Agreement Between Owner And Contractor

EXHIBIT 10.3


AGREEMENT BETWEEN OWNER AND CONTRACTOR


THIS AGREEMENT between Owner and Contractor (the "Agreement") is entered into as of the 25th day of April, 2002 by and between Millennium Pharmaceuticals, Inc. ("Owner") and Walsh Brothers Incorporated ("Contractor").


WHEREAS, FC 40 Landsdowne, Inc. ("Landlord") and Owner as "tenant" are parties to a certain lease (the "Lease") of premises located at 40 Landsdowne Street, Cambridge, Massachusetts;


WHEREAS, pursuant to the Lease, Landlord is developing an office and laboratory building (the "Building") of which Tenant will be the sole tenant;


WHEREAS, Landlord has entered into a contract with Contractor dated November 16, 2001 (the "Owner/Contractor Contract") (in the form attached hereto as Exhibit I) to provide construction services for the base building work at the Building (the "Base Building Work");


WHEREAS, Owner desires to engage the Contractor to provide construction services for the Project, described below, being work not included in the Base Building Work (the "Tenant Work");


WHEREAS, the Lease requires that Tenant's contract with the Contractor be in substantially the same form as the Landlord/Contractor Contract; and


WHEREAS, the parties intend that the terms of the Landlord/Contractor Contract be incorporated into this Agreement, except as modified by the terms below, which shall take precedence over and supercede any and all inconsistent provisions of the Landlord/Contractor Contract;


NOW, THEREFORE, Owner and Contractor agree as follows:


The parties agree to be bound by a contract on the terms and conditions of the Owner/Contractor Contract, except as particular Sections and other items therein are modified as set forth below, each heading below referring to a Section or item of the Owner/Contractor Contract to be modified.


Owner: All references to Owner shall mean:


Millennium Pharmaceuticals, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139 (herein called
"Owner" or "Tenant")


Project: The project governed by this Agreement shall be
Tenant Work, including all interior systems, for
office and laboratory space within cold core
shell building located at 40 Landsdowne Street.


Section 4.1: Delete "June 21, 2001" and replace with
"October 3, 2001".


Section 4.2: Delete "September 23, 2002" and replace with
"June 10, 2003".


Section 5.1: Delete "Eight hundred twelve thousand five
hundred dollars ($812,500)" and replace with
"One million two hundred thousand twenty-eight
dollars ($1,200,028)".


Delete the last sentence and replace with "For
changes in the Work that increase the Cost of
the Work in the aggregate, the Contractor's
compensation shall be increased by an amount
equal to three percent (3%) of the amount of the
direct net (i.e., taking into account the net
effect of changes in the Work decreasing the
Cost of the Work and changes in the Work
increasing the cost of the Work) direct increase
in the Cost of the Work."


Section 5.2.1: Delete "Twenty-six million one hundred thirty
four thousand and six dollars ($26,134,006)" and
replace with "Forty-one million five hundred
forty-five thousand three hundred eighty-five
dollars ($41,545,385)".


Section 7.3.1: Delete "five hundred twenty four thousand one
hundred fifteen dollars ($524,115)" and replace
with "One million four hundred seventeen
thousand one hundred fifty-five dollars
($1,417,155)".


Section 12.2: Delete "or as follows."


Article 14: After Section 14.3.6, the following Sections are
hereby inserted:


"14.4 During the course of the performance of
the Work, Contractor may be given or observe
certain trade secrets, technical know-how and
other confidential information of Owner and its
affiliates ("Confidential Information").
Contractor agrees: (i) to hold all such
Confidential Information in confidence; (ii) not
to disclose such Confidential Information to
others; and (iii) not to use such Confidential
Information for any purpose other than the
performance of Work under this Agreement.
Contractor agrees to limit dissemination of and
access to such Confidential Information to those
individuals in the Contractor's organization who
have a need to know such Confidential
Information for the above-described purpose.
Should Contractor or any member of the
Contractor's organization conceive any invention
as a result of receiving or observing such
information, Contractor agrees to assign or have
assigned that invention to Owner. Contractor
recognizes that Owner's facilities are private
and Contractor will abide by Owner's security
requirements and conditions for facilities
access and usage and agrees that only those
subjects, areas and programs designated by Owner
as necessary to fulfill Owner's requirements
will be accessed and/or perused by Contractor or
any individuals in the Contractor's
organization. In no event will any programs or
information be copied or removed without Owner's
express written approval.


14.5 Contractor or any tier subcontractor shall
neither hire any employee or officer of Owner
while that employee or officer is an employee or
officer of Owner, nor pay any salaries,
commissions, fees or make any payments or
rebates to any employee or officer of Owner, or
to any designee of any such employee or officer,
nor favor any employee or officer of Owner, or
any designee of any such employee or officer
with gifts or entertainment of significant cost
or value, or with services or goods sold at less
than full market value.


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14.6 Contractor shall work with the Landlord and
Owner to coordinate the management,
administration and scheduling of the Base
Building Work and the Tenant Work. Such
cooperation shall include, without limitation,
coordination of schedules, regular meetings,
generally to be held weekly, during the
construction period."


Section 16.1.2: Delete the phrase beginning "all as contained"
and ending with __/__/2001" and replace with
"forming part of this Agreement and bound
herewith, and subject to the modifications
thereto set forth below".


Schedules A-1, A-2, B, C, D, Delete and replace with the attached Schedules E, F, G, H, I, J, and K: A-1, A-2, B, C, D, E, F, G, H, I, J and K,
respectively.


Exhibits A, B and C: Replace each time it appears "FC 40 Landsdowne,
Inc." with "Millennium Pharmaceuticals, Inc."


Exhibits D and E: Although Landlord is not the "Owner" under this
Agreement, the provisions of these Exhibits
remain applicable. It is acknowledged, however,
that except as may be otherwise provided in the
Lease, any and all discretion and rights under
these Exhibits to be exercised by the Owner
shall be exercised by Millennium
Pharmaceuticals, Inc.


In addition to the foregoing, the following modifications are made to the General Conditions:


Section 1.2.12: After the phrase "performed by others" insert
"or the Base Building Work."


Section 2.1.2.1: Delete "Peter Calkins and Allison Nichols, who
shall each" and replace with "Paul Pratt, who
shall".


Section 3.5.1: Delete the last two sentences and replace with:
"As used herein the term Collective Completion
means the substantial completion of all work
under the Contract Documents and all work under
the Owner/Contractor Contract."


Section 3.10.1: Replace "Schedule A" with "Schedule A-l".


Section 3.13.1: At the end of this Section, insert the
following: "The Contractor shall coordinate
construction access as required to perform the
work under this Agreement, with the
Owner/Contractor Contract".


Section 4.4.2: Replace "Allison Nichols" with "Paul Pratt."


Section 4.4.3: Replace "Allison Nichols" with "Paul Pratt".


Replace "Gayle Farris" with "Glenn Batchelder".


Section 4.5.4: Replace "Peter Calkins" with "Paul Pratt".


Section 9.8.1: Delete "one hundred thousand dollars ($100,000)"
and replace the same with "four hundred thousand
dollars ($400,000)".


Delete "thirty (30)" and replace the same with
"ninety (90)".


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Delete each time it appears the phrase "other
than the Deferred Work." In clause (c) of the
first sentence replace "Owner's tenants" with
"Owner" and "such tenants"' with "Owner's". Add
at end of the first sentence: "and (f) the
Certificate of Occupancy has been issued by the
City of Cambridge". However, this requirement
shall be limited to only those issues that are
in the control of the Contractor. Delete the
last two sentences.


Section 11.4.1: Insert the following at the end of this Section:
"Notwithstanding the foregoing, to the extent
that any such bonds are specified on Schedule B
of the Contract, the Guaranteed Maximum Price
shall not be increased on account of the cost of
such bonds."


Section 13.2.1: At the end of this Section, insert the
following: "Notwithstanding the foregoing, Owner
shall have the right to assign this Agreement to
any entity controlling, controlled by or under
common control with Owner, any entity that is
the successor by merger to Owner or any entity
acquiring all or substantially all of the stock
or assets of Owner. Without limiting the
foregoing, after Substantial Completion, the
Owner's rights under this Agreement may be
assigned to a successor to or assignee of
Owner's interest as tenant under the Lease."


Section 13.3.1: Delete "Gayle B. Farris, with a copy to James
Ratner, Forest City Rental Properties, 1100
Terminal Tower, Cleveland, OH 44115" and replace
with "Paul Pratt, with a copy to Pat Gallagher,
Hanscomb, Inc., c/o Millennium Pharmaceuticals,
Inc., 75 Sidney Street, Cambridge, MA 02139, and
to Joel Goldberg, Esq., at the Owner's address
included at the beginning of the Agreement."


Exhibit A: Delete the Standard Form of Agreement Between
Contractor and Subcontractor (but not the
attachments and exhibits thereto) and replace
the same with the attached Exhibit A.


Exhibit A: On the "List of Additional Insured" forming a
portion of Exhibit B 1 to Exhibit A, replace
"Millennium Pharmaceuticals" with "Millennium
Pharmaceuticals, Inc."


In Section 4 of Exhibit C to Exhibit A, replace
"EXHIBIT D" with "EXHIBIT A."


Exhibit C, Section 10(a): Replace "$25,000,000 on a per project basis"
with "$35,000,000 on a per occurrence annual
aggregate basis."


Exhibit C, Section 10(a)(i): Replace "on a per location basis" with "on a per
project aggregate basis."


Exhibit C, Section 10(d): Delete Section 10(d) in its entirety.


Exhibit C, Section 12: Replace number (8) of this Section with the
following:


"(8) Millennium Pharmaceuticals, Inc.
75 Sidney Street
Cambridge, MA 02139"


Add the following to the end of this Section:


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"(11) Hanscomb, Inc.
2067 Massachusetts Avenue
Cambridge, MA 02140"


Exhibit C, Section 13: Replace the name of the certificate holder set
forth in this Section with Millennium
Pharmaceuticals, Inc., 75 Sidney Street,
Cambridge, MA 02139


Exhibit C, Section 15: Insert at the beginning of this paragraph, "The
Landlord, on behalf of".


Insert at the end of this paragraph the
following: "Such insurance shall cover the Base
Building Work and the Tenant Work. The cost of
such insurance shall be allocated between
Landlord and Owner in the manner set forth in
Section 7.4 of the lease between Landlord and
Owner."


Exhibit C, Section 16: Replace "EXHIBIT D" with "EXHIBIT A".


Schedule 1: Delete this Schedule


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This Agreement is executed as a sealed instrument as of the date first above written.


OWNER:


Millennium Pharmaceuticals, Inc.


By: /s/ Glenn Batchelder
-------------------------------------
Name: Glenn Batchelder
Title: VP, Operations


CONTRACTOR:


Walsh Brothers Incorporated


By: /s/ Jeffrey J. Corcoran
-------------------------------------
Name: Jeffrey J. Corcoran
Title: Vice President


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STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONTRACTOR WHERE THE BASIS OF PAYMENT IS
THE COST OF THE WORK PLUS A FEE WITH OR
WITHOUT A GUARANTEED MAXIMUM PRICE


AIA DOCUMENT A111 - ELECTRONIC FORMAT


THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.


The 1987 Edition of AIA Document A201, General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified. This document has been approved and endorsed by The Associated General Contractors of America.


Copyright 1920, 1925, 1951, 1958, 1961, 1967, 1974, 1978, 1987 by The American Institute of Architects, 1735 New York Avenue N.W., Washington D.C. 20006-5292. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution.


AGREEMENT


made as of the 16th day of November in the year of Two Thousand One and is effective as of the 21st day of June in the year Two Thousand One


BETWEEN the Owner: (NAME AND ADDRESS)


FC 40 Landsdowne, Inc. c/o Forest City Commercial Group, Inc. 38 Sidney Street Cambridge, MA 02199


and the Contractor: (NAME AND ADDRESS)


Walsh Brothers Incorporated 150 Hampshire Street Cambridge, MA 02139


the Project is: (NAME AND ADDRESS)


40 Landsdowne Street
Cambridge, MA


the Architect is: (NAME AND ADDRESS)


Elkus/Manfredi Architects Ltd. 530 Atlantic Avenue Boston, MA 02210


The Owner and Contractor agree as set forth below.


ARTICLE 1
THE CONTRACT DOCUMENTS


1.1 The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 16. If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall govern.


ARTICLE 2
THE WORK OF THIS CONTRACT


2.1 The Contractor shall execute the entire Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others.


ARTICLE 3
RELATIONSHIP OF THE PARTIES


3.1 The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and utilize the Contractor's best skill, efforts and judgment in furthering the interests of the Owner; to furnish efficient business administration and supervision; to make best efforts to furnish at all times an adequate supply of workers and materials; and to perform the Work in the best way and most expeditious and economical manner consistent with the interests of the Owner. The Owner agrees to exercise best efforts to enable the Contractor to perform the Work in the best way and most expeditious manner by furnishing and approving in a timely way information required by the Contractor and making payments to the Contractor in accordance with requirements of the Contract Documents.


3.2 The Contractor acknowledges that the Owner's desired approach to the design and construction of the Project is for the Architect, the Owner and the Contractor to work cooperatively toward the express objectives of (a) designing a Project that can be constructed in accordance with the Construction Documents, without the need for significant changes or corrections during the construction phase, (b) designing and constructing a Project that, upon completion of the Work, will be complete, ready for operation and suitable for the Owner's intended use, (c) meeting the Owner's schedule for completion of the Project, and (d) meeting the Construction budget requirements. The Contractor shall endeavor, in the performance of the services covered by this Agreement, to act in a manner consistent with the Owner's desired approach and express objectives.


ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


4.1 The date of commencement was June 21, 2001 (INSERT THE DATE OF COMMENCEMENT, IF IT DIFFERS FROM THE DATE OF THIS AGREEMENT OR, IF APPLICABLE, STATE THAT THE DATE WILL BE FIXED IN A NOTICE TO PROCEED.)


4.2 The Contractor shall perform the Work in accordance with the construction schedule attached hereto as SCHEDULE A-1 (the "Construction Schedule"), and shall achieve Substantial Completion of the entire Work not later than


(INSERT THE CALENDAR DATE OR NUMBER OF CALENDAR DAYS AFTER THE DATE OF COMMENCEMENT. ALSO INSERT ANY REQUIREMENTS FOR EARLIER SUBSTANTIAL COMPLETION OF CERTAIN PORTIONS OF THE WORK, IF NOT STATED ELSEWHERE IN THE CONTRACT DOCUMENTS.) [INSERT]


September 23, 2002 , subject to adjustments of this Contract Time as provided in the Contract Documents. (INSERT PROVISIONS, IF ANY, FOR LIQUIDATED DAMAGES RELATING TO FAILURE TO COMPLETE ON TIME.) SCHEDULE A-2 attached hereto sets forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as "Milestone Dates"). The Construction Schedule and the Milestone Dates may be adjusted pursuant to Paragraph 8.3 of the General Conditions of the Contract.


ARTICLE 5
CONTRACT SUM


5.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the Contract Sum consisting of the Cost of the Work as defined in Article 7 and the Contractor's Fee (STATE A LUMP SUM, PERCENTAGE OF COST OF THE WORK OR OTHER PROVISION FOR DETERMINING THE CONTRACTOR'S FEE, AND EXPLAIN HOW THE CONTRACTOR'S FEE IS TO BE ADJUSTED FOR CHANGES IN THE WORK.)


in the lump sum amount of Eight hundred twelve thousand five hundred dollars ($812,500). Notwithstanding anything to the contrary, there shall be no adjustment in the Contractor's Fee for changes in the Work.


5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)


5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by the Contractor not to exceed Twenty six million one hundred thirty four thousand and six Dollars ($26,134,006) ($), subject to additions and deductions by Change Order as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner.


5.2.1.1 A detailed, line-item breakdown of the Guaranteed Maximum Price, including the Cost of the Work and the Contractor's Fee (the "GMP Breakdown"), is attached hereto and incorporated herein as SCHEDULE B.


5.2.1.2 The Owner shall be entitled to the "Guaranteed Maximum Price Savings" (as such term is defined below). As of the date of final completion of the Work the amount, if any, by which (x) exceeds (y) shall be considered the "Guaranteed Maximum Price Savings," where (x) is the Guaranteed Maximum Price (as adjusted from time to time through Change Orders) and (y) is the sum of the actual Cost of the Work and the Contractor's Fee.


5.2.1.3 The Guaranteed Maximum Price is subject to the Qualifications and Assumptions attached hereto and made a part hereof as SCHEDULE C.


5.2.1.4 The Drawings and Specifications upon which the Guaranteed Maximum Price is based are as listed and described in SCHEDULE D attached hereto and made a part hereof. (INSERT SPECIFIC PROVISIONS IF THE CONTRACTOR IS TO PARTICIPATE IN ANY SAVINGS.)


5.2.2 By executing this Agreement, the Contractor represents that the Drawings and Specifications listed in SCHEDULE D describe the scope, construction requirements and design intent of the Work in suff ...