EXHIBIT 10(ee)
SECOND AMENDMENT TO AND
PARTIAL TERMINATION OF LEASE
This Second Amendment to and Partial Termination of Lease (the "Second
Amendment") is made as of the 30th day of June, 2000 by and between 85 Xxxx Road
LLC, a Delaware limited liability company having a current principal address 000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Landlord") and
Organogenesis, Inc., a Delaware corporation having a principal address of 000
Xxx Xxxx, Xxxxxx, XX 00000 (the "Tenant").
RECITALS
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A. North Queen Street LP, a Massachusetts limited partnership and
predecessor-in-interest to Landlord (the "Original Landlord"), and Tenant
entered into a Lease Agreement dated May 21, 1999 (the "Original Lease") for
certain premises consisting of approximately 36,798 square feet of space (the
"Original Premises") located in a building (the "Building") commonly known as
and numbered 00 Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx, as more fully described in the
Lease.
B. Original Landlord and Tenant entered into a First Amendment to Lease
dated June 18, 1999 (the "First Amendment," and together with the Original
Lease, the "Lease") for a certain additional premises consisting of
approximately 28,772 square feet of space (the "Expansion Premises," and
together with the Original Premises, the "Premises) in the Building.
C. Landlord and Tenant desire to amend the Lease to restate the square
footage of the Premises, to provide for a partial termination of the Lease and
to otherwise amend the Lease upon the terms and conditions hereinafter set
forth.
AGREEMENT
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In consideration of the mutual covenants herein contained and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Restatement of Square Footage of Premises.
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a. As of the First Amendment, the Premises shall consist of 62,500
square feet.
b. From and after the Rent Commencement Date for the Expansion
Premises (as set forth in the First Amendment), Annual Fixed Rent for the
Premises shall be $421,875.00, Monthly Rent for the Premises shall be $35,156.25
and Tenant's Proportionate Share shall be 67.68%.
2. Partial Termination.
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a. Effective as of midnight on June 30, 2000 (the "First Partial
Termination Date") and midnight on August 31, 2000 (the "Second Partial
Termination Date"), the Lease shall terminate with respect to the approximately
20,969 square feet and 21,000 square feet, respectively, of the Premises shown
on Exhibit A hereto (collectively, the "Terminated Premises"), as fully and
completely as if such date was the date of expiration of the Term.
Notwithstanding the foregoing, Tenant shall have no obligation to remove from
the Terminated Premises any tenant improvements other than those set forth on
Exhibit C hereto.
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b. Within sixty (60) days after the Second Partial Termination Date,
Landlord shall complete, or cause to be completed on Landlord's behalf, the work
set forth on Exhibit B hereto (the "Landlord Work") in accordance with plans and
specifications reasonably satisfactory to Tenant. In the event that the Landlord
Work is not so completed, Tenant may, but shall not be obligated to, take such
steps and incur such costs as may be reasonably necessary to complete the
Landlord Work for the account of Landlord, and Landlord shall, within ten days
of demand therefore, reimburse Tenant for any sums paid or costs incurred
therein, failing which Tenant shall have the right to deduct such amount against
any rent due under the Lease. Tenant acknowledges that the Landlord Work shall
be performed by Xxxxxxx Laboratories ("Xxxxxxx") and Tenant agrees to reasonably
cooperate with Xxxxxxx in connection with the Landlord Work.
c. Landlord hereby consents to the improvements and alterations set
forth on Exhibit C hereto to be made by Tenant (the "Tenant Work"), in
accordance with plans and specifications reasonably satisfactory to Landlord,
with respect to the Premises (including the Terminated Premises, as applicable).
Tenant shall complete the Tenant Work on or before the Second Partial
Termination Date.
d. Effective as of the First Partial Termination Date, the Premises
shall consist of 41,531 square feet, Annual Fixed Rent for the Premises shall be
$280,334.25, Monthly Rent for the Premises shall be $23,361.19 and Tenant's
Proportionate Share shall be 44.98%.
e. Effective as of the Second Partial Termination Date, the
Premises shall consist of 20,531 square feet, Annual Fixed Rent for the Premises
shall be $138,584.25, Monthly Rent for the Premises shall be $11,548.69 and
Tenant's Proportionate Share shall be 22.23%.
3. Conditions. Notwithstanding anything herein to the contrary, the
effectiveness of the partial termination set forth in Section 2 above is
specifically subject to and conditioned upon the following:
a. The execution and delivery of a lease agreement between Landlord and
Xxxxxxx on or before June 30, 2000 pursuant to which Xxxxxxx, among other
things, leases from Landlord the Terminated Premises.
b. On or before June 30, 2000, the delivery into escrow of (i) a xxxx of
sale by Tenant for the tenant improvements made by Tenant to the Terminated
Premises and (ii) $569,250 by Xxxxxxx as compensation for such tenant
improvements.
4. Brokers. Landlord and Tenant each represent and warrant to the other
that it has not dealt, either directly or indirectly, with any broker in
connection with the partial termination set forth in Section 2 above other than
XxXxxx & Xxxx and Xxxxxxxxx & Xxxx Colliers International, to whom Tenant shall
be responsible for the payment of a commission, if any, pursuant to a separate
written agreement. Landlord and Tenant shall indemnify each other (and Tenant
shall also indemnify Xxxxxxx) from and against any and all loss, costs and
expenses, including reasonable attorney's fees, incurred by such indemnified
party, resulting from a breach of the foregoing representation and warranty.
5. Definitions. All capitalized terms used herein shall have the same
meaning as set forth in the Lease unless specifically otherwise provided herein.
6. Effect of Amendment. Except as set forth herein, 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 this Second Amendment.
[signatures on following page]
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Executed in one or more counterparts by persons or officers hereunto duly
authorized as of the date and year first above written.
LANDLORD: TENANT:
00 XXXX XXXX LLC ORGANOGENESIS, INC.
By: By:
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Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx,
Managing Member President and CEO
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