Exhibit 10.1


 


FOURTH
AMENDMENT TO LEASE


 


THIS FOURTH AMENDMENT TO
LEASE (this “Fourth Amendment”) is
made as of August 25, 2009, by and between ARE-TECH
SQUARE, LLC, a Delaware limited liability company (“Landlord”), and DYAX CORP.,
a Delaware corporation (“Tenant”).


 


RECITALS


 


A.                                    Landlord and Tenant are now parties to
that certain Lease dated June 13, 2001, as amended by that certain First
Amendment to Lease dated March 1, 2002, as further amended by that certain
letter agreement dated April 17, 2002, as further amended by that certain
Second Amendment to Lease dated December 1, 2002 (“Second
Amendment”), and as further amended by that certain Third Amendment
to Lease dated September 6, 2007 (“Third Amendment”)
(as amended, the “Lease”),
pursuant to which Tenant leases certain space containing approximately 91,527
rentable square feet (“Premises”) in a
building located at 300 Technology Square, Cambridge, Massachusetts (the “Building”)  The
Premises are more particularly described in the Lease.  Capitalized terms used herein without
definition shall have the meanings defined for such terms in the Lease.


 


B.                                    Landlord and Tenant desire to, subject to
the terms and conditions set forth herein, among other things, amend the Lease
to reflect the surrender of that portion of the Premises containing
approximately 24,154 rentable square feet, consisting of (i) approximately
24,122 rentable square feet located on the seventh floor of the Building (“7th Floor Surrender Premises”), and (ii) approximately 32
rentable square feet located on the first floor of the Building (“1st Floor Surrender Premises”), all as more particularly described on
Exhibit A attached to this Fourth Amendment (the 7th Floor Surrender
Premises and the 1st Floor Surrender Premises shall be collectively
referred to herein as the “Surrender Premises”).  Tenant shall surrender the Surrender Premises
to Landlord on September 15, 2009 (“Surrender Date”).


 


NOW, THEREFORE,
in consideration of the foregoing Recitals, which are incorporated herein by
this reference, the mutual promises and conditions contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:


 


1.                                      Premises.


 


a.                                       Following the Surrender Date.  Commencing on September 16, 2009, the
definitions of “Premises” contained on page i
of Exhibit 1 of the Lease and “Total rentable square feet
of Premises” contained in Art. 7, page iv of Exhibit 1 of
the Lease, are amended and restated in their entirety as follows:


 


“Total rentable square feet of
the Premises:  approximately 67,373
rentable square feet, consisting of (i) approximately 24,122 rentable
square feet of space on the 6th floor, (ii) approximately 24,122 rentable
square feet of space on the 5th floor, (iii) approximately
17,476 rentable square feet of space on the 8th floor, (iv) approximately 1,445 rentable
square feet of space on the 1st floor (“Dyax 1st Floor Space”), and (v) approximately
208 rentable square feet of additional storage space on the 1st floor (“1st Floor Storage Space”).”


 


In addition, commencing on September 16, 2009, Exhibit 2 attached to the Lease
shall be amended to exclude the Surrender Premises.


 


	
   

  	
  

  



 

















 


b.                                       Following the 1st Floor Storage
Termination Date.  Commencing on the 1st Floor Storage
Termination Date (as defined in the Third Amendment), the definitions of “Premises” contained on page i of Exhibit 1 of the
Lease and “Total rentable square feet of Premises”
contained in Art. 7, page iv of Exhibit 1 of the Lease, are amended
and restated in their entirety as follows:


 


“Total rentable square feet of
the Premises:           approximately 67,165 rentable square feet, consisting of (i) approximately
24,122 rentable square feet of space on the 6th floor, (ii) approximately 24,122 rentable
square feet of space on the 5th floor, (iii) approximately
17,476 rentable square feet of space on the 8th floor, and (iv) approximately 1,445
rentable square feet of space on the 1st floor (“Dyax 1st Floor Space”).”


 


In addition, commencing on the first day after the 1st Floor Storage
Termination Date, Exhibit 2
attached to the Lease shall be amended to exclude the 1st Floor Storage
Space.


 


c.                                                   Dyax First Floor Space.  Approximately 1,351 rentable square feet of
the Dyax 1st Floor Space is used exclusively by
Tenant.  Commencing on September 16,
2009, Tenant shall be deemed to be leasing the remaining 94 rentable square
feet of the Dyax 1st Floor Space as part of the Shared Mechanical
Space (as defined in Section 10 of this Fourth Amendment).


 


2.                                      Monthly Rent. Notwithstanding the surrender
of the Surrender Premises and anything to the contrary contained herein or in
the Lease, Tenant shall pay Monthly Rent with respect to the entire
approximately 91,527 rentable square feet of the Premises as provided for in
the Lease through September 30, 2009. 
Commencing on October 1, 2009, through the 1st Floor Storage Termination Date, Tenant shall
pay Monthly Rent for the Premises in the amount of $331,059.91 per month.  Commencing 1 day after the 1st Floor Storage Termination Date through February 29,
2012, Tenant shall pay Monthly Rent for the Premises in the amount of
$330,227.91 per month.  In addition to
Monthly Rent, Tenant shall continue to (i) repay the Initial Premises Loan
to Landlord in equal monthly installments of $34,383.62 pursuant to the terms
of the Second Amendment, and (ii) pay all other amounts required to be
paid by Tenant under the Lease.


 


3.                                      Tenant’s
Percentage Share.


 


a.                                       Following the Surrender Date.  Commencing on October 1, 2009, the definition
of “Tenant’s Percentage Share” contained in
Art. 9.1, page v of Exhibit 1 of the Lease, is amended and restated
in its entirety as follows:


 


“Tenant’s
Percentage Share:  38.37%”


 


b.                                       Following the 1st Floor Storage
Termination Date.  Commencing 1 day after the 1st Floor Storage Termination Date, the definition
of “Tenant’s Percentage Share” contained in
Art. 9.1, page v of Exhibit 1 of the Lease, is amended and restated
in its entirety as follows:


 


“Tenant’s
Percentage Share:  38.25%”


 


c.                                       Allocation.  Notwithstanding anything to the contrary
contained in the Lease or in this Fourth Amendment, Landlord may equitably increase
Tenant’s Percentage Share for any item of expense or cost reimbursable by
Tenant that relates to a repair, replacement, or service that benefits only the
Premises or only a portion of the Building that includes the Premises or that
varies with occupancy or use.


 


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4.                                      Termination Payment.  As consideration for Landlord agreeing to
enter into this Fourth Amendment, Tenant shall deliver to Landlord funds in the
amount of $750,000 (“Early Termination Payment”).  Tenant shall deliver 50% of the Early
Termination Payment to Landlord within 30 days after Tenant’s delivery to
Landlord of a copy of this Fourth Amendment executed by Tenant, and shall
deliver the remaining 50% of the Early Termination Payment to Landlord on or
before December 15, 2009.


 


5.                                      Parking.  Commencing on October 1, 2009, Section 2.3
of the Lease is amended and restated in its entirety as follows:


 


“2.3                           Parking.  During the term of the Lease, Tenant shall
have the right to use and shall pay for up to 1.5 monthly parking spaces (“Parking Spaces”) per 1,000 square feet of the Total rentable
square feet of the Premises in the Parking Garage.  Notwithstanding that Tenant may elect to use
fewer than .75 monthly Parking Spaces per 1,000 square feet of the Total
rentable square feet of the Premises, Tenant shall be required to pay Landlord
for no fewer than .75 monthly Parking Spaces per 1,000 square feet of the Total
rentable square feet of the Premises. 
Tenant shall have no right to sublet, assign, or otherwise transfer said
Parking Spaces, other than to employees of Tenant occupying the Premises or to
a Collaborator Company, an Assignee, an Affiliated Entity or a Qualified
Transferee pursuant to an approved assignment or sublease under Article 16
of the Lease.  Said Parking Spaces shall
be paid for by Tenant at the then-current prevailing rate in the Parking
Garage, as such rate may vary from time to time.  As of the date of the Fourth Amendment, the
monthly charge for parking is Two Hundred Twenty Dollars ($220) per Parking
Space per month.  Said Parking Spaces
will be on an unassigned, non-reserved basis, and shall be subject to such
reasonable and uniform rules and regulations as may be in effect for the
use of said Parking Garage (including, without limitation, Landlord’s right,
without additional charge to Tenant above the prevailing rate for Parking
Spaces, to institute a valet or attendant-managed parking system), from time to
time in force.”


 


6.                                      Security Deposit.  Landlord acknowledges that as of the date of
this Fourth Amendment, the amount of the Security Deposit currently being held
by Landlord is [*****].  Upon the later
to occur of (i) [*****], and (ii) [*****],  Tenant shall be entitled to have the Security
Deposit reduced to [*****] (the “Reduced
Security Deposit”).  Upon
Tenant’s delivery to Landlord of a written request for such reduction of the
Security Deposit (along with evidence reasonably satisfactory that the
condition set forth in item (ii) above has been satisfied), Landlord shall
cooperate with Tenant, at no cost, expense or liability to Landlord, to reduce
the Letter of Credit then held by Landlord to the amount of the Reduced
Security Deposit.  From and after the
date of such reduction, the “Security Deposit”
shall be deemed to be the Reduced Security Deposit, for all purposes of this
Lease.  Tenant hereby acknowledges and
agrees that the original amount of the Security Deposit has already been
reduced pursuant to Section 29.4 of the Lease, and that Tenant
shall have no further right to any additional reduction of the Security Deposit
pursuant to Section 29.4 of the Lease.


 


7.                                      Surrender of
the 7th Floor Surrender Premises.


 


a.                                                   The Lease with respect to the 7th Floor Surrender Premises shall terminate as
provided for in the Lease on the Surrender Date. Tenant shall voluntarily
surrender the 7th Floor Surrender Premises on or before such
date in the condition which Tenant is required to surrender the 7th Floor Surrender Premises as of the expiration
of the Lease. Tenant agrees to cooperate with Landlord in all matters, as
applicable, relating to (i) decommissioning of the 7th Floor Surrender Premises as a licensed
laboratory, (ii) surrender or revocation of all licenses of Tenant
relating to the 7th Floor Surrender Premises, and (iii) surrendering
the 7th Floor Surrender Premises as required under the
Lease. On or before the Surrender Date, Tenant shall deliver to Landlord a
certificate or report signed by a licensed hygienist, which certificate or
report shall (a) contain a 


 


Confidential materials omitted
and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.


 


3

















 


list of all
Hazardous Materials used by Tenant in the 7th Floor Surrender Premises during the term of
the Lease (b) evidence that the 7th Floor Surrender Premises is clean and free of
Hazardous Materials, and (c) document any action taken by Tenant to render
the 7th Floor Surrender Premises clean and free of
Hazardous Materials.  The certificate or
report provided for in the preceding sentence shall not be considered
confidential information and may be disclosed to third parties.  From and after the Surrender Date, Tenant
shall have no further rights of any kind with respect to the 7th Floor Surrender Premises.  Notwithstanding the foregoing, those
provisions of the Lease which, by their terms, survive the termination of the
Lease shall survive the surrender of the 7th Floor Surrender Premises and termination of
the Lease with respect to the 7th Floor Surrender
Premises as provided for herein. Nothing herein shall excuse Tenant from its
obligations under the Lease with respect to the 7th Floor Surrender Premises prior to the
Surrender Date.  Notwithstanding anything
to the contrary contained in the Lease or in this Fourth Amendment, Tenant
shall (i) not be required to remove any existing tel/data wiring located
within the 7th Floor Surrender Premises, (ii) not be
required to and shall not remove the existing office furniture located within
the 7th Floor Surrender Premises, and (iii) be
required to leave 1 existing operating autoclave within the 7th Floor Surrender Premises, all of which shall
become on the property of Landlord as of the Surrender Date.  A list of all of the office furniture
remaining in the 7th Floor Surrender Premises pursuant to item (ii) above
is attached to this Fourth Amendment as Exhibit C.


 


b.                                                   Tenant acknowledges that
following the Surrender Date, Landlord shall enclose (a) the stairwell
connecting the portion of the Premises located on the 6th floor of the Building with the 7th Floor Surrender Premises, and (ii) the
stairwell connecting the portion of the Premises located on the 8th floor of the Building with the 7th Floor Surrender Premises (collectively, the “Stairwells”).  In
connection with such activities:


 


(i)                                     Tenant acknowledges that
following the Surrender Date, Landlord shall require reasonable access to
portions of the Premises in order to complete the enclosure of the Stairwells;


 


(ii)                                  Landlord and its contractors and
agents shall have the right to enter the Premises to perform the enclosure of
the Stairwells and Tenant shall cooperate with Landlord in connection with the
same;


 


(iii)                               Landlord and its contractors
shall use reasonable efforts to minimize disturbance with Tenant’s use and
occupancy of the Premises in connection with the enclosure of the Stairwells
and Landlord shall cause the work in connection with the enclosure of the
Stairwells to be performed on Sunday, Saturday or at times prior to 9:00 a.m.
or after 5:00 p.m. on Monday through Friday;


 


(iv)                              The enclosure of the Stairwells
shall be substantially completed on or before September 30, 2009; and


 


(v)                                 Tenant shall not be entitled to
any rent abatement in connection with the enclosure of the Stairwells.


 


8.                                      Surrender of
the 1st Floor Surrender Premises.  The Lease with respect to the 1st Floor Surrender Premises shall terminate as
provided for in the Lease on the Surrender Date. Tenant shall voluntarily
surrender the 1st Floor Surrender Premises on or before such
date in the condition which Tenant is required to surrender the 1st Floor Surrender Premises as of the expiration
of the Lease. Tenant agrees to cooperate with Landlord in all matters, as
applicable, relating to surrendering the 1st Floor Surrender Premises as required under the
Lease.  From and after the Surrender
Date, Tenant shall have no further rights of any kind with respect to the 1st 


 


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Floor Surrender
Premises.  Notwithstanding the foregoing,
those provisions of the Lease which, by their terms, survive the termination of
the Lease shall survive the surrender of the 1st Floor Surrender Premises and termination of
the Lease with respect to the 1st Floor Surrender
Premises as provided for herein. Nothing herein shall excuse Tenant from its
obligations under the Lease with respect to the 1st Floor Surrender Premises prior to the
Surrender Date.


 


9.                                      MWRA Permit.  Landlord shall assume Tenant’s existing MWRA
sewer discharge permit affecting the Benefited Floors (as defined in Section 10
below) (“MWRA Permit”) as of September 16,
2009 (“Transfer Date”), subject to (i) Tenant’s
delivery to Landlord of the keys to the 1st Floor Surrender Premises and, if applicable,
any other portions of the Dyax First Floor Space included within the Shared
Mechanical Area, (ii) Tenant’s delivery to Landlord of all operations and
maintenance manuals for the Equipment (as defined in Section 10
below), (iii) Tenant’s delivery to Landlord of all documentation from
Tenant and all of Tenant’s subtenants located within the Premises relating to
the work required in connection with the MWRA Permit, which documentation shall
be in form and substance reasonably acceptable to Landlord, and (iv) Tenant
having obtained approval of the transfer of the MWRA Permit to Landlord from
all applicable governmental authorities. 
Tenant agrees that Tenant shall be responsible for (a) the
completion of items (i) through (iv) above prior to the Transfer
Date, and (b) the delivery to Landlord prior to the Transfer Date of
evidence reasonably satisfactory to Landlord that all of the same have been
completed.  Tenant represents and
warrants that prior to the Transfer Date, Tenant’s and Tenant’s subtenants’
conduct under the MWRA Permit has been in compliance with all requirements of
the MWRA Permit.


 


10.                               Shared Mechanical Space.  Tenant acknowledges and agrees that, notwithstanding
anything to the contrary contained in the Lease, commencing October 1,
2009, through the expiration of the term of the Lease, Landlord shall repair,
maintain and replace that certain existing equipment (“Equipment”)
located within that portion of the 1st floor of the Building shown on Exhibit B
attached hereto as the “Shared Mechanical Space”
for the benefit of the 5th, 6th, 7th and 8th floors of the Building (“Benefited
Floors”).  Notwithstanding
anything to the contrary contained in the Lease, Tenant further acknowledges
and agrees that (i) all the costs incurred by Landlord in connection with
the repair, maintenance and replacement of the Equipment and the Shared
Mechanical Space (collectively, “Shared Equipment Charges”)
shall be proportionately allocated among the tenants of the Benefited Floors
based upon the square footage leased by each such tenant on the Benefited
Floors, (ii) subject to Section 3(c) of this Fourth
Amendment, Tenant shall be responsible for 
74.6% of the monthly Shared Equipment Charges; and (iii) Tenant
shall have no right to enter any portion of the Shared Mechanical Space.  Commencing on October 1, 2009, Tenant
shall pay its share of the Shared Equipment Charges, as additional rent,
pursuant to the same procedure set forth in Section 9.3(a) of
the Lease for the payment of Building Operating Costs.  The Shared Equipment Charges shall be subject
to reconciliation pursuant to the procedure set forth in the Lease for the
reconciliation of Building Operating Costs.


 


11.                               Occupancy
Requirement. 
Notwithstanding anything to the contrary contained in the Lease, as of
the date of this Fourth Amendment and during the remaining term of the Lease,
Tenant shall be deemed to no longer satisfy the Occupancy Requirement set forth
on page v of Exhibit 1 of the Lease. 
The rights granted to Tenant under the Lease that are contingent on the
Occupancy Requirement being met are all hereby forever terminated and of no
further force or effect; provided, however, that Tenant (i) may continue
to maintain Tenant’s existing Exterior Signage on a non-exclusive basis so long
as Tenant continues to occupy at least 33,686 rentable square feet of the
Premises, and (ii) shall continue to have the right to extend the term of
the Lease pursuant to the terms and conditions set forth in Section 30
of the Lease (other than the condition contained in Section 30.1(ii) regarding
the Occupancy Requirement).


 


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12.                               Conditions
Precedent.  Notwithstanding anything to the
contrary contained in this Fourth Amendment, Tenant and Landlord acknowledge
and agree that the effectiveness of this Fourth Amendment shall be subject to
the following conditions precedent (“Conditions
Precedent”) having been satisfied: (i) Landlord shall have
entered into a lease agreement on or before August 28, 2009 for the entire
Surrender Premises with Novartis Institutes for Biomedical Research (“New Lease”) which lease agreement shall (a) be for a
term of no less than 5 years, (b) provide for a base rent for the first
year of the lease of no less than $52.00 per rentable square foot of the
Surrender Premises per year, (c) provide a target rent commencement date
of November 1, 2009, and (d) otherwise be on terms and conditions
acceptable to Landlord, in Landlord’s sole and absolute discretion, and (ii) Landlord
shall have received approval of this Fourth Amendment and the New Lease from
Landlord’s mortgage lender on or before August 28, 2009.  In the event that either or both of the
Conditions Precedent is not satisfied within the timeframes provided above,
Landlord shall have the right to terminate this Fourth Amendment upon delivery
of written notice to Tenant.  Landlord
shall have no liability whatsoever to Tenant relating to or arising from
Landlord’s inability or failure to cause either or both of the Conditions
Precedent to be satisfied.


 


13.                               AUL.  Landlord has disclosed to Tenant that the Condominium is the
subject of an Activity and Use Limitation, which is incorporated herein by reference, and Tenant
acknowledges receipt of a copy of such Activity and Use Limitation prior to
execution of this Fourth Amendment.


 


14.                               Brokers.  Landlord and Tenant each represents and warrants that no
broker, agent or other person (collectively, “Broker”)
shall be entitled to a commission in connection with the transaction reflected
in this Fourth Amendment, other than CB Richard Ellis, as applicable.  Landlord and Tenant each hereby agree to
indemnify and hold the other
harmless from and against any claims by any Broker, other than CB Richard
Ellis, claiming a commission or other form of compensation by virtue of having
dealt with Tenant or Landlord, as applicable, with regard to this Fourth
Amendment.  Tenant shall be responsible
for the payment of any commission payable to CB Richard Ellis in connection
with this Fourth Amendment.


 


15.                               Miscellaneous.


 


a.                                       This Fourth Amendment is the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written agreements and
discussions. This Fourth Amendment may be amended only by an agreement in
writing, signed by the parties hereto. This Fourth Amendment is effective as of
the date first set forth above.


 


b.                                       This Fourth Amendment is binding
upon and shall inure to the benefit of the parties hereto, their respective
agents, employees, representatives, officers, directors, divisions,
subsidiaries, affiliates, assigns, heirs, successors in interest and
shareholders.


 


c.                                       This Fourth Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which when taken together shall constitute one and the
same instrument. The signature page of any counterpart may be detached
therefrom without impairing the legal effect of the signature(s) thereon
provided such signature page is attached to any other counterpart
identical thereto except having additional signature pages executed by
other parties to this Fourth Amendment attached thereto.


 


d.                                       Except as amended and/or
modified by this Fourth Amendment, the Lease is hereby ratified and confirmed
and all other terms of the Lease shall remain in full force and effect,
unaltered and unchanged by this Fourth Amendment.  In the event of any conflict between the
provisions of this Fourth Amendment and the provisions of the Lease, the
provisions of this 


 


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Fourth
Amendment shall prevail. Whether or not specifically amended by this Fourth
Amendment, all of the terms and provisions of the Lease are hereby amended to
the extent necessary to give effect to the purpose and intent of this Fourth
Amendment.


 


[Signatures are on the next page.]


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Fourth Amendment as of the day and year
first above written.


 


	
  LANDLORD:

  	
  ARE-TECH SQUARE, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  ARE-MA Region No. 31,
  LLC

  
	
   

  	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  	
  its member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Alexandria Real Estate
  Equities, L.P.

  
	
   

  	
   

  	
   

  	
  a Delaware limited
  partnership

  
	
   

  	
   

  	
   

  	
  its member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  ARE-QRS Corp.

  
	
   

  	
   

  	
   

  	
   

  	
  a Maryland corporation

  
	
   

  	
   

  	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jackie Clem

  
	
   

  	
   

  	
   

  	
   

  	
  Its:

  	
  VP-RE Legal Affairs

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TENANT:

  	
  DYAX CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ivana
  Magovcevic-Liebish

  
	
   

  	
  Its:

  	
  Executive Vice President
  of Administration and General Counsel

  



 


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EXHIBIT
A


 


SURRENDER
PREMISES


 


[Diagram
of Premises]


 

















 


EXHIBIT B


 


SHARED MECHANICAL SPACE


 


[Diagram
of Shared Mechanical Space]


 

















 


EXHIBIT
C


 


OFFICE
FURNITURE


 


[Diagram
of Office Furniture in Premises]