay the
sum of $7,500.00 per day to Lessor for each day after
March 1 until the earlier of (1) the day on which
Lifeline surrenders and redelivers Area A to Lessor
in accordance with the provisions of the Lifeline
Termination Agreement, or (2) the effective date of
the termination of the Lifeline Termination Agreement
as therein provided;
(C) Lessor may, at any time after
August 31, 1999, terminate such agreement as to Area
B if Area B is not surrendered and redelivered to
Lessor in accordance with the provisions of the
Lifeline Termination Agreement by August 31, 1999;
and
(D) Lifeline is required to pay the
sum of $7,500.00 per day to Lessor for each day after
August 1 until the earlier of (1) the day on which
Lifeline surrenders and redelivers Area B to Lessor
in accordance with the provisions of the Lifeline
Termination Agreement, or (2) the effective date of
the termination of the Lifeline Termination Agreement
as to Area B as therein provided.
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Lessor hereby agrees with Lessee that:
(X) Lessor shall not exercise either of the
termination options under the Lifeline Termination
Agreement as described in clauses (A) and (C) above
within one-hundred twenty (120) days after March 31,
1999 or August 31, 1999 (as the case may be) without
the prior written consent of Lessee; provided,
however, that after the expiration of such 120-day
period from each of such relevant dates Lessor may
(but shall not be required to) exercise either of
such termination options without the necessity of
obtaining Lessee's prior written consent;
(Y) Lessor shall make diligent efforts to
collect from Lifeline the amounts described in the
foregoing clause (B) when due and payable by Lifeline
to Lessor (if any), and shall pay over to Lessee,
promptly upon Lessor's receipt thereof, all amounts
so received by Lessor from Lifeline on account of
Lifeline's delay beyond March 1, 1999 in so
surrendering and redelivering Area A to Lessor; and
(Z) Lessor shall make diligent efforts to
collect from Lifeline the amounts described in the
foregoing clause (D) when due and payable by Lifeline
to Lessor (if any), and shall pay over to Lessee,
promptly upon Lessor's receipt thereof, all amounts
so received by Lessor from Lifeline on account of
Lifeline's delay beyond August 1, 1999 in so
surrendering and redelivering Area B to Lessor.
(d) Effective as of the Second Additional Basement Space
Commencement Date, the definition of "Basement Space" set
forth in the Lease shall be deemed to be amended to include
the Second Additional Basement Space. It is the mutual
intention of Lessee and Lessor that the Second Additional
Basement Space shall be deemed to be part of both (i) the
Basement Space, and (ii) the Premises, for all purposes of the
Lease except as otherwise expressly provided in this
Amendment, and all rights and obligations of the parties
hereunder with respect to the Basement Space and the Premises
shall apply equally to the Second Additional Basement Space.
Notwithstanding the foregoing, (i) the area of the Second
Additional Basement Space shall not be included (a) in the
rentable area of the Premises for determining "Lessee's Share"
pursuant to Section 5.1 of the Lease, or (b) in determining
the number of parking spaces to which Lessee is entitled under
Section 9.0 of the Lease; (ii) the Second Additional Basement
Space shall be included in the Premises for purposes of
Section 13.0 of the Lease; and (iii) the Second Additional
Basement Space shall not be included in the Premises for
purposes of the "Work Letter" attached to the Lease as Exhibit
C.
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(e) Notwithstanding the foregoing, upon the request of either
party the other party shall promptly execute and deliver a
written instrument setting forth the actual Area A
Commencement Date, the actual Area B Commencement Date and the
actual Second Additional Basement Space Commencement Date
after such dates have occurred.
(f) During the time period between the Area A Commencement
Date and the Area B Commencement Date, Lessee shall provide
to Lifeline access to and use of the loading dock located
within the Premises in common with Lessee.
(g) In connection with the expiration or termination of the
Lease, (i) Lessee shall not be required to remove from the
Additional Expansion Premises customary office improvements
made thereto by Lifeline or by Lessee, and (ii) Lessee shall
not be required to remove any animal storage facility
improvements made by Lessee in or to the Second Additional
Basement Space.
3. Term.
(a) Notwithstanding anything to the contrary contained in the
Lease, the Term of the Lease with respect to Area A shall
commence on the Area A Commencement Date, and shall expire on
the last day of the Term as provided in the Lease, unless the
Term is sooner terminated as provided in the Lease.
(b) Notwithstanding anything to the contrary contained in the
Lease, the Term of the Lease with respect to Area B shall
commence on the Area B Commencement Date, and shall expire on
the last day of the Term as provided in the Lease, unless the
Term is sooner terminated as provided in the Lease.
(c) Notwithstanding anything to the contrary contained in the
Lease, the Term of the Lease with respect to the Second
Additional Basement Space shall commence on the Second
Additional Basement Space Commencement Date, and shall expire
on the last day of the Term as provided in the Lease, unless
the Term is sooner terminated as provided in the Lease.
(d) Notwithstanding anything to the contrary contained in the
Lease or in this Amendment, (1) Lessee may not exercise any
Extension Option with respect to a floor of the Additional
Expansion Premises which the named Lessee (or a permitted
sublessee or assignee of the type described in Section 8(j) of
the Lease) is not itself actually occupying in full as of both
the date on which Lessee purports to exercise an Extension
Option and the first day of the corresponding Extension Term,
and (2) Lessee may not exercise any Extension Option with
respect to the Additional Expansion Premises unless Lessee
simultaneously exercises, in accordance with the provisions of
the
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Lease, the same Extension Option with respect to all other
portions of the Premises.
4. Rent.
(a) Lessee shall pay Basic Rent on account of the Additional
Expansion Premises as follows:
(i) for each Lease Year in the Initial Term,
commencing on the Area A Commencement Date (with
respect to Area A) and on the Area B Commencement
Date (with respect to Area B), $19.65 per square foot
of rentable area;
(ii) for each Lease Year in the first Extension Term
(if Lessee exercises the first Extension Option in
accordance with the requirements of the Lease), an
amount equal to one hundred percent (100%) of the
Fair Market Rent thereof less the Unamortized Office
Tenant Improvements Amount, but in no event will
Basic Rent be less than $19.65 per square foot of
rentable area; and
(iii) for each Lease Year in the second Extension
Term (if Lessee exercises the second Extension Option
in accordance with the requirements of the Lease), an
amount equal to one hundred percent (100%) of the
Fair Market Rent thereof.
Such amount shall be paid in equal monthly installments in the
manner and at the times provided in the Lease for the payment
of Basic Rent.
(b) Lessee shall pay Basement Rent on account of the Second
Additional Basement Space as follows:
(i) for each Lease Year in the Initial Term,
commencing on the Second Additional Basement Space
Commencement Date, $16.00 per square foot of rentable
area; and
(ii) for each Lease Year in an Extension Term (if
Lessee exercises an Extension Option in accordance
with the requirements of the Lease), an amount equal
to (A) for each Lease Year in the first Extension
Term, $16.00 per square foot of rentable area
increased by three (3%) percent per Lease Year in the
Initial Term, and (B) for each Lease Year in the
second Extension Term, the Basement Rent payable per
Lease Year during the first Extension Term increased
by three (3%) percent per Lease Year in the first
Extension Term.
Such amount shall be paid in equal monthly installments in the
same manner and at the same times as provided in the Lease
with respect to Basic Rent.
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In addition to Basement Rent, Lessee shall pay to Lessor, as
Additional Rent, in connection with the Second Additional
Basement Space, all other fees and charges provided for (i) in
the Lease with respect to the Basement Space or Additional
Basement Space, or (ii) in this Amendment.
5. Lessee's Share. From and after the Area A Commencement Date (and
assuming that the Area B Commencement Date has not then occurred), Lessee's
Share shall be 66.54%. From and after the Area B Commencement Date (and assuming
that the Area A Commencement Date has occurred previously), Lessee's Share shall
be 79.78%.
6. Electricity. Electrical consumption in the Additional Expansion
Premises shall be measured by a separate electric meter. Lessee shall be solely
responsible for timely making all payments for electrical service directly to
the utility company providing electrical service to the Building. Lessor shall
have no obligation with respect to any such payment.
7. Permitted Use.
(a) The Additional Expansion Premises shall be used only for
the Permitted Uses applicable to the portions of the Premises
other than the Basement Space as set forth in the Lease,
(b) The Second Additional Basement Space shall be used solely
for an animal storage facility and for general storage by
Lessee, and for no other purpose. Lessor makes no
representation or warranty of any type concerning the
permissibility of such use under applicable Legal Requirements
or the suitability of the Second Additional Basement Space for
such use. In addition to, and not in limitation of, the
provisions of the Lease relating to Lessee's use of the
Premises, Lessee hereby agrees to comply with all Legal
Requirements applicable to Lessee's use of the Second
Additional Basement Space and not to permit the emission of
any objectionable noise or odors from the Second Additional
Basement Space. Lessee shall be solely responsible, at its
sole cost and expense, for making such alterations, additions
and improvements to any animal storage facilities in the
Basement Space as may from time to time (i) be required to
maintain such facilities and the use thereof in compliance
with all Legal Requirements then applicable, or (ii) be
reasonably required by Lessor in order to prevent annoyance of
other tenants in the Building or disruption of their normal
business operations by reason of the operation of an animal
storage facility in the Basement Space.
8. Delivery of the Second Additional Basement Space. Lessee
acknowledges that a portion of the Second Additional Basement Space is currently
leased to Pathology Services, Inc. ("Pathology"), another tenant of the
Building. In order to induce Pathology to relinquish its right to such space,
Lessee has agreed to assume the following obligations to Pathology:
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(i) Lessee shall, at its sole cost and expense, pay for and
perform all work required to relocate Pathology's space in the
basement of the Building to substitute space identified by
Pathology and Lessor, including, without limitation: (A)
cleaning up and demolishing the shelving and other alterations
constructed or installed by or on behalf of Pathology in the
basement space which it currently occupies, (B) designing (or
paying for the design by Pathology) of the layout of such
substitute basement space, (C) installing demising partitions
to create the perimeter of the substitute basement space to
which Pathology will relocate, and installing all doors and
lighting in such substitute basement space as shown on Exhibit
III attached hereto, (D) installing in such substitute
basement space shelving of the same linear and square footage
as Pathology presently has in the basement space which it
currently occupies, as measured by Pathology's architect, (E)
patching the basement floor in such substitute basement space
to be occupied by Pathology and eliminating trip hazards, and
(F) moving (or reimbursing Pathology for the reasonable and
actual costs incurred by Pathology in moving) Pathology's
property from the basement space which it currently occupies
to such substitute basement space;
(ii) Lessee shall surrender three (3) On-Site Parking Spaces
to Lessor, one by October 31, 1998 and the other two by
December 31, 1998, which parking spaces shall then be leased
by Lessor to Pathology; and
(iii) Lessee shall pay the sum of $45,000.00 in cash to
Pathology within seven (7) days after the delivery to
Pathology of the completed substitute basement space to be
occupied by Pathology, and provide to Lessor evidence of such
payment. Lessor hereby acknowledges that such payment has been
made to Pathology.
Lessee acknowledges that Lessor has no obligation with respect
to any work to be performed in connection with the demising and finishing of any
such substitute basement space, or the demolition of the basement space
currently occupied by any other tenant of the Building, or the relocation of any
other tenant's property from the basement space which it currently occupies to
any such substitute basement space, or to pay any amount to any tenant of the
Building in connection with any of the foregoing. Lessee shall save Lessor
harmless and indemnified from any loss, cost and expense (including, without
limitation, reasonable attorneys' fees) arising out of or relating to (A) any
work performed by or on behalf of Lessee in the basement of the Building or
elsewhere in the Building or on the Land in connection with the relocation of
other tenants to substitute basement space, (B) any work performed by or on
behalf of Lessee in connection with the construction of the Second Additional
Basement Space, or (C) any claim by any other tenant of the Building alleging
that Lessee failed to perform fully all of its obligations described in this
Section.
9. Right of First Offer. In the event that at any time during the Term
Lessor commences to market for lease any space in the Building which is not then
part of the
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Premises, then, provided that (i) an Event of Default is not then existing, and
(ii) the Lessee named herein (or a permitted sublessee or assignee of the type
described in Section 8(j) of the Lease) is then actually occupying the entire
Premises, Lessee shall have the right (the "Right of First Offer") to lease the
portion of the Building set forth in Lessor's notice for a term commencing on
the date on which Lessor delivers possession thereof to Lessee, and ending on
the last day of the Term, by giving written notice of exercise to Lessor within
twenty (20) days of receipt of Lessor's notice.
If Lessee exercises its right under this Section 9 to lease
such space, then such space shall become subject to all of the terms of this
Lease except that Basic Rent therefor shall be due and payable in an amount
equal to the Fair Market Rent thereof as of the date on which Lessor reasonably
anticipates delivering possession of the space to Lessee. Fair Market Rent shall
be determined in the manner provided in Section 3.3 of the Lease. In the event
that Lessee, for any reason whatsoever, fails to give such notice to Lessor
within such 20-day period, Lessee shall be deemed to have waived its rights
under this Section with respect to the space described in Lessor's notice for
the remainder of the Term.
Any space which is subjected to the terms of this Lease
pursuant to this Section 9 shall be delivered broom clean but otherwise in the
condition in which it is redelivered to Lessor. Lessor shall have no obligation
to perform any preparatory work in such space in anticipation of Lessee's use
thereof or to provide any allowance to Lessee towards the preparation thereof.
All work performed by Lessee in such space shall be subject to the provisions of
the Lease, including, without limitation, Section 11.0(f). Basic Rent shall be
due and payable on account of such space commencing on the day on which Lessor
delivers possession thereof to Lessee.
Lessor shall use reasonable diligence to regain possession of
any space with respect to which Lessee has exercised the Right of First Offer
herein contained, but Lessor shall not be responsible for any delay by any
occupant in vacating such space. Effective upon the date on which Lessor
delivers possession to Lessee of any space which is subjected to the terms of
this Lease pursuant to this Section 9, such space shall be deemed to be part of
the Premises for all purposes of this Lease except that Basic Rent therefor
shall be computed as hereinabove provided, and Lessee's Share shall be
appropriately modified.
Lessee's Right of First Offer shall be subject and subordinate
to all rights of extension refusal set forth in any lease executed by Lessor
prior to the date of this Amendment, and shall further be subject and
subordinate (with respect to space on the third and fourth floors of the
Building, to the rights of Pathology).
10. Construction. All work to be performed by or on behalf of Lessee in
the Additional Expansion Premises, the basement of the Building, or elsewhere on
the Land or in the Building in connection with Lessee's initial occupancy of any
of such spaces shall be performed (i) at Lessee's sole cost and expense, (ii) in
accordance with the terms of the Lease, and (iii) with respect to construction
to be performed in the Second Additional Basement Space, shall also be performed
in accordance with the provisions of the Supplemental Work Letter attached as
Exhibit II to the Second Amendment to Lease. Promptly after the completion of
construction of Lessee's improvements or alterations to the
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Additional Expansion Premises, Lessee shall provide to Lessor a reasonably
detailed breakdown of the actual out-of-pocket costs paid by Lessee in
connection therewith, allocated among office improvements and other
improvements, together with reasonable supporting documentation of such costs
and such allocation, certified as accurate by an officer of Lessee.
Lessor shall deliver the Additional Expansion Premises and the
Second Additional Basement Space to Lessee in the same condition in which they
are redelivered by Lifeline to Lessor, and Lessee agrees to accept them in their
"as is" condition. Lessor shall not be required to pay for or to perform any
work in the Additional Expansion Premises, the Second Additional Basement Space,
or elsewhere in the Building in order to prepare for Lessee's occupancy
hereunder.
Lessee shall, at its sole cost and expense and prior to the
expiration of the Lease Term, remove the temporary demising partition separating
Area A from Area B.
11. Parking.
(a) In addition to the On-Site Parking Spaces which Lessee has
leased pursuant to Section 9.0 of the Lease prior to the date
of this Amendment, (1) effective on the Area A Commencement
Date, Lessor shall lease to Lessee an additional one hundred
(100) On-Site Parking Spaces, and (2) effective on the Area B
Commencement Date, Lessor shall lease to Lessee an additional
forty-eight (48) On-Site Parking Spaces. Lessee shall pay to
Lessor, as Additional Rent, for each On-Site Parking Space
leased pursuant to this subsection (b), in advance, commencing
on the Area A Commencement Date or the Area B Commencement
Date, as the case may be, and continuing thereafter on the
first calendar day of each month, (i) $75.00 per month during
the Initial Term, and (ii) thereafter, an amount equal to the
Fair Market Rent of such parking spaces as determined annually
in accordance with the Lease. Lessee shall have no right to
lease additional On-Site Parking Spaces in connection with its
lease of the Additional Expansion Premises other than as set
forth in this subsection (b).
(b) In addition to the On-Site Parking Spaces, (1) effective
on the Area A Commencement Date, Lessor shall lease to Lessee
an additional forty (40) parking spaces, and (2) effective on
the Area B Commencement Date, Lessor shall lease to Lessee an
additional twenty (20) parking spaces (collectively, the
"Off-Site Parking Spaces") in a parking lot or lots in the
vicinity of the Building as shown cross-hatched on Exhibit IV
attached. Lessor reserves the right to relocate all or any
portion of the Off-Site Parking Spaces within the area shown
on Exhibit IV from time to time during the Term. Lessor shall
use its best efforts to spread the Off-Site Parking Spaces
over the fewest number of parking lots possible. Lessee shall
pay to Lessor, as Additional Rent, for each Off-Site Parking
Space so leased, in advance, commencing on the Area A
Commencement Date or the Area B Commencement Date, as the case
may be, and continuing thereafter on the first calendar day of
each month, (i) $60.00 per month during
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calendar year 1999, and (ii) thereafter, an amount equal to
the Fair Market Rent of such parking spaces as determined
annually in the manner provided in Section 9.0 of the Lease.
Notwithstanding the foregoing, in the event that Lessor
hereafter reduces the number of the properties shown on
Exhibit IV used for parking purposes, and consequently is
unable to provide some or all of the Off-Site Parking Spaces
on its own property, the named Lessor shall, upon request by
Lessee, make reasonable efforts to lease all or a portion of
such spaces from a third party, in which event the rent
payable on account of such Off-Site Parking Spaces so leased
shall be the amount paid by the named Lessor to such third
party therefor, without markup. The provisions of the
preceding sentence of this paragraph shall not apply to any
Lessor other than MIT.
12. Transportation of Animals and Related Materials. No animals, animal
waste, food or supplies relating to the animals maintained from time to time in
the Basement Space shall be transported within the Building except as provided
in the Lease (including, without limitation, Section 5 of the Second Amendment
to Lease).
13. Utilities. Lessee shall pay for all electricity consumed within the
Basement Space and shall make such payment directly to the company which
provides such electrical service. Water and gas consumption in the Basement
Space shall be separately metered and Lessee shall pay all charges therefor
directly to the company which provides such services.
14. Brokers. Lessor and Lessee each represents to the other that it has
dealt with no broker in connection with this Amendment other than Lynch, Murphy,
Xxxxx & Partners ("Broker"). Lessee shall be solely responsible for the payment
of all fees and commissions due to Broker in connection with this transaction,
and indemnifies and holds Lessor harmless form and against any claim by Broker
for any such fee or commission. Each of the parties hereby agrees to indemnify
and hold the other party harmless from and against any claims for commissions or
fees by any person or firm other than Broker by reason of any act of the
indemnifying party.
15. No Services. Notwithstanding anything to the contrary contained in
the Lease, Lessor is not providing any services to the Basement Space. Lessee
shall make its own arrangements for the cleaning of such space, as well as the
provision of electricity, water, gas, HVAC and any other utility or service.
16. Release.
(a) In consideration of the agreements contained in this
Amendment, Lessee hereby releases and forever discharges
Lessor and its officers, directors, employees, agents and
servants (collectively, the "Lessor Released Parties"), of and
from any and all claims, demands, causes of action, costs,
expenses, liabilities and obligations, at law or in equity,
which
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Lessee ever had, now has, or hereafter may have against the
Lessor Released Parties or any of them, arising out of or
relating to the proposed subleasing of the Additional
Expansion Premises by Lessee from Lifeline. Lessee hereby
acknowledges that its execution and delivery of this Amendment
constitute Lessee's intention to enter into the transaction
described in this Amendment in full substitution for any
proposed sublease of the Additional Expansion Premises from
Lifeline.
(b) In consideration of the agreements contained in this
Amendment, Lessor hereby releases and forever discharges
Lessee and its officers, directors, employees, agents and
servants (collectively, the "Lessee Released Parties"), of and
from any and all claims, demands, causes of action, costs,
expenses, liabilities and obligations, at law or in equity,
which Lessor ever had, now has, or hereafter may have against
the Lessee Released Parties or any of them, arising out of or
relating to the proposed subleasing of the Additional
Expansion Premises by Lessee from Lifeline.
17. Conditions of Effectiveness. Notwithstanding anything contained
herein to the contrary, this Amendment shall not be effective unless and until
all of the following occur:
(a) Lessor unconditionally delivers to Lessee an executed
counterpart of this Amendment;
(b) Lessor receives the unconditional delivery of an executed
counterpart of an amendment to the lease between Lessor and
Pathology, acceptable in all respects to Lessor, pursuant to
which Pathology surrenders all of its right, title and
interest in and to any portion of the Second Additional
Basement Space which is currently leased by Pathology, and
otherwise consistent with the terms of this Amendment; and
(c) Lessor receives the unconditional delivery of an executed
counterpart of an agreement between Lessor and Lifeline
terminating the lease between Lessor and Lifeline, acceptable
in all respects to Lessor.
Lessee acknowledges that Lessor's willingness to enter into this
Amendment is based, in part on Lessor's expectation that other tenants of the
Building, over whom Lessor has no control, will take the actions described in
this Section. Lessor makes no representation or warranty concerning whether or
not such other tenants will take such actions so that the foregoing conditions
to the effectiveness of this Amendment is satisfied in full.
18. Notice of Amendment to Lease. Either party shall, at the request of
the other, execute and acknowledge a Notice of Amendment to Lease in mutually
satisfactory form.
19. Authority. Contemporaneously with its execution of this Amendment,
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Lessee shall furnish to Lessor a certified copy of the resolution of the Board
of Directors of Lessee authorizing Lessee to enter into this Amendment and to
execute and acknowledge the aforementioned Notice of Amendment to Lease.
20. General. This Amendment constitutes the entire agreement of the
parties with respect to its subject matter, and no oral statement or prior
written matter shall have any force or effect. This Amendment shall not be
modified or canceled except by writing subscribed to by all parties. This
Amendment shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts. The captions of the several paragraphs in this
Amendment are for convenience only and shall not be considered in construing
this Amendment.
In all other respects, the terms and provisions of the Lease are hereby
ratified and confirmed and remain in full force and effect and unamended.
EXECUTED UNDER SEAL as of the date set forth above.
LESSOR: MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director of Real Estate
Associate Treasurer
LESSEE: MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------
Name: Xxxxx X. Xxxx
Title: VP FINANCE
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[FLOOR PLAN CHARTS]
