Exhibit 10.1


 


AMENDMENT TO LEASE


 


THIS AMENDMENT TO LEASE (this “Amendment”) is dated as
of the 11th day of May, 2005, by and between ARE-500
Arsenal Street, LLC, a Delaware limited liability company (“Landlord”)
and Acusphere, Inc., a Delaware
corporation (“Tenant”).


 


 


A.                                   Landlord
and Tenant are parties to that certain Lease, dated as of March 30, 2001
(the “Original Lease”).  Pursuant to the
Original Lease, Landlord agreed to lease to Tenant, and Tenant leased from
Landlord, certain premises located in the building known as 500 Arsenal Street,
Watertown, Massachusetts, as further identified in the Original Lease, subject
to the terms and conditions more particularly set forth in the Original
Lease.  The Original Lease, as amended by
this Amendment, is sometimes referred to herein as the “Lease”.


 


B.                                     Landlord
and Tenant now desire to extend the Base Term of the Lease, and Landlord
desires to permit Tenant to construct certain improvements to the Premises and
to cause other changes to the Lease in accordance with the terms and conditions
set forth in this Amendment.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:


 


1.                                       Amended
Definitions.  Commencing on the date
of this Amendment and continuing throughout the Term of this Lease, the
definition of “Base Term” set forth in the Original Lease is hereby deleted and
the following new definition is added to the Lease:


 


	
  Base Term:

  	
   

  	
  Beginning on the Commencement Date and ending on June 30,
  2012.

  



 


2.                                       Base
Term.  Commencing as of the date
hereof, all references in the Lease to “Base Term” shall be deemed to mean the
Base Term as defined in Paragraph 1 of this Amendment.


 


3.                                       Tenant
Improvements.  Landlord has
previously reviewed and approved Tenant’s plans for Tenant’s proposed
additional Tenant Improvements to the Premises. 
To facilitate Tenant’s construction of such Tenant Improvements,
Landlord shall provide to Tenant a tenant improvement allowance (“TI Allowance”)
in an amount not to exceed $270,000.00. 
Such Tenant Improvements shall be constructed and the TI Allowance shall
be disbursed in accordance with a work letter to be entered into by Landlord
and Tenant in substantially the form attached hereto as Exhibit A.


 


4.                                       Broker.  Each party
represents and warrants to the other that it has not dealt with any broker or
person in connection with this Amendment. 
Each party hereby indemnifies and agrees to defend and hold the other
party harmless from and against any and all claims for commission, fee or other
compensation by any person who shall claim to have dealt with such party in
connection with this Amendment and for any and all costs incurred in connection
with such claims, including, without limitation, reasonable attorneys’ fees and
disbursements.


 


5.                                       Miscellaneous.   All other terms and conditions of the
Original Lease, as amended hereby, remain in full force and effect, as so
amended.  All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in
the Original Lease.  The recitals set
forth above are specifically incorporated into the body of this Amendment and
shall be binding upon the parties hereto. 
Except as expressly amended hereby, all of the terms and conditions of
the Lease remain unchanged and in full force and effect.  This Amendment is deemed incorporated into
the Lease by 


 


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reference as of the date hereof; provided, however, in
the event of any conflict or inconsistency between the terms and provisions of
the Lease and the terms and provisions of this Amendment, the terms and
provisions of this Amendment shall govern and control.  This Amendment may be executed in any number
of counterparts with the same effect as if all of the signatures on such
counterparts appeared on one document, and each such counterpart shall be
deemed to be an original.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed under seal as of the day and year first above
written.


 


LANDLORD:


 


 


ARE-500 Arsenal Street, LLC,


a Delaware limited liability company


 


By: Alexandria Real Estate
Equities, L.P., 

a Delaware limited partnership, managing member


 


	
  By: ARE-QRS Corp., general
  partner

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ 

  	
  Jennifer Pappas

  	
   

  
	
  Name:

  	
   

  	
  Jennifer Pappas

  	
   

  
	
  Title:

  	
   

  	
  V.P. and Assistant Secretary

  	
   

  
	
   

  
	
  TENANT:

  
	
   

  
	
  Acusphere, Inc., a
  Delaware corporation

  
	
   

  
	
   

  
	
  By: 

  	
  /s/  

  	
  John F. Thero

  	
   

  
	
  Name:

  	
   

  	
  John F. Thero

  	
   

  
	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  	
   

  
							



 


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Exhibit A


 


WORK LETTER


 


THIS
WORK LETTER dated as of May 11, 2005 (this “Work Letter”)
is made and entered into by and between ARE-500 Arsenal Street, LLC, a
Delaware limited liability company (“Landlord”), and
Acusphere, Inc., a Delaware corporation (“Tenant”),
and is attached to and made a part of the Lease dated as of March 30,
2001, as amended by that certain Amendment to Lease dated as of May 11, 2005
(as so amended, the “Lease”), by and
between Landlord and Tenant.  Any
initially capitalized terms used but not defined herein shall have the meanings
given them in the Lease.


 


1.                                       General Requirements.


 


(a)                                  Tenant’s Authorized Representative.  Tenant designates David Plante and John Thero
(either such individual acting alone, “Tenant’s Representative”)
as the only persons authorized to act for Tenant pursuant to this Work
Letter.  Landlord shall not be obligated
to respond to or act upon any request, approval, inquiry or other communication
(“Communication”) from or on behalf of
Tenant in connection with this Work Letter unless such Communication is in
writing from Tenant’s Representative. 
Tenant may change either Tenant’s Representative at any time upon not
less than 5 business days advance written notice to Landlord.  No period set forth herein for any approval
of any matter by Tenant’s Representative shall be extended by reason of any
change in Tenant’s Representative. 
Neither Tenant nor Tenant’s Representative shall be authorized to direct
Landlord’s contractors in the performance of Landlord’s Work (as hereinafter
defined).


 


(b)                                 Landlord’s Authorized Representative. 
Landlord designates Tim White and Tom Andrews (either such
individual acting alone, “Landlord’s Representative”)
as the only persons authorized to act for Landlord pursuant to this Work
Letter.  Tenant shall not be obligated to
respond to or act upon any request, approval, inquiry or other Communication
from or on behalf of Landlord in connection with this Work Letter unless such
Communication is in writing from Landlord’s Representative.  Landlord may change either Landlord’s
Representative at any time upon not less than 5 business days advance written
notice to Tenant.  No period set forth
herein for any approval of any matter by Landlord’s Representative shall be
extended by reason of any change in Landlord’s Representative.  Landlord’s Representative shall be the sole
persons authorized to direct Landlord’s contractors in the performance of
Landlord’s Work.


 


(c)                                  Architects, Consultants and Contractors.  Landlord and Tenant hereby
acknowledge and agree that Landlord has selected, and Tenant has approved, The
Richmond Group to design and construct the Tenant Improvements.


 


2.                                       Tenant Improvements.


 


(a)                                  Tenant Improvements Defined. 
As used herein, “Tenant Improvements”
shall mean all improvements to the Project desired by Tenant of a fixed and
permanent nature as set forth on the TI Construction Drawings (as hereinafter
defined).  Other than the Tenant
Improvements, Landlord shall not have any obligation whatsoever with respect to
the finishing of the Premises for Tenant’s use and occupancy.


 


(b)                                 Approval and Completion.  Landlord
has previously reviewed and approved Tenant’s plans with regard to the Tenant
Improvements (such plans being referred to herein as the “TI
Construction Drawings”).  Any
changes to the TI Construction Drawings after the date hereof requested by
Tenant shall be processed as provided in Section 4 hereof.


 


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3.                                       Performance of Landlord’s Work.


 


(a)                                  Definition of Landlord’s Work.  As
used herein, “Landlord’s Work” shall mean the
work of constructing the Tenant Improvements.


 


(b)                                 Commencement and Permitting of Landlord’s Work.  Landlord shall commence construction
of the Tenant Improvements upon obtaining a building permit (the “TI Permit”) authorizing the construction of the Tenant
Improvements consistent with the TI Construction Drawings approved by
Tenant.  The cost of obtaining the TI
Permit shall be payable from the TI Fund (as hereinafter defined).  Tenant shall assist Landlord in obtaining the
TI Permit.  If any Governmental Authority
having jurisdiction over the construction of Landlord’s Work or any portion
thereof shall impose terms or conditions upon the construction thereof
which:  (i) are inconsistent with
Landlord’s obligations hereunder, (ii) increase the cost of constructing
Landlord’s Work, or (iii) will materially delay the construction of
Landlord’s Work, Landlord and Tenant shall reasonably and in good faith seek
means by which to mitigate or eliminate any such adverse terms and conditions.


 


(c)                                  Completion of Landlord’s Work.  Landlord
shall substantially complete or cause to be substantially completed Landlord’s
Work in a good and workmanlike manner, in accordance with the TI Permit
subject, in each case, to Minor Variations and normal “punch list” items of a
non-material nature which do not interfere with the use of the Premises (“Substantial Completion”). 
For purposes of this Work Letter, “Minor Variations”
shall mean any modifications reasonably required:  (i) to comply with all applicable Legal
Requirements and/or to obtain or to comply with any required permit (including
the TI Permit); (ii) to comply with any request by Tenant for modifications
to Landlord’s Work; (iii) to comport with good design, engineering, and
construction practices which are not material; or (iv) to make reasonable
adjustments for field deviations or conditions encountered during the
construction of Landlord’s Work.  Tenant
shall be entitled to receive the benefit of all construction warranties and
manufacturer’s equipment warranties relating to equipment installed in the
Premises.  If requested by Tenant,
Landlord shall attempt to obtain extended warranties from manufacturers and
suppliers of such equipment, but the cost of any such extended warranties shall
be borne solely out of the TI Fund. 
Landlord shall diligently pursue any claims arising out of latent
defects in the Project.  Landlord shall
promptly undertake and complete, or cause to be completed, all punch list
items.


 


(d)                                 Selection of Materials, Etc.  Where
more than one type of material or structure is indicated on the TI Construction
Drawings approved by Landlord and Tenant, the option will be within Landlord’s
sole discretion.  As to all building
materials and equipment which Landlord is obligated to supply under this Work
Letter, Landlord shall select the manufacturer thereof in its sole discretion.


 


4.                                       Changes.  Any changes
requested by Tenant to the Tenant Improvements after the date hereof shall be
requested and instituted in accordance with the provisions of this Section 4
and shall be subject to the written approval of Landlord, such approval not to
be unreasonably withheld, conditioned or delayed.


 


(a)                                  Tenant’s Right to Request Changes. 
If Tenant shall request changes to Landlord’s Work (“Changes”), Tenant shall request such Changes by notifying
Landlord in writing in substantially the same form as the AIA standard change
order form (a “Change Request”), which Change
Request shall detail the nature and extent of any such Change.  Such Change Request must be signed by Tenant’s
Representative.  Landlord shall, before
proceeding with any Change, use its best efforts to respond to Tenant as soon
as is reasonably possible with an estimate of: 
(i) the time it will take, and (ii) the architectural and
engineering fees and costs which will be incurred, to analyze such Change
Request (which costs shall be paid from the TI Fund to the extent actually
incurred, whether or not such change is implemented).  Landlord shall thereafter submit to Tenant in
writing, within 5 business days of receipt of 


 


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the Change Request (or such longer period of time as
is reasonably required depending on the extent of the Change Request), an
analysis of the additional cost or savings involved, including, without
limitation, architectural and engineering costs and the period of time, if any,
that the Change will extend the date on which Landlord’s Work will be
Substantially Complete.  Landlord shall
not be liable to Tenant for any delay in Substantial Completion of Landlord’s
Work arising from any such Change.


 


(b)                                 Implementation of Changes.  If
Tenant:  (i) approves in writing the
cost or savings and any delay in Substantial Completion arising from such
Change, and (ii) deposits with Landlord any Excess TI Costs required in
connection with such Change, Landlord shall cause the approved Change to be
instituted.


 


5.                                       Costs.


 


(a)                                  Budget For Tenant Improvements.  Before
the commencement of construction of the Tenant Improvements, Tenant shall
obtain a detailed breakdown, by trade, of the costs incurred or which will be
incurred, in connection with the design and construction of Tenant’s Work (the “Budget”).  The Budget
shall be based upon the TI Construction Drawings approved by Landlord and shall
include a payment to Landlord of administrative rent (“Administrative
Rent”) equal to 3% of the TI Costs (as hereinafter defined) for
monitoring and inspecting the construction of Tenant’s Work, which sum shall be
payable from the TI Fund.  Such
Administrative Rent shall include, without limitation, all out-of-pocket costs,
expenses and fees incurred by or on behalf of Landlord arising from, out of, or
in connection with, such monitoring of the construction of the Tenant
Improvements, and shall be payable out of the TI Fund.  If the Budget is greater than the TI
Allowance, Tenant shall deposit with Landlord the difference, in cash, prior to
the commencement of construction of the Tenant Improvements, for disbursement
by Landlord as described in Section 5(d).


 


(b)                                 TI Allowance. 
Landlord shall provide to Tenant a tenant improvement allowance (“TI Allowance”) in an amount not to exceed $270,000.00.  The
TI Allowance shall be disbursed in accordance with this Work Letter.  Tenant shall have no right to the use or
benefit (including any reduction to Base Rent) of any portion of the TI
Allowance not required for the construction of (i) the Tenant Improvements
described in the TI Construction Drawings approved pursuant to Section 2(b) or
(ii) any Changes pursuant to Section 4.


 


(c)                                  Costs Includable in TI Fund.  The
TI Fund shall be used solely for the payment of design and construction costs
in connection with the construction of the Tenant Improvements, including,
without limitation, the cost of preparing the TI Construction Drawings, all
costs set forth in the Budget, including Landlord’s Administrative Rent, and
the cost of Changes (collectively, “TI Costs”). 
Notwithstanding anything to the contrary contained herein, the TI Fund
shall not be used to purchase any furniture, personal property or other
non-Building System materials or equipment, including, but not be limited to,
biological safety cabinets and other scientific equipment not incorporated into
the Improvements.


 


(d)                                 Excess TI Costs.  It
is understood and agreed that Landlord is under no obligation to bear any
portion of the cost of any of the Tenant Improvements except to the extent of
the TI Allowance.  If at any time and
from time-to-time, the remaining TI Costs under the Budget exceed the remaining
unexpended TI Allowance, Tenant shall deposit with Landlord, as a condition
precedent to Landlord’s obligation to complete the Tenant Improvements, 100% of
the then current TI Cost in excess of the remaining TI Allowance (“Excess TI
Costs”).  If Tenant fails to deposit, or
is late in depositing, any Excess TI Costs with Landlord, Landlord shall have
all of the rights and remedies set forth in the Lease for nonpayment of Rent
(including, but not limited to, the right to interest at the Default Rate and
the right to assess a late charge), and for purposes of any litigation
instituted with regard to such amounts the same 


 


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will be considered Rent.  Such Excess TI Costs, together with the
remaining TI Allowance, is herein referred to as the “TI Fund.”  Funds so deposited by Tenant shall be the
first thereafter disbursed to pay TI Costs. 
Notwithstanding anything to the contrary set forth in this Section 5(d),
Tenant shall be fully and solely liable for TI Costs in excess of the TI
Allowance.  If upon Substantial
Completion of the Tenant Improvements and the payment of all sums due in
connection therewith there remains any undisbursed TI Fund, Tenant shall be
entitled to such undisbursed TI Fund solely to the extent of any Excess TI
Costs deposit Tenant has actually made with Landlord.


 


6.                                       Miscellaneous.


 


(a)                                  Consents.  Whenever
consent or approval of either party is required under this Work Letter, that
party shall not unreasonably withhold, condition or delay such consent or
approval, except as may be expressly set forth herein to the contrary.


 


(b)                                 Modification.  No
modification, waiver or amendment of this Work Letter or of any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in
writing signed by Landlord and Tenant.


 


(c)                                  Counterparts.  This
Work Letter may be executed in any number of counterparts but all counterparts
taken together shall constitute a single document.


 


(d)                                 Governing Law.  This
Work Letter shall be governed by, construed and enforced in accordance with the
internal laws of the state in which the Premises are located, without regard to
choice of law principles of such State.


 


(e)                                  Time of the Essence.  Time
is of the essence of this Work Letter and of each and all provisions thereof.


 


(f)                                    Default.  Notwithstanding
anything set forth herein or in the Lease to the contrary, Landlord shall not
have any obligation to perform any work hereunder or to fund any portion of the
TI Fund during any period Tenant is in Default under the Lease.


 


(g)                                 Severability.  If any
term or provision of this Work Letter is declared invalid or unenforceable, the
remainder of this Work Letter shall not be affected by such determination and
shall continue to be valid and enforceable.


 


(h)                                 Merger.  All
understandings and agreements, oral or written, heretofore made between the
parties hereto and relating to Tenant’s Work are merged in this Work Letter,
which alone (but inclusive of provisions of the Lease incorporated herein and
the final approved constructions drawings and specifications prepared pursuant
hereto) fully and completely expresses the agreement between Landlord and
Tenant with regard to the matters set forth in this Work Letter.


 


(i)                                     Entire Agreement.  This
Work Letter is made as a part of and pursuant to the Lease and, together with
the Lease, constitutes the entire agreement of the parties with respect to the
subject matter hereof.  This Work Letter
is subject to all of the terms and limitation set forth in the Lease, and
neither party shall have any rights or remedies under this Work Letter separate
and apart from their respective remedies pursuant to the Lease.


 


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IN WITNESS WHEREOF, Landlord
and Tenant have executed this Work Letter to be effective on the date first
above written.


 


LANDLORD:


 


 


ARE-500 Arsenal Street, LLC,


a Delaware limited liability company


 


By: Alexandria Real Estate
Equities, L.P., 

a Delaware limited partnership, managing member


 


	
  By: ARE-QRS Corp., general
  partner

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ 

  	
  Jennifer Pappas

  	
   

  
	
  Name:

  	
   

  	
  Jennifer Pappas

  	
   

  
	
  Title:

  	
   

  	
  V.P. and Assistant Secretary

  	
   

  
	
   

  
	
   

  
	
  TENANT:

  
	
   

  
	
  Acusphere, Inc., a
  Delaware corporation

  
	
   

  
	
   

  
	
  By: 

  	
  /s/ 

  	
  John F. Thero

  	
   

  
	
  Name:

  	
   

  	
  John F. Thero

  	
   

  
	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  	
   

  
							



 


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