EXHIBIT 10.44
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "AMENDMENT") is made and entered into as of
March 9, 2006, by and between MA-RIVERVIEW/245 FIRST STREET, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("LANDLORD") and COMBINATORX, INCORPORATED, A DELAWARE
CORPORATION ("TENANT").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated October 18,
2005 (the "LEASE"). Pursuant to the Lease, Landlord has leased to Tenant
space currently containing approximately 40,130 rentable square feet (the
"ORIGINAL PREMISES") consisting of approximately (i) 22,095 rentable
square feet of lab space (the "ORIGINAL LAB SPACE") on the 4th floor
(together with Tenant's proportionate share of the Ph Treatment Room on
the 1st floor and Tenant's proportionate share of the 3A Annex Space) of
the Science Building (as hereinafter defined); and (ii) 18,035 rentable
square feet of office space described as suite number 1600 (the "OFFICE
SPACE") on the 16th floor of the Office Building (as hereinafter defined)
in the buildings located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
and commonly known as Cambridge Science Center and 000 Xxxxx Xxxxxx,
comprised of two buildings, the first being the science building (the
"SCIENCE BUILDING") and the second being the office building (the "OFFICE
BUILDING").
B. Tenant and Landlord mutually desire that the Lease be amended with
respect to, among other things, the definition of the Premises and the
Rentable Square Footage of the Premises, subject to the following terms
and conditions.
C. Tenant has requested that additional space containing approximately
23,199 rentable square feet described as Suite No. 300 on the 3rd floor
of the Science Building, which includes Tenant's proportionate share of
the Ph Treatment Room on the 1st floor of the Science Building and
Tenant's proportionate share of the 3A Annex Space in the Science
Building, as more fully shown on EXHIBIT B hereto (the "EXPANSION SPACE")
be added to the Premises and that the Lease be appropriately amended and
Landlord is willing to do the same on the following terms and conditions.
D. The Lease by its terms shall expire on November 30, 2016 ("PRIOR
TERMINATION DATE"), and the parties desire to extend the Term of the
Lease, all on the following terms and conditions.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. PREMISES.
A. Effective as of the date hereof, Landlord and Tenant agree that
Section 1.02 of the Lease shall be deleted in its entirety and
replaced with the following:
"1.02 "PREMISES" shall mean the area shown on EXHIBIT A to this
Lease. The Premises consists of (i) 22,095 rentable square
feet of space on the 4th floor of the Science Building and
known as suite number 400, which includes Tenant's
proportionate share of the Ph Treatment Room on the 1st
floor of the Science Building and Tenant's proportionate
share of the 3A Annex Space in the Science Building as more
fully identified on EXHIBIT A to this Lease (collectively,
the "LAB SPACE"), and (ii) 18,035 rentable square feet of
office space on the 16th floor of the Office Building and
known as suite number 1600 (the "OFFICE SPACE"). If the
Premises include one or more floors in their entirety, all
corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. The
"RENTABLE SQUARE FOOTAGE OF THE PREMISES" is deemed to be
40,130 square feet. Landlord and Tenant stipulate and agree
that the Rentable Square Footage of the Buildings and the
Rentable Square Footage of the Premises are correct."
1
B. Effective as of the date hereof, Landlord and Tenant agree that
Section 1.11 of the Lease shall be deleted in its entirety and
replaced with the following:
"1.11 "PERMITTED USE": (a) with respect to the Office Space,
general office use, (b) with respect to the Lab Space,
technical office for research and development, laboratory
and research facility, (c) with respect to the portion of
the Lab Space consisting of the Ph Treatment Room,
wastewater treatment in compliance with applicable Laws,
and (d) with respect to the portion of the Lab Space
consisting of the 3A Annex Space, storage facilities for
Tenant's equipment and materials."
C. Effective as of the date hereof, EXHIBIT A to the Lease shall be
deleted in its entirety and replaced with EXHIBIT A attached to
this Amendment.
2. LAB SPACE. Effective as of the date hereof Landlord and Tenant agree that
notwithstanding the provisions of Section 1 of this Amendment, the term
"Lab Space" as used in the following provisions of the Lease shall be
deemed to mean only the 22,095 rentable square feet of lab space on the
4th floor of the Science Building, and shall not be deemed to include
either the Common Ph Treatment Room on the 1st floor of the Science
Building, or the 3A Annex Space in the Science Building:
2.01. All references to "Lab Space" or "lab space" in the paragraphs
titled "Air Handling Units" and "Distribution" in Section 7.02 of
the Lease.
2.02. All references to "Lab Space" in Section 7.03 of the Lease.
2.03. All references to "Lab Space" in the second paragraph of Section
9.03 of the Lease.
2.04. The reference to "Lab Space" in the second sentence of Section 10
of the Lease.
3. EXPANSION.
3.01. Effective as of February 1, 2007 (the "EXPANSION EFFECTIVE DATE"),
the Premises, as defined in the Lease, is increased from 40,130
rentable square feet to 63,329 rentable square feet consisting of
(i) 23,199 rentable square feet of expansion lab space on the 3rd
floor of the Science Building, which includes Tenant's
proportionate share of the Ph Treatment Room on the 1st floor of
the Science Building and Tenant's proportionate share of the 3A
Annex Space in the Science Building with respect to such expansion
lab space as more fully identified on EXHIBIT B, (ii) 22,095
rentable square feet of original lab space on the 4th floor of the
Science Building, which includes Tenant's proportionate share of
the Ph Treatment Room on the 1st floor of the Science Building and
Tenant's proportionate share of the 3A Annex Space in the Science
Building with respect to such original lab space as more fully
identified on EXHIBIT A, and (iii) 18,035 rentable square feet on
the 16th floor of the Office Building as more fully identified on
EXHIBIT A, by the addition of the Expansion Space, and from and
after the Expansion Effective Date, the Original Premises and the
Expansion Space, collectively, shall be deemed the Premises, as
defined in the Lease. The Term for the Expansion Space shall
commence on the Expansion Effective Date and end on the Extended
Termination Date (as hereinafter defined). The Expansion Space is
subject to all the terms and conditions of the Lease except as
expressly modified herein and except that Tenant shall not be
entitled to receive any allowances, abatements or other financial
concessions granted with respect to the Original Premises unless
such concessions are expressly provided for herein with respect to
the Expansion Space.
3.02. The Expansion Effective Date shall be delayed to the extent that
Landlord fails to deliver possession of the Expansion Space for
any reason. Any such delay in the Expansion Effective Date shall
not subject Landlord to any liability for any loss or damage
resulting therefrom. If the Expansion Effective Date is delayed,
the Extended Termination Date (as hereinafter defined) shall not
be similarly extended.
4. EXTENSION. The Term of the Lease is hereby extended for a period of 2
months and shall expire on January 31, 2017 ("EXTENDED TERMINATION
DATE"), unless sooner terminated in accordance with the terms of the
Lease. That portion of the Term commencing the day
2
immediately following the Prior Termination Date ("EXTENSION DATE") and
ending on the Extended Termination Date shall be referred to herein as
the "EXTENDED TERM".
5. BASE RENT.
5.01. OFFICE BASE RENT.
A. OFFICE SPACE THROUGH PRIOR TERMINATION DATE. The Office
Base Rent, Additional Rent applicable to the Office Space
and all other charges under the Lease applicable to the
Office Space shall be payable as provided therein with
respect to the Office Space through and including the Prior
Termination Date.
B. OFFICE SPACE FROM AND AFTER EXTENSION DATE. As of the
Extension Date, the schedule of Office Base Rent payable
with respect to the Office Space during the Extended Term
is the following:
ANNUAL RATE PER SQUARE MONTHLY OFFICE BASE
PERIOD FOOT RENT
---------------------------------------------------------------
12/1/16 - 1/31/17 $ 35.00 $ 52,602.08
All such Office Base Rent shall be payable by Tenant in
accordance with the terms of the Lease.
5.02. LAB BASE RENT.
A. ORIGINAL LAB SPACE THROUGH PRIOR TERMINATION DATE. The Lab
Base Rent, Additional Rent applicable to the Original Lab
Space and all other charges under the Lease applicable to
the Original Lab Space shall be payable as provided therein
with respect to the Original Lab Space through and
including the Prior Termination Date.
B. ORIGINAL LAB SPACE FROM AND AFTER EXTENSION DATE. As of the
Extension Date, the schedule of Lab Base Rent payable with
respect to the Original Lab Space during the Extended Term
is the following:
ANNUAL RATE PER SQUARE MONTHLY LAB BASE
PERIOD FOOT RENT
-------------------------------------------------------------
12/1/16 - 1/31/17 $ 53.00 $ 97,586.25
All such Lab Base Rent shall be payable by Tenant in
accordance with the terms of the Lease.
C. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH
EXTENDED TERMINATION DATE. As of the Expansion Effective
Date, the schedule of Lab Base Rent payable with respect to
the Expansion Space for the balance of the original Term
and the Extended Term is the following:
ANNUAL RATE PER SQUARE MONTHLY LAB BASE
PERIOD FOOT RENT
--------------------------------------------------------------
2/1/07 - 1/31/12 $ 48.00 $ 92,796.00
2/1/12 - 1/31/17 $ 53.00 $ 102,462.25
All such Lab Base Rent shall be payable by Tenant in
accordance with the terms of the Lease.
6. LETTER OF CREDIT. Concurrently with Tenant's execution of this Amendment,
Tenant shall provide Landlord with an additional letter of credit (the
"ADDITIONAL LETTER OF CREDIT") in the amount of $1,500,000.00. The
Additional Letter of Credit shall be in addition to, and not in
substitution of, the original Letter of Credit identified in the Lease.
Except for the Letter of Credit Amount (as hereinafter defined), the
Additional Letter of Credit shall be in form substantially identical to
that of the original Letter of Credit, a copy of which is attached hereto
as EXHIBIT E. The Additional Letter of Credit shall be subject to and in
conformance
3
with the terms and provisions of Section 1 of Exhibit E to the Lease
except that for purposes of the Additional Letter of Credit, (i) the
"LETTER OF CREDIT AMOUNT" shall be $1,500,000.00, and (ii) provided
Tenant satisfies each of the Contingency Requirements (as defined in
Section 1.06 of Exhibit E to the Lease) as of each applicable reduction
date described below, the Letter of Credit Amount for the Additional
Letter of Credit shall reduce as follows: (i) $1,200,000.00 effective as
of the third anniversary of the Lab Space Commencement Date; (ii)
$975,000.00 effective as of the fourth anniversary of the Lab Space
Commencement Date; (iii) $750,000.00 effective as of the fifth
anniversary of the Lab Space Commencement Date; (iv) $525,000.00
effective as of the sixth anniversary of the Lab Space Commencement Date;
and (v) $300,000.00 effective as of the seventh anniversary of the Lab
Space Commencement Date.
7. TENANT'S PRO RATA SHARE.
7.01. For the period commencing with the Expansion Effective Date and
ending on the Extended Termination Date Tenant's Pro Rata Share
for the Science Building for the Expansion Space is 17.7754%.
7.02. For the period commencing with the Expansion Effective Date and
ending on the Extended Termination Date, Tenant's Pro Rata Share
for the Buildings is amended from 14.3802% to 22.6934%.
8. EXPENSES AND TAXES.
8.01. OFFICE SPACE FOR THE EXTENDED TERM. For the period commencing with
the Extension Date and ending on the Extended Termination Date,
Tenant shall pay for Tenant's Pro Rata Share of Office Expenses
and Office Taxes applicable to the Office Space in accordance with
the terms of the Lease.
8.02. ORIGINAL LAB SPACE FOR THE EXTENDED TERM. For the period
commencing with the Extension Date and ending on the Extended
Termination Date, Tenant shall pay for Tenant's Pro Rata Share of
Lab Expenses and Lab Taxes applicable to the Original Lab Space in
accordance with the terms of the Lease.
8.03. EXPANSION SPACE FROM EXPANSION EFFECTIVE DATE THROUGH EXTENDED
TERMINATION DATE. For the period commencing with the Expansion
Effective Date and ending on the Extended Termination Date, Tenant
shall pay for Tenant's Pro Rata Share of Lab Expenses and Lab
Taxes applicable to the Expansion Space in accordance with the
terms of the Lease.
9. IMPROVEMENTS TO EXPANSION SPACE.
9.01. CONDITION OF EXPANSION SPACE. Tenant has inspected the Expansion
Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs or
improvements.
9.02. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Tenant may
perform improvements to the Expansion Space in accordance with the
Work Letter attached hereto as EXHIBIT C and Tenant shall be
entitled to an improvement allowance in connection with such work
as more fully described in EXHIBIT C.
10. EARLY ACCESS TO EXPANSION SPACE. If Tenant occupies the Expansion Space
for the conduct of its business therein before the Expansion Effective
Date (the "EXPANSION SPACE OCCUPANCY"), during the period commencing on
the first day of the Expansion Space Occupancy and ending on the day
preceding the Expansion Effective Date, (the "EXPANSION SPACE OCCUPANCY
PERIOD"), Tenant shall not be required to pay Rent with respect to the
Expansion Space, provided however, during the Expansion Space Occupancy
Period, Tenant shall be subject to the terms and conditions of the Lease
and this Amendment, and Tenant shall pay the actual costs of the Science
Building Services with respect to the Expansion Space, together with the
cost of any special services requested by Tenant (e.g. freight elevator
usage). Except for he cost of services requested by Tenant with respect
to the Expansion Space, Tenant shall not be required to pay Rent or the
cost of Science Building Services with respect to the Expansion Space for
any days of possession before the Expansion Effective Date during which
Tenant, with the approval of Landlord, is in possession of the Expansion
Space for the
4
sole purpose of performing improvements or installing furniture,
equipment or other personal property.
11. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective as
of the date of this Amendment (unless different effective dates are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
11.01. PARKING.
A. Effective as of the Expansion Effective Date, the first
sentence of Section 2.01 of EXHIBIT E of the Lease shall be
deleted in its entirety and replaced with the following:
"During the initial Term, Tenant agrees to lease from
Landlord and Landlord agrees to lease to Tenant a total of
76 unreserved parking spaces and 2 reserved spaces
(collectively, the "SPACES"), for the use of Tenant and its
employees, in the parking facility owned by Landlord that
serves the Building (the "PARKING FACILITY"), and if the
Parking Facility includes a garage, then such Spaces may be
in, or on the roof of, such garage."
B. Effective as of the Expansion Effective Date, Section 2.02
of EXHIBIT E of the Lease shall be deleted in its entirety
and replaced with the following:
"During the initial Term, Tenant shall pay Landlord, as
Additional Rent in accordance with Section 4 of the Lease,
the sum of $210.00 per month, plus applicable tax thereon,
if any, for each unreserved Space leased by Tenant
hereunder, and the sum of $260.00 per month, plus
applicable tax thereon, if any, for each reserved Space
leased by Tenant hereunder, as such rates may be adjusted
from time-to-time to reflect the then current rate for
parking in the Parking Facility."
C. Effective as of the Expansion Effective Date, Section 2.03
of EXHIBIT E of the Lease shall be deleted in its entirety
and replaced with the following:
"Except for particular spaces and areas designated by
Landlord for reserved parking, all parking in the Parking
Facility shall be on an unreserved, first-come,
first-served basis. Landlord shall install a sign or other
notification as reasonably determined by Landlord to
designate the reserved Spaces provided to Tenant hereunder.
However, the Parking Facility shall always be managed by
Landlord (whether using valet parking or otherwise) so
that, subject to the provisions of this Section 2, the
Tenant will be always be able to utilize the number of
Spaces leased by Tenant hereunder."
D. Effective as of the Expansion Effective Date, the third
sentence of Section 2.06 of EXHIBIT E of the Lease shall be
deleted in its entirety and replaced with the following:
"If it is necessary for Tenant or its employees to leave an
automobile in the Parking Facility overnight, Tenant shall
use its reasonable efforts to provide Landlord with prior
notice thereof designating the license plate number and
model of such automobile."
11.02. RIGHT OF FIRST OFFER.
X. XXXXX OF OPTION; CONDITIONS. In addition to the Right of
First Offer set forth in Section 5 of EXHIBIT E of the
Lease, Tenant shall have the continuing right of first
offer (the "RIGHT OF FIRST OFFER") with respect to the
17,869 rentable square feet on the 10th floor of the Office
Building shown on the demising plan attached hereto as
EXHIBIT D and the 16,905 rentable square feet on the 18th
floor of the Office Building shown on the demising plan
attached hereto as EXHIBIT D (collectively, the "OFFERING
SPACE"). Tenant's Right of First Offer shall be exercised
as follows: at any time after Landlord has determined that
the existing tenant in any portion of the Offering Space
will not extend or renew the term of its lease for such
portion of the Offering Space (but prior to leasing such
5
portion of the Offering Space to a party other than the
existing tenant), Landlord shall advise Tenant (the "ROFO
ADVICE") of the terms under which Landlord is prepared to
lease the applicable Offering Space to Tenant for the
remainder of the Term, which terms shall reflect the
Prevailing Market (hereinafter defined) rate for such
Offering Space as reasonably determined by Landlord. Tenant
may lease such Offering Space in its entirety only, under
such terms, by delivering written notice of exercise to
Landlord (the "ROFO NOTICE OF EXERCISE") within 5 Business
Days after the date the ROFO Advice is deemed to have been
received by Tenant (in accordance with Section 24 of the
Lease), except that Tenant shall have no such Right of
First Offer and Landlord need not provide Tenant with a
ROFO Advice, if:
1. Tenant is in Default under the Lease beyond any
applicable cure periods at the time that Landlord
would otherwise deliver the ROFO Advice; or
2. the Premises, or any portion thereof, is sublet
(other than pursuant to a Permitted Transfer, as
defined in Section 11 of the Lease) at the time
Landlord would otherwise deliver the ROFO Advice; or
3. the Lease has been assigned (other than pursuant to
a Permitted Transfer, as defined in Section 11 of
the Lease) prior to the date Landlord would
otherwise deliver the ROFO Advice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the ROFO Advice; or
5. the applicable portion of the Offering Space is not
intended for the exclusive use of Tenant during the
Term; or
6. the existing tenant in the applicable portion of the
Offering Space is interested in extending or
renewing its lease for such applicable portion of
the Offering Space or entering into a new lease for
such applicable portion of the Offering Space
regardless of whether such existing tenant has an
option to renew or extend its lease; provided,
however, that if Landlord reasonably determines that
such tenant's interest will not culminate in an
executed lease renewal, extension, new lease or
other similar document, then (i) such tenant shall
be conclusively considered as not being interested,
as aforesaid, and (ii) Landlord shall be
conclusively considered as having determined (under
subsection A hereof) that such existing tenant will
not extend or renew its lease. Accordingly, at the
time of such determination of non-interest as
aforesaid, Landlord shall send Tenant the ROFO
Advice, as aforesaid, to begin the process for
Tenant's exercise of its Right of First Offer under
this Section 11.02. Landlord shall respond to
Tenant's requests for information regarding any such
existing tenant's interest in the ROFO Space and the
status of negotiation and execution of the
documentation of any such lease renewal, extension,
new lease or other similar document with such
existing tenant.
B. TERMS FOR OFFERING SPACE.
1. The term for each applicable portion of the Offering
Space shall commence upon the commencement date
stated in the ROFO Advice and thereupon each such
applicable portion of the Offering Space shall be
considered a part of the Premises, provided that all
of the terms stated in the ROFO Advice shall govern
Tenant's leasing of such applicable portion of the
Offering Space and only to the extent that they do
not conflict with the ROFO Advice, the terms and
conditions of the Lease shall apply to such
applicable portion of the Offering Space.
6
2. Tenant shall pay Base Rent and Additional Rent for
each applicable portion of the Offering Space in
accordance with the terms and conditions of the ROFO
Advice, which terms and conditions shall reflect the
Prevailing Market rate for such applicable portion
of the Offering Space as determined in Landlord's
reasonable judgment.
3. Each applicable portion of the Offering Space
(including improvements and personalty, if any)
shall be accepted by Tenant in its condition and
as-built configuration existing on the earlier of
the date Tenant takes possession of the applicable
portion of the Offering Space or as of the date the
term for such applicable portion of the Offering
Space commences, unless the ROFO Advice specifies
any work to be performed by Landlord in such
applicable portion of the Offering Space, in which
case Landlord shall perform such work in the
applicable portion of the Offering Space. If
Landlord is delayed delivering possession of the
applicable portion of the Offering Space due to the
holdover or unlawful possession of such space by any
party, Landlord shall use reasonable efforts to
obtain possession of the space, and the commencement
of the term for such applicable portion of the
Offering Space shall be postponed until the date
Landlord delivers possession of the applicable
portion of the Offering Space to Tenant free from
occupancy by any party.
C. TERMINATION OF RIGHT OF FIRST OFFER. The rights of Tenant
hereunder with respect to each applicable portion of the
Offering Space shall terminate on the earlier to occur of:
(i) November 30, 2014; (ii) Tenant's failure to exercise
its Right of First Offer within the 5 Business Day period
provided in Section 11.02.A. above; and (iii) the date
Landlord would have provided Tenant a ROFO Advice if Tenant
had not been in violation of one or more of the conditions
set forth in Section 11.02.A. above. In addition, if
Landlord provides Tenant with a ROFO Advice for any portion
of the Offering Space that contains expansion rights
(whether such rights are described as an expansion option,
right of first refusal, right of first offer or otherwise)
with respect to any other portion of the Offering Space
(such other portion of the Offering Space subject to such
expansion rights is referred to herein as the "ENCUMBERED
OFFERING SPACE") and Tenant does not exercise its Right of
First Offer to lease the Offering Space described in the
ROFO Advice, Tenant's Right of First Offer with respect to
the Encumbered Offering Space shall be subject and
subordinate to all such expansion rights contained in the
ROFO Advice. Notwithstanding the foregoing, if (i) Tenant
was entitled to exercise its Right of First Offer, but
failed to provide Landlord with a ROFO Notice of Exercise
within the 5 Business Day period provided in Section
11.02.A. above, and (ii) Landlord does not enter into a
lease for the applicable portion of the Offering Space
within a period of 12 months following the date of the ROFO
Advice, Tenant shall once again have a Right of First Offer
with respect to such portion of the Offering Space. In
addition, subject to the provisions of sub-clauses (i) and
(iii) in the first sentence of this Section 11.02.C. above,
if Landlord does enter into a lease for the applicable
portion of the Offering Space with a third party tenant
(the "ROFO PROSPECT"), Tenant shall have a Right of First
Offer on such portion of the Offering Space (subject to the
terms hereof) upon the expiration of the lease (including
any renewals or extensions thereof) with the ROFO Prospect.
D. OFFERING AMENDMENT. If Tenant exercises its Right of First
Offer, Landlord shall prepare an amendment (the "OFFERING
AMENDMENT") adding the applicable portion of the Offering
Space to the Premises on the terms set forth in the ROFO
Advice and reflecting the changes in the Base Rent,
Rentable Square Footage of the Premises, Tenant's Pro Rata
Share and other appropriate terms. A copy of the Offering
Amendment shall be sent to Tenant within a reasonable time
after Landlord's receipt of the ROFO Notice of Exercise
executed by Tenant, and Tenant shall execute and return the
Offering Amendment to Landlord within 15 days
7
thereafter, but an otherwise valid exercise of the Right of
First Offer shall be fully effective whether or not the
Offering Amendment is executed.
E. DEFINITION OF PREVAILING MARKET. For purposes of this Right
of First Offer provision, "PREVAILING MARKET" shall mean
the annual rental rate per square foot for space comparable
to the applicable portion of the Offering Space in the
Office Building and office buildings comparable to the
Office Building in the Cambridge, Massachusetts area under
leases and renewal and expansion amendments being entered
into at or about the time that Prevailing Market is being
determined, giving appropriate consideration to tenant
concessions, brokerage commissions, tenant improvement
allowances, existing improvements in the space in question,
and the method of allocating operating expenses and taxes.
Notwithstanding the foregoing, space leased under any of
the following circumstances shall not be considered to be
comparable for purposes hereof: (i) the lease term is for
less than the lease term of the applicable Offering Space,
(ii) the space is encumbered by the option rights of
another tenant, or (iii) the space has a lack of windows
and/or an awkward or unusual shape or configuration. The
foregoing is not intended to be an exclusive list of space
that will not be considered to be comparable.
11.03. SIGNAGE.
A. During the Term, Tenant shall have (a) the exclusive right
to install up to two signs (the "ROOF SIGNS") on the
exterior roof or the facade of the Office Building, with
such dimensions and in a location to be reasonably
designated by Landlord, and (b) the non-exclusive right to
install one sign depicting Tenant's logo on each of the two
existing Building monument signs currently located outside
of the Buildings (the "TENANT MONUMENT SIGNS") with such
dimensions and in a location reasonably designated by
Landlord, provided (i) for each of the Roof Signs and the
Tenant Monument Signs, Tenant receives approval from the
City of Cambridge, Massachusetts to install each of the
Roof Signs and the Tenant Monument Signs and each of the
Roof Signs and the Tenant Monument Signs complies with all
applicable signage codes, laws, regulations and ordinances;
(ii) Tenant submits to Landlord, and Landlord approves,
detailed drawings of each of the Roof Signs and the Tenant
Monument Signs prior to installing such signs; (iii) all
materials to be incorporated into each of the Roof Signs
and the Tenant Monument Signs, as well as the methods of
affixing the Roof Signs and the Tenant Monument Signs to
the Building or the existing monument signs (as the case
may be) shall be subject to the prior written and
reasonable approval of Landlord, it being agreed that
Landlord reserves the right to withhold consent if any of
the Roof Signs or the Tenant Monument Signs, in the sole,
reasonable judgment of Landlord, are not harmonious with
the design standards of the Building; and (iv) Tenant shall
bear all responsibility for all costs associated with the
Roof Signs and the Monument Signs, including, without
limitation, the cost of design, government permit and
approval procurement, construction, installation,
maintenance, repair, replacement, insurance, and removal
and repair at the expiration of the Term. If Tenant fails
to promptly make appropriate repairs or replacements to any
of the Roof Signs or the Tenant Monument Signs, Landlord
may do so, and Tenant shall reimburse Landlord's cost plus
a reasonable administrative fee in doing so. Any such costs
incurred by Landlord shall be deemed to be Additional Rent
payable under the Lease.
B. Upon the expiration or earlier termination of the Term, or
upon the assignment by Tenant of Tenant's interest in the
Lease or the subleasing by Tenant of any portion of the
Premises, Landlord shall have the right to require that
Tenant, at Tenant's sole cost and expense, remove one or
more of the Roof Signs and the Tenant Monument Signs, using
a contractor approved in writing in advance by Landlord. In
such event, Tenant, at Tenant's sole cost and expense,
shall repair all damage and deterioration attributable to
the installation or removal of the Roof Signs and the
Tenant Monument Signs or their presence during the Term to
Landlord's satisfaction. If Tenant fails to promptly remove
the Roof Signs
8
and/or the Monument Signs and to make all repairs in
connection therewith, Landlord may do so, and Tenant shall
reimburse Landlord's cost plus a reasonable administrative
fee in doing so. Tenant acknowledges that the right to
maintain the Sign shall be personal to Tenant (i.e.,
CombinatoRX, Incorporated, a Delaware corporation).
11.04. DELETED SECTIONS. Effective as of the Expansion Effective Date, in
addition to the other Sections and provisions of the Lease
modified herein, Section 6 (Right of First Refusal) of EXHIBIT E
of the Lease shall be deleted in its entirety and shall be of no
further force and effect.
12. MISCELLANEOUS.
12.01. This Amendment and the attached exhibits, which are hereby
incorporated into and made a part of this Amendment, set forth the
entire agreement between the parties with respect to the matters
set forth herein. There have been no additional oral or written
representations or agreements. Under no circumstances shall Tenant
be entitled to any Rent abatement, improvement allowance,
leasehold improvements, or other work to the Premises, or any
similar economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set
forth in this Amendment. Tenant agrees that neither Tenant nor its
agents or any other parties acting on behalf of Tenant shall
disclose any matters set forth in this Amendment or disseminate or
distribute any information concerning the terms, details or
conditions hereof to any person, firm or entity without obtaining
the express written consent of Landlord, provided, however, that
no such consent shall be required for any information required to
be disclosed to any securities exchange, governmental agency or
the like, or if otherwise required by law or court order to be
disclosed.
12.02. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
12.03. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
12.04. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an offer
by Tenant. Landlord shall not be bound by this Amendment until
Landlord has executed and delivered the same to Tenant.
12.05. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
12.06. Tenant hereby represents to Landlord that Tenant has dealt with no
broker other than Xxxxxxxx Xxxxx Xxxxx & Partners in connection
with this Amendment. Tenant agrees to indemnify and hold Landlord,
its trustees, members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents
(collectively, the "LANDLORD RELATED PARTIES") harmless from all
claims of any brokers other than Xxxxxxxx Xxxxx Xxxxx & Partners
claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment. Landlord
agrees to indemnify and hold Tenant, its trustees, members,
principals, beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals and members
of any such agents (collectively, the "TENANT RELATED PARTIES")
harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Amendment.
12.07. Each signatory of this Amendment represents hereby that he or she
has the authority to execute and deliver the same on behalf of the
party hereto for which such signatory is acting.
[SIGNATURES ARE ON FOLLOWING PAGE]
9
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
MA-RIVERVIEW/245 FIRST STREET, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY
By: Equity Office Management, L.L.C., a
Delaware limited liability company,
its non-member manager
By: /s/ Xxxxxxx Xxxxxxxx Xxxxxx
-------------------------------- -------------------------------
Name (print): Name: Xxxxxxx Xxxxxxxx Xxxxxx
------------------ -----------------------------
Title: Senior Vice President Boston Region
-------------------------------- ------------------------------------
Name (print):
------------------
WITNESS/ATTEST: TENANT:
COMBINATORX, INCORPORATED, A DELAWARE
CORPORATION
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------- ------------------------------------
Name (print): Xxxxx X. Xxxx Name: Xxxxxx Xxxxxxxxx
------------------ ------------------------------------
/s/ Xxxxxxxxx Xxxxxxxx Title: EVP and Chief Financial Officer
-------------------------------- ------------------------------------
Name (print): Xxxxxxxxx Xxxxxxxx
------------------
10
EXHIBIT A
OUTLINE AND LOCATION OF ORIGINAL PREMISES
This Exhibit is attached to and made a part of the Amendment by and
between MA-RIVERVIEW/245 FIRST STREET, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD") and
COMBINATORX, INCORPORATED, A DELAWARE CORPORATION
("TENANT") for space in the Buildings located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
[Diagram of space omitted]
11
EXHIBIT B
OUTLINE AND LOCATION OF EXPANSION SPACE
This Exhibit is attached to and made a part of the Amendment by and
between MA-RIVERVIEW/245 FIRST STREET, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD") and
COMBINATORX, INCORPORATED, A DELAWARE CORPORATION
("TENANT") for space in the Buildings located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
[Diagram of space omitted]
12
EXHIBIT C
WORKLETTER
This Exhibit is attached to and made a part of the Amendment by and
between MA-RIVERVIEW/245 FIRST STREET, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD") and
COMBINATORX, INCORPORATED, A DELAWARE CORPORATION
("TENANT") for space in the Buildings located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
As used in this Work Letter, the "PREMISES" shall be deemed to mean the
Expansion Space, as defined in the attached Amendment.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and the
full and final execution and delivery of the Amendment to which
this Exhibit is attached and all prepaid rental and security
deposits required under such agreement, shall have the right to
perform alterations and improvements in the Premises (the "INITIAL
ALTERATIONS"). Notwithstanding the foregoing, Tenant and its
contractors shall not have the right to perform Initial
Alterations in the Premises unless and until Tenant has complied
with all of the terms and conditions of Section 9 of the Lease,
including, without limitation, approval by Landlord of the final
plans for the Initial Alterations and the contractors to be
retained by Tenant to perform such Initial Alterations. Tenant
shall be responsible for all elements of the design of Tenant's
plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design,
the configuration of the Premises and the placement of Tenant's
furniture, appliances and equipment), and Landlord's approval of
Tenant's plans shall in no event relieve Tenant of the
responsibility for such design. Landlord's approval of the
contractors to perform the Initial Alterations shall not be
unreasonably withheld. Landlord hereby approves of The Richmond
Group as Tenant's general contractor to perform the Initial
Alterations. If Tenant does not elect to utilize The Richmond
Group as its general contractor for the Initial Alterations, then
the parties agree that Landlord's approval of any other general
contractor to perform the Initial Alterations shall not be
considered to be unreasonably withheld if any such general
contractor (i) does not have trade references reasonably
acceptable to Landlord, (ii) does not maintain insurance as
required pursuant to the terms of the Lease, (iii) does not have
the ability to be bonded for the work in an amount of no less than
150% of the total estimated cost of the Initial Alterations, (iv)
does not provide current financial statements reasonably
acceptable to Landlord, or (v) is not licensed as a contractor in
the state/municipality in which the Premises is located. Tenant
acknowledges the foregoing is not intended to be an exclusive list
of the reasons why Landlord may reasonably withhold its consent to
a general contractor other than The Richmond Group.
B. Provided Tenant is not in default, Landlord agrees to contribute
the sum of $2,899,875.00 (the "ALLOWANCE") toward the cost of
performing the Initial Alterations in preparation of Tenant's
occupancy of the Premises. The Allowance may only be used for the
cost of preparing design and construction documents and mechanical
and electrical plans for the Initial Alterations and for hard
costs in connection with the Initial Alterations. The Allowance,
less a 10% retainage (which retainage shall be payable as part of
the final draw), shall be paid to Tenant or, at Landlord's option,
to the order of the general contractor that performs the Initial
Alterations, in periodic disbursements within 30 days after
receipt of the following documentation: (i) an application for
payment and sworn statement of contractor substantially in the
form of AIA Document G-702 covering all work for which
disbursement is to be made to a date specified therein; (ii) a
certification from an AIA architect substantially in the form of
the Architect's Certificate for Payment which is located on AIA
Document G702, Application and Certificate of Payment; (iii)
Contractor's, subcontractor's and material supplier's waivers of
liens which shall cover all Initial Alterations for which
disbursement is being requested and all other statements and forms
required for compliance with the mechanics' lien laws of the state
in which the Premises is located, together with all such invoices,
contracts, or other supporting data as Landlord or Landlord's
Mortgagee may reasonably require; (iv) a cost breakdown for each
trade or subcontractor performing the Initial Alterations; (v)
plans and specifications for the Initial Alterations, together
with a
13
certificate from an AIA architect that such plans and
specifications comply in all material respects with all laws
affecting the Building, Property and Premises; (vi) copies of all
construction contracts for the Initial Alterations, together with
copies of all change orders, if any; and (vii) a request to
disburse from Tenant containing an approval by Tenant of the work
done and a good faith estimate of the cost to complete the Initial
Alterations. Upon completion of the Initial Alterations, and prior
to final disbursement of the Allowance, Tenant shall furnish
Landlord with: (1) general contractor and architect's completion
affidavits, (2) full and final waivers of lien, (3) receipted
bills covering all labor and materials expended and used, (4)
as-built plans of the Initial Alterations, and (5) the
certification of Tenant and its architect that the Initial
Alterations have been installed in a good and workmanlike manner
in accordance with the approved plans, and in accordance with
applicable laws, codes and ordinances. In no event shall Landlord
be required to disburse the Allowance more than one time per
month. If the Initial Alterations exceed the Allowance, Tenant
shall be entitled to the Allowance in accordance with the terms
hereof, but each individual disbursement of the Allowance shall be
disbursed in the proportion that the Allowance bears to the total
cost for the Initial Alterations, less the 10% retainage
referenced above. Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under the
Lease, and Landlord's obligation to disburse shall only resume
when and if such default is cured.
C. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. If Tenant does not submit a request for payment of the
entire Allowance to Landlord in accordance with the provisions
contained in this Exhibit by January 31, 2007, any unused amount
shall accrue to the sole benefit of Landlord, it being understood
that Tenant shall not be entitled to any credit, abatement or
other concession in connection therewith. Tenant shall be
responsible for all applicable state sales or use taxes, if any,
payable in connection with the Initial Alterations and/or
Allowance.
D. Tenant agrees to accept the Premises in its "as-is" condition and
configuration, it being agreed that Landlord shall not be required
to perform any work or, except as provided above with respect to
the Allowance, incur any costs in connection with the construction
or demolition of any improvements in the Premises.
E. This Exhibit shall not be deemed applicable to any additional
space added to the Premises at any time or from time to time,
whether by any options under the Lease or otherwise, or to any
portion of the Original Premises or any additions to the Premises
in the event of a renewal or extension of the Extended Term of the
Lease, whether by any options under the Lease or otherwise, unless
expressly so provided in the Lease or any amendment or supplement
to the Lease.
14
EXHIBIT D
OUTLINE AND LOCATION OF OFFERING SPACES
This Exhibit is attached to and made a part of the Amendment by and
between MA-RIVERVIEW/245 FIRST STREET, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD") and
COMBINATORX, INCORPORATED, A DELAWARE CORPORATION
("TENANT") for space in the Buildings located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
[Diagram of space omitted]
15
EXHIBIT E
COPY OF ORIGINAL LETTER OF CREDIT
16
