<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
COMMISSION FILE NUMBER 0-28494
MILLENNIUM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3177038
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
640 MEMORIAL DRIVE, CAMBRIDGE, MA 02139
(Address of principal executive offices, including zip code)
617-679-7000
(Registrant's telephone number, including area code)
COMMON STOCK, $.001 PAR VALUE
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No
--- ---
Number of shares of Common Stock outstanding as of May 13, 1997 was 28,739,691.
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MILLENNIUM PHARMACEUTICALS, INC.
REPORT ON FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
TABLE OF CONTENTS
-----------------
PAGE
----
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (unaudited)
Consolidated Condensed Balance Sheets
March 31, 1997 and December 31, 1996 4
Consolidated Condensed Statements of Operations
for the three months ended
March 31, 1997 and 1996 5
Consolidated Condensed Statements of Cash Flows
for the three months ended
March 31, 1997 and 1996 6
Notes to Consolidated Condensed Financial Statements 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 10
PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES 14
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 14
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SIGNATURES 16
EXHIBIT INDEX 17
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<TABLE>
Millennium Pharmaceuticals, Inc.
Consolidated Condensed Balance Sheets
<CAPTION>
MARCH 31, DECEMBER 31,
1997 1996
----------------------------------
(Unaudited) (Note)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 13,059,446 $ 10,088,302
Marketable securities 55,320,279 53,759,671
Due from strategic partners 2,187,944 5,709,870
Prepaid expenses and other current assets 2,679,787 2,512,670
----------------------------------
Total current assets 73,247,456 72,070,513
Property and equipment, net 20,500,401 15,191,277
Deposits and other assets 793,085 482,660
Intangible assets, net 10,440,015 -
----------------------------------
$ 104,980,957 $ 87,744,450
==================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,534,422 $ 2,262,458
Accrued expenses 2,234,165 1,283,782
Deferred revenue 3,680,396 3,543,002
Current portion of long-term debt 1,066,667 1,466,667
Current portion of capital lease obligations 4,330,595 3,241,507
----------------------------------
Total current liabilities 13,846,245 11,797,416
Capital lease obligations, net 9,114,113 9,308,272
Stockholders' equity:
Common Stock, $0.001 par value: 100,000,000 shares authorized;
28,742,662 shares in 1997 and 23,914,151 shares in 1996 issued and
outstanding 28,743 23,914
Additional paid-in capital 190,684,824 87,789,956
Deferred compensation (2,797,224) (2,767,846)
Notes receivable from officers (226,899) (245,242)
Unrealized gain/loss on securities (106,280) (18,318)
Accumulated deficit (105,562,565) (18,143,702)
----------------------------------
Total stockholders' equity 82,020,599 66,638,762
----------------------------------
Total liabilities and stockholders' equity $ 104,980,957 $ 87,744,450
==================================
</TABLE>
Note: The balance sheet at December 31, 1996 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements.
See notes to consolidated condensed financial statements.
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<TABLE>
Millennium Pharmaceuticals, Inc.
Consolidated Condensed Statements of Operations (Unaudited)
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
-----------------------------
<S> <C> <C>
Revenue under strategic
alliances $ 10,956,183 $ 7,558,316
Costs and expenses:
Research and development 11,599,558 6,633,649
General and administrative 3,349,542 1,265,396
Acquired in-process research
and development 83,800,000 -
Amortization of intangible assets 369,985 -
-----------------------------
99,119,085 7,899,045
-----------------------------
Loss from operations (88,162,902) (340,729)
Interest income 1,077,253 419,919
Interest expense (333,214) (221,329)
-----------------------------
Net loss $(87,418,863) $ (142,139)
=============================
Net loss per share $ (3.29) $ (0.01)
=============================
Shares used in computing net
loss per share 26,605,287 19,167,206
=============================
</TABLE>
See notes to consolidated condensed financial statements.
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<TABLE>
Millennium Pharmaceuticals, Inc.
Consolidated Condensed Statements of Cash Flows (Unaudited)
<CAPTION>
THREE MONTHS ENDED MARCH 31,
1997 1996
---------------------------------------
<S> <C> <C>
CASH PROVIDED BY (USED IN) OPERATIONS $ 1,616,127 $(1,958,368)
INVESTING ACTIVITIES
Purchase of property and equipment (4,535,522) (1,330,300)
Sale of marketable securities 19,366,621 7,711,712
Purchase of marketable securities (19,517,646) (9,522,072)
---------------------------------------
Net cash used in investing activities (4,686,547) (3,140,660)
FINANCING ACTIVITIES
Acquisition of ChemGenics, net of cash acquired 7,086,785 -
Proceeds from sale of Preferred Stock - 3,499,992
Proceeds from sale of Common Stock 51,499 633,820
Repurchase of Common Stock (1,094) (829)
Payments of long-term debt (400,000) (400,000)
Payments of capital lease obligations (695,626) (453,543)
---------------------------------------
Net cash provided by financing activities 6,041,564 3,279,440
---------------------------------------
Increase (decrease) in cash and cash equivalents 2,971,144 (1,819,588)
Cash and cash equivalents at beginning of year 10,088,302 10,586,260
---------------------------------------
Cash and cash equivalents at end of period $ 13,059,446 $ 8,766,672
=======================================
NON-CASH INVESTING AND FINANCING ACTIVITIES:
Equipment acquired under capital leases $ 0 $ 418,137
=======================================
Deferred compensation $ 0 $ 3,187,283
=======================================
Issuance of common stock for acquisition of ChemGenics $102,849,292 -
=======================================
</TABLE>
See notes to consolidated condensed financial statements.
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MILLENNIUM PHARMACEUTICALS, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
MARCH 31, 1997
(UNAUDITED)
1 - BASIS OF PRESENTATION
The accompanying consolidated condensed financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Interim results for the three-month period ended March 31, 1997
are not indicative of the results that may be expected for the year ended
December 31, 1997. For further information, refer to the financial statements
and footnotes thereto included in the Company's Annual Report on 10-K for the
fiscal year ended December 31, 1996 which was filed with the Securities Exchange
Commission on March 31, 1997.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "Earnings Per Share" (FAS 128) which simplifies the
calculation of earnings per share (EPS) and creates a standard of comparability
to the recently issued International Accounting Standard No. 33, "Earnings Per
Share". Since early application is not permitted, the Company will adopt this
standard in the fourth quarter of 1997. The pro forma earnings per share
calculations required under FAS 128 are not materially different from the net
loss per share calculations presented herein.
2 - NET LOSS PER SHARE
Net loss per share is computed using the weighted-average number of
outstanding shares of Common Stock and Common Stock equivalents, reflecting the
conversion of Series A, B, C and D Convertible Preferred Stock into Common Stock
(as of their original date of issuance), which occurred upon the closing of the
Company's initial public offering on May 7, 1996 and the exercise of stock
options and warrants (using the treasury stock method). Common Stock equivalents
are excluded from the computation when their effect is anti-dilutive; however,
pursuant to the requirements of the Securities and Exchange Commission, Common
Stock equivalent shares relating to stock options and warrants (using the
treasury stock method and an initial public offering price of $12.00 per share)
and Convertible
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Preferred Stock issued during the twelve month period prior to the initial
public offering are included for all periods prior to and including the date of
the initial public offering whether or not anti-dilutive.
3 - MERGER
On February 10, 1997, the Company acquired ChemGenics Pharmaceuticals
Inc. ("ChemGenics") for 4,783,688 shares of Common Stock at $21.50 per share for
an aggregate of approximately $103,000,000 in exchange for all outstanding
shares of common stock of ChemGenics. In addition, a principal shareholder of
ChemGenics received approximately $4,000,000 in settlement of a promissory note
and repurchase of warrants previously issued by ChemGenics, and outstanding
warrants were purchased from another shareholder of ChemGenics for approximately
$500,000. The operating results of ChemGenics have been included in the
Company's financial statements from the date of acquisition. The transaction has
been recorded as a purchase for accounting purposes. The fair value of the
issued shares has been allocated to the assets purchased and liabilities assumed
based upon their respective fair values. In connection with the acquisition, the
Company incurred a non-recurring charge of $83,800,000 for acquired in-process
research and development which was charged to operations because in management's
opinion technological feasibility for the acquired research and development had
not been established.
The following unaudited pro forma consolidated results of operations
have been prepared as if the acquisition of ChemGenics had occurred at the
beginning of 1997 and 1996:
<TABLE>
<CAPTION>
Three months ended
March 31, 1997 March 31, 1996
<S> <C> <C>
Pro Forma:
Revenues under strategic
alliances $ 11,449,000 $ 8,314,000
Net loss $(88,583,000) $(85,394,000)
Net loss per share $ (3.08) $ (3.57)
Shares used in calculating net
loss per share 28,731,000 23,951,000
</TABLE>
The pro forma net loss and net loss per share amounts for each period above
include the acquired in-process research and development charge. The pro forma
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consolidated results do not purport to be indicative of results that would have
occurred had the acquisition been in effect for the periods presented, nor do
they purport to be indicative of the results that will be obtained in the
future.
4 - SUBSEQUENT EVENT
In April 1997 the Company joined a corporate consortium to fund a
five-year research program in functional genomics at the Whitehead Institute/MIT
Center for Genome Research. The new program will advance the development of
gene-based technologies for research and healthcare.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
This Report on Form 10-Q contains forward-looking statements. For this
purpose, any statements contained herein that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
foregoing, the words "believes," "anticipates," "plans," "expects," "intends,"
and similar expressions are intended to identify forward-looking statements.
There are a number of important factors that could cause the Company's actual
results to differ materially from those indicated by such forward-looking
statements. These factors include, without limitation, the progress of the
Company's research and development programs, the Company's ability to compete
successfully, the Company's ability to attract and retain qualified personnel,
including qualified management and scientific staff, the Company's ability to
enter into and maintain collaborations with third parties, the Company's ability
to enter into and progress in clinical trials, the time and costs involved in
obtaining regulatory approvals, the costs involved in obtaining and enforcing
patents, proprietary rights and any necessary licenses, the ability of the
Company to establish, development and commercialization capacities or
relationships, the costs of manufacturing and the Company's ability to obtain
additional funds. For a more detailed discussion of these factors, see Item 7 -
"Business -- Factors Which May Affect Results" in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996, which is expressly incorporated
by reference herein.
Overview
- --------
The Company was incorporated in January 1993 and has devoted
substantially all of its resources to the development and application of
genetics, genomics and bioinformatics technology used to identify the genes
responsible for major diseases, as well as comprehensive technologies to
elucidate the role of these genes in disease initiation and progression. In
February 1997, the Company acquired ChemGenics Pharmaceuticals Inc.
("ChemGenics") for approximately 4,800,000 shares of Common Stock in exchange
for all outstanding shares of common stock of ChemGenics. ChemGenics, a drug
discovery company, applies two complementary technology platforms, Drug
Discovery Genomics and Advanced Drug Selection Technologies to key rate limiting
steps in identifying new drugs. At the time of the merger, ChemGenics had
approximately 70 employees and approximately 11,500 square feet of laboratory
and office space in Cambridge, Massachusetts. To date, all of the Company's
revenue, including revenue from ChemGenics, has resulted from payments from
strategic partners and United States government research grants. The Company has
not received any revenue from the sale of products or services.
The Company has entered into several strategic alliances: in March 1994
with Hoffmann La-Roche, Inc. ("Roche") in obesity and type II diabetes; in
October 1995 and March 1996 with Eli Lilly and Company ("Lilly") in
atherosclerosis and select areas of oncology, respectively; in December 1995
with Astra AB ("Astra") in
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inflammatory respiratory diseases; and in July 1996 with American Home Products
("AHP") in certain disorders of the central nervous system. In addition,
ChemGenics has entered into several strategic alliances: in January 1995 with
Pfizer Inc. ("Pfizer") in human fungal infections; in December 1996 with AHP in
human bacterial infections; and in May, November and December 1996 with
PerSeptive Biosystems, Inc. ("PerSeptive") where a substantial equity interest
in ChemGenics was exchanged for certain present and future rights to patents,
technology and prototype equipment. These agreements have provided the combined
Company with various combinations of equity investments, up-front and follow-on
fees and research funding and may provide certain additional payments upon the
attainment of research and regulatory milestones and royalty and/or profit
sharing payments based on sales of any products resulting from the
collaborations. Revenue recognized under these collaborations through March 31,
1997 has aggregated approximately $73,563,000.
Although the Company intends to enter into additional strategic
alliances, it also expects to incur increasing expenses and additional losses
for at least the next several years, primarily due to expansion of its research
and development programs. Payments under strategic alliance and licensing
arrangements will be subject to significant fluctuation in both timing and
amounts and, therefore, the Company's results of operations for any period may
not be comparable to the results of operations for any other period.
Results of Operations
- ---------------------
Quarters Ended March 31, 1997 and March 31, 1996
------------------------------------------------
Revenue under strategic alliances increased to $10,956,000 for the
three months ended March 31, 1997 (the "1997 Period") from $7,558,000 for the
three months ended March 31, 1996 (the "1996 Period"). The 1996 Period includes
$2,750,000 of previously deferred revenue recognized as a result of Lilly's
decision to exercise its option to enter into a strategic alliance in select
areas of oncology. Excluding this revenue, the Company had an increase of
$6,148,000 from the 1996 Period to the 1997 Period. The increase for the 1997
Period was due to several factors. The 1997 Period includes strategic alliance
revenue from AHP (central nervous systems alliance signed in July 1996) and from
Lilly (oncology alliance effective March 1996) while the 1996 Period does not.
The 1997 Period also includes strategic alliance revenue from February 10, 1997,
the effective date of the merger with ChemGenics (the "Effective Date") through
March 31, 1997, from both the Pfizer (human fungal infections) and AHP (human
bacterial infections) strategic alliances.
Research and development expenses increased to $11,599,000 for the
three months ended March 31, 1997 from $6,633,000 for the three months ended
March 31, 1996. The increase was attributable to increased payroll and personnel
expenses as the Company hired additional research and development personnel,
increased
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purchase of laboratory supplies, increased equipment depreciation and facilities
expenses in connection with the expansion of the Company's research efforts and
increased costs associated with the collection of patient information and DNA
samples. In addition, the 1997 Period includes research and development expenses
from ChemGenics from the Effective Date through March 31, 1997. With the
exception of costs associated with the collection of patient information and DNA
samples, the ChemGenics costs are similar to other costs already incurred by the
Company including, but not limited to, payroll and personnel expenses,
laboratory supplies, equipment depreciation and facilities expenses. The Company
expects research and development expenses to continue to increase as personnel
and research and development facilities are expanded to accommodate the
Company's existing strategic alliances. Such expenses will also increase to the
extent that the Company enters into additional strategic alliances with third
parties.
General and administrative expenses increased to $3,349,000 for the
three months ended March 31, 1997 from $1,265,000 for the three months ended
March 31, 1996. The increase was attributable to increased payroll and personnel
expenses as the Company hired additional management and administrative
personnel, and to professional fees in connection with the overall scale-up of
the Company's operations and business development efforts. The 1997 Period also
includes general and administrative expenses from ChemGenics from the Effective
Date through the end of the period. These expenses are similar in nature to
those already being incurred by the Company for general and administrative
matters. It is anticipated that general and administrative expenses will
continue to increase as the Company continues to expand its operations.
The Company's total operating expenses increased to $99,119,000 for the
three months ended March 31, 1997 from $7,899,000 for the three months ended
March 31, 1996. In addition to the research and development and general and
administrative expenses discussed above, the 1997 Period includes a $83,800,000
one-time charge for acquired in-process research and development associated with
the merger with ChemGenics as well as a $369,000 charge for amortization of the
intangible assets created by the merger.
Interest income increased to $1,077,000 for the three months ended
March 31, 1997 from $419,000 for the three months ended March 31, 1996 due to
increased income earned on higher balances of cash, cash equivalents and
marketable securities. Interest expense increased to $333,000 for the 1997
Period from $221,000 for the three months ended March 31, 1996 due to increased
capital lease obligations.
Liquidity and Capital Resources
- -------------------------------
The Company has financed its operations since inception primarily
through strategic alliances, private placement of equity securities, issuance of
debt, and capital
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leases. In May 1996, the Company completed an initial public offering of common
stock resulting in proceeds, net of underwriting discounts and offering costs,
of $57,103,000. Through March 31, 1997, the Company recognized approximately
$73,563,000 of revenue under strategic alliances. The private placement of
equity securities has provided the Company with aggregate gross proceeds of
approximately $25,950,000. The Company has obtained $4,000,000 in long-term
debt, $16,400,000 in capital lease financings, and $1,100,000 to finance the
build-out of an 9,000 square foot in-house animal facility. As of March 31,
1997, the Company had approximately $68,379,000 in cash, cash equivalents and
marketable securities.
The Company believes that existing cash and investment securities, and
anticipated cash flow from its current strategic alliances, will be sufficient
to support the Company's operations for at least the next 24 months. The
Company's actual future cash requirements, however, will depend on many factors,
including progress of its disease research programs, the number and breadth of
these programs, achievement of milestones under strategic alliance arrangements,
the ability of the Company to establish and maintain additional strategic
alliance and licensing arrangements, and the progress of the development efforts
of the Company's strategic partners. These factors also include the level of the
Company's activities relating to commercialization rights it has retained in its
strategic alliance arrangement, competing technological and market developments,
the costs associated with the collection of patient information and DNA samples,
the costs involved in obtaining and enforcing patent claims and other
intellectual property rights, and the costs and timing of regulatory approvals.
The Company expects that it will require significant additional financing in the
future, which it may seek to raise through public or private equity offerings,
debt financings, or additional strategic alliance and licensing arrangements. No
assurance can be given that additional financing or strategic alliance and
licensing arrangements will be available when needed or that, if available, such
financing will be obtained on terms favorable to the Company or its
stockholders. The Company's forecast of the period of time through which its
financial resources will be adequate to support its operations is
forward-looking information, and, as such, actual results may vary.
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PART II - OTHER INFORMATION
---------------------------
Item 2. Changes in Securities.
----------------------
On February 10, 1997, the Company acquired (the "Acquisition")
all of the issued capital stock of ChemGenics, by means of a merger of CPI
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the
Company (the "Transitory Subsidiary"), with and into ChemGenics. The Acquisition
took place pursuant to the terms of an Agreement and Plan of Merger, dated as of
January 20, 1997 (the "Merger Agreement"), among the Company, the Transitory
Subsidiary and ChemGenics. Under the terms of the Merger Agreement, the
stockholders of ChemGenics received an aggregate of 4,783,688 shares of the
Company's Common Stock, $.001 par value ("Millennium Common Stock") in exchange
for their capital stock. In addition, each outstanding option to purchase a
share of Common Stock, $.001 par value of ChemGenics ("ChemGenics Common Stock")
was exchanged for an option to purchase 0.2374 shares of Millennium Common Stock
at an exercise price equal to the exercise price prior to the Acquisition
divided by 0.2374. The shares of Millennium Common Stock were issued in reliance
on the private offering exemption from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") set forth in Section
4(2) of the Securities Act and Regulation D promulated thereunder. In relying on
this exemption, the Company ascertained, among other things, that the shares of
Millennium Common Stock were issued to less than 35 "accredited investors" (as
such term is defined in Regulation D) and that unaccredited investors availed
themselves of a "purchaser representative" (as such term is defined in
Regulation D).
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------
(a) Exhibits
The exhibits listed in the Exhibit Index are included in this
report.
(b) Reports on Form 8-K
(i) On February 20, 1997, the Company filed with the
Securities and Exchange Commission a Current Report on
Form 8-K reporting the acquisition of assets under Item 2
thereof.
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(ii) On April 18, 1997, the Company filed with the Securities
and Exchange Commission an Amendment No. 1 to Current
Report on Form 8-K reporting the acquisition of assets
under Item 2 thereof. The following financial statements
were filed as exhibits to such report:
1. Financial Statements of Business Acquired:
Report of Independent Public Accountants
Balance Sheets as of December 31, 1995 and 1996
Statements of Operations for the Years Ended
December 31, 1994, 1995 and 1996
Statements of Stockholders' Equity (Deficit) for
the Years Ended December 31, 1994, 1995 and
1996
Statements of Cash Flows for the Years Ended
December 31, 1994, 1995 and 1996
Notes to Financial Statements
2. Pro Forma Financial Information:
Unaudited Pro Forma Combined Condensed Balance
Sheet at December 31, 1996
Notes to Unaudited Pro Forma Combined Condensed
Balance Sheet as of December 31, 1996
Unaudited Pro Forma Combined Condensed
Statement of Operations for the year ended
December 31, 1996
Notes to Unaudited Pro Forma Combined Condensed
Statement of Operations for the year ended
December 31, 1996
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MILLENNIUM PHARMACEUTICALS, INC.
(Registrant)
Date: May 14, 1997 By:___________________________________
Steven H. Holtzman
Chief Business Officer
(Principal Financial Officer)
By:___________________________________
Peter J. Courossi
Director of Finance
(Principal Accounting Officer)
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EXHIBIT INDEX
-------------
The following exhibits are filed as part of this Quarterly Report on Form
10-Q:
Exhibit
No. Description
- ------- -----------
10.1 Lease dated March 28, 1997 by and between
the Company and Old Cambridge Property
LLC.
10.2 Subordination Non-Disturbance and
Attornment Agreement dated March 28, 1997
by and among La Salle National Bank, as
Trustee for Asset Securitization Corporation
Commercial Mortgage Pass-Through
Certificates, Series D4, Old Cambridge
Property LLC and the Company.
11.1 Statement regarding Computation of Per
Share Earnings.
27.1 Financial Data Schedule.
99.1 Pages 31 through 35 of the Company's
Annual Report on Form 10-K for the year
ended December 31, 1996, as filed with the
Securities Exchange Commission (which are
deemed filed except to the extent that
portions are not expressly incorporated by
reference herein).
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<PAGE> 1
EXHIBIT 10.1
LEASE
-----
1. PARTIES. OLD CAMBRIDGE PROPERTY LLC, a Delaware limited liability
company, ("LESSOR") which expression shall include its successors and assigns
where the context so permits, do hereby lease to MILLENNIUM PHARMACEUTICALS
INC., a Massachusetts corporation, ("LESSEE"), which expression shall include
its successors and assigns, and the LESSEE hereby leases and shall peaceably
hold and enjoy the following described premises.
2. LEASED PREMISES. On the Commencement Date, or such earlier date as
LESSEE shall take occupancy thereof, the "Leased Premises" shall consist of that
portion of the ground floor in Building No. 200 (the "Building") located at One
Kendall Square, Cambridge, Massachusetts, located in the mixed use retail and
office complex known as "One Kendall Square" (the "Complex") which ground floor
space contains seventeen thousand five hundred and thirty-two (17,532) square
feet of space, more or less, and outlined on the sketch contained in Exhibit A1
(herein called the "Leased Premises").
The Leased Premises shall have as appurtenant thereto: (a) the right to use
in common with others entitled thereto, the entrances, lobbies, hallways,
stairways, walkways, sidewalks, driveways, loading docks, elevators and other
common facilities in the Building containing any portion of the Leased Premises
and on the land constituting the Lot more particularly described in Exhibit B
hereto (herein called the "Lot") necessary for access to and enjoyment of the
Leased
1
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Premises, or portion, and (b) the pipes, conduits, wires, and appurtenant
equipment serving the Leased Premises, or portion thereof, in common with other
portions of the Building containing any part of the Leased Premises, subject,
however, to the following rights which are expressly excepted and reserved by
LESSOR: (i) the right, from time to time, to install, maintain, use, repair,
relocate, place and replace utility lines, pipes, ducts, conduits, wires, gas,
electric, or any other meters and fixtures located on or passing through any
portion of the Leased Premises to serve other portions of the LESSOR's property
of which the Leased Premises, or a portion thereof, are a part; (ii) the right
to enter into, upon and across any portion of the Leased Premises to exercise
any reserved right of LESSOR hereunder or to complete LESSOR's construction of
the Leased Premises, or part thereof, and the Building; and (iii) the right from
time to time to make alterations or additions to the Building and to construct
other buildings or improvements on the Lot and to make additions to such
buildings or improvements, and to permit others to do so from time to time all
as LESSOR may determine in its sole discretion, and without LESSEE's consent in
any instance; the exercise of any of such foregoing rights being performed to
the greatest possible extent in a manner so as not unreasonably to interfere
with the LESSEE's use and occupancy of the Leased Premises and, in any event, so
as not to materially interfere with the LESSEE's use and occupancy.
There shall be appurtenant to the Leased Premises the right but not the
obligation to park twenty five (25) passenger motor vehicles in the parking
garage appurtenant to the Lot, commonly referred to as the OKS Garage. LESSOR
reserves the right to designate the locations of the spaces to be utilized for
such parking rights by written notice to LESSEE, and to change
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the location of any or all of such spaces by notice to LESSEE at any time and
from time to time as LESSOR shall solely determine. LESSEE shall notify LESSOR
prior to the start of the month of any increase or decrease in the number of
spaces to be used. The parking spaces provided hereunder need not be contiguous.
3.1 TERM. The term (the "Term") of this Lease shall be for a period of
three (3) years following the "Commencement Date". The "Commencement Date" shall
be May 1, 1997 unless LESSEE occupies earlier for use per Paragraph 3.1.1.
below.
Upon execution of this Lease, LESSEE may occupy the Leased Premises
so that it may do required planning and work necessary for its
occupancy and use of the Leased Premises.
As soon as may be convenient after the Commencement Date has been
determined, the LESSOR and the LESSEE agree to join with each other in the
execution, in recordable form, of a written declaration in which the
Commencement Date shall be stated. LESSEE may have access to Leased Premises to
perform work upon execution of this Lease.
3.1.1 PHASED OCCUPANCY. In the event a portion of the Leased Premises are
substantially completed and ready for occupancy, and LESSOR shall have given
notice to LESSEE thereof, then LESSEE shall have the right to commence use and
occupancy of such portion of the Leased Premises subject to the terms and
conditions of this Lease. During the period of such partial use and occupancy,
Base Rent and additional rent payable under Paragraphs 4 and 5 hereof shall be
payable on a pro rata basis in the same proportion as the square footage of the
space being used and occupied bears to the total square footage of the Leased
Premises, and LESSEE shall perform, comply with and abide by all of its
obligations,
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undertakings and covenants as if, and to the same extent, as though the Term had
commenced.
3.2 COMPLETION OF IMPROVEMENTS. LESSEE acknowledges that the Leased
Premise will be delivered to LESSEE in its current "as is" condition, that
LESSEE has inspected the same and that LESSOR is not obligated to perform any
improvements or construction work preparatory to delivery to LESSEE of the
Leased Premises.
4. RENT. LESSEE covenants and agrees to pay LESSOR annual base rent
("Base Rent") in the amounts set forth or provided for below, by equal payments
of one-twelfth of such annual rate on the first day of each calendar month in
advance, the first monthly payment to be made on the Commencement Date, and by
payment in advance of a pro-rata portion of a monthly payment for any portion of
a month at the beginning or end of the Term; all payments to be made to LESSOR
or such agents, and at such places, as LESSOR shall from time to time in writing
designate.
The annual Base Rent during the Term is the sum of the following:
(i) $455,832.00, plus;
(ii) the annual fair rental value of LESSEE's parking spaces leased
in the OKS Garage, all to be reasonably determined by LESSOR ("Garage Parking")
and as the same may be adjusted from time to time.
All payments due for PARKING ONLY under (ii) above shall be remitted to
CAMBRIDGE 1400 L.P.
C/O THE ATHENAEUM GROUP, INC.
215 FIRST STREET
CAMBRIDGE, MA 02142-1268
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ALL OTHER PAYMENTS due under this Lease (including but not limited to
amounts due as Base Rent under (i) above and due under Paragraphs 5 and 6 below)
shall be remitted to:
OLD CAMBRIDGE PROPERTY LLC
P.O. BOX 414086
BOSTON, MA 02241-4086
5. RENT ADJUSTMENTS.
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5.1 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE LOT.
Commencing as of the Commencement Date and with respect to any calendar year or
any fraction of a calendar year thereafter falling within the Term, the LESSEE
shall pay to the LESSOR as additional rent, the "LESSEE's Proportionate CAO Lot
Share" (defined below) of all costs and expenses incurred by the LESSOR in
connection with the insurance, maintenance, repair, upkeep, and cleaning of
those common areas and facilities of the Lot delineated or described in Exhibit
B hereto, which LESSEE has the right to use in common with others such as but
not limited to common walkways, access ways and parking facilities and the costs
of heating and electricity, snow-plowing and snow and ice removal, trash removal
services, janitorial and security services, landscaping and lawn care services,
walkway, driveway, parking, and common entryway upkeep and paving costs, and all
other costs reasonably incurred by or for LESSOR in connection with the
insurance, maintenance and operation of the common areas and facilities of the
Lot to keep the same in safe, secure and first-class order and condition
(hereinafter called "CAO Lot").
LESSEE's Proportionate CAO Lot Share means that percentage which is equal to the
ratio of the square footage of space constituting the Leased Premises to the
aggregate square footage of space within the Complex which is completed and as
to which a Certificate of
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Occupancy has issued. As additional buildings are completed within the Complex,
LESSEE's Proportionate CAO Lot Share shall be adjusted to that percentage which
is equal to the ratio of the square footage constituting the Leased Premises to
the aggregate square footage of space within the Complex which is completed and
as to which a certificate of occupancy has issued. As of the date hereof, the
parties have agreed that LESSEE's Proportionate CAO Lot Share shall initially be
2.87% percent.
5.2 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE BUILDING.
Commencing as of the Commencement Date and with respect to any calendar year
falling within the Term, or fraction of a calendar year at the beginning or end
of the Term, the LESSEE shall pay to the LESSOR, as additional rent, the
"LESSEE's Proportionate Building Share" (defined below) of operating expenses
attributable to the Building ("CAO Building"). CAO Building shall include, but
is not limited to, the following: all costs and expenses incurred by the LESSOR
in connection with the insurance, operation, repair, maintenance and cleaning of
or for the Building and heating, plumbing, elevators, electrical
air-conditioning and other systems thereof, trash removal, janitorial services,
security systems and general expenses incurred by the LESSOR in connection with
the insurance, operation and maintenance of the Building, to keep the same in
safe, secure and first-class order and condition. The following shall be
excluded from both sets of operating expenses: (1) Costs in connection with
leasing (including legal, brokerage, TI expenses), (2) capital expenditures
under generally accepted accounting principles, (3) damage and repair costs
covered by insurance or which would have been covered by customary all-risk
policies, (4) management fees above five percent, (5) LESSOR's general overhead,
(6) payments on mortgage or ground lease, (7) depreciation, (8)
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costs reimbursable under this or other leases.
LESSEE's Proportionate Building Share shall be that percentage, which is
equal to the ratio of the square footage of space constituting the Leased
Premises to the aggregate square footage of space in the Building.
The LESSEE's Proportionate Building Share with respect to the Leased
Premises is 14.89% percent.
5.3 MONTHLY PAYMENTS. Beginning on the Commencement Date, and in
subsequent years during the Term of this Lease, the LESSEE shall pay to the
LESSOR pro rata monthly installments of amounts due under Paragraphs 5.1 and 5.2
on account of projected CAO Lot and CAO Building for such year, calculated by
the LESSOR on the basis of the best and most recent budget or data available.
Appropriate adjustments of estimated amounts shall be made between LESSOR and
LESSEE promptly after the close of each calendar year to account for actual CAO
Lot and CAO Building for such year, except that, other than after the Lease
Term, LESSOR may at its option, credit any amounts due from it to LESSEE as
provided above against any sums then due from LESSEE to LESSOR under this Lease.
The balance of any amounts due shall be paid within twenty (20) days after
written notice thereof.
5.4 RENT ADJUSTMENT - TAXES.
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5.4.1 LESSOR TO PAY TAXES. The LESSOR shall be responsible for the
payment, before the same become delinquent, of all general and special taxes of
every kind and nature, including assessments for local improvements, and other
governmental charges which may be lawfully charged, assessed or imposed (herein
collectively called the "Taxes") upon the Building and the Lot.
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If at any time during the Term the present system of ad valorem taxation of
real property shall be changed to that in lieu of the whole or any part of the
ad valorem tax on real property, there shall be assessed on LESSOR a capital
levy or other tax on the gross rents received with respect to the Lot or the
Building or a federal, state, county, municipal, or other local income,
franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based, in whole or in part, upon any such gross
rents, then any and all of such taxes, assessments, levies or charges to the
extent so measured or based, shall be deemed to be included with the term
"Taxes" but only to the extent that the same would be payable if the Lot and the
Building were the only property of LESSOR.
5.4.2 LESSEE'S SHARE OF TAXES. The LESSEE shall pay to the LESSOR, as
additional rent, the LESSEE's Proportionate Building Share of that portion of
the Taxes attributable to the Building and LESSEE's Proportionate CAO Lot Share
of that portion of the Taxes attributable to the land which constitutes the Lot.
5.4.3 RENT ADJUSTMENT - PAYMENT. Beginning on the Commencement Date, and
in subsequent years during the Term of this Lease, LESSEE shall pay to the
LESSOR monthly installments of one-twelfth of the amounts due to LESSOR under
Paragraphs 5.4.1 and 5.4.2 on account of projected Taxes for such year,
calculated by the LESSOR on the basis of the best and most recent data available
as set forth in a statement from LESSOR (and, when available, based upon the
real estate tax bill covering any such period). Appropriate adjustments of
estimated amounts shall be made between LESSOR and LESSEE promptly after LESSOR
shall have received the tax bill covering any such period (or refunded, if
applicable, after the Lease term).
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5.4.4 TAX ADJUSTMENT. If the LESSOR or any other tenant (excluding
LESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but for such construction, there shall not be included in Taxes for
purposes of this Lease the amount of such increase in Taxes unless such
additions or improvements directly benefit the LESSEE. If the LESSEE, or the
LESSOR at the direction of the LESSEE, shall construct improvements within the
Leased Premises, or any part thereof, of unusual value so as to result in an
increase in Taxes over the Taxes which would have been assessed to the Building,
or part, but for such unusually valuable improvements, the LESSEE shall be
responsible for the payment of the full amount of such increase.
6. UTILITIES AND OTHER SERVICES.
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(a) The LESSEE shall pay charges for all gas, heat,
air-conditioning and electricity, and all other utilities separately metered or
sub-metered to the Leased Premises. LESSEE shall be responsible for all utility
company deposits applicable to the supply of such services to the Leased
Premises. LESSEE shall also be responsible for the payment of its water and
sewer use and utilities not separately metered or sub-metered to the Leased
Premises all as reasonable determined by LESSOR. Upon request by the LESSOR, the
LESSEE shall provide the LESSOR with evidence of any direct payment of such
charges. LESSEE shall defend, indemnify and hold LESSOR harmless from and
against any claim or liability arising for such charges which LESSEE is
responsible for.
(b) LESSOR agrees to furnish reasonable heat and air conditioning
to the stairways, elevators and other common areas in the Building, or portions
thereof, as necessary for
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comfortable occupancy and to provide lighting to passageways and stairways and
all parking areas and walkways providing access from the Building to the parking
area in the evening during customary business hours on regular business days,
and to furnish ordinary repairs and cleaning of the common areas and facilities
of the Complex and removal of snow and ice reasonably promptly after snowfall
and ice accumulation have ended to all walkways, access ways and approaches to
the Building and the parking facility as is customary in or about similar
buildings in Cambridge. LESSOR shall not be liable to LESSEE for any
compensation or reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from the necessity of LESSOR or its agents entering the
Leased Premises, or for LESSEE's repairing the Leased Premises if such repair is
not performed by LESSOR, or for making repairs or renovations to any portion of
the Building, however the necessity may occur. In case LESSOR is prevented or
delayed from making any such repairs or alterations, or supplying the utilities
or services provided for herein, or performing any other covenant or duty to be
performed on LESSOR's part, by reason of any cause beyond LESSOR's control,
LESSOR shall not be liable to LESSEE therefor, nor shall LESSEE be entitled to
any abatement or reduction of rent by reason thereof, nor shall the same give
rise to a claim in LESSEE's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Leased Premises, or any
portion thereof except that in the event utilities are not provided to the
Leased Premises for at least ninety (90) consecutive days then LESSEE shall be
entitled to rent abatement going forward on the unusable portion of the Leased
Premises or shall have the right to terminate this Lease. LESSOR reserves the
right to stop any service or utility system, when necessary by reason of
accident or emergency, or until necessary repairs have been completed.
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(c) to the extent there are separate meters for any utilities
including heat, electricity, water and sewer, and air-conditioning, the LESSEE
shall pay its utility charges directly to the suppliers of such utility services
at least before the same become delinquent. If there are not separate meters,
then LESSEE shall pay its pro rata share of the utility cost, as billed by
LESSOR. The LESSEE and LESSOR shall have the right to audit said charges and
payments upon reasonable notice.
7. USE OF LEASED PREMISES. The LESSEE may use the Leased Premises only
for the purpose of general office use, laboratories, research and development
and accessory uses generally common to pharmaceutical research and development.
8. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof which
shall be unlawful, improper, noisy or offensive, or be contrary to any law or
ordinance in force in the City of Cambridge. LESSEE shall keep the Leased
Premises equipped with all safety appliances and shall procure and keep in force
all licenses and permits required by law or ordinance of any public authority
because of the uses made of the Leased Premises by LESSEE and shall maintain in
good condition on the Leased Premises all safety and fire protection devices
(except LESSOR being responsible to maintain in good condition the Building's
sprinkler system), required by the Board of Fire Underwriters, or other body
having similar functions, and of every insurance company and policy by which
LESSOR or LESSEE is insured. If any use of the Leased Premises results in the
cancellation of any insurances carried by LESSOR, or increases the cost thereof,
the LESSEE shall on demand reimburse the LESSOR all extra insurance premiums
incurred as a result of such use of the Leased Premises by the LESSEE. To the
best of LESSOR's knowledge,
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the Leased Premises and LESSEE's contemplated use conform with all applicable
local, state and federal laws.
9. RISK OF LOSS OF PERSONAL EFFECTS. LESSEE acknowledges and agrees
that all of the furnishings, equipment, effects and property of LESSEE and of
all persons claiming by, through or under LESSEE which may be on the Leased
Premises or elsewhere in any building in the Complex, shall be at the sole risk
and hazard of LESSEE and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by the leakage or bursting of water
pipes, steam pipes, or other pipes, by theft or from any other cause, no part of
said loss or damage is to be charged to or to be borne by LESSOR, except that
LESSOR shall in no event be indemnified or held harmless or exonerated from any
liability to LESSEE or to any other person, arising from any injury, loss,
damage or liability caused by LESSOR's negligence or wilful misconduct.
9A. INSURANCE - WAIVER OF SUBROGATION. LESSOR agrees to keep the
Building and LESSEE agrees to keep the Leased Premises, and all equipment,
machinery and fixtures therein insured in amounts equal to the actual cash value
of the same, against fire and other perils included in a standard extended
coverage endorsement, and against breakdown of boilers and other machinery and
equipment, and LESSEE agrees to procure and keep in force comprehensive general
liability insurance indemnifying LESSEE against all claims and damages for any
injury to or death of person or damage to property which may be claimed to have
occurred upon or to have been caused by activities or conditions within the
Leased Premises and indemnifying LESSOR to the extent any such claims and
demands are the responsibility or obligation of LESSEE pursuant to this Lease or
as a matter of law, in amounts not less than One
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Million ($1,000,000) Dollars for property damage, Five Hundred Thousand
($500,000) Dollars for injury or death of one person, and One Million
($1,000,000) Dollars in a single accident.
All insurance required hereunder shall be written by insurance carriers
qualified to do business and in good standing in Massachusetts and approved by
LESSOR, which approval shall not be unreasonably withheld. All policies of
insurance shall name LESSOR and LESSEE as the insured parties. Each required
policy of insurance shall provide that, notwithstanding any act or omission of
LESSEE which might otherwise result in forfeiture of said insurance: (A) it
shall not be canceled nor its coverage reduced without at least ten (10) days
prior written notice to each insured named therein, and (B) any proceeds (other
than for LESSEE's personal property insurance) shall be first payable to LESSOR
or to holder of any mortgage encumbering the Leased Premises, as their
respective interests may appear.
As of the commencement of the Term hereof, and thereafter not less than
fifteen (15) days prior to the expiration dates of the expiring policies, the
original policies to be obtained by LESSEE hereto issued by the respective
insurers or certificates thereof including photocopies of the original policies,
shall be delivered to LESSOR.
Any insurance carried by either party with respect to the Leased Premises
or property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury of loss due to
hazards covered by such insurance to the extent of the indemnification received
thereunder.
10. MAINTENANCE OF LEASED PREMISES. The LESSEE agrees to maintain
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the Leased Premises in the same condition as they are at the commencement of the
Term or as they may be put in during the Term of this Lease, reasonable wear and
tear, damage by fire, other casualty and eminent domain, and matters for which
the LESSOR is responsible hereunder only excepted, to provide its own interior
janitorial service, to install and maintain its own security system as it
considers appropriate and, whenever necessary, to replace plate glass and other
glass therein with that of the same quality as that damaged or injured. Except
that LESSEE shall maintain at its sole cost any HVAC system servicing any
laboratory space in the Leased Premises, LESSOR shall maintain and LESSEE shall
pay its proportionate share of the maintenance of the HVAC System servicing the
Leased Premises, but LESSEE shall be responsible for all repairs and
replacements to said system if the same is caused by any act or negligent
omission of LESSEE or its agents (it being agreed that LESSOR will maintain and
LESSEE shall pay its proportionate share of the costs of the two (2) 30-ton
Freidrich base building units, both model #803360-FVSXBWDTA). The LESSEE shall
not permit the Leased Premises to be overloaded, damaged, stripped, or defaced,
nor suffer any waste. LESSEE shall obtain written consent of LESSOR before
erecting any sign on or about the Leased Premises, which consent shall not be
unreasonably withheld or delayed. LESSEE further covenants and agrees: to take
all reasonably necessary actions to insure that smoke, fumes, vapors and odors
will not permeate any building containing the Leased Premises and will be
removed only through the exhaust and ventilating system servicing the Leased
Premises; to keep the Leased Premises free of pests, roaches and vermin; to keep
all trash garbage and debris stored on the Leased Premises (and not in any other
portions of the Lot or the Building) in adequate covered containers, reasonably
approved by LESSOR and placed in locations or areas as reasonably
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approved by LESSOR in writing and to arrange for the regular removal thereof
once each day; to provide for the frequent and adequate cleaning of the Leased
Premises and all walls, floors, fixtures and equipment therein consistent with
its use. LESSOR shall maintain in good condition the structural elements and the
roof of the Building, the mechanical equipment and systems in the Building
(other than such equipment and systems which are located within or exclusively
serve the Leased Premises, and other than LESSEE's maintenance obligations
otherwise provided herein), and the common areas of the Building and the
Complex. LESSEE shall pay its proportionate share for these expenses and
services as set out in Paragraph 5 above.
11. ALTERATIONS - ADDITIONS. The LESSEE shall not make structural
alterations or additions to the Leased Premises, but may make non-structural
alterations and improvements, provided the LESSOR consents thereto in advance in
writing in each instance, (provided that no consent will be needed for any
alterations less than $15,000) which consent shall not be unreasonably withheld
or delayed provided that LESSOR is furnished with detailed plans and
specifications reasonably approved by LESSOR. All such allowed alterations or
additions shall be at LESSEE's expense and shall be in quality at least equal to
the present construction. LESSEE shall not permit any mechanics' liens, or
similar liens, to remain upon the Leased Premises for labor and materials
furnished to LESSEE or claimed to have been furnished to LESSEE in connection
with the work of any character performed or claimed to have been performed at
the direction of LESSEE, and shall cause any such lien to be released of record
forthwith without cost to LESSOR. Any alterations, additions or improvements
made by the LESSEE, except for moveable partitions and furnishings, installed at
the LESSEE's cost, shall become the property of the LESSOR at the termination of
the Lease as provided herein.
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With respect to all such LESSEE work, LESSEE further agrees as follows:
that such work shall commence only after all required municipal and other
governmental permits and authorizations have been obtained (the LESSOR agreeing
to join in any application therefor at the LESSEE's expense, whenever necessary)
and all such work shall be done in a good and workmanlike manner in compliance
with building and zoning laws and with all other laws, ordinances, regulations
and requirements of all federal, state and municipal agencies, and in accordance
with the requirements and policies issued by any insurer of LESSOR or LESSEE;
that all such work shall be prosecuted with reasonable dispatch to completion;
that at all times when any such work is in progress, LESSEE shall maintain or
cause to be maintained adequate workers' compensation insurance for those
employed in connection therewith with respect to whom death or injury claims
could be asserted against LESSOR, the LESSEE or the Leased Premises and
comprehensive general liability or builder's risk insurance (for mutual benefit
of LESSEE and LESSOR) in coverages reasonably approved by LESSOR; and that such
work of LESSEE shall be coordinated with any work being performed by LESSOR and
other tenants of the building in which the work is taking place in such manner
as to maintain harmonious labor relations and not to interfere with the
operation of the Building or the Complex or the construction work of others.
12. ASSIGNMENT - SUBLETTING. The LESSEE shall not assign or sublet the
whole or any part of the Leased Premises (except to a corporate successor in the
event of a corporate merger, acquisition or sale of substantially all of
LESSEE's assets) without the LESSOR's prior written consent, which consent shall
not be unreasonably withheld or delayed. Notwithstanding such consent, LESSEE
shall remain liable to LESSOR for the payment of all
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rent and for the full performance of the covenants and conditions of this Lease
(which following assignment shall be joint and several with assignee).
12A. QUIET ENJOYMENT, COVENANT OF TITLE. The LESSEE, on paying the rent
and other charges hereunder, as and when the same shall become due and payable
and observing and performing the covenants, conditions and agreements contained
in this Lease on the part of the LESSEE to be observed and performed, all as
herein provided, shall and may lawfully, peaceably and quietly have, hold and
enjoy the Leased Premises during the Term, subject to all of the terms and
provisions hereof, without hindrance, ejection or disturbance by the LESSOR or
by any person or persons claiming by, through or under the LESSOR or by anyone
claiming paramount title.
13. SUBORDINATION.
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13.A (a) SUBORDINATION AND ATTORNMENT. This Lease is subject and
subordinate to all mortgages and superior leases, provided that such a mortgagee
or LESSEE agrees to recognize the LESSEE's rights hereunder, and, at the request
of any mortgagee or LESSOR, LESSEE shall attorn to such mortgagee or LESSOR, its
successors in interest or any purchaser in a foreclosure sale. LESSOR represents
that the only holder of a mortgage on the Leased Premises is Nomura Asset
Capital Corporation and that there is no ground LESSOR and LESSOR shall provide
LESSEE with a Subordination, Non-Disturbance and Attornment Agreement from its
mortgagee within fifteen (15) days of execution of this Lease, in form and
substance reasonably satisfactory to LESSEE or else LESSEE shall have the right
to terminate this Lease.
(b) If a LESSOR or mortgagee or any person or entity shall succeed
to the rights
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of LESSOR under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed, then at the request of the successor LESSOR and
upon such successor LESSOR's written agreement to accept LESSEE's attornment and
to recognize LESSEE's interest under this Lease, LESSEE shall be deemed to have
attorned to and recognized such successor LESSOR as the LESSOR under this Lease.
The provisions of this Article are self-operative requiring no further
instruments to give effect thereto; provided, however, LESSOR shall promptly
execute and deliver any instrument that such successor LESSOR may reasonably
request (i) evidencing such attornment, (ii) setting forth the terms and
conditions of LESSEE's tenancy, and (iii) containing such other terms and
conditions as may be required by such mortgagee or LESSOR, provided such terms
and conditions do not materially increase LESSEE's obligations or materially and
adversely affect the rights of LESSEE under this Lease. Upon such attornment
this Lease shall continue in full force and effect as a direct lease between
such successor LESSOR and LESSEE upon all of the terms, conditions and covenants
set forth in this Lease except that such successor LESSOR shall not:
(i) be liable for any act or omission of LESSOR (except to the
extent such act or omission continues beyond the date when such successor LESSOR
takes possession of the Premises or succeeds to LESSOR's interest and LESSEE
gives notice to successor LESSOR of such act or omission);
(ii) be subject to any defense, counterclaim, set-off or
offset which LESSEE may have against LESSOR;
(iii) be bound by any prepayment of more than one month's Rent
to any prior LESSOR;
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(iv) be bound by any obligation to make any payment to LESSEE
which was required to be made prior to the time such successor LESSOR succeeded
to LESSOR's interest;
(v) be bound by any obligation to perform any work or to make
improvements to the Premises except this Lease, and (y) repairs to the Premises
as a result of damage by fire or other casualty or a partial condemnation
pursuant to the provisions of this Lease, but only to the extent that such
repairs can reasonably be made from the net proceeds of any insurance or awards,
respectively, actually made available to such successor LESSOR; or
(vi) be bound by any modification, amendment or renewal of
this Lease made without successor LESSOR's consent.
13.2 MORTGAGE AND/OR SUPERIOR LEASE DEFAULTS. Any mortgagee may elect
that this Lease shall have priority over the mortgage that it holds and, upon
notification to LESSEE by such mortgagee, this Lease shall be deemed to have
priority over such mortgage, regardless of the date of this Lease.
13.3 LESSEE'S TERMINATION RIGHT. As long as any superior lease or
mortgage shall exist, LESSEE shall not seek to terminate this Lease by reason of
any act or omission of LESSOR (i) until LESSEE shall have given written notice
of such act or omission to all LESSORS and/or mortgagees whose address has been
provided to LESSEE, and (ii) until a reasonable period of time shall have
elapsed following the giving of such notice and the expiration of the LESSOR's
time within which to remedy such act or omission, during which period such
LESSORS and/or mortgagees shall have the right, but not the obligation, to
remedy such act or omission and thereafter diligently proceed to so remedy such
act or omission.
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13.4 PROVISIONS. The provisions of this Article shall (i) inure to the
benefit of LESSOR, any future owner of the Building or the Real Property, LESSOR
or mortgagee and any sublessor thereof and (ii) apply notwithstanding that, as a
matter of law, this Lease may terminate upon the termination of any such
superior lease or mortgage.
14. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
reasonable times and upon reasonable prior notice to the LESSEE, enter to view
the Leased Premises, or any part thereof and may remove placards and signs not
approved and affixed as herein provided, and make repairs and alterations which
LESSOR may deem necessary or desirable and, at LESSEE's expense, to remove any
alterations, additions, signs, or other improvements made by LESSEE, and not
consented to by LESSOR; to show the Leased Premises to others with reasonable
prior notice, in a manner so as not to unreasonably interfere with the normal
conduct of the LESSEE's business, at any time within the six (6) month period
prior to the expiration of the Term.
15. INDEMNIFICATION AND LIABILITY. The LESSEE shall defend, save
harmless and indemnify LESSOR from any claims of liability for injury, loss,
accident or damage to any person or property while on the Leased Premises, if
not due to the negligence or wilful misconduct of LESSOR, or LESSOR's employees
or agents, and to any person or property anywhere occasioned by any omission,
fault, negligence or other misconduct of LESSEE and persons for whose conduct
LESSEE is legally responsible.
16. HOLDING OVER. LESSEE agrees to pay to LESSOR one and one-half
(1-1/2) times the total of the Base Rent set forth in Paragraph 4 in effect for
the period immediately prior to LESSEE's holding over and one and one-half times
the additional rent provided for
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under this Lease then applicable for each month or portion thereof LESSEE shall
retain possession of the Leased Premises or any part thereof after the
termination of this Lease, whether by lapse of time or otherwise, and also to
pay all damages sustained by LESSOR on account thereof; the provisions of this
Paragraph shall not operate as a waiver by LESSOR of any right of re-entry
provided in this Lease.
16A. FURTHER LESSEE COVENANTS. LESSEE further covenants and agrees
during the Term and such further time as LESSEE holds any part of the Leased
Premises:
(a) to pay when due all rent and other sums herein specified,
without offset, deduction or counterclaim except as otherwise specifically
provided in this Lease;
(b) not to obstruct in any manner any portion of any building not
hereby leased or the sidewalks or approaches to such building or any inside
windows or doors;
(c) that neither the original LESSOR nor any successor LESSOR who
or which is a trustee or a partnership, nor any beneficiary or member of the
original LESSOR or any successor LESSOR nor any partner, general or limited, of
such partnership shall be personally liable under any term, condition, covenant,
obligation or agreement expressed herein or implied hereunder or for any claim
or damage or cause at law or in equity arising out of the occupancy of the
Leased Premises or the use or maintenance of the Building and LESSEE
specifically agrees to look solely to the LESSOR's interest in the Complex for
the recovery of any judgment against LESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid
within five days of when due, LESSEE shall pay to LESSOR a late charge equal to
five (5%) percent of the unpaid amount per month, or part thereof, that such
amount remains unpaid.
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17. FIRE, CASUALTY.
---------------
17. DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE."
--------------------------------------------------------
The term "substantial damage", as used herein, shall refer to damage which is of
such a character that the same cannot, in ordinary course, be expected to be
repaired within ninety (90) calendar days from the time that such repair work
would commence. Any damage which is not "substantial damage" is "partial
damage." In the event of substantial damage to the Building, the LESSOR shall
notify the LESSEE as soon as is practicable and in no event later than thirty
(30) days after such damage of LESSOR's estimated time for repair of such
damage.
17.2 PARTIAL DAMAGE TO THE BUILDING. If during the Lease Term there
shall be partial damage to the Building by fire or other casualty and if such
damage shall materially interfere with the LESSEE's use of the Leased Premises
as contemplated by this Lease, the LESSOR shall, to the extent insurance
proceeds are available to LESSOR, promptly proceed to restore the Building to
substantially the condition in which it was immediately prior to the occurrence
of such damage. Notwithstanding the foregoing, if there shall be partial damage
to the Building, and if such damage shall materially interfere with LESSEE's use
of the Leased Premises as contemplated by this Lease occurring during the last
twelve (12) months of the Lease Term of such a character that the same cannot,
in ordinary course, be expected to be repaired within thirty (30) days from the
time such repair work would begin, the LESSOR may, within ten (10) days of the
date of such damage, elect to terminate this Lease. If such election is not
made, the LESSOR shall promptly proceed with such restoration.
17.3 SUBSTANTIAL DAMAGE TO THE BUILDING. If during the Lease Term
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there shall be substantial damage to the Building by fire or other casualty and
if such damage shall materially interfere with the LESSEE's use of the Leased
Premises as contemplated by this Lease, the LESSOR shall, to the extent
insurance proceeds are available to LESSOR, promptly restore the Building to an
architectural unit that is not less suitable than that which existed prior to
such fire or casualty, unless the LESSOR or the LESSEE, within forty-five (45)
days after the occurrence of such damage, shall give notice to the other of its
election to terminate this Lease. If at any time during such forty-five (45) day
period the LESSOR notifies the LESSEE of its intention to restore the Building,
the LESSEE must then give notice to the LESSOR, within ten (10) days of its
receipt of the LESSOR's notice of intention to restore the Building, as to
whether the LESSEE will elect to terminate the Lease. Should the LESSEE fail to
elect to terminate the Lease within such ten (10) day period, the LESSEE's right
to terminate under this Paragraph 17.3 shall expire. If the LESSOR proceeds with
the restoration of the Building and if such damage shall not have been repaired
to the extent necessary for the LESSEE to resume its normal business operations
at the Leased Premises by the end of the 180th day following the date of such
fire or casualty, or if the LESSOR shall fail diligently to cause such repair
and restoration work to be performed, then the LESSEE may, at any time
thereafter while the damage remains unrepaired, terminate this Lease upon notice
to the LESSOR. If the LESSOR or the LESSEE shall give such notice of
termination, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally established
as the expiration date hereof.
17.4 ABATEMENT OF RENT. If during the Lease Term the Building shall be
damaged by fire or casualty and if such damage shall materially interfere with
the LESSEE's use
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of the Leased Premises as contemplated by this Lease, a just proportionate
amount of the rent and other charges payable by the LESSEE hereunder shall abate
proportionately for the period in which, by reason of such damage, there is such
interference with the LESSEE's use of the Leased Premises.
17A. EMINENT DOMAIN. If the Building is totally taken by condemnation or
right of eminent domain, this Lease shall terminate as of the date of such
taking. If the Building, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable in the circumstances) physically
unsuitable in the LESSEE's reasonable judgment for the LESSEE's purposes, shall
be taken by condemnation or right of eminent domain (including a temporary
taking in excess of 180 days), the LESSEE or the LESSOR shall have the right to
terminate this Lease by notice to the other of its desire to do so, provided
that such notice is given not later than ten (10) days after the LESSEE has been
deprived of possession.
Should any part of the Building be so taken or condemned or receive such
damage and should this Lease not be terminated in accordance with the foregoing
provisions, the LESSOR shall, to the extent condemnation proceeds are available
to LESSOR, promptly restore the Leased Premises to an architectural unit that is
suitable to the uses of the LESSEE permitted hereunder.
In the event of a taking described in this Paragraph 17A, the rent and
other charges payable hereunder, or a fair and just proportion thereof according
to the nature and extent of the loss of use shall be suspended or abated.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which
the LESSEE may have for damages or injury to the Leased Premises for any taking
by eminent domain, except for damage to the LESSEE's trade fixtures, personal
property or equipment, if
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any, the LESSEE's right to relocation expenses, if any, and the LESSEE's right
for business interruption, if any.
18. DEFAULT AND BANKRUPTCY. In the event that:
(a) The LESSEE, or any guarantor of LESSEE's obligations hereunder,
shall default in the payment of any installment of rent or other sum herein
specified for more than five days after such payment is due provided that LESSOR
shall be required to notify LESSEE in writing of any default in the payment of
amounts due but this requirement of providing written notice shall be for one
(1) written notice in any twelve- (12) month period; or
(b) The LESSEE shall default in the observance or performance of
the LESSEE's covenants, agreements, or obligations hereunder (except as provided
in Paragraph 18(a) above) and the LESSEE shall not cure such default within
thirty (30) days after written notice thereof or if such default cannot be cured
within thirty (30) days, then if LESSEE shall not commence to cure the same
within thirty (30) days and diligently pursue the curing of the same; or
(c) LESSEE makes any assignment for the benefit of creditors,
commits any act of bankruptcy or files a petition under any bankruptcy or
insolvency law; or if such a petition is filed against LESSEE and is not
dismissed within ninety (90) days; or if a receiver or similar officer becomes
entitled to LESSEE's leasehold hereunder and it is not returned to LESSEE within
ninety (90) days, or if such leasehold is taken on execution or other process of
law in any action against LESSEE;
then in any such case the LESSOR shall have the right thereafter, while
such default continues, to re-enter and take complete possession of the Leased
Premises, to declare the Term of this Lease ended, and remove the LESSEE's
effects at LESSEE's sole cost and expense,
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without prejudice to any remedies which might be otherwise used for arrears of
rent or other default. The LESSEE shall indemnify the LESSOR against all loss
and reasonable payment of rent and other payments which LESSOR may incur by
reason of such termination during the residue of the Term. In the event of
default, LESSOR shall use its reasonable efforts to re-let the Leased Premises
so as to mitigate any damages to the LESSEE hereunder. If LESSOR re-lets the
Leased Premises, LESSEE may offset its payable rent by the amount of rent
received by LESSOR.
If the LESSEE shall default, after written notice thereof as provided
herein, in the observance or performance of any conditions or covenants on its
part to be observed or performed under or by virtue of any of the provisions of
this Lease and after the expiration of any period within which the LESSEE is
entitled to cure such default as is provided above in this Paragraph 18, the
LESSOR, without being under any obligation to do so and without thereby waiving
such default, may remedy such default for the account and at the expense of the
LESSEE. If the LESSOR makes any expenditures or incurs any obligations for the
payment of money in connection therewith, including, but not limited to,
reasonable attorney's fees (except for unsuccessful suits against the LESSEE) in
instituting, prosecuting or defending any action or proceeding, such sums paid
or obligations incurred, with interest at the rate of twelve (12%) percent per
annum and costs, shall be paid to the LESSOR by the LESSEE as additional rent.
Nothing contained in this Lease shall limit or prejudice the right of
LESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which the damages are to be claimed or proved,
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whether or not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.
18A. DEFAULT OF LANDLORD AND MORTGAGEE RIGHTS. LESSOR shall in no event
be in default in the performance of any of LESSOR's obligations hereunder unless
and until LESSOR shall have failed to perform such obligations within thirty
(30) days, or such additional time as is reasonably required to correct any such
default, after receipt of written notice by LESSEE to LESSOR properly specifying
wherein LESSOR has failed to perform any such obligation. LESSEE agrees to give
any mortgagee, by registered mail, a copy of any notice of default served upon
the LESSOR, provided that prior to such notice the LESSEE has been notified in
writing of the identity and address (by way of Notice of Assignment of Rents and
Leases, or otherwise) of the address of such mortgagee. The LESSEE further
agrees that if the LESSOR shall have failed to cure such default within the time
provided for in this Lease, then the mortgagee shall have an additional sixty
(60) days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if within sixty
(60) days the mortgagee has commenced and is diligently pursuing the remedies
necessary to cure such default (including but not limited to commencement of
foreclosure proceedings, if necessary to effect such cure) in which event this
Lease shall not be terminated while such remedies are being so diligently
pursued.
18B. BANKRUPTCY OR INSOLVENCY.
-------------------------
(a) LESSEE'S INTEREST NOT TRANSFERABLE. Neither LESSEE's interest
in this Lease nor any estate hereby created in LESSEE nor any interest herein or
therein shall pass to any trustee, except as may specifically be provided
pursuant to the Bankruptcy Code (11 USC Sec.
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101 et seq.) or to any receiver or assignee for the benefit of creditors or
otherwise by operation of law.
(b) TERMINATION OF LEASE. Notwithstanding anything to the contrary
contained in this Lease, in the event the interest or estate created in LESSEE
hereby shall be taken in execution or by other process of law or if LESSEE or
LESSEE's executors, administrators or assigns, if any, shall be adjudicated
insolvent or bankrupt pursuant to the provisions of any state law or an order
for the relief of such entity shall be entered pursuant to the Bankruptcy Code,
or if a receiver or trustee of the property of LESSEE shall be appointed by
reason of the insolvency or inability of LESSEE to pay its debits or if any
assignment shall be made of the property of LESSEE or LESSEE's guarantor, if
any, for the benefit of creditors, then and in any such events this Lease and
all rights of LESSEE hereunder shall automatically cease and terminate with the
same force and effect as though the date of such event were the date originally
established herein and fixed for the expiration of the Term and LESSEE shall
vacate and surrender the Leased Premises but shall remain liable as herein
provided.
(c) LESSEE'S OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. LESSEE
shall not cause or give cause for the appointment of a trustee or receiver of
the assets of LESSEE and shall not make any assignment for the benefit of
creditors or become or be adjudicated insolvent. The allowance of any petition
under any insolvency law, except under the Bankruptcy Code or the appointment of
a trustee or receiver of LESSEE or LESSEE's guarantor, if any, or of the assets
of either of them, shall be conclusive evidence that LESSEE caused or gave cause
therefor, unless such allowance of the petition or the appointment of a trustee
or receiver is vacated within ninety (90) days after such allowance or
appointment. Any act described in this Paragraph shall
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be deemed a material breach of LESSEE's obligations hereunder and this Lease
shall thereupon automatically terminate. LESSEE does, in addition, reserve any
or all other remedies provided in this Lease or in law.
(d) RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. Upon the
filing of a petition by or against LESSEE under the Bankruptcy Code, LESSEE, as
debtor and as debtor-in- possession, and any trustee who may be appointed agree
as follows: (i) to perform each and every obligation of LESSEE under this Lease
including, but not limited to, the manner of operation of this Lease including,
but not limited to the manner of operation of this Lease, until such time as
this Lease is either rejected or assumed by order of the United States
Bankruptcy Court; (ii) to pay monthly, in advance on the first day of each
month, as reasonable compensation for use and occupancy of the Leased Premises,
an amount equal to all fixed annual Base Rent, additional rent and other charges
otherwise due pursuant to this Lease; (iii) to reject or assume this Lease
within sixty (60) days of the appointment of such trustee under Chapter 7 of the
Bankruptcy Code or within one hundred twenty (120) days (or such shorter Term as
LESSOR, in its sole discretion, may deem reasonable, so long as notice of such
period is given) of the filing of a petition under any other chapter; (iv) to
give LESSOR at least forty-five (45) days prior written notice of any proceeding
relating to any assumption of this Lease; (v) to give at least thirty (30) days'
prior written notice of any abandonment of the Leased Premises, with any such
abandonment to be deemed a rejection of this Lease and an abandonment of any
property not previously removed from the Leased Premises; (vi) to do all other
things of benefit to LESSOR otherwise required under the Bankruptcy Code; (vii)
to be deemed to have rejected this Lease in the event of the failure to comply
with any of the above; and (viii) to have consent to the entry of an order by an
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appropriate United States Bankruptcy Court providing all of the above, waiving
notice and hearing of the entry of same.
No default of this Lease by LESSEE, either prior to or subsequent to the
filing of such a petition, shall be deemed to have been waived unless expressly
done so in writing by LESSOR.
Included within and in addition to any other conditions or obligations
imposed upon LESSEE or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption and/or assignment; (ii) the deposit of an additional
sum equal to three (3) months' rent to be held as a security deposit; (iii) the
use of the Leased Premises as set forth in the Paragraph 7 of this Lease; (iv)
the payment of any sums which may then be due or which may thereafter become due
under the provisions of this Lease; (v) the debtor, debtor-in-possession,
trustee or assignee of such entity demonstrates in writing that it has
sufficient background, including, but not limited to, substantial commercial
experience in buildings of comparable size and financial ability to operate a
commercial establishment out of the Leased Premises in the manner contemplated
in this Lease, and meets all other reasonable criteria of LESSOR as did LESSEE
upon execution of this Lease; (vi) the prior written consent of any mortgagee to
which this Lease has been assigned as collateral security; and (vii) the Leased
Premises at all times remains a single store (if retail) and no physical changes
of any kind may be made to the Leased Premises unless in compliance with the
applicable provisions of this Lease.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the
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obligations arising under this Lease on and after the date of such assignment.
Any such assignee shall, upon demand, execute and deliver to LESSOR an
instrument confirming such assumption in accordance with the terms of Paragraph
21 hereof.
19. RULES AND REGULATIONS. The LESSOR shall have the right to institute
and to change from time to time, reasonable rules and regulations for the use of
the Building and the Lot by commercial retail lessees, which shall be reasonable
in all instances and shall be uniformly applicable to all commercial lessees in
the Building and the LESSEE agrees to abide thereby.
19A. PARAGRAPH HEADINGS. The paragraph headings throughout this
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
20. BROKER. The LESSOR and LESSEE each represent and warrant to the
other that each has had no dealings with any Brokers concerning this Lease,
except Robert A. Jones & Company, Meredith and Grew Incorporated, and Lynch,
Murphy, Walsh and Partners, and each party agrees to indemnify and hold the
other harmless for any damages occasioned to the other by reason of a breach of
this representation and warranty. LESSOR shall be responsible for payment of a
commission to such brokers (as determined by LESSEE).
21. ESTOPPEL CERTIFICATE. LESSOR and LESSEE each agree at any time from
time to time, upon not less than ten (10) days' prior notice to execute,
acknowledge and deliver to the other, a statement in writing, certifying to the
extent possible that this Lease is unmodified and in full force and effect, or
if there have been modifications, that the same is in
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full force and effect as modified and stating such modifications, and otherwise
certifying if there exists any default under the terms of this Lease and such
other information as may be reasonably requested concerning this Lease by the
other party or any other third party with a bona fide interest. Should either
party fail to deliver to the other party any such statement within ten (10) days
of receipt of a written notice requesting any such statement, the party failing
to deliver any such statement shall pay to the requesting party, the sum of Five
Hundred ($500.00) Dollars per day (as liquidated damages and not as a penalty),
for each day after such tenth (10th) day during which such failure continues.
22. NOTICE. Any notice from the LESSOR to the LESSEE relating to the
Leased Premises or to the occupancy thereof shall be deemed duly served, if in
writing and mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE,
MILLENNIUM PHARMACEUTICALS INC.
640 MEMORIAL DRIVE
CAMBRIDGE, MA 02139
Any notice from the LESSEE to the LESSOR relating to the Leased Premises or
to the occupancy thereof, shall be deemed duly served, if in writing and mailed
to the LESSOR by registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSOR at such address as the LESSOR may from time to
time advise in writing, the following now being designated:
OLD CAMBRIDGE PROPERTY LLC
C/O THE ATHENAEUM GROUP
215 FIRST STREET
CAMBRIDGE, MA 02142-1268
23. SURRENDER. The LESSEE shall at the expiration or other termination
of this
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Lease yield up and peaceably surrender all portions of the Leased Premises to
LESSOR and shall remove all LESSEE's goods and effects therefrom (including,
without hereby limiting the generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or outside the Leased Premises).
LESSEE shall deliver to the LESSOR the Leased Premises and all keys, locks
thereto, and all fixtures, alterations and additions and additions made to or
upon the Leased Premises, in the same condition as they were at the commencement
of the Term, or as they were put in during the Term hereof, reasonable wear and
tear and damage by fire, other casualty or eminent domain and matters for which
the LESSOR is responsible hereunder only excepted. In the event of the LESSEE's
failure to remove any of the LESSEE's property from the Leased Premises, LESSOR
is hereby authorized, upon fifteen (15) days' written notice to the LESSEE
without liability to LESSEE for loss or damage thereto, and at the sole risk of
LESSEE, to remove store and/or sell any of the property at LESSEE's sole cost
and expense.
24. OPTION TO EXTEND. If the LESSEE is not then in default, LESSOR does
hereby grant to LESSEE the option to extend this Lease for one (1) additional
two (2) year term ("First Extended Term"), commencing on the expiration of the
Initial Term upon the same terms and conditions as herein contained except the
annual Base Rent set forth in Paragraph 4 hereof shall be at the rate set forth
below. The option shall be exercised by written notice from LESSEE and received
by LESSOR at least six (6) months prior to the expiration of the Initial Term.
The annual Base Rent for the First Extended Term shall be adjusted at the
commencement of the FIRST Extended Term and shall be $420,768.00. If the LESSEE
is not then in default, LESSOR does hereby grant to LESSEE the option to extend
this Lease for an additional five- (5) year term ("Second Extended Term")
commencing on the expiration of the First Extended Term upon the
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same terms and conditions as herein contained except the annual Base Rent set
forth in Paragraph 4 hereof shall be at the rate set forth below. The option
shall be exercised by written notice from LESSEE and received by LESSOR at least
six (6) months prior but not more than eight (8) months' prior to the expiration
of the First Extended Term. The annual rent for the Second Extended Term shall
be ninety-five (95%) percent times the then-determined fair market rental value
of the Leased Premises based on the Leased Premises, for a lease having a
five-year term, commencing as of the end of the then-current Term, on the terms
and conditions of this Lease but in no event shall the Base Rent be less than
the Base Rent during the First Extended Term. LESSOR shall give LESSEE written
notice of the fair market rental value, as reasonably determined by LESSOR,
within ten business days after receiving LESSEE's notice exercising its option
to extend the Term. If the LESSEE is dissatisfied with the fair market rental
value as determined by LESSOR, and the LESSOR and LESSEE are unable to mutually
agree upon a fair market rental value, then LESSEE and LESSOR shall, each,
within thirty (30) days after LESSOR's notice of fair market rental value,
designate a real estate appraiser registered in Massachusetts to determine the
fair market rental value of the Leased Premises. If such two appraisers do not
agree upon such value within sixty (60) days after such notice from LESSEE, such
two appraisers shall designate a third real estate appraiser registered in
Massachusetts before the end of such sixty- (60) day period. Such third
appraiser shall determine the fair market rental value of the Leased Premises by
selecting the valuation of one of the first two appraisers that more accurately
reflects the fair market rental value of the Leased Premises. The third
appraiser shall make such determination within seventy-five (75) days after the
date of LESSEE's notice exercising its option to extend. LESSOR and LESSEE shall
each pay the fees
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of its own appraiser and half of the fees of the third appraiser.
25. SECURITY DEPOSIT. Upon execution of the Lease, LESSEE shall deposit
Thirty-seven thousand nine hundred and eighty-six ($37,986.00) dollars with the
LESSOR as security for LESSEE's payment of rent and performance of its other
obligations under this Lease and any renewals or extensions of this Lease. If
LESSEE defaults in its payment of rent or performance of its other obligations
under this Lease, LESSOR may use all or part of the security deposit for the
payment of rent or any other amount in default, or for the payment of any other
amount that LESSOR may spend or become obligated to spend by reason of LESSEE's
default, or for the payment to LESSOR or any other loss or damage that LESSOR
may suffer by reason of LESSEE's default. If LESSOR so uses any portion of the
security deposit, LESSEE will restore the security deposit to its original
amount within five (5) days after written demand from LESSOR. The security
deposit will not be a limitation on LESSOR's damages or other rights under this
Lease, or a payment of liquidated damages, or an advance of the rent. LESSOR
will return the unused portion of the security deposit to LESSEE within thirty
(30) days after the end of the term or such earlier time as provided for
hereunder; however, if LESSOR has evidence that the security deposit has been
assigned to an assignee of the Lease, LESSOR will return the security deposit to
the assignee. LESSOR shall deliver the security deposit to a purchaser of the
premises and be discharged from further liability with respect to it.
26. HAZARDOUS WASTE INDEMNITY. LESSEE hereby agrees to indemnify and
hold LESSOR harmless from any against any and all demands, claims, actions,
losses, damages and liabilities (the "Claims"), which may be imposed on,
asserted against or incurred by LESSOR arising from or out of LESSEE's use and
occupancy of the demised premises,
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including, without limitation, any and all liabilities pertaining to any present
or future use (within the term of this Lease) in violation of any Federal,
state, local or other laws, relating to pollution or protection of the
environment, including, without limitation, laws relating to emissions,
discharges releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes.
If any actions or proceeding is brought against LESSOR by reason of any
claim, LESSEE, upon notice from LESSOR, shall defend such action or proceeding
by counsel reasonably satisfactory to LESSOR, and LESSEE shall pay all
reasonable expenses incurred in connection with defending against such action or
proceeding. LESSOR represents to LESSEE that to the best of its knowledge there
are no material violations of current environmental laws at the Building or
Leased Premises.
27. MISCELLANEOUS.
--------------
(a) LESSEE shall submit annual financial statements to the LESSOR
including statements of cash flow. If the LESSEE is a publicly traded
corporation it shall supply LESSOR, on a quarterly basis, with its 10Q filings.
(b) The LESSOR reserves the right to assign or transfer any and all
of its right, title and interest under the Lease, including but not limited to
the benefit of all covenants of the LESSEE hereunder. Notwithstanding anything
contained in this Lease to the contrary, it is
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<PAGE> 37
specifically understood and agreed that the obligations imposed upon the LESSOR
hereunder shall be binding upon the LESSOR's and LESSOR's successors in interest
only with respect to breaches occurring during LESSOR's and LESSOR's successors'
ownership of LESSOR's interest hereunder and LESSOR and its said successors in
interest shall not be liable for acts and occurrences arising from and after the
transfer of their interest as LESSOR hereunder.
(c) This Lease shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, as the same may from time to
time exist.
(d) This Lease contains all of the agreements of the parties with
respect to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the parties contained in this Lease shall not be modified or
amended unless such modification or amendment is in writing and signed by the
parties.
(e) The LESSEE acknowledges that LESSEE has not been influenced to
enter into this Lease nor has it relied upon any warranties or representations
not set forth or incorporated in this Lease or previously made in writing.
37
<PAGE> 38
IN WITNESS WHEREOF, the LESSOR and LESSEE have hereunto set their hands and
common seals this 28th day of March, 1997.
LESSOR:
OLD CAMBRIDGE PROPERTY LLC
BY: /s/ Allan R. Jones /s/ Rosalie M. Famolau
--------------------------------- ---------------------------
NAME: ALLAN R. JONES WITNESS
OFFICE: PRESIDENT
CAMBRIDGE F.A. INC.
MANAGING MEMBER
LESSEE:
MILLENNIUM PHARMACEUTICALS INC.
BY: /s/ Mark Levin /s/ James Burke
--------------------------------- ---------------------------
NAME: Mark Levin WITNESS
OFFICE: PRESIDENT
HEREUNTO DULY AUTHORIZED
BY: /s/ Peter Courossi /s/ James Burke
--------------------------------- ---------------------------
NAME: Peter Courossi WITNESS
OFFICE: TREASURER
HEREUNTO DULY AUTHORIZED
38
<PAGE> 39
ONE KENDALL SQUARE
[LOGO] 17,532 RENTABLE SQUARE FEET
AVAILABLE IMMEDIATELY FOR LEASE
FIRST CLASS LABORATORY/BIOTECH/RESEARCH SPACE
[FLOOR PLAN OF ONE KENDALL SQUARE]
Building 200
Ground Floor 17,532 RSF
<TABLE>
<CAPTION>
<S> <C>
LOCATION: FEATURES:
One Kendall Square / / General research includes multiple chemical
Building 200 fume hoods, full utility supply, two walk-in cold rooms
Cambridge, MA ample bench space, access to covered loading.
ONE KENDALL SQUARE FEATURES: / / Animal suite with independent ventilation, surgery,
wash and storage capacities.
/ / Seven Restaurants / / Tissue suite includes NMR, clean and dark rooms,
independent ventilation, and glasswash/sterilization
facilities.
/ / Goldwyn/Landmark's Nice-Screen Kendall Square
Cinema
/ / Bright Horizons Day Care Center / / Large office areas include conference/board room
lunch room with outdoor terrace and ample glass wall
partitioning.
/ / 1500 Car Parking Garage
/ / Assorted Retail Shops Including / / Lab/research neighbors include Genzyme
Mail Boxes Etc. and Sir Speedy Printers. Corporation, Whitehead Institute Human Genome
Project, CNS Research, Shriners Hospitals, Exelixis
Myco Pharmaceuticals and others.
</TABLE>
Owner and Leasing Agent:
The Athenaeum Group
215 First Street
Cambridge, MA 02142
For More Information
Or A Tour Contact:
Allan Jones
617 492-2155
fax: 617 492-3729
<PAGE> 40
EXHIBIT B
"THE LOT"
[MAP OF KENDALL SQUARE]
ONE KENDALL SQUARE MASTER PLAN
CAMBRIDGE, MASSACHUSETTS SEPTEMBER 1997
<PAGE> 1
EXHIBIT 10.2
SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT
------------------------------------------------------
This AGREEMENT is made and entered into as of March 28, 1997, by and among
LaSalle National Bank, AS TRUSTEE FOR Asset Securitization Corporation
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES D4 ("Lender"), OLD
CAMBRIDGE PROPERTY LLC ("Landlord") and MILLENNIUM PHARMACEUTICALS INC.
("Tenant").
1. RECITALS.
---------
1.1 MORTGAGE. Lender is the holder of a Promissory Note dated
December 27, 1996, in the original principal amount of $69,700,000 of Landlord,
which is secured, inter alia, by a Mortgage and Security Agreement (the
"Mortgage") and Assignment of Lease and Rents (the "Lease Assignment") covering
premises more particularly described in the Mortgage (the "Premises").
1.2 LEASE. Landlord and Tenant entered into a Lease dated March 28,
1997, (the "Lease"), whereby Landlord demised to Tenant a portion of the
Premises (the "Demised Premises").
2. CONSIDERATION. The terms of the Lease constitute a material inducement
to Lender's consent thereto and entering into and performing this Agreement.
3. SUBORDINATION OF THE LEASE. Subject to the terms hereof, this Lease
shall be and is hereby made subject and subordinate to the Mortgage.
4. NON-DISTURBANCE. Lender shall not, in the exercise of any right,
remedy, or privilege granted by the Mortgage or the Lease Assignment, or
otherwise available to Lender at law or in equity, disturb Tenant's possession
or rights under the Lease so long as:
(a) Tenant is not in default beyond applicable notice and cure
periods under any provision of the Lease or this Agreement at the
time Lender exercises any such right, remedy or privilege; and
(b) The Lease at that time is in force and effect according to its
original terms, or with such amendments or modifications as
Lender shall have approved, if such approval is required by the
terms of the Mortgage or the Lease Assignment; and
(c) Tenant thereafter continues to fully and punctually perform all
of its obligations under the Lease without default thereunder
beyond any applicable cure period; and
<PAGE> 2
(d) Tenant attorns to or at the direction of Lender, as provided in
Paragraph 5.
Without limiting the foregoing, and so long as the foregoing conditions are met,
Lender agrees that (i) Tenant will not be named as a party to any foreclosure or
other proceeding instituted by Lender to enforce the terms of the Mortgage or
the Lease Assignment; (ii) any sale or other transfer of the Demised Premises or
of the Landlord's interest in the Lease, pursuant to foreclosure or any
voluntary conveyance or other proceeding in lieu of foreclosure, will be subject
and subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in force and effect according to its original term, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Mortgage or the Lease Assignment.
5. ATTORNMENT. Tenant shall attorn to Lender, to any receiver or similar
official for the Demised Premises appointed at the instance and request, or with
the consent, of Lender and to any person who acquires the Demised Premises, or
the Landlord's interest in the Lease, or both, pursuant to Lender's exercise of
any right, remedy or privilege granted by the Mortgage, or otherwise at law or
in equity. Without limitation, Tenant shall attorn to any person or entity that
acquired the Demised Premises pursuant to foreclosure of the Mortgage, or by any
proceeding or voluntary conveyance in lieu of such foreclosure, or from Lender,
whether by sale, exchange or otherwise. Any attornment to anyone other than
Lender shall be conditioned upon Tenant receiving a non-disturbance from such
entity.
Upon any attornment under this Paragraph 5, the Lease shall continue in
full force and effect as a direct lease between Tenant and the person or entity
to whom Tenant attorns, except that such person or entity shall not be:
(i) liable for any breach, act or omission of any prior landlord
(except to the extent continuing during such person's
ownership); or
(ii) subject to any offsets, claims or defenses which Tenant might
have against any prior landlord; or
(iii) bound by any rent or additional rent or other payment in lieu of
rent which Tenant might have paid to any prior landlord more
than 30 days in advance of its due date under the Lease or which
such person or entity has physical possession of; or
(iv) bound by any amendment or modification of the Lease made without
Lender's written consent, where such consent is required by the
Mortgage; or
2
<PAGE> 3
(v) bound by any notice given by Tenant to Landlord, whether or not
such notice is given pursuant to the terms of the Lease, unless a
copy thereof was then also given to Lender; or
(vi) be liable for any security deposit or other sums held by any
prior landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
6. REPRESENTATIONS AND WARRANTIES.
-------------------------------
6.1 JOINT AND SEVERAL. Landlord and Tenant hereby jointly and
severally represent and warrant to Lender as follows regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all riders and
exhibits thereto) is attached to the counterpart of this
Agreement being delivered to Lender. There are no other oral or
written agreements, understandings or the like between Landlord
and Tenant relating to the Demised Premises or the Lease
transaction.
(b) Under the Lease, upon occupancy, Tenant will be obligated to pay
base rent without present right of defense or offset, at the rate
of $37,986.00 per month. No rent has been paid more than 30 days
in advance, and Tenant has no claim against the Landlord for any
deposits or other sums (other than the security deposit).
(c) The Lease has not been modified, altered or amended in any
respect.
(d) The addresses for notices to be sent to Tenant and Landlord are
as set forth in the Lease.
(d) To Tenant's knowledge, Tenant has no right of first refusal,
option or other right to purchase the Premises or any part
thereof, including, without limitation, the Demised Premises.
6.2 SEVERAL. Landlord and Tenant severally represent and warrant to
Lender with respect to themselves, but not with respect to the other.
(a) The execution of the Lease was duly authorized, the Lease was
properly executed and is in full force and effect and is valid,
binding and
3
<PAGE> 4
enforceable against Tenant and Landlord and there exists no
default, nor state of facts which with notice, the passage of
time, or both, could ripen into a default, on the part of either
Tenant or Landlord.
(b) There has not been filed by or against nor, to the best of the
knowledge and belief of the representing party, is there
threatened against or contemplated by, Landlord or Tenant, a
petition in bankruptcy, voluntary or otherwise, any assignment
for the benefit of creditors, any petition seeking reorganization
or arrangement under the bankruptcy laws of the United States or
of any state thereof, or any other action brought under said
bankruptcy laws.
(c) There has not been any assignment, hypothecation or pledge of the
Lease or rents accruing under the Lease, other than pursuant to
the Mortgage and the Lease Assignment. Tenant makes the
representation set forth in this subparagraph only to its best
knowledge and belief.
7. RENTS. Landlord and Tenant jointly and severally acknowledge that the
Lease Assignment provides for the direct payment to Lender of all rents and
other monies due and to become due to Landlord under the Lease upon the
occurrence of certain conditions as set forth in the Lease Assignment without
Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all payment so made, and shall
defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, or liabilities asserted by, through or under Landlord (except
by Lender) for any and all payments so made. Upon receipt of such notice, Tenant
thereafter shall pay all monies then due and becoming due from Tenant under the
Lease to or at the direction of Lender, notwithstanding any provision of the
Lease to the contrary. Tenant agrees that neither Lender's demanding or
receiving any such payments, nor Lender's exercising any other right, remedy,
privilege, power or immunity granted by the Mortgage or the Lease Assignment,
will operate to impose any liability upon Lender for performance of any
obligation of Landlord under the Lease unless and until Lender elects otherwise
in writing or takes possession of the Premises. Such payments shall continue
until Lender directs Tenant otherwise in writing.
Tenant agrees not to pay any rent under the Lease more than 30 days in
advance without Lender's consent. The provisions of this Paragraph 7 will apply
from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease or offset,
withhold or abate rents because of any default by Landlord, then Tenant shall
give Lender written notice specifying Landlord's default. Lender then shall have
the right, but not the obligation, to cure the
4
<PAGE> 5
specified default within the following time periods:
(a) Fifteen days after receipt of such notice with respect to
defaults that can be cured by the payment of money; or
(b) Thirty days after receipt of such notice with respect to any
other default; unless the cure requires Lender to obtain
possession of the Demised Premises, in which case such thirty day
period shall not commence until Lender acquires possession, so
long as Lender proceeds promptly to acquire possession of the
Demised Premises with due diligence, by foreclosure of the
Mortgage or otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are cured. Possession by a receiver, or other similar
official appointed at the instance, or with the consent, of Lender shall
constitute possession by Lender for all purposes under this Paragraph 8.
9. ESTOPPEL LETTERS. Whenever reasonably requested by Lender, Landlord
and Tenant from time to time shall severally execute and deliver to or at the
direction of Lender, and without charge to lender, one or more written
certifications of all of the matters as set forth in Paragraph 6, whether Tenant
has exercised any renewal option or options and any other information the Lender
may reasonably require to confirm the current status of the Lease, including,
without limitation, a confirmation that the Lease is and remains subordinated as
provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly and severally
agree that the Mortgage permits Lender, at its option, to apply to the
indebtedness from time to time secured by the Mortgage any and all insurance
proceeds payable with respect to any casualty loss at the Demised Premises and
any and all awards or other compensation that may be payable for the
condemnation of all or any portion of the Demised Premises, or any interest
therein, or by way of negotiated settlement or conveyance in lieu of
condemnation; and Landlord and Tenant jointly and severally consent to any such
application by Lender. Notwithstanding the foregoing, Landlord and Lender agree
that any and all insurance or condemnation proceeds payable with respect to
Tenant's property or the interruption or relocation of Tenant's business (except
for rental loss insurance proceeds) will be paid to Tenant.
11. NOTICES. All notices, demands, and other communications that must or
may be given or made in connection with this Agreement must be in writing and,
unless receipt is expressly required, will be deemed delivered or made 5 days
after having been mailed by registered or certified mail, return receipt
requested, or one day after having been mailed by express mail, in any event
with sufficient postage affixed, and addressed to the parties as follows:
5
<PAGE> 6
TO LENDER: C/O AMRESCO MANAGEMENT, INC.
235 PEACHTREE STREET, N.E.
SUITE 900
ATLANTA, GEORGIA 30303
ATTN: ASSET MANAGEMENT GROUP
TO LANDLORD: OLD CAMBRIDGE PROPERTY LLC
C/O THE ATHENAEUM GROUP, INC.
215 FIRST STREET
CAMBRIDGE, MA 02142-1268
TO TENANT: MILLENNIUM PHARMACEUTICALS INC.
640 MEMORIAL DRIVE
CAMBRIDGE, MA 02139
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
"AMRESCO Loan No.: 400028062."
12. SUCCESSORS AND ASSIGNS. As used in this Agreement, the word "Tenant"
shall mean Tenant and any subsequent holder or holders of an interest under the
Lease, as the text may require, provided that the interest of such holder is
acquired in accordance with the terms and provisions of the Lease and the word
"Lender" shall mean Lender or any other subsequent holder or holders of the
Mortgage or any party acquiring title to the Demised Premises by purchase at a
foreclosure sale, by deed of the Lender, or otherwise. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of Landlord, Tenant and
Lender, their legal representatives, successors and assigns. The terms Lease,
Mortgage and Lease Assignment shall include any and all amendments,
modifications, replacements, substitutions, extensions, renewals and supplements
thereto.
13. FURTHER ASSURANCES. Landlord and Tenant from time to time shall
execute and deliver at Lender's request all instruments that may be necessary or
appropriate to evidence their agreement hereunder provided such instrument
neither increases Tenant's obligations or decreases its rights under the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
6
<PAGE> 7
15. SEVERABILITY. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Agreement to any person or to any person or to particular circumstances is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LENDER:
LaSalle National Bank, AS TRUSTEE FOR
Asset Securitization Corporation COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES D4
BY: AMRESCO MANAGEMENT, INC.,
ITS AUTHORIZED AGENT
BY: /s/ Thomas J. Bauer
-------------------------------
DESIGNATED SERVICING OFFICER
LANDLORD:
BY: OLD CAMBRIDGE PROPERTY LLC
NAME: /s/ Allan R. Jones
-------------------------------
TITLE: President
-------------------------------
Cambridge F.A. Inc.
Managing Member
TENANT:
BY: MILLENNIUM PHARMACEUTICALS INC.
NAME: /s/ Peter Courossi
-------------------------------
TITLE: Treasurer
-------------------------------
7
<PAGE> 1
Exhibit 11.1
<TABLE>
Statement Regarding Computation of Per Share Earnings
Millennium Pharmaceuticals, Inc.
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1997 1996
-----------------------------
<S> <C> <C>
Average common stock outstanding 26,605,287 3,174,250
Assumed conversion of Convertible
Preferred Stock - 12,109,721
Common stock equivalents - 3,883,235
-----------------------------
Total 26,605,287 19,167,206
=============================
Net loss $(87,418,863) $ (142,139)
=============================
Net loss per share $ (3.29) $ (0.01)
=============================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001002637
<NAME> MILLENIUM, INC.
<MULTIPLIER> 1
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<EXCHANGE-RATE> 1
<CASH> 13,059,446
<SECURITIES> 55,320,279
<RECEIVABLES> 2,187,944
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 73,247,456
<PP&E> 30,298,568
<DEPRECIATION> 9,798,167
<TOTAL-ASSETS> 104,980,957
<CURRENT-LIABILITIES> 13,846,245
<BONDS> 0
0
0
<COMMON> 28,743
<OTHER-SE> 81,991,856
<TOTAL-LIABILITY-AND-EQUITY> 104,980,957
<SALES> 0
<TOTAL-REVENUES> 10,956,183
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 99,119,085
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 333,214
<INCOME-PRETAX> (87,418,863)
<INCOME-TAX> 0
<INCOME-CONTINUING> (87,418,863)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (87,418,863)
<EPS-PRIMARY> (3.29)
<EPS-DILUTED> (3.29)
</TABLE>
<PAGE> 1
EXHIBIT 99.1
------------
the federally funded Human Genome Project, also compete with Millennium. A
number of entities are attempting to rapidly identify and patent randomly
sequenced genes and gene fragments, typically without specific knowledge of the
function of such genes or gene fragments. In addition, certain other entities
are pursuing a gene identification, characterization and product development
strategy based on positional cloning. The Company's competitors may discover,
characterize or develop important genes in advance of Millennium, which could
have a material adverse effect on any related Millennium disease research
program. The Company also faces competition from these and other entities in
gaining access to DNA samples used in its research and development projects. The
Company expects competition to intensify in genomics research as technical
advances in the field are made and become more widely known.
The Company relies on its strategic partners for support in its disease
research programs and intends to rely on its strategic partners for preclinical
evaluation and clinical development of its potential products and manufacturing
and marketing of any products. Each of the Company's strategic partners is
conducting multiple product development efforts within each disease area that is
the subject of its strategic alliance with the Company. For example, Roche, with
whom the Company is collaborating in the field of obesity, currently has a
product for the treatment of obesity in late stage clinical trials. Generally,
the Company's strategic alliance agreements do not restrict the strategic
partner from pursuing competing development efforts. Any product candidate of
the Company, therefore, may be subject to competition with a potential product
under development by a strategic partner.
Employees
As of March 1, 1997, the Company had 359 full-time employees, of whom 116
hold Ph.D. or M.D. degrees and 88 hold other advanced degrees. Of the Company's
total workforce, 305 are engaged in research and development activities and 54
are engaged in business development, finance and administration. The Company
currently plans to hire approximately 140 additional employees by the end of
1997.
Factors that May Affect Results
This Annual Report on Form 10-K contains forward-looking statements. For this
purpose, any statements contained herein that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
foregoing, the words "believes", "anticipates", "plans", "expects", "intends",
and similar expressions are intended to identify forward-looking statements.
There are a number of important factors that could cause the Company's actual
results to differ materially from those indicated by such forward-looking
statements. Those factors include, without limitation, those set forth below and
elsewhere in this Annual Report on Form 10-K.
31
<PAGE> 2
Uncertainties Relating to Technological Approaches of the Company. To date,
the Company has not developed or commercialized any products based on its
technological approaches. There can be no assurance that these approaches will
enable the Company to successfully identify and characterize genes that
predispose individuals to the diseases that are the principal focus of its
disease research programs or to use any resulting information to develop
molecular targets of utility for pharmaceutical product development. The
Company's lead programs and development focus are primarily directed to complex
polygenic and multifactorial diseases. There is limited scientific understanding
generally relating to the role of genes in these diseases and relatively few
products based on gene discoveries have been developed and commercialized.
Accordingly, even if the Company is successful in identifying genes associated
with specific diseases, there can be no assurance that its gene discoveries will
lead to the development of therapeutic and diagnostic products.
History of Operating Losses; Anticipation of Future Losses. As of December
31, 1996, the Company had an accumulated deficit of approximately $18,144,000.
Even if the Company succeeds in developing a commercial product, the Company
expects to incur losses for at least the next several years and that such losses
will increase as the Company expands its research and development activities. To
achieve profitability, the Company, alone or with others, must successfully
discover genes associated with particular diseases and, thereafter, utilize such
discoveries to develop products, conduct clinical trials, obtain required
regulatory approvals and successfully manufacture, introduce and market such
products. The time required to reach commercial revenue and profitability is
highly uncertain and there can be no assurance that the Company will be able to
achieve any such revenue and profitability on a sustained basis, if at all.
Future Capital Requirements; Uncertainty of Additional Funding. The Company's
comprehensive technological approach to developing products through the
application of genomics has required that Millennium establish a substantial
scientific infrastructure. The Company has consumed substantial amounts of cash
to date and expects capital and operating expenditures to increase over the next
several years as it expands its infrastructure and its research and development
activities. In the event that adequate funds are not available, the Company's
business would be adversely affected.
Reliance on Strategic Partners. The Company's strategy for development and
commercialization of diagnostic and therapeutic products based upon its gene
discoveries depends upon the formation of various strategic alliances and
licensing arrangements. The Company has entered into strategic alliances with
Astra, Eli Lilly, Roche and Wyeth-Ayerst. There can be no assurance that the
Company will be able to establish additional strategic alliance or licensing
arrangements, that any such arrangements or licenses will be on terms favorable
to the Company, or that the current or any future strategic alliances or
licensing arrangements ultimately will be successful. All of the Company's
strategic alliance agreements are subject to
32
<PAGE> 3
termination under various circumstances. If any of the Company's strategic
partners were to breach or terminate its agreement with the Company or otherwise
fail to conduct its collaborative activities successfully in a timely manner,
such delay or termination could have a material adverse effect on the Company's
business, financial condition and results of operations.
Intense Competition. Millennium faces, and will continue to face, intense
competition from organizations such as large pharmaceutical, biotechnology and
diagnostic companies, as well as academic and research institutions and
government agencies. The Company is subject to significant competition from
organizations that are pursuing the same or similar technologies as those which
constitute the Company's technology platform and from organizations that are
pursuing pharmaceutical or diagnostic products that are competitive with the
Company's potential products. Most of the organizations competing with the
Company have greater capital resources, research and development staffs and
facilities, and greater experience in drug discovery and development, obtaining
regulatory approvals and pharmaceutical product manufacturing and greater
marketing capabilities than the Company. Each of the Company's strategic
partners is conducting multiple product development efforts within each disease
area that is the subject of its strategic alliance with the Company. Generally,
the Company's strategic alliance agreements do not restrict the strategic
partner from pursuing competing development efforts. Any product candidate of
the Company, therefore, may be subject to competition with a potential product
under development by a strategic partner.
Patents and Proprietary Rights; Third Party Rights. The Company's commercial
success will depend in part on obtaining patent protection on gene discoveries
and on products, methods and services based on such discoveries. The Company has
more than 100 pending U.S. and international patent applications and has two
issued U.S. patents. There can be no assurance that any of the Company's pending
patent applications will result in issued patents, that the Company will develop
additional proprietary technologies that are patentable, that any patents issued
to the Company or its strategic partners will provide a basis for commercially
viable products or will provide the Company with any competitive advantages or
will not be challenged by third parties, or that the patents of others will not
have an adverse effect on the ability of the Company to do business.
Furthermore, there can be no assurance that others will not independently
develop similar or alternative technologies, duplicate any of the Company's
technologies, or, if patents are issued to the Company, design around the
patented technologies developed by the Company. In addition, the Company could
incur substantial costs in litigation if it is required to defend itself in
patent suits brought by third parties or if it initiates such suits.
Prior to the time that the Company filed its patent application covering
ob-r, Progenitor filed a patent application disclosing DNA sequences that encode
shorter forms of leptin receptors and describing a potential role for such
receptors in cell proliferative disorders such as cancers and leukemias.
Although the Company believes that the patent application filed by Progenitor
does not describe the
33
<PAGE> 4
Company's ob-r, or the role of any receptor in body weight regulation or obesity
control, there can be no assurance that such patent application, or additional
patent applications if filed by others, will not result in issued patents
covering ob-r or specific fragments of the ob-r gene.
Government Regulation; No Assurance of Regulatory Approval. Prior to
marketing, any new drug developed by the Company and its strategic partners must
undergo an extensive regulatory approval process in the United States and other
countries. This regulatory process can take many years and require the
expenditure of substantial resources. There can be no assurance that regulatory
approval will be obtained for any drugs or diagnostic products developed by the
Company or its strategic partners. Failure to obtain required governmental
approvals will delay or preclude the Company's strategic partners from marketing
drugs or diagnostic products developed by the Company or limit the commercial
use of such products and could have a material adverse effect on the Company's
business, financial condition and results of operations.
Attraction and Retention of Key Employees. The Company is highly dependent on
the principal members of its management and scientific staff. The loss of
services of any of these personnel could impede significantly the achievement of
the Company's development objectives. Furthermore, recruiting and retaining
qualified scientific personnel to perform research and development work in the
future will also be critical to the Company's success. There is intense
competition among pharmaceutical and health care companies, universities and
nonprofit research institutions for experienced scientists, and there can be no
assurance that the Company will be able to attract and retain personnel on
acceptable terms. Pursuant to the Lilly strategic alliance agreements in the
atherosclerosis and oncology fields, Lilly has the right to suspend funded
research programs under these agreements upon the termination of the employment
of two or more specified employees of the Company without replacement reasonably
acceptable to Lilly.
Expansion of Operations; Management of Growth. The Company recently has
significantly increased the scale of its operations to support the expansion of
its disease research programs and its strategic alliances including the
acquisition, in February 1997, of ChemGenics. See "-- ChemGenics
Pharmaceuticals, Inc." The increase has included the hiring of a significant
number of additional personnel. The Company currently employs approximately 359
persons and plans to hire approximately 140 additional employees in 1997. The
resulting growth in personnel and facilities could place significant strains on
the Company's management, operations and systems.
Dependence on Research Collaborators and Scientific Advisors. The Company has
relationships with collaborators at academic and other institutions who conduct
research at the Company's request, particularly with respect to the Company's
human genetics programs. All of Millennium's consultants are employed by
employers other than the Company and may have commitments to, or consulting or
advisory
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contracts with, other entities that may limit their availability to the Company.
As a result, the Company has limited control over their activities and, except
as otherwise required by its collaboration and consulting agreements, can expect
only limited amounts of their time to be dedicated to the Company's activities.
The Company's ability to discover genes involved in human disease and
commercialize products based on those discoveries may depend in part on
continued collaborations with researchers at academic and other institutions.
There can be no assurance that the Company will be able to negotiate additional
acceptable collaborations with collaborators as academic and other institutions
or that its existing collaborations will be successful.
Product Liability Exposure. Clinical trials, manufacturing, marketing and
sale of any of the Company's or its strategic partners' potential pharmaceutical
products may expose the Company to liability claims from the use of such
pharmaceutical products. The Company currently does not carry product liability
insurance. There can be no assurance that the Company or its strategic partners
will be able to obtain such insurance or, if obtained, that sufficient coverage
can be acquired at a reasonable cost. An inability to obtain sufficient
insurance coverage at an acceptable cost or otherwise to protect against
potential product liability claims could prevent or inhibit the
commercialization of pharmaceutical products developed by the Company or its
strategic partners. A product liability claim or recall could have a material
adverse effect on the business or financial condition of the Company. While
under certain circumstances the Company is entitled to be indemnified against
losses by its strategic partners, there can be no assurance that this
indemnification would be available or adequate should any such claim arise.
Item 2. PROPERTIES
The Company's facilities currently consist of approximately 70,000 square
feet of office and research space and a 9,000 square foot animal facility
located at 640 Memorial Drive, Cambridge, Massachusetts pursuant to a lease
which expires in 2003, approximately 40,000 square feet of office and research
space located at Fort Washington Park, Cambridge, Massachusetts pursuant to a
lease which expire in 1999, and approximately 11,500 square feet of office and
research space at One Kendall Square, Cambridge, Massachusetts pursuant to a
lease which expires in 2003.
Item 3. LEGAL PROCEEDINGS
The Company is not a party to any legal proceedings.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders of the Company,
through solicitation of proxies or otherwise, during the last quarter of the
year ended December 31, 1996.
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