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Exhibit 10.38
FIRST AMENDMENT TO LEASE
WHEREAS, NEW BOSTON WILMAR LIMITED PARTNERSHIP (hereinafter referred to
as "Landlord") and ASCENT PEDIATRICS, INC. (hereinafter referred to as "Tenant")
entered into a certain lease of premises located at the building known and
numbered as 187 Ballardvale Street, Wilmington, Massachusetts, and dated
November 21, 1996 (hereinafter referred to as "Lease"); and
WHEREAS, Landlord and Tenant now desire to amend the Lease.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged by both parties, it is agreed as follows:
1. Section I of the Lease is amended by inserting the following
language at the end of the second paragraph thereof:
"Effective September 15, 1997, the premises shall also include
approximately 4,542 square feet of net rentable area on the Second
Floor of the Building, as more particularly shown as the cross-hatched
area on Exhibit A-1 attached hereto and incorporated herein by
reference (hereinafter referred to as the "Additional Space")."
2. Section IV of the Lease is amended by inserting the following
language at the end of the first paragraph thereof:
"Effective September 15, 1997, Tenant shall pay rent with
respect to the Additional Space at the annual rental rates set forth
below:
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PER SQUARE FOOT RENTAL RATE
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September 15, 1997 - September 30, 1998 $16.50
October 1, 1998 - September 30, 2000 $17.00
October 1, 2000 - February 28, 2002 $17.50"
3. Section V(a) of the Lease is amended by inserting the following
language at the end thereof:
"Landlord shall do no work in or to the Additional Space to
prepare the same for occupancy by Tenant, it being understood and
agreed that Tenant accepts the same in their "as-is" condition. The
taking of possession of the Additional Space by Tenant shall be
conclusive evidence of the acceptance of the Additional Space by Tenant
and the Additional Space is in good and satisfactory condition, in
accordance with Landlord's obligations hereunder."
4. Section XI(c) of the Lease is amended by inserting the following
language at the end thereof:
"Effective September 15, 1997, "Tenant's Proportionate Share"
for taxes shall be eighteen and 20/100 percent (18.2%)."
5. Section XI(i) of the Lease is amended by inserting the following
language after the first sentence thereof:
"Effective September 15, 1997, "Tenant's Proportionate Share
for Operating Cost Escalation" shall be eighteen and 20/100 percent
(18.2%)."
6. Section XLIII of the Lease is amended by inserting the following
language at the end thereof:
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"Neither Landlord nor Tenant has dealt with any broker in
connection with the transaction reflected in this Second Amendment to
Lease, and each agrees to indemnify and hold the other harmless on
account of any claims or demands for a brokerage commission as a result
hereof."
7. Section XLV of the Lease is amended by inserting the following
language at the end thereof:
"On or before September 15, 1997, Tenant shall increase the
security deposit hereunder by Six Thousand Two Hundred Forty-Five
Dollars ($6,245)."
8. The Lease shall be amended by inserting the following language after
Section XLVIII thereof:
"SECTION XLIX. RIGHT OF FIRST OFFER. Provided Tenant is not in
default of its obligations hereunder, Landlord shall provide Tenant
with written notice (the "Right of First Offer Notice") if during the
term of this lease that portion of the first floor of the Building and
containing approximately 4,629 square feet of rentable area, as more
particularly shown as the cross-hatched area on Exhibit O attached
hereto and incorporated herein by reference, is or will become
available for lease (the "First Offer Premises"). The Landlord's Right
of First Offer Notice to Tenant shall set forth the premises' square
footage, availability date, term, tenant improvement allowance, if any,
and rental rate, which rental rate shall reflect the fair market rental
value for such premises which Landlord would accept from a new tenant
to lease the Premises as of the stated availability date. Tenant shall
have five (5) business days following receipt of the Right of First
Offer Notice to exercise its Right of First Offer, which Right of First
Offer shall apply only with respect to the entire premises offered, and
if Tenant shall fail to
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exercise said Right of First Officer within said five (5) business
day period, Tenant shall have waived its right to space offered and
shall have no further right pursuant to this Section XLIX to said
space for the remainder of the term of this lease, as it may be
extended. In the event Tenant accepts the offer of any space pursuant
to this Section XLIX, Landlord and Tenant shall execute an amendment to
this lease, setting forth the terms and conditions for the lease by
Tenant of the space so acquired.
"Notwithstanding the provisions of this Section XLIX, Landlord
expressly reserves the right the right to renew, extend, amend or
modify the lease of the existing tenant with respect to the First Offer
Premises as it sees fit."
9. This First Amendment to Lease is contingent upon Landlord entering
into a Lease Termination Agreement with Netcore Systems, Inc., with respect to
the Additional Space, effective September 14, 1997.
10. Except as modified hereby the Lease is hereby ratified and
affirmed.
IN WITNESS WHEREOF, the parties have set their hands and seals this
18th day of September 1997.
LANDLORD:
NEW BOSTON WILMAR
LIMITED PARTNERSHIP
By: New Boston Fund, Inc.
Its General Partner
By: /s/ Jerome L. Rappaport, Jr.
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Jerome L. Rappaport, Jr.
Its President
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TENANT:
ASCENT PEDIATRICS, INC.
By: /s/ Alan R. Fox
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Its President
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Exhibit A-1
[Diagram of floor plan of Second Floor
of 187 Ballardvale Drive, Wilmington, Massachusetts]
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