Exhibit 10.16
PARTIAL LEASE TERMINATION AGREEMENT
AND AMENDMENT TO LEASE
This Partial Lease Termination Agreement and Amendment to Lease (this
"Agreement") is hereby entered into as of the 28th day of February, 1999 (the
"Early Termination Date") by and between W9/TIB REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership having an address c/o Archon Group, L.P., ▇▇▇▇ ▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ("Landlord"), and CREATIVE
BIOMOLECULES, INC., a Delaware corporation having an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WHEREAS, WRC Properties, Inc. (the "Original Landlord"), as lessor, and
Tenant, as lessee, entered into that certain Standard Form Industrial Lease
dated October 24, 1988 (the "Original Lease"), by which the Original Landlord
leased to Tenant a portion of the building (the "Building") located at and
numbered ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ consisting of
approximately 33,098 square feet of floor area on the first floor of the
Building (the "Original Premises"), as more particularly described in Article 1
of and Exhibit A attached to the Original Lease.
WHEREAS, the Original Landlord and Tenant entered into that certain
Lease Amendment dated September 17, 1991 (the "First Amendment"), by which the
Original Landlord and Tenant agreed, among other things, to extend the term of
the Original Lease so as to expire on August 31, 1994 and by which the Original
Landlord agreed to lease to Tenant and Tenant agreed to lease from the Original
Landlord an additional 5,970 square feet of floor area on the first floor of the
Building (the "First Amendment Premises").
WHEREAS, the Original Landlord and Tenant entered into that certain Second
Amendment dated January 28, 1994 (the "Second Amendment"), by which the Original
Landlord and Tenant agreed, among other things, to extend the term of the
Original Lease as amended by the First Amendment so as to expire on June 30,
1995 and by which the Original Landlord agreed to lease to Tenant and Tenant
agreed to lease from the Original Landlord an additional 15,135 square feet of
floor area on the first floor of the Building (the "Second Amendment Premises").
WHEREAS, the Original Landlord and Tenant entered into that certain Third
Amendment dated September 20, 1994 (the "Third Amendment"), by which the
Original Landlord and Tenant agreed, among other things, to extend the term of
the Original Lease as amended by the First Amendment and the Second Amendment
so as to expire on June 30, 1998.
WHEREAS, the Original Landlord and Tenant entered into that certain Fourth
Amendment dated April 10, 1994 (the "Fourth Amendment"), by which the Original
Landlord and Tenant agreed, among other things, to extend the term of the
Original Lease as amended by the First Amendment, the Second Amendment and the
Third Amendment so as to expire on June 30, 2001.
WHEREAS, the Original Premises, the First Amendment Premises and the Second
Amendment Premises are herein referred to collectively as the "Premises".
WHEREAS, the Premises consists of approximately 54,203 rentable square feet
of floor area.
WHEREAS, the Original Lease, as amended by the First Amendment, the Second
Amendment, the Third Amendment and the Fourth Amendment, is hereinafter referred
to as the "Lease".
WHEREAS, the current term of the Lease expires on June 30, 2001.
WHEREAS, Landlord has succeeded to the interest of the Original Landlord as
owner of the Building and the land upon which it is located and as lessor under
the Lease.
WHEREAS, Landlord and Tenant have agreed to early termination of the Lease
with respect to a portion of the Premises consisting of approximately 33,000
rentable square feet of floor area on the first floor of the Building as shown
on Exhibit A attached hereto and incorporated herein by this reference (the
"Terminated Premises") and have agreed to otherwise amend the Lease pursuant to
the terms and provisions of this Agreement.
WHEREAS, simultaneously with the execution and delivery of this Agreement,
Landlord, as lessor, and Stryker Corporation, a Michigan corporation
("Stryker"), as lessee, have entered into that certain lease (the "Stryker
Lease") dated as of the date hereof, by which Landlord has leased to Stryker the
Terminated Premises.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and in the lease, Landlord and Tenant hereby agree as follows:
1. Notwithstanding anything in the Lease to the contrary, the term of the
Lease with respect to the Terminated Premises only shall expire on the Early
Termination Date, subject, however, to Tenant's obligation pursuant to the terms
and provisions of the Lease to pay base rent, Lessee's Pro Rata Share of real
estate taxes, Lessee's Pro Rata Share of operating expenses and Lessee's Pro
Rata Share of insurance expenses, each with respect to the Terminated Premises
for the period on and prior to the Early Termination Date, which obligation
shall survive the expiration of the term of the lease with respect to the
Terminated Premises. Therefore, commencing with the first day following the
Early Termination Date through the expiration or earlier termination of the term
of the Lease, the premises leased by Tenant under the lease as modified by this
Agreement shall be a portion of the first floor of the Building consisting of
approximately 21,203 rentable square feet of floor area as shown on Exhibit B
attached hereto and incorporated herein by this reference (the "Retained
Premises").
2. On or prior to the Early Termination Date, Tenant shall deliver to
Landlord the Terminated Premises and surrender the same in their "as is"
condition as of the date hereof except with all of Tenant's equipment, trade
fixtures and other personal property removed therefrom.
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3. Effective as of the first day after the Early Termination Date through
the end of the term of the Lease, the base rent shall be $127,218.00 per year,
payable in equal monthly installments of $10,601.50 (prorated for the month in
which the Early Termination Date occurs if the Early Termination Date is not the
first day of such month).
4. Effective as of the first day after the Early Termination Date through
the end of the term of the Lease, "Lessee's Pro Rata Share" (as defined in
Article I and Article XX of the Lease) shall be changed from "78.65%" to
"30.73%".
5. Effective from and after the first day following the Early
Termination Date, any references in the Lease to the Terminated Premises shall
be deleted in their entirety such that (i) except with respect to such
obligations which are attributable to periods on or prior to the Early
Termination Date, Landlord shall have no further obligations to Tenant with
respect to the Terminated Premises after the Early Termination Date, and (ii)
except as otherwise expressly provided in paragraph 1 of this Agreement and
except with respect to such obligations which are attributable to periods on or
prior to the Early Termination Date, Tenant shall have no further obligations to
Landlord with respect to the Terminated Premises after the Early Termination
Date.
6. Paragraph 3 of the Fourth Amendment is hereby deleted in its entirety.
Landlord and Tenant acknowledge and agree that, notwithstanding anything in the
Lease to the contrary, Tenant shall have no right to extend the term of the
Lease beyond June 30, 2001.
7. Paragraph 4 of the Fourth Amendment is hereby deleted in its entirety.
Landlord and Tenant acknowledge and agree that, notwithstanding anything in the
Lease to the contrary, Tenant shall have no rights to expand its leased premises
and no rights of first offer or first refusal with respect to other space in the
Building.
8. Pursuant to Article XXI of the Lease, Tenant has deposited with
Landlord a security deposit in the amount $18,479.72 (the "Security Deposit").
Within thirty (30) days after the Early Termination Date, Landlord shall return
to Tenant a portion of the Security Deposit in the amount of $11,250.87, such
that, on and after the return of such amount of $11,250.87, the amount of the
Security Deposit being held by Landlord will be $7,228.85.
9. Pursuant to Article XVIII of the Lease, any notice from Tenant to
Landlord required or permitted under the Lease or this Agreement shall be
addressed to Landlord as follows:
"W9/TIB Real Estate Limited Partnership
c/o Archon Group, L.P.
▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇"
10. Pursuant to Article XVIII of the Lease, any notice from Landlord to
Tenant required or permitted under the Lease or this Agreement shall be
addressed to Tenant as follows:
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"Creative Biomolecules, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire"
11. Notwithstanding anything in the Lease or this Agreement to the
contrary, Tenant shall have (i) the right to sublease and/or permit occupancy of
all or any part of the Retained Premises to Stryker or any Affiliate of Stryker
at any time and from time to time for such periods as Tenant may deem
appropriate and/or (ii) the right to permit Stryker or any Affiliate of Stryker
to access such areas within the Retained Premises as Tenant may deem
appropriate. The foregoing rights of Tenant shall only be effective during such
times as Stryker or any Affiliate of Stryker is occupying all or any material
portion (i.e., ten percent (10%) or more) of the Terminated Premises pursuant to
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the Stryker Lease. As used herein, the phrase "any Affiliate of Stryker" shall
mean any entity which, directly or indirectly, controls, is controlled by or is
under common control with Stryker.
12. Notwithstanding anything in the Lease or this Agreement to the
contrary, Tenant agrees that (i) there shall not be more than 79 Occupants (as
defined in Article XXV of the Lease) of the Retained Premises at any time and
(ii) discharges from the Retained Premises into the sewer system (as defined in
Article XXV of the Lease) shall not exceed 1,182 gallons per day.
13. Submission of the Agreement for examination or signature by Tenant
does not constitute a binding agreement, and this Agreement shall not be
effective unless and until execution and delivery thereof by both Landlord and
Tenant.
14. In all other respects, Landlord and Tenant hereby reaffirm all of
the covenants, agreements, terms, conditions and other provisions of the Lease
except as modified hereby, and the Lease is hereby incorporated in full herein
by this reference. The terms and provisions of this Agreement shall be effective
as of the date first above written, except may otherwise be expressly provided
herein.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Partial Lease
Termination Agreement and Amendment to Lease as a sealed instrument as of the
date first above written.
LANDLORD:
W9/TIB REAL ESTATE LIMITED
PARTNERSHIP
By: W9/TIB GEN-PAR INC., its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Assistant Vice President
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TENANT:
CREATIVE BIOMOLECULES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: General Counsel and Vice
President Administration
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EXHIBIT A
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PLAN SHOWING THE TERMINATED PREMISES
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[Floor plan graphic appears here]
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EXHIBIT B
PLAN SHOWING THE RETAINED PREMISES
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[Floor plan graphic shown here]
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