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Exhibit 10.1
SECOND AMENDMENT
LEASE FROM
TRUSTEES OF THE CAMBRIDGE EAST TRUST
TO
EPIX MEDICAL, INC.
This is the Second Amendment made as of June 30, 2000 to the Lease dated
as of July 7, 1998 between the Trustees of The Cambridge East Trust, as
Landlord, and EPIX Medical, Inc., as Tenant, for premises at 63-75 Rogers
Street, Cambridge, Massachusetts as previously amended by First Amendment dated
February 18. 1999 (the "Lease").
Whereas, the Landlord is willing and the Tenant wishes, (i) to lease as
additional Premises a portion of the premises at 67 Rogers Street, Cambridge,
Massachusetts (sometime referred to as the portion of the Premises at 67 Rogers
Street), which constituted a portion of the First Offer Premises described in
Section 3.5 of the Lease, on the terms and conditions stated in the Lease as
previously amended, and (ii) to extend the First Offer Rights as to the Premises
at 63 Rogers Street and 65 Rogers Street on the terms and conditions stated in
this Second Amendment.
Therefore, for valuable consideration the receipt and sufficiency of which
is mutually acknowledged:
1. Section 1 Reference Data The Landlord and the Tenant amend the Lease by
substituting Section 1 Reference Data appearing at the end of this Second
Amendment for the original Section 1 Reference Data, and the Lease is hereby so
amended.
2. Exercise of Rights in First Offer Premises at 67 Rogers Street The
portion of the Premises at 67 Rogers Street being added to the Lease by this
Second Amendment are presently occupied by Therion Corporation and Landlord's
delivery thereof is affected by the date of Therion's delivery to Landlord,
which is estimated to be on or about August 12, 2000. Landlord shall use
reasonable efforts to obtain delivery of such Premises on or about August 12,
2000 (but shall not be obligated to pay money for such purpose). Landlord shall
give five days prior notice of the date those Premises are to be delivered (or
anticipated to be delivery) to Tenant. Landlord's delayed delivery of said
Premises shall in no way affect the validity of the Lease as including those
Premises but Tenant shall not be obligated to pay Annual Base Rent or any
Additional Rent on those Premises until they are delivered to Tenant and all
rent thereon for any period from August 12, 2000 to actual delivery shall be
abated entirely. If Landlord has not delivered possession of those Premises on
or before November 1, 2000, Tenant shall have the right by notice to Landlord,
continuing while such Premises remain undelivered thereafter, to terminate this
Second Amendment.
The Premises added to the Lease by this Second Amendment are delivered by
Landlord and accepted by Tenant "as is" and in broom clean condition.. Tenant
may
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enter the premises at 67 Rogers Street prior to the Commencement Date therefor
(but not prior to the present tenant vacating the same) to prepare those
Premises for Tenant's use, which entry shall be on all the terms and conditions
of the Lease including, without limitation Sections 3.3 and 8.7 thereof. If said
Premises are delivered prior to August 12, 2000, Tenant may also use those
Premises for their intended purpose immediately on delivery provided Tenant pays
Landlord daily rent at the rate of Annual Base Rent and all Additional Rent
therefore for such days of use prior to August 12, 2000.
4. The following new Section 3.5A is added to the Lease in replacement of
Section 3.5, which has lapsed.
3.5A Extension of Right of First Offer as to 63 Rogers Street and 65
Rogers Street In the event this Lease is in full force and effect without notice
of default to Tenant or, if such notice of default has been given, Tenant is
acting promptly and diligently to cure the same and applicable grace periods, if
any, have not expired, and the original Tenant holds the entire Tenant's
interest hereunder and is in occupancy of not less than 70% of the Premises and
engaged in the active conduct of its business, the original Tenant shall have a
"right of first offer" to lease all the remaining space at 63 Rogers Street and
65 Rogers Street, both in Cambridge, Massachusetts shown on Exhibit 1-A attached
to the original Lease (the "First Offer Premises") in their then existing
condition, with no obligation in Landlord with regard to altering or improving
the condition thereof, for an Annual Fixed Rent determined as stated in Section
6.1 of the Lease for a term ending on the Termination Date and otherwise on all
the terms and conditions of this Lease. Tenant may exercise the right of first
offer as to 63 Rogers Street and 65 Rogers Street only together and only on the
same, single occasion, and shall exercise such right of first offer, if at all,
only as follows.
The First Offer Premises at 63 Rogers Street and 65 Rogers Street are
presently occupied by Immunetics, Inc. under lease. If, during the Term of this
Lease, the First Offer Premises are to (or have) become available for Tenant's
use, Landlord shall so notify Tenant. Such notice shall state the date on which
the First Offer Premises in question would be added to Tenant's leased premises
under this Lease (or, if that date is uncertain, may state the earliest date
such First Offer Premises could be added to Tenant's leased premises under this
Lease) and shall be given not sooner than ninety (90) days before such date (or,
if given sooner, shall not be effective until that date). Tenant shall have the
right to lease the First Offer Premises in question on the terms and conditions
stated above if (but only if) (1) Tenant gives Landlord written notice of its
intention to do so within) thirty (30) business days of receipt (or the
effective date, if later) of Landlord's notice of availability and also (2)
executes and delivers to Landlord, within thirty (30) business days of receipt
thereof, the amendment adding the First Offer Premises to this Lease on the
terms and conditions stated above, and Tenant's failure to do either of these
acts within the time stated (time being of the essence as stated in Section
14.7) shall terminate Tenant's right to lease the First Offer Premises described
in such notice hereunder.
The First Offer Premises are presently occupied and Tenant acknowledges
that it is in Landlord's economic interest to prefer an existing tenant to all
other occupants.
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Landlord and Tenant agree to balance this interest with Tenant's economic
interest in having the right of first offer as follows. Landlord shall not be
obligated to offer the First Offer Premises to Tenant (1) so long as either
Immunetics, Inc. or any person claiming by, through or under either as the
Tenant and having become the Tenant with Landlord's consent (hereafter referred
to, with respect to the space each occupies, as the "Present Tenant") wishes to
continue to occupy the First Offer Premises, whether under the present lease,
any extension or renewal thereof, a new lease or otherwise. Accordingly, Tenant
acknowledges that Tenant's right of first offer (1) in no way limits Landlord's
right to negotiate and grant the Present Tenant, further rights of occupancy
(under lease or otherwise) in premises which include the First Offer Premises.
Tenant shall have the right to inspect the First Offer Premises on reasonable
notice at any reasonable time and from time to time after Landlord's notice of
its availability.
3. Agreement Made Only When Amendment Signed. This Amendment shall bind Landlord
and Tenant only when executed and delivered by both. This Amendment when signed
by one party and delivered to the other, shall constitute an offer to enter into
the Amendment on the terms set forth herein. No submission of this Amendment,
unsigned by either party to the other, shall constitute an offer.
4. Lease Confirmed Except as previously amended and as amended herein, the Lease
is ratified and confirmed.
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1. REFERENCE DATA
Each reference in this Lease to the following subjects shall be
construed to incorporate the data for that subject stated in this Section 1.
DATE: As of June 30, 2000
LANDLORD: Bruce A. Beal and Robert L. Beal, Trustees of The Cambridge East
Trust, under declaration of trust dated June 1, 1983 recorded with
the South Middlesex Registry of Deeds, Book 15067, Page 392 and
registered with the South Middlesex Registry District of the Land
Court as Document 641740 noted on Certificate of Title 168090, Book
970, Page 140, as Trustees and not individually
ORIGINAL ADDRESS
OF LANDLORD: c/o Beal and Company, Inc.
177 Milk Street
Boston, Massachusetts 02109
TENANT: EPIX Medical, Inc., a Delaware corporation
ORIGINAL ADDRESS
OF TENANT: 71 Rogers Street, Cambridge Massachusetts 02142
PREMISES: Effective on the Commencement Date of this Lease the following
premises shown on Exhibit 1 to the original Lease:
approximately 2,660 square feet located in the 6,640 square foot
building known as and numbered 63 Rogers Street,
approximately 4,390 square feet located in the 5,360 square foot
building known as and numbered 65 Rogers Street,
approximately 2,500 square feet located in the 2,500 square foot
building known as and numbered 69 Rogers Street,
approximately 2,500 square feet located in the 2,500 square foot
building known as and numbered 71 Rogers Street,
approximately 5,000 square feet located in the 5,000 square foot
building known as and numbered 75 Rogers Street,
and effective on delivery of possession, estimated to be on or about
August 12, 2000 approximately 5,900 square feet located in the 5,900
square foot building known as and numbered 67 Rogers Street as shown
on Exhibit 1-A to the Lease
all in Cambridge, Massachusetts (collectively, the Building or Buildings)
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FIRST OFFER PREMISES: The following premises shown on Exhibit 1-A to the Lease:
approximately 3,980 square feet located in the 6,640 square foot
building known as and numbered 63 Rogers Street, and
approximately 971 square feet located in the 6,640 square foot
building known as and numbered 65 Rogers Street
also in Cambridge, Massachusetts.
If added to the Premises, these premises also will, with the other
Premises, be referred to collectively as the Building. See Section 3
of this Second Amendment for exercise rights to lease the First
Offer Premises. See Section 6.1 of the Lease for Annual Fixed Rent
if the First Offer Premises are added to the Lease.
TERM: Five years as to original Premises
Two years five months (approximately) as to 67 Rogers Street
COMMENCEMENT DATE: As to original Premises - January 1, 1998
As to the portion of the Premises at 67 Rogers Street - The
day those Premises are delivered (which the parties presently
anticipate will be on or about August 12, 2000
TERMINATION DATE: December 31, 2002 as to all Premises
EXTENSION RIGHTS: One option to extend the term for either three or five years
as more completely stated in Section 3.6 added to the Lease by the First
Amendment
ANNUAL FIXED RENT:
January 1, 1998 - December 31, 1998 $258,700.00
January 1, 1999 - December 31, 1999 $275,750.00
January 1, 2000 - July 31, 2000 $170,800.00
August 1, 2000 - August 31, 2000 $ 30,966.13*
September 1, 2000 - December 31, 2000 $138,310.00
January 1, 2001 - December 31, 2001 $437,880.00
January 1, 2002 - December 31, 2002 $460,830.00
During extended term: As stated in Section 6.1 as amended by the First Amendment
MONTHLY PAYMENT:
January 1, 1998 - December 31, 1998 $ 21,558.33
January 1, 1999 - December 31, 1999 $ 22,979.17
January 1, 2000 - July 31, 2000 $ 24,400.00
August 1, 2000 - August 31, 2000 $ 30,966.13*
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September 1, 2000 - December 31, 2000 $ 34,577.50
January 1, 2001 - December 31, 2001 $ 36,490.00
January 1, 2002 - December 31, 2002 $ 38,402.50
* These amounts are based on delivery of the portion of the Premises at 67
Rogers Street on August 12, 2000. Annual Base Rent and the monthly payment shall
be pro rated as necessary to reflect the actual date of delivery of the
additional Premises at 67 Rogers Street. Prior to delivery the Annual Fixed Rent
is at the monthly rate of $24,400 and will be pro rated daily for the days prior
to delivery and upon delivery the Annual Fixed Rent will increase to the monthly
rate of $34,577.50 and will be pro rated daily for the day of delivery and the
remaining days of the month. In the event delivery occurs other than during
August the same will apply to the month in which delivery occurs.
During extended term: 1/12th of Annual Base Rent
TENANT'S PERCENTAGE OF
OPERATING EXPENSES: 63 Rogers Street 40.06%
65 Rogers Street 81.90%
67 Rogers Street 100%
69 Rogers Street 100%
71 Rogers Street 100%
75 Rogers Street 100%
and if the First Offer Premises are added to the Lease:
63 Rogers Street 100%
65 Rogers Street 100%
PERMITTED USES: General Office use and technical office for research development
laboratory or research facility use, and manufacture, processing, assembly and
packaging of drug, all to the extent permitted by applicable law and no other
use
SECURITY DEPOSIT: None
BROKER: The Beal Companies as to this Second Amendment
SIGNATURES
LANDLORD: TENANT:
Bruce A. Beal and Robert L.
Beal, Trustees as aforesaid
and not individually
By: Beal and Company, Inc., EPIX Medical, Inc.
Managing Agent
By: /s/ Robert L. Beal /s/ Pamela E. Carey
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its its
hereunto duly authorized hereunto duly authorized Treasurer
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SECRETARY'S CERTIFICATE
The undersigned hereby certifies (1) that s/he is the duly elected
Secretary of the corporation executing this Lease as Tenant, (2) that the
Tenant's Board of Directors has duly decided as required by law and the Tenant's
governing documents that the Tenant shall enter into this Lease and has duly
empowered the person who executed this Lease to do so in the name of and on
behalf of the Tenant, and (3) that the Tenant's execution and performance of
this Lease is consistent with and does not contravene or violate the law and
governing documents under which Tenant is organized and operated.
/s/ Michael D. Webb
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, Secretary
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