EXHIBIT 10.35
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE dated as of this 28 day of March, 2006 by
and between BP PROSPECT PLACE LLC, a Delaware limited liability company (as
successor-in-interest to The Realty Associates Fund III, "Landlord") and
OXIGENE, INC., a Delaware corporation ("Tenant").
RECITALS
By Lease dated August 8, 2003 (the "Lease"), Landlord did lease to Tenant
and Tenant did hire and lease from Landlord certain premises containing 4,000
square feet of rentable floor area (the "Rentable Floor Area of the Original
Premises") on the fifth (5th) floor of the building (the "Building") known as
Prospect Place and numbered 230 Third Avenue, Waltharn, Massachusetts (referred
to in the Lease as the "Premises" and hereinafter sometimes referred to as the
"Original Premises").
By Lease Modification Agreement No. 1 (the "First Amendment"), Landlord
and Tenant agreed to relocate the Original Premises to certain premises
containing 9,901 square feet of rentable floor area (the "Rentable Floor Area of
the Original Premises") on the sixth (6th) floor of the Building (referred to in
the First Amendment as the "Replacement Premises" and hereinafter sometimes
referred to as the "Existing Premises"),
Tenant has determined to Lease from Landlord an additional 3,422 square
feet of rentable floor area (the "Rentable Floor Area of the Additional
Premises") located on the sixth (6th) floor of the Building, which space is
shown on Exhibit A attached hereto and made a part hereof (the "Additional
Premises").
Landlord and Tenant are entering into this instrument to set forth said
leasing of the Additional Premises, to integrate the Additional Premises into
the Lease and to amend the Lease.
NOW THEREFORE, in consideration of One Dollar ($1.00) and other good and
valuable consideration in hand this date paid by each of the parties to the
other, the receipt and sufficiency of which are hereby severally acknowledged,
and in further consideration of the mutual promises herein contained, Landlord
and Tenant hereby agree to and with each other as follows:
1. Effective as of the Additional Premises Commencement Date (as defined in
Section I(B) of Exhibit B to this Second Amendment), the Additional
Premises shall constitute a part of the "Premises" demised to Tenant under
the Lease, so that the Premises (as defined in Section 1.2 of the Lease)
shall include both the Existing Premises and the Additional Premises and
shall contain a total of 13,323 square feet of rentable floor area. By way
of example the option to extend the Term of the Lease provided in Section
27 of the Lease
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shall apply to both the Existing Premises and the Additional Premises
collectively but not to either space independently.
2. Effective as of the Additional Premises Commencement Date, the following
definitions set forth in Article 1 of the Lease (as amended by Section 2
of the First Amendment) shall be deemed amended as follows:
PREMISES: A portion of the sixth (6th) floor of the
Building, as shown on Exhibit A attached to this
Second Amendment
RENTABLE FLOOR AREA OF
THE PREMISES: Agreed to be 13,323 rentable square feet.
TERM: (i) As to the Existing Premises, a period
beginning on September 2, 2005 and ending on
May 31, 2009, unless extended or sooner terminated
as provided in the Lease.
(ii) As to the Additional Premises, a period
beginning on the Additional Premises Commencement
Date and ending on May 31, 2009, unless extended
or sooner terminated as provided in the Lease.
TENANT'S SHARE: 4.55%
EXISTING PREMISES OPERATING
COST BASE YEAR: Calendar Year 2005
ADDITIONAL PREMISES OPERATING Calendar Year 2006
COST BASE YEAR:
NUMBER OF TENANT
PARKING SPACES: Forty (40) spaces, to be used in common and on an
unassigned basis.
3. (A) Base Rent for the Existing Premises shall continue to be payable as
set forth in the Lease as amended by the First Amendment.
(B) Commencing on the Additional Premises Commencement Date and
continuing through the expiration or earlier termination of the Term, Base
Rent for the Additional Premises shall be payable as follows:
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(i) For the period commencing on the Additional Premises Commencement
Date and ending on the end of the last day of the twelfth (12th )
full calendar month immediately following the Additional Premises
Commencement Date, at the annual rate of $110,359.50 (being the
product of (x) $32.25 and (y) the Rentable Floor Area of the
Additional Premises (being 3,422 square feet)).
(ii) For the period commencing on the first day of the thirteenth (13th)
full calendar month immediately following the Additional Premises
Commencement Date and ending on the end of the last day of the
twenty-fourth (24th) full calendar month immediately following the
Additional Premises Commencement Date, at the annual rate of
$113,781.50 (being the product of (x) $33.25 and (y) the Rentable
Floor Area of the Additional Premises).
(iii) For the period commencing on the first day of the twenty-fifth
(25th) full calendar month immediately following the Additional
Premises Commencement Date and ending on May 31, 2009, at the annual
rate of $117,203.50 (being the product of (x) $34.25 and (y) the
Rentable Floor Area of the Additional Premises).
(C) Base Rent for the Premises during any extension option period (if
exercised) shall be payable as set forth in Section 27 of the Lease.
4. The work to be performed by Landlord in order to prepare the Additional
Premises for Tenant's use and occupancy shall be undertaken in accordance
with the terms and provisions set forth in Exhibit B attached hereto and
incorporated herein by reference.
5. (A) Tenant warrants and represents that Tenant has not dealt with any
broker in connection with the consummation of this Second Amendment other
than CB Richard Ellis (the "Broker") and in the event any claim is made
against Landlord relative to dealings by Tenant with brokers, Tenant shall
defend the claim against Landlord with counsel of Tenant's selection first
approved by Landlord (which approval will not be unreasonably withheld)
and save harmless and indemnify Landlord on account of loss, cost or
damage which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker in connection with the consummation of this Second Amendment other
than the Broker and in the event any claim is made against Tenant relative
to dealings by Landlord with brokers, Landlord shall defend the claim
against Tenant with counsel of Landlord's selection first approved by
Tenant (which approval will not be unreasonably withheld) and save
harmless and indemnify Tenant on account of loss, cost or damage which may
arise by reason of such claim.
6. In no event shall Tenant have the right to terminate or cancel the Lease
or to withhold rent or to set-off any claim or damages against rent as a
result of any default by Landlord
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or breach by Landlord of its covenants or warranties or promises under the
Lease, except in the case of a wrongful eviction of Tenant from the
demised premises (constructive or actual) by Landlord continuing after
notice to Landlord thereof and a reasonable opportunity for Landlord to
cure the same. Further, the Tenant shall not assert any right to deduct
the cost of repairs or any monetary claim against the Landlord from rent
thereafter due and payable, but shall look solely to the Landlord for
satisfaction of such claim.
7. As an inducement to Landlord to enter into this Second Amendment, Tenant
hereby represents and warrants that: (i) Tenant is not, nor is it owned or
controlled directly or indirectly by, any person, group, entity or nation
named on any list issued by the Office of Foreign Assets Control of the
United States Department of the Treasury ("OFAC") pursuant to Executive
Order 13224 or any similar list or any law, order, rule or regulation or
any Executive Order of the President of the United States as a terrorist,
"Specially Designated National and Blocked Person" or other banned or
blocked person (any such person, group, entity or nation being hereinafter
referred to as a "Prohibited Person"); (ii) Tenant is not (nor is it
owned, controlled, directly or indirectly, by any person, group, entity or
nation which is) acting directly or indirectly for or on behalf of any
Prohibited Person; and (iii) from and after the effective date of the
above-referenced Executive Order, Tenant (and any person, group, or entity
which Tenant controls, directly or indirectly) has not conducted nor will
conduct business nor has engaged nor will engage in any transaction or
dealing with any Prohibited Person in violation of the U.S. Patriot Act or
any OFAC rule or regulation, including without limitation any assignment
of the Lease or any subletting of all or any portion of the Premises or
the making or receiving of any contribution of funds, goods or services to
or for the benefit of a Prohibited Person in violation of the U.S. Patriot
Act or any OFAC rule or regulation. In connection with the foregoing, it
is expressly understood and agreed that (x) any breach by Tenant of the
foregoing representations and warranties shall be deemed an immediate
Event of Default by Tenant under Section 13.1(f) of the Lease (without the
benefit of notice or grace) and shall be covered by the indemnity
provisions of Section 21 of the Lease, and (y) the representations and
warranties contained in this subsection shall be continuing in nature and
shall survive the expiration or earlier termination of the Lease.
8. Except as otherwise expressly provided herein, all capitalized terms used
herein without definition shall have the same meanings as are set forth in
the Lease.
9. Except as herein amended the Lease shall remain unchanged and in full
force and effect. All references to the "Lease" shall be deemed to be
references to the Lease as amended by the First Amendment and as herein
amended.
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EXECUTED as a sealed instrument as of the date and year first above
written.
WITNESS: LANDLORD:
[ILLEGIBLE] BP PROSPECT PLACE LLC
By: Boston Properties Limited
Partnership, its sole member
By: Boston Properties, Inc., its
general partner
By: /s/ David C. Proyost
-------------------------------
Name: David C. Proyost
Title: Senior Vice President
Boston Properties
TENANT:
OXIGENE, INC.
By: /s/ Frederick Driscoll
-------------------------------
Name: FREDERICK DRISCOLL
Title: President or Vice President
(Hereto duly authorized)
By: /s/ James Murphy
-----------------------------------
Name: JAMES MURPHY
Title: Treasurer or Assistant Treasurer
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EXHIBIT A
[MAP]
EXHIBIT B
Landlord's Work
I. Substantial Completion
(A) Plans and Construction Process.
(1) Landlord's Work. Landlord shall perform the work shown on the
plans (the "Plans") listed on Exhibit B-l annexed hereto
("Landlord's Work"); provided, however, that Landlord shall
have no responsibility for the installation or connection of
Tenant's computer, telephone, other communication equipment,
systems or wiring. Any items of work requested by Tenant and
not shown on the Plans shall be deemed to be Change
Proposal(s) (as defined below) and shall be subject to the
terms and provisions of subsection (2) below.
(2) Change Orders. Tenant shall have the right, in accordance
herewith, to submit for Landlord's approval change proposals
with respect to items of work not shown on the Plans (each, a
"Change Proposal"). Landlord agrees to respond to any such
Change Proposal within such time as is reasonably necessary
(taking into consideration the information contained in such
Change Proposal) after the submission thereof by Tenant,
advising Tenant of any anticipated increase in costs (which
costs shall include a construction management fee equal to six
percent (6%) of the Change Proposal) ("Change Order Costs")
associated with such Change Proposal, as well as an estimate
of any delay which would likely result in the completion of
the Landlord's Work if a Change Proposal is made pursuant
thereto ("Landlord's Change Order Response"), Tenant shall
have the right to then approve or withdraw such Change
Proposal within five (5) days after receipt of Landlord's
Change Order Response. If Tenant fails to respond to
Landlord's Change Order Response within such five (5) day
period, such Change Proposal shall be deemed withdrawn. If
Tenant approves Landlord's Change Order Response, then such
Change Proposal shall be deemed a "Change Order" hereunder and
if the Change Order is made, then the Change Order Costs
associated with the Change Order shall be deemed additions to
the Tenant Plan Excess Costs and shall be paid in the same
manner as Tenant Plan Excess Costs are paid as set forth in
Section IV below.
(3) Tenant Response to Requests for Information and Approvals.
Except to the extent that another time period is expressly
herein set forth, Tenant shall respond to any request from
Landlord, Landlord's architect and/or Landlord's contractor
for approvals or information in connection with Landlord's
Work, within four (4) business days of Tenant's receipt of
such request. In addition, Tenant shall, within two (2)
business days after
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receipt thereof from Landlord, execute and deliver to Landlord
any affidavits and documentation required in order to obtain
all permits and approvals necessary for Landlord to commence
and complete Landlord's Work on a timely basis ("Permit
Documentation").
(4) Time of the Essence. Time is of the essence in connection with
Tenant's obligations under this Section I.
(B) Substantial Completion: Tenant Delay.
(1) Landlord's Obligations. Subject to delays due to Tenant Delays
(as defined in subsection (C) below) and delays due to
Landlord's Force Majeure (as hereinafter defined), Landlord
shall use reasonable speed and diligence to have the
Landlord's Work substantially completed on or before May 22,
2006, but Tenant shall have no claim against Landlord for
failure so to complete construction of Landlord's Work in the
Additional Premises, except for the right to terminate the
Lease solely with respect to the Additional Premises (but not
with respect to the Existing Premises), without further
liability to either party, in accordance with the provisions
hereinafter specified in Section II below. When used herein,
"Landlord's Force Majeure" shall mean any prevention, delay or
stoppage due to governmental regulation, strikes, lockouts,
acts of God, acts of war, terrorists acts, civil commotions,
unusual scarcity of or inability to obtain labor or materials,
labor difficulties, casualty or other causes reasonably beyond
Landlord's control or attributable to Tenant's action or
inaction.
(2) Definition of Substantial Completion. The Additional Premises
shall be treated as having been substantially completed and
ready for Tenant's occupancy and the Additional Premises
Commencement Date shall be deemed to have occurred on the
later of:
(a) The date on which Landlord's Work, together with
common facilities for access and services to the
Additional Premises, has been completed (or would
have been completed except for Tenant Delay)
except for items of work and adjustment of
equipment and fixtures which can be completed
after occupancy has been taken without causing
substantial interference with Tenant's use of the
Additional Premises (i.e. so-called "punch list"
items), or
(b) The date when permission has been obtained from
the applicable governmental authority, to the
extent required by law, for occupancy by Tenant of
the Additional Premises for the Permitted Use,
unless the failure to obtain such permission is
due to a Tenant Delay.
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In The event of any dispute as to the date on which Landlord's
Work has been completed, the reasonable determination of
Landlord's architect as to such date shall be deemed
conclusive and binding on both Landlord and Tenant.
(3) Incomplete Work. Landlord shall complete as soon as conditions
practically permit any incomplete items of Landlord's Work,
and Tenant shall cooperate with Landlord in providing access
as may be required to complete such work in a normal manner.
(4) Early Access by Tenant. Landlord shall permit Tenant access
for installing Tenant's trade fixtures in portions of the
Additional Premises prior to substantial completion when it
can be done without material interference with remaining work
or with the maintenance of harmonious labor relations. Any
such access by Tenant shall be upon all of the terms and
conditions of the Lease (other than the payment of Base Rent)
and shall be at Tenant's sole risk, and Landlord shall not be
responsible for any injury to persons or damage to property
resulting from such early access by Tenant.
(5) Prohibition on Access by Tenant Prior to Actual Substantial
Completion. If, prior to the date that the Additional Premises
are in fact actually substantially complete, the Additional
Premises are deemed to be substantially complete pursuant to
the provisions of this Section I (i.e. and the Additional
Premises Commencement Date has therefore occurred), Tenant
shall not (except with Landlord's consent) be entitled to take
possession of the Additional Premises for the Permitted Use
until the Additional Premises are in fact actually
substantially complete.
(C) Tenant Delay.
(1) A "Tenant Delay " shall be defined as the following:
(a) Tenant's failure timely to respond to any request
from Landlord, Landlord's architect, Landlord's
contractor and/or Landlord's Construction
Representative or to timely provide all required
Permit Documentation to Landlord within the
applicable time periods set forth in this Exhibit
B;
(b) Tenant's failure to pay the Tenant Plan Excess
Costs in accordance with Section IV below;
(c) Any delay due to items of work for which there is
long lead time in obtaining the materials therefor
or which are specially or specifically
manufactured, produced or milled
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for the work in or to the Additional Premises and
require additional time for receipt or
installation;
(d) Any delay due to changes, alterations or additions
required or made by Tenant with respect to items
not shown on the Plans including, without
limitation, Change Orders; or
(e) Any other delays caused by Tenant, Tenant's
contractors, architects, engineers, or anyone else
engaged by Tenant in connection with the
preparation of the Additional Premises for
Tenant's occupancy, including, without limitation,
utility companies and other entities furnishing
communications, data processing or other service,
equipment, or furniture.
(2) Tenant Obligations with Respect to Tenant Delays.
(a) Tenant covenants that no Tenant Delay shall delay
commencement of the Term or the obligation to pay Base
Rent or Additional Rent, regardless of the reason for
such Tenant Delay or whether or not it is within the
control of Tenant or any such employee. Landlord's Work
shall be deemed substantially completed as of the date
when Landlord's Work would have been substantially
completed but for any Tenant Delays, as determined by
Landlord in the exercise of its good faith business
judgment.
(b) Tenant shall reimburse Landlord the amount, if any, by
which the cost of Landlord's Work is increased as the
result of any Tenant Delay.
(c) Any amounts due from Tenant to Landlord under this
Section I(C)(2) shall be due and payable within thirty
(30) days of billing therefor, and shall be considered
to be Additional Rent. Nothing contained in this Section
I(C)(2) shall limit or qualify or prejudice any other
covenants, agreements, terms, provisions and conditions
contained in the Lease.
II. Outside Completion Date
If Landlord shall have failed substantially to complete Landlord's Work in
the Additional Premises described in the Plans on or before August 15,
2006 (the "Outside Completion Date") (which date shall be extended
automatically for such periods of time as Landlord is prevented from
proceeding with or completing the same by reason of Landlord's Force
Majeure or any act or failure to act of Tenant which interferes with
Landlord's construction of the Additional Premises without limiting
Landlord's other rights on account thereof), Tenant shall have the right
to terminate the Lease solely with respect to
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the Additional Premises (but not with respect to the Existing Premises) by
giving notice to Landlord of Tenant's desire to do so before such
completion and within the time period from the Outside Completion Date (as
so extended) until the date which is thirty (30) days subsequent to the
Outside Completion Date (as so extended); and, upon the giving of such
notice, the term of this Lease shall cease and come to an end without
further liability or obligation on the part of either party unless, within
thirty (30) days after receipt of such notice, Landlord substantially
completes Landlord's Work; and such right of termination shall be Tenant's
sole and exclusive remedy for Landlord's failure so to complete Landlord's
Work within such time. Each day of Tenant Delay shall be deemed
conclusively to cause an equivalent day of delay by Landlord in
substantially completing Landlord's Work pursuant to Section I, and
thereby automatically extend for each such equivalent day of delay the
date of the Outside Completion Date.
III. Performance of Work
Except to the extent to which Tenant shall have given Landlord notice of
respects in which Landlord has not performed Landlord's construction
obligations under this Exhibit B not later than the third (3rd) full
calendar month next beginning after the Additional Premises Commencement
Date, Tenant shall be deemed conclusively to have approved Landlord's
construction and shall have no claim that Landlord has failed to perform
any of Landlord's obligations under this Exhibit B. Landlord agrees to
correct or repair at its expense items which are then incomplete or do not
conform to the work contemplated under the Plans and as to which, in
either case, Tenant shall have given notice to Landlord, as aforesaid.
IV. Tenant Plan Excess Costs
Notwithstanding anything contained in this Exhibit B to the contrary, it
is understood and agreed that Tenant shall be fully responsible for the
costs of any items of work not shown on Exhibit B-1 hereto (the "Tenant
Plan Excess Costs"). To the extent, if any, that there are Tenant Plan
Excess Costs, Tenant shall pay Landlord, as Additional Rent, fifty percent
(50%) of the Tenant Plan Excess Costs prior to the commencement of the
Landlord's Work, with the balance of the Tenant Plan Excess Costs due upon
substantial completion of the Landlord's Work; provided, however, that in
the event that the Tenant Plan Excess Costs exceed $10,000,00 (the
"Maximum Amount"), then Tenant shall pay to Landlord, as Additional Rent,
at the time that Tenant approves any Change Order that causes the Tenant
Plan Excess Costs to exceed the Maximum Amount, all Tenant Plan Excess
Costs in excess of the Maximum Amount.
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