EXHIBIT 10.13
TERMINATION AGREEMENT
This Termination Agreement (this "AGREEMENT"), dated as of March 18,
2002, is entered into by and between MASSACHUSETTS INSTITUTE OF TECHNOLOGY, a
Massachusetts charitable corporation with a mailing address of 238 Main Street,
Suite 200, Cambridge, MA 02142 ("MIT"), and AKAMAI TECHNOLOGIES, INC., a
Delaware corporation with a mailing address of 500 Technology Square, Cambridge,
Massachusetts 02139 ("AKAMAI").
WHEREAS, Technology Square LLC, predecessor-in-interest to MIT, as
landlord, and Akamai, as tenant, executed that certain lease dated September 22,
1999, as amended (the "BUILDING 500 LEASE") for premises consisting of
approximately 121,542 rentable square feet (the "BUILDING 500 PREMISES") of the
building located at 500 Technology Square, Cambridge, Massachusetts;
WHEREAS, pursuant to Section 1 of the Rider to the Building 500 Lease,
Akamai delivered to MIT a letter of credit issued by Chase Manhattan Bank in the
amount of $114,800.00 securing Akamai's obligations under the Building 500 Lease
(the "BUILDING 500 LC");
WHEREAS, Technology Square LLC, predecessor-in-interest to MIT, as
landlord, and Akamai, as tenant, executed that certain lease dated November 28,
2000 and signed December 5, 2000 (the "BUILDING 600 LEASE"; and together with
the Building 500 Lease, the "LEASES") for premises consisting of approximately
113,646 rentable square feet (the "BUILDING 600 PREMISES"; and together with the
Building 500 Premises, the "PREMISES") of the building located at 600 Technology
Square, Cambridge, Massachusetts;
WHEREAS, pursuant to Section 1 of the Rider to Lease, Akamai delivered
to MIT a letter of credit issued by UBS Paine Webber Inc. (the "ISSUER") in the
amount of $10,228,140.00 securing Akamai's obligations under the Lease (the
"BUILDING 600 LC");
WHEREAS, to the knowledge of the Real Estate Department at MIT, MIT has
not received notice from the Issuer that the Building 600 LC has expired or has
been terminated;
WHEREAS, MIT and Akamai desire to terminate the Leases prior to the end
of the terms thereof, but only upon compliance with the terms and conditions
contained herein.
NOW, THEREFORE, in order to settle and dispose of, fully and
completely, any and all claims, demands and cause or causes of action now
existing or hereafter arising out of, in connection with, or incidental to the
termination of the Leases or the Premises, and in consideration for the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are mutually acknowledged, MIT and Akamai
agree, effective as of the date hereof, as follows:
1. Recitals. The foregoing recitals are hereby incorporated
herein by reference and acknowledged as true and correct by
the parties hereto.
2. Termination. (a) Provided that Akamai has complied with its
obligations contained in Section 3 below, effective as of
November 30, 2002 (the "BUILDING 500 TERMINATION DATE"), time
being of the essence, the Building 500 Lease shall terminate.
Except to the extent inconsistent with the terms hereof,
including, but not limited to, the posting of security for
Akamai's obligations thereunder, from and after the date
hereof and until the Surrender Date (hereinafter defined),
Akamai shall observe and perform each of the covenants and
provisions of the Building 500 Lease to be performed by
Akamai, including without limitation the payment of Yearly
Rent and additional rent.
(b) Provided that Akamai complies with the requirements of
Section 3 below, effective as of the date hereof, the Building
600 Lease is hereby terminated.
3. Termination Payment. (a) In consideration for the termination
of the Building 500 Lease, Akamai shall pay to MIT the amount
of $1,800,000.00 (the "BUILDING 500 TERMINATION PAYMENT"). The
Building 500 Termination Payment shall be paid as follows: MIT
shall apply $1,800,000 of the $2,000,000 cash security deposit
held by MIT under the Building 500 Lease. The balance of the
cash security deposit ($200,000) shall be applied to the
Building 600 Termination Payment. Within one (1) business day
after the date hereof, MIT shall return the original Building
500 LC to Akamai.
(b) In consideration for the termination of the Building 600
Lease, Akamai shall pay to MIT the amount of $13,200,000 (the
"Building 600 Termination Payment"). The Building 600
Termination Payment shall be paid as follows: (i) MIT shall
draw down the entire Building 600 LC ($10,228,140); (ii) MIT
will apply the balance of the proceeds from the cash security
deposit for the Building 500 Lease ($200,000) following
payment of the Building 500 Termination Payment; and (iii)
Akamai shall pay the balance of the Building 600 Termination
Payment to MIT (net of any pro rata rent credit for March Rent
or additional rent actually paid by Akamai pursuant to the
Building 600 Lease) via wire transfer (which wire transfer
Akamai shall initiate on or before 5:00 p.m. on the date first
written above, time being of the essence, in accordance with
the wiring instructions attached hereto as Exhibit A and
incorporated herein (the "WIRING INSTRUCTIONS").
4. Vacation of Premises. (a) Subject to delays due to
governmental regulation, unusual scarcity of or inability to
obtain labor or materials, labor difficulties, casualty or
other causes reasonably beyond Akamai's control which
adversely affect Akamai's ability either vacate or occupy new
premises, Akamai shall fully vacate the Building 500 Premises
on or before NOVEMBER 30, 2002 (such date, as it may be
extended due to such events and/or causes, is hereinafter
referred to as the "SCHEDULED SURRENDER DATE"; the date on
which Akamai actually vacates the Building 500 Premises is
hereinafter referred to as the "SURRENDER DATE").
Notwithstanding any contrary term herein, Akamai shall have no
further rights with respect to the use of the Building 500
Premises from and after the Building 500 Termination Date.
Akamai shall surrender and relinquish all rights with respect
to all parking spaces appurtenant to the Building 500 Premises
(including without limitation the parking passes associated
therewith)and shall surrender the Building 500 Premises (a)
free of all occupants; (b) in broom clean condition; and (c)
ree of all movable personalty and equipment; and (d) otherwise
in its current "AS IS condition." Akamai reserves the right to
remove its generator, NOC, antenna, and UPS.
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Akamai shall use good faith commercially reasonable efforts to
identify and procure new premises and to avoid any delays
which would cause Akamai to holdover after the Building 500
Termination Date.
(b) Akamai shall immediately vacate the Building 600 Premises
in its current "as is" condition, and surrender and relinquish
all rights with respect to all parking spaces appurtenant
thereto (including without limitation the parking passes
associated therewith).
5. Holdover. In the event Akamai fails to comply with the terms
of this Agreement (other than the failure to vacate the
Building 500 Premises in accordance with the provisions of
Section 4(a) above) or repossesses (or attempts to repossess)
the Building 600 Premises at any time after the date hereof or
the Building 500 Premises at any time after the Surrender
Date, MIT shall have the right to retain any and all payments
made by Akamai pursuant to this Agreement and also shall have
any and all other rights and remedies available to MIT under
the Leases to recover the Premises, at law and in equity,
except to the extent inconsistent with the terms of this
Agreement. In addition, Akamai and anyone claiming under
Akamai remaining in possession of the Building 600 Premises or
any part thereof after the date hereof, or of the Building 500
Premises or any part thereof after the Building 500
Termination Date shall be deemed a tenant-at-sufferance only,
at the daily rate of 150% of the Rent and additional rent due
under the respective Leases immediately prior to the
respective termination dates (the "FINAL RENT RATE") during
the first month, 200% of the Final Rent Rate during the second
month and 250% of the Final Rent Rate thereafter; provided
that, notwithstanding any of the foregoing to the contrary,
but subject to the following sentence, Akamai shall remain
liable for all damages, including without limitation all
direct damages, incurred by MIT as a result of such holdover.
Notwithstanding the foregoing, Akamai shall not be liable for
consequential damages incurred by MIT based upon any holdover
by Akamai after the Scheduled Surrender Date unless such
holdover continues for ninety (90) or more says after the
Scheduled Surrender Date. Nothing in this Section shall be
construed to permit such holding over.
6. Indemnification. Notwithstanding any other provision of this
Agreement (including, without limitation, any releases or
waivers) or the Leases to the contrary, Akamai agrees to
indemnify, defend and hold MIT harmless from and against any
and all actions, costs, claims, damages, expenses (including
without limitation attorneys', consultants' and experts' fees,
court costs and amounts paid in settlement of any claims or
actions), fines, forfeitures, or other civil, administrative
or criminal penalties, injunctive or other relief, liabilities
or losses which MIT may incur with respect to (i) the payment
of any outstanding charges due from Akamai in connection with
utilities and other services rendered to the Building 500
Premises (or relating thereto) prior to the Surrender Date if
Akamai has failed to pay same;and (ii) subject to Section 5
above, the breach or default in the performance of any
obligation on Akamai's part to be performed under the terms of
this Agreement.
7. Releases. Except as to such rights or claims as may be created
or otherwise preserved by this Agreement, and except for
indemnifications by Akamai set forth in Sections 15.3(a),
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15.3(b) and 15.3(c) of the Building 500 Lease (excluding
however any indemnity referenced therein for "Tenant's breach
of the Lease") and in Sections 15.3(a), 15.3(b) and 15.3(c) of
the Building 600 Lease (excluding however any indemnity
referenced therein for "Tenant's breach of the Lease"), which
indemnifications are for acts or omissions occurring prior to
the effective termination of the Building 600 Lease or prior
to the Surrender Date, as the case may be, which
indemnifications Akamai acknowledges shall survive the
termination of the Leases, for and in consideration of the
agreement described herein, MIT and Akamai each hereby
releases, remises and forever discharges the other and its
respective officers, directors, employees, agents, parents,
subsidiaries and affiliates from all debts, demands, actions,
causes of action, suits, accounts, covenants, controversies,
agreements, promises, judgments, demands, contracts,
agreements, damages, claims and liabilities whatsoever, in law
or equity, in arbitration or otherwise, whether known or
unknown, suspected or unsuspected, related to, arising out of,
connected with or incidental to (a) the Building 600 Lease or
the Building 600 Premises and (b) the Building 500 Lease or
the Building 500 Premises. Nothing contained in this Section 7
shall prevent MIT or Akamai from enforcing the terms of this
Agreement.
8. Representations and Warranties. Akamai represents, warrants
and agrees that its current assets exceed its current
liabilities.
9. Grant of License. Subject to MIT's rights and obligations with
respect thereto, upon at least thirty (30) days' prior written
notice, Akamai shall have the right to use, at no additional
cost, the eighth (8th) and ninth (9th) floors of Building 500
(the "TRANSITION SPACE") for general business office use,
storage and staging in connection with Akamai's move out of
the Building 500 Premises and no other use whatsoever and the
furniture currently located therein for up to sixty (60) days
commencing on the date specified in such notice to Landlord.
With MIT's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, Akamai may use
the Transition Space for more than sixty (60) days in
connection with Akamai's move out of the Building 500
Premises. Notwithstanding anything to the contrary set forth
herein, in no event shall Akamai have the right to use the
Transition Space after November 30, 2002. Akamai's right to
use the Transition Space is not to be construed as in any way
granting to Akamai any interest in the Transition Space. Upon
Akamai's written request at any time after April 1, 2002, MIT
will inform Akamai whether the Transition Space will be
available for Akamai's use pursuant to the terms of this
Section 9.
10. Notices. Any notice, request or demand ("NOTICE") permitted or
required to be given by the terms and provisions of this
Agreement, or by any law or governmental regulation, either by
MIT or Akamai, shall be in writing and delivered by hand (with
evidence of receipt) or by nationally recognized overnight
courier (with evidence of receipt), addressed to the other
party at the address of the other party first set forth above.
A copy of all Notices sent to MIT shall be sent Daniel D.
Sullivan, Esquire, Brown Rudnick Berlack Israels LLP, One
Financial Center, Boston, MA 02111. Either party hereto may
designate a different address for Notices to such party by
serving Notice of such change in accordance with this section.
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11. Miscellaneous. This Agreement shall be deemed to have been
executed and delivered within the Commonwealth of
Massachusetts, and the rights and obligations of MIT and
Akamai hereunder shall be construed and enforced in accordance
with, and governed by, the laws of the Commonwealth of
Massachusetts without regard to the laws governing conflicts
of laws. If any term of this Agreement or the application
thereof to any person or circumstances shall be invalid and
unenforceable, the remaining provisions of this Agreement, the
application or such term to persons or circumstances other
than those as to which it is invalid or unenforceable, shall
not be affected. This Agreement is binding upon and shall
inure to the benefit of MIT and Akamai, their respective
agents, employees, representatives, officers, directors,
divisions, subsidiaries, affiliates, assigns, heirs,
successors-in-interest and shareholders. Each party has
cooperated in the drafting and preparation of this Agreement
and, therefore, in any construction to be made of this
Agreement, the same shall not be construed against either
party. Any litigation relating to this Agreement shall be
brought in the state or federal courts in the Commonwealth of
Massachusetts and each party consents to personal jurisdiction
in such courts. In the event of litigation relating to this
Agreement, the prevailing party shall be entitled to
reimbursement from the other party of its reasonable
attorneys' fees and costs. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
oral and written agreements and discussions, and may not be
amended, waived, discharged or terminated except by a written
instrument signed by all the parties hereto. This Agreement
may be executed in as many counterparts as may be required,
and it shall not be necessary that the signature of each
party, or that the signatures of all persons required to bind
any party, appear on each counterpart. It shall be sufficient
that the signature of each party, or that the signatures of
the persons required to bind any party, appear on one or more
of such counterparts. All counterparts shall collectively
constitute a single agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their respective duly authorized officers as of the date
first set forth above.
MIT: MASSACHUSETTS INSTITUTE OF TECHNOLOGY
/s/ Massachusetts Institute of Technology
Akamai: AKAMAI TECHNOLOGIES, INC.
/s/ Akamai Technologies, Inc.
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