**Exhibit 10.1**

 

AMENDMENT TO LEASE

 

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

 

 

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

 

B.                                     Landlordand Tenant now desire to extend the Base Term of the Lease, and Landlorddesires to permit Tenant to construct certain improvements to the Premises andto cause other changes to the Lease in accordance with the terms and conditionsset forth in this Amendment.

 

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

 

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

 
| Base Term: |   | Beginning on the Commencement Date and ending on June 30,  2012. |
|------------|--------|-----------------------------------------------------------------------|

 

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

 

3.                                       TenantImprovements.  Landlord haspreviously reviewed and approved Tenant’s plans for Tenant’s proposedadditional 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 shallbe disbursed in accordance with a work letter to be entered into by Landlordand Tenant in substantially the form attached hereto as Exhibit A.

 

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

 

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

 

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

 

IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be executed under seal as of the day and year first abovewritten.

 

LANDLORD:

 

 

**ARE-500 Arsenal Street, LLC**,a Delaware limited liability company

 

By: **Alexandria Real EstateEquities, 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**

 

THISWORK LETTER dated as of May 11, 2005 (this “**Work Letter**”)is made and entered into by and between ARE-500 Arsenal Street, LLC, aDelaware limited liability company (“**Landlord**”), andAcusphere, 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 andbetween Landlord and Tenant.  Anyinitially capitalized terms used but not defined herein shall have the meaningsgiven 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 WorkLetter.  Landlord shall not be obligatedto respond to or act upon any request, approval, inquiry or other communication(“**Communication**”) from or on behalf ofTenant in connection with this Work Letter unless such Communication is inwriting from Tenant’s Representative. Tenant may change either Tenant’s Representative at any time upon notless than 5 business days advance written notice to Landlord.  No period set forth herein for any approvalof any matter by Tenant’s Representative shall be extended by reason of anychange in Tenant’s Representative. Neither Tenant nor Tenant’s Representative shall be authorized to directLandlord’s contractors in the performance of Landlord’s Work (as hereinafterdefined).

 

(b)                                 **Landlord’s Authorized Representative. **Landlord designates Tim White and Tom Andrews (either suchindividual acting alone, “**Landlord’s Representative**”)as the only persons authorized to act for Landlord pursuant to this WorkLetter.  Tenant shall not be obligated torespond to or act upon any request, approval, inquiry or other Communicationfrom or on behalf of Landlord in connection with this Work Letter unless suchCommunication is in writing from Landlord’s Representative.  Landlord may change either Landlord’sRepresentative at any time upon not less than 5 business days advance writtennotice to Tenant.  No period set forthherein for any approval of any matter by Landlord’s Representative shall beextended by reason of any change in Landlord’s Representative.  Landlord’s Representative shall be the solepersons authorized to direct Landlord’s contractors in the performance ofLandlord’s Work.

 

(c)                                  **Architects, Consultants and Contractors. **Landlord and Tenant herebyacknowledge and agree that Landlord has selected, and Tenant has approved, TheRichmond 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 andpermanent nature as set forth on the TI Construction Drawings (as hereinafterdefined).  Other than the TenantImprovements, Landlord shall not have any obligation whatsoever with respect tothe finishing of the Premises for Tenant’s use and occupancy.

 

(b)                                 **Approval and Completion. **Landlordhas previously reviewed and approved Tenant’s plans with regard to the TenantImprovements (such plans being referred to herein as the “**TIConstruction Drawings**”).  Anychanges to the TI Construction Drawings after the date hereof requested byTenant 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. **Asused herein, “**Landlord’s Work**” shall mean thework of constructing the Tenant Improvements.

 

(b)                                 **Commencement and Permitting of Landlord’s Work. **Landlord shall commence constructionof the Tenant Improvements upon obtaining a building permit (the “**TI Permit**”) authorizing the construction of the TenantImprovements consistent with the TI Construction Drawings approved byTenant.  The cost of obtaining the TIPermit shall be payable from the TI Fund (as hereinafter defined).  Tenant shall assist Landlord in obtaining theTI Permit.  If any Governmental Authorityhaving jurisdiction over the construction of Landlord’s Work or any portionthereof shall impose terms or conditions upon the construction thereofwhich:  (i) are inconsistent withLandlord’s obligations hereunder, (ii) increase the cost of constructingLandlord’s Work, or (iii) will materially delay the construction ofLandlord’s Work, Landlord and Tenant shall reasonably and in good faith seekmeans by which to mitigate or eliminate any such adverse terms and conditions.

 

(c)                                  **Completion of Landlord’s Work. **Landlordshall substantially complete or cause to be substantially completed Landlord’sWork in a good and workmanlike manner, in accordance with the TI Permitsubject, in each case, to Minor Variations and normal “punch list” items of anon-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 LegalRequirements and/or to obtain or to comply with any required permit (includingthe TI Permit); (ii) to comply with any request by Tenant for modificationsto Landlord’s Work; (iii) to comport with good design, engineering, andconstruction practices which are not material; or (iv) to make reasonableadjustments for field deviations or conditions encountered during theconstruction of Landlord’s Work.  Tenantshall be entitled to receive the benefit of all construction warranties andmanufacturer’s equipment warranties relating to equipment installed in thePremises.  If requested by Tenant,Landlord shall attempt to obtain extended warranties from manufacturers andsuppliers of such equipment, but the cost of any such extended warranties shallbe borne solely out of the TI Fund. Landlord shall diligently pursue any claims arising out of latentdefects in the Project.  Landlord shallpromptly undertake and complete, or cause to be completed, all punch listitems.

 

(d)                                 **Selection of Materials, Etc. **Wheremore than one type of material or structure is indicated on the TI ConstructionDrawings approved by Landlord and Tenant, the option will be within Landlord’ssole discretion.  As to all buildingmaterials and equipment which Landlord is obligated to supply under this WorkLetter, Landlord shall select the manufacturer thereof in its sole discretion.

 

4.                                       **Changes. **Any changesrequested by Tenant to the Tenant Improvements after the date hereof shall berequested and instituted in accordance with the provisions of this Section 4and shall be subject to the written approval of Landlord, such approval not tobe 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 notifyingLandlord in writing in substantially the same form as the AIA standard changeorder form (a “**Change Request**”), which ChangeRequest shall detail the nature and extent of any such Change.  Such Change Request must be signed by Tenant’sRepresentative.  Landlord shall, beforeproceeding with any Change, use its best efforts to respond to Tenant as soonas is reasonably possible with an estimate of: (i) the time it will take, and (ii) the architectural andengineering fees and costs which will be incurred, to analyze such ChangeRequest (which costs shall be paid from the TI Fund to the extent actuallyincurred, whether or not such change is implemented).  Landlord shall thereafter submit to Tenant inwriting, within 5 business days of receipt of 

 

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the Change Request (or such longer period of time asis reasonably required depending on the extent of the Change Request), ananalysis of the additional cost or savings involved, including, withoutlimitation, architectural and engineering costs and the period of time, if any,that the Change will extend the date on which Landlord’s Work will beSubstantially Complete.  Landlord shallnot be liable to Tenant for any delay in Substantial Completion of Landlord’sWork arising from any such Change.

 

(b)                                 **Implementation of Changes. **IfTenant:  (i) approves in writing thecost or savings and any delay in Substantial Completion arising from suchChange, and (ii) deposits with Landlord any Excess TI Costs required inconnection with such Change, Landlord shall cause the approved Change to beinstituted.

 

5.                                       **Costs**.

 

(a)                                  **Budget For Tenant Improvements. **Beforethe commencement of construction of the Tenant Improvements, Tenant shallobtain a detailed breakdown, by trade, of the costs incurred or which will beincurred, in connection with the design and construction of Tenant’s Work (the “**Budget**”).  The Budgetshall be based upon the TI Construction Drawings approved by Landlord and shallinclude a payment to Landlord of administrative rent (“**AdministrativeRent**”) equal to 3% of the TI Costs (as hereinafter defined) formonitoring and inspecting the construction of Tenant’s Work, which sum shall bepayable from the TI Fund.  SuchAdministrative Rent shall include, without limitation, all out-of-pocket costs,expenses and fees incurred by or on behalf of Landlord arising from, out of, orin connection with, such monitoring of the construction of the TenantImprovements, and shall be payable out of the TI Fund.  If the Budget is greater than the TIAllowance, Tenant shall deposit with Landlord the difference, in cash, prior tothe commencement of construction of the Tenant Improvements, for disbursementby 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.*** ***TheTI Allowance shall be disbursed in accordance with this Work Letter.  Tenant shall have no right to the use orbenefit (including any reduction to Base Rent) of any portion of the TIAllowance not required for the construction of (i) the Tenant Improvementsdescribed 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. **TheTI Fund shall be used solely for the payment of design and construction costsin connection with the construction of the Tenant Improvements, including,without limitation, the cost of preparing the TI Construction Drawings, allcosts set forth in the Budget, including Landlord’s Administrative Rent, andthe cost of Changes (collectively, “TI Costs”). Notwithstanding anything to the contrary contained herein, the TI Fundshall not be used to purchase any furniture, personal property or othernon-Building System materials or equipment, including, but not be limited to,biological safety cabinets and other scientific equipment not incorporated intothe Improvements.

 

(d)                                 **Excess TI Costs.**  Itis understood and agreed that Landlord is under no obligation to bear anyportion of the cost of any of the Tenant Improvements except to the extent ofthe TI Allowance.  If at any time andfrom time-to-time, the remaining TI Costs under the Budget exceed the remainingunexpended TI Allowance, Tenant shall deposit with Landlord, as a conditionprecedent to Landlord’s obligation to complete the Tenant Improvements, 100% ofthe then current TI Cost in excess of the remaining TI Allowance (“Excess TICosts”).  If Tenant fails to deposit, oris late in depositing, any Excess TI Costs with Landlord, Landlord shall haveall 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 andthe right to assess a late charge), and for purposes of any litigationinstituted with regard to such amounts the same 

 

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will be considered Rent.  Such Excess TI Costs, together with theremaining TI Allowance, is herein referred to as the “TI Fund.”  Funds so deposited by Tenant shall be thefirst 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 TIAllowance.  If upon SubstantialCompletion of the Tenant Improvements and the payment of all sums due inconnection therewith there remains any undisbursed TI Fund, Tenant shall beentitled to such undisbursed TI Fund solely to the extent of any Excess TICosts deposit Tenant has actually made with Landlord.

 

6.                                       **Miscellaneous**.

 

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

 

(b)                                 **Modification. **Nomodification, waiver or amendment of this Work Letter or of any of itsconditions or provisions shall be binding upon Landlord or Tenant unless inwriting signed by Landlord and Tenant.

 

(c)                                  **Counterparts. **ThisWork Letter may be executed in any number of counterparts but all counterpartstaken together shall constitute a single document.

 

(d)                                 **Governing Law. **ThisWork Letter shall be governed by, construed and enforced in accordance with theinternal laws of the state in which the Premises are located, without regard tochoice of law principles of such State.

 

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

 

(f)                                    **Default. **Notwithstandinganything set forth herein or in the Lease to the contrary, Landlord shall nothave any obligation to perform any work hereunder or to fund any portion of theTI Fund during any period Tenant is in Default under the Lease.

 

(g)                                 **Severability. **If anyterm or provision of this Work Letter is declared invalid or unenforceable, theremainder of this Work Letter shall not be affected by such determination andshall continue to be valid and enforceable.

 

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

 

(i)                                     **Entire Agreement. **ThisWork Letter is made as a part of and pursuant to the Lease and, together withthe Lease, constitutes the entire agreement of the parties with respect to thesubject matter hereof.  This Work Letteris subject to all of the terms and limitation set forth in the Lease, andneither party shall have any rights or remedies under this Work Letter separateand apart from their respective remedies pursuant to the Lease.

 

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**IN WITNESS WHEREOF,** Landlordand Tenant have executed this Work Letter to be effective on the date firstabove written.

 

LANDLORD:

 

 

**ARE-500 Arsenal Street, LLC**,a Delaware limited liability company

 

By: **Alexandria Real EstateEquities, 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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