Exhibit 10.1
FIRST AMENDMENT
LEASE FROM
TRUSTEES OF THE CAMBRIDGE EAST TRUST
TO
EPIX MEDICAL, INC.
This is the First Amendment made as of February 8, 1999 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 00-00 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the "Lease").
Whereas, the Landlord and the Tenant wish to provide the Tenant the option
to extend the term of the Lease for either three or five years at 95% of then
fair market rental (but not less than $17.17 per square foot) on the condition
that Tenant's exercise of the option to extend will void the Tenant's present
rights to terminate the term of the Lease.
Therefore, for valuable consideration the receipt and sufficiency of which
is mutually acknowledged:
1. The following new Section 3.6 is added to the Lease:
Section 3.6 Tenant's Option to Extend. 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 (or any successor Tenant to whom the transfer of the tenant's interest
hereunder was stated in Section 8.9 not to constitute an "assignment") holds the
entire tenant's interest hereunder and is in occupancy of the Premises and
engaged in the active conduct of its business, the original Tenant (or any such
successor Tenant) may extend the initial Term as to the entire Premises for one
period of either three (3) or five (5) years, as stated in the notice, from the
Termination Date on the terms and conditions of this Lease (except for Annual
Fixed Rent, which shall be determined as follows), by giving at least nine (9)
months' (but not more than fifteen (15) months) prior written notice thereof to
Landlord, and thereafter all references in this Lease to the Term shall also
include the Term as extended. Any notice which fails to specify whether the
extension is for three (3) or five (5) years, or is given earlier than fifteen
(15) months or later than nine (9) months prior to the end of the initial Term,
shall be entirely void and without legal force or effect.
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Annual Fixed Rent for the extended Term shall be established as set forth
in Section 6.1.
The following is added to Section 6.1:
Tenant may (but is not obligated to) send Landlord a notice prior to
exercise of the Tenant's right to extend the Term inquiring as to the Annual
Fixed Rent Landlord would be willing to accept for the extended Term (the
"Extended Term Rent Inquiry Notice"). Within the later of (i) thirty (30) days
of receipt of the Extended Term Rent Inquiry Notice or (ii) February 15, 2002,
Landlord shall inform Tenant in writing of such Annual Fixed Rent ("Landlord's
Offered Extended Term Annual Fixed Rent"). If Tenant states in Tenant's notice
exercising Tenant's right to extend the Term that Tenant accepts Landlord's
Offered Extended Term Annual Fixed Rent, then that shall be the Annual Fixed
Rent for the extended Term. The references to Annual Fixed Rent are intended, as
stated elsewhere in this Section 6.1, to mean a base rent which is 95% of fair
market rent.
If Annual Fixed Rent for the First Offer Premises has not been established
in accordance with the preceding paragraph, then Annual Fixed Rent for the
extended Term shall be established by agreement between Landlord and Tenant and
shall be 95% of fair market rent for the Premises (exclusive of Real Estate
Taxes and Operating Expenses) on or about the date the extended Term begins
established as stated below (but in no event shall Annual Fixed Rent for the
extended Term be less than Annual Fixed Rent for the year 2000 as stated in
Section 1 REFERENCE DATA). Fair market rent shall be the highest annual fixed
rent (or schedule or formula of varying rents) which willing tenants would pay
to lease such area for the term in question in a competitive and open market
under terms and conditions substantially the same as those of this Lease with
such area considered free and clear of this Lease and as though then available
for occupancy for any legal use in their then condition. Rent historically paid
under this Lease shall be disregarded in determining fair market rent.
Comparable space shall be considered by the appraisers in unimproved condition
(that is, exclusive of tenant improvements). Specifically, Tenant's improvements
described on the plans and specifications listed in Exhibit -Improvements
attached hereto are to be excluded.
If Landlord and Tenant have not agreed on such Annual Fixed Rent in
writing by August 1,2002, the fair market rate shall be determined by
appraisers, one to be chosen by Landlord, one to be chosen by Tenant and a third
to be selected by the two first chosen if the first two cannot agree; or, at
Landlord's option, by a member of the American Society of Real Estate
Counsellors experienced in first class urban office buildings and from their
determination of fair market rent Landlord and Tenant will impute Annual Fixed
Rent at 95% thereof as aforesaid.
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Landlord and Tenant shall each notify the other of its chosen appraiser
within thirty (30) days after August 1, 2002 and, unless those two appraisers
shall have reached a unanimous decision within seventy-five (75) days from the
end of that thirty (30) day period, they shall within the following fifteen (15)
days select a third appraiser, notify Landlord and Tenant thereof and proceed
forthwith to decision. If Landlord elects to have the determination made by a
member of the American Society of Real Estate Counsellors, Landlord shall notify
Tenant within thirty (30) days after the commencement of such year of the name
of the Counsellor chosen, and neither party shall have any further obligation to
select appraisers. If Tenant notifies Landlord within thirty (30) days of the
date of Landlord's notice that Tenant wants two (2) or, if necessary three (3),
such Counsellors to act, and includes in that notice the name of a second
Counsellor, then Landlord shall so inform the original Counsellor, and those two
Counsellors shall proceed in the manner and on the schedule specified herein for
appraisers, including selecting a third Counsellor failing agreement of the two.
Landlord and Tenant shall each bear the expense of the appraiser/Counsellor
chosen by it and shall bear equally the expense of the third appraiser/
Counsellor (if any) or of the sole Counsellor if he or she acts alone. The
written decision of the sole Counsellor, the unanimous written decision of the
two first appraisers/Counsellors chosen, without selection and participation of
a third, or, if they do not agree, the written decision of a majority of the
three appraisers/Counsellors, as the case may be, shall be conclusive and
binding upon Landlord and Tenant.
Until Annual Fixed Rent for the extended Term is determined, Tenant shall
make payments of Annual Fixed Rent in the amount of Landlord's last offer
subject to retroactive adjustment, without interest, in conformity with and
within thirty (30) days of the determination of Annual Fixed Rent as set forth
in this Section.
The following is added to Section 3.4:
All rights under this Section 3.4 shall become void and of no further
force or effect on the giving of notice under Section 3.6 extending the Term.
2. 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.
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3. Except as previously amended and as amended herein, the Lease is ratified and
confirmed.
LANDLORD: TENANT:
Trustees of The Cambridge East EPIX Medical, Inc.
Trust, as Trustees and not individually
By: Xxxx and Company, Inc.
Managing Agent
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
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hereunto duly authorized hereunder duly authorized
Secretary's Certificate
The undersigned hereby certifies (1) that s/he is the duly elected
Secretary / Assistant Secretary of the corporation executing this First
Amendment, (2) that the Tenant's officers / Directors has duly decided as
required by law and the Tenant's governing documents that the Tenant shall enter
into this First Amendment and has duly empowered the person who executed this
First Amendment 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 as amended by this First
Amendment is consistent with and does not contravene or violate the law and
governing documents Under which Tenant is organized and operated.
/s/ Xxxxxxx X. Xxxx
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Secretary / Assistant Secretary
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