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Exhibit 10.4
This lease made and entered into this 21 day of November 1996 by and
between NEW BOSTON WILMAR LIMITED PARTNERSHIP, a Delaware Limited Partnership,
having a business address at Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxxxxx 00000 (hereinafter called "Landlord") and ASCENT PEDIATRICS, INC.
(hereinafter called "Tenant").
SECTION I. PREMISES. Landlord leases to Tenant, and Tenant hereby hires and
takes from Landlord the following described premises subject to the mortgages as
hereinafter provided.
The "premises" are that portion of a building in the Town of Wilmington,
Commonwealth of Massachusetts, having a mailing address of 000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called the "Building")
substantially as shown cross-hatched or outlined on the Lease Plan, Exhibit A,
hereto attached and made a part hereof, consisting of approximately 14,320
square feet of net rentable area on the First Floor of the Building as shown on
Exhibit A. The Building and the parcel of land on which it is located are
hereinafter referred to as the "Property".
Landlord reserves and excepts all rights of ownership and use in all
respects outside the premises, including, without limitation, the Building and
all other structures and improvements and plazas, parking areas, and common
areas on the Property, except as set forth in Section II below and that at all
times during the term of this Lease, Tenant shall have a reasonable means of
access from the street to the premises. Without limitation of the foregoing
reservation of rights by Landlord, it is understood that with regard to the
Building, Landlord in its sole discretion shall have
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the right to change, relocate and eliminate facilities therein that are not
within the premises, to permit the use of or lease all or part thereof or
exhibition and displays to sell, lease or dedicate all or part thereof to public
use; and further that Landlord shall have the right to make changes in,
additions to and eliminations from the Building, and other structures and
improvements on the Property, the premises excepted, provided that the cost of
any such changes, additions and eliminations shall be at Landlord's expense
subject to the provisions of Section XI of this Lease.
SECTION II. USE. Tenant shall have the right to use, in common with others
so entitled, all Common Areas associated with the Building and located in the
Building or on the Property including all hallways, common lavatories,
elevators, loading dock, freight elevator, access ways, walkways, courtyards and
landscaped areas. Tenant shall have the right in common with others so entitled
to use a proportionate share of the Building parking facilities for the parking
of automobiles, it being understood and agreed by Tenant however that such
parking is on an unreserved and unassigned basis and Landlord does not monitor
or supervise use of said parking facilities. Tenant shall use the premises for
general offices and other reasonable uses incidental and related thereto,
provided that Tenant shall not use, permit nor suffer anything to be done or
anything to be brought into or kept in the premises or on the Property which in
Landlord's sole judgment occasions discomfort or annoyance to any other tenants
or occupants of the Building and parking area or which may tend to impair the
reputation or appearance of the Building or the Property or tend to interfere
with the proper and economic operation of the Building,
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parking area or the Property by Landlord, or which shall violate the Certificate
of Occupancy for the Building or any law or regulation of any governmental body.
Tenant covenants that it will move into the premises promptly at the
commencement of the term hereof and, will continuously use and occupy the entire
premises, throughout the term hereof, and further covenants and agrees that,
except temporarily by reason of casualty, taking or loss of access, if it
vacates the premises or fails for a period in excess of thirty (30) consecutive
days to conduct its business therein at any time during the term hereof, without
the prior written consent of the Landlord, then all rent and escalation payments
reserved in this Lease from the date of such breach to the expiration date of
this lease shall immediately become due and payable by Tenant.
SECTION III. TERM. The term of this lease shall be five (5) years,
commencing upon the later to occur of (i) January 15, 1997, or (ii) ten (10)
days after Landlord's Work is "Substantially Completed", as hereinafter defined
(hereinafter referred to as the "Commencement Date"), and terminating sixty (60)
months thereafter, plus the remaining portion of any unexpired month at the end
of the term (hereinafter referred to as the "Termination Date"). Landlord
anticipates the Commencement Date to occur between January 15, 1997 and February
1, 1997. If the Substantial Completion of Landlord's Work has not occurred by
March 15, 1997, Tenant shall have the right to terminate this Lease by notice
given on or before March 25, 1997. Tenant shall have a right of access to the
premises during the ten (10) day period subsequent to said Substantial
Completion date for the purpose of
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installing its cabling, furniture, fixtures and equipment, such access being
subject to all of the terms and conditions of this Lease except the obligation
to pay rent.
SECTION IV. RENT. Tenant shall pay rent at the annual rate of Sixteen
Dollars ($16.00) per square foot for the net rentable space of the demised
premises, as set forth in Section I of this Lease.
The rent shall be paid in equal installments of one-twelfth (1/12) of the
annual rent each in advance of the first day of each calendar month.
Tenant shall pay a proportionate part of such monthly installment for any
fraction of a calendar month at the beginning or end of the lease term.
In the event that the rent is not paid within five (5) days of the date
when due, Landlord shall assess and Tenant shall pay a late charge in an amount
equal to interest at the rate of one and one-half (1 1/2%) percent per month on
the unpaid balance from the date said rent became due.
Tenant shall pay the rent without demand or notice and without deduction,
abatement, counterclaim, or set-off, to the Landlord in care of New Boston
Management Services, Inc., Agent for New Boston Wilmar Limited Partnership, Xxx
Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, or at such other
place as designated from time to time by Landlord.
SECTION V. CONSTRUCTION AND PREPARATION OF THE PREMISES.
(a) LANDLORD'S WORK. Landlord shall do the work shown on Exhibit B
attached hereto and made a part hereof as the work on the part of Landlord in a
good and workmanlike manner in accordance with all laws, rules, regulations and
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ordinances applicable thereto, the completion of which shall be considered
"Substantial Completion". Landlord's Work shall be done at Landlord's expense
except as otherwise provided on Exhibit B. To the extent practical, Landlord
shall give advance notice to the Tenant of the approximate date upon which
Landlord's Work shall be Substantially Completed. The taking of possession of
the demised premises by Tenant shall be conclusive evidence of the acceptance of
the demised premises by Tenant and that the demised premises are in good and
satisfactory condition, in accordance with Landlord's obligations hereunder.
(b) TENANT'S WORK. Tenant shall do no work in or to the premises in
preparation for initial occupancy hereunder. Any work done by the Tenant shall
be done in a good and workmanlike manner in accordance with "plans and
specifications" (as hereinafter defined) which have Landlord's written approval
prior to the commencement of Tenant's work. Tenant shall furnish and install any
and all necessary trade fixtures, equipment and other items necessary for the
proper conduct of Tenant's business. "Plans and Specifications", as used in this
Section V(b) and in Section XIV shall mean documents and drawings sufficient for
contract bidding and work completion. All of the foregoing work and all work
Tenant may undertake pursuant to Section XIV of this lease shall be done in
accordance with all laws, rules, regulations and ordinances applicable thereto,
including, if necessary, compliance with the Americans With Disabilities Act,
and the acquisition by Tenant of a Town of Wilmington Building Permit. In no
event shall Landlord be required to provide or install any trade fixtures or
equipment.
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Tenant agrees to employ for any work it may do pursuant to Sections V(b)
and XIV of this lease one or more responsible contractors whose labor will work
in harmony with other labor working in and on the Building and Property and with
suppliers of materials for use in construction in and on the Building and
Property, and especially Tenant agrees that he will not do or permit to be done
anything which would cause any labor difficulty in connection with any
construction in and the Building and Property.
Tenant shall require all such contractors employed by Tenant to carry
Workmen's Compensation Insurance in accordance with statutory requirements and
to carry Comprehensive Public Liability Insurance and Automobile Liability
Insurance covering such contractors in or about the premises in amounts not less
that Five Hundred Thousand ($500,000) Dollars combined single limits for
property damage, for injury or death of more than one person in a single
accident and to submit certificates of insurance evidencing such coverage to
Landlord prior to commencement of such work. Tenant agrees to indemnify and hold
harmless Landlord from all claims, actions, demands and causes of actions
occasioned by Tenant's contractors being on or about the premises or the
Building or the Property of which the same form a part and from Tenant's
contractors performing work in the premises.
All contractors, subcontractors, mechanics, laborers, materialmen, and
others who perform any work, labor or services, or furnish any materials, or
otherwise participate in the labor or services, or furnish any materials, or
otherwise participate
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in the improvement of the premises shall be and are hereby given notice that
Tenant is not authorized to subject Landlord's interest in the premises to any
claim for mechanics', laborers' and materialmen's liens, and all persons dealing
directly or indirectly with Tenant may not look to the premises as security for
payment. Tenant shall save Landlord harmless from and against all expenses,
liens, claims or damages to either property or person which may or might arise
by reason of the making of any such additions, improvements, alterations and/or
installations.
SECTION VI. BUILDING AND EQUIPMENT. Landlord shall keep in serviceable
condition and repair the structure and exterior of the Building and the Common
Areas thereof, the plumbing and electrical systems, the heating, ventilating and
air conditioning systems, and elevators servicing the Building (except for such
equipment and serviceable lines installed by Tenant and except otherwise
provided in Section VIII), and the exterior parking area serving the Building.
The Landlord shall comply with applicable governmental rules, regulations, laws
and ordinances affecting the Building, unless the violation is caused by Tenant
or Tenant's use of the premises. The Landlord shall keep the sidewalks, common
corridors, stairway, elevators, and all other means of ingress and egress for
the premises and all public portions of the Building in serviceable repair and
in a reasonably clean and safe condition. Landlord reserves the right to
interrupt, curtail, stop and suspend the furnishing of any services and
operation of the plumbing and electrical, heating and air conditioning systems
when necessary by reason of accident or emergency or for repairs, alterations,
replacements or improvements, which may become necessary or
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when it cannot secure supplies or labor or by reason of any other cause beyond
its control, without liability or any abatement of rent being due thereby.
Landlord shall contract for removal of snow and ice from all parking areas,
sidewalks and access ways on the Property, and shall maintain in good order and
repair the lighting servicing such parking areas.
SECTION VII. FLOOR LOAD, HEAVY MACHINERY. Tenant shall not place a load
upon any floor of the premises exceeding the floor load per square foot area
which floor was designed to carry and which is allowed by law. Landlord reserves
the right to prescribe the position of all file cabinets, business machinery,
and mechanical equipment (including safes) which Tenant may place in the
premises. Business machines and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient to prevent
transmission of noise and vibration to any other part of the Building in which
the premises are located. Any moving of any machinery and/or equipment into, out
of, or within the premises shall be done only with the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld, and
shall be at the sole risk and hazard of Tenant and Tenant will indemnify and
save Landlord harmless against and from any liability, loss, injury, claim or
suit resulting directly or indirectly from such moving. In the event riggers
shall be required to accomplish such moving, only persons holding a Master
Rigger's License shall perform the work. Tenant shall not in any way break, cut
into, or damage the exterior perimeter walls or insulating
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panels of the Building in installing, ventilating or exhausting its equipment or
in any other manner.
SECTION VIII. SERVICES. Landlord shall provide at its own expense:
(a) Access to the Building from the lobby Monday through Friday excepting
legal holidays in Massachusetts, hereinafter referred to as "business days",
during regular business hours. Legal holidays in Massachusetts are shown on
Exhibit C attached hereto. At all other times Landlord shall provide limited
access to the Building in accordance with such Building Standard entry system as
shall from time to time be in effect. At the commencement of the term of this
Lease, the Building standard entry system is a "key" system, so-called.
(b) Use, in common with others, of all elevator facilities at all times.
(c) Building Standard heat and air conditioning during normal business
hours which is reasonably required for reasonably comfortable occupation of the
premises, under normal business operation at an occupancy of not more than one
person per 125 square feet of Net Rentable Area and an electrical load not
exceeding 2.5 xxxxx per square foot of Net Rentable Area, subject to all
governmental laws, regulations or restrictions now or hereafter in force
pertaining to the furnishing or use of such heat and air conditioning. Normal
business hours shall mean Monday through Friday, 8:00 AM to 6:00 PM and 8:00 AM
to 1:00 PM on Saturdays, holidays excepted. Landlord shall provide heat and air
conditioning to Tenant at other than normal business hours, provided that Tenant
pays Landlord its charges for supplying the same. At the commencement of the
term of this Lease, Landlord's charge for
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supplying heat and air conditioning to Tenant at other than normal business
hours is $30 per hour. Landlord reserves the right to increase this charge from
time to time throughout the term of this Lease upon prior written notice to
Tenant. Tenant shall not introduce into the premises personnel or equipment
which overloads the capacity of the Building systems or in any other way
interferes with any system's ability to perform adequately its proper functions;
provided, however, if Tenant violates the foregoing, landlord may, at its
option, elect to provide supplementary systems or otherwise take steps to cure
such violation, at Tenant's sole cost and expense in all respects including,
without limitation, system installation (and removal) and continuing costs of
operation.
(d) Cause the premises to be kept reasonably clean, provided the premises
are kept in order by Tenant. The cleaning services provided hereunder are set
forth on Exhibit D attached hereto and made a part hereof which represents the
scope of the cleaning services. The cleaning services shall be provided only
Monday through Friday, holidays excepted. Notwithstanding the foregoing, at no
time and under no circumstances shall Landlord have any responsibility for the
storage or removal of any "medical waste", "infectious waste", "hazardous
medical waste", "hazardous waste", as such terms may from time to time be
defined in such municipal, state and federal statutes, laws, ordinances, rules
and regulations as may apply to Tenant or to the premises demised to Tenant
because of the business, profession or activity carried on in the demised
premises by Tenant, Tenant's servants, agents, employees, invitees or anyone
claiming by, through or under Tenant.
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(e) Hot and cold running water, toilet paper, paper towels and hand soap
for common area wash rooms and lavatories.
(f) Electricity for normal lighting of main lobby, elevators and stairs.
SECTION VIII-A. LANDLORD FAILURE TO PROVIDE SERVICES. If all or a material
portion of the premises is rendered untenantable as a proximate result of
Landlord's negligence or misconduct, or as a proximate result of Landlord's
failure to fulfill any covenant or provision of this Lease on its part to be
performed (unless such failure is caused in whole or in part by the action or
inaction of Tenant or another Building tenant), and such negligence, misconduct
or failure to perform affects the life safety, mechanical, electrical and/or
plumbing systems of the Building ("Essential Services"), or solely as a result
of the United States Environmental Protection Agency, or its successor federal
agency, officially declaring the Building or the premises untenantable (unless
such condition is caused in whole or in part by the action or inaction of Tenant
or another Building tenant), and the foregoing conditions materially and
adversely interfere with the conduct of Tenant's business ("Material Failure to
Provide Services"), then Tenant shall have the right hereinafter set forth.
During such period of Material Failure to Provide Services, Landlord will, if
reasonably practical, arrange for the provision of Essential Services on an
interim basis via temporary measures until final corrective measures can be
accomplished. In the event a Material Failure to Provide Services is not
remedied by Landlord within seven (7) consecutive business days after receiving
written notice therefor from a corporate officer of Tenant, then Tenant shall
have the right to xxxxx the rent due or
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becoming due under this Lease until said Material Failure to Provide Services is
remedied by Landlord, but only to the extent that the premises have been
rendered untenantable. Such rent abatement shall be applied as a credit against
Tenant's rental obligations during the next four (4) months in four (4) equal
installments. This Section VIII-A shall be Tenant's sole and exclusive remedy on
account of Landlord's failure to provide services.
SECTION IX. UTILITIES. Tenant shall pay for all utilities furnished to the
demised premises by Landlord or any other supplier. The listing of any utility
service in the previous sentence shall not constitute a representation that such
utility service is available to the premises.
(a) DEMAND AND USAGE. Landlord shall supply electricity, as supplied to
Landlord by the electric utility, to the premises to meet a demand requirement
(utilizing the demand measurement standards established by the supplying utility
under the rate applicable to Landlord) not to exceed 3.0 xxxxx per square foot
of Net Rentable Area for premises lighting and convenience outlets. Tenant
agrees Tenant's use of the premises shall not exceed such requirements or any
limits from time to time established under applicable laws or regulations, or
regulations of the utility providers. In addition to the rent set forth in
Section IV of this Lease and as part of the rent due under this lease Tenant
shall pay Landlord the sum of Eighty-Five Cents ($.85) per square foot of Net
Rentable Area per annum as an "Electricity Charge". The Electricity Charge shall
be paid in equal installments of one-twelfth of the Electricity Charge each in
advance on the first day of each calendar month without
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deduction or demand together with the rent described in Section IV of this
Lease. If Tenant's electricity demand exceeds the foregoing, Tenant shall pay
the cost of such excess electricity demand.
(b) CONSUMPTION. Landlord's supply of electricity shall allow for a rate of
consumption by Tenant of 3.0 xxxxx per square foot of Net Rentable Area,
multiplied by sixty (60) hours of consumption per week. If Tenant's consumption
exceeds such allowance, Tenant shall pay the excess costs.
(c) SURVEY. From time to time during the Term, Landlord shall have the
right to have an electrical consultant selected by Landlord make a survey of
Tenant's electrical usage, the result of which survey shall in the absence of
manifest error be conclusive and binding upon Landlord and Tenant. If such
survey shows that Tenant has exceeded the aforesaid requirements or standards
set forth in the Lease, then, upon demand and in addition to any other rights
Landlord may have hereunder, Tenant shall reimburse Landlord, as Additional
Rent, for the cost of such survey and the cost, as determined by such
consultant, of electricity usage or demand in excess of such requirements or
standards.
(d) ESCALATION. Furthermore, it being the intention of the parties that the
Rent set forth in Section IV of this Lease be net of any cost to Landlord of
providing electric current to the premises, if Landlord is furnishing electric
current to the premises (i.e. Tenant's premises is not separately metered by the
supplying utility company), Tenant shall pay, as Additional Rent, an Escalation
Charge calculated and payable as follows:
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1. If Landlord's cost in supplying electricity to the premises for any
Operating Year exceeds the Electricity Charge (such excess being called "Tenant
Excess Electricity Expenses"), Tenant shall pay to Landlord, as Additional Rent,
an amount equal to the Tenant Excess Electricity Expenses for such year (and at
that rate for a partial year and extrapolated to full occupancy if total
Building electric current figures are used to calculate Tenant Excess
Electricity Expenses). In determining and calculating the amount of the Tenant
Excess Electricity Expenses for and in respect of any Operating Year, Landlord
may utilize electric meters, equipment surveys, engineering estimates, electric
consumption data for the entire Building (in which event Landlord shall
appropriately apply the Escalation Factor) or any other reasonable measurement,
calculation and allocation devices and formulas.
2. Tenant shall make reasonably estimated escalation payments on
account of the Tenant Excess Electricity Expenses either in monthly installments
or in year-end lump sum, as Landlord shall elect. After the end of each
Operating Year, Landlord shall submit to Tenant an accounting of the Tenant
Excess Electricity Expenses for such Operating Year. If the estimated payments
by Tenant for such Year exceed Tenant's required payment on account of the
Tenant Excess Electricity Expenses for that Operating Year, according to such
statement, Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant (or refund the overpayment if the Term has ended and
Tenant has no further obligations to Landlord). If, however, the required
payments are greater than the estimated
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payments made by Tenant, Tenant shall pay to Landlord the difference within
thirty (30) days after being billed therefor by Landlord.
(e) SERVICE AND METERING. Landlord shall have the right at any time and
from time to time to: (i) discontinue furnishing electricity to the premises
upon at least thirty (30) days' notice to Tenant provided Landlord shall, at
Tenant's expense, separately meter the premises; or (ii) continue or recommence
to furnish electricity to the premises, and install at Tenant's expense a
so-called check meter which shall measure the amount of electricity actually
used in the premises. If Landlord exercises the right described in clause (i),
then from and after the effective date of such discontinuance, Landlord shall
not be obligated to furnish electricity to the premises. In either case, from
and after the effective date of such new metering:
1. The Electricity Charge shall no longer be due from Tenant to
Landlord and Tenant shall cease making payments pursuant to subsection (e)
above;
2. In the case described in clause (e)(i) above, Landlord shall permit
Landlord's existing wires, risers, conduits and other electrical equipment to be
used to supply electricity to Tenant provided that the limits set forth in
subsection (a) shall not be exceeded; and
3. In the case described in clause (e)(i) above, Tenant shall arrange
for electrical service from, and make payments directly to, the appropriate
utility company; and in the case described in clause (ii) above, Landlord may
xxxx Tenant periodically for electricity usage as shown by such meter.
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SECTION X. RENTABLE AREA. The "Net Rentable Area" shall be the area stated
in Exhibit A and Section I of this Lease. The net rentable is determined in
accordance with measurement standards set forth in this Section X. If the
premises occupies less than a full floor, the net rentable area is determined by
measuring the usable space from the glass line of the Building to the middle of
walls demising the premises from another premises and to the outside of corridor
walls; then adding an attributable factor of eighteen percent (18%).
SECTION XI. ESCALATION. In addition to the rent set forth in Section IV of
this lease and as part of the rent due pursuant to the terms of this lease,
Tenant shall pay Landlord the Tax Excess and the Operating Cost Excess as set
forth in this Section XI. As used in this Section XI the following words and
terms shall have the following meaning:
(a) "Taxes" shall mean the real estate taxes and assessments imposed upon
Landlord with respect to Parcel 20G commonly known as 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx, as such parcel is defined in the records of the
Assessor's Office of Wilmington on January 1, 1995 including all structures
located thereon, and any and all other taxes, levies, betterments, assessments
and charges arising from the ownership and/or operation of said Parcel 20G and
all the structures located thereon which are or shall be imposed by a National,
State or Municipal or other authorities which are or may become a lien upon
Landlord and/or said Parcel 20G, but excluding any fee or penalty levied on
Landlord for late payment thereof. If, or to the extent that, due to a future
change in the method of taxation any franchise,
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income, profit or other tax shall be levied against Landlord in substitution or
in lieu of any tax which would otherwise constitute a real estate tax, such
franchise, income, profit or other tax shall be deemed to constitute "Taxes" for
the purposes hereof. It is recognized and agreed by Landlord and Tenant that it
is their intention by this paragraph to include in "Taxes" that which in tax
year 1996 was commonly known in Wilmington as "real estate taxes", including
that portion covered by the school tax rate, and any type of tax or assessment
which may, throughout the term hereof be substituted, in whole or in part
therefore. If, in any tax year after the tax year 1996, the Town of Wilmington
or any of its departments, shall require Landlord to pay for any service which
during the fiscal tax year 1996 was provided by said Town of Wilmington or any
of its departments without requiring payment by Landlord, then all such payments
due on account of services rendered during any tax year after the tax year 1996
shall, for purposes of this Section XI(a) be considered and treated as real
estate taxes for the tax year for which such payments are due. Without in any
way limiting the generality of the preceding sentence some of the services for
which the Town of Wilmington or any of its departments might require payment
are: police protection, fire protection, public schools, library services, park
services, building inspections. Water and sewer use charges are covered
elsewhere in this lease and the same shall not enter into the calculations made
under this Section XI(a).
(b) "Tax Base" shall mean the taxes for the fiscal tax year commencing July
1, 1995 and terminating June 30, 1996, as abated, if abated.
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(c) "Tenant's Proportionate Share" for taxes shall be thirteen and 80/100
percent (13.8%).
(d) "Tax Year" shall mean the twelve month period commencing July 1, 1995,
and each twelve (12) month period commencing on an anniversary of said date
during the term of the lease.
(e) "Operating Costs" shall mean all costs incurred and expenditures of
whatever nature made by the Landlord, whether directly or by allocation, in the
operation, management, repair, cleaning and maintenance of the Building,
Premises, Property, related equipment and facilities and appurtenant parking and
landscaped areas, heating and cooling equipment, including but not limited to
the following:
1. All costs for fire, extended coverage, casualty, liability,
workmen's compensation, rental interruption insurance, and all other bonds and
insurance as may be required by the holder or guarantor of the mortgage upon the
Building in which the demised premises are located, or otherwise reasonably
required.
2. Water and sewer charges.
3. Heating, ventilating and air conditioning service equipment
contracts.
4. Rubbish removal.
5. Electricity and gas charges except to the extent that the same are
separately metered or apportioned to tenants, including without limitation, the
cost of electric current for the operation of elevators, and public lights
inside and outside the Building, and the parking area.
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6. Common area air conditioning filter service contract.
7. Security service equipment contracts, if any.
8. Exterminating services and contracts.
9. Wages including all fringe benefits, federal and state payroll,
unemployment and old age taxes paid by Landlord on account of all employees who
are employed 100% (or proportionally based upon a reasonable allocation if less
than 100%) in, about or on account of the land, Building or other improvements
of which the premises are a part. Employees shall include administrative and
overhead personnel.
10. The cost of labor and materials used in cleaning the Building,
surrounding areaways and windows in the Building, the Property, and the parking
area.
11. Supplies.
12. Elevator service contracts.
13. All costs for permits and fees, except those associated with work
undertaken solely for an individual tenant.
14. The cost of any capital improvements or additions made to the
Building that (a) are not solely for any other tenant and (b) are necessary to
comply with laws not in effect when the Building was constructed or are intended
to result in savings in Operating Costs after the commencement of the term of
this lease, such cost thereof to be amortized over such improvement's or
addition's useful life together with interest on the unamortized balance at the
rate which is 2% above the
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prime rate from time to time charged by The First National Bank of Boston or
such higher rate as may be paid by Landlord for funds borrowed to construct such
said capital improvements or additions, it being agreed that in each lease year
there shall be included in Operating Costs only such years allocable share of
the amortization and interest described in this Section XI(e)14.
15. All management fees paid for the Manager of the Building, and all
asset management fees. As of the execution of this Lease, said management fees
are 3 1/2% of gross revenues of the Building and said asset management fees are
1 1/2% of gross revenues of the Building. In the event said fees are paid to an
affiliate of Landlord, Operating Costs shall not include any portion of said
fees which are objected to by Landlord's mortgagee.
(f) "Operating Cost Base" shall mean the amount arrived at by computing the
actual costs of operation, management, repair, cleaning and maintenance of the
Property, Building, related equipment and facilities, heating and cooling
equipment, including, without limitation, those items described in clauses (1)
through (15) inclusive of Section (e) of this Section XI shown above, for the
calendar year 1996.
(g) "Computation Year" shall mean each calendar year of a portion thereof
beginning with the calendar year 1997.
(h) "Tax Escalation Statement" and "Operating Cost Escalation Statement"
shall mean a statement setting forth in reasonable detail the amount payable by
Tenant as Tax Excess and Operating Cost Excess for tax year and computation
years
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respectively. Such statement shall show the Tax Base or the Operating Cost Base
as the case may be.
(i) "Tenant's Proportionate Share for Operating Cost Escalation" shall be
thirteen and 80/100 (13.8%) percent. In the event that the Building is enlarged
or diminished so as to increase or decrease the net rentable area of the
Building, Tenant's Proportionate Share for Operating Cost Escalation shall be
adjusted to reflect accurately the portion of the net rentable area leased by
Tenant.
(j) "Tax Excess" shall mean the amount, in any Tax Year by which the Taxes
for said year exceed the Tax Base, multiplied by Tenant's Proportionate Share
for Taxes. Landlord may xxxx Tenant annually, semi-annually, quarterly, or
monthly for such Tax Excess as may be due, and Tenant shall pay such bills
within ten (10) days after receipt of the same.
Appropriate credit against Tax Excess shall be given for any refund
obtained by reason of a reduction in any Taxes by the Courts or other
governmental agency responsible therefor. The original computation as well as
reimbursement or payments of additional charges, if any, or allowances, if any
under the provisions of this Section XI shall be based on the original assessed
valuations with adjustments to be made at a later date when the tax refund, if
any, shall be paid to Landlord by the taxing authority. Expenditures for legal
fees and for other similar or dissimilar expenses incurred in obtaining the tax
refund shall be charged against the tax refund before the adjustments are made
for the Tax Year. In no event shall Tenant be
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entitled to receive a credit against Tax Excess for any tax year in an amount
greater than Tenant's share of the Tax Excess for such fiscal tax year.
(k) Operating Cost Excess: If the total of Operating Costs in any
Computation Year exceeds the Operating Cost Base, Tenant shall pay to Landlord,
Tenant's Proportionate Share of such excess and such amount being hereinafter
referred to as "Operating Cost Excess". Any new or residual classification or
item of expenditure made by Landlord that are within the definition of Operating
Costs shall be included within the Operating Cost Excess.
Landlord may, at its sole discretion, xxxx Tenant monthly, quarterly,
semi-annually or annually for such Operating Cost Excess. The billing shall
always be in arrears. Each xxxx shall set forth on an item by item basis the
increase over the base year of the cost of each item for the month, quarter,
half-year or year for which the xxxx is rendered. Any xxxx for a month, quarter
or half-year may be rendered on an estimated basis, in which event the estimate
shall be the actual cost of the item for the next year preceding increased by
Landlord's estimate of what the increase for the current year shall be. Any
estimated xxxx need not include all of the items mentioned in Section XI(e). Any
annual xxxx shall be rendered on the basis of actual costs only. If Landlord
shall render a monthly, quarterly or semi-annual xxxx on account of any calendar
year, then within one hundred eighty (180) days after the close of such calendar
year (but within ninety (90) days of the expiration of the term of this Lease),
Landlord shall render an annual xxxx for such year which annual xxxx shall make
all adjustments as may be necessary to reflect actual changes during that year
including,
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without limitation, any refund as may be due to Tenant. All bills for the cost
escalation portion of the rent shall be due immediately upon receipt.
PART YEARS: CHANGE OF TAX YEAR: If the Term Commencement Date or the
Termination Date occurs in the middle of a Computation Year or Tax Year, Tenant
shall be liable for only that portion of the Operating Cost Excess or Tax Excess
as the case may be, in respect of such Computation Year or Tax Year represented
by a fraction, the numerator of which is the number of days of the herein term
which falls within the Computation Year or Tax Year, and the denominator of
which is three hundred sixty-five (365).
In the event the first day of the Tax Year in the Town of Wilmington should
be changed after the Term Commencement Date to a day other than July 1 so as to
change the twelve-month period comprising the Tax Year, in determining the Tax
Excess with respect to Taxes payable for the period between July 1 and such
changed first day of the Tax Year, the Tax Excess shall be multiplied by a
fraction, the numerator of which shall be the number of days elapsing during
such period, and the denominator of which shall be three hundred sixty-five
(365).
EFFECT OF TAKING: In the event of any taking of the Building or the land
upon which it stands under circumstances whereby this lease shall not terminate
under the provisions of Section XVII, then for the purposes of determining Tax
Excess, in the event the valuation of Parcel 20G is lowered to reflect the
taking, the Tax Base shall be lowered proportionately in relation to the reduced
valuation. In the event the taking includes a portion of the demised premises or
the building which it
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is a part, Tenant's Proportionate Share shall be adjusted pro-rata to reflect
the proportion of the premises and/or Property remaining after such taking.
SURVIVAL OF OBLIGATIONS: Any obligation under this Section XI of Tenant
which shall not have been paid at the expiration of the term of this lease shall
survive such obligation and shall be paid when and as the amount of same shall
be determined to be due.
SECTION XII. REMOVAL OF GOODS AND TENANT'S REPAIRS. At the expiration of
the term, Tenant will remove its goods and effects (except as elsewhere provided
herein) and will peaceably yield up to the Landlord the premises in as good
order and condition as when delivered to it, excepting ordinary wear and tear
(which shall not be deemed to include holes in walls or floors or special wiring
caused by installation of Tenant's fixtures or equipment), repairs required to
be made by Landlord and damage by fire or unavoidable casualty.
The Tenant shall be responsible for all damages or injury to the premises,
fixtures, appurtenances and equipment of Landlord, and to the Building and the
Property, caused by Tenant's installation or removal of furniture, fixtures or
equipment.
SECTION XIII. SALES TAX. In the event that any sales tax shall be levied by
the Commonwealth of Massachusetts, or the Town of Wilmington, or any other
authority having jurisdiction, upon the rent received by Landlord from Tenant,
the exact amount of such tax shall be paid by Tenant to Landlord at the same
time each installment of rent is paid to the Landlord.
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SECTION XIV. IMPROVEMENTS AND ALTERATIONS. The Tenant may place such
partitions, fixtures, (including light fixtures), personal property, machinery,
motors and the like (subject to Section VII) in the premises and may make, at
its own expense, such improvements and alterations as have the prior written
approval of Landlord in each instance provided that all work done by Tenant in
the demised premises shall be done in accordance with all zoning, building, fire
and other codes applicable thereto. All fixtures, equipment, improvements and
appurtenances attached to or built into the premises prior to or during the term
shall be and remain part of the premises as of the end of the term unless
specifically excluded elsewhere in this lease. In the case of damage or
destruction of such items during the term, Tenant shall have the right to
recover its loss from any insurance company with which it has insured the same
notwithstanding that any of such things might be considered part of the premises
at the end of the term. At the option of Landlord, Tenant shall remove any or
all of such fixtures, equipment, improvements and alterations at the end of the
term. Landlord may not require removal of pipes, wires and the like from the
walls, ceilings or floors, provided that the Tenant properly cuts, caps and
disconnects such pipes and wires and seals them off in a safe and lawful manner
flush with the applicable wall, floor or ceiling and redecorates the area
consistent with the remainder of the premises. Tenant shall be responsible for
any damage to the Building caused by malfunction of equipment or the removal of
its property as aforesaid.
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SECTION XV. INSPECTION. The Landlord and any mortgagee of the Building or
of the Building and land, or of Landlord's interest therein, and their
representatives shall have the right at all times to enter the premises to
inspect the same and to make repairs or replacements therein as required by this
lease and to introduce conduits and pipes or ducts; provided, however, that the
Landlord (a) shall use reasonable efforts not to unduly disturb the Tenant's use
and occupancy and (b) absent Tenant's prior consent shall not include as
visitors any trade competitors of Tenant.
SECTION XVI. CASUALTY. If the premises or any part thereof shall be damaged
by fire or other casualty, Landlord shall proceed with reasonable diligence, and
at the expense of Landlord, to repair or cause to be repaired such damage.
Landlord's responsibility to restore the demised premises shall be limited to
Landlord's obligations as set forth in Exhibit B and shall be subject to all
zoning and building codes then applicable; Tenant shall at Tenant's expense
restore and repair the demised premises to the extent of Tenant's obligations as
set forth in Exhibit B and shall be subject to all zoning and building codes
then applicable. All repairs to and replacement of Tenant's property and
property which Tenant may be required to remove as provided in Sections XII and
XIV shall be made by and at the expense of Tenant. If the premises or any part
thereof shall have been rendered unfit for use and occupation hereunder by
reason of such damage, the yearly rent or a just and proportionate part thereof,
according to the nature and extent to which the premises shall have been so
rendered unfit, shall be suspended or abated until the premises
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(except as to the property which is to be repaired by or at the expense of
Tenant) shall have been restored as nearly as practicably may be to the
condition in which they are immediately prior to such fire or other casualty.
Landlord shall not be liable for delays in the making of any such repairs which
are due to government regulations, casualties, and strikes, unavailability of
labor and materials, and other causes beyond the control of Landlord, nor shall
Landlord be liable for any inconvenience or annoyance to Tenant or injury to the
business of Tenant resulting from reasonable delays in repairing such damage. In
case the Building is so damaged by such fire or other casualty that substantial
alteration or substantial reconstruction of the Building shall be required,
Landlord shall provide to Tenant within forty-five (45) days of such damage a
written professional opinion from Landlord's architect or engineer as to the
amount of time which will reasonably be necessary to complete the repairs or
restoration that Landlord is required to make hereunder should it elect not to
terminate this lease. If such opinion states that the repairs or restoration
will not be completed within twelve (12) months from the date of such damage,
then Landlord and Tenant shall each have the right to terminate this lease by
giving written notice to the other therefor within thirty (30) days of the
rendering of such written opinion, said termination to be effective not less
than thirty (30) nor more than sixty (60) days thereafter; provided, however, if
such fire or other casualty occurs during the last eighteen (18) months of the
term of this lease, and such opinion states that the repairs or restoration will
not be completed within four (4) months from the date of such damage, then both
Landlord and Tenant shall have
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the right to terminate this lease by giving written notice therefor to the other
within thirty (30) days of receipt of such written opinion, said termination to
be effective not less than thirty (30) nor more than sixty (60) days thereafter.
If said written opinion of Landlord's architect or engineer contains a
recitation that it is rendered in good faith, both Landlord and Tenant agree
that it shall be conclusive and binding on both parties, and both parties hereby
waive their right to contest or challenge the opinions, conclusions or
determinations of said letter. In the event the lease is not so terminated,
Landlord shall proceed with reasonable diligence, and at the expense of
Landlord, to repair or cause to be repaired such damage. In the event of any
such termination, this lease and the term hereof shall expire as of such
effective termination date and the yearly rent including the Electricity Charge,
the Tax Excess and the Operating Cost Excess portions thereof shall be
apportioned as of such date; and if the premises or any part thereof shall have
been rendered unfit for use and occupation by reason of such damage, the yearly
rent including the Electricity Charge, the Tax Excess and Operating Cost Excess
portions thereof for the period from the date of the fire or other casualty to
the effective termination date, or a just and proportionate part thereof,
according to the nature and extent to which the premises shall have been
rendered unfit, shall be abated.
SECTION XVII. EMINENT DOMAIN CONDEMNATION. In the event that the premises
or any part thereof, or the whole or any part of the Building shall be taken or
appropriated by eminent domain or shall be condemned for any public or
quasi-public use, or (by virtue of any such taking, appropriation or
condemnation)
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shall suffer any damage (direct or indirect or consequential) for which Landlord
or Tenant shall be entitled to compensation, then (and in any such event) this
lease and the term hereof may be terminated at the election of Landlord by a
notice in writing of its election so to terminate which shall be given by
Landlord to Tenant within sixty (60) days following the date on which Landlord
shall have received official notice of such taking, appropriation or
condemnation. In the event that a substantial part of the premises or of the
means of access thereto shall be so taken, appropriated or condemned, then (and
in any such event) this lease and the term hereof may be terminated at the
election of Tenant by a notice in writing of its election so to terminate which
shall be given by Tenant to Landlord within sixty (60) days following the date
on which Tenant shall have received official notice of such taking,
appropriation or condemnation.
Upon the giving of any such notice of termination (either by Landlord or
Tenant) this lease and the term hereof shall terminate on or retroactively as of
the date on which Tenant shall be required to vacate any part of the premises or
shall be deprived of a substantial part of the means of access thereto,
provided, however, that Landlord may in Landlord's notice elect to terminate
this lease and the term hereof retroactively as of the date on which such
taking, appropriation or condemnation become legally effective. In the event of
any such termination, this lease and the term hereof shall expire as of such
effective termination date and the yearly rent shall be apportioned of such
date. If neither party (having the right to do so) elects to terminate, Landlord
will, with reasonable diligence and at Landlord's expense, restore
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the remainder of the premises, or the remainder of the means of access, as
nearly as practicably may be to the same condition as obtained prior to such
taking, appropriation or condemnation, in which event the yearly rent shall be
adjusted, (i) a just proportion of the yearly rent, according to the nature and
extent of the taking, appropriation or condemnation and the resulting permanent
injury to the premises and the means of access thereto, shall be permanently
abated, (including in such abatement the adjustments in the Tax Base and
Tenant's Proportionate Share for Taxes as provided in Section XI, and a just
adjustment in Tenant's Proportionate Share for Operating Costs and in the
Operating Cost Base) and (ii) a just proportion of the remainder of the yearly
rent, according to the nature and extent of the taking, appropriation or
condemnation and resultant injury sustained by the premises and the means of
access thereto shall be abated until the premises and the means of access
thereto shall have been restored as fully as may be for permanent use and
occupation by Tenant hereunder. Subject to the last sentence of this Section
XVII, there is expressly reserved to Landlord all rights to compensation and
damages created, accrued or accruing by reason of any such taking, appropriation
or condemnation. It is expressly understood and agreed that the provisions of
this Section XVII shall not apply to any taking, appropriation or condemnation
for governmental occupancy for a period reasonably estimated to be less than one
(1) year in duration. During such period, the rent hereunder shall be abated
proportionately. If the period of governmental occupancy is reasonably estimated
at more than one year, Tenant may elect to terminate this lease by notice to
Landlord, in
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the manner aforesaid. It is agreed that Tenant reserves all rights to moving and
relocation expense claims as may be available to it from the condemning
authority in accordance with statutes or regulations.
SECTION XVIII. INDEMNIFICATION. Tenant shall save Landlord harmless, and
will exonerate and indemnify Landlord from and against any and all claims,
liabilities or penalties asserted by or on behalf of any person, firm or public
authority:
(a) On account of or based upon any injury to person, or loss of or damage
to tangible property, sustained or occurring on the premises on account of or
based upon the act, omission, fault, or neglect of Tenant, its servants, agents,
employees, licensees, invitees and guests.
(b) On account of or based upon any injury to person or loss of or damage
to tangible property, sustained or occurring elsewhere (other than on the
premises) in or about the Building and Property (and, in particular, without
limiting the generality of the foregoing on or about the elevators, stairways,
public corridors, sidewalks, concourses, arcades, approaches, areaways, roof,
outside parking areas, or other appurtenances and facilities used in connection
with the Building or premises) arising out of the use or occupancy of the
Property, Building or premises by the Tenant or by any person claiming by,
through or under Tenant, unless caused by or resulting from Landlord's
negligence, and in addition to and not in limitation of either of the foregoing
subdivisions (a) or (b).
(c) On account of or based upon (including monies due on account of) any
work or things whatsoever done (other than by Landlord or its contractors, or
agents
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or employees of either) on the premises during the term of this lease and during
the period of time, if any, prior to the Term Commencement Date that Tenant may
have been given access to the premises; and, in respect of any of the foregoing,
from and against all costs, expenses (including reasonable attorney's fees), and
liabilities incurred in or in connection with any such claim, or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall, at Tenant's expense, resist or defend such action or proceeding and
employ counsel therefor reasonably satisfactory to Landlord, it being agreed
that such counsel as may act for insurance underwriters of Tenant engaged in
such defense shall be deemed satisfactory.
SECTION XIX. PROPERTY OF TENANT. In addition to and not in limitation of
the foregoing, Tenant covenants and agrees that all of its merchandise,
furniture and property of every kind, nature and description which may be in or
upon the premises or Building, the Property, in the public corridors, or on the
sidewalks, areaways, and approaches thereto, or outside parking areas during the
term hereof, shall be at the sole risk and hazard of Tenant, and that if the
whole or any part thereof shall be damaged, destroyed, stolen or removed by any
cause whatsoever, no part of said damage or loss shall be charged to or borne by
Landlord. Tenant agrees to carry adequate insurance to protect itself against
said loss or damage.
SECTION XX. INJURY AND DAMAGE. Landlord shall not be liable for any injury
or damage to persons or property resulting from fire, explosion, falling
plaster,
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steam, gas, electricity, electrical disturbance, water, rain or snow, or leaks
from any part of the Building, the Property, or parking area, or from the pipes,
appliances, or plumbing works or from the roof, street or subsurface or from any
other place or from dampness or by any other cause of whatever nature, whether
caused by other tenants or persons in the Building, or on the Property, or in
any parking area or caused by operations in construction of any private, public
or quasi-public work; nor shall Landlord be liable for any latent defect in the
demised premises or in the Building. Notwithstanding anything contained herein
to the contrary, Landlord shall not be relieved of its obligation to contract
for the removal of snow and ice from the parking areas, sidewalks and access
ways on the Property.
SECTION XXI. ASSIGNMENT, MORTGAGING, AND SUBLETTING. Tenant covenants and
agrees that neither this lease nor the term and estate hereby granted, nor any
interest herein or therein, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred, and that neither the premises, nor any part thereof will
be encumbered in any manner by reason of any act or omission on the part of
Tenant, or used or occupied, or utilized for desk space or for mailing
privileges, by anyone other than Tenant, or for any use or purpose other than as
stated herein, or be sublet or offered or advertised for subletting, without the
prior written consent of Landlord in every case. Not in limitation of the
foregoing, Tenant's request for Landlord's consent to subletting or assignment
shall be submitted in writing and Landlord's consent shall be granted only if
the assignee, subtenant or sublessee shall agree to pay Landlord rent, including
Tax Excess, Operating Cost Excess, Electricity Charge
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and Tenant Excess Electricity Expense at the higher of that reserved in this
lease or that then current rate in the Building for new tenants. Further, it is
agreed that in lieu of withholding or granting its consent Landlord may, within
thirty (30) days of receipt of a request for consent from Tenant, cancel this
lease as to so much of the demised premises as Tenant has proposed for
assignment or subletting. If Landlord shall elect to cancel this lease as to all
or a portion of the demised premises, it shall give Tenant written notice of its
election, which notice shall set forth a "termination date" which shall be not
less than thirty (30) or more than sixty (60) days from the receipt by Landlord
of Tenant's request to assign or sublet, and on that "termination date" Tenant
shall surrender the premises for which this lease has been canceled in
accordance with the provisions of this lease relating to the surrender of the
demised premises as the expiration of the term of this lease. If the
cancellation shall be as to a portion of the demised premises only, then the
Tenant's Proportionate Share for Taxes, Tenant's Proportionate Share for
Operating Cost Escalation and the rent shall be adjusted proportionately to
reflect said cancellation. It is hereby expressly understood and agreed,
however, if Tenant is a corporation, that the assignment, or transfer of this
lease, and the term and estate granted, to any corporation into which Tenant is
merged or with which Tenant is consolidated or which is an affiliate of Tenant
(i.e. controlling, controlled by or under common control with Tenant), which
corporation shall have a net worth at least equal to that of Tenant immediately
prior to such merger or consolidation (such corporation being hereinafter called
"Assignee"), without the prior written consent of Landlord shall not be deemed
to be
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prohibited hereby, if, and upon the express condition that, Assignee and Tenant
shall promptly execute, acknowledge, and deliver to Landlord an agreement in
form and substance satisfactory to Landlord whereby Assignee shall agree to be
personally bound by and upon the covenants, agreements, terms, provisions and
conditions set forth in this lease on the part of Tenant to be performed and
whereby Assignee shall expressly agree that the provisions of this Section XXI
shall, notwithstanding such assignment transfer, continue to be binding upon it
with respect to all future assignments and transfers.
The listing of any name other than that of Tenant, whether on the doors of
the premises or on the Building directory, or otherwise, shall not operate to
vest any right or interest in this lease or in the premises or be deemed to be
the written consent of Landlord mentioned in this Section XXI, it being
expressly understood that such listing is a privilege extended by Landlord
revocable at will by written notice to Tenant; Landlord agrees not to revoke
such privilege for Tenant during the term hereof.
If this lease be assigned, or if the premises or any part thereof be sublet
or occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the Assignee, subtenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the Assignee, subtenant or occupant as a tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained. The
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consent by Landlord to an assignment or subletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or subletting. No assignment, subletting or
use of the demised premises by an affiliate of Tenant shall affect the purpose
for which the demised premises may be used stated in Section II.
SECTION XXII. SIGNS, BLINDS AND DRAPERIES. No signs or blinds may be put on
or in any window by Tenant. Tenant may hang its own draperies, provided that
they shall not in any way interfere with the Building standard blinds or be
visible from the exterior of the Building and that such draperies are so hung
and installed that when drawn, the Building standard blinds are automatically
also drawn. Any signs or letters in the public corridors or on the doors must be
submitted to Landlord for written approval before installation, which
installation shall be at the sole expense of Tenant.
SECTION XXIII. INSURANCE. Tenant will not do or omit to do to keep anything
in, upon or about the demised premises which may prevent the obtaining of any
fire, liability or other insurance upon or written in connection with the
premises or the Building, the Property or any parking area or which may make any
such insurance void or voidable, or which may create any extra premiums or
increase the rate of any such insurance over that normally applicable to the
office buildings unless the Tenant pays such extra or increased premiums.
SECTION XXIV. INFLAMMABLES, ODORS. Tenant shall not bring or permit to be
brought of keep in or on the premises or elsewhere in the Building or Property,
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any inflammable, combustible or explosive fluids, material, chemical or
substance, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to emanate from or permeate the premises.
SECTION XXV. DEFAULT. If the Tenant shall default in the performance of any
of its obligations and if such default shall continue for ten (10) days after
written notice thereof by the Landlord to the Tenant, hereinafter referred to as
grace period, except that if the Tenant cannot reasonably cure any such default
within said ten (10) day period, this period may be extended for a reasonable
time, provided that the Tenant commences to cure such default within ten (10)
day period and proceeds diligently thereafter to effect such cure, and further
provided that Tenant shall be entitled to only one ten (10) day grace period in
any twelve month period, or if the Tenant shall be adjudicated bankrupt or
insolvent according to law, or shall make an assignment for the benefit of
creditors, then Landlord may lawfully enter the premises or any part thereof in
the name of the whole or mail a notice of termination addressed to Tenant at the
demised premises and repossess the same as of the former estate of the Landlord
and expel the Tenant and those claiming under the Tenant without being deemed
guilty of any manner of trespass and without prejudice to any other remedies
which the Landlord may have for arrears of rent or preceding breach of covenant,
and upon entry or mailing as aforesaid, this lease shall terminate and the
Tenant covenants that in case of such termination, it will indemnify the
Landlord against all loss of rent, reletting expenses, and brokerage, which the
Landlord may incur by reason of such termination during the residue of the term.
The Landlord
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may elect to receive as damages upon termination under this Section XXV either
the amount by which, at the termination of this lease, the aggregate of the rent
and other charges (including escalations projected on the basis of experience
under the lease) projected over the period from such termination until the
normal expiration date of the term exceeds the aggregate projected rental value
of the premises for such period or amounts equal to the rent and other charges
which would have been payable had the lease not so terminated, payable upon the
due dates as specified herein (subject to offset for net events actually
received from reletting after subtraction of the expenses or reletting
proportionally allocated to the term of the reletting).
Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this lease would have expired if it had not been
terminated hereunder.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
In the event of any termination of this lease or re-entry by Landlord under
the provisions of this Section XXV, or in the event of the termination of this
lease or of re-entry by or under any summary process or other proceeding or
action or any provision of law by reason of default under this lease on the part
of Tenant, then for
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the purposes of computing damages as shall be payable pursuant to this Section
XXV, it is agreed that:
In calculating the damages under the first textual paragraph under this
Section XXV, there shall be payable to Landlord as part of such damages the
product of the Electricity Charge, the Escalation Excesses (Tax Excess and
Operating Cost Excess) for the immediately preceding Lease Year, times the
number of years then remaining unexpired of the term hereof, on the agreement
the Electricity Charge and the Escalation Excess would have remained constant
for each subsequent Lease Year of the full term hereby granted.
SECTION XXVI. SUBORDINATION. This lease is subject and subordinate in all
respects to all mortgages which may now or hereafter be placed on or affect the
real property of which the premises are a part, or Landlord's interest or estate
therein, and to each advance made and/or hereafter to be made under any such
mortgages, and to all renewals, modifications, consolidations, replacements and
extensions thereof and all substitutions therefor. This Section XXVI shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall execute and deliver promptly
any certificate that Landlord and/or any mortgagee and their respective
successors in interest may request. Notwithstanding the generality of the
foregoing provisions of this Section XXVI, Tenant agrees that any such mortgagee
shall have the right at any time to subordinate any such mortgages or other
instruments of security to this Lease on such terms and subject to such
conditions as such mortgagee may deem
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appropriate in its discretion. Tenant further covenants and agrees upon demand
by Landlord's mortgagee at any time, before or after the institution of any
proceedings for the foreclosure of any such mortgages or other instruments of
security, or sale of the Building pursuant to any such mortgages or other
instruments of security (which agreement shall survive any such foreclosure
sale), to attorn to such mortgagee or such purchaser upon any such sale and to
recognize such purchaser as Landlord under this Lease, provided that Tenant's
possession shall not be disturbed except under the terms of this Lease, and
further agrees to execute any and all documents as such mortgagee may require to
confirm such attornment. Notwithstanding anything contained herein to the
contrary, Landlord shall obtain and provide to Tenant a Subordination,
Non-Disturbance and Attornment Agreement in commercially reasonable form from
its first mortgagee.
SECTION XXVII. NOTICES. From time to time, Tenant and Landlord on at least
fifteen (15) days prior written request by the other, will deliver a statement
in writing certifying that this lease is unmodified and in full force and effect
(or if there shall have been modifications, that the same is in full force and
effect as modified and stating the modifications) and the dates to which the
rent and other charges have been paid and stating whether or not the Landlord or
Tenant, as the case may be, is in default in performance of any covenant,
agreement or condition contained in this lease and, if so, specifying each such
default of which it may have knowledge.
Any notice or demand by Tenant to Landlord shall be served by Sheriff,
Constable or certified mail, postage prepaid, or recognized overnight courier,
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addressed to Landlord as set forth below, until otherwise directed in writing by
the Landlord, and any notice or demand by Landlord to Tenant shall be served by
Sheriff, Constable or certified mail, postage prepaid, or recognized overnight
courier, to the Tenant as set forth below, except that notice of termination
pursuant to Section XXV may be sent by regular mail postage prepaid to Tenant at
the leased premises.
To Landlord: New Boston Wilmar Limited Partnership
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxxxxxx, Xxxxxxxx & Xxxxxxxxx
One Xxxxxxxxxx Place, Suite 3611
Xxxxxx, Xxxxxxxxxxxxx 00000
To Tenant: Ascent Pediatrics, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
It is agreed that certified mail shall be conclusively deemed received one
day after it is mailed, postage prepaid, and that an item sent by recognized
overnight courier shall be conclusively deemed received the day it is scheduled
to be delivered.
SECTION XXVIII. RULES AND REGULATIONS. Tenant will faithfully observe and
comply with the Rules and Regulations annexed hereto and such other further
Rules and Regulations as Landlord hereafter at any time or from time to time may
make for the Building as a whole and may communicate in writing to Tenant, which
in the judgment of Landlord shall be necessary for the reputation, operation,
safety, care or appearance of the Building, the Property, any parking garage,
the outside parking areas, or the preservation of good order in the said
Building, the Property, underground garage or parking area, or the operation of
maintenance of
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the Building, or the equipment thereof, or the Property, or the comfort of
tenants or others in the Building; provided, however, that in the case of any
conflict between the provisions of this Lease and any such Rules and
Regulations, the provisions of this lease shall control, and provided further,
that nothing contained in this lease shall be construed to impose upon Landlord
any duty of obligation to enforce the Rules and Regulations or the terms,
covenants or conditions in any other lease as against any other tenant and
Landlord shall not be liable to Tenant for violation of the same by any other
tenant, or any other tenant's servants, employees, agents, visitors, invitees or
licensees.
SECTION XXIX. QUIET ENJOYMENT. The Tenant, on paying the said rent and
performing the covenants of this lease on its part to be performed shall and may
peaceably and quietly have, hold and enjoy the demised premises for the term
aforesaid and any extension thereof.
SECTION XXX. BINDING AGREEMENT. This lease shall bind and enure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns. This lease contains the entire agreement of the parties
and may not be modified except by instrument in writing signed by the parties
hereto.
SECTION XXXI. PARTNERSHIP. During such time as the Landlord shall be a
limited partnership, Tenant agrees that it shall not hold any partner of
Landlord personally responsible for any of the covenants of Landlord under this
lease, and in the event it has a claim against Landlord, Tenant shall look only
to the assets of the partnership for satisfaction thereof. Tenant specifically
agrees to look solely to
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Landlord's interest in the Building for recovery of any judgment from Landlord;
it being specifically agreed that neither the Landlord nor anyone claiming by,
through or under Landlord shall ever be personally liable for any such judgment,
or for the payment of any monetary obligation to Tenant.
SECTION XXXII. SEISIN. In the event of a sale or other disposition of the
Building and/or land underlying it by Landlord, Landlord shall be entirely free
and relieved from the performance and observance thereafter of all covenants and
obligations of Landlord hereunder, it being understood and agreed in that the
successor to Landlord's ownership shall thereupon and thereafter assume and
perform and observe, any and all of such covenants and obligations of Landlord.
Landlord shall transfer said security deposit to any purchaser of the Building.
SECTION XXXIII. INSURANCE. Tenant shall maintain in full force and effect
the following insurance written by one or more responsible companies licensed to
do business in Massachusetts in form and content reasonably satisfactory to
Landlord, including, except as to (2) of this Section XXXIII at the request of
Landlord, Landlord as a named insured as interest may appear under the lease,
and Tenant shall keep deposited with the Landlord copies of all policies of
insurance, or certificates thereof, with endorsements on such policies or
certificates to the effect that such insurance shall not be canceled by the
insurer without at least fifteen (15) days prior notice to Landlord.
(1) Comprehensive general liability insurance on an occurrence basis in an
amount not less than One Million Dollars ($1,000,000) combined single limit for
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property damage and for any personal injury, including death, to one or more
than one person arising out of any one incident.
(2) Worker's compensation insurance covering all employees, and, if Tenant
shall contract with any independent contractor for the furnishing of labor,
materials or services to Tenant, Tenant shall require such independent
contractor to maintain workmen's compensation insurance covering all its
employees and all the employees of any subcontractor.
(3) Personal Property - Landlord shall not be liable to Tenant for and
Tenant shall carry his own insurance to protect against:
(i) Damage to or loss of property entrusted to employees of the
Landlord.
(ii) Loss of property through thefts regardless of where the theft
takes place.
(iii) Damage to property regardless of where the damage takes place.
(iv) Damage to or loss of property caused by other tenants or
occupants of the Building or caused by visitors to or in the Building.
It is specifically understood that Landlord's insurance does not cover any
personal property of Tenant and Tenant shall not make any claim for loss of or
damage to such property against Landlord or Landlord's insurance carrier and
shall not permit its insurance carrier to make any claim for loss or damage to
such property against Landlord or Landlord's insurance carrier.
SECTION XXXIV. SUBROGATION, INSURANCE PREMIUMS.
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(a) The Landlord discharges and releases the Tenant to the extent of the
Landlord's fire or casualty insurance coverage, but only with respect to loss
and damage occurring during such times as the Landlord's policies of fire and
casualty insurance shall contain an operative clause or endorsement providing
that such discharge or release shall not affect the policy or the right of the
Landlord to recover thereunder, even if such fire or other casualty may have
been brought about by the fault or neglect of Tenant, its agents or employees,
for or on account of any and all claims and liabilities arising out of any loss
or damage during the term hereof, or any extension or renewal thereof, to any
property of the Landlord caused by (1) fire and such risks as are customarily
comprehended by the term "extended coverage" in endorsements to fire insurance
policies, and (2) such other risks as are covered by insurance which the
Landlord may desire to procure.
(b) Tenant discharges and releases the Landlord, to the extent of Tenant's
fire and casualty insurance coverage, but only with respect to loss and damage
occurring during such times as Tenant's policies of fire and casualty insurance
shall contain an operative clause or endorsements providing that such discharge
or release shall not affect the policy or the right of the Tenant to recover
thereunder, even if such fire or other casualty may have been brought out by the
fault or neglect of the Landlord, its agents or employees, for or on account of
any and all claims and liabilities arising out of any loss or damage during the
term hereof, and any extension or renewal thereof, to any property of Tenant
caused by (1) fire or such other risks as are customarily comprehended by the
term "extended coverage" in
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endorsements to fire insurance policies, and (2) such other risks as are covered
by insurance which Tenant may desire or be obligated to procure.
(c) In consideration of the foregoing, each of the parties hereto agrees
with the other party that (1) such insurance policies or any extension or
renewal thereof shall, if the insurance carrier permits, include a clause or
endorsement which provides in substance that the insurance company waives any
right of subrogation which it might otherwise have against the Landlord or
Tenant, as the case may be, and (2) upon demand of the other party hereto, will
reimburse the other party for any extra premium costs, if any, incurred by the
latter in obtaining such clause or endorsement, or at its option, in lieu
thereof, shall relieve such other party of the discharge or release described
above.
Upon demand, in writing, by either party hereto, the other party agrees to
furnish to it a statement of the amount and type of insurance coverage and the
names of the insurance companies and to request its insurance companies to give
notice to such other party of any cancellation or discontinuance of any part of
such coverage.
SECTION XXXV. SHORING. If an excavation shall be made upon land adjacent to
the demised premises, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter upon
the demised premises for the purpose of doing such work as said person shall
deem necessary to preserve the Building from injury or damage and to support the
same by proper foundations without any claims for damages or indemnity against
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Landlord, or diminution or abatement of rent, provided Landlord will use
reasonable efforts not to unduly disturb Tenant's business operations.
SECTION XXXVI. REZONING. Tenant agrees that he will not oppose any
application for rezoning or variance instituted by Landlord, his successors or
assigns.
SECTION XXXVII. SEPARABILITY. If any provisions or any part of any
provision of this lease or if the application of any provisions of any part of
this lease to any person, entity, or circumstance shall be held invalid by a
court of competent jurisdiction, such invalidity shall have no effect on any
other provision or any part of any provision of this lease or its application to
any other person, entity, or circumstance.
SECTION XXXVIII. WAIVER OF TRIAL BY JURY. Landlord and Tenant agree that
they shall, and hereby do, waiver trial by jury in any action arising out of
Tenant's use and occupancy of the demised premises.
SECTION XXXIX. NO WAIVER. No act or thing done by Landlord or Landlord's
agents during the term of this lease shall constitute an eviction by Landlord,
nor shall be deemed an acceptance of a surrender of said premises, and no
agreement to accept such surrender shall be valid unless in writing signed by
Landlord. The failure of Landlord to seek redress for violation of, or to insist
upon the strict performance of this lease, or any of the rules and regulations
set forth in this lease or hereafter adopted by Landlord, shall not constitute a
waiver in any respect nor prevent a subsequent act, which originally constituted
a violation from having all force and effect of an original violation. The
receipt by Landlord of rent
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with knowledge of the breach of any covenant of this lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account, nor shall any endorsement or statement on any check, nor any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance or such rent or pursue any other remedy in this
lease provided.
SECTION XL. HOLDING OVER. In the event Tenant or any party claiming by,
through or under Tenant shall hold over the premises or any part thereof after
the termination of this Lease, such holding over shall constitute and be
construed as a tenancy at sufferance only, provided that all the terms of this
Lease shall apply except that the rent set forth in Section IV shall be
calculated at a daily rate equal to one hundred fifty percent (150%) of the rent
reserved in said Section IV. Nothing contained in this Section XL shall be
construed as Landlord's consent to Tenant holding over.
SECTION XLI. ADDITIONAL AIR CONDITIONING. In the event that Tenant shall
install any equipment (including computers, but not limited thereto) that
produce heat necessitating the use of air conditioning in addition to the
Building standard space air conditioning system provided by Landlord, Landlord
shall install such additional air conditioning at Tenant's expense, such expense
to include all costs for the installation, operation, maintenance and repair of
such air conditioning
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equipment. Tenant's obligation to pay for additional air conditioning as above
described shall be adjusted proportionately to reflect any portion of such
installation, operation, maintenance and repair costs as may be properly
apportioned with other tenants on account of their utilization of said
additional air conditioning in the Building of which the demised premises are a
part. It is further agreed that to the extent it is necessary for Landlord to
use its cooling tower and pumps to provide such additional air conditioning, the
cost of operating, maintaining and repairing such cooling tower and pumps shall
be part of the cost of the additional air conditioning described in this
paragraph and shall be borne by Tenant in the manner described in this
paragraph.
SECTION XLII. CAPTIONS, PLURAL, GENDER. The captions are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this lease nor the intent of any provisions hereof. Whenever a
masculine or singular pronoun is used in this Lease, it shall include the
feminine and plural thereof whenever the context so permits or requires.
SECTION XLIII. BROKERAGE. Tenant covenants that it has dealt with no broker
other than the broker specified at the end of this Section XLIII, as Tenant's
Broker and as Landlord's Broker, in locating the premises demised by this lease
and in negotiating this lease and Tenant further covenants and agrees that it
shall hold Landlord harmless from any and all claims which may be asserted by
any real estate broker other than the broker specified at the end of this
Section XLIII, as Tenant's Broker and as Landlord's Broker, who claims that he
showed or referred the Tenant
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to the Landlord or to the demised premises for any transaction involving or
resulting in this lease or premises demised hereby.
Tenant's Broker: Xxx Xxxxxxxxxx
Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
Landlord covenants that it has dealt with no broker other than the broker
specified at the end of this Section XLIII, as Tenant's Broker and as Landlord's
Broker, in locating the premises demised by this lease and in negotiating this
lease and Landlord further covenants and agrees that it shall hold Tenant
harmless from any and all claims which may be asserted by any real estate broker
other than the brokers in this Section XLIII, as Tenant's Broker and as
Landlord's Broker, who claims that he showed or referred the Landlord to the
Tenant or to the demised premises for any transaction involving or resulting in
this lease or premises demised hereby.
Landlord's Broker: Xxxx Xxxxx
Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
Landlord agrees that Tenant shall have no liability for payment of the brokerage
commissions of either Landlord's Broker or Tenant's Broker named herein, and
Landlord shall indemnify Tenant on account thereof.
SECTION XLIV. HAZARDOUS WASTE.
(a) For the purpose of this Section XLIV - "Hazardous Substance" shall mean
any waste, substance or other material which may be dangerous to health or
environment, including, without limitation, all "hazardous wastes", Hazardous
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materials"; Hazardous substance", "toxic substance," "oil"; "infectious medical
waste" and "hazardous medical waste" as defined in any federal, state, or local
law, regulation or ordinance, or otherwise.
(b) Tenant shall not dump, flush or in any way introduce any Hazardous
Substances, which are regulated under the Resource Conservation and Recovery Act
of 1976, as amended, (42 U.S.C. Section 6901, et. seq. "RCRA") the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended (42
U.S.C. 9601 et. seq. "CERCLA"), the Superfund Amendments and Reauthorization Act
of 1986 ("XXXX"), Public Law 99-499, 100 Stat 1613, ET SEQ., and/or any other
applicable Municipal, federal, state law, into the sewerage, drainage or other
waste disposal system serving the demised premises, the building of which the
same form a part or the land on which it stands (the "Property").
(c) Tenant shall not generate, use, store or dispose of Hazardous
Substances regulated under RCRA, CERCLA, XXXX and/or any other applicable
Municipal, federal or state environmental law, in or on the demised premises,
the building of which the same form a part or the Property, nor transport
Hazardous Substances from the demised premises, the Building of which the same
form a part or the Property except in compliance with RCRA, CERCLA, XXXX, and
any other applicable Municipal, federal or state environmental law.
(d) Tenant shall promptly notify Landlord in writing of any incident in the
demised premises or the building of which the same form a part or the Property
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which might require the filing of a notice under any statute described in
Section XLIV(b) of this Lease.
(e) Tenant shall indemnify and hold Landlord harmless from any and all
costs, liabilities, demands, claims, civil or criminal actions, or causes of
action, civil or criminal penalties, fines, losses, liens, assessments, damages,
liabilities, costs, disbursements, expenses or fees of any kind or any nature
(including without limitation all clean-up costs and attorney's fees) which may
at any time be imposed upon, incurred by or asserted or awarded against Landlord
arising out of or on account of Tenant's failure to comply with the provisions
of Section XLIV of this Lease, where due to any action or non-action of Tenant.
SECTION XLV. SECURITY DEPOSIT. Landlord shall hold and retain a security
deposit in a separate interest-bearing account at a recognized financial
institution in the amount set forth at the end of this Section XLV throughout
the term hereof as security for the faithful performance by Tenant of each and
every term, condition, covenant and provision of this lease. Landlord may apply
all or any damage to the leased premises or to the restoration thereof or to any
rent, including tax excess which may be due from Tenant to Landlord. In the
event that Landlord shall so apply all or any portion of the said security
deposit, Tenant shall immediately upon ten (10) days' notice, restore the same
to its full amount. All or any portion of the security deposit remaining at the
expiration or other termination of this lease which has not been so applied
shall be returned to Tenant.
Amount of Security Deposit: $57,280.00
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Notwithstanding anything to the contrary herein contained, if but only if Tenant
shall not have been in default beyond applicable grace periods of any of the
terms, conditions, covenants and obligations to be observed by Tenant hereunder
during the first twenty-three (23) months of the lease term, then Nineteen
Thousand Ninety-Three Dollars ($19,093.00) of said security deposit shall be
applied to Tenant's rental obligation hereunder for the twenty-fourth (24th)
month of the lease term. Otherwise, the full security deposit shall be held by
Landlord for the full term of this lease as provided herein.
SECTION XLVI. LEASE CONTINGENCY. Reference is hereby made to a certain
lease between Mutual Benefit Life Insurance Company in Rehabilitation ("MBL"),
as landlord and Xxx X. Xxxxxx, Inc., as tenant, dated January 7, 1993
(hereinafter referred to as "Prior Lease") for the same 14,320 square feet
demised to Tenant hereunder. Landlord is the successor in interest to MBL. This
lease is expressly contingent upon the termination of the Prior Lease, it being
understood and agreed by Landlord and Tenant that in the event a Lease
Termination Agreement with respect to the Prior Lease is not fully executed and
delivered on or before November 25, 1996, and in the event Xxx X. Xxxxxx does
not vacate the premises on or before January 22, 1997, this Lease shall be void
and of no force and effect, Landlord and Tenant thereafter having no further
obligations one to the other.
SECTION XLVII. MULTIPLE COUNTERPARTS. This lease may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
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SECTION XLVIII. OPTION TO EXTEND. Tenant shall have an option to extend the
term of this Lease for one additional term of five (5) years, commencing upon
the expiration of the initial term of this lease and terminating sixty (60)
months thereafter (the "Option Term"), provided that Tenant proceeds strictly in
accordance with the provisions of this Section XLVIII.
Not less than twelve (12) months prior to the expiration of the initial
term of this Lease, Tenant shall advise Landlord in writing that Tenant wishes
to extend the term of this Lease for the Option Term. If at the time Landlord
receives Tenant's extension notice this lease is in full force and effect
without default on the part of the Tenant, then, during the next thirty (30) day
period, Landlord shall notify Tenant in writing of the rent which shall be due
for the Option Term. The rent specified by Landlord shall be that which the
Landlord reasonably projects will be the fair market rent as of the commencement
of the Option Term, but in no event less than the rent for the last year during
the initial term of this Lease. Within three (3) weeks after Landlord has given
Tenant notice of the rent which shall be due during the Option Term, Tenant
shall notify Landlord whether or not it agrees to pay such rent. If Tenant shall
agree in writing to pay such rent, and if upon the commencement date of the
Option Term, the lease is in full force and effect without default on the part
of the Tenant, then this Lease shall be extended for the Option Term without the
execution of any additional documents, and each and every term and condition of
this Lease shall apply during the Option Term except only that the rent which
shall be due during the Option Term shall be that agreed upon by Landlord and
Tenant,
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and the phrase "term of this Lease" shall be construed to mean the Option Term
of this Lease. If Tenant shall not agree in writing to pay such rent, this Lease
shall terminate as provided in Section III, and Tenant shall vacate the demised
premises on or before such date in accordance with the provisions of this Lease.
If Tenant shall fail to give Landlord written notice of its desire to extend the
term of this Lease as hereinbefore specified, Tenant shall have no right to
extend this Lease for the Option Term, and this Lease shall terminate as
provided in Section III, and Tenant shall vacate the demised premises on or
before such date in accordance with the provisions of this Lease.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this
21st day of November, 1996.
Landlord:
NEW BOSTON WILMAR
LIMITED PARTNERSHIP
By: New Boston Fund, Inc.,
Its General Partner
By:
---------------------------------
Its
Tenant:
ASCENT PEDIATRICS, INC.
By: /s/ Xxxx X. Xxx
---------------------------------
Its President/CEO
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EXHIBIT "B"
LANDLORD'S WORK
Landlord shall patch as needed all interior walls in the premises, and shall
repaint all interior walls. Landlord shall professionally clean all existing
carpeting throughout the premises, and the same shall be dry as of the date
Tenant moves into the premises.
TENANT'S WORK
None.
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EXHIBIT "C"
MASSACHUSETTS LEGAL HOLIDAYS
*January 1 - New Year's Day
Third Monday in January - Xxxxxx Xxxxxx Xxxx, Xx. Day
Third Monday in February - Washington's Birthday
Third Monday in April - Patriot's Day
Last Monday in May - Memorial Day
*July 4 - Independence Day
First Monday in September - Labor Day
Second Monday in October - Columbus Day
*November 11 - Veteran's Day
Fourth Thursday in November - Thanksgiving Day
*December 25 - Christmas Day
*Should any of these dates fall on a Sunday, the Holiday is observed on the
following Monday.
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EXHIBIT "D"
SCOPE OF SERVICES
I. CLEANING
A. OFFICE AREA
Daily: (Monday through Friday 6:00-10:00 pm; holidays excepted)
-----
1. Empty and clean all waste receptacles and ash trays and remove
waste materials from the premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces including furniture, office equipment, window xxxxx,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains.
6. Remove and dust under all desk equipment and telephone and
replace same.
7. Wipe clean all brass and other bright work.
8. Hand dust all grill work within normal reach.
9. Upon completion of cleaning, all lights will be turned off and
doors locked, leaving the premises in an orderly condition.
Weekly:
------
1. Dust coat racks, and the like.
2. Remove all finger marks from private entrance, doors, light
switches, and doorways.
Quarterly:
---------
Render high dusting not reached in daily cleaning to include:
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a. Dusting all pictures, frames, charts, graphs, and similar wall
hangings.
b. Dusting all vertical surfaces, such as walls, partitions, doors,
and ducts.
c. Dusting all pipes, ducts, and high moldings.
d. Dusting all venetian blinds.
B. LAVATORIES
Daily: (Monday through Friday, inclusive; holidays excepted)
-----
1. Sweep and damp mop floors.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping, and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls, and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers, vending
sanitary dispensers; materials to be furnished to Landlord.
9. A sanitizing solution will be used in all lavatory cleaning.
Monthly:
-------
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
C. MAIN LOBBY, ELEVATORS, BUILDING EXTERIOR, AND CORRIDORS.
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Daily: (Monday through Friday, inclusive; holidays excepted)
-----
1. Sweep and wash all floors
2. Wash all rubber mats.
3. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
4. Spot clean any metal work inside lobby.
5. Spot clean any metal work surrounding building entrance doors.
Monthly:
-------
All resilient tile floors in public areas to be treated equivalent to
spray buffing.
D WINDOW CLEANING
Windows of exterior walls will be washed semi-annually.
E. Tenant requiring services in excess of those described above shall
request same through Landlord, at Tenant's expense.
F. SNOW REMOVAL
Clearing, sanding and salting of all snow and ice surrounding the
building walkways, as accumulated during storms, with special emphasis
on the building opening at 7:00 am Monday - Friday and by 8:00 am on
Saturday.
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RULES AND REGULATIONS
The following Rules and Regulations constitute a part of the Lease and of
Tenant's obligations thereunder in respect of Tenant's use and occupancy of the
Premises in the Building.
I. BUILDING HOURS
1.1. The Building is open from 8:00 a.m. to 6:00 p.m. on Monday through
Friday, and Saturdays from 8:00 am to 1:00 pm except for Massachusetts Holidays.
The Building is closed on Sundays.
1.2. If you wish to use the Building during other times, please obtain
pass-cards for authorized members of your staff from the Building Management
Office. As additional security, all persons entering the Building after hours
are required to sign in and out in a logbook provided for that purpose.
1.3. If you will need after-hours heating or air-conditioning services,
please notify the Building Management Office by 3:00 p.m. on the previous
working day. (These Building services are either reduced, or shut off completely
when the Building is closed.) You will be charged overtime use of the Building
services.
1.4. You are advised, for the protection and safety of your personnel, to
lock front doors at the end of each working day. Front doors also should be
locked whenever your receptionist leaves the area.
1.5. If you have night-line telephone service, please submit a list of
numbers and personnel to the Building Management Office. This will enable the
Landlord to contact your office after 6:00 p.m. on the occasions when visitors
call after normal working hours.
1.6. If you wish to remove fixtures or materials from your premises after
6:00 p.m. or to have work performed after 6:00 p.m., by someone who does not
have a Building pass, the Building Management Office must be notified in advance
in writing.
II. ELEVATORS, DELIVERIES AND PARKING
2.1. If you expect delivery of any bulky material, notify the Building
Management Office reasonably in advance so that freight elevators may be
scheduled and elevator pads may be installed if necessary. This protects both
your shipment and the elevators. For the convenience of all, passenger elevators
may not be used for deliveries of any bulky goods.
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2.2. All larger deliveries must be made from the designated Building
loading dock area. Large deliveries can be expedited by notifying the Building
Management Office 24 hours in advance. The receiving area can accommodate
certain types and sizes of vehicles. All hand trucks used for deliveries must be
equipped with rubber bumpers and tires.
2.3. The loading dock may be used only for deliveries. No vehicles are
allowed to stand or park in this area after unloading nor are vehicles allowed
to park at the loading dock for service calls. You should advise your vendors
and suppliers of this rule. Any vehicles abusing the truck dock privileges are
subject to being towed at the owner's expense.
III. GENERAL USE OF BUILDING AND PREMISES
3.1. Tenants are not permitted to place or store property on the sidewalks,
passageways, parking areas or courtyards adjacent to the Building or in the
elevators, vestibules, stairways, or corridors (except as may be necessary for
brief periods during deliveries).
3.2. No bicycles or animals may be brought into or kept in or about the
Building or premises.
3.3. Rubbish, rags, sweepings, acid and any and all harmful or damaging
substances may not be deposited in the lavatories or in the janitor closets.
Please make arrangements with the Building Management Office for disposal of any
unusual trash.
IV. REPAIRS AND SERVICES
4.1. You are responsible for all general repairs and maintenance of your
Premises including, but not limited to, Tenant supplied supplementary air
conditioning, exterior doors, and exterior signs. All repairs, installations, or
alterations to the Building or its fixtures must first be approved and scheduled
by the Building Manager.
4.2. All requests for work to be done in your Premises by any of the
Building Management Staff should be directed to the Building Manager. Building
employees are not permitted to perform any work outside their regular duties
except upon special instructions from the Building Manager.
4.3. All schedules for the performance of your construction and repair work
must be coordinated by the Building Manager to avoid conflicts with various
building construction and maintenance schedules. Tenants must inform the
Building Manager, at least 72 hours before any work is to begin, of the nature
of the work,
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where and when it is to be performed, the name of the contractor or concern
doing the work, and the name of the individual who will supervise the
performance of the work. You will be required to obtain from the persons doing
work certificates of insurance coverage, signed lien waivers, and payment and
performance bond in form and substance satisfactory to the Landlord. Work may
not begin until such requirements have been satisfied.
4.4. Landlord shall purchase and install, at your expense, all lamps,
tubes, bulbs, starters and ballasts.
V. FLOOR LOAD - HEAVY MACHINERY
5.1 You may not place a load upon any floor in the Premises or Building
exceeding the floor load which such floor was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the weight and
positions of all business machines and mechanical equipment, including safes,
all of which shall be so placed as to distribute the weight. You shall place and
maintain your business machines and mechanical equipment in settings sufficient,
in Landlord's judgment, to absorb and prevent vibration, noise and annoyance.
You may not move any safe, heavy machinery, heavy equipment, freight, bulky
matter or fixtures into or out of the Building without Landlord's prior consent,
which consent may include a requirement to provide insurance, naming Landlord as
an insured, in such amounts as Landlord may deem reasonable. Notwithstanding the
foregoing, proper placement of all such business machines, etc. in the Premises
shall be your responsibility as Tenant.
5.2. If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, you must employ only persons holding a
Master Riggers's License to do such work; and all work in connection therewith
must comply with applicable laws and regulations. Any such moving shall be at
your own sole risk and hazard and you, as Tenant, will defend, exonerate,
indemnify and save Landlord harmless against and from any liability, loss,
injury, claim or suit resulting directly or indirectly from such moving.
VI. ELECTRICAL SYSTEM: ENERGY CONSERVATION: WATER
6.1. In order to assure that the Building's electrical standards are not
exceeded and to avert possible adverse effect on the Building's electric system,
you may not, without Landlord's prior consent, connect any fixtures, appliances
or equipment to the Building's electric distribution system other than standard
office equipment, such as typewriters, pencil sharpeners, adding machines,
hand-held or desk top calculators, dictaphones, office computers and copies.
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6.2. Notwithstanding anything to the contrary contained in the Lease,
Landlord reserves the right to implement policies and procedures it deems, in
its reasonable judgment, to be necessary or expedient in order to conserve
and/or preserve energy and related services, or to be necessary or required in
order to comply with applicable government laws, rules, regulations, codes,
orders and standards.
6.3. If you shall use water for any purpose other than for ordinary
lavatory and drinking purposes, Landlord may assess a reasonable charge for the
additional water so used, or install a water meter and thereby measure your
water consumption for all water purposes. In the latter event, you shall pay the
cost of the meter and the cost of installation thereof and shall keep such meter
and installation equipment in good working order and repair. You agree to pay
for water consumed, as shown on such meter, together with the sewer charge based
on such meter charges, as and when bills are rendered, and in default in making
such payment Landlord may pay such charges and collect the same from you as an
additional charge.
6.4. The windows of the Building are designed for superior insulation and
to reduce glare. Building standard blinds or drapes present and elegant
appearance and contribute to the effectiveness of the Building's heating and
cooling systems. You should keep the blinds or drapes closed when windows are
exposed to the sun's rays in summer and keep them open when the sun is bright
enough to provide warmth during the winter months.
VII. SIGNS AND ADVERTISING
Except as hereinafter provided, you may not place on the exterior of the
Premises (including both interior and exterior surfaces or doors and interior
surfaces of windows) or on any part of the Building outside the Premises, any
signs, symbol, advertisement or the like visible to the public view outside of
the Premises. Landlord shall withhold consent for signs or lettering on the
entry doors to the Premises, unless such signs conform to Building standards
adopted by Landlord. All signage must be in accordance with a plan or sketch of
the sign to be placed on such entry doors submitted to and approved by Landlord
in advance. Landlord agrees, however, to maintain a tenant directory in the
lobby of the Building in which will be placed your name and the location of the
Premises in the Building. Neither Landlord's name, nor the name of the Building
or any Center, Office Park or other complex of which the Building is a part, or
the name of any other structure erected therein shall be used without Landlord's
consent in any advertising material (except on business stationery or as an
address in advertising matter), nor shall any such name, as aforesaid, be used
in any undignified, confusing, detrimental or misleading manner.
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VIII. LIFE SAFETY AND EMERGENCY PROCEDURES
In case of emergency situations such as power failure, water leaks or
serious injury, call the Building Management Office immediately. In case of fire
or smoke, pull the nearest alarm (located on your floor) and then call the
Building Management Office
IX. SMOKE FREE ENVIRONMENT
Smoking is not permitted in the lobby, hallways, corridors or stairs.
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