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Exhibit 10.24
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FOURTH AMENDMENT TO LEASE
FOURTH AMENDMENT TO LEASE dated as of the 6th day of October, 1993 by and
between Mortimer B. Zuckerman, Edward H. Linde and David Barrett, Trustees of
Fourteen Cambridge Center Trust under Declaration of Trust dated February 4,
1982 and recorded with the Middlesex South District Registry of Deeds in Book
14707, Page 96 and not individually (hereinafter called the "Landlord") and
Biogen, Inc. (successor to Biogen Research Corp., successor to B. Leasing,
Inc.). Biogen, Inc., is the Tenant under the Lease and is (hereinafter called
"Tenant").
R E C I T A L S
By lease dated October 4, 1982, as amended by First Amendment To Lease
dated January 19, 1989, by Second Amendment To Lease dated March 8, 1990 and by
Third Amendment To Lease dated September 25, 1991 (said Lease as so amended
being hereinafter called the "Lease"), Landlord did lease to Tenant and Tenant
did hire and lease from Landlord the "Site" and "Building" known as and numbered
Fourteen Cambridge Center, Cambridge, Massachusetts. The Site and the Building
are defined in Section 1.2 of the Lease and are collectively therein and herein
interchangeably called the "Demised Premises" or the "Premises".
The Lease provides for an original Lease Term which Landlord and Tenant
acknowledge and agree is to expire on February 28, 1998 (herein sometimes called
the "Original Term").
Pursuant to Section 3.2 of the Lease, Tenant has the right to extend the
Lease Term for three (3) successive periods of five (5) years each on the terms
and conditions set forth in said Section 3.2.
Landlord and Tenant have now reached agreement on the present exercise of
Tenant's first, five (5) year extension option and on other modifications to the
Lease and desire to set forth the same.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration paid by each of the parties hereto to the other, the
receipt and sufficiency of which is hereby acknowledged, and in further
consideration of the provisions herein, Landlord and Tenant hereby agree as
follows:
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1. The Lease Term (also in the Lease sometimes called the "Term"), which
but for this Amendment is scheduled to expire on February 28, 1998, is
hereby presently extended for one (1) period of five (5) years from
March 1, 1998 to February 28, 2003 (herein called the "First Extended
Term") unless extended or sooner terminated in accordance with the
provisions of the Lease (as herein amended). The present extension of
the Lease Term for the First Extended Term shall be deemed to be the
exercise of the first, five (5) year extension option provided for in
Section 3.2 of the Lease, leaving only the second extension option
(the "Second Extension Option") and third extension option (the "Third
Extension Option") pursuant to said Section 3.2. The present extension
of the Lease Term for the First Extended Term shall be on all of the
same terms and conditions set forth in the Lease except as otherwise
provided in this Amendment. All references in the Lease (as herein
amended) to the "Term" or "Lease Term" shall mean and be references to
the Original Term as presently extended by the First Extended Term.
2. (A) For the Original Term, Tenant shall continue to pay Annual Fixed
Rent as provided in the Lease.
(B) During the First Extended Term (being the period from March 1,
1998 to February 28, 2003), Annual Fixed Rent shall be at the annual
rate equal to the product of (i) $19.71 and (ii) the 67,362 square
feet of Gross Building Area of the Building.
(C) During the second and third extension option periods (if
exercised), Annual Fixed Rent shall be payable by Tenant as provided
in Section 3.2 of the Lease.
3. (A) Landlord and Tenant acknowledge and agree that Landlord has
completed the North Garage and that Tenant's parking privileges
pursuant to Section 16.5 of the Lease and Section 3 of the Second
Amendment to Lease are being and shall be provided in the North
Garage. The term "North Garage" as used in this Amendment and the
Lease shall include both (i) the parking garage and other improvements
(collectively, the "North Garage Improvements") located on the parcel
of land known as Tract IV of the Parcel 2 Development
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Area (the "North Garage Site") and (ii) the North Garage Site.
Landlord and Tenant acknowledge that affiliates of Landlord and Tenant
are concurrently herewith entering into a transaction that has as its
objective the construction of a new building, on a site including part
or all of the Expansion Parcel as defined in Section 16.27 of the
Lease, to be known as Twelve Cambridge Center, to be owned by an
affiliate of Tenant (the 12CC Owner") and occupied by Tenant, and that
such transaction would include the execution of a parking lease
between the 12CC Owner, as tenant, and Cambridge Center North Trust,
an affiliate of Landlord that is the owner of the North Garage, as
landlord, to provide parking rights for the 12CC Owner in the North
Garage (the "12CC Parking Lease"). For the portion of the Lease Term
prior to the Commencement Date of the 12CC Parking Lease, the monthly
rates per vehicle for Tenant's parking privileges under this Lease
shall be the rates provided in Section 3(b) of the Second Amendment to
Lease. For the portion of the Lease Term on and after the Commencement
Date of the 12CC Parking Lease, Section 3(b) of the Second Amendment
is hereby amended so that the monthly rates per vehicle for Tenant's
parking charges shall be as follows:
(i) Period Monthly Rate Per Car
From the Commencement Date $105.00, subject to escalation
of the 12CC Parking Lease as provided in Sections 3(B)
through December 31, 1999 and 3(C) below and subject to
the limitation as provided in
Section 3(D) below.
From January 1, 2000 through $140.00, subject to escalation
February 28, 2003 as provided in Sections 3(B)
and 3(C) below and subject to
the limitation as provided in
Section 3(D) below.
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(ii) Further, if Tenant shall exercise its Second Extension Option
pursuant to Section 3.2 of the Lease, then the monthly rates per
vehicle for Tenant's parking charges shall be as follows:
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Period Monthly Rate Per Car
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From March 1, 2003 through $140.00, subject to escalation
December 31, 2004 as provided in Sections 3(B)
and 3(C) below.
From January 1, 2005 through $180.00, subject to escalation
February 28, 2008 as provided in Sections 3(B)
and 3(C) below.
(iii) In addition, if Tenant shall exercise its Third Extension Option
pursuant to Section 3.2 of the Lease, then the monthly rates per
vehicle for Tenant's parking charges shall be as follows:
Period Monthly Rate Per Car
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From March 1, 2008 through $180.00, subject to escalation
December 31, 2009 as provided in Sections 3(B)
and 3(C) below.
From January 1, 2010 through $215.00, subject to escalation
February 28, 2013 as provided in Sections 3(B)
and 3(C) below.
(B) With reference to the real estate taxes for the North Garage
referred to in this Section 3(B), it is agreed that terms used herein
are defined as follows:
(a) "Tax Year" means the 12-month period beginning July 1 each
year during the Lease Term or if the appropriate
Governmental tax fiscal period shall begin on any date other
than July 1, such other date.
(b) "Tax Expenses for the North Garage" with respect to any Tax
Year means the aggregate "North Garage Real Estate Taxes"
(as hereinafter defined) with respect to that Tax
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Year, reduced by any net abatement receipts with respect to
that Tax Year.
(c) "Tax Expenses Allocable to Each Parking Space" means the
quotient of (i) Tax Expenses for the North Garage divided by
(ii) the total number of parking spaces in the North Garage,
being 1,170.
(d) "Monthly Tax Expenses Allocable to Each Parking Space" means
the quotient of (i) Tax Expenses Allocable to Each Parking
Space, divided by (ii) twelve (12).
(e) "North Garage Real Estate Taxes" means all taxes and special
assessments of every kind and nature assessed by any
Governmental authority on the North Garage Site or the North
Garage Improvements or both the North Garage Site and the
North Garage Improvements which the owner of the North
Garage shall be obligated to pay because of or in connection
with the ownership, leasing and operation of the North
Garage Site and the North Garage Improvements and reasonable
expenses of any proceedings for abatement of taxes. The
amount of special taxes or special assessments to be
included 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 such
taxes all income, estate, succession, inheritance and
transfer taxes; provided, however, that if at any time
during the Lease Term the present system of ad valorem
taxation of real property shall be changed so that in lieu
of, or in addition to, the whole or any part of the ad
valorem tax on real property, there shall be assessed on the
owner of the North Garage a capital levy or other tax on the
gross income and/or parking receipts received with respect
to the North Garage Site or the North Garage Improvements,
or a Federal, State, County, Municipal, or
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other local income, franchise, excise or similar tax,
assessment, levy or charge (distinct from any now in effect
in the jurisdiction in which the North Garage is located)
measured by or based, in whole or in part, upon any such
gross income and/or parking receipts, then any and all of
such taxes, assessments, levies or charges, to the extent so
measured or based, shall be deemed to be included within the
term "North Garage Real Estate Taxes" but only to the extent
that the same would be payable if the North Garage Site or
the North Garage Improvements were the only property of the
owner of the North Garage.
(f) "Base Taxes for the North Garage" means Tax Expenses for the
North Garage (hereinbefore defined) for fiscal tax year 1993
(that is the period beginning July 1, 1992 and ending June
30, 1993), being $269,147.00.
(g) "Base Taxes Allocable to Each Parking Space" means the
quotient of (i) Base Taxes for the North Garage divided by
(ii) the total number of parking spaces in the North Garage,
being 1,170, which quotient is $230.04 per parking space.
(h) "Monthly Base Taxes Allocable to Each Parking Space" means
the quotient of (i) "Base Taxes Allocable to Each Parking
Space", divided by (ii) twelve (12), which quotient is
$19.17 per parking space.
If with respect to any full calendar month or fraction thereof falling
within the Term after the Commencement Date of the 12CC Parking Lease,
Monthly Tax Expenses Allocable to Each Parking Space for a full month
exceed Monthly Base Taxes Allocable to Each Parking Space or for any
such fraction of a calendar month exceed the corresponding fraction of
Monthly Base Taxes Allocable to Each Parking Space (such amount being
hereinafter referred to as the "North Garage Tax Excess"), then Tenant
shall pay to Landlord, as Additional Rent, the product of (i) such
North Garage Tax Excess and (ii) the total number automobiles for
which Tenant has
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parking privileges in the North Garage under the terms of the Lease
during such calendar month (the "North Garage Tax Excess Payment").
Payments by Tenant on account of the North Garage Tax Excess Payment
shall be made monthly at the time and in the fashion herein provided
for the payment of Annual Fixed Rent. The amount so to be paid to
Landlord shall be an amount from time to time reasonably estimated by
Landlord to be sufficient to provide Landlord, in the aggregate, a sum
equal to the North Garage Tax Excess Payment for each Tax Year during
the Lease Term, ten (10) days at least before the day on which tax
payments by the owner of the North Garage would become delinquent.
Promptly after Tax Expenses Allocable to Each Parking Space are
determinable for the first such Tax Year or fraction thereof and for
each succeeding Tax Year or fraction thereof during the Lease Term,
Landlord shall render to Tenant a statement in reasonable detail
certified by a representative of Landlord showing North Garage Real
Estate Taxes for such Tax Year or fraction thereof, abatements and
refunds, if any, of any such taxes and assessments, expenditures
incurred in obtaining such abatement or refund, the amount of the
North Garage Tax Excess and the North Garage Tax Excess Payment for
each calendar month during such Tax Year or fraction thereof, the
amount thereof already paid by Tenant and the amount thereof overpaid
by, or remaining due from Tenant for the period covered by such
statement. Within thirty (30) days after the receipt of such
statement, Tenant shall pay any sum remaining due. Any balance shown
as due to Tenant shall be credited against Annual Fixed Rent next due,
or refunded to Tenant if the Lease Term has then expired and Tenant
has no further obligation to Landlord. Expenditures for reasonable
legal fees, reasonable costs charged by affiliates of Landlord and
other expenses incurred in obtaining an abatement or refund may be
charged against the abatement or refund before the adjustments are
made for the Tax Year.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax
Year, the statement to be furnished by Landlord shall be rendered and
payments made on account of such installments.
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(C) With reference to the operating expenses for the North Garage
referred to in this Section 3(C), it is agreed that terms used herein
are defined as follows:
(a) "Operating Expenses Allocable to Each Parking Space" means
the quotient of (i) "Operating Expenses for the North
Garage" (as hereinafter defined) divided by (ii) the total
number of parking spaces in the North Garage, being 1,170.
(b) "Monthly Operating Expenses Allocable to Each Parking Space"
means the quotient of (i) Operating Expenses Allocable to
Each Parking Space, divided by (ii) twelve (12).
(c) "Base Operating Expenses for the North Garage" (as defined
below) means Operating Expenses for the North Garage for
calendar year 1993 (that is the period beginning January 1,
1993 and ending December 31, 1993).
(d) "Base Operating Expenses Allocable to Each Parking Space"
means the quotient of (i) Base Operating Expenses for the
North Garage divided by (ii) the total number of parking
spaces in the North Garage, being, 1,170.
(e) "Monthly Base Operating Expenses Allocable to Each Parking
Space" means the quotient of (i) Base Operating Expenses
Allocable to Each Parking Space, divided by (ii) twelve
(12).
(f) "Operating Expenses for the North Garage" means the cost of
operation of the North Garage incurred by the owner of the
North Garage. Such costs charged by affiliates of Landlord
shall be limited to reasonable costs and such costs shall
exclude payments of debt service and any other mortgage
charges, brokerage commissions, salaries of executives and
owners not directly employed in the management or operation
of the North Garage and the general overhead and
administrative expenses of the home office of the owner of
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the North Garage or such owner's managing agent, but shall
include, without limitation:
(i) compensation, wages and all fringe benefits,
workmen's compensation insurance premiums and
payroll taxes paid to, for or with respect to
all persons for their services in the
operating, maintaining or cleaning of the
North Garage Improvements or the North Garage
Site;
(ii) payments under service contracts with
independent contractors for operating,
maintaining or cleaning of the North Garage
Improvements or the North Garage Site;
(iii) steam, water, sewer, gas, oil, electricity
and telephone charges and costs of
maintaining letters of credit or other
security as may be required by utility
companies as a condition of providing such
services;
(iv) cost of maintenance, cleaning and repairs
(other than repairs not properly chargeable
against income or reimbursed from contractors
under guarantees);
(v) cost of snow removal and care of landscaping;
(vi) cost of building and cleaning supplies and
equipment;
(vii) premiums for insurance carried with respect
to the North Garage (including, without
limitation, liability insurance, insurance
against loss in case of fire or casualty and
business interruption insurance and, if there
be any first mortgage on the North Garage,
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including such insurance as may be required
by the holder of such first mortgage);
(viii) management fees at reasonable rates
consistent with the services rendered;
(ix) the North Garage's share of operating
expenses related to the common areas and
facilities within the Parcel 2 Development
Area for use of tenants of the Building in
common with tenants of other buildings in the
Parcel 2 Development Area;
(x) depreciation for capital expenditures made by
the owner of the Garage (x) to reduce
Operating Expenses for the North Garage if
the owner of the North Garage reasonably
shall have determined that the annual
reduction in Operating Expenses for the North
Garage shall exceed depreciation therefor or
(y) to comply with applicable laws, rules,
regulations, requirements, statutes,
ordinances, by-laws and court decisions of
all public authorities which are now or
hereafter in force (herein collectively
called "Legal Requirements"), (plus, in the
case of both (x) and (y), an interest factor,
reasonably determined by the owner of the
North Garage, as being the interest rate then
charged for long term mortgages by
institutional lenders on like properties
within the general locality in which the
North Garage is located), and in the case of
both (x) and (y) depreciation shall be
determined by dividing the original cost of
such capital
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expenditure by the number of years of useful
life of the capital item acquired, which
useful life shall be determined reasonably by
the owner of the North Garage in accordance
with generally accepted accounting principles
and practices in effect at the time of
acquisition of the capital item; and
(xi) all other reasonable and necessary expenses
paid in connection with the operating,
cleaning and maintenance of the North Garage
Improvement, the North Garage Site and said
common areas and facilities and properly
chargeable against income.
If with respect to any full calendar month or fraction thereof
falling within the Term after the Commencement Date of the 12CC
Parking Lease, Monthly Operating Expenses Allocable to Each Parking
Space for a full calendar month exceed Monthly Base Operating
Expenses Allocable to Each Parking Space or for any such fraction of
a calendar month exceed the corresponding fraction of Monthly Base
Operating Expenses Allocable to Each Parking Space (such amount
being hereinafter referred to as the "North Garage Operating Cost
Excess"), then Tenant shall pay to Landlord, as Additional Rent, the
product of (i) such North Garage Operating Cost Excess and (ii) the
total number of automobiles for which Tenant has parking privileges
in the North Garage under the terms of the Lease during such
calendar month (the "North Garage Operating Cost Excess Payment").
Payments by Tenant on account of the North Garage Operating Cost
Excess Payment shall be made monthly at the time and in the fashion
herein provided for the payment of Annual Fixed Rent. The amount so
to be paid to Landlord shall be an amount from time to time
reasonably estimated by Landlord to be sufficient to cover, in the
aggregate, a sum equal to the North Garage Operating Cost Excess
Payment for each calendar year during the Lease Term.
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No later than sixty (60) days after the end of each calendar year
during the Lease Term or fraction thereof at the end of the Lease
Term, Landlord shall render Tenant a statement in reasonable detail
and according to usual accounting practices certified by a
representative of Landlord, showing for the preceding calendar year
or fraction thereof, as the case may be, the Operating Expenses for
the North Garage for such calendar year or fraction thereof and the
Operating Expenses Allocable to Each Parking Space for each calendar
month during such calendar year or fraction thereof. Said statement
to be rendered to Tenant also shall show for the preceding year or
fraction thereof, as the case may be, the amounts already paid by
Tenant on account of the North Garage Operating Cost Excess Payment
and the amount of the North Garage Operating Cost Excess Payment
remaining due from, or overpaid by, Tenant for the year or other
period covered by the statement.
If such statement shows a balance remaining due to Landlord, Tenant
shall pay same to Landlord on or before the thirtieth (30th) day
following receipt by Tenant of said statement. Any balance shown as
due to Tenant shall be credited against Annual Fixed Rent next due,
or refunded to Tenant if the Lease Term has then expired and Tenant
has no further obligation to Landlord. Within sixty (60) days after
receipt of such statement, time being of the essence, Tenant may
notify ("Tenant's Operating Cost Notice") Landlord that Tenant
reasonably believes that any of the costs included in such statement
described in subparagraphs (i), (ii), (iv), (v), (vi) or (viii) of
the definition of "Operating Expenses for the North Garage" are
unreasonable when compared to the actual costs for the same items
for other comparable garages in the City of Cambridge and Tenant
shall, if available, include with Tenant's Operating Cost Notice
reasonable evidence of such actual costs incurred by such other
garage (the "Other Garage Costs"). If upon Landlord's receipt of
Tenant's Operating Cost Notice and the Other Garage Costs (i) Tenant
is not in default under the terms of this Lease, and (ii) Tenant
shall have paid Landlord the full amount due under such statement,
Landlord shall review the Other Garage Costs with Tenant. If upon
such review, Landlord and Tenant agree that costs
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reflected in such statement are unreasonable, Landlord shall take
such reasonable actions as may be appropriate to reduce the costs so
identified.
(D) Notwithstanding the foregoing provisions of Sections 3 (A), 3
(B) and 3 (C), in no event shall the monthly parking charge per
vehicle set forth in Section 3 (A) (as escalated pursuant to
Sections 3 (B) and 3 (C) for any month during the period from the
Commencement Date of the 12CC Parking Lease to February 28, 2003
exceed the monthly amount charged per space during such month by the
operator of the North Garage (whether or not such operator is an
affiliate of Landlord) to any single tenant leasing parking rights
for fifty (50) or more vehicles in the North Garage.
4. There is added to the Lease a new Section 16.31 as follows:
"16.31 TENANT'S OPTION TO PURCHASE DEMISED PREMISES.
(A) Upon and subject to the terms and conditions
contained in this Section and provided that (i) the
Lease (as herein amended) shall be in full force and
effect, (ii) there shall be no "Event of Default"
(defined in Section 15.1 of the Lease) either at the
time of the giving of the "Tenant's Option Exercise
Notice" (defined below) or on the Closing Date (as it
may be extended hereunder) and (iii) Tenant has neither
assigned the Lease nor sublet the Demised Premises
(except only as provided in Subsection (L) below)
Landlord hereby grants to Tenant the right and option to
purchase the Demised Premises. Landlord and Tenant
hereby agree that, subject to compliance with the terms
and conditions contained in this Section (including, but
not limited to Items (i), (ii) and (iii) set forth
immediately above), the within granted option to
purchase the Demised Premises shall remain superior to
the rights of any other person to purchase or otherwise
acquire the Demised Premises until February 28, 1998, it
being covenanted and agreed (a) that the within granted
option to purchase the Demised Premises shall not
prevent any sale, conveyance or other transfer of the
Demised Premises or any interest therein but any such
sale, conveyance or other
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transfer shall be subject to the within granted option
to purchase the Demised Premises upon and subject to the
terms and conditions hereof and (b) that the within
granted option to purchase the Demised Premises shall
not prevent any foreclosure, deed in lieu of foreclosure
or the exercise of any other rights under any mortgage
now or hereafter encumbering the Demised Premises but
that any person acquiring title to the Demised Premises
as a result of foreclosure, deed in lieu of foreclosure
or by the exercise of any such other rights shall be
subject to the within granted option to purchase the
Demised Premises upon and subject to the terms and
conditions hereof.
(B) (i) In order to exercise the within granted option
to purchase the Demised Premises, Tenant shall give
written notice to Landlord ("Tenant's Option Exercise
Notice") at any time on or before February 28, 1998
(time being of the essence). In order for Tenant's
Option Exercise Notice to be effective, it shall be
accompanied by, and Tenant shall pay together therewith,
a deposit in the amount of $1,347,240.00 in good funds
payable to Landlord (the "Deposit"); provided, however,
that the Deposit shall be promptly endorsed or otherwise
paid over to the "Escrow Agent" (defined in subsection
(B)(ii) hereof and shall be held and applied by the
Escrow Agent in accordance with the provisions of said
subsection (B)(ii) hereof. It is hereby covenanted and
agreed that if Tenant shall not give to Landlord
Tenant's Option Exercise Notice (together with the
Deposit) on or before February 28, 1998 (time being of
the essence), the within granted option to purchase the
Demised Premises shall automatically cease, expire and
be null and void without any action of the parties and
without any liability or obligation to or against any of
the parties. If Tenant shall
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timely give to Landlord Tenant's Option Exercise Notice
(together with the Deposit), the Closing Date shall be
as set forth in subsection (D) hereof.
(B) (ii) The "Escrow Agent" shall be the General
Counsel of Boston Properties, Inc., or such law firm,
title insurance company or other institutional escrow
agent as Landlord shall select. Landlord shall promptly
pay over the Deposit to the Escrow Agent so selected and
shall cause the Escrow Agent holding the Deposit to
acknowledge to Tenant receipt of the Deposit within a
reasonable period of time after the Escrow Agent
receives the Deposit. The Deposit shall be held in such
interest bearing account in such banking institution in
the City of Boston and upon such terms and conditions
relating to the deposit of funds and maintenance of
accounts as the Escrow Agent shall determine. The type
of account, the rate of interest, the terms and
conditions relating to the deposit of funds and
maintenance of accounts and the banking institution
shall be as solely selected by the Escrow Agent and the
Escrow Agent shall have no liability to Landlord or
Tenant respecting the selection of the type of account,
the rate of interest, the terms and conditions relating
to the deposit of funds and maintenance of accounts
and/or the banking institution. Further, the Deposit
shall be held by the Escrow Agent subject to the terms
of this Section 16.31 and shall be duly accounted for on
the "Closing Date" (hereinafter defined) as it may be
extended pursuant to this Section 16.31 or on the
earlier termination of this Section 16.31. All interest
earned on the Deposit shall be paid to Landlord with no
credit against the purchase price for such interest
being given to Tenant; provided, however, that if
pursuant to the terms of this Section 16.31 the Deposit
shall be returned to Tenant, the interest earned on the
Deposit at the time of such return of the Deposit shall
be paid over to Tenant.
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If for any reason the closing does not occur and
either party makes a written demand upon the Escrow
Agent for delivery of the Deposit and the interest
earned thereon, the Escrow Agent shall give written
notice to the other party of such demand. If the Escrow
Agent does not receive a written objection from the
other party to the proposed payment within ten (10) days
after the giving of such notice, the Escrow Agent is
hereby authorized to make such delivery or payment. If
the Escrow Agent does receive such written objection
within such ten (10) business day period or if for any
other reason the Escrow Agent in good faith shall elect
not to make such payment, the Escrow Agent shall
continue to hold the Deposit until otherwise directed by
written instructions from both Landlord and Tenant or a
final judgment of a court. However, the Escrow Agent
shall have the right at any time to deposit the Deposit
with the clerk of such court of competent jurisdiction
in the Commonwealth of Massachusetts that the Escrow
Agent shall select. The Escrow Agent shall give written
notice of such deposit to Landlord and Tenant. Upon such
deposit the Escrow Agent shall be relieved and
discharged of all further obligations and
responsibilities hereunder.
The Landlord and Tenant acknowledge that the
Escrow Agent shall act solely as a stakeholder at
Landlord's and Tenant's request and for their
convenience, that the Escrow Agent shall not be deemed
to be the agent of either of the parties, and the Escrow
Agent shall not be liable to either of the parties for
any act or omission on its part unless taken or suffered
in bad faith, in willful disregard of this Section 16.31
or involving gross negligence. Landlord and Tenant shall
jointly and severally indemnify and hold the Escrow
Agent harmless from and against all costs,claims and
expenses, including reasonable attorneys' fees,
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incurred in connection with the performance of the
Escrow Agent's duties hereunder, except with respect to
actions or omissions taken or suffered by the Escrow
Agent in bad faith, in willful disregard of this Section
16.31 or involving gross negligence on the part of the
Escrow Agent. The parties agree that notwithstanding the
obligations of the Escrow Agent under this Agreement,
the Escrow Agent (if an attorney or law firm) shall be
permitted to represent Landlord or Tenant (as the case
may be) in connection with the transaction evidenced by
this Section 16.31 or in connection with any matters
arising from or related to this Section 16.31, the
consummation of this Section 16.31 or any claimed breach
of this Section 16.31 by any party.
(C) (i) The purchase price payable for the Demised
Premises (the "Purchase Price") shall be THIRTEEN
MILLION FOUR HUNDRED SEVENTY TWO THOUSAND FOUR HUNDRED
DOLLARS ($13,472,400.00) payable on the closing by
Federal Funds immediately available to the Landlord at
The First National Bank of Boston, Boston, Massachusetts
or such other bank as may be stipulated by Landlord by
written notice to Tenant. Upon closing, credit shall be
given by Landlord to Tenant for and in the amount of the
Deposit (but not for the interest earned thereon). The
parties acknowledge and agree that "Impositions" (as
defined in Article VI of the Lease) are and shall
continue to be paid entirely by Tenant. Accordingly, no
credit or adjustment shall be given to Tenant at closing
(or otherwise) respecting Impositions.
(C) (ii) Fixed Rent and all Additional Rent (except
respecting Impositions, provision for which is made in
Section 16.31 (C)(i) above) shall be paid through the
"Closing Date" (referred to in Section 16.31 (D) as it
may be extended pursuant to the provisions of this
Section 16.31 and in the event that
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Tenant has prepaid amounts of the foregoing (excluding
Impositions) for periods extending beyond said Closing
Date (as it may be so extended), appropriate credit
shall be given to Tenant for amounts thereof (excluding
Impositions) prepaid for periods extending beyond said
Closing Date (as it may be so extended).
(D) The closing (the "Closing") shall be held at the
Middlesex South District Registry of Deeds, 208
Cambridge Street, Cambridge, Massachusetts 02141 (or at
such other location in which said Registry of Deeds may
be located), or at such other place in the City of
Boston as the parties may agree, at 10:30 A.M. on that
date (the "Closing Date") which is thirty (30) days
after Landlord's receipt of Tenant's Option Exercise
Notice (accompanied by the Deposit); provided, however,
if said thirtieth (30th) day shall be a Saturday, Sunday
or Legal Holiday, the Closing Date shall be the next
following business day on which the Middlesex South
District Registry of Deeds shall be open for the
transaction of business. In addition to the provisions
of Section 16.31 (A) above, Landlord covenants that, so
long as this Section 16.31 shall be in full force and
effect and Tenant has not assigned this Lease nor sublet
the Premises (except only as provided in Subsection (L)
below) and Tenant shall not have wrongfully failed to
close on its purchase of the Demised Premises and there
shall be no "Event of Default" (defined in Section 15.1
(a) of the Lease (as herein amended), Landlord shall not
encumber the Demised Premises from time to time with any
mortgages (and other financing documents) in the
aggregate principal amount greater than the purchase
price. It is agreed that time is of the essence with
respect to the provisions and agreements in this Section
16.31.
(E) The Demised Premises shall be sold and conveyed
in as-is condition and subject to
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the following (collectively, the "Permitted
Encumbrances"):
(i) the provisions of all laws, statutes,
ordinances, rules and regulations
(including, but not limited to, the
Kendall Square Urban Renewal Plan (as
amended and as it may hereafter be
amended), building codes, zoning
ordinances and regulations, and
environmental laws and regulations) and
the orders, rules, regulations and
requirements of all Federal, state and
municipal governments, and the
appropriate agencies, officers,
departments, boards and commissions
thereof, whether now or hereafter in
force, which may be applicable to the
Demised Premises or the use or manner of
use of the Demised Premises (herein
collectively called "Legal
Requirements");
(ii) all leases, subleases and other
occupancy agreements and arrangements
for space in the Building of which
Tenant has knowledge or which were
entered into or arranged by Tenant (but
nothing herein shall be construed as a
waiver or modification of the provisions
of Article XI of this Lease);
(iii) any state of facts an accurate survey
and/or inspection and/or review of any
and all public records would disclose
(including, without limitation, the
condition of the Demised Premises and/or
the presence , removal, containment,
investigation, monitoring or permit
conditions of or respecting hazardous
materials in, on, under or with respect
to the Demised Premises);
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(iv) real estate taxes and assessments, water
and sewer charges, other municipal
charges and assessments and all other
Impositions for the fiscal tax year in
which the closing shall occur and for
all prior and subsequent fiscal tax
years;
(v) orders, agreements, decrees, license or
permit conditions relating to, and
notices of violation of, any Legal
Requirements issued by any Federal,
State or municipal or other governmental
authorities, agencies, boards,
departments or other instrumentalities
having jurisdiction, against or
affecting the Site, the Building or the
use of the Site or Building including,
without limitation, any of the foregoing
arising out of or in any way related to
the presence, removal, containment,
investigation, monitoring or permit
conditions of or respecting hazardous
materials in, on, under or relating to
the Demised Premises (herein
collectively called "Governmental
Directives");
(vi) any lien or encumbrance placed on the
Demised Premises (i) with the written
consent of the Tenant (which consent
shall not be unreasonably withheld or
delayed), (ii) arising out of the use,
occupancy or maintaining of the Site
and/or the Building or any breach or
default of the Tenant or (iii) resulting
from any cause created by the act or
omission of the Tenant;
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(vii) that certain unrecorded instrument
entitled "Agreement For The Creation Of
Certain Easements" dated September 19,
1983 by and between COM/Energy Steam
Company and Cambridge Center Associates
and all easements, rights, grants and
other agreements from time to time
executed and/or granted pursuant to said
Agreement;
(viii) those matters set forth in Exhibit I
attached hereto and hereby incorporated
herein by reference;
(ix) such other easements, agreements and
restrictions of record insofar as in
force (on the Closing Date as it may be
extended hereunder) and applicable to
the Site and/or Building, provided the
same do not materially interfere with
the use of the Demised Premises for the
"Permitted Uses" (as defined in Section
1.2 of the Lease).
(x) The "Printed Exclusions" and the "Deemed
Approved Matters" (both referred to in
Section 16.31 I (2) hereof).
(F) In the event of (i) a taking of the Demised Premises, or any
part thereof, by the exercise of a right of condemnation or
eminent domain, or (ii) damage to the Building by fire or other
casualty, or (iii) a taking ,by the exercise of a right of
condemnation or eminent domain, of the "Garage" (defined in the
"Parking Garage Lease" hereinafter referred to at the end of
this subsection) which taking pursuant to the provisions of
Section 7 (b) of the Parking Garage Lease results in a
termination of the Parking Garage Lease (a "Parking Garage
Taking Termination"), and if any of the events referred to in
items (i), (ii) and
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(iii) above occur between the date of Landlord's receipt of
Tenant's Option Exercise Notice (given pursuant to and in
compliance with the foregoing provisions hereof) and the
Closing, then Tenant, by written notice to Landlord given within
fifteen (15) days after such taking of the Demised Premises or
any part thereof, a Parking Garage Taking Termination or the
occurrence of such fire or casualty, as the case may be (but in
no case given after the time of closing), shall elect one (1)
but only one (1) of the following: (x) to cancel Tenant's
exercise of the option to purchase the Demised Premises in which
case the Deposit (and all interest then earned thereon) shall be
promptly refunded to Tenant (provided the Deposit has previously
been paid by Tenant) in which case the provisions of this
Section 16.31 shall be void without further recourse or
liability to or against either Landlord or Tenant provided,
however, that the Lease (as amended by this Amendment but
without this Section 16.31) shall remain in full force and
effect in accordance with the terms of the Lease as amended by
this Amendment but without this Section 16.31 or (y) to proceed
to close regardless of the extent of such taking, damage or
destruction (the "Closing Election").If Tenant shall make the
Closing Election, the agreements contained in this Section 16.31
shall remain unaffected thereby (except only as hereinafter
specifically set forth in this Section 16.31 (F)) and the
parties shall close the transaction as herein provided
notwithstanding such occurrence, without any diminution or
abatement of the purchase price; except, however, that unless
Landlord has previously restored the Demised Premises to its
former condition (Landlord having the right but not the
obligation to do so), Landlord shall (i)(a) in the case of fire
or casualty to the Building pay over or assign to Tenant, on
delivery of the Deed, all amounts recovered or recoverable on
account of an insured fire or casualty less any
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amounts reasonably expended by Landlord for any partial
restoration or (i)(b) in the case of a taking of the Demised
Premises (in whole or in part) under the power of eminent domain
pay over or assign to Tenant, on delivery of the Deed, all
amounts recovered on account of such taking and/or Landlord's
claim in any such eminent domain or condemnation proceeding less
any amounts reasonably expended by Landlord for any partial
restoration, or (ii) if the holder of a mortgage on the Demised
Premises shall require that fire or casualty proceeds or eminent
domain (or condemnation) awards be applied on account of the
mortgage indebtedness, give to Tenant a credit against the
Purchase Price, on delivery of the Deed, equal to the insured
fire or casualty proceeds received or recoverable or the eminent
domain (or condemnation) awards respecting the Demised Premises,
as the case may be, and retained by the holder of said mortgage
less any amounts reasonably expended by Landlord for any partial
restoration. In the event that Tenant shall fail to give any
notice or to give timely notice pursuant to this Section 16.31
(F) (time being of the essence), Tenant shall be deemed to have
conclusively elected the Closing Election. The "Parking Garage
Lease" is that certain Lease entitled "Cambridge Center North
Garage Parking Lease" dated March 19, 1990 between David
Barrett, Edward H. Linde and Mortimer B. Zuckerman, Trustees of
Cambridge Center North Trust u/d/t dated August 7, 1988 recorded
with the Middlesex South District Registry of Deeds in Book
19383, Page 203, as landlord, and David Barrett, Edward H. Linde
and Mortimer B. Zuckerman, Trustees of Fourteen Cambridge Center
Trust u/d/t dated February 4, 1982 recorded with said Registry
in Book 14707, Page 96, as tenant, a Notice of which is recorded
with said Registry in Book 20450, Page 211.
(G) The following deliveries shall be made at the Closing:
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(i) Landlord shall execute, acknowledge and deliver
a Massachusetts quitclaim deed to the Demised
Premises in recordable form, so as to convey to
Tenant good and clear record and marketable fee
simple title to the Demised Premises, free and
clear of all liens and encumbrances, except for,
and subject to, the Permitted Encumbrances.
(ii) Each of Landlord and Tenant shall pay one half
(1/2) of all transfer taxes and stamp costs and
all other federal, state, county or municipal
taxes excises, impositions or levies applicable
to or imposed on the transfer of real property,
the conveyance of the Demised Premises or the
delivery or recording of the deed (whether now
or hereafter in effect) and whether assessed to
sellers or buyers of real property (excluding,
however, any income taxes of Landlord which
Landlord shall be obligated to pay and any
franchise, corporation or income taxes of Tenant
which Tenant shall be obligated to pay and
excluding all Impositions, provision for which
is made in Section 16.31 (C)(i) hereof) and
Tenant shall pay all recording costs by reason
of the delivery or recording of the deed.
(iii) Landlord shall execute, acknowledge and deliver
to Tenant an assignment of all insurance
proceeds and condemnation awards or claims or
rights thereto, if any there be, then payable to
the Landlord, but as required by and subject to
the provisions of subsection (F) above, all
without representation or
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warranty by or recourse against Landlord.
(iv) The Tenant shall deliver the Purchase Price
described in subsection (C) above in the manner
specified therein.
(v) The parties shall execute and deliver to each
other such other instruments and documents, and
shall pay or cause to be paid such sums of
money, to which either may be entitled pursuant
to any of the other provisions of this Section
or which may be required reasonably in
connection with the Closing and consistent with
the provisions of this Section. Each such
instrument and document to be delivered at the
Closing shall be consistent with the applicable
provisions of this Section, shall be in the form
or contain the information or provisions
provided for in this Section, and shall
otherwise be reasonably satisfactory in form and
substance to the parties.
(vi) Landlord shall cause its counsel to deliver an
opinion in form and substance reasonably
satisfactory to Tenant relating to the power and
authority of Landlord to execute and deliver the
Deed and other instruments at the Closing.
(vii) Tenant shall cause its counsel to deliver an
opinion in form and substance reasonably
satisfactory to Landlord relating to the power
and authority of Tenant to purchase the Demised
Premises and to execute and deliver any
instruments as are executed by the Tenant or its
nominee at the Closing.
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(viii) To the extent same are in Landlord's possession
or subject to Landlord's custody and control,
Landlord shall deliver to Tenant all licenses,
permits, authorizations and approvals of any
Governmental authorities relating to the Demised
Premises.
(H) Tenant represents and warrants to the Landlord that: (i) it
has examined, inspected and investigated, to its full
satisfaction,the physical nature and condition of the Demised
Premises; (ii) neither Landlord nor any agent, officer,
director, employee, trustee, beneficiary, partner,
representative or affiliate of Landlord (including, without
limitation, Boston Properties, Inc., and its officers, directors
and employees) has made any representation whatsoever regarding
the Demised Premises or any part thereof, or anything relating
to the subject matter of the agreements contained in this
Section 16.31 including, without limiting the generality of the
foregoing, representations as to the present or future physical
nature or condition of the Demised Premises (including the
presence, removal, containment, investigation, monitoring or
permit conditions of or respecting hazardous materials),
operation, size or zoning of the Demised Premises, operating
expenses, carrying charges or real estate taxes and assessments,
water and sewer charges, other municipal charges and assessments
and all other Impositions affecting the Demised Premises; and
(iii) it will take ownership of the Demised Premises in its "as
is" condition on the Closing Date. The acceptance of a deed to
the Demised Premises by Tenant shall be deemed to be a
reaffirmation of the provisions of this Section 16.31 (H).
(I) (1) (a) As of the Closing Date, Landlord shall be the owner
of good and clear record and marketable fee simple title to the
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Demised Premises, subject only to those matters defined as
Permitted Encumbrances in subsection (E) hereof. However, if on
the Closing Date (i) the title to the Demised Premises is not as
aforesaid or becomes additionally encumbered, in either case by
an act or omission not attributable to Tenant, Tenant's
affiliates or Tenant's subtenants, occupants, licensees, agents,
contractors, subcontractors, tradesmen or materialmen or (ii)
the Demised Premises do not comply in all material respects with
applicable Legal Requirements or Governmental Directives or
(iii) there is any material state of facts disclosed by an on
the ground instrument survey of the Site performed and prepared
for Tenant by the "Surveying Firm" (hereinafter defined) which
renders title to the Site unmarketable (herein called "Survey
Defects"), but in any of such cases not attributable to
"Tenant's Operation Of The Demised Premises" (hereinafter
defined), then Tenant, by written notice to Landlord given on or
before the Closing Date (but in no event after the Closing Date)
shall elect one (1) but only one (1) of the following: (x) to
cancel Tenant's exercise of the option to purchase the Demised
Premises in which case the Deposit (and all interest then earned
thereon) shall be promptly refunded to Tenant (provided the
Deposit has previously been paid by Tenant) and the provisions
of this Section 16.31 shall be void and shall wholly cease and
terminate and neither party shall have any claim against or
liability to the other provided, however, that the Lease (as
amended by this Amendment but excluding this Section 16.31)
shall remain in full force and effect in accordance with the
terms of the Lease as amended by this Amendment but without this
Section 16.31 or (y) to extend the Closing Date for a period of
ninety (90) days (the "Extension Election") in which case
Landlord shall use reasonable efforts, but at Tenant's sole
cost, expense and liability (collectively "Tenant's Cost And
Liability") to attempt to bring the Demised Premises into
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material compliance with applicable Legal Requirements or
Governmental Directives or to cure the Survey Defects, as the
case may be, but in any of such cases Landlord shall have no
obligation if any such non-compliance and/or Survey Defects is
(are) the result of Tenant's Operation Of The Demised Premises.
If Tenant shall make the Extension Election, the same shall only
be effective if Tenant, in its notice to Landlord, shall agree
to the provisions of item (y) hereof which shall survive the
delivery of the deed and shall survive as elsewhere provided in
this Section 16.31. For purposes hereof, "Tenant's Operation Of
The Demised Premises" shall mean the manner and operation or use
of the Demised Premises (or any portion or component thereof or
equipment or process therein) by Tenant and/or those claiming
by, through or under Tenant. For purposes hereof, the term
"Surveying Firm" shall mean a duly licensed and qualified
registered professional land surveying firm in the Commonwealth
of Massachusetts first approved by Landlord, which approval
shall not be unreasonably withheld or delayed. For purposes
hereof, Landlord hereby approves the firm of Allen & Major
presently located in Woburn, Massachusetts.
(I) (1) (b) In addition to the foregoing provisions of Section
16.31 (I)(1)(a), if on the Closing Date a hazardous materials
analysis and study of the Site and its component materials
performed by a geotechnical or other engineering first approved
by Landlord (which approval shall not be unreasonably withheld
or delayed) discloses the presence of hazardous materials in
such quantities or amounts as to constitute a material violation
or material non-compliance with the standards therefor set forth
in applicable environmental laws, then Tenant, by written notice
to Landlord given on or before the Closing Date (but in no event
after the Closing Date) shall elect one (1) but only one (1) of
the following:
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(x) to cancel Tenant's exercise of the option to purchase the
Demised Premises (the "Termination Election") in which case the
Deposit (and all interest then earned thereon) shall be promptly
refunded to Tenant (provided the Deposit has previously been
paid by Tenant) and the provisions of this Section 16.31 shall
be void and shall wholly cease and terminate and neither party
shall have any claim against or liability to the other provided,
however, that the Lease (as amended by this Amendment but
excluding this Section 16.31) shall remain in full force and
effect in accordance with the terms of the Lease as amended by
this Amendment but without this Section 16.31 or (y) to close
the purchase of the Demised Premises on the Closing Date without
any deduction, offset or other reduction in the purchase price.
In the case of an election to close under item (y), such
election shall be conditioned upon Tenant executing a written
instrument in favor of Landlord pursuant to which Tenant and its
successors and assigns releases Landlord from liability
respecting the presence, release, threat of release, removal and
remediation of hazardous materials (herein called "Tenant's
Release").
(I) (1) (c) Subject to the provisions of Section 16.31 (I)
(1)(a) above, to enable Landlord to make conveyance of the
Demised Premises as herein provided, Landlord may, on the
Closing Date (as it may be extended as above provided) use the
purchase price or any portion thereof to clear the title to the
Premises of any or all interests not permitted by this Section
16.31 provided that all instruments so procured which affect
title to the Demised Premises are recorded on the Closing Date
(as it may be so extended) except, however, that Landlord shall
have the right in lieu of payment and discharge to have
deposited with Tenant's title insurer out of the purchase price
such funds or assurances as will provide for the full payoff of
all of such interests and the deletion of any exceptions for
items other
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than the Permitted Exceptions, those matters deemed approved
pursuant to Section 16.31 (I) (2) and the Printed Exclusions in
the owner's policy of title insurance issued (or to be issued)
to Tenant upon the acquisition of the Demised Premises by
Tenant, in which case such interests shall not be considered
objections to title to the Demised Premises.
(I) (2) The Tenant agrees that it will obtain, not earlier than
twenty (20) days prior to the date of Tenant's Option Exercise
Notice nor later than ten (10) days prior to the Closing, a
preliminary commitment from a recognized title insurance company
reasonably selected by Tenant (the "Title Insurer"), covering
the Demised Premises, pursuant to which the Title Insurer shall
commit to issue to Tenant an Owner's Fee Title Insurance Policy
insuring Tenant's title to the Demised Premises in the amount of
the Purchase Price, subject only to the Permitted Encumbrances
and the printed exclusions from coverage and other matters set
forth in said preliminary commitment and the Owner's Policy of
issue (the "Printed Exclusions"). A copy of title commitment
shall be furnished to Landlord within seven (7) days after its
receipt by the Tenant, accompanied by a written statement as to
any objections to title set forth therein which are not
Permitted Encumbrances or Printed Exclusions. Any objections to
title then existing but not then raised in such written
statement shall be deemed waived, accepted and approved by
Tenant (the "Deemed Approved Matters").
If Tenant shall have elected to extend the Closing Date as
provided in and on the terms set forth in Section 16.31
(I)(1)(a) and if, at the extended Closing Date, title to the
Demised Premises shall not be as provided in this Section 16.31
or if the Demised Premises are not in material compliance with
the applicable Legal Requirements and Governmental Directives or
if there shall be any Survey Defects, Tenant shall elect one
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(1) but only one (1) of the following: (a) to cancel its
agreement to purchase the Demised Premises contained in this
Section 16.31, in which event the Deposit (and all interest then
earned thereon) shall be promptly refunded to Tenant (provided
the Deposit shall have previously been paid by Tenant) and the
provisions of this Section 16.31 shall be void and shall wholly
cease and terminate, and neither party shall have any claim
against or liability to the other provided, however, that the
Lease as amended by this Amendment (but excluding the provisions
of this Section 16.31) shall remain in full force and effect in
accordance with the terms of this Lease as amended by this
Amendment but without this Section 16.31; provided, however,
that notwithstanding the foregoing Tenant's Cost And Liability
shall survive, or (b) to consummate the Closing without any
reduction of the purchase price or allowance against the same
and without any liability on the part of the Landlord on account
of the agreements or matters contained in this Section 16.31
including, without limitation, any non-compliance with
applicable Legal Requirements, any non-compliance with
Governmental Directives, the existence of any Survey Defects,
the existence of any Deemed Approved Matters and/or the
existence or presence of any matters for which Tenant's Release
is given.
(J) If, on the Closing Date (as it may be extended pursuant to
subsection (I) (1)(a) hereof), the Tenant shall fail to perform
its obligation to purchase the Demised Premises, as herein
provided, (i) the Landlord shall as its sole remedy therefor
retain the Deposit (and all interest earned thereon) and (ii)
the terms, conditions and provisions of both this Section 16.31
and Section 16.32 shall wholly cease and terminate and neither
party shall have any further claim against or liability to the
other by reason of the provisions of this Section 16.31 and
Section 16.32 (it being acknowledged that Landlord shall retain
the Deposit and said interest); provided, however, that the
Lease as amended by this Amendment (but excluding the provisions
of this Section 16.31 and Section
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16.32) shall remain in full force and effect in accordance with
the terms of the Lease as amended by this Amendment but without
this Section 16.31 and Section 16.32; provided, however, that
notwithstanding the foregoing Tenant's Cost And Liability shall
survive.
(K) All notices, demands, requests, consents, approvals or other
communications (for the purposes of this subsection collectively
called "Notices") required or permitted to be given under this
Section shall be in writing and shall be sent by registered or
certified mail, return receipt requested, postage prepaid,
addressed to the party to be notified at its address first above
set forth or to such other address as such party shall have
specified most recently by like Notice. At the same time any
Notice is given to Landlord, a copy thereof shall be sent to
Boston Properties, Inc., 8 Arlington Street, Boston,
Massachusetts 02116, Attention: General Counsel. At the same
time any Notice is given to Tenant a copy thereof shall be sent
to Mintz, Levin, Cohn, Ferris, Glovsky And Popeo, P.C., One
Financial Center, Boston, Massachusetts 02111, Attention: Joel
R. Bloom, Esquire. Notices given as provided above shall be
deemed given on the date of delivery except that if delivery is
refused notice shall be deemed given on the date that delivery
is first attempted to be made.
(L) This Section 16.31, and Tenant's rights hereunder, shall not
be assigned, pledged, hypothecated, mortgaged or otherwise
transferred (collectively called "Transfer") and any purported
Transfer shall be null and void and of no force or effect.
However, Tenant shall have the right to assign this Section
16.31 but only as part of an assignment of the entire Lease (as
amended by this Amendment) to an
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assignee permitted under Section 11.1 B of the Lease or
consented to under Section 11.1 D of the Lease.
(M) (1) With respect only to this Section 16.31, Landlord
warrants and represents to Tenant that as of the date of this
Amendment (a) Landlord is a nominee trust under the laws of the
Commonwealth of Massachusetts and that it has the necessary
power and authority under its Declaration of Trust to enter into
this Fourth Amendment, (b) Landlord has no actual knowledge of
any litigation pending against Landlord or the Demised Premises
(excluding Tenant's Operation Of The Demised Premises as to
which no representation or warranty is made) which would have a
materially adverse effect on the obligations of Landlord under
this Section 16.31, (c) the Lease (as amended by this Amendment)
and those leases and subleases set forth in Exhibit I are the
only leases entered into by Landlord respecting the Demised
Premises (no warranty or representation being made as to any
subleases or other occupancy agreements or arrangements made by
Tenant or as to any matters set forth in Section 16.31 (E)(ii)
hereof), (d) Landlord has not entered into any service contracts
respecting the Demised Premises which will continue in effect
beyond the conveyance of the Demised Premises to Tenant (or if
any service contracts entered into by Landlord respecting the
Demised Premises exist, the same shall be terminated on or
before closing hereunder), (e) no consent, authorization or
approval of any governmental body, authority or court is
required in connection with Landlord's agreements set forth in
this Section 16.31 (or if any of the same shall be required,
Landlord has obtained or will obtain same) and (f) Landlord has
not entered into any options to sell, nor granted rights of
first offer or first refusal to sell nor entered into any other
written agreements to sell the
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Demised Premises which would deprive Tenant of its option to
purchase the Demised Premises under this Section 16.31;
provided, however, Tenant acknowledges that Landlord's mortgage
lender must approve and consent to this Amendment and the
existence of any mortgages does not contravene the foregoing. At
the time of closing, the then owner of the Demised Premises
shall reaffirm the foregoing warranties and representations or
state in what respects the same are not then true and correct.
The provisions hereof shall not survive the delivery of the deed
of the Demised Premises.
(M)(M) (2) If any of the warranties and representations set
forth in subsection (M) (1) above shall not be complied with in
material respects as of the Closing Date (as it may be extended
pursuant to the applicable provisions hereof), Tenant shall
elect one (1) but only one (1) of the following: (a) to cancel
its agreement to purchase the Demised Premises contained in this
Section 16.31 in which event the Deposit (and all interest then
earned thereon) shall be promptly refunded to Tenant (provided
the Deposit shall have been paid by Tenant) and the provisions
of this Section 16.31 shall be void and shall wholly cease and
terminate, and neither party shall have any claim against or
liability to the other provided, however, that the Lease as
amended by this Amendment (but excluding the provisions of this
Section 16.31) shall remain in full force and effect in
accordance with the terms of this Lease as amended by this
Amendment but without this Section 16.31, or (b) to consummate
the Closing without any reduction of the purchase price or
allowance against same and without any liability on the part of
Landlord on account of the matters set forth in subsection (M)
(1) above.
(N) It is understood and agreed that all understandings and
agreements heretofore had between the parties hereto with
respect to
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the subject matter of this Section 16.31 are merged herewith,
and this Section 16.31 alone fully and completely expresses
their agreement.
(O) The delivery and acceptance of the Deed conveying fee title
to the Demised Premises shall be deemed to be an
acknowledgement, for all purposes, of the full performance and
discharge of every representation, warranty, agreement and
obligation on the part of each of the parties to be performed
pursuant to the provisions of this Section 16.31, except those
which are herein specifically stated to survive the Closing and
the delivery of the Deed.
(P) If the Lease is terminated on account of an Event of Default
specified in Section 15.1 of the Lease, the provisions contained
in this Section 16.31 shall terminate and shall not survive the
termination of the Lease.
(Q) The Tenant acknowledges that a reference to the Landlord
herein is a reference to the Trustees of Fourteen Cambridge
Center Trust under Declaration of Trust identified on the first
page of this Amendment, and that no trustee, nor any beneficiary
of said trust, nor any officer, director, employee or agent of
said trust or any affiliate of said trust (including, but not
limited to, Boston Properties, Inc., Mortimer B. Zuckerman,
Edward H.Linde and/or any affiliates of said Mortimer B.
Zuckerman and/or Edward H. Linde) nor any successor holder of
Landlord's interest in the Lease (as amended) and/or in the
Demised Premises, shall be held to any personal liability
hereunder, nor shall resort be had to their private property for
the satisfaction of any claim hereunder, and Tenant agrees to
look solely to the Demised Premises in satisfaction of any
liability of the Landlord or any such successor under this
Section 16.31. In no event shall any of the aforesaid persons or
parties (including, without limitation, Landlord and its
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successors) be liable for indirect or consequential damages.
(R) The unenforceability of invalidity of any one or more
provisions hereof shall not affect the validity or
enforceability of any of the other provisions hereof.
(S) This Section shall be governed by, and construed and
enforced in accordance with the law of, The Commonwealth of
Massachusetts, as the same may from time to time exist.
(T) The Lease (as herein amended) shall terminate upon and as of
the date of the acquisition by Tenant of title to the Demised
Premises pursuant to this Section 16.31".
5. There is added to the Lease a new Section 16.32 as set forth in
Exhibit II attached hereto and hereby incorporated herein by
reference.
6. The existing Section 16.32 of the Lease is hereby renumbered as
Section 16.33.
7. For purposes of Section 11.1 D(a) of the Lease, the proposed
assignee shall be deemed to possess "adequate financial capability
to meet the tenant obligations" under the Lease (as herein amended)
if the proposed assignee (a) has a shareholder's or owner's (as
applicable) equity as determined in accordance with "GAAP"
(hereinafter defined) at least equal to One Hundred Twenty Five
Million Dollars ($125,000,000.00) plus the "CPI Amount" (hereinafter
defined), (b) has Net Income (as determined in accordance with
GAAP), but excluding interest and investment income and income from
extraordinary events, of at least (1) Seven Million Dollars
($7,000,000.00) plus the CPI Amount for the fiscal year immediately
prior to such proposed assignment, (2) One Dollar ($1.00) for each
of at least two of the last three fiscal years prior to such
proposed assignment and (3) Twenty Million Dollars ($20,000,000.00)
plus the CPI Amount in the aggregate for the last three fiscal years
prior to such proposed assignment and (c) has Fifty Million Dollars
($50,000,000.00) plus the CPI Amount in cash or marketable
securities at the time of such proposed
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assignment. For purposes hereof, "GAAP" shall mean generally
accepted accounting principles consistently applied throughout
(and/or with respect to) the relevant period. In addition and for
purposes hereof, the "CPI Amount" shall be and mean an amount equal
to the product of the amount in question times the percentage
increase, if any, in the Consumer Price Index (1982-1984 = 100) of
all items for urban wage earners and clerical workers published by
the Bureau of Labor Statistics of the U.S. Department of Labor for
Boston, Massachusetts (the "Index") (or if there ceases to be any
such publication, any other substantially equivalent index generally
recognized to measure changes in the cost of living for Boston,
Massachusetts) between the Index last published prior to the date of
this Amendment and the Index last published prior to the change
contemplated by this Section.
8. Reference is made to the "East Garage Sublease" (referred to in Item
5 of Exhibit I attached hereto). Notwithstanding anything contained
in the Lease as amended by this Amendment, Tenant acknowledges,
covenants and agrees that Landlord shall have the right, in its sole
and absolute discretion, to terminate the East Garage Sublease or to
cause the East Garage Sublease to be terminated at such time
(whether during the Term of the Lease as amended hereby (as it may
be extended) or after any conveyance of the Demised Premises to
Tenant pursuant to Section 16.31 or Section 16.32 or otherwise) as
Landlord, in its sole and absolute discretion, shall determine.
9. Landlord and Tenant each represents and warrants to the other that
it has not dealt with any real estate brokers or other persons or
entities which have been, are or will be entitled to any broker's or
finder's fee or any similar commission or fee in connection with
this Lease Amendment (including, without limitation, the
transactions contemplated by Sections 16.31 and 16.32 of the Lease
and added to the Lease pursuant to this Lease Amendment) except
Fallon, Hines & O'Connor (the "Recognized Broker"). Landlord and
Tenant each agree to indemnify, hold harmless, protect and defend
the other from and against any and all loss, damage, liability and
expense, including costs and reasonable attorneys' fees which such
other party incurs or
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sustains by reason of the breach by the indemnifying party of its
foregoing warranties and representations. Tenant covenants and
agrees that it shall be solely responsible for and shall pay to the
Recognized Broker such fee or commission as shall be due to the
Recognized Broker. Tenant shall defend, hold harmless and indemnify
Landlord (and its affiliates including, without limitation, Boston
Properties, Inc.) from and against any claims by the Recognized
Broker. The provisions hereof shall survive the expiration or any
termination of this Lease (as herein amended), the termination of
this Fourth Amendment To Lease pursuant to the provisions of Section
11 hereof, the expiration or any termination of Section 16.31 and/or
Section 16.32 hereof and/or the delivery of any deed of the Demised
Premises to Tenant pursuant to Section 16.31 hereof, Section 16.32
hereof or otherwise.
10. Concurrently with the execution of this Fourth Amendment to Lease,
Landlord shall deliver to Tenant a Trustees' Certificate respecting
the authority to enter into this Fourth Amendment To Lease and
Tenant shall deliver to Landlord a corporate vote evidencing the
authority of Tenant to enter into this Fourth Amendment to Lease.
11. Reference is made to that certain lease of even date herewith
between North Parcel Limited Partnership, a Massachusetts Limited
Partnership ("NPLP"), as landlord, and Biogen Realty Limited
Partnership, a Massachusetts Limited Partnership ("BRLP") that is an
affiliate of Tenant, as tenant (the "Tract V Lease"), pursuant to
which Tract V Lease NPLP leased to BRLP that certain parcel of
unimproved land therein referred to as Tract V. BRLP is to construct
the "Improvements" (as therein defined) on said Tract V in
accordance with the requirements of the Tract V Lease and the "Land
Disposition Agreement" (hereinafter defined). The Land Disposition
Agreement is that certain Supplemental Land Disposition Agreement
dated October 6, 1993 between the Cambridge Redevelopment Authority
(the "Authority") and NPLP. The parties acknowledge that the
transaction contemplated by the Tract V Lease was and is a material
inducement to the parties to enter into this Fourth Amendment To
Lease, and that their agreement herein is dependent on the
successful completion of said Tract V transaction. Therefore,
notwithstanding anything to
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the contrary set forth in this Fourth Amendment To Lease, (i) this
Fourth Amendment To Lease shall automatically terminate, cease and
expire if construction of the Improvements on Tract V is not
commenced on or before October 1, 1994 or (ii) if construction of
the Improvements on Tract V is so commenced on or before said
October 1, 1994, this Fourth Amendment To Lease shall automatically
terminate, cease and expire if construction of the Improvements is
not completed and a Certificate of Completion is not issued by the
Authority for the Improvements on or before the date set forth for
completion of the Improvements on Tract V pursuant to the Land
Disposition Agreement. In the event of any such termination of this
Fourth Amendment To Lease, the Lease (excepting this Fourth
Amendment To Lease) shall remain unchanged and in full force and
effect in accordance with its terms (excepting this Fourth Amendment
To Lease).
12. All capitalized terms and words used in this Amendment shall have
the same meaning as set forth in the Lease unless a contrary meaning
is expressly set forth herein.
13. Except as expressly amended hereby, the Lease and its terms and
provisions shall remain unchanged and in full force and effect.
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EXECUTED under seal as of the date and year first above written.
WITNESS: LANDLORD:
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EDWARD H. LINDE, TRUSTEE OF
FOURTEEN CAMBRIDGE CENTER TRUST AND
NOT INDIVIDUALLY
TENANT:
BIOGEN, INC.
By:
----------------------------------
Name: James C. Mullen
Title: PRESIDENT
(VICE PRESIDENT)
ATTEST:
By: By:
------------------------------ ------------------------------------
Name: Michael J. Astrue Name: Timothy M. Kish
Title: ASSISTANT CLERK Title: TREASURER
(ASSISTANT TREASURER)