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Exhibit 10.44
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease ("Amendment") dated as of July 30, 1999 and
effective as of August 1, 1999 and is made by and among Lincoln Street Trust, as
Landlord ("Landlord"), Immulogic Pharmaceutical Corporation ("Immulogic") and
Scriptgen Pharmaceuticals, Inc. ("Scriptgen").
RECITAL
WHEREAS, Immulogic entered into that certain Lease dated November 29, 1991,
and an Amendment thereto dated May 8, 1992 (as amended, the "Lease") for the
entire building located at 610 Lincoln Street, Waltham, Massachusetts (the
"Premises"):
WHEREAS, subsequently Immulogic sublet the Premises pursuant to a Sublease
dated January 22, 1998 by and between Immulogic and Scriptgen whereby Scriptgen
subleased substantially all of the Premises (the "Sublease");
WHEREAS, Immulogic, Scriptgen and Landlord entered into that certain letter
agreement dated February 16, 1998 whereby Scriptgen agreed to certain covenants
in connection with the Sublease (the "Letter Agreement");
WHEREAS, Immulogic desires to be released of its obligations under the
Lease;
WHEREAS, Scriptgen desires to become the Tenant under the Lease; and
WHEREAS, Landlord has agreed to relieve Immulogic of its obligations under
the Lease and recognize Scriptgen as Tenant by amending the Lease and
substituting Scriptgen as the tenant thereunder subject to the following terms
and conditions contained herein.
NOW, THEREFORE FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Immulogic's interest in the Lease is hereby assigned to Scriptgen.
Scriptgen hereby assumes all liability and obligations of Immulogic as
Tenant under the Lease on and after the date of this Amendment, and
Immulogic is hereby released from all liability and obligations under
the Lease which shall accrue after the date of this Amendment.
Notwithstanding the foregoing, Scriptgen shall be liable as if
Scriptgen was the original tenant named in the Lease for any and all
claims relating to hazardous substances as defined in Section 5.2 of
the Lease caused by Scriptgen, its agents, employees, invitees,
licensees and contractors and for any acts or omissions of Scriptgen,
its agents, employees, invitees, licensees and contractors during
Scriptgen's occupancy of the Premises under the Sublease. The Sublease
is hereby terminated. However, the covenants set forth in the Letter
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Agreement shall survive termination of the Sublease and are hereby
incorporated in the Lease and shall be binding on Landlord and
Scriptgen.
2. The following shall be deleted following the term "TENANT" in Section
1.1, "Immulogic Pharmaceutical Corporation" and "SCRIPTGEN
Pharmaceuticals, Inc." shall be substituted in lieu thereof.
3. The following shall be deleted following the term "TENANT'S ORIGINAL
ADDRESS" in Section 1.1 "One Kendall Square, Building 600, Cambridge,
MA 02130" and "610 Lincoln Street, Waltham MA 02254" shall be
substituted in lieu thereof.
4. The following shall be deleted after the term "ANNUAL FIXED RENT" in
Section 1.1:
Lease Years 1 and 2: $1,055,060.50
Lease Year 3: $1,097,777.50
Lease Year 4: $1,183,205.50
Lease Year 5: $1,225,920.50
Lease Year 6 through 8: $1,268,635.50
Lease Years 9 and 10: $1,311,350.60
and "Annual Fixed Rent through August 31, 2002 is $2,392,040.04
annually" shall be inserted in lieu thereof. The Annual Fixed Rent
includes all tenant improvements, fixtures and other property owned by
Landlord (or transferred to Landlord hereunder) currently used by
Scriptgen at the Premises.
5. The following shall be deleted in Section 1.1 of the Lease: "Security
Deposit: $750,000," "Broker: R.M. Bradley & Co., Inc. and Lynch,
Murphy, Walsh and Partners," and "Tenant's Authorized Representative:
Janet C. Bush."
6. The following shall be deleted from Section 1.2 of the Lease: "Exhibit
B. Construction Costs Disbursement Schedule."
7. Article III of the Lease, entitled "Construction of Premises," shall
be deleted in its entirety.
8. The second sentence in Section 5.2 shall be deleted in its entirety
and replaced with the following: "Tenant shall obtain and maintain all
permits necessary for all operations conducted in the Premises, and
shall comply with the terms thereof."
9. Section 8.6 of the Lease shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
"Each party warrants to the other that it has had no dealings with any
broker or agent in connection with this Lease. Each party covenants to
pay, hold harmless
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and indemnify the other from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any
broker or agent with respect to this Lease or the negotiation thereof,
or arising from a breach of the foregoing warranty."
10. The following is hereby added as a new section, 8.18:
8.18 CONSTRUCTION OF ADDITION
Landlord shall have the right to construct an addition to the
Premises (the "Addition") and, in connection with the development of
the Addition, Landlord shall have the right to make alterations to the
exterior of the Premises and building systems located therein; to
utilize the Premises for access and egress to and from the Addition or
utilities serving the Addition; to alter or expand the loading
facilities at the Premises and to utilize the loading facilities for
the Addition in common with Premises; to shore up the foundations
and/or walls of the Premises; to erect scaffolding and protective
barricades around, within or adjacent to the Premises; and to do any
other act necessary for the safety of the Premises or the development
of the Addition. Landlord shall not be liable to Tenant for any
compensation or reduction of rent by reason of inconvenience or
annoyance or for loss of business resulting from any act by Landlord
pursuant to this Section 8.18, provided that Landlord shall not
materially interfere with Tenant's use of the Premises and shall use
reasonable efforts to minimize the extent and duration of any
inconvenience, annoyance or loss of business to Tenant resulting from
any work pursuant to this Section in or about the Premises, consistent
with accepted construction practice.
11. The Lease is hereby amended by adding a new Article X thereto, to read
in its entirety as follows, and simultaneously with the execution of
this Amendment Immulogic shall pay over to Landlord the Security
Deposit currently held by Immulogic under the Sublease, which shall
become the Security Deposit under the Lease:
The Security Deposit will be held by Landlord in an interest-bearing
account for and during the Term, which deposit shall be returned to
Tenant within thirty (30) days after the expiration or termination of
the Lease, provided there exists no breach of any undertaking of
Tenant. Provided Tenant is not in default of this Lease, all interest
on the Security Deposit shall be paid to Tenant on an annual basis on
each anniversary of the Commencement Date. If all or any part of the
Security Deposit is applied to an obligation of Tenant hereunder,
Tenant shall immediately, upon request by Landlord, restore the
Security Deposit to its original amount. Tenant shall not have the
right to call upon Landlord to apply all or any part of the Security
Deposit to cure any default or fulfill any obligation of Tenant, by
such use shall solely be in the discretion of the Landlord. Provided
Tenant is
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not in default of any of its obligations hereunder, the Security
Deposit shall be reduced to $250,000.00 and $250,000.00 returned to
the Tenant within ten (10) days after Tenant provides evidence
reasonably satisfactory to Landlord that Tenant has successfully
completed a public offering of Tenant's common stock, which raised not
less than $30,000,000.00.
12. Exhibit B to the Lease shall be deleted in its entirety.
13. Each of Landlord and Immulogic covenants, warrants and represents
that: (i) the copy of the Lease and the Letter Agreement attached
hereto as EXHIBIT A is a true and correct copy of the Lease and the
Letter Agreement and there are no amendments or modifications thereto
except as included in said EXHIBIT A; (ii) the Lease and the Letter
Agreement are a complete statement of the agreement of the parties
thereto with respect to the use and occupancy of the Premises; (iii)
the Lease and the Letter Agreement are in full force and effect; (iv)
it has not given or received any notice of default or notice of
termination of the Lease or the Letter Agreement, and is not in
default of any monetary obligations or, to the best of its knowledge,
in the performance of or compliance with any material provisions of
the Lease and the Letter Agreement, and to the best of its knowledge
no facts or circumstances exist which, with the giving of notice or
the passage of time or both, would constitute such a default
thereunder (Landlord waives its rights in connection with any
nonmonetary defaults under the Lease of which it is not now aware
except for defaults arising from the acts or omissions of Scriptgen,
its agents, employees, invitees, licensees and contractors during
Scriptgen's occupancy of the Premises under the Sublease), and (v) to
the best of its knowledge, each other party to the Lease and the
Letter Agreement is not in default in the performance of or compliance
with any material provisions of the Lease and the Letter Agreement,
and to the best of its knowledge no facts or circumstances exist
which, with the given of notice or the passage of time or would
constitute such a default thereunder.
14. Scriptgen covenants, warrants and represents that (i) it has not given
or received any notice of default or notice of termination of the
Sublease or the Letter Agreement and it is not in material default in
the performance or compliance of any of the material provisions of the
Sublease or the Letter Agreement and no facts or circumstances exist
which would, with the giving of notice or the passage of time or both
would constitute a default thereunder; and (ii) to the best of its
knowledge, Landlord is not in default in the performance of or
compliance with any material provisions of the Lease or the Letter
Agreement, and no facts or circumstances exist which, with the given
of notice or the passage of time or both, would constitute such a
default thereunder. Scriptgen hereby agrees that (i) the copy of the
Lease and the Letter Agreement attached hereto as Exhibit A is a true
and correct copy of the Lease and the Letter Agreement and there are
no amendments or modifications thereto except as included in said
Exhibit A; (ii) the Lease and the Letter Agreement are a complete
statement of the agreement of the
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parties thereto with respect to the use and occupancy of the Premises;
(iii) to the best of Scriptgen's knowledge, the Lease and the Letter
Agreement are in full force and effect.
15. Immulogic hereby transfers, assigns and conveys to Landlord all of its
right, title and interest in all tenant improvements, fixtures or any
other personal property of any kind on, under, over or about the
Premises and hereby warrants and represents that all such property is
owned by Immulogic free and clear of any liens, security interests, or
adverse claims (other than rights of Scriptgen under the Sublease).
16. All other terms and provisions of the Lease are hereby ratified and
confirmed.
17. Notwithstanding anything contained in this Amendment to the contrary,
this Amendment shall not be effective and bind the parties until the
Landlord's lender has consented to this Amendment, it being understood
that the consent of Landlord's lender is a condition to this
Amendment.
18. This Amendment may be signed in counterparts, all of which taken
together shall constitute one agreement, provided that it shall not be
binding upon any party hereto unless and until at least one
counterpart shall have been executed and delivered by each party
hereto.
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have executed this First Amendment to Lease
as of the date first written above as a sealed instrument.
LINCOLN STREET TRUST SCRIPTGEN PHARMACEUTICALS, INC.
Landlord
By: /s/ Michael D. Bank By: /s/ John Barberich
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Name: Michael D. Bank Name: John Barberich
Title: Managing Director Title: Vice President & CFO
IMMULOGIC PHARMACEUTICAL
CORPORATION
By: /s/ J. Richard Crowley
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Name: J. Richard Crowley
Title: President
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