SECOND AMENDMENT TO
LEASE
This Second
Amendment to Lease (this “ Second Amendment ”),
made as of the 26 th day of June, 2009, by and between ARE-MA
REGION NO. 28, LLC , a Delaware limited liability company
(“ Landlord ”) and ALNYLAM PHARMACEUTICALS,
INC. , a Delaware corporation (“ Tenant
”).
WHEREAS,
Landlord and Tenant are parties to a Lease dated as of
September 26, 2003, as amended by a First Amendment to Lease
dated March 16, 2006 between Landlord (as successor to Three
Hundred Third Street LLC), and Tenant (as successor to Alnylam
U.S., Inc., a Delaware corporation that is a subsidiary of Tenant
and was formerly known as Alnylam Pharmaceuticals, Inc. (the
“ Original Tenant ”), pursuant to an Assignment
of Lease dated February 28, 2006 between Original Tenant and
Tenant) (as so amended, the “ Lease ”);
and
WHEREAS ,
pursuant to the Lease, Landlord leases to Tenant certain premises
within the building known and numbered as 300 Third Street,
Cambridge, Massachusetts (the “ Building ”),
which premises include but are not limited to space on the third
and fourth floors of the Building and are more particularly
described in the Lease; and
WHEREAS,
Tenant subleases a portion of the second floor pursuant to a
Sublease dated as of September 8, 2006 (the “
Sublease ”) between Archemix Corp. (“
Archemix ”) as sublandlord, and Tenant as subtenant
(as successor to Momenta Pharmaceuticals, Inc. (“
Momenta ”) pursuant to that certain Assignment,
Assumption and Consent Agreement; and First Amendment to Sublease
dated October 31, 2007 by and among Tenant, Archemix and
Momenta); and
WHEREAS ,
Tenant desires to terminate the Sublease and add to the Premises
demised under the Lease the space on the second floor consisting of
approximately 33,022 square feet (the “ Second Floor
Premises ”) and the chemical storage room on Level P-1
consisting of approximately 507 square feet (the “ 507 SF
Chemical Storage Room, ” which together with the Second
Floor Premises is referred to herein as the “ Additional
Premises ”) and otherwise to amend the Lease in certain
particulars; and
WHEREAS,
Landlord and Tenant have agreed to amend the Lease in certain
particulars to accomplish the foregoing and other matters set forth
herein as more particularly provided below.
NOW,
THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree
as follows:
1.
Defined Terms . All capitalized terms used and not
otherwise defined herein shall have the respective meanings
ascribed to them in the Lease. In the event of any
inconsistency
between the
Lease and this Second Amendment, the provisions of this Second
Amendment shall control, and all other provisions of the Lease
shall remain in full force and effect.
2.
Additional Premises Commencement Date . The Effective
Date and the Rent Commencement Date with respect to the Additional
Premises shall be July 1, 2009 (the “ Additional
Premises Commencement Date ”).
3.
Modifications to Lease . Effective as of the Additional
Premises Commencement Date, the Lease is hereby modified as
follows:
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(a)
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Article 1D entitled
“Premises” is hereby deleted in its entirety and
replaced with the following:
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D.
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Premises:
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Square feet
(Rentable): A total of approximately 95,410 comprised of 33,022
square feet on Level 02 (the “Second Floor Premises”),
32,537 square feet on Level 03 (the “Third Floor
Premises”), 28,428 square feet on Level 04 (the “Fourth
Floor Premises”), 366 square feet relating to the rooftop
penthouse, 185 square feet relating to the acid neutralization
room, 365 square feet relating to one Level P-1 chemical storage
room (the “365 SF Chemical Storage Room”) and 507
square feet relating to a second Level P-1 chemical storage room
(the “507 SF Chemical Storage Room”) (the rooftop
penthouse, acid neutralization room, 365 SF Chemical Storage Room
and 507 SF Chemical Storage Room are hereinafter collectively
referred to as the “Peripheral Spaces”).
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(b)
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The
Additional Premises and the 507 SF Chemical Storage Room are shown
on Exhibit A attached hereto and made a part hereof,
which Exhibit A is hereby attached to and made a part
of the Lease.
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(c)
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Article 1F entitled
“Landlord’s Address” is hereby deleted in its
entirety and replaced with the following:
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F.
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Landlord’s Address:
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Alexandria Real
Estate Equities, Inc.
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385 E. Colorado
Boulevard, Suite 299
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Pasadena, CA
91101
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Attention:
Corporate Secretary
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(d)
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Article 1G entitled
“Building Manager/Address” is hereby deleted, and any
notices or other communications to be sent to the Building Manager
shall be sent to the Landlord at the Landlord’s
Address.
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(e)
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Article 1I entitled
“Expiration Date” is hereby deleted in its entirety and
replaced with the following:
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I.
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Expiration
Date:
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September 30, 2016
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The
foregoing amendment to the Expiration Date shall operate to extend
the Original Term, and Tenant shall continue to have two options to
extend the Term as set forth in the second paragraph of
Article 2 of the Lease, provided that 95% of “Fair
Market Rent” shall be: (i) for the first Extended Term,
determined in the manner as set forth in Article 2 of the
Lease, and (ii) for the second Extended Term, no less than the
Monthly Rent and Parking Fee, as applicable, for the 12-month
period ending on the last day of the first Extended
Term.
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(f)
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Article 1J is hereby deleted in
its entirety and replaced with the following:
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J.
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Security
Deposit:
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None.
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(g)
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Landlord shall return to Tenant the
Security Deposit held by Landlord pursuant to Article 23 of
the Lease, and promptly upon execution of this Second Amendment by
Landlord and Tenant, Landlord shall submit the original letter of
credit held by Landlord as the Security Deposit under the Lease to
the issuing bank with a notice of cancellation of such letter of
credit.
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(h)
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Article 1K entitled
“Monthly Rent” is hereby amended so that beginning on
the Additional Premises Commencement Date the Monthly Rent for the
entire Premises shall be as set forth in the table
below:
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[Second Amendment continues on next
page]
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ANNUAL
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MONTHLY
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RATE PER SQUARE
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PERIOD
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RENT
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RENT
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FOOT
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July 1,
2009 through October 9, 2011
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$
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3,726,715
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$
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310,560
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Set forth in Footnote 1
below
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October 10, 2011 through September 30,
2012
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$
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3,912,764
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$
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326,064
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$41.01 per square foot
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October 1,
2012 through September 30, 2013
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$
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4,069,237
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$
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339,103
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$42.65 per square foot
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October 1,
2013 through September 30, 2014
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$
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4,232,388
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$
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352,699
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$44.36 per square foot
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October 1,
2014 through September 30, 2015
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$
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4,401,263
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$
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366,772
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$46.13 per square foot
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October 1,
2015 through September 30, 2016
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$
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4,577,772
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$
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381,481
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$47.98 per square foot
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(i)
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The
first sentence of Article 1N of the Lease is hereby deleted
and replaced with the following (it being understood that the
second sentence of Article 1N is unchanged):
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N.
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Tenant’s
Pro Rata Share:
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72.48
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%
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(j)
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Article 1R entitled
“Parking Fee/Parking Spaces” is hereby deleted in its
entirety and replaced with the following:
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R.
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Parking
Fee:
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Fair market
parking rates, as adjusted from time to time. As of the Additional
Premises
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1
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The rental
rates per square foot for the portions of the Premises for the
period from July 1, 2009 through October 9, 2011 are as
set forth below:
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PORTION OF PREMISES
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RATE PER SQUARE
FOOT
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$
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45.50
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Roof and Chem. Suite 300A
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$
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45.50
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$
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45.50
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Suite 402 (First Amendment)
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$
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11.95
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Level 02, Suite 200 and 507 SF Chemical
Storage Room
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$
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45.00
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4
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Commencement
Date the Parking Fee shall be $215 per space per month, subject to
future adjustment in accordance with the Lease.
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Parking
Spaces:
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102
non-reserved spaces.
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(k)
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Article 2 of the Lease is
hereby amended to insert the following sentence into the sixth
paragraph of Article 2, after the sentence that ends with the
phrase “in each case also referred to below collectively as
‘Fair Market Rent’”:
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Landlord
and Tenant agree that 95% of “Fair Market Rent” shall
be: (i) for the first Extended Term, determined in the manner
as set forth in this Article 2, and (ii) for the second
Extended Term, no less than the Monthly Rent and Parking Fee, as
applicable, for the 12-month period ending on the last day of the
first Extended Term.
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(l)
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Article 14 of the Lease is
hereby amended to add the following as the new second, third and
fourth paragraphs of Article 14:
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At
least 3 months prior to the surrender of the Premises, Tenant
shall deliver to Landlord a narrative description of the actions
proposed (or required by any governmental authority) to be taken by
Tenant in order to surrender the Premises at the expiration or
earlier termination of the Term, free from any Hazardous Materials
as required under Article 27B of this Lease (the “
Surrender Plan ”). Such Surrender Plan shall be
accompanied by a current listing of (i) all Hazardous
Materials licenses and permits held by or on behalf of Tenant or
any of Tenant’s agents, employees, invitees and contractors
with respect to the Premises, and (ii) all Hazardous Materials
used, stored, handled, treated, generated, released or disposed of
from the Premises, and shall be subject to the review and approval
of Landlord’s environmental consultant. In connection with
the review and approval of the Surrender Plan, upon the request of
Landlord, Tenant shall deliver to Landlord such additional
non-proprietary information concerning Tenant’s use of
Hazardous Materials as Landlord shall reasonably
request.
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On or
before such surrender, Tenant shall deliver to Landlord evidence
that the approved Surrender Plan shall have been satisfactorily
completed and Landlord shall have the right to cause
Landlord’s environmental consultant to inspect the Premises
and perform such additional procedures as may be deemed reasonably
necessary to confirm that the Premises are, as of the effective
date of such surrender or early termination of the Lease, free from
any Hazardous Materials as required under Article 27B of this
Lease. Landlord shall have the right to deliver such Surrender Plan
and any report by Landlord’s environmental consultant with
respect to the surrender of the Premises to third parties. If
Tenant shall fail to prepare or submit a Surrender
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Plan approved
by Landlord, or if Tenant shall fail to complete the approved
Surrender Plan, or if such Surrender Plan, whether or not approved
by Landlord, shall fail to adequately address any Hazardous
Materials in the Premises, Landlord shall have the right to take
such actions as Landlord may deem reasonable or appropriate to
assure that the Premises are surrendered free from any Hazardous
Materials, the cost of which actions shall be reimbursed by Tenant
as Additional Rent.
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(m)
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The
following shall be added as a new Article 32 of the
Lease:
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(a) Right of
First Offer . The approximately 34,521 rentable square feet
located on the first floor of the Building and portions of Levels
P-1 and P-2 of the Building and shown on Exhibit B
attached hereto and made a part hereof (collectively, the
“ROFO Space”) is currently leased to Archemix under a
Lease between Landlord and Archemix dated April 11, 2005, as
amended by a First Amendment to Lease dated July 9, 2006 and a
Second Amendment to Lease dated October 31, 2007 (as amended,
the “Archemix Lease”). In the event that:
(i) Archemix notifies Landlord of its exercise of its right to
terminate the Archemix Lease on or before the deadline for such
notice as set forth in the Archemix Lease, (ii) Landlord
terminates the Archemix Lease for any reason, or
(iii) Archemix vacates the ROFO Space for any reason, then
Landlord shall notify Tenant of the availability of the ROFO Space
(the “Expansion Notice”), and subject to the terms and
conditions of this Article 32, Tenant shall have the right of
first offer to lease the ROFO Space for the balance of the Term of
this Lease after Archemix has vacated the ROFO Space at a rental
rate for such ROFO Space equal to the “Rate Per Square
Foot” for the Premises as set forth in Article 1K of
this Lease for the applicable time periods as set forth in
Article 1K and otherwise on the same terms and conditions as
this Lease (the “Right of First Offer”);
provided , however , that if as of the date that the
ROFO Space is available as specified in Landlord’s notice
fewer than 18 months remain in the Term of this Lease, then as
a condition to the exercise of the Right of First Offer Tenant
shall be required to exercise its right to extend the Term of this
Lease for an additional 5-year period as set forth in
Article 2 of this Lease. Tenant shall have 15 business days
following delivery of the Expansion Notice to deliver to Landlord
written notification of Tenant’s exercise of the Right of
First Offer. If Tenant fails to deliver notice accepting the terms
of the Expansion Notice within such 15-business-day period, Tenant
shall be deemed to have waived its right to lease such ROFO
Space.
(b) Lease
Amendment. After Tenant delivers notice accepting the terms of
the Expansion Notice within such 15-day period, the parties shall
enter into an amendment to this Lease within 60 days from the
date of the Expansion Notice; provided that Landlord tenders to
Tenant an amendment to this Lease
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setting forth
the terms for the rental of the ROFO Space consistent with those
set forth in the Expansion Notice and otherwise consistent with
this Lease. If such amendment is not so executed within such 60-day
period, Tenant shall be deemed to have waived its right to lease
such ROFO Space.
(c)
Exceptions. Notwithstanding the provisions of this
Article 32, Landlord may elect not to lease the ROFO Space to
Tenant, and in such event Tenant shall not be entitled to lease the
ROFO Space:
i. during any
period of time that Tenant is in “Material Default” (as
defined below in Article 32(d)) under the Lease beyond
applicable cure periods; or
ii. if Tenant
has been in default (whether or not in Material Default) under any
provision of the Lease 3 or more times, whether or not any such
defaults are cured, during the 12 month period prior to the
date of Landlord’s Expansion Notice.
(d)
Termination . The Right of First Offer shall terminate and
be of no further force or effect at the election of Landlord, even
after Tenant’s due and timely exercise of the Right of First
Offer, if, after such exercise, but prior to the commencement date
of the lease with respect to the ROFO
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