exv10w1



 




Exhibit 10.1



LEASE MODIFICATION AGREEMENT

NO. 1



     THIS LEASE MODIFICATION AGREEMENT NO. 1 (this “First Amendment”) dated May 25, 2005, by and
between The Realty Associates Fund III, a Delaware limited partnership (“Landlord”) and
OXiGENE, INC., a Delaware corporation (“Tenant”).



WITNESSETH



     WHEREAS, Landlord and Tenant entered into a Lease dated as of August 8, 2003 (the
“Lease”) covering approximately 4,000 rentable square feet of space (the “Existing
Premises”) on the fifth floor of the building (the “Building”) known as 230 Third
Avenue, Waltham, Massachusetts (the Original Lease, as amended and affected by this First
Amendment, is hereinafter referred to as the “Lease”); and



     WHEREAS, the Term of the Lease commenced on September 15, 2003 and, in the absence of the
execution and delivery of this First Amendment, is scheduled to expire by its terms at 11:59 p.m.,
local time on December 31, 2008; and



     WHEREAS, Landlord and Tenant mutually desire to increase the size of the premises and to
relocate the premises from the Existing Premises to the sixth (6th) floor of the
Building (the “Replacement Premises”), and to adjust the amount of rent and other charges
payable therefor, and to make other changes to the Lease, all as set forth herein; and



     WHEREAS, Landlord and Tenant mutually intend and desire to modify the Lease on and subject to
the terms and conditions hereinafter set forth.



     NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, each to the other paid, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:



          1.      (a) Tenant currently occupies the Existing Premises, and Tenant agrees that Landlord is not
responsible or liable to perform any work therein to prepare the same for Tenant’s occupancy
thereof, or to pay any further allowance or contribution toward the cost of any work performed by
or for Tenant therein.




          (b) On that date (the “Effective Date”) which is the later to occur of (i) the
Relocation Completion Date (as hereinafter defined), and (ii) July 1, 2005, Tenant shall vacate the
Existing Premises and relocate its furnishings, equipment and personal property to the Replacement
Premises. On the Effective Date, Tenant shall deliver up the Existing Premises to Landlord in
accordance with the Original Lease, including without limitation the provisions of Section 7.2(b)
thereof, provided that Landlord agrees that Tenant shall not be required to remove any alterations
or improvements heretofore made by Tenant in the Existing Premises (and Tenant shall not remove any
of the existing telecommunication or data communication wiring or cabling




 









 







in the Existing Premises). Commencing upon the execution and delivery of this First
Amendment by both parties, and upon recovery by Landlord of full possession of the
Replacement Premises from the existing tenant, Tenant shall have access to the Replacement
Premises for the purpose of installing Tenant’s furniture, equipment and telephone/data
wiring, provided that such access shall be subject to all of the terms and conditions of
the Lease, other than the payment of Rent. Tenant’s access shall be subject to reasonable
scheduling and other requirements of Landlord and Landlord’s contractor, and Tenant shall
deliver to Landlord certificates of liability, casualty and workmen’s compensation
insurance prior to having any such access.




          2. Effective from and after the Effective Date, the following definitions set
forth in Article 1 of the Lease shall be deemed amended as follows:




     Premises: A portion of the sixth floor of the Building, as shown on Exhibit “A-l” attached hereto.



     Rentable Area of the Premises: Agreed to be 9,901 square feet.



     Expiration Date: 11:59 p.m., local time, on May 31, 2009 (subject to Section 7 hereof).



     Base Rent: Commencing on the Effective Date, the Base Rent shall be as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	MONTHLY	 	BASE RENT PER
	LEASE YEAR	 	ANNUAL BASE RENT	 	PAYMENT	 	SQUARE FOOT
	1
	 	$	252,475.50	*	 	$	21,039.63	*	 	$	25.50	 
	2
	 	$	262,376.50	 	 	$	21,864.70	 	 	$	26.50	 
	3
	 	$	272,277.50	 	 	$	22,689.79	 	 	$	27.50	 
	4
	 	$	282,178.44	 	 	$	23,514.87	 	 	$	28.50	 






     For the purposes hereof, the first Lease Year in respect of the Replacement
Premises shall commence on the Effective Date and end on the last day of the twelfth full
calendar month following the Effective Date, and succeeding Lease Years shall be
successive periods of twelve calendar months (and any portion of such a twelve-month
period at the end of the Term).



     * - So long as there exists no default on the part of Tenant under the Lease prior to
September 30, 2005, from the Effective Date through September 30, 2005, Base Rent shall be
computed on the basis of 6,601 rentable square feet, or at the rate of $14,027.13 per
month.



     Security Deposit: $67,000.00, subject to reduction as herein provided.



     Tenant’s Share: 3.38%



     Tax Base Year: Fiscal Year 2006 (July 1, 2005 through June 30, 2006).



     Operating Cost Base Year: Calendar Year 2005



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     Number of Tenant Parking Spaces: Thirty (30) spaces, to be used in common and on an unassigned
basis.



          3.      (a) Landlord has prepared a space plan for the Replacement Premises (the “New Plan”)
showing the general layout and location of improvements to be constructed by Landlord. The New
Plan is dated March 31, 2005, and was prepared by Nelco Architecture, Inc. (“Landlord’s
Architect”), and has been approved by Tenant and Landlord and is attached hereto as Exhibit B-1.
Promptly upon execution and delivery of this Lease by both parties, Landlord shall have plans (the
“Replacement Plans”) for the interior finish and other tenant improvements to the Replacement
Premises prepared in accordance with Landlord’s current Building standards, a copy of which has
been provided to Tenant. The Replacement Plans shall be submitted to Tenant for its approval,
which shall not be unreasonably withheld or delayed. Failure by Tenant to disapprove any
submission or resubmission of the Replacement Plans within five (5) days after submission or any
resubmission shall constitute approval thereof. Any disapproval shall be accompanied by a specific
statement of the reasons therefor.




                   (b) Promptly after recovery of full possession of the Replacement Premises from the prior
tenant, and approval of the Replacement Plans, Landlord shall commence and use reasonable
diligence to substantially complete the work to be performed by Landlord pursuant to the
Replacement Plans (“Landlord’s Expansion Work”), at Landlord’s sole cost and expense. Landlord’s
Expansion Work shall include, without limitation, the items shown or referred to on Exhibit
C-l hereto. Landlord shall undertake Landlord’s Expansion Work in a good and workmanlike
manner, free of all liens against Tenant’s interests and in accordance with applicable laws.




                   (c) The Replacement Premises shall be deemed ready for occupancy on the first day as of which
(i) Landlord’s Expansion Work has been completed except for items of work (and, if applicable,
adjustment of equipment and fixtures) which can be completed after occupancy has been taken
without causing undue interference with Tenant’s use of the Replacement Premises (i.e. so-called
“punch list” items), (ii) Landlord has received a certificate of occupancy therefor (which
certificate may be temporary if any conditions therefor are to be performed by Tenant hereunder),
and (iii) Landlord’s Architect has certified that Landlord’s Expansion Work has been completed in
substantial accordance with the Replacement Plans. Such date is hereinafter called the “Relocation
Completion Date.” Landlord shall give Tenant ten (10) business days’ advance notice of the date on
which Landlord reasonably anticipates that the Relocation Completion Date will occur. Landlord
shall use commercially reasonable efforts to substantially complete Landlord’s Expansion Work on
or before July 1, 2005, but shall have no liability for failure to do so (except with respect to
the Sublease Space as provided below). Landlord and Tenant shall schedule an inspection
walk-through of the Premises prior to the occurrence of the Relocation Completion Date to review
Landlord’s Expansion Work and to prepare the punch list. Landlord shall use commercially
reasonable efforts to compete any punch-list items of work within thirty (30) days after the
Relocation Completion Date, and Tenant shall afford Landlord access to the Replacement Premises
therefor. Landlord and Tenant acknowledge that Tenant currently occupies certain space (the
“Sublease Space”) on the fifth floor of the Building, containing approximately 3,300 rentable
square feet, pursuant to a




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Sublease between the Tenant and Schwartz Communications, Inc., and that the term of that Sublease
expires September 30, 2005. If Landlord determines that the Relocation Completion Date will not
occur on or before September 15, 2005, Landlord will so notify Tenant and, upon written request by
Tenant, Landlord will allow Tenant to remain in the Sublease Space on all of the terms and
conditions of the Lease from September 30, 2005 until the Relocation Completion Date. Tenant’s
right to use and occupy the Sublease Space shall cease as of 5:00 p.m. on the day specified by
Landlord in Landlord’s notice to Tenant pursuant to Section 3(c) hereof, at or before which time
Tenant shall vacate and surrender the Sublease Space and relocate to the Replacement Premises.
During the period that Tenant occupies the Sublease Space after September 30, 2005, the Sublease
Space shall for all purposes of the Lease be deemed to constitute a portion of the Premises demised
under the Lease, except that (except to the extent that any delay in the Relocation Completion Date
is due to a Tenant Expansion Delay) the Base Rent and additional rent payable to Landlord with
respect to the Sublease Space between September 30, 2005 and the Relocation Completion Date shall
be the same as is payable under the existing Sublease.




          4. Tenant shall give Landlord written notice, not later than nine calendar months
after the Relocation Completion Date (which shall be extended to twelve calendar months as to
defects that could not be discovered by a careful visual inspection or by normal use), of any
respects in which Landlord has not performed Landlord’s Expansion Work fully, properly and in
accordance with the terms of this First Amendment. Except as identified in any such notice from
Tenant to Landlord, Tenant shall have no right to make any claim that Landlord has failed to
perform any of Landlord’s Expansion Work fully, properly and in accordance with the terms of
the Lease, or to require Landlord to perform any further Landlord’s Expansion Work. Except for
Landlord’s Expansion Work, the Premises are being leased in their present condition, AS IS,
WITHOUT REPRESENTATION OR WARRANTY by Landlord. Tenant acknowledges that it
has inspected the Replacement Premises and Common Areas and, subject to completion of
Landlord’s Expansion Work, has found the same satisfactory.




          5. (a) If a delay shall occur in the Relocation Completion Date, and such delay
would not have occurred but for the occurrence of any of the following:





	 	(i)	 	any request by Tenant that Landlord delay the
commencement or completion of Landlord’s Expansion Work for any reason;
	 
	 	(ii)	 	any delay by Tenant in the approval of the Replacement
Plans, or any request by Tenant for any change in any of the Replacement
Plans after the Tenant’s approval thereof;
	 
	 	(iii)	 	any other act or omission of Tenant or its officers, agents,
employees or contractors, including without limitation any act in connection
with Tenant’s early access to the Replacement Premises as provided above,
provided that Landlord shall notify Tenant reasonably promptly after obtaining
knowledge that such act or omission is reasonably likely to cause a delay in
the Relocation Completion Date;




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	 	(iv)	 	any special requirement of the approved Replacement Plans not in
accordance with Landlord’s Building standards, provided that Landlord
shall notify Tenant reasonably promptly after obtaining knowledge that
such special requirement is reasonably likely to cause a delay in the
Relocation Completion Date; or
	 
	 	(v)	 	any reasonably necessary displacement of any of Landlord’s
Expansion Work from its place in Landlord’s construction schedule resulting
from any of the causes for delay referred to in this paragraph (a) and the
fitting of such Landlord’s Expansion Work back into such schedule;




then on the Relocation Completion Date (as delayed), Tenant shall pay to Landlord for each day of
such delay the amount of Base Rent, Additional Rent and other charges that would have been payable
hereunder had the Tenant’s obligation to pay Base Rent in respect of the Replacement Premises
(without regard to any period of free or reduced rent) commenced immediately prior to such delay.




          (b) If a delay in the Relocation Completion Date, or if any substantial portion of such
delay, is the result of Force Majeure, and such Force Majeure delay would not have occurred but
for a delay described in paragraph (a), such Force Majeure delay shall be added to the delay
described in paragraph (a), provided that Landlord shall notify Tenant reasonably promptly after
obtaining knowledge that the Force Majeure is reasonably likely to cause a further delay in the
Relocation Completion Date. The delays referred to herein and in paragraph (a) are herein referred
to collectively and individually as “Tenant’s Expansion Delay.”




          6. Landlord and Tenant acknowledge that Tenant has heretofore delivered to
Landlord a cash security deposit in the amount of $34,000.00 to be held and applied as
provided
in Section 5 of the Lease. Landlord and Tenant further agree that, on or before the Effective
Date, Tenant shall deliver an additional security deposit of $33,000.00. Landlord shall hold and
apply the same as provided in Section 5 of the Lease. Notwithstanding the foregoing, so long as:
(x) on the first anniversary of the Effective Date, there has existed no Event of Default under
the terms of the Lease, nor any event or circumstance which, with the passage of time or the
giving of notice, or both, would constitute an Event of Default, and Tenant has not made any
payment of Base Rent on any day after the same was due and payable under the Lease; and (y) on
the first anniversary of the Effective Date the Lease is in full force and effect; then Tenant
shall be entitled to reduce the face amount of the LC at such anniversary, to $34,000.00.
Landlord shall return the difference in said security deposit to Tenant within ten (10) days
following receipt of written request therefor.




          7. Landlord and Tenant agree that Section 27.1 of the Lease shall be deleted
in its entirety and restated as follows:




     “27.1 Tenant’s Right. Provided that, at the time of such exercise, (i) there exists
no Event of Default; (ii) Tenant has not assigned the Lease or sublet all of any portion of the
Premises (other than to any entity described in the last sentence of Section 12.1 hereof); and
(iii) the Lease is still in full force and effect, Tenant shall have the right to extend the Term
of the Lease for one extended term (the “Extended Term”) of three (3) years, commencing June 1,
2009



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and ending May 31, 2012. If Tenant so requests in writing, not sooner than March 31, 2008,
Landlord shall, within thirty (30) days, advise Tenant of Landlord’s then good faith determination
of what the Fair Market Rental Value of the Premises would be as of the Determination Date (as
such terms are defined in Section 27.2). Tenant shall exercise such option to extend by giving
written notice to Landlord not later than May 31, 2008. Tenant further agrees that Tenant’s right
to extend the Term for the Extended Term is expressly subject only to the rights of Hewitt
Associates under an existing lease dated as of February 19, 2004 to expand into the Premises as of
June 1, 2009, and that the Premises may not be available to Tenant during the Extended Term. Not
later than June 30, 2008, Landlord shall advise Tenant of whether the Premises will be available
to Tenant during the Extended Term. If the Premises will not be available during the Extended
Term, then Tenant’s option to extend shall be void and without any effect, and the Lease Term will
end on the Expiration Date set forth herein.




          8. Landlord shall have the right at any one time during the Lease Term, upon
not less than one hundred twenty (120) days’ prior written notice, to relocate Tenant to any
other
leasable space in the Building (the “Substitute Space”), which space shall be reasonably
comparable to the Premises in terms of quality and level of finish. Prior to the date that
Tenant is
relocated to the Substitute Space, Tenant shall remain in the Premises and shall continue to
perform all of its obligations under this Lease. After Tenant moves into the Substitute
Space,
this Lease shall remain in full force and effect and be deemed applicable to the Substitute
Space,
except as to Base Rent, Tenant’s Share of Operating Expense increases, Tenant’s Share of Real
Property Tax increases and the number of parking spaces Tenant shall be entitled to use, all
Of which shall be adjusted based on the relationship between the number of rentable square feet
in the original Premises and the number of rentable square feet in the substituted space. Upon
Tenant’s relocation, Landlord and Tenant shall amend the Lease to provide for the relocation
of
the Premises. Landlord shall pay for all actual, substantiated costs to Landlord or Tenant
in
connection with Tenant’s relocation to the Substitute Space, such as the cost of moving
Tenant’s
furniture and equipment to the Substitute Space and the cost associated with telephone/data
cabling/network wiring (as well as the cost of purchasing and installing any equipment
necessary
to adequately cool Tenant’s computer room in the Substitute Space) and the cost of a
reasonable
quantity of Tenant’s stationery products (on which the floor on which the Premises are located
is
specified), but such costs shall not include the costs of Tenant’s personnel engaged in
preparing
for or carrying out such relocation.




          9. In accordance with Section 47 of the Lease, Landlord agrees to provide, at
Landlord’s sole cost and expense, building standard signage in the elevator lobby located on
the
6th floor and at the entrance to the Premises during the Term of the Lease (as it
may be
extended).




          10.       (a) As a material inducement to Landlord entering into this First
Amendment, Tenant certifies to Landlord that as of the date hereof: (i) the Lease contains the
entire agreement between the parties hereto relating to the Premises and that there are no
other
agreements between the parties relating to the Premises, the Lease or the Building which are
not
contained or referred to herein or in the Lease, (ii) Landlord is not in default in any
respect in
any of the terms, covenants and conditions of the Lease; (iii) Tenant has no existing setoffs,
counterclaims or defenses against Landlord under the Lease; and (iv) Tenant has not assigned
its





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interest in the Lease, or sublet or licensed any portion of the Existing Premises, to any third
party or parties. Tenant certifies to Landlord that Tenant is not, and the performance by Tenant of
its obligations hereunder shall not render Tenant, insolvent within the meaning of the United
States Bankruptcy Code, the Internal Revenue Code or any other applicable law, code or regulation.




          (b) As a material inducement to Tenant entering into this First Amendment, Landlord certifies
to Tenant that as of the date hereof: (i) the Lease contains the entire agreement between the
parties hereto relating to the Premises and that there are no other agreements between the parties
relating to the Premises, the Lease or the Building which are not contained or referred to herein
or in the Lease, and (ii) to the best of Landlord’s knowledge, Tenant is not in default in any
respect in any of the terms, covenants and conditions of the Lease.




          10. Tenant covenants, represents and warrants to Landlord that Tenant has
had no dealings or communications with any broker or agent (other than Meredith & Grew, Inc.
and CB Richard Ellis/Whittier Partners) in connection with this First Amendment, and Tenant
covenants and agrees to pay, hold harmless and indemnify the Landlord from and against any
and all cost, expense (including reasonable attorneys’ fees) or liability for any
compensation,
commission or charges to any broker or agent (other than the foregoing named broker) claiming
through the Tenant with respect hereto. Landlord covenants, represents and warrants to Tenant
that Landlord has had no dealings or communications with any broker or agent (other than
Meredith & Grew, Inc. and CB Richard Ellis/Whittier Partners) in connection with this First
Amendment, and Landlord covenants and agrees to pay, hold harmless and indemnify the Tenant
from and against any and all cost, expense (including reasonable attorneys’ fees) or liability
for
any compensation, commission or charges to any broker or agent (including the foregoing named
brokers) claiming through the Landlord with respect hereto. Landlord shall be responsible for
payment of the fees and commissions due to Meredith & Grew and CB Richard Ellis/Whittier
Partners in connection with this First Amendment.




          11. Tenant represents and warrants that it has taken all necessary corporate,
partnership or other action necessary to execute and deliver this First Amendment, and that
this
First Amendment constitutes the legally binding obligation of Tenant, enforceable in
accordance
with its terms. Tenant further represents and warrants that it has full and complete
authority to
enter into and execute this First Amendment and acknowledges that Landlord is relying upon
Tenant’s representation of its authority to execute this First Amendment and Tenant shall save
and hold Landlord harmless from any claims or damages, including reasonable attorneys’ fees,
arising from Tenant’s misrepresentation of its authority to enter into and execute this First
Amendment. Landlord represents and warrants that it has taken all necessary corporate,
partnership or other action necessary to execute and deliver this First Amendment, and that
this
First Amendment constitutes the legally binding obligation of Landlord, enforceable in
accordance with its terms. Landlord further represents and warrants that it has full and
complete
authority to enter into and execute this First Amendment and acknowledges that Tenant is
relying upon Landlord’s representation of its authority to execute this First Amendment and
Landlord shall save and hold Tenant harmless from any claims or damages, including reasonable
attorneys’ fees, arising from Landlord’s misrepresentation of its authority to enter into and
execute this First Amendment.





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          12. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Lease.




          13. As amended by this First Amendment, the Lease is ratified and confirmed
and declared to be in full force and effect.




[Signatures Appear on Following Page]




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     IN WITNESS WHEREOF, parties have set their respective hands as of the date first above
written.



	 	 	 
	 

	 	LANDLORD
	 
	 	 
	 

	 	THE REALTY ASSOCIATES FUND III, L.P., a
	 

	 	Delaware limited partnership






	 	 	 
	 

	 	By: Realty Associates Fund III GP Limited
	 

	 	Partnership, a Delaware limited partnership, its
	 

	 	general partner






	 	 	 
	 

	 	By: Realty Associates Fund III, LLC, a
	 

	 	Delaware limited liability company, its
	 

	 	   sole general partner






	 	 	 
	 

	 	By: Realty Associates Fund III Trust, a
	 

	 	Massachusetts business trust, its sole
	 

	 	member






	 	 	 	 	 
	 

	 	By: 
	     /s/ James P. Knowles
 


	 

	 	Name:
    James P. Knowles
	 

	 	Title:
      Regional Director
	 

	 	 	 	






	 	 	 
	 

	 	By: Realty Associates Fund III Texas Corporation, a
	 

	 	Texas corporation, its general partner






	 	 	 	 	 
	 

	 	By: 
	     /s/ James P. Knowles
 


	 

	 	Name:
   James P. Knowles
	 

	 	Title:
     Regional Director
	 

	 	 	 	






	 	 	 
	 

	 	TENANT
	 
	 	 
	 

	 	OXIGENE, INC.






	 	 	 	 	 
	 

	 	By: 
	/s/ James Murphy
 


	 

	 	Name:

James Murphy
	 

	 	Title:
  VP CFO
	 

	 	 	 	






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EXHIBIT A-1




Plan of Replacement Premises



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EXHIBIT B-1




NEW PLAN









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EXHIBIT C-l




DESCRIPTION OF LANDLORD’S EXPANSION WORK


1. Supplemental HVAC system with a capacity sufficient to cool Tenant’s equipment (consisting
of not more than four servers requiring approximately 2,000 watts of power and 10,000 BTU’s
of cooling) located in Tenant’s server room on a 24/7 basis;



2. Building standard paint and carpeting in color of Tenant’s choice;



3. Building standard lock sets on all office doors keyed as specified by Tenant;



4. Network wiring cutouts/pull strings in all offices and conference rooms pursuant to the below
list;



5. Relocation and installation of Tenant’s existing dishwasher (or provide a new dishwasher, at
Landlord’s election and cost) and refrigerator;



6. Electrical metering or submetering at Landlord’s election.



7. Three dedicated 20-ampere duplex receptacles in the server room;




8. List of locations for network wiring cutouts/pull-strings:





a. One per office, located on the same wall as the desk return as shown on the approved
space plan, and two in certain offices as specified prior to construction commencement;




b. Two in each of the two locations shown on the plan as “File/Fax/Copy areas;”





c. One in each of the two file rooms;




d. Two in the server room; and




e. One cutout per wall in each of the two conference rooms.




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