Exhibit 10.2
SECOND AMENDMENT TO AGREEMENT OF LEASE
This SECOND AMENDMENT TO AGREEMENT OF LEASE ("Second Amendment") is made
and entered into as of the 12th day of May 2004 at Newton, Middlesex County,
Commonwealth of Massachusetts, by and between Xxxxxxx X. Xxxxxx as Trustee of
One Nevada Realty Trust under Declaration of Trust dated September 14,1984 and
filed for registration with Middlesex South Registry District of the Land Court
as Document No. 667834 and his heirs, executors, successors and assigns where
the context so admits ("Lessor") and Matritech, Inc., a Delaware corporation and
its successors, legal representatives and assigns where the context so admits
("Lessee").
WITNESSETH THAT
WHEREAS Lessor and Lessee entered into an Agreement of Lease dated as of
the 6th day of October 1995 and a First Amendment thereto dated as of the 22nd
day of June 2000 (the "First Amendment" and, together with the 1995 Agreement of
Lease, collectively the "330 Nevada Street Lease") with respect to approximately
22,500 square feet of space, more or less, on the second floor of the building
known and numbered as 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"330 Nevada Street Building"); and
WHEREAS Lessee desires to exercise its option to extend the 000 Xxxxxx
Xxxxxx Lease for an additional five (5) year period, Lessor has agreed to such
an extension in accordance with the terms of this Second Amendment, and both
Lessee and Lessor desire to memorialize herein the terms of their agreement
pertaining to such extension of the 000 Xxxxxx Xxxxxx Lease as required by the
last sentence of paragraph 8 of the First Amendment;
NOW, THEREFORE, Lessor and Lessee, for and in consideration of the mutual
covenants hereinafter contained, agree as follows, effective immediately:
1. Term: Article I, paragraph A of the 000 Xxxxxx Xxxxxx Lease is hereby
modified by deleting "2005" from the last line thereof and substituting "2010".
2. Notices: Article I, paragraph (E)(l) is hereby changed to read as
follows:
"a. If to Lessor, to 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000, with a copy to Xxxx X. Xxxxxxxx, Esquire, Attorney and
Counsellor at Law, 000 Xxxxxxxx Xxxxxx, Xxxxx 000-X, Xxxxxxx,
XX 00000.
"b. If to Lessee, to 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000 Attention: Xxxxxxx X. Xxxxx, with a copy to Xxxxxxxx
Xxxxxxx, Esquire, Matritech, Inc., 000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000."
3. Additional HVAC System: Lessor hereby approves and consents to the
installation, at Lessee's cost and expense, of an additional heating,
ventilation and air conditioning unit on the roof of the Building.
4. Upgrade of Elevator: Without in any manner expanding Lessor's
maintenance and/or repair obligations under the 000 Xxxxxx Xxxxxx Lease, Lessor
agrees to undertake, at its cost and expense, such upgrade of the elevator at
the Premises as is necessary to ensure compliance with AMSE/ANSI A17.1-2000 code
and Code of Massachusetts Regulations 524. Such elevator upgrade work will be
completed on or before June 30, 2004.
5. Option: Lessee shall have the option to extend the 000 Xxxxxx Xxxxxx
Lease with respect to the Premises for one (1) five (5) year period commencing
on January 1, 2011 (the "Option Term"), provided Lessee is not then in uncured
default, which Option may be exercised only for all of Lessee's space, and no
lesser portion thereof, and only by giving written notice thereof to Lessor
prior to January 1, 2010. All other terms and conditions of the 000 Xxxxxx
Xxxxxx Lease, unless otherwise agreed in writing, shall apply to the Option
Term. The parties will execute a mutually agreeable amendment to the 000 Xxxxxx
Xxxxxx Lease in the event this Option is exercised.
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6. Annual Rent During Option Term: The annual rent during the Option Term
shall be an amount equal to the fair market rental value of the Premises as of
January 1, 2011. Such fair market rental value shall be determined by mutual
agreement or as provided in this paragraph. (a) In no event shall the fair
market rental value be less than $18.00 per square foot. If appraisal pursuant
to this paragraph yields an amount less than $18.00 per square foot, then the
parties agree that the fair market rental value shall be $18.00 per square foot.
(b) Upon Lessee's notification to Lessor that it desires to exercise its Option,
Lessor and Lessee shall promptly confer and attempt to agree upon the fair
market rental for the Option Term. If Lessor and Lessee fail to agree on such
rental by March 1, 2010, the fair market rental value shall be appraised by a
competent and experienced disinterested person selected by Lessor and reasonably
satisfactory to Lessee. All costs associated with such appraisal shall be borne
by Lessor. Lessor shall notify Lessee of the fair market rental value according
to that appraisal no later than May 1, 2010. (c) Said appraised rental value
shall be deemed to be the fair market rental value for the Option Term unless
Lessee notifies Lessor of its disagreement with such value in writing within ten
(10) days after receipt of the appraisal, and Lessee furnishes to Lessor an
appraisal of fair market rental value by a competent and experienced
disinterested person selected by Lessee and reasonably satisfactory to Lessor no
later than July 1, 2010. All costs associated with such appraisal shall be borne
by Lessee. If the difference between the two appraisals does not exceed ten per
cent (10% ) of the lower appraisal, the average of the two appraisals shall be
deemed to be the fair market rental value. (d) If the difference between the two
appraisals does exceed ten per cent (10%) of the lower appraisal, then a
competent and experienced disinterested person shall be appointed as a third
appraiser by mutual agreement of the Lessor and Lessee no later than September
1, 2010. The third appraiser shall make his or her appraisal of fair market
rental value of the Premises by November 1, 2010, and the average of the two
closest appraisals shall then be the rental for the Option Term. All costs
associated with such third appraisal shall be shared equally by Lessor and
Lessee.
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7. Broker: Each of Lessor and Lessee warrants to the other that it has had
no dealings with any broker or agent in connection with this Second Amendment,
and each agrees to hold harmless and indemnify the other party from and against
any and all costs (including, without limitation, attorney's fees for defense of
an action), expenses or liability for any compensation, commissions or charges
claimed by such a broker or agent.
8. Expansion Notices: Although Lessor had no obligation to notify Lessee
of any space that became available in the Building from June 22, 2000, when
Article III, paragraph D was deleted by paragraph 11 of the First Amendment,
until the date of this Second Amendment, the following new paragraph D is hereby
inserted in Article III of the 000 Xxxxxx Xxxxxx Lease:
"X. Xxxxxx agrees, throughout the Term of this Lease except
during the last twelve (12) months hereof, to notify Lessee in
writing of all space in the Building that becomes available. Lessee
shall be given fourteen (14) days from Lessee's receipt of said
notice within which to elect to lease the whole (but not merely a
part) of such space, as is, upon expiration of the prior tenancy,
which election shall be exercised by written notice to Lessor, and
twenty-one (21) additional days from the date Lessee receives
Lessor's initial draft to execute a mutually acceptable lease or
amendment to this Lease covering such space (the "Expansion Lease"
or "Expansion Amendment"). The rent for any expansion space shall be
no less than provided for herein and may be adjusted to reflect then
prevailing market rates, and any build-out shall be at Lessee's sole
expense. Otherwise, the Expansion Lease or Expansion Amendment shall
be on substantially the same terms and conditions as the 000 Xxxxxx
Xxxxxx Lease. The term of any Expansion Lease or Expansion Amendment
shall be coterminous with the Term of this Lease."
9. No Waiver: This Second Amendment shall not be deemed to release or
otherwise limit Lessor's claims against Lessee in connection with the action by
Kira and Xxxxx Xxxxxxx pending in the Superior Court Department, Middlesex
Division, and numbered 02-05439 on the dockets of said Court.
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10. Deleted Provisions: Paragraphs 8 and 9 of the First Amendment are
hereby deleted in their entirety.
11. Survival of 000 Xxxxxx Xxxxxx Lease: All terms and conditions of the
000 Xxxxxx Xxxxxx Lease not specifically changed by this Second Amendment shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals as of
the date first above written.
Lessee Lessor
MATRITECH, INC. ONE NEVADA REALTY TRUST
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx, CEO and Chairman Xxxxxxx X. Xxxxxx, Trustee
Thereunto Duly Authorized Thereunto Duly Authorized
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President and COO
Thereunto Duly Authorized
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