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LEASE SURRENDER AGREEMENT AND
SECOND AMENDMENT TO LEASE
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THIS LEASE SURRENDER AGREEMENT AND SECOND AMENDMENT TO LEASE (the
"Agreement") made as of May 1, 2001, between BALLARDVALE INVESTORS LIMITED
PARTNERSHIP, a Pennsylvania limited partnership with an address at GSB Building,
Suite 401, One Belmont Avenue, Bala Cynwyd, PA 19004 (the "Landlord") and ASCENT
PEDIATRICS, INC, with an address at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Tenant").
R E C I T A L S
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WHEREAS, by Lease dated November 21, 1996 Landlord leased to Tenant certain
premises containing 14,320 rentable square feet (the "Leased Premises") located
on the first floor of the building located at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Building");
WHEREAS, said Lease was subsequently modified by First Amendment to Lease dated
September 18, 1997 (said Lease with all amendments, the "Lease") whereby
Landlord leased 4,542 rentable square feet to Tenant on the second floor of the
Building;
WHEREAS, the Tenant desires to surrender a portion of the Leased Premises (the
"Surrendered Space") as shown on Exhibit A-2 attached hereto and made a part
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hereof, and Landlord is willing to accept such surrender upon the terms and
conditions set forth in this Agreement;
AGREEMENTS
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NOW THEREFORE, in consideration of the mutual agreements herein contained
and for other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and the Tenant do hereby
agree as follows:
1. DEFINED TERMS. All capitalized terms used in this Agreement which are
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not defined herein shall have the meanings ascribed to them in the Lease.
2. SURRENDER DATE. On May 15, 2001 (the "Surrender Date"), Tenant shall
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surrender possession of the Surrendered Space (being 000 xxxxxxxx xxxxxx xxxx xx
xxxx) to Landlord vacant and broom clean (subject to completion of certain work
by Landlord described in Section 6 hereof) and otherwise in the condition
required by the terms and provisions of the Lease. On the Surrender Date,
Landlord agrees to accept the surrender of the Surrendered Space subject to
Tenant's compliance with all its obligations under this Agreement and under the
Lease.
3. MUTUAL RELEASE. As of the Surrender Date: (a) , Tenant hereby releases
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Landlord from any and all claims, obligations and liabilities of any kind and
nature whatsoever thereafter arising out of or in connection with the
Surrendered Space and the Lease with respect to the Surrendered Space only; and
(b) Landlord hereby releases Tenant from and against all claims, obligations and
liabilities thereafter arising out of or in connection with the Surrendered
Space and the Lease with respect to the Surrendered Space only, except with
respect to those obligations of Tenant expressly provided in the Lease and in
this Agreement to survive the Surrender Date or the termination of the Lease.
4. CONDITIONS FOR TERMINATION OF TENANT OBLIGATIONS. Tenant's obligations
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and liabilities under the Lease with respect to the Surrendered Space shall not
terminate on the Surrender Date, nor shall the releases in Section 3 above
become effective, unless Tenant performs and observes all its obligations under
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the Lease relating or allocable to the Surrendered Space through and including
the Surrender Date, including, but not limited to, payment of all Annual Base
Rent and Additional Rent.
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5. SURVIVAL OF TENANT OBLIGATIONS. Tenant's liability for any and all
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amounts due under the Lease allocable to the Surrendered Space which have not
been determined as of the Surrender Date shall survive the Surrender Date, and
shall be due and payable when determined and billed by Landlord.
6. LANDLORD'S WORK. Landlord agrees that in connection with Tenant's
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delivery of the surrendered Space, Landlord, at its expense, will (a) move
Tenant's furniture and other personal property from the Surrendered Space to the
Leased Premises; (b) relocate Tenant's keypad; and (c) install an entry door
(using "building standard" materials) to the balance of the Leased Premises for
access by Tenant to its Leased Premises.
7. REPRESENTATIONS AND WARRANTIES. Tenant represents, warrants and
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covenants to Landlord that: (a) the Surrendered Space is in good repair and
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condition and in compliance with the terms and conditions of the Lease; (b)
Tenant has not done or suffered, and will not do or suffer, anything whereby the
Lease or the Surrendered Space have (or will) become encumbered by any
mechanics' or materialmens' liens or in any other manner whatsoever; (c) Tenant
is duly authorized to execute, deliver and perform this Agreement; and (d) this
Agreement is valid, binding and enforceable against Tenant in accordance with
its terms.
8. CONTINUING VALIDITY OF LEASE AND LEASE OBLIGATIONS. Landlord and Tenant
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acknowledge that the surrender under this Agreement of a portion of the Leased
Premises shall apply to the Surrendered Space only, and all the terms, covenants
and conditions of the Lease, as modified or amended by this Agreement, are
hereby ratified and confirmed, and shall continue to be and remain in full force
and effect as to that remaining portion of the Leased Premises which is not
surrendered hereunder. Tenant acknowledges that the remaining portion of the
Leased Premises not surrendered under this Agreement contains 18,762 rentable
square feet of space (14,220 rentable square feet on the first floor of the
Building and 4,542 on the second floor of the Building).
9. LEASE AMENDMENTS. If Tenant complies with all of the terms of this
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Agreement on or before the Surrender Date, then effective on the Surrender Date,
the Lease shall be amended as follows to reflect the decrease in the area of the
Leased Premises:
(a) Reduction of Premises Area. Section I of the Lease is amended by adding
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the following at the end of the second paragraph thereof:
"Effective on May 15, 2001 (the "Surrender Date"), the premises on the
first floor of the Building shall be reduced by 100 rentable square feet, which
space is more particularly identified on Exhibit A-2 attached hereto and
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incorporated herein by reference (hereinafter the "Surrendered Space")."
(b) Reduction of Tenant's Proportionate Share (Taxes). Section XI(c) of the
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Lease is amended by adding the following after the first sentence thereof:
"Effective on the Surrender Date, "Tenant's Proportionate Share" for taxes
shall be eighteen and 10/100 percent (18.10%)."
(c) Reduction of Tenant's Proportionate Share for Operating Cost Escalation.
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Section XI(i) of the Lease is amended by adding the following after the
second sentence thereof:
"Effective on the Surrender Date, Tenant's Proportionate Share for
Operating Cost Escalation shall be eighteen and 10/100 percent (18.10%)."
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(d) Reduction of Fixed Rent Payments. Section IV of the Lease is amended to
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add the following to the first paragraph:
"Effective on the Surrender Date, the new rentable space of the demised
premises on the first floor of the Building shall be reduced by 100 rentable
square feet of space for purposes of calculating the fixed rent payable under
this Section IV."
10. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which shall
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constitute one instrument. This Agreement represents the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior discussions, negotiations and agreements between them regarding the
subject matter of this Agreement.
11. MISCELLANEOUS. The provisions of this agreement shall bind and inure to
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the benefit of the heirs representatives, successors and assigns of the parties
hereto and Tenant hereby warrants to Landlord that it has not heretofore
assigned, mortgaged or otherwise transferred, amended or encumbered, voluntarily
or involuntarily, the Lease or its interest therein. This Agreement shall not
be binding upon or enforceable against Landlord unless and until Landlord shall
have executed and unconditionally delivered to Tenant an executed counterpart of
this Agreement. This Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
executed on the date first above written.
WITNESSED BY: LANDLORD:
_________________________________ BALLARDVALE INVESTORS LIMITED PARTNERSHIP
By: Bergen of Ballardvale, Inc.,
_________________________________ General Partner
By:__________________________________
Name:
Title:
__________________________________ TENANT:
ASCENT PEDIATRICS, INC.
By:__________________________________
Name:
__________________________________ Title:
