EXHIBIT 10.1
THIRD AMENDMENT TO LEASE AGREEMENT
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THIS THIRD AMENDMENT TO LEASE AGREEMENT ("Third
Amendment"), dated March 4, 1998, between 150 CANTON OFFICE ASSOCIATES,
LIMITED PARTNERSHIP ("Landlord"), Successor as Landlord to Canton Commerce
Center Limited Partnership and ▇▇▇ ▇▇▇ ▇▇▇▇ Limited Partnership, and
ORGANOGENESIS, INC. ("Tenant").
RECITALS
A. Canton Commerce Center Limited Partnership and Tenant have entered
into a certain Lease Agreement, dated July 27, 1989, as amended by a First
Amendment of Lease, dated May 1, 1994, by and between ▇▇▇ ▇▇▇ ▇▇▇▇ Limited
Partnership and Tenant, and as amended by a Second Amendment of Lease, dated
December 18, 1996, by and between Landlord and Tenant (collectively the
"Lease"), for approximately 59,045 square feet of rentable floor area (the
"Premises"), located in a certain building known as Canton Commerce Center (the
"Building") and located at ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
B. Landlord and Tenant wish to amend the Lease to, among other things,
extend the lease term through September 30, 2004 and to give Tenant an expansion
option with respect to no less than the balance of the rentable floor area in
the Building consisting of 20,520 rentable square feet ("Expansion Option").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, Landlord and Tenant, intending to be legally bound,
agree as follows:
1. Effective upon the execution hereof, the Term of the Lease shall be extended
for an additional five (5) year period from October 1, 1999 through September
30, 2004, ("Extended Term").
2. Annual Fixed Rent Rate for the Extended Term shall be in accordance with the
following schedule:
Lease Period Annual Rent Rate Per Rentable Square Foot Leased
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October 1, 1999 - September 30, 2000 $9.50
October 1, 2000 - September 30, 2001 $9.75
October 1, 2001 - September 30, 2002 $10.00
October 1, 2002 - September 30, 2003 $10.25
October 1, 2003 - September 30, 2004 $10.50
3. Tenant shall be granted a one time Expansion Option with respect to no less
than the entire balance of the rentable floor area in the Building consisting of
20,520 rentable square feet ("Phase III Expansion Premises"), subject to the
termination of the lease and vacating of the premises by Intronics, the existing
tenant occupying that suite. Intronics' lease expires on October 31, 1999 and
contains no option to extend the term thereof beyond October 31, 1999. Landlord
will not attempt to induce Intronics to terminate its lease prior to its
expiration on October 31, 1999. In order for Tenant to effectively
exercise its Expansion Option, Tenant must 1.) provide Landlord not later than
November 1, 1998 with written notice of its intent to lease all of the Phase III
Expansion Premises and 2.) accept occupancy of the Phase III Expansion Premises
no later than November 1, 1999 or the date on which Intronics vacates the Phase
III Expansion Premises if such date occurs after November 1, 1999 It is
expressly acknowledged that time is of the essence with regard to Tenant's
notice of its intent to lease the Phase III Expansion Premises, and if notice is
not delivered to Landlord in accordance with the Lease, as amended herein,
Tenant's Expansion Option shall be null and void. Landlord shall incur no
liability to Tenant as a result of Intronics' failure to surrender the Phase III
Expansion Premises on a timely basis or as a result of Landlord's failure to
commence legal proceedings to effect Intronics removal from the Phase III
Expansion Premises. However, in the event Intronics fails to vacate the Phase
III Expansion Premises prior to January 1, 2000, Tenant shall have the option to
rescind its offer to lease the Phase III Expansion Premises, in which case
Landlord and Tenant shall have no further obligations with respect thereto,
except that in the event Intronics fails to vacate the Phase III Expansion
Premises prior to January 1, 2000, and Landlord has already filed an eviction
action against Intronics and diligently pursues said action, Tenant shall not
have the right to rescind its offer to lease the Phase III Expansion Premises
until March 1, 2000 if Intronics has failed to vacate the Phase III Expansion
Premises prior to March 1, 2000. Tenant shall not be obligated to pay rent for
the Phase III Expansion Premises until Intronics vacates said premises and
Landlord delivers possession of said premises to Tenant in the condition
discussed below in Section 6A. Notwithstanding the above, Landlord shall use its
reasonable best efforts to cause Intronics to surrender the Phase III Expansion
Premises on October 31, 1999 if Tenant effectively exercises its Expansion
Option.
In the event Intronics shall vacate the Phase III Expansion Premises and its
lease for said premises shall be terminated, for any reason, (except if Landlord
has induced Intronics to terminate its lease), prior to October 31, 1999,
Landlord shall advise Tenant, in writing, of such early termination and Tenant
shall have a period of thirty (30) days from its receipt of such notice to
exercise its option to Lease the Phase III Expansion Premises effective not
later than three (3) months after such exercise, provided the Phase III
Expansion Premises have been vacated by Intronics prior to the end of such three
(3) month period. In the event the Phase III Expansion Premises have not been
vacated by Intronics within such three (3) month period, the effective date of
Tenant's lease of the Phase III Expansion Premises shall be thirty (30) days
from the date of Intronics vacancy thereof. The option granted in the event of
an early termination of the Intronics lease shall constitute the one time
Expansion Option granted to Tenant hereunder. The one time Expansion Option
granted to Tenant hereunder shall be null and void in the event Tenant fails to
notify Landlord that it intends to exercise its option early, as provided for
herein.
4. The Annual Fixed Rent Rate for the Phase III Expansion Premises shall be at
the same rate per square foot as in the Lease, as amended herein, and Term of
the lease of the Phase III Expansion Premises shall be coterminous with the Term
of the Lease, as amended herein. Additionally, upon occupancy of the Phase III
Expansion Premises, Tenant shall be responsible for 100% of its share of
Additional Rent attributable to the Phase III Expansion Premises, to be paid in
accordance with the Lease.
4A. Notwithstanding any other provision of this Lease as amended, the management
fee component of Tenant's Additional Rent obligations shall not exceed 4% of the
gross collected rental payments made by the tenants of the Building.
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5. Provided Tenant effectively exercises its Expansion Option, Landlord will
provide Tenant with a leasing incentive payment of $61,560.00 upon the date
Landlord delivers the Phase III Expansion Premises to Tenant. This leasing
incentive payment may be used at the Tenant's sole discretion.
6. Provided Tenant effectively exercises its Expansion Option, Tenant shall be
granted a one-time rent credit of 75% of the first month's base rent payment
attributable to the Phase III Expansion Premises.
6A. Tenant agrees to accept possession of the Phase III Expansion Premises in
as-is condition', provided however that Landlord shall be responsible for
turning over the Phase III Expansion Premises to Tenant in broom-clean condition
with all of Intronics' trade fixtures and personal property removed therefrom.
7. Tenant shall be granted three (3) options to extend the Term of the Lease.
Each option to extend the Term shall be for all of the premises then leased by
Tenant and shall be for a period of five years from the then current lease
expiration date. The Annual Fixed Rent Rate for each extension term shall be 95%
of fair market rent for comparable space with comparable use in a comparable
building in a comparable suburb of the greater Boston, Massachusetts market. All
of the provisions of Section 2.3 of the Lease, "TENANT'S ELECTION TO EXTEND
TERM" shall govern in the determination of Extension Market Rent in the event of
any disagreement of such Extension Market Rent. Notwithstanding the above, in
order for Tenant to effectively exercise an option to extend the Term of the
Lease or any extension term, Tenant must deliver to Landlord written notice of
its intent to extend at least twelve (12) months prior to the then current
expiration of the Term or extension term of the Lease, as the case may be. It is
expressly acknowledged that time is of the essence with regard to Tenant's
notice of its intent to exercise an option, and if notice is not delivered to
Landlord on a timely basis in accordance with the Lease as amended herein, all
of Tenant's as yet unexercised options to extend the Term of the Lease shall be
null and void.
8. Tenant shall have the right to sublease all or a portion of the Leased
Premises upon the prior written approval by Landlord, which approval shall not
be unreasonably withheld, conditioned or delayed. Landlord shall have a
reasonable amount of time to review the financial condition, operating
experience and other qualifications of any proposed subtenant before granting
its approval to a sublease. Tenant shall provide all material reasonably
requested by Landlord to complete its review. Tenant shall split any net profits
from such subleasing, (less any expenses incurred to procure the subtenant,
including without limitation reasonable attorney fees and brokerage
commissions), 50/50 with Landlord.
9. The Lease is hereby modified to add the following additional notice address
for the Landlord:
150 Canton Office Associates, L.P.
BGK Equities, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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10. Tenant shall have the use of 240 parking spaces pursuant to the Lease. In
the event Tenant expands into the Phase III Expansion Premises, Tenant shall
have exclusive use of 100% of all of the parking spaces (estimated to consist of
318 parking spaces) which currently serve the Building. Tenant shall not have
the right to sublease any of the parking spaces without prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. The division by Landlord and Tenant of any proceeds generated by such
sublease of parking spaces shall be negotiated at the time of Tenant's request
for consent.
11. All capitalized terms in this Third Amendment not otherwise defined herein
shall have the same meaning as in the Lease.
12. All other terms and conditions of the Lease not expressly modified by this
Third Amendment shall remain in full force and effect.
IN WITNESS WHEREOF, the parties to this Third Amendment have executed the same
on the day and year first written above.
WITNESSES: LANDLORD:
150 CANTON OFFICE
ASSOCIATES, LIMITED PARTNERSHIP
By: BGK Equities, Inc.
_____________________________ General Partner
By:____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President
WITNESSESS: TENANT
ORGANOGENESIS, INC.
_____________________________ By:____________________________
Print Name______________________
Its:____________________________
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