SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Fiscal Year ended June 30, 1995 Commission File Number 0-14983
APPLIED MICROBIOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
New York 11-2653613
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
771 Old Saw Mill River Road
Tarrytown, New York 10591
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number,
including Area Code: (914) 347-5767
Securities registered pursuant to Section 12(b) of the Act:
Common Stock (par value $.005 per share)
Securities registered pursuant to Section 12(g) of the Act:
Common Stock (par value $.005 per share)
Title of Class
Redeemable Warrants
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 twelve (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 ninety (90) days. Yes X No _____
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the registrant's best knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. /X/
The aggregate market value of voting stock held by non-affiliates of the
Registrant was approximately $ 23,100,828 as of September 20, 1995.
The number of shares outstanding of Registrant's Common Stock as of
September 20, 1995: 18,192,183
FORM 10-K REPORT INDEX
10-K Part
and Item No. Page No.
- - ------------ --------
PART I
Item 1 Business . . . . . . . . . . . . . . . . . . . . . . .3
Item 2 Properties . . . . . . . . . . . . . . . . . . . . . 11
Item 3 Legal Proceedings. . . . . . . . . . . . . . . . . . 11
Item 4 Submission of Matters to a Vote of Security Holders. 11
PART II
Item 5 Market Price of Registrant's Common Equity and
Related Stockholder Matters. . . . . . . . . . . . . 13
Item 6 Selected Financial Data. . . . . . . . . . . . . . . 14
Item 7 Management's Discussion and Analysis of Financial
Condition and Results of Operations. . . . . . . . . 15
Item 8 Financial Statements and Supplementary Data . . . . 19
Item 9 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. . . . . . . . . 19
PART III
Item 10 Directors and Executive Officers of the Registrant . 20
Item 11 Executive Compensation . . . . . . . . . . . . . . . 24
Item 12 Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . 30
Item 13 Certain Relationships and Related Transactions . . . 32
PART IV
Item 14 Exhibits, Financial Statement Schedules, and
Reports on Form 8-K. . . . . . . . . . . . . . . . . 35
2
PART I
Item 1. BUSINESS
The Company
Applied Microbiology, Inc., (the "Company") is a New York corporation
which was incorporated on June 29, 1983. The Company researches, develops,
manufactures, and sells Food Ingredients, and researches, develops and
manufactures Special Dietary Foods and Pharmaceuticals.
Food Ingredients
PRESERVATIVES
The Company believes that it is the world's principal producer of the
naturally occurring antimicrobial peptide nisin. The Company manufactures
Nisaplin , a food grade preparation of nisin, at its plant in Beaminster,
Dorset, U.K., with processes it considers proprietary trade secrets. Nisaplin
has been used in foods as a natural antimicrobial preservative for more than
20 years and is approved for use in over 40 countries worldwide. Applications
include the prevention of food-borne illness resulting from spoilage of dairy
and bakery products, dressings and sauces and canned foods.
DAIRY STARTER CULTURES
The Company manufactures and markets bacterial starter cultures used by
the dairy industry in certain territories in Europe. Effective July 1, 1995,
the Company expanded its territory to include the United States. Some of the
dairy starter cultures are manufactured by Mauri Laboratories, a Burns Philp
company, which also acts as a distributor for Nisaplin in Australia and other
areas of the Pacific.
DAIRY HYGIENE PRODUCTS
The Company manufactures and sells a preparation of nisin which the
Company markets as Ambicin N, which is the active ingredient in an animal
hygiene product applied to the udders of lactating dairy cattle before and
after milking.
Udder washes
Bovine mastitis is an important infectious disease of dairy cows that
costs the U.S. dairy industry an estimated $2 billion annually. The Company
has developed a germicidal solution based on Ambicin N that is applied to the
teats of cows as a dip or spray before and after milking in order to prevent
the spread of mastitis. This dermatological preparation is a potent broad
spectrum germicide that acts rapidly against the bacteria that cause mastitis.
3
On December 15, 1988, the Company entered into a License and License
Option Agreement ("Agreement"), as amended November 25, 1991 and July 1, 1993,
with Babson Brothers ("Babson") of Naperville, Illinois. Babson is a leading
U.S. manufacturer and distributor of equipment and supplies to the dairy
industry. Under the Agreement, Babson's exclusive territories include North
America and Puerto Rico. On a non-exclusive basis, Babson's territories
extend to Latin America, Switzerland, Republic of Korea and Taiwan. The
Company supplies Ambicin N to Babson and earns royalties on sales of Consept
teat dip by Babson. In July 1991, Babson commenced manufacturing and marketing
an Ambicin N-based teat dip product in the U.S. under its trademark Consept.
Under a July 1991 agreement with CFPI, a French specialty chemical
manufacturer, the Company licensed CFPI to manufacture and market Ambicin
N-based formulations for use as topical germicides in the prevention of
mastitis in nine European countries. CFPI introduced its product in France in
1992.
Udder wipes
The Company has developed a moistened towel using an Ambicin N-based
formulation that is for use in preparing dairy cows for milking. Trials in
dairy cows at Cornell Veterinary College have shown the product to be
effective in reducing mastitis. It is anticipated that this product will be
launched in the first calendar quarter of 1996.
Special Dietary Foods
The Company is evaluating certain proprietary Special Dietary Food
products in the areas of cardiovascular disease, diabetes, infectious disease,
and gastrointestinal disorders. Special Dietary Foods are foods that supply
particular dietary needs or that may aid in the dietary management of disease
and are sometimes known as medical foods, functional foods, or nutraceuticals.
On May 17, 1995, the Company acquired an exclusive option from a division
of Orion Corporation ("Orion"), the largest pharmaceutical company in Finland,
to sell Orion's patented salt alternative in the United States. This product,
currently being sold in Finland and Japan by Orion and its licensee, has
significantly less sodium than regular salt and contains potassium and
magnesium, essential minerals that may help in the dietary management of blood
pressure. High blood pressure, or hypertension, affects approximately 50
million Americans.
Should the Company exercise the aforementioned option by October 17,
1995, it will be granted an exclusive license to make, have made, use and sell
the product in the U.S. Upon the exercise of the option, the Company intends to
initially market this product to physicians for recommendation to their
hypertensive patients and to those at risk of developing hypertension.
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Pharmaceuticals
Nisin
The Company is developing nisin in different proprietary formulations as
a potential treatment for ulcer disease (with Astra Merck in the territory of
the United States), for superficial skin infections (with the ConvaTec
division of Bristol-Myers Squibb in many of the countries of the world except
for the Far East), and as an anti-gingival and breath freshener (with
SmithKline Beecham on a worldwide basis). Astra Merck, Bristol-Myers Squibb
and SmithKline Beecham have the right to terminate their respective
agreements with the Company. Without partners, the Company is developing
drugs that may be useful against hospital-acquired infections, and infections
of the colon, and mastitis infections in lactating dairy cattle.
During each phase of the drug development process, scientific and
business evaluations of the cost, risk, and potential return on investment are
undertaken on a product by product basis. There can be no assurance that the
development programs with or without partners will continue should there be a
negative evaluation of the cost and risks of continuing to develop a
particular product.
The development of nisin as a therapeutic agent for these, and other
indications can be a long, difficult, and expensive process. Thus, there can
be no assurance that a nisin-based drug product will be approved by the U.S.
Food and Drug Administration ("FDA") or its regulatory equivalent in a foreign
country. See "Governmental Regulation."
Hospital-Acquired Infections
The Company believes that nisin and its recombinant structural analogues
may have potential for systemic use via intravenous administration for the
treatment of severe hospital-acquired infections. These infections are caused
by bacterial pathogens that resist treatment with all, or nearly all currently
available antibiotics and they are responsible for many deaths annually. The
Company has established that nisin is highly active in laboratory studies
against bacterial isolates of staphylococci, enterococci and pneumococci,
including the multiple drug-resistant strains which are often the cause of
such infections in hospitalized patients, and for which current antibiotics
are increasingly becoming less effective. In preliminary experiments, a single
injection of nisin prevented the death of mice that had been given a lethal
inoculum of Staphylococcus aureus. The Company is also evaluating nisin in a
rabbit model of endocarditis -- a debilitating infection of heart valves.
Infections of the Colon
Antibiotic-associated diarrhea and pseudomembranous colitis are
infections of the colon that are caused by Clostridium difficile (C.
difficile). These infections are often encountered by patients receiving
antibiotic therapy and result in diarrhea and inflammation of the colon. C.
difficile is usually treated with the drug vancomycin; however, this use of
vancomycin correlates
5
to a significant degree with the rise in vancomycin-resistant enterococci.
The Company is investigating the feasibility of delivering nisin in an oral
form directly to the colon using a proprietary capsule. Subject to
completing feasibility and safety studies, the Company expects to begin to
clinical evaluations in humans in 1996.
Bovine Mastitis Infections
The presence of antibiotics in milk arising from treated cows precludes
its use for human consumption and requires that the milk be discarded at
considerable cost to the farmer. The Company believes that its product may be
a safe and effective alternative to antibiotics for the treatment of this
disease. A study to determine the dose and frequency required for
intra-mammary administration of nisin is presently underway at Cornell
University School of Veterinary Medicine. Based on results from this and other
studies in lactating dairy cattle, the Company plans to initiate a set of
final field trials in 1996.
Ulcer Disease
Chronic gastritis and recurrent gastric and duodenal ulcer disease have
been found to be associated with colonization of the gastric and duodenal
mucosa by the gram negative bacterium Helicobacter pylori (H. pylori). The
Company has determined that nisin can be formulated so as to efficiently kill
H. pylori. Many of the characteristics of nisin are well-suited to this
application, namely: nisin is effective against H. pylori in the laboratory;
nisin is stable in the acid environment in the stomach; and nisin is not
degraded by the digestive enzymes in the stomach. It is, however, degraded by
the pancreatic enzymes found in the gastrointestinal tract beyond the stomach
and, as a result, should not have the side effects associated with
antibiotics. The Company has established an in vitro system for use in
formulation development work. Utilizing this system, nisin has been shown to
be effective against H. pylori isolated from patients having ulcer disease.
The Company is working on optimizing the delivery of nisin to the site of
infection in the gastric mucosa using an animal model. Human trials are
expected to begin in 1996.
In March 1994, the Company entered into an exclusive License and Supply
Agreement with the Astra/Merck Group of Merck & Co., Inc. (now Astra Merck) to
develop and market in the U.S. drug products based on nisin for the treatment
of gastrointestinal disorders, including ulcers.
Oral Care
Formulations with nisin as the active agent have been developed and shown
to reduce plaque accumulation and gingival inflammation in animal and human
volunteers. Prototypes of nisin-based mouth rinse formulations are currently
undergoing stability tests. In parallel work, suitable manufacturing
procedures for incorporation of nisin into a chewing gum have been
6
established and formulations providing satisfactory release of the nisin upon
chewing have been developed. If research and development activities yield
positive results, and if an acceptable rate of return on investment can be
attained, human trials are expected to begin in 1996.
In June 1993, the Company and SmithKline Beecham entered into a worldwide
agreement to jointly develop oral healthcare and oral hygiene products which
utilize nisin.
Skin Infections
The Company is developing nisin in a topical form for the treatment of
superficial skin infections such as acne and impetigo. Studies commissioned
at The Rockefeller University have shown nisin to be effective against more
than 150 clinical isolates of multiple antibiotic-resistant organisms,
including Staphylococcus aureus. In comparative studies in a pigskin model,
the bactericidal action of a nisin-based formulation and a leading commercial
product against antibiotic-resistant Staphylococcus aureus and Streptococcus
pyogenes were evaluated. The bacterial kill by the nisin formulation was
better than that of the commercial product by 10-fold or greater in these
studies. If research and development activities continue to yield positive
results, and if an acceptable rate of return on investment can be attained,
human trials are expected to begin in 1996.
In June 1994, the Company concluded an exclusive License and Supply
Agreement with Calgon Vestal Laboratories, now a subsidiary of Bristol-Myers
Squibb Company, (formerly a subsidiary of Merck & Co., Inc.), to develop and
market antimicrobial products intended for use in the treatment of skin
infections including impetigo and acne, and wound care. The territory includes
North America, the EC, and certain other countries.
Governmental Regulation
Healthcare and Cosmetics
Products which are intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in humans or animals are subject to
extensive governmental regulation. All such products must undergo extensive
characterization, and are subject to regulation for quality assurance,
toxicology and safety. Products containing such agents must undergo thorough
preclinical and clinical evaluations of performance as to safety and efficacy
under approved protocols.
The Company intends to pursue regulatory approval for the pharmaceutical
and related uses of its products. The Company's proposed pharmaceutical
products will be subject to the regulatory approval processes for new drugs.
The Company believes that its products for the treatment of bovine mastitis
will be considered animal drugs which are subject to approval by the FDA
Center for Veterinary Medicine in the U.S. and by other developed countries'
regulatory agencies. Its proposed cosmetic products will be marketable only
after they are included in a Positive List for use as Cosmetics Preservatives
in the EC and member countries. Use of the
7
Company's products in oral hygiene in the U.S. will be subject to the approval
process for new drugs by the FDA, but the regulatory process for such use in
other countries, including the EC and member countries, will vary by country.
Depending upon the ingredients of a specific product, some special dietary
food products will be marketed in the U.S. under the Dietary Supplement Health
and Education Act.
To take a product from the discovery stage through research and
preclinical development to the point where the Company and/or its partners can
make the necessary filings (to the FDA and governmental agencies outside the
U.S.) to conduct human clinical trials may take several years. Regulatory
requirements for human clinical trials are substantial, depend upon a variety
of factors, vary by country, and will further add to the time necessary to
determine whether a product candidate can be approved for human use.
There can be no assurance that the Company's proposed products will prove
to be safe and effective under these regulatory procedures.
Foods and Food Processing
Ingredients added to or used in food which are considered "food
additives" require FDA approval in the U.S. unless, based on the submission of
safety and functionality data, such ingredients are considered generally
recognized as safe ("GRAS"). Use of GRAS food ingredients does not require
FDA approval, but companies frequently submit petitions to the FDA which
request that the FDA affirm GRAS status. The Company submitted a request to
the FDA for such affirmation for the Company's nisin preparation. The FDA has
affirmed that nisin or a nisin preparation which meets certain specifications
is GRAS for use in pasteurized cheese spreads and pasteurized cheese spreads
with fruits, vegetables, or meats (GRAS Affirmed uses). The use of Nisaplin
or nisin in cheese products and foods, other than for GRAS Affirmed uses, may
occur based on the manufacturer or user determining that such use is GRAS or
may necessitate a submission to FDA and FDA concurrence in an amendment of the
current GRAS Affirmation regulation for nisin. Should such a submission to
the FDA become necessary, timely action by the FDA cannot be assured.
The Company believes that the Nutrition Labeling and Education Act of 1990
and the FDA's implementing regulations permit the use of nisin in low-fat
cheeses, low-fat salad dressings and additional foods.
In general, outside of the U.S. products such as Nisaplin or nisin when
used in food must be included on the "Positive List" of food additives in the
country where the food product is to be sold. The regulations vary from
country to country. To date, the Company has obtained permission in over 40
countries for Nisaplin to be used in a variety of foods, predominantly
processed cheese products, canned foods and fruit juices. The Company advises
customers on the legal status regarding use and labeling of the Company's
products in their own country.
8
Research and Development
The Company conducts research and development to expand uses of its
current antimicrobial products in food preservation and in human and
veterinary healthcare, to identify new antimicrobial products, and to improve
the production process for the Company's antimicrobial products. These efforts
are conducted with industrial and academic co-workers in various countries.
During the fiscal year ended June 30, 1995, approximately $1,840,000 was spent
on research and development by the Company.
Proprietary Rights
Nisaplin is a trade mark which is registered and defended by the Company
in the EC countries, the U.S., Russia, and other countries. Ambicin N is a
registered trade mark of the Company in the U.S and other countries.
The Company also owns patents and patent applications relating to, among
other things, the expression and production of proteins by recombinant
Bacillus strains; plasmid vectors and methods of construction in gram positive
bacteria; expression and production of recombinant lysostaphin; novel
bacteriocin compositions and their use as broad spectrum bactericides; the use
of bacteriocin compositions to treat bovine mastitis; the use of bacteriocin
compositions in oral healthcare; the use of bacteriocin compositions on skin
for healthcare and hygiene; the use of bacteriocin compositions in
gastrointestinal healthcare; the use of nisin in alcoholic beverages; and
antibotulinal protection of foods. The Company has exclusive licenses under
certain patents and patent applications relating to the use of nisin to
prevent microbial spoilage in foods and alcoholic beverages.
Under an agreement with the University of Maryland, the Company has
obtained exclusive licenses under patents and applications relating to the
cloning, expression and alteration of genes encoding nisin, subtilin, and
related peptides and their production.
Under an agreement with the Institute of Food Research, Norwich, U.K.,
the Company owns certain strains of bacteria producing nisin and related
patents, and may obtain exclusive licenses to certain nisin-related mutants
and related patents.
The Company maintains trade secret protection for bacterial strains,
technical know-how, and other information it considers proprietary and
beneficial for the manufacture, use, regulatory approval, and marketing of the
Company's products.
The Company maintains non-disclosure safeguards, including
confidentiality agreements, with employees, certain consultants and Scientific
Advisory Board members. There can be no assurance, however, that others may
not independently develop similar technology or that secrecy will not be
breached despite any agreements which exist.
9
Manufacturing
The Company's Nisaplin and Ambicin N products are manufactured by the
Company at its 30,000 square foot plant at Beaminster, Dorset, U.K. In
addition, at its Beaminster facility, the Company produces certain dairy
starter cultures which are marketed to the dairy industry.
The Beaminster plant and technical facilities are adequate for the
Company's current business. As demand for nisin increases, particularly for
Ambicin N produced to the more exacting standards for pharmaceutical products,
the Company may utilize contract manufacturing with third parties, upgrade and
expand its current production facilities in Beaminster, and/or purchase, lease
or build a new manufacturing facility.
Marketing and Sales
The Company maintains sales offices in the U.S., U.K. and the Republic of
Ireland. In addition, the Company markets Nisaplin through a combination of
direct selling efforts and an extensive network of distributors and agents
throughout the world. The Company maintains a scientific and technical sales
group in the U.K. to support existing customers and to develop new applications
for products marketed to the food and beverage industries.
Financial Information About Industry Segments
The Company's business has been in a single industry segment, the
research, development, production and marketing of antimicrobial proteins for
various applications. For financial data pertaining to the amount of revenue
and operating profit and loss of the Company, see "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Financial
Statements."
Employees
As of June 30, 1995, the Company had 92 full-time employees, of which
four were executive employees, 13 were administrative, 16 were engaged in
marketing and sales, and 59 were involved in research, process development,
and manufacturing. The Company does not have a collective bargaining
agreement with any of its personnel and considers its relationship with its
employees to be satisfactory.
10
Item 2. PROPERTIES
Effective as of January 1, 1995, the Company's headquarters are located
at 771 Old Saw Mill River Road, Tarrytown, New York 10591 (Tel: 914-347-5767,
Fax: 914-347-6370). These facilities include office space as well as the
Company's U.S. laboratory where the Company conducts its pharmaceutical
research and development. Pursuant to a seven year lease, the Company pays an
annual rent in the amount of $378,650 during the first year, which sum is due
in monthly installments. The rent is subject to annual increases over the
term of the lease. However, since the premises were not ready to be occupied
by the Company's research laboratory until June 12, 1995, until that date the
rent consisted of a nominal amount.
Prior to January 1, 1995, the Company's headquarters were located at
facilities owned by an affiliate of David Guttmann, the Company's Chairman.
The Company paid $24,085 for such space and related services in the fiscal
year ended June 30, 1995.
Until June 12, 1995 the Company research facilities were located at the
Public Health Research Institute of the City of New York. The Company paid
$235,178 for such space and related services in the fiscal year ended June
30, 1995.
The Company's U.K. headquarters are located at Clarks Mill, Stallard
Street, Trowbridge, U.K., and comprise approximately 3,000 square feet which are
rented under a lease expiring in 2114 and providing for a current annual rent
of GBP 34,000 ($54,000). The Company's 30,000 square foot manufacturing and
research facility is located in Beaminster, U.K., and is owned by the Company.
Item 3. LEGAL PROCEEDINGS
No material proceedings are pending to which the Company or any of its
property is subject.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the annual meeting of shareholders of the Company held in March 1995,
holders of 13,998,678 shares of common stock ratified the appointment of KPMG
Peat Marwick LLP as the Company's independent auditors. The appointment was
opposed by the holders of 22,240 shares of Common Stock, and 95,500 abstained.
11
The following persons were elected as directors:
Name For Against
- - ---- --- -------
Fredric D. Price 13,998,279 118,139
David Guttmann 13,998,779 117,639
Ian Clack 13,998,779 117,639
Douglas Cotter 13,998,779 117,639
Audrey T. Cross 13,998,779 117,639
John P. Friend 13,998,179 118,239
Robert E. Pollack 13,998,779 117,639
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PART II
Item 5. MARKET PRICE OF REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Company's Common Stock and Warrants are traded on the Nasdaq National
Market System under the symbol AMBI. Trading of the Company's Common Stock on
the Pacific Stock Exchange was discontinued as of November 4, 1994.
The following table sets forth the high and low bid quotations for the
Company's Common Stock and Warrants through the quarter ended December 31,
1993. These quotations have been reported by the National Association of
Securities Dealers, Inc. and represent quotations by dealers without
adjustments for retail mark-ups, mark-downs or commissions and may not
represent actual transactions. As a result of the Company's admission to the
Nasdaq National Market System, commencing January 1, 1994, the prices quoted
for the Common Stock represent actual sale prices.
Common Stock Warrants
------------ --------
Fiscal
Quarter High Low High Low
- - ------- ---- --- ---- ---
Ended
March 31, 1993 $3.875 $3.00 $.75 $.50
Ended
June 30, 1993 $5.125 $2.75 $1.625 $.375
Ended
September 30, 1993 $6.25 $4.00 $2.25 $1.25
Ended
December 31, 1993 $6.25 $4.875 $2.25 $1.75
Ended
March 31, 1994 $6.50 $5.50 $2.50 $2.00
Ended
June 30, 1994 $5.75 $3.25 $2.375 $.875
Ended
September 30, 1994 $4.00 $3.00 $1.375 $1.00
Ended
December 31, 1994 $4.625 $2.625 $2.00 $0.875
Ended
March 31, 1995 $3.25 $2.50 $0.875 $0.625
Ended
June 30, 1995 $2.875 $1.375 $0.625 $0.25
13
The Company has not paid a cash dividend on its Common Stock. The Company
intends to retain all earnings for the foreseeable future for use in the
operation and expansion of its business and, accordingly, the Company does not
contemplate paying any cash dividends on its Common Stock in the near future.
Item 6. SELECTED FINANCIAL DATA
The following tables summarize certain financial data that are qualified
by the more detailed financial statements included herein. Figures are stated
in thousands of United States Dollars, except per share amounts.
Year ended June 30 1995 1994 1993 1992(1) 1991
---- ---- ---- ------- ----
Sales 11,264 9,614 12,083 9,796 8,600
Write-off of Purchased
Research and Development ---- ---- 22,504 ---- ----
Other Costs and Expenses 11,337 8,374 8,891 6,653 5,846
Tax Expense 254 185 423 1,090 969
Net Income/(Loss) 283 1,756 (19,423) 2,282 1,892
Net Earnings/(Loss) per
Share 0.01 .09 (1.37) 2.41 2.04
Selected Balance Sheet Data:
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
Working Capital 7,333 7,352 5,750 1,990 394
Total Assets 13,788 11,808 10,724 8,059 6,928
Total Liabilities 3,163 1,544 2,255 3,363 4,089
Redeemable Preferred Stock 1,500 1,500 1,500 ---- ----
Stockholders' Equity 9,125 8,764 6,969 3,196 1,339
- - ---------------
(1) In connection with the consummation of the BP Transactions, which are
described in Note 1 of the Notes to the Consolidated Financial Statements
included elsewhere herein, and pursuant to which the Company acquired its
Aplin & Barrett ("A&B") subsidiary, the Company adopted
14
A&B's fiscal year which ends on June 30. The Company filed a Transition
Report on Form 10-K for the fiscal period January 1, 1992 through August 31,
1992 to provide for the transition to A&B's historical financial information.
Such Transition Report provided information with respect to the Company
immediately prior to the consummation of the BP Transactions. For the
previous year, the table sets forth the financial results of Aplin & Barrett.
The Company has not paid a cash dividend to its public shareholders on
its Common Stock, although A&B did pay dividends to its stockholder before A&B
was acquired by the Company. The Company does not contemplate paying any cash
dividends on its Common Stock in the near future.
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements and related notes thereto of the Company
included elsewhere herein.
Introduction
As a consequence of the closing on August 31, 1992 of the BP Transactions
which are described in Note 1 to the Consolidated Financial Statements, and
which for financial reporting purposes are accounted for as a reverse
acquisition, the results for the years ended June 30, 1995 and June 30, 1994
are those of the Company for the whole year. The results for the year ended
June 30, 1993 are those of A&B for the full year and those of the Company
other than A&B ("AMBI results") for the period from September 1, 1992 through
June 30, 1993.
General
The Company's historical revenues have been primarily attributable to
sales of its own products. The Company also acts as selling agent for certain
products of both affiliated as well as unaffiliated companies. Effective July
1, 1995, the Company assumed responsibility for selling products in the U.S.
on behalf of an affiliated company. In addition, the Company receives royalty
income from users of its patented technology.
Cost of sales includes both direct and indirect manufacturing costs.
Research costs include internal expenditures as well as expenses associated
with third party collaborators.
Selling, general and administrative expenses include salaries and
overheads, and third party fees and expenses as well as costs associated with
selling of the Company's products.
The Company capitalizes patent costs and amortizes them over periods of
nine months to fifteen years.
15
Results of Operations
The Company has an accumulated deficit due primarily to the write-off of
purchased goodwill (amortized over five years from 1986 - 1990) and purchased
research and development costs (written-off in the year ended June 30, 1993 in
connection with the BP Transactions described in Note 1 of the Notes to the
Consolidated Financial Statements included elsewhere herein).
Three years ended June 30, 1995, 1994 and 1993
Sales
Sales increased 17% to $11.3 million in 1995 from $9.6 million in 1994.
Sales of Nisaplin increased by 15% and accounted for 77% of the total sales.
Sales in the U.S. and U.K. declined, but were offset by increases principally
in South America and Europe. Sales of Dairy Hygiene products declined by 21%,
due to reduced activity by users in the U.S. and delays by users in launching
their products in Europe. Sales of Dairy Starter Cultures increased by 39%.
The Company's 1994 sales of $9.6 million were 20% lower than the 1993
sales of $12.1 million. The figures for 1993 included sales of $2.1 million
from products sold by the Company under an agency agreement which terminated
June 30, 1993; accordingly there were no sales of these products included in
the 1994 figures. Sales of Nisaplin declined largely as a result of a
reduction in sales to Australia, where the 1993 figure had been increased by a
change in marketing arrangements pursuant to which inventory previously
treated as on consignment was sold outright to the distributor.
Cost of Sales
Cost of sales was $3.3 million in 1995, a decrease of 8% from the 1994
figure of $3.5 million. As a percentage of revenues, it decreased to
29% of sales compared to 37% in 1994. The decrease was principally due to
lower raw material costs following a change in method of manufacture.
Cost of sales was $3.5 million in 1994, a decrease of 38% from the 1993
figure of $5.7 million, and as a percentage of revenues was 37% compared to
47% of sales in 1993. The decrease in cost of sales as a percentage of sales
was largely due to the inclusion in sales of a greater proportion of products
manufactured by the Company than in the previous year. These products
generate higher gross margins than products for which the Company acts as a
distributor.
Selling, General and Administrative Expenses
Selling, general and administrative expenses ("SG&A") were $5 million,
$3.5 million, and $2.2 million in 1995, 1994 and 1993 respectively,
representing increases of 44% in 1995 from 1994, and 62% in 1994 from 1993.
SG&A as a percentage of sales was 45%, 36%, and 18%
16
in 1995, 1994, and 1993, respectively.
The main components of the increase in SG&A expenses in 1995 were
attributable to increased sales commissions paid to agents and distributors
and increased costs of additional personnel. There were also costs involved in
the relocation of the Company's corporate headquarters, and losses on the sale
of some equipment.
The main components of the increase in 1994 were recruitment of additional
sales staff and professional fees.
Research Costs
Research costs were $1.8 million, $0.7 million, and $0.5 million in 1995,
1994, and 1993, respectively, representing increases of 150% in 1995 from 1994,
and 60% in 1994 from 1993. Research costs as a percentage of sales were 16%, 8%
and 4%, respectively. The increases in costs in 1995 and 1994 were related to
the hiring of new personnel as well as the initiation of new programs.
Other Expenses
Other expenses in 1995 primarily consisted of $.3 million of costs
associated with an office lease termination and costs associated with the
relocation of the Company's office and laboratory facilities.
Income Before Tax Expense
Income before tax expense was $0.5 million in 1995, compared with $1.9
million in 1994. The decrease was a result of the Company's increased
expenditures in the areas of research and marketing as described above.
In 1993, the Company had a loss before tax expense of $19 million. This
figure included the write-off of purchased research and development referred
to in Results of Operations above.
Tax Expense
The Company's effective tax rate for 1995 was 47%. The Company incurred a
loss on its U.S. operations for which no tax benefit was recognized. The
Company's U.K. profits are taxable at the U.K. corporation tax rate of 33%.
In 1994 the Company's effective tax rate was 10%, as U.S. pre-tax income
was substantially offset by net operating losses carried forward.
Pre-tax income in 1993 included a large loss relating to the write-off of
purchased research and development costs which were not deductible and therefore
did not generate a corresponding tax benefit.
The effective tax rate may be expected to vary in the future depending upon
the respective levels of income in the U.S. and the U.K. Refer to Note 13 of
the Notes to the Consolidated Financial Statements for a further analysis of the
tax charge.
Fourth Quarter Results
Sales in the fourth quarter of fiscal 1995 were $2.9 million, an increase
of 25% over the corresponding
17
quarter for the previous year. Sales of Nisaplin were up 28%, due mainly to
increased volumes which resulted from orders placed by several large
customers.
Operating income for the quarter was $0.2 million, an increase of 187%
compared to the previous year, largely as a result of the increased sales.
Quarterly Variations
On a quarter-to-quarter basis, the Company's sales and income may vary
widely, as a result of various factors, including, for example, customers
placing orders in anticipation of a price increase and customers adjusting
finished goods inventory levels. As a result, the Company may report sales
increases or declines and/or income gains or losses for a particular quarter
that may not reflect end-customer usage of the Company's products.
Liquidity and Capital Resources
As of June 30, 1995 the Company had working capital of $7.3 million,
which included cash and cash equivalents of $3.3 million. On June 30, 1994
working capital was $7.4 million, which included cash and cash equivalents of
$5 million.
The reduction in cash and cash equivalents in 1995 was primarily
attributable to funding of operations and capital expenditures, compensated by,
among other things, the sale of equipment and capital lease proceeds. For
details of capital lease obligations refer to Note 4 of the Notes to the
Consolidated Financial Statements.
As of June 30, 1995 the Company has 1,500 shares of redeemable preferred
stock outstanding with an involuntary liquidation value of $1,500,000. For
additional details refer to Note 9 of the Notes to the Consolidated Financial
Statements.
The Company anticipates expansion of its research and development work,
and increased marketing costs as more products are launched. It anticipates,
among other things, expanding its facilities, acquiring additional equipment,
and hiring additional personnel. The Company does not expect its income to
rise significantly during this time of expansion. In addition, the nature of
research and development is such that new discoveries and improvements may
require additional financing to take advantage of market opportunities
afforded by such discoveries and improvements. The Company is therefore
considering, among other things, raising capital through corporate
partnerships, private placements, and public offerings of securities.
Inflation and Prevailing Economic Conditions
The Company does not believe inflation has had a significant impact on
the Company's operations.
The Company does not believe exchange rates have had a significant impact
on the Company's operations. The consolidated results of the Company have
been favorably effected by the increase in the U.S. Dollar/Great Britain
pound exchange rate.
Seasonality
The Company does not believe there is any significant seasonal effect on
the Company's operations.
18
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements are included herein commencing on page F-1.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
Not applicable.
19
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Officers and Directors
The officers and directors of the Company are as follows:
Year Joined
Name Company Position
---- ----------- --------
Fredric D. Price (49) 1994 President, Chief
Executive Officer,
Acting Chief Financial Officer
and Director
David Guttmann (49) 1983 Chairman
Stephen C. Benoit (37) 1995 Vice President-Marketing and Sales
Peter Blackburn, Ph.D. (45) 1985 Executive Vice President
Ian Clack (52) 1992 Director
Douglas A. Cotter, Ph.D. (52) 1995 Director
Audrey T. Cross, Ph.D. (49) 1995 Director
John P. Friend, Ph.D. (51) 1989 Director
Robert E. Pollack, Ph.D. (54) 1995 Director
Benjamin Sporn (57) 1986 Vice President-Legal
and Secretary
- - ----------------------
Fredric Price has been President, Chief Executive Officer and a Director
of the Company since September 1994. In addition, he has been the Company's
acting Chief Financial Officer since January 1995. From July 1991 to September
1994, he was Vice President, Finance and Administration and Chief Financial
Officer of Regeneron Pharmaceuticals, Inc. For more than five years prior to
joining Regeneron, he was head of RxFDP, a consulting firm which provided
strategic planning, market development, and new product introduction services to
pharmaceutical and other health care businesses. From 1973 to 1986 he was at
Pfizer Pharmaceuticals, where he was a Vice President with both line and staff
responsibilities. Mr. Price is on the Executive Committee of the Board of
Directors of the New York Biotechnology Association. He has a BA from Dartmouth
College and an MBA from the Wharton School of the University of Pennsylvania.
20
David Guttmann has served as Director of the Company since its inception
in June 1983 and the Company's Chairman since January 1987. Until September
1994 Mr. Guttmann also served as Chief Executive Officer and President of the
Company. Mr. Guttmann also serves as Chairman of Ace Surgical Supply Co., Inc.,
and is a member of the Board of Creative Technologies Corp., a publicly traded
company.
Stephen C. Benoit was appointed Vice President-Marketing and Sales of the
Company in January 1995. Prior thereto he was with Calgene, Inc. where he
served as Vice President of Marketing from 1992 to 1994, as Vice President
Strategic Planning from 1990 to 1992, and as Director Financial Planning and
Analysis from 1987 to 1990. He received a B.B.A. and M.B.A. in finance from
Loyola Marymount University, Los Angeles, California.
Peter Blackburn, Ph.D. has been Executive Vice President of the Company
since January 1987. In 1985 Dr. Blackburn became the Company's Senior
Scientist and Co-Director of Research and in 1986 he was appointed Associate
Member in Applied Genetics at the Public Health Research Institute of New York
City. From 1984 to 1985 he was a senior investigator with Enzo Biochem, Inc.
From 1979 to 1984 he was an Assistant Professor of Biochemistry at the
Rockefeller University and received the Irma T. Hirschl Career Scientist Award
(1979-1985). He was a director of the Company from 1990 until 1994. Dr.
Blackburn received a B.Sc. with First Class Honors and a Ph.D in Biochemistry
from the University of Sheffield, England.
Ian Clack was appointed Managing Director and Chief Executive of Burns
Philp & Company Limited ("BPC") in 1994. From 1962 to 1994, Mr. Clack served in
various administrative functions and executive capacities with BPC. Mr. Clack
was elected a Director of the Company in August 1992. He received a degree in
Applied Chemistry from the Caulfield Institute of Technology.
Douglas A. Cotter, Ph.D., was elected a Director of the Company in
January 1995. Dr. Cotter has been President of Healthcare Decisions, Inc.
since 1985. Healthcare Decisions, Inc. provides corporate development
services to the healthcare and biotechnology industries in connection with
mergers and acquisitions, divestitures, strategic planning and corporate
partnering. Prior thereto for 19 years he held various management positions
in research, product development, business development and clinical
information systems in the medical products business of Corning Glass Works.
Dr. Cotter is a director of Respironics, Inc., a public company. He is also
an Adjunct Professor of Biomedical Engineering at Boston University. He has a
B.S. in engineering from Duke University and M.S. and Ph.D. degrees in
engineering from North Carolina State University.
Audrey T. Cross, Ph.D., was elected a Director of the Company in January
1995. Dr. Cross has been Associate Clinical Professor at the Institute of
Human Nutrition at the School of Public Health of Columbia University since
1988. She also works as a consultant in the areas of nutrition and health
policy. She has served as a special assistant to the United States Secretary
of Agriculture as Coordinator for Human Nutrition Policy and has worked with
both the United States Senate and the California State Senate on nutrition
policy matters. Dr. Cross received a B.S. in dietetics, a Master of Public
Health in nutrition and a Ph.D. from the University of California at Berkeley,
and a J.D. from the Hastings College of Law at the University of
21
California at San Francisco.
John P. Friend, Ph.D. has been with BPC since 1981 and is currently
General Manager, Technology and Research. He was elected a Director of the
Company in July 1989. He received a B.Sc. and a Ph.D. from the University of
Sydney (Australia) in colloid chemistry and a M.Sc. in biotechnology from the
University of New South Wales.
Robert E. Pollack, Ph.D., was elected a Director of the Company in
January 1995. Dr. Pollack has been a Professor of Biological Sciences at
Columbia University since 1978. In addition, from 1982 to 1989 he was Dean of
Columbia College. Prior thereto he was Professor of Microbiology at the State
University of New York School of Medicine at Stony Brook, Senior Scientist at
Cold Spring Harbor Laboratory, Special NIH fellow at the Weizmann Institute in
Israel, and NIH Fellow in the Department of Pathology at New York University
School of Medicine. He is the author of more than a hundred research papers
on the molecular biology of viral oncogenesis, a dozen articles in the popular
press, and three books. He received a B.A. in physics from Columbia
University and a Ph.D. in biology from Brandeis University.
Benjamin Sporn has been legal counsel to the Company since 1990 and has
served as Secretary of the Company since 1986. He was an attorney with AT&T
from 1964 until December 1989 when he retired from AT&T as a General Attorney
for Intellectual Property Matters. Mr. Sporn is also Chairman of the Board of
Directors of Creative Technologies Corp. and of Micel Corp. Mr. Sporn was a
director of the Company from 1986 until 1994. He received a BSE degree from
Rensselaer Polytechnic Institute and a J.D. degree from American University.
The directors serve for a term of one year and until their successors are
duly elected and qualified. Officers serve at the pleasure of the Board of
Directors. There are no family relationships among directors or executive
officers.
Arrangements Regarding the Election of Directors
The by-laws of the Company provide that until September 1, 1996 the Board
of Directors is to consist of seven directors, and that designated actions by
the Board require the affirmative vote of not less than six directors. The
by-laws further provide that David Guttmann and Fredric Price are designated
"Prior Directors," and that the Board of Directors is to nominate two persons
designated by the Prior Directors as the Board's nominees for election as
directors at meetings of shareholders.
Committees of the Board of Directors
The Company has an audit committee consisting of Drs. Friend and Cotter.
In addition, the Company has a compensation committee consisting of Drs.
Cotter, Cross and Pollack.
22
Scientific Advisory Board
The Company has certain scientific advisors with expertise in areas of
benefit to the Company, who serve on its Scientific Advisory Board and consult
with the Company concerning the Company's research and development programs.
Following are members of the Scientific Advisory Board working with the
Company:
Robert E. Pollack, Ph.D. - Dr. Pollack has been a Professor of Biological
Sciences at Columbia University since 1978. In addition, from 1982 to 1989 he
was Dean of Columbia College. Prior thereto he was Professor of Microbiology
at the State University of New York School of Medicine at Stony Brook, Senior
Scientist at Cold Spring Harbor Laboratory, Special NIH fellow at the Weizmann
Institute in Israel, and NIH Fellow in the Department of Pathology at New York
University School of Medicine. He is the author of more than a hundred
research papers on the molecular biology of viral oncogenesis, a dozen
articles in the popular press, and three books. He received a B.A. in physics
from Columbia University and a Ph.D. in biology from Brandeis University.
Edward Goldberg, Ph.D. - Dr. Goldberg is professor of molecular biology
and microbiology at the Tufts University School of Medicine, Dentistry and
Veterinarian Medicine. He is an authority on the mechanism of recognition and
infection of bacteria by viruses. He has also done extensive research on the
genetics, structure and function of ion exchanges related to bacterial pH
control and multi drug antiporters in bacteria . He holds a B.A. in Chemistry
from Columbia University and a Ph.D. in Biology from Johns Hopkins University.
Richard Novick, M.D. - Dr. Novick is professor of medicine and
microbiology at New York University Medical School and an Investigator at the
Skirball Institute for Biomolecular Medicine. During a postdoctoral
fellowship at the National Institute for Medical Research in Mill Hill,
England, he discovered the first plasmids in Staphylococci, those responsible
for penicillin resistance. Dr. Novick holds a B.S. from Yale University and
an M.D. with honors in Microbiology from New York University Medical School.
Marvin Moser, M.D. - Dr. Moser is clinical professor of medicine at Yale
and senior medical consultant at the National High Blood Pressure Education
Program of the National Heart, Lung and Blood Institute. Dr. Moser's work has
focused on non pharmacological approaches to the prevention and control of
hypertension and he has published extensively on this subject with over 300
publications. He has contributed to over 30 books and numerous physician and
patient education programs. Dr. Moser holds a B.A. from Cornell University and
an M.D. from Downstate University College of Medicine.
Stephen R. Peikin, M.D. - Dr. Peikin is professor of medicine and head of
the division of gastroenterology and liver diseases at Cooper Hospital Medical
Center, the Robert Wood Johnson Medical School, Camden, New Jersey. He is an
authority on the release of the hormone cholecystokinin and its effects on
satiety. He is the holder of a U.S. patent on a method of
23
stimulating satiety through the administration of an oral trypsin inhibitor.
He holds a B.A. from Temple University and an M.D. from the Thomas Jefferson
University.
Dr. Pollack is Chairman of the Scientific Advisory Board. Members of the
Scientific Advisory Board receive a per diem fee of $1,000 for each meeting of
the Board attended by them, plus reasonable expenses. In addition, the Company
has issued to each member of the Scientific Advisory Board stock options to
purchase 10,000 shares of the Company's Common Stock. The options so issued
have exercise prices ranging from $1.875 to $3.00 per share and are vested.
Such options expire five years from the date of grant. See Note 9 of the Notes
to Consolidated Financial Statements.
Item 11. EXECUTIVE COMPENSATION
The following table sets forth the compensation paid or accrued by the
Company during the three fiscal years ended June 30, 1995 (i) to its Chief
Executive Officer and (ii) to the three highest paid employees of the Company
whose cash compensation exceeded $100,000 per year in any such year (other
than the individuals listed in the table, no employee of the Company or of its
A&B subsidiary received compensation in excess of $100,000):
24
SUMMARY COMPENSATION TABLE(1)(2)
Annual Compensation
(a) (b) (c) (d) (e)
Name and Principal
Position Period Salary ($) Bonus All other
($) Compensation
Fredric Price,
President, Chief
Executive Officer 9/12/94-
and Director (3) 6/30/95 210,000 15,000
Peter Blackburn,
Executive Vice 7/1/92-
President 6/30/93 112,794 15,000
7/1/93-
6/30/94 119,713 5,700
7/1/94-
6/30/95 150,000 23,153
Benjamin T. Sporn,
Vice President- 7/1/92-
Legal 6/30/93 110,910
7/1/93-
6/30/94 117,400
7/1/94-
6/30/95 129,000
Alan English
Executive Vice 7/1/92-
President 6/30/93 84,690 9,021
7/1/93-
6/30/94 89,772 10,791
7/1/94-
6/30/95 59,267 11,500 77,139 (4)
-------------------------
(1) The above compensation does not include the use of an automobile and
other personal benefits, the total value of which do not exceed as to any
named officer or director or group of executive officers the lesser of
$50,000 or 10% of such person's or persons' cash compensation.
25
(2) Pursuant to the regulations promulgated by the Securities and Exchange
Commission (the "Commission"), the table omits a number of columns
reserved for types of compensation not applicable to the Company.
(3) Mr. Price became the Company's Chief Executive Officer on September 12,
1994.
(4) Consists of a payment made in connection with the termination of Mr.
English's employment on January 31, 1995.
None of the individuals listed above received any long-term incentive plan
awards during the fiscal year.
Employment Agreements
Effective September 1994 the Company entered into an employment agreement
with Fredric Price. The agreement provides for an annual salary of $260,000
plus a performance related bonus. He was also granted options to purchase up
to a total of 500,000 shares of Common Stock, vesting in equal installments
over a five year period commencing at the conclusion of his first year of
employment. In addition, he was granted 15,325 shares of Common Stock on the
first anniversary of the agreement. A further 15,326 shares of Common Stock
are to be granted on the second anniversary of the agreement. Although
employment is at will, salary and certain benefits continue for twelve months
after notice of termination.
Stock Option Plans
The Board of Directors has adopted and the shareholders have approved
four Stock Option Plans (the "Plan(s)"):
1. The Incentive Stock Option Plan provides for the grant of qualified
incentive stock options to officers and key employees.
2. The Non-qualified Stock Option Plan provides for the grant of options
to various persons who render certain services to the Company.
3. The 1989 Stock Option Plan provides for the grant of options to either
group which, in the case of employees, may be incentive stock options.
4. The 1991 Stock Option Plan provides for the grant of options to either
group which, in the case of employees, may be incentive stock options.
Each of the Incentive and Non-qualified Stock Option Plans permits the
purchase of an aggregate of up to 250,000 shares of Common Stock. The 1989
Stock Option Plan permits the purchase of an aggregate of up to 500,000 shares
of Common Stock. The 1991 Stock Option Plan permits the purchase of an
aggregate of up to 1,500,000 shares of Common Stock. The
26
purpose of the Plans is to attract and retain competent executive personnel
and other key employees and consultants and to provide incentives to all such
persons to use their effort and skill for the advancement and betterment of
the Company by permitting them to participate in the ownership of the Company.
Options granted as qualified incentive stock options are intended to
qualify as Incentive Stock Options within the meaning of Section 422A of the
Internal Revenue Code of 1986, as amended. The exercise price of Incentive
Stock Options granted under the Plans shall not be less than the fair market
value (110% of the fair market value for 10% or greater shareholders) of the
Common Stock on the date of grant. Incentive Stock Options may not be
exercised later than ten years from the date of grant (five years for 10% or
greater shareholders). Determinations as to recipients of stock options under
the Plans and other terms of such grants are made by the Company's Board of
Directors.
The following table sets forth information with regard to aggregated
option values at June 30, 1995 of options granted (i) to the Company's Chief
Executive Officer, and (ii) to the two highest paid employees of the Company
whose cash compensation exceeded $100,000 per year in such year. On September
12, 1994, Mr. Price was granted 500,000 options to purchase shares at $3.2625
per share. On January 9, 1995, Mr. Benoit was granted 50,000 options to
purchase shares at $3.00 per share.
AGGREGATED OPTION/ SAR EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
Individual Grants
<TABLE>
<CAPTION>
(a) (b) (c) (d) (e)
Name Shares Value Number of Unexercised Value of Unexercised In-the
Acquired on realized ($) Options at FY-End (#) Money Options at FY-End
Exercise (#)
Exercisable Unexercisable Exercisable Unexercisable
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Peter
Blackburn 0 0 170,000 0 $18,750 0
Benjamin
T. Sporn 0 0 75,000 0 0 0
Fredric
Price 0 0 0 500,000 0 0
</TABLE>
27
Pension Plans
Applied Microbiology, Inc.
Eligible employees of the Company are entitled to participate in the
Burns Philp Inc. Retirement Plan for Non-Bargaining Unit Employees, a
non-contributory pension plan (the "Pension Plan") maintained by BPC.
Assuming retirement at age 65, the Pension Plan provides benefits equal to the
greater of (a) 1.1% of the employee's final average earnings multiplied by the
employee's final average earnings in excess of the average of the contribution
and the benefit basis in effect under Section 230 of the Social Security Act
for each year in the 35-year period ending with the year of Social Security
retirement age, multiplied by the employee's years of credited service up to
35, minus any predecessor plan benefit in the case of an employee who
participated in a predecessor plan or (b) $24 multiplied by the number of
years of credited service up to 25 years plus $12 multiplied by the years of
employment from 26-40 years, minus any predecessor plan benefit in the case of
an employee who participated in a predecessor plan. The "final average
earnings" are the average monthly earnings during the five highest-paid
consecutive calendar years within the last ten calendar years of credited
service with the Company. Earnings include the salary and bonus listed in the
summary compensation table. Earnings which may be considered under the
Pension Plan are limited to $150,000 per year subject to annual cost of living
adjustments as determined by the IRS.
The following table sets forth estimated annual benefits payable upon
retirement, assuming retirement at age 65 in 1995 and a straight annuity
benefit, according to years of credited service and final average earnings.
The benefits listed are not subject to any deduction for Social Security or
other offset amounts.
Years of Credited Service
final average
earnings 15 20 25 30 35
- - ------------- ---- ---- ---- ---- ----
$25,000 $4,320 $5,760 $7,200 $8,250 $9,625
$50,000 $10,598 $14,130 $17,663 $21,196 $24,728
$75,000 $17,160 $22,880 $28,601 $34,321 $40,041
$100,000 $23,723 $31,630 $39,538 $47,446 $55,353
$150,000
and up $36,846 $49,130 $61,413 $73,696 $85,978
Peter Blackburn and Benjamin Sporn each have approximately 2.5 years, and
Fredric Price and Stephen Benoit have 0.75 and 0.6 years, respectively, of
credited service under the Pension Plan as of June 30, 1995, and, at age 65,
would have 22, 10, 17 and 28 years of credited service, respectively.
28
A&B Pension Plan
Eligible A&B employees are entitled to participate in the Burns Philp
(U.K.) plc Pension Plan, a defined benefit plan providing a pension of one
sixtieth of final pensionable earnings for each year of service at a normal
retirement age of 65. Pensionable earnings are basic salary less the basic U.K.
state pension.
The following table sets forth estimated annual benefits payable upon
retirement, assuming retirement at age 65 in 1995 and a straight annuity
benefit, according to years of credited service and final pensionable
earnings. Estimated benefits are shown in U.S. dollars based on an average
exchange rate of $1.5781 per GBP for 1995. The benefits listed are not
subject to any deductions.
Years of Credited Service
final average
earnings 15 20 25 30 35
- - ------------ ---- ---- ---- ---- ----
$25,000 $5,043 $6,724 $8,405 $10,085 $11,766
$50,000 $11,293 $15,057 $18,821 $22,585 $26,350
$75,000 $17,543 $23,390 $29,238 $35,085 $40,933
$100,000 $23,793 $31,724 $39,655 $47,585 $55,516
$150,000 $36,293 $48,390 $60,488 $72,585 $84,683
$200,000 $48,793 $65,057 $81,321 $97,585 $113,850
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's officers and directors, and persons who own more than ten percent of
a registered class of the Company's equity securities, to file reports of
ownership and changes in ownership with the Securities and Exchange
Commission. Officers, directors and greater than ten-percent shareholders are
required by SEC regulation to furnish the Company with copies of all Section
16(a) forms they file.
Based solely on review of the copies of such forms furnished to the
Company, or written representations that no Forms 5 were required, the Company
believes that during the period from July 1, 1994 through June 30, 1995 all
Section 16(a) filing requirements applicable to its officers, directors and
greater than ten-percent beneficial owners were complied with.
29
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets forth, as of September 20, 1995, information
regarding the beneficial ownership of the Company's Common Stock based upon
the most recent information available to the Company for (i) each person known
by the Company to own beneficially more than five (5%) percent of the
Company's outstanding Common Stock, (ii) each of the Company's officers and
directors and (iii) all officers and directors of the Company as a group.
Unless otherwise indicated, each stockholder's address is c/o the Company, 771
Old Saw Mill River Road, Tarrytown, New York 10591.
30
Shares Owned Beneficially
and of Record (1)
Name and Address No. of Shares % of Total
- - ---------------- ------------- ----------
Fredric D. Price (2) 115,325 *
David Guttmann (3) 628,000 3.41
Stephen C. Benoit 0 --
Peter Blackburn (4) 170,000 *
Ian Clack
222 Sutter Street
San Francisco, CA 10,000 *
Douglas A. Cotter (5)
1500 Providence Highway
Norwood, MA 02062 11,000 *
Audrey T. Cross (4)
259 Sunset Avenue
Englewood, NJ 07631 10,000 *
John P. Friend
7 Bridge Street
Sydney, NSW 2000
Australia 0 --
Robert E. Pollack (4)
813B Sherman Fairchild
Columbia University
New York, NY 10027 20,000 *
Benjamin Sporn (6) 104,125 *
Burns Philp & Company
Limited(7)
7 Bridge Street
Sydney, NSW 2000
Australia 11,583,837 63.67
All Officers and Directors
as a Group (10 persons)
(2)(3)(4)(5) and (6) 1,068,450 5.87
- - ------------------------------
* Less than 1%
(1) Includes shares issuable within 60 days upon the exercise of all
options and
31
warrants. Shares issuable under options or warrants are
owned beneficially but not of record.
(2) Includes 100,000 shares issuable upon exercise of currently
exercisable options under the Company's Stock Option Plans.
(3) 408,000 of the shares shown as owned by Mr. Guttmann are owned of
record by a family member; however, such shares may be deemed to be
beneficially owned by Mr. Guttmann. Includes shares issuable on
exercise of options by Mr. Guttmann to acquire a total of 210,000
shares.
(4) Consists of shares issuable upon exercise of currently exercisable
options under the Company's Stock Option Plans.
(5) Includes 10,000 shares issuable upon exercise of currently
exercisable options under the Company's Stock Option Plans.
(6) Includes 75,000 shares issuable upon exercise of currently
exercisable options under the Company's Stock Option Plans.
(7) Consists of shares owned by subsidiaries.
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During the fiscal year ended June 30, 1995, the Company's A&B subsidiary
made sales of approximately $2,117,000 to Mauri Laboratories Pty Limited
("Mauri"). In addition, it purchased approximately $832,000 of goods from
Mauri. Mauri is a wholly-owned subsidiary of BPC which currently holds a
controlling interest in the Company (as described below).
Certain of A&B's U.K. based staff provide accounting and administrative
services for other U.K. based subsidiaries of BPC. During the fiscal year
ended June 30, 1995, A&B, as a result of these activities, received income
from Burns Philp (U.K.) plc. of approximately $75,000.
A&B manufactures certain products on a contract basis for Imperial
Biotechnology Limited ("IBT") at its U.K production site. During the fiscal
year ended June 30, 1995, A&B received income of approximately $77,000 as a
result of these activities. IBT is a 50% owned affiliate of BPC.
From time to time, the Company advances funds to Burns Philp Inc., a
wholly owned subsidiary of BPC. During the fiscal year ended June 30, 1995,
the Company received interest income of approximately $63,000 in respect of
such advances.
Pursuant to an Agreement for the Purchase and Sale of Stock dated as of
June 30, 1992
32
(the "Purchase Agreement"), in July 1993 the Company issued
935,000 shares of Common Stock to BPC. As a result of this issuance and of
prior acquisitions of shares of Common Stock, BPC currently owns 11,583,837
shares of Common Stock, and controls the Company.
Under the Purchase Agreement, the Company and BPC entered into the
following arrangements and understandings with respect to election of
directors and related matters:
The by-laws of the Company were amended to provide, among other things,
that until September 1, 1996 the Board of Directors shall consist of seven
directors. The by-laws further provided that David Guttmann, Peter Blackburn
and Benjamin Sporn were designated "Prior Directors," and that the Board of
Directors was to nominate three persons designated by the Prior Directors as
the Board's nominees for election as directors at meetings of shareholders. In
September 1994, the Company hired Fredric D. Price as President and Chief
Executive Officer. In connection with this hiring, four directors: Peter
Blackburn, Alan English, Colin Kop and Benjamin Sporn resigned from the Board.
Mr. Price was elected to the Board and designated a Prior Director by the
remaining Prior Director, Mr. Guttmann. The Board then authorized Mr. Price
to propose three new directors to fill the remaining vacancies. In January
1995, Drs. Audrey T. Cross, Douglas A. Cotter and Robert E. Pollack were
proposed by Mr. Price and elected to the Board. See "Directors and Executive
Officers of the Registrant--Arrangements Regarding the Election of Directors."
The amended by-laws also provide that the following actions by the
Company shall require the prior favorable vote of not less than six directors:
termination of the Company's chief executive officer, or a change in his or
her responsibilities or compensation, or the retention of any chief executive
officer; removal of the Company's chairman or the election of any person as
chairman other than the person last elected to such position; the issuance of
any shares of capital stock or of securities convertible or exercisable into
shares of capital stock except as to outstanding warrants, options and other
convertible securities; the grant of options to any officer or director; any
merger, or any acquisition or disposition of assets in excess of $250,000; the
incurrence of a commitment or obligation in excess of $650,000; any change in
the Company's charter or by-laws; any transaction with any affiliate of BPC,
including any overhead charge or any other intercompany charge or allocation,
but excluding the continuation of certain current agency agreements; any
dividend or other distribution except on the 1992 Redeemable Preferred; any
purchase by BPC (whether in the public market or in private transactions, or
otherwise) of any shares of the Company's Common Stock which would increase
BPC's percentage ownership of the outstanding Common Stock beyond the
percentage ownership of such stock owned by BPC on August 31, 1992 subject to
certain increases provided for in the Agreement.
BPC also agreed that:
BPC and its affiliates will for a four-year period vote all shares of the
Company stock from time to time owned by them in favor of election as
directors of the Prior Directors and their nominees.
33
BPC and its affiliates will for a four-year period be entitled to
purchase shares of Common Stock (in the public market or in private
transactions, or otherwise) only as permitted in the Company's by-laws.
So long as BPC and its affiliates shall have control of the Company, BPC
will not sell, in a single transaction or in a series of transactions
occurring within a period of up to 18 months, to any single purchaser or
to any "group," a block of the Company shares owned by BPC or its
affiliates which shall be sufficient in itself both to (i) divest BPC and
its affiliates of control of the Company and (ii) vest control of the
Company in the purchaser or purchasers, unless BPC shall cause the
purchaser to tender for the purchase of all shares of the Company which
are owned by all shareholders of the Company on the same terms and
conditions as those which apply to the sale by BPC. The term "control"
has the meaning assigned to it in Rule 405 of Regulation C under the
Securities Act, and "group" has the meaning assigned to in Rule 13D of
the Securities Exchange Act. However, BPC is permitted to sell, without
compliance with this provision, a block of shares to an underwriter for
the purposes of a broad distribution of the shares.
An affiliate of BPC will, if required by the Company, for a four-year
period maintain its bank comfort letter in respect of not more than GBP
300,000 of bank borrowings by the Company.
So long as BPC or its affiliates owns at least 50% of the Company's total
voting power and for five years after BPC and its affiliates ceases to
own at least 50% of the Company's total voting power, neither BPC nor any
of its affiliates will manufacture, sell or otherwise deal in or with
nisin or Nisaplin (or any derivative products) except under distribution
agreements with the Company on terms equivalent to those in effect on
June 30, 1992. At such time after the five-year period aforesaid that BPC
shall be permitted to engage in the businesses aforesaid, BPC will
nevertheless continue to refrain from using trade secrets and other
confidential information which are the property of the Company.
BPC has certain demand and "piggyback" registration rights for its
shareholdings.
Change of Accountants and Fiscal Year
In connection with the consummation of the BP Transactions, the Company
in September 1992 engaged KPMG Peat Marwick LLP as its independent accountants,
and the Company changed its fiscal year to end on June 30 of each year.
34
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K
(a) 1. and 2. Financial Statements and Schedules
The financial statements are listed in the Index to Financial Statements
on page F-1 and are filed as part of this annual report.
3. Exhibits
The Index to Exhibits following the Signature Page indicates the exhibits
which are being filed herewith and the exhibits which are incorporated herein
by reference.
(b) Reports on Form 8-K
No Reports on Form 8-K were filed during the last quarter of the fiscal
year ended June 30, 1995.
35
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
APPLIED MICROBIOLOGY, INC.
By: /s/ Fredric D. Price
Fredric D. Price, President,
CEO and Director
Dated: September 28, 1995
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below as of September 28, 1995 by the following
persons on behalf of Registrant and in the capacities indicated.
/s/ Fredric D. Price
Fredric D. Price, President,
CEO and Director
(Principal Accounting and Financial
Officer)
/s/ Ian Clack
Ian Clack, Director
/s/ Douglas A. Cotter
Douglas A. Cotter, Director
/s/ Audrey T Cross
Audrey T. Cross, Director
/s/ John P. Friend
John P. Friend, Director
/s/ David Guttmann
David Guttmann,
Chairman of the Board
/s/ Robert Pollack
Robert E. Pollack, Director
EXHIBITS
Except where otherwise indicated, the following exhibits are incorporated
by reference to the correspondingly numbered exhibit in the Company's
Registration Statement on Form S-1 (No. 33-4822):
3.01 Certificate of Incorporation(1)
3.01a Certificate of Amendment to the Certificate of Incorporation(2)
3.02 Amended and Restated By-laws(2)
4.01 Form of Warrant Agreement and Form of Warrant Certificate for
Warrants included in Units
10.01 Form of Incentive Stock Option Plan
10.02 Form of Non-qualified Stock Option Plan
10.02a Form of 1989 Stock Option Plan(1)
10.02b Form of 1991 Stock Option Plan(1)
10.04 Credit and Security Agreement with PHRI dated October 31, 1985,
and Note and Warrant issued in connection therewith
10.08 Agreements with Ace Surgical Supply Company, Inc. dated
November 29, 1983 and January 10, 1986
10.09 Various Demand Notes with Stanley Marketing, HABA Distributors,
Inc., Baby Connections, D. Guttmann and Ace Surgical
10.24 Exclusive Option and Collaborative Research Agreement dated
July 1, 1988 between the Company and the University of Maryland(3)
10.25 License and License Option Agreement dated December 15, 1988
between the Company and Babson Brothers Company(3)
10.27 Option Agreement dated April 1, 1989 between the Company and
Calgon Corporation(3)
10.28 Agreement between the Company and BPC.(4)
37
10.32 Development and Supply Agreement dated as of March 19, 1991 by
and between the Company and Ciba- Geigy AG.(1)
10.32a Termination Agreement dated August 31, 1993 by and between the
Company and Ciba-Geigy AG.(5)
10.34 Consulting Agreement dated June 29, 1992 between the Company and
Donald A.M. McKay(6)
10.36 Agreement, dated October 6, 1992 between the Company and PHRI(6)
10.37 Agreement for the Purchase and Sale of Stock dated as of
June 30, 1993 by and among the Company and BP(7)
10.38 Technology and License Agreement dated as of June 29, 1992 by and
among the Company and Fermtec Prochim SpA.(7)
10.39 Investment Banking Agreement dated May 19, 1992 between the
Company and Wertheim Schroder & Company ("WSC")(2)
10.40 Letter dated June 29, 1992 from WSC to the Company regarding the
fairness of the BP Transactions(2)
10.41 Agreement dated May 3, 1993 between the Company and SmithKline
Beecham p.l.c. (Schedules omitted)(5)
10.41a Amendment dated August 16, 1994 to Development and Supply
Agreement dated as of May 3, 1993 between the Company and
SmithKline Beecham p.l.c. (subject to request for confidential
treatment)(8)
10.43 Supply Agreement dated as of January 1, 1994 by and between the
Astra/Merck Group of Merck & Co., Inc. (8)*
10.44 Development and License Agreement dated as of January 1, 1994 by
and between the Astra/Merck Group of Merck & Co., Inc. (8)*
10.45 Supply Agreement dated as of June 30, 1994 by and between the
Company and Calgon Vestal Laboratories, Inc. (8)*
38
10.46 License Agreement dated as of June 30, 1994 by and between the
Company and Calgon Vestal Laboratories, Inc. (8)*
10.47 Employment Agreement dated August 30, 1994 between the Company
and Fredric D. Price (8)
10.48 Lease dated as of February 7, 1995, between the Company and
Keren Limited Partnership (9)
10.49 Master Lease Agreement dated as of June 28, 1995, between the
Company and General Electric Capital Corporation (9)
23.01 Consent of KPMG Peat Marwick LLP (9)
27 Financial Data Schedule
- - ----------------------------
(1) Incorporated by reference to the Company's Report on Form 10-K for 1991.
(2) Incorporated by reference to the Company's Report on
Form 8-K dated September 4, 1992.
(3) Incorporated by reference to the Company's Report on Form 10-K for 1988.
(4) Incorporated by reference to the Company's Report on Form 10-Q for the
quarter ended June 10, 1989.
(5) Incorporated by reference to the Company's Report on Form 10-K for 1993.
(6) Incorporated by reference to the Company's Report on Form 10-K for the
fiscal period January 31, 1992 through August 31, 1992.
(7) Incorporated by reference to the Company's Report on Form 10-Q for the
quarter ended June 30, 1992.
(8) Incorporated by reference to the Company's Report on Form 10-K for 1994.
(9) Filed herewith.
* Subject to an order by the Securities and Exchange Commission granting
confidential treatment. Specific portions of the document for which
confidential treatment has been granted have been blacked out. Such portions
have been filed separately with the Commission pursuant to the application for
confidential treatment.
39
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
FILED WITH THE ANNUAL REPORT OF THE
COMPANY ON FORM 10-K
JUNE 30, 1995
PAGE
INDEPENDENT AUDITORS' REPORT F-2
CONSOLIDATED BALANCE SHEETS AT JUNE 30, 1995
AND 1994 F-3
CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE
YEARS ENDED JUNE 30, 1995, 1994 AND 1993 F-4
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED JUNE 30, 1995, 1994 AND 1993 F-5
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE
YEARS ENDED JUNE 30, 1995, 1994 AND 1993 F-6
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS F-7
F-1
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Applied Microbiology, Inc.:
We have audited the consolidated financial statements of Applied
Microbiology, Inc. and subsidiary as listed in the accompanying
index. These consolidated financial statements
are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the financial
position of Applied Microbiology, Inc. and subsidiary as of June
30, 1995 and 1994, and the results of their operations and their
cash flows for each of the years in the three-year period ended
June 30, 1995, in conformity with generally accepted accounting
principles.
KPMG PEAT MARWICK LLP
New York, New York
July 21, 1995
F-2
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
JUNE 30 JUNE 30
1995 1994
$000 $000
------- -------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents 3,337 5,048
Trade accounts receivable less
allowance for doubtful accounts
of $14,000 (1994 $32,000) 1,836 1,319
Inventories 2,865 1,458
Prepayments and other current assets 694 611
Due from affiliated companies 627 6
------- -------
Total current assets 9,359 8,442
Property and equipment, net 3,446 2,545
Patent costs and licensed technology,
net of amortization of $691,000
(1994 $483,000) 881 779
Other asset 102 42
------- -------
TOTAL ASSETS 13,788 11,808
------- -------
------- -------
LIABILITIES, REDEEMABLE PREFERRED STOCK
AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of notes payable
and lease obligation 149 13
Accounts payable and accrued expenses 1,306 744
Due to affiliated companies 191 234
Other liabilities 89 62
Dividends payable 34 26
Taxes payable 257 11
------- -------
Total current liabilities 2,026 1,090
Notes payable and lease obligation 770 22
Deferred taxes payable 367 432
------- -------
TOTAL LIABILITIES 3,163 1,544
------- -------
------- -------
REDEEMABLE PREFERRED STOCK
$0.01 par value. Issued and
outstanding 1,500 shares at
June 30, 1995 and June 30, 1994
(aggregate involuntary liquidation
value $1,500,000) 1,500 1,500
------- -------
STOCKHOLDERS' EQUITY:
Common stock, $0.005 par value,
authorized 25,000,000 shares.
Issued and outstanding 18,176,858
shares at June 30, 1995 and
18,155,858 at June 30, 1994 91 91
Additional paid-in capital 39,500 39,453
Accumulated deficit (29,958) (30,113)
Currency translation adjustment (508) (667)
------- -------
TOTAL STOCKHOLDERS' EQUITY 9,125 8,764
------- -------
COMMITMENTS AND CONTINGENT LIABILITIES
TOTAL LIABILITIES, REDEEMABLE PREFERRED
STOCK AND STOCKHOLDERS' EQUITY 13,788 11,808
------- -------
------- -------
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
YEAR ENDED JUNE 30
1995 1994 1993
$000 $000 $000
Sales 11,264 9,614 12,083
Cost of sales (3,258) (3,526) (5,705)
-------- -------- --------
GROSS PROFIT 8,006 6,088 6,378
Other operating income 462 542 247
Selling, general and
administrative expenses (5,041) (3,496) (2,160)
Research costs (1,840) (737) (460)
Depreciation and amortization (767) (582) (521)
Write-off of purchased research
and development costs - - (22,504)
-------- -------- --------
OPERATING INCOME/(LOSS) 820 1,815 (19,020)
Foreign exchange loss (49) (30) (39)
Interest income 148 159 65
Interest expense (2) (3) (6)
Other expenses (380) - -
-------- -------- --------
INCOME/(LOSS) BEFORE
TAX EXPENSE 537 1,941 (19,000)
Tax expense (254) (185) (423)
-------- -------- --------
NET INCOME/(LOSS) 283 1,756 (19,423)
-------- -------- --------
-------- -------- --------
NET EARNINGS/(LOSS)
PER SHARE $0.01 $0.09 ($1.37)
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Preferred Stock C o m m o n S t o c k
Applied Aplin & Barrett
Microbiology
Shares $000 Shares $000 Shares $000
------ ---- ------ ---- ------ ----
<S> <C> <C> <C> <C> <C> <C>
Balance at July 1, 1992 - - - - 2,128,515 3,890
Issue of stock in respect of:
- - - acquisition of Aplin & Barrett Ltd - - 8,450,000 43 - -
- - - technology agreement - - 850,000 4 - -
- - - licencing agreement - - 10,000 - - -
Adjustments due to reverse acquisition 1,145 - 7,528,727 37 (2,128,515) (3,890)
Provision for extra shares to be issued - - - - - -
Net loss for the year - - - - - -
Preference dividend paid and provided - - - - - -
Arising on translation during the year - - - - - -
------ ---- ---------- ---- ---------- ------
Balance at June 30, 1993 1,145 - 16,838,727 84 - -
Issue of common stock provided for
in 1993 - - 935,000 5 - -
Conversion of preferred stock to
common stock (1,145) - 327,131 2 - -
Common stock issued for cash on
exercise of options and warrants - - 55,000 - - -
Net income for the year - - - - - -
Preference dividend paid and provided - - - - - -
Arising on translation during the year - - - - - -
------ ---- ---------- ---- ---------- ------
Balance at June 30, 1994 - - 18,155,858 91 - -
Common stock issued for cash
on exercise of options and warrants - - 21,000 - - -
Net income for the year - - - - - -
Preference dividend paid and
provided - - - - - -
Arising on translation during
the year - - - - - -
------ ---- ---------- ---- ---------- ------
Balance at June 30, 1995 - - 18,176,858 91 - -
------ ---- ---------- ---- ---------- ------
------ ---- ---------- ---- ---------- ------
<CAPTION>
Additional Accumulated Currency
Paid-In Deficit Translation
Capital Adjustment TOTAL
$000 $000 $000 $000
---- ---- ---- ----
<S> <C> <C> <C> <C>
Balance at July 1, 1992 12,597 (12,006) 215 4,696
Issue of stock in respect of:
- - - acquisition of Aplin & Barrett Ltd 36,926 - - 36,969
- - - technology agreement 3,715 - - 3,719
- - - licencing agreement 35 - - 35
Adjustments due to reverse acquisition (17,973) - - (21,826)
Provision for extra shares to be issued 4,091 - - 4,091
Net loss for the year - (19,423) - (19,423)
Preference dividend paid and provided - (313) - (313)
Arising on translation during the year - - (979) (979)
--------- --------- ------- --------
Balance at June 30, 1993 39,391 (31,742) (764) 6,969
Issue of common stock provided for
in 1993 (5) - - -
Conversion of preferred stock to
common stock (2) - - -
Common stock issued for cash on
exercise of options and warrants 69 - - 69
Net income for the year - 1,756 - 1,756
Preference dividend paid and provided - (127) - (127)
Arising on translation during the year - - 97 97
--------- --------- ------- --------
Balance at June 30, 1994 39,453 (30,113) (667) 8,764
Common stock issued for cash
on exercise of options and warrants 47 - - 47
Net income for the year - 283 - 283
Preference dividend paid and
provided - (128) - (128)
Arising on translation during
the year - - 159 159
--------- --------- ------- --------
Balance at June 30, 1995 39,500 (29,958) (508) 9,125
--------- --------- ------- --------
--------- --------- ------- --------
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30
1995 1994 1993
$000 $000 $000
<S> <C> <C> <C>
Cash flows from operating activities:
Net income/(loss) 283 1,756 (19,423)
Adjustments to reconcile net income/(loss) to net cash
(used in)/provided by operating activities:
Depreciation and amortization 767 582 521
Loss on sale of equipment 129 - -
Write-off of purchased R&D - - 22,504
Deferred income tax (benefit)/expense (81) (16) 4
Changes in assets and liabilities:
(Increase)/decrease in trade accounts receivable (468) 472 (471)
(Increase)/decrease in inventories (1,345) 32 528
(Increase)/decrease in other assets (124) (169) 680
(Increase)/decrease in amounts due from affiliated companies (614) 256 (68)
Increase/(decrease) in taxes payable 232 (208) 340
Increase/(decrease) in accounts payable and accrued expenses 540 (239) 143
(Decrease)/increase in amounts due to affiliated companies (91) 150 (1,517)
Increase/(decrease) in other liabilities 33 (77) 97
------- ------- -------
Net cash (used in)/provided by operating activities (739) 2,539 3,338
------- ------- -------
Cash flows from investing activities:
Acquisitions of property and equipment (1,269) (337) (252)
Proceeds on sale of equipment 19 - -
Patent costs and licenced technology (393) (323) (571)
Business acquired - - (374)
------- ------- -------
Net cash used in investing activities (1,643) (660) (1,197)
------- ------- -------
Cash flows from financing activities:
Dividends paid (120) (192) (222)
(Decrease)/increase in bank overdraft - (289) 85
Notes payable proceeds/(repayment) (6) (13) 15
Capital lease proceeds 721 - -
Proceeds from issuance of preferred stock - - 1,500
Proceeds from issuance of common stock 47 69 35
------- ------- -------
Net cash provided by/(used in) financing activities 642 (425) 1,413
------- ------- -------
Net (decrease)/increase in cash and cash equivalents (1,740) 1,454 3,554
Cash and cash equivalents at beginning of year 5,048 3,571 21
Effect of exchange rate movement 29 23 (4)
------- ------- -------
Cash and cash equivalents at end of year 3,337 5,048 3,571
------- ------- -------
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF BUSINESS AND ACQUISITION OF APLIN & BARRETT LIMITED AND
CHANGE OF CONTROL
Applied Microbiology, Inc. ('The Company') is a New York corporation
which was incorporated on June 29, 1983. The Company has developed
non-toxic proteins which destroy bacteria. It markets its products by
direct sale and through licenses or joint ventures with companies that
have established positions in target markets.
During 1989, a wholly owned subsidiary of Burns, Philp & Company
Limited (hereinafter, Burns, Philp & Company Limited and/or any of
its wholly owned subsidiaries will be referred to as "the Burns Philp
Group") acquired 1,000,000 shares of common stock in the Company.
On May 14, 1992, the Company issued 348,837 shares of common stock to
the Burns Philp Group at US$4.30 per share, for a total consideration of
$1,500,000. On August 31, 1992, the Company issued a further
8,450,000 shares of common stock of the Company to the Burns Philp
Group in exchange for acquiring all the issued and outstanding shares of
Aplin & Barrett Limited ("A&B"). Aplin & Barrett Limited is a U.K.
company, whose principal activities are the manufacture and
marketing of preservatives, pharmaceutical products, cheese starter
cultures, and other ingredients for the dairy industry. Since 1985,
A&B had been part of the Burns Philp Group. Also on August 31, 1992,
the Burns Philp Group paid to the Company $1,500,000 in consideration
for acquiring 1,500 shares of non-convertible preferred stock of the
Company having an aggregate liquidation value of $1,500,000.
An additional 935,000 shares of the Company's common stock were
reserved for issuance to the Burns Philp Group in July 1993 if A&B's
fiscal 1993 budgeted revenues from certain products were realized.
This condition was met, and provision made for the issuing of those
shares. The shares were issued on July 2, 1993.
The preceding transactions were consummated pursuant to an Agreement
for the Purchase and Sale of Stock dated as of June 30, 1992 (the
"Purchase Agreement").
Pursuant to an agreement dated June 29, 1992, (the "Technology
Agreement") with the Burns Philp Group, the Company licensed certain
purification technology (the "Technology") from the Burns Philp Group in
exchange for 850,000 shares of the Company's common stock. The
technology was valued at $3,719,000 based on the market value of the
Company's stock issued.
As a result of the preceding transactions (the "BP transactions"),
and of prior acquisitions of shares of the Company's common stock,
the Burns Philp Group currently owns 11,583,837 shares of common
stock, which constitutes approximately 64% of the currently issued
and outstanding shares of common stock. In addition to the ownership of
common stock, the Burns Philp Group owns 1,500 shares valued at
$1,500,000 of non-convertible preferred stock of the Company.
Following the BP transactions, the Company continues as a publicly
traded corporation with A&B as a wholly owned operating subsidiary.
The acquisition of A&B by the Company and the issuance of common
stock to the Burns Philp Group resulted in the Burns Philp Group
obtaining a majority voting interest in the Company. Generally
accepted accounting principles require that the company whose
stockholders retain the majority voting interest in a combined
business be treated as the acquiror for accounting purposes. As a
consequence, the BP transactions have been accounted for as a
"reverse acquisition" for financial reporting purposes and A&B is
deemed to have acquired, at the date of the BP transactions, a 65%
interest in the Company. Despite the financial reporting requirement to
account for the acquisition as a "reverse acquisition", the
Company remains the continuing legal entity and registrant for
Securities and Exchange Commission reporting purposes.
F-7
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
In previous years, due to the "reverse acquisition", the reporting
currency for the combined entity was the Great Britain pounds
sterling (GBP). During the year ended June 30, 1995, management
concluded that presentation of the financial statements in U.S.
dollars was more meaningful to the Company's investor base and
accordingly, the Company has adopted the U.S. dollar ($) as its
reporting currency as of and for the year ended June 30, 1995.
Accordingly, all prior year information has been restated in that
currency.
The Company has adopted A&B's June 30 fiscal year which commences on
July 1 and ends on June 30. Pursuant to the change in fiscal year,
the Company filed a transitional period 10K report for the eight
month period up to August 31, 1992.
The financial statements for the years ended June 30, 1995 and 1994
include the results of both Applied Microbiology, Inc. and Aplin &
Barrett Limited for the full year. Those for the year ended June 30,
1993 include Applied Microbiology, Inc. results for the 10 months
then ended, and Aplin & Barrett Limited results for the full year.
In accordance with generally accepted accounting principles as
outlined in FASB Statement No. 2 "Accounting for Research and
Development Costs" and FASB Interpretation No. 4 "Applicability of
FASB Statement No. 2 to Business Combinations Accounted for by the
Purchase Method", the adjustments to the consolidated financial
statements account for the Burns Philp Group's purchase of the value of
the Company's research and development costs that relate to
products that are not yet commercially successful, as an expense in
1993.
2. SIGNIFICANT ACCOUNTING POLICIES
Significant accounting policies followed by the Company are in
accordance with generally accepted accounting principles and are as
follows:
a) Consolidation
The consolidated financial statements include the results of
operations and financial position of the Company and its wholly
owned subsidiary, A&B, after elimination of material inter-
company accounts and transactions. The acquisition of A&B on
August 31, 1992 has been accounted for by the purchase method,
and specifically as a "reverse acquisition" as described in
note 1 above.
b) Cash Equivalents
The Company considers all highly liquid debt instruments with
original maturities of three months or less to be cash
equivalents. Cash equivalents included in the accompanying
financial statements include money market accounts.
c) Inventories
Inventories are valued at the lower of cost (first-in, first-
out, including attributable overhead expenditure) or market
value, and consist of:
1995 1994
$000 $000
Raw materials 144 96
Work in process 1,262 611
Finished products 1,459 751
------ ------
2,865 1,458
------ ------
F-8
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
d) Property and Equipment
Property and equipment are stated at cost. Depreciation is
provided using the straight-line method to depreciate assets
over their estimated useful lives. The estimated useful lives
are as follows:
Buildings and building
improvements - 50 years
Furniture and fixtures - 20 years
Machinery and equipment - 5 or 10 years
Office equipment - 3, 5 or 6 years
Motor vehicles - 5 years
Leased assets - 3 or 5 years
e) Patent Costs and Licensed Technology
Patent costs and licensed technology have been capitalized and
are being amortized on a straight-line basis over periods
ranging from nine months to fifteen years.
f) Research and Development
Research and development costs are expensed as incurred.
g) Net Earnings/(Loss) Per Share
Earnings per share for the years ended June 30, 1995 and June
30, 1994 are computed based on the weighted average number of
shares actually outstanding plus the shares that would be
outstanding assuming the exercise of dilutive stock options,
all of which are considered to be common stock equivalents.
The number of shares that would be issued from the exercise of
stock options and warrants has been reduced by the number of
shares that could have been purchased from the proceeds at the
average market price of the Company's stock.
Common stock equivalents are not included in the computation of
average shares outstanding for 1993 because the effect of such
inclusion would be to increase earnings per share.
<TABLE>
<CAPTION>
1995 1994 1993
(No. of shares) (No. of shares) (No. of shares)
<S> <C> <C> <C>
Average shares outstanding 18,168,187 18,032,102 14,384,525
Net effect of dilutive
stock options 33,375 755,218 -
---------- ---------- ----------
Total average shares 18,201,562 18,787,320 14,384,525
---------- ---------- ----------
$000 $000 $000
---------- ---------- ----------
Net income/(loss) 283 1,756 (19,423)
Preferred stock dividend (128) (127) (313)
Net income/(loss) attributable
to common stockholders 155 1,629 (19,736)
---------- ---------- ----------
Net earnings/(loss) per share
of common stock $0.01 $0.09 ($1.37)
</TABLE>
F-9
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
h) Foreign Currencies
Transactions in currencies other than the local currency are
recorded at the rate at the date of the transaction. Balances
denominated in currencies other than the local currency are
translated at the exchange rate at the balance sheet date.
Assets and liabilities of the Company's foreign subsidiary are
generally translated at current rates, and related translation
adjustments are reported as a component of stockholders' equity.
Statement of operations accounts are translated at the average
rates of exchange reported during the year. Stockholders' equity
amounts are translated at historical rates, and variances from the
balance sheet rate are recorded as a currency translation
adjustment.
i) Taxation
The Company accounts for deferred taxes using the liability
method.
j) Reclassifications
Certain reclassifications have been made to the prior year's
financial statements to conform with the current year's
presentation.
3. PROPERTY AND EQUIPMENT
<TABLE>
<CAPTION>
1995 1994
$000 $000
<S> <C> <C>
Cost: Land 113 120
Buildings and building
improvements 1,198 1,058
Plant and other assets 5,321 5,149
Leased assets:
Furniture and fixtures 179 -
Office equipment 84 -
Machinery and equipment 647 -
--------- ---------
7,542 6,327
Accumulated depreciation and
amortization (4,096) (3,782)
--------- ---------
Net book value 3,446 2,545
--------- ---------
--------- ---------
</TABLE>
4. CAPITAL LEASES
On June 30, 1995, the Company entered into an agreement to lease certain
lab and office equipment. The terms of the lease met the criteria for
capitalization under the Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 13, "Accounting for Leases."
Accordingly the lease has been classified as a capital lease in the
accompanying financial statements. The lease agreement contains a
purchase option whereby at the expiration of the lease the Company may
purchase the leased assets at the estimated fair market value. As the
agreement was exectuted on the last day of the fiscal year, no
amortization expense on the leased assets is included in the
accompanying financial statements. The following is a schedule by years
of future minimum lease payments under capital leases together with the
present value of the net minimum lease payments.
<TABLE>
<CAPTION>
Year ending June 30: $ 000
<S> <C>
1996 241
1997 241
1998 241
1999 210
2000 210
-----------
Total minimum lease payments 1,143
Less amount representing interest (233)
-----------
Present value of net minimum lease payments 910
-----------
-----------
</TABLE>
F-10
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
4. CAPITAL LEASES continued
The obligation is secured by the leased assets and is guaranteed by
the Burns Philp Group.
This obligation is reflected in the balance sheet at June 30, 1995 as
current and non-current obligations of $143,000 and $767,000,
respectively.
5. NOTES PAYABLE
In connection with the purchase of an automobile, the Company
borrowed approximately $25,000 in December of 1992. This loan bears
interest at a rate of 8.0% per annum and matures on December 6, 1996.
The loan is secured by the automobile and as of June 30, 1995 and
1994, the outstanding balance of the loan was approximately $9,000 and
$15,000, respectively.
6. BANK LINE OF CREDIT
The Company maintains a line of credit for working capital purposes in
the U.K. of GBP 300,000 (at June 30, 1995 rate = $478,000) and pays
interest on outstanding balances at the rate of 1% over Barclays Bank
plc base rate. The arrangement expires in October 1995 and is
reviewed for renewal on an annual basis. The facility was not being
used at June 30, 1995. This line of credit includes an annual fee of
approximately $986.
7. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
The following items are included in accounts payable and accrued
expenses:
<TABLE>
<CAPTION>
1995 1994
$000 $000
-------- --------
<S> <C> <C>
Accounts payable 837 451
Accrued expenses 469 293
-------- --------
1,306 744
-------- --------
</TABLE>
F-11
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
8. PREFERRED STOCK
The Company is authorized to issue up to 5,000,000 shares of
preferred stock, with a $0.01 par value, in one or more series and to
fix the powers, designations, preferences and rights of each series.
The outstanding issue of 1,500 shares of non-voting, non-convertible
preferred stock at June 30, 1995 and 1994 is entitled to cumulative
annual dividends at the prime rate of Citibank N.A. in effect from
time to time payable in quarterly installments commencing January 1,
1993. These shares are mandatorily redeemable at $1,000 per share
plus accrued dividends on consummation by the Company of a public
offering of its securities for cash on Form S-1 or an equivalent
form. Dividends payable on this stock at June 30, 1995 were
approximately $34,000, which were paid in July.
The Company's previous issue of 1,145 shares of non-voting preferred
stock which was outstanding at June 30, 1993 was converted to common
stock during the year ended June 30, 1994 (see note 9 below).
9. CAPITAL STOCK
The Company had issued 1,145 shares of non-voting preferred stock
entitled to cumulative dividends at the rate of $120 per share payable
in semi-annual installments commencing July 1, 1992. The preferred stock
was converted by all of the preferred stockholders in September 1993 to
common stock. Each share of preferred stock which had a value of $1,000
was converted in accordance with the terms of the preferred stock
offering at a conversion price of $3.50 per share of common stock into
285.7 shares of common stock.
The Company had outstanding warrants for the purchase of its common
stock as follows:
Number of Exercise price
warrants per share
-------- ---------
Balance at July 1, 1992 1,473,136 $1.25-$6.00
Cancelled (99,768) $4.625
----------
Balance at June 30, 1993 1,373,368 $1.25-$6.00
Issued 50,000 $4.625
Expired (20,000) $1.25
Exercised (25,000) $1.25
----------
Balance at June 30, 1994 1,378,368 $1.25-$6.00
Exercised (3,000) $1.25
----------
Balance at June 30, 1995 1,375,368 $1.25-$6.00
----------
At June 30, 1995, 1,524,025 shares were issuable upon exercise of the
above warrants. All such warrants were available to be exercised
immediately. The warrants expire between 1995 and 2003. Certain of
the warrants include anti-dilution clauses.
On April 10, 1986, the Company adopted a Nonqualified Stock Option
Plan whereby options to purchase 250,000 shares of the Company's
common stock may be granted to consultants and Business Advisory
Board and Scientific Advisory Board members.
The Company adopted three Incentive Stock Option Plans ('Incentive
Plans') whereby options to purchase an aggregate of 2,250,000 shares of
the Company's common stock may be granted to officers, directors,
employees, consultants and others who render services to the Company.
The exercise price per share for the options granted under the
Incentive Plans may not be less than the fair value of the Company's
common stock on the date of grant. The options expire between 1995
and 2004.
A summary of stock option activity related to the Company's stock
option plans is as follows:
Number of Exercise price
options per share
------- ---------
Balance at July 1, 1992 1,353,250 $1.25-$4.875
Cancelled (190,000) Market price
----------
Balance at June 30, 1993 1,163,250 $1.25-$4.875
Issued 64,000 $4.00-$6.00
Expired (217,500) $1.25-$4.875
Exercised (30,000) $1.25
----------
Balance at June 30, 1994 979,750 $1.25-$6.00
Issued 560,000 $3.00-$3.625
Exercised (18,000) $1.25-$2.56
----------
Balance at June 30, 1995 1,521,750 $1.25-$6.00
----------
Each of these options is entitled to one share of common stock.
F-12
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
10. SEGMENT REPORTING
a) Significant customers
There were no significant unaffiliated customers comprising
over 10% of sales during the years 1995, 1994 and 1993. Sales to
affiliated companies represented 19%, 26%, and 28% of
consolidated sales in 1995, 1994, and 1993.
b) Information about the Company's Operations in Different
Geographic Areas
Year ended June 30, 1995
<TABLE>
<CAPTION>
United United Adjustments Consolidated
States Kingdom & Eliminations
$000 $000 $000 $000
----- ------ ------ ------
<S> <C> <C> <C> <C>
Sales to unaffiliated customers 6 9,141 - 9,147
Transfer between geographic areas 3,635 - (3,635) -
Sales to affiliated customers - 2,117 - 2,117
----- ------ ------ ------
Total revenue 3,641 11,258 (3,635) 11,264
----- ------ ------ ------
Operating profit (88) 908 - 820
----- ------ ------ ------
Identifiable assets 6,673 9,207 (2,092) 13,788
Year ended June 30, 1994
Sales to unaffiliated customers 52 7,080 - 7,132
Transfer between geographic areas 4,022 (42) (3,980) -
Sales to affiliated customers - 2,482 - 2,482
----- ------ ------ ------
Total revenue 4,074 9,520 (3,980) 9,614
----- ------ ------ ------
Operating profit 1,779 19 17 1,815
----- ------ ------ ------
Identifiable assets 6,147 6,627 (966) 11,808
</TABLE>
F-13
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
10. SEGMENT REPORTING continued
b) Information about the Company's Operations in Different
Geographic Areas continued
Year ended June 30, 1993
<TABLE>
<CAPTION>
United United Adjustments Consolidated
States Kingdom & Eliminations
$000 $000 $000 $000
----- ------ ------ ------
<S> <C> <C> <C> <C>
Sales to unaffiliated customers 375 8,271 - 8,646
Transfer between geographic areas 3,890 184 (4,074) -
Sales to affiliated customers - 3,437 - 3,437
----- ------ ------ ------
Total revenue 4,265 11,892 (4,074) 12,083
----- ------ ------ ------
Operating profit 2,508 851 (22,379) (19,020)
----- ------ ------ ------
Identifiable assets 4,419 6,322 (17) 10,724
</TABLE>
Transfers between geographic areas are accounted for as arms- length
transactions. Operating profit is total revenue less operating
expenses. Identifiable assets are those assets which are identifiable
with the operations in each geographic area.
Of the U.S. sales to unaffiliated customers there were no export
sales.
Sales of the U.K. operation to unaffiliated customers by
geographical area were as follows:-
<TABLE>
<CAPTION>
1995 1994 1993
$000 $000 $000
-------- -------- --------
<S> <C> <C> <C>
North America 585 685 -
Europe 4,816 3,531 5,798
South America 1,983 1,497 1,475
Other 1,757 1,367 998
-------- -------- --------
9,141 7,080 8,271
-------- -------- --------
</TABLE>
c) Industry
The Company's business and that of A&B have been in a single industry
segment - the research, development, production and marketing of
antimicrobial proteins and dairy ingredients for various applications.
F-14
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
11. RELATED PARTY TRANSACTIONS
a) Transactions with affiliated companies were as follows:
1995 1994 1993
$000 $000 $000
---- ---- ----
Sales to subsidiaries of
common parent:
Mauri Laboratories Pty. Ltd 2,117 2,107 3,366
Burns Philp Food Inc. - 375 71
Purchases from subsidiary
of common parent:
Mauri Laboratories Pty. Ltd 832 528 383
Income from manufacturing
on behalf of associate
of parent:
Imperial Biotechnology Ltd
(formerly IBT Products Ltd) 77 - -
Income from manufacturing on
behalf of subsidiary of
common parent:
Burns Philp R&D Ltd (formerly
Imperial Biotechnology Ltd) - 36 74
Management fees received from
subsidiaries of common parent:
Burns Philp (U.K.) Plc 75 67 66
Burns Philp R&D Ltd (formerly
Imperial Biotechnology Ltd) - 28 28
Loan interest received from
subsidiaries of common parent:
Burns Philp Inc. 63 48 -
Burns Philp (U.K.) Plc - 16 34
From time to time the Company advances money to affiliated
companies. Interest receivable on these advances is as shown
above.
In addition, the Company periodically incurs expenditures on
behalf of affiliated companies for which it is reimbursed and
reimburses affiliates for expenditures incurred on its behalf.
The Company paid an affiliate $20,000 during fiscal year 1995
for rent of office space and facilities (1994 $38,000; 1993
$27,000).
Other related party transactions are described in note 1 above.
b) Amounts due from/(to) affiliated companies were as follows:
1995 1994
$000 $000
---- ----
Subsidiaries of common parent:
Burns Philp (U.K.) Plc (10) 6
Burns Philp Inc. - (140)
Mauri Laboratories Pty. Ltd 446 (71)
Burns Philp R&D Ltd (formerly
Imperial Biotechnology Ltd) - (20)
Burns Philp Food Inc. - (3)
---- ----
436 (228)
---- ----
Disclosed as:
Due from affiliated companies 627 6
Due to affiliated companies (191) (234)
---- ----
436 (228)
---- ----
F-15
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
12. OTHER EXPENSES
In September 1994, the Company terminated a lease. In February 1995
the Company settled a dispute arising from this termination, and an
amount of $232,000 was included in the Statement of Operations.
In addition to the above, the Company had incurred professional fees
relating to its proposed relocation. A portion of these fees were
considered irrecoverable, and $59,000 was included in the Statement of
Operations.
During the year ended June 30, 1995, the Company terminated the
employment of a senior executive based in the U.K. Costs of this
termination, $89,000, were included in the Statement of Operations.
13. INCOME TAXES
The income tax expense consists of:
1995 1994 1993
$000 $000 $000
---- ---- ----
Current 335 201 419
Deferred (81) (16) 4
---- ---- ----
254 185 423
The taxing authorities in the U.K. have questioned the
appropriateness of certain income tax deductions taken by A&B for
the fiscal years ended June 30, 1994 and June 30, 1993 relative to
payments made by A&B to the Company. The deductions aggregate GBP
2,683,000 (approximately $4,278,000) for fiscal 1994 and GBP 2,601,000
(approximately $4,147,000) for fiscal 1993. In 1995 the deductions
aggregate GBP 2,302,000 (approximately $3,633,000). A&B believes that
these deductions are appropriate. If the taxing authorities ultimately
deny these deductions, A&B, based on advice of outside counsel, believes
that it is more likely than not that its position will be upheld upon
appeal. The tax effect of the potential disallowance of these
deductions has not been reflected in the accompanying consolidated
financial statements.
Income tax expense attributed to pre-tax income differed from the
amounts computed by applying the U.S. federal statutory tax rate to
pre-tax income as a result of the following:
1995 1994 1993
$000 $000 $000
---- ---- ----
Computed 'expected' tax
expense 188 679 (6,650)
Increase/(reduction) in
income taxes resulting from:
Change in the beginning-of-
the-year balance of the
valuation allowance for
deferred tax assets allocated
to income tax expense 86 (652) (884)
Non-deductibility of write-off
of purchased research and
development - - 7,876
Lower tax rate on foreign
earnings (16) (1) (19)
State and local taxes - 140 95
Other items (4) 19 5
------- ------- -------
254 185 423
F-16
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
13. INCOME TAXES Continued
The tax effects of temporary differences that give rise to
significant portions of deferred tax assets and liabilities are as
follows:
1995 1994
$000 $000
---- ----
Deferred tax asset
Net operating loss carryforwards 2,118 2,032
Less valuation allowance (2,118) (2,032)
------- -------
- -
------- -------
Deferred tax liability
Plant and equipment differences between
depreciation and capital allowances (230) (287)
Pension costs deductible as paid (136) (150)
Other (1) 5
------- -------
(367) (432)
------- -------
Net deferred tax liability (367) (432)
At June 30, 1995, the Company has net operating loss carryforwards
for United States federal income tax purposes of approximately
$6,050,000 which are available to offset future United States federal
taxable income, if any, through 2010.
Pretax income of the Company and its source for the years ended June
30, 1995, 1994 and 1993 is as follows:
YEAR TOTAL FOREIGN DOMESTIC
---- ----- ------- --------
1993 (19,000) 995 (19,995)
1994 1,941 61 1,880
1995 537 783 (246)
14. COMMITMENTS AND CONTINGENT LIABILITIES
In July 1991, the Company entered into an exclusive license agreement
whereby the Company received a license, with the right to sublicense,
the use of a deodorant formulation. In exchange, the Company has
agreed to pay royalties (as defined). Through June 30, 1995, the
Company has not earned any revenue from these licenses.
The Company has entered into various research and license agreements
with certain universities to supplement the Company's research
activities and to obtain for the Company rights to certain
technology. The agreements generally require the Company to fund the
research and to pay royalties based upon a percentage of product
sales.
The Company has consulting agreements with several of its Scientific
Advisory Board members and other consultants. These agreements
generally are for a term of one year and are terminable at the
Company's option.
Under operating leases, the Company and A & B lease certain office and
laboratory space in the U.S. and the U.K. These leases expire in the
years 2002 and 2013. Payments under these leases were approximately
$54,000 in 1995, $49,000 in 1994 and $46,000 in 1993. Future
noncancellable minimum payments under these leases are as follows:
Year $000
1996 433
1997 433
1998 433
1999 433
2000 433
Thereafter 1462
------
Total 3627
------
F-17
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
15. SUPPLEMENTAL CASH FLOW INFORMATION
1995 1994 1993
$000 $000 $000
---- ---- ----
Interest paid 2 3 6
---- ---- ----
---- ---- ----
Taxes paid 103 373 29
---- ---- ----
---- ---- ----
16. PENSION BENEFITS
i) The Company participates in a defined benefit pension plan of
Burns Philp Inc., an affiliated company, and the plan is called
the 'Burns Philp Inc. Retirement Plan for Non-Bargaining Unit
Employees'. This plan provides retirement benefits based upon
years of service, or a combination of employee compensation and
years of service.
Contributions payable to the plan were approximately $28,000 in
1995 and $11,000 in 1994. There were no contributions to the
plan in prior years.
ii) A&B participates in a defined benefit pension plan of Burns
Philp (U.K.) plc, an affiliated company called 'The Burns Philp
(U.K.) plc Pension Plan'. The plan provides a pension of one
sixtieth of final pensionable earnings for each year of service at
a normal retirement age of 65. Pensionable earnings is basic
salary less the basic U.K. state pension. On death in service,
a lump sum benefit of three times basic salary is paid. In
addition, on death at any time, a spouse's pension of one-half of
the pension (or prospective pension) becomes payable. There
is a special category of membership, which is closed to new
entrants, which provides a cash sum based on final salary and
length of service at retirement.
Employee Groups covered
Permanent U.K. employees who have completed six months service.
Funding policy
That the assets should be at least equal to the present value of
obligations in respect of service to the valuation date taking
account of the projected final earnings of active members.
Types of assets held
The investments comprise Managed Fund Units, and since October 1
1991, have been managed by Pensions Management (SWF) Limited.
F-18
<PAGE>
APPLIED MICROBIOLOGY, INC. AND SUBSIDIARY
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
16. PENSION BENEFITS Continued
The funding status of the Burns Philp (U.K.) plc Pension Plan as
of June 30, 1995 and 1994 is as follows:
1995 1994
$000 $000
---- ----
Actuarial present value of benefit
obligations:
Vested benefit obligation (3,200) (3,184)
-------- --------
Accumulated benefit obligation (3,490) (3,472)
-------- --------
Projected benefit obligation for service
rendered to date (4,152) (4,131)
Plan assets at fair value 4,285 3,639
-------- --------
Plan assets in excess of/(less than)
projected benefit obligation 133 (492)
Unrecognized net loss 616 1,289
Unrecognized net transition asset (338) (350)
-------- --------
Prepaid cost 411 447
-------- --------
-------- --------
Of the above prepaid costs of $411,000 at June 30, 1995,
$395,000 (1994 $384,000) relates to A&B as determined by
actuarial valuation, and is therefore included in the accounts of
the Company.
On termination of the plan these monies would be returned to
the contributing companies.
Net pension cost for 1995, 1994, and 1993 included the
following components:
1995 1994 1993
$000 $000 $000
---- ---- ----
Service costs - benefits
earned during the period 183 118 77
Interest cost on projected
benefit obligation 262 192 147
Actual return on plan assets (292) (222) (178)
Net amortization and deferral 39 15 (3)
------- ------- -------
Net pension cost 192 103 43
Assumptions used in accounting for the pension plan as at June 30
1995, 1994 and 1993 were:
1995 1994 1993
% % %
Discount rate 9 8 9
Rates of increase in
compensation levels 7 7 7
Expected return on assets 10 10 10
F-19
KEREN LIMITED PARTNERSHIP,
Landlord
and
APPLIED MICROBIOLOGY, INC.,
Tenant
---------------------------------------
LEASE
---------------------------------------
The Landmark at Eastview
Towns of Greenburgh
and Mount Pleasant
Westchester County, New York
TABLE OF CONTENTS
Article Page
1 - Demise and Rent and Definitions . . . . . . . . . . . . . 1
2 - Use . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3 - Condition of Premises . . . . . . . . . . . . . . . . . . 5
4 - Tax Payments . . . . . . . . . . . . . . . . . . . . . . 8
5 - Operating Expense Payments . . . . . . . . . . . . . . . 10
6 - Subordination, Notice to Superior Lessors and Superior
Mortgagees . . . . . . . . . . . . . . . . . . . . . . . 14
7 - Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 17
8 - Assignment, Subletting and Mortgaging . . . . . . . . . . 17
9 - Compliance With Legal and Insurance Requirements . . . . 26
10 - Insurance . . . . . . . . . . . . . . . . . . . . . . . 28
11 - Rules and Regulations . . . . . . . . . . . . . . . . . 30
12 - Alterations . . . . . . . . . . . . . . . . . . . . . . 31
13 - Landlord's and Tenant's Property . . . . . . . . . . . . 33
14 - Repairs and Maintenance . . . . . . . . . . . . . . . . 34
15 - Electric Energy . . . . . . . . . . . . . . . . . . . . 35
16 - Heat, Ventilation and Air-Conditioning . . . . . . . . . 38
17 - Other Services; Service Interruption . . . . . . . . . . 39
18 - Access and Name of Project . . . . . . . . . . . . . . . 40
19 - Notice of Occurrences . . . . . . . . . . . . . . . . . 43
20 - Non-Liability and Indemnification . . . . . . . . . . . 43
21 - Damage or Destruction . . . . . . . . . . . . . . . . . 44
22 - Eminent Domain . . . . . . . . . . . . . . . . . . . . . 46
23 - Surrender and Holding Over . . . . . . . . . . . . . . . 48
24 - Default . . . . . . . . . . . . . . . . . . . . . . . . 49
i
25 - Re-entry by Landlord . . . . . . . . . . . . . . . . . . 50
26 - Damages . . . . . . . . . . . . . . . . . . . . . . . . 51
27 - Affirmative Waivers . . . . . . . . . . . . . . . . . . 54
28 - No Waivers . . . . . . . . . . . . . . . . . . . . . . . 54
29 - Curing Defaults . . . . . . . . . . . . . . . . . . . . 55
30 - Broker . . . . . . . . . . . . . . . . . . . . . . . . . 55
31 - Notices . . . . . . . . . . . . . . . . . . . . . . . . 56
32 - Estoppel Certificates . . . . . . . . . . . . . . . . . 56
33 - Execution and Delivery of Lease . . . . . . . . . . . . 57
34 - Recording of Lease . . . . . . . . . . . . . . . . . . . 57
35 - Parking . . . . . . . . . . . . . . . . . . . . . . . . 57
36 - Environmental Compliance . . . . . . . . . . . . . . . . 57
37 - Signs . . . . . . . . . . . . . . . . . . . . . . . . . 58
38 - Approval Contingency . . . . . . . . . . . . . . . . . . 59
39 - Relocation of Premises . . . . . . . . . . . . . . . . . 59
40 - Partnership or Multi-Person Tenant . . . . . . . . . . . 60
41 - Miscellaneous . . . . . . . . . . . . . . . . . . . . . 61
42 - Right of First Offer . . . . . . . . . . . . . . . . . . 63
43 - Expansion Option . . . . . . . . . . . . . . . . . . . . 65
ii
EXHIBITS
Exhibit A - Plan of Premises
Exhibit B - Schedule of Fixed Rent
Exhibit C - Rules and Regulations
Exhibit D - Parking Area
Exhibit E - Plans and Specifications
Exhibit F - First Offer Space
Exhibit G - Expansion Space
Exhibit H - Cleaning Schedule
iii
LEASE, dated as of February 7, 1995, between KEREN
LIMITED PARTNERSHIP, a Delaware limited partnership having an
office at 777 Old Saw Mill River Road, Tarrytown, New York 10591-
6705 (herein called "Landlord"), and APPLIED MICROBIOLOGY, INC.,
a New York corporation having an office at 170 53rd Street,
Brooklyn, New York 11232-4319 (herein called "Tenant").
W I T N E S S E T H :
ARTICLE 1 - Demise and Rent and Definitions
1.01. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, the Premises (as defined in Sec-
tion 1.02) in the building formerly known as the IBM Building and
identified as such on the plan attached hereto as Exhibit A
(herein called the "Building") on Landlord's land (herein called
"Land") located along Old Saw Mill River Road, partly in the Town
of Greenburgh and partly in the Town of Mount Pleasant, in the
County of Westchester and State of New York and called "The
Landmark at Eastview." Landlord intends to and shall have the
right at any time to cause part or parts of the Land to become a
separate tax lot or separate tax lots in connection with future
development thereof. If Landlord does so, any separate tax lots
that do not include the Premises shall be excluded from the Land
and "Land" shall mean only the land in the tax lot of which the
Premises are a part. The Land and all of the buildings and other
improvements presently and hereafter located thereon are herein
collectively called the "Project." The buildings and other
improvements presently and hereafter located on the Land are
herein collectively called the "Improvements."
1.02. The premises (herein called the "Premises")
leased to Tenant consist of approximately 20,427 square feet of
space, and are shown on Exhibit A. Tenant shall have, as
appurtenant to the Premises, the non-exclusive right to use in
common with others, subject to the terms and conditions of this
Lease, including the Rules and Regulations (as hereinafter
defined): (a) the common lobbies, corridors, stairways and
elevators of the Building, if any, and (b) if the Premises
includes less than the rentable floor area of any floor, the
common toilets, corridors and lobby, if any, of such floor.
1.03. The term of this Lease (herein called the
"Term") shall commence on the date (herein called the
"Commencement Date") that is the earlier of (i) the Substantial
Completion Date (as hereinafter defined) or (ii) the date on
which Tenant takes occupancy of the Premises for any use
permitted under this Lease (provided, however, that Tenant's use
of certain space in the Building pursuant to that certain license
agreement between Landlord and Tenant dated December 23, 1994
shall not affect the determination of the Commencement Date) and
shall end at 11:59 p.m. on the last day of the month in which the
seventh anniversary of the Commencement Date occurs, or on such
earlier date upon which the Term shall expire or be canceled or
terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law. Promptly following the Commencement
Date the parties hereto shall enter into an agreement in form and
substance satisfactory to Landlord setting forth the Commencement
Date. If this Lease contains any renewal option or options, then
upon the valid exercise of any renewal option, the word "Term"
shall be deemed to include the renewal period for which said
option or options was or were exercised.
1.04. The rents shall be and consist of (a) fixed rent
(herein called the "Fixed Rent") at the rate or rates per annum
set forth on Exhibit B which shall be payable in equal monthly
installments in advance on the first day of each and every
calendar month during the Term (except that Tenant shall pay,
upon the execution and delivery of this Lease by Tenant, the sum
of $31,554.17, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease), and
(b) additional charges (herein called the "Additional Charges")
consisting of all other sums of money as shall become due from
and payable by Tenant to Landlord hereunder; all the Fixed Rent
and Additional Charges shall be paid in lawful money of the
United States to Landlord at its office c/o Keren Developments
Inc., 777 Old Saw Mill River Road, Tarrytown, New York
10591-6705, Attention: Accounts Receivable, or such other place,
or to Landlord's agent and at such other place, as Landlord shall
designate by notice to Tenant.
1.05. Tenant shall pay the Fixed Rent and Additional
Charges promptly when due without notice or demand therefor and
without any abatement, deduction or setoff for any reason
whatsoever, except as may be expressly provided for in this Lease
or by law. If the Commencement Date occurs on a day other than
the first day of a calendar month, the Fixed Rent for the partial
calendar month at the commencement of the Term shall be prorated.
1.06. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct Fixed Rent or
Additional Charges shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or provided at law.
1.07. Tenant shall pay the Fixed Rent and Additional
Charges as above and as herein provided, by good and sufficient
check (subject to collection) drawn on a New York City bank which
is a member of the New York Clearing House or a successor
thereto.
2
1.08. If Tenant fails to make any payment of Fixed
Rent or Additional Charges within 5 business days after the due
date thereof, Tenant shall pay to Landlord a late charge of 4% of
the amount of such payment. Such late charge shall be due and
payable on demand.
1.09. If any of the Fixed Rent or Additional Charges
shall be or become uncollectible, reduced or required to be
refunded because of any Legal Requirements (as defined in Sec-
tion 1.10(i)), Tenant shall enter into such agreement(s) and take
such other steps (without additional expense to Tenant) as
Landlord may reasonably request and as may be legally permissible
to permit Landlord to collect the maximum rents which from time
to time during the continuance of such legal rent restriction may
be legally permissible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal
rent restriction, (a) the rent shall become and thereafter be
payable in accordance with the amounts reserved herein for the
periods following such termination and (b) Tenant shall pay to
Landlord, to the maximum extent legally permissible, an amount
equal to (i) the rent which would have been paid pursuant to this
Lease but for such legal rent restriction, less (ii) the rent
actually paid by Tenant during the period such legal rent
restriction was in effect.
1.10. The following terms, whenever used in this
Lease, shall have the meanings indicated:
(a) The term "and/or" when applied to two or
more matters or things shall be construed to apply to any
one or more or all thereof as the circumstances warrant at
the time in question.
(b) The term "Business Days" shall mean all days
except Saturdays, Sundays and days observed by the Federal
or the state governments as legal holidays.
(c) The term "Business Hours" shall mean 9:00
a.m. to 6:00 p.m.
(d) The terms "herein" and "hereunder," and
words of similar import, shall be construed to refer to
this Lease as a whole, and not to any particular Article or
Section, unless expressly so stated.
(e) The term "Insurance Requirements" shall mean
the rules, regulations, orders and requirements of the New
York Board of Underwriters and/or the New York Fire
Insurance Rating Organization and/or any other similar body
performing the same or similar functions and having
jurisdiction or cognizance over the Building and/or the
Premises, whether now or hereafter in force, and the
3
reasonable requirements of any insurance policy maintained
by Landlord.
(f) The term "Landlord" shall mean only the
owner at the time in question of the Building or of a lease
of the Building, so that in the event of any transfer or
transfers of title to the Building or of Landlord's
interest in a lease of the Building, the transferor shall
be and hereby is relieved and freed of all obligations of
Landlord under this Lease accruing after such transfer, and
provided that such transferee has assumed and agreed to
perform and observe all obligations of Landlord herein
during the period it is the holder of Landlord's interest
under this Lease.
(g) The term "Lease Interest Rate" shall mean a
rate equal to the lesser of (a) the rate announced by
Citibank, N.A. or its successor from time to time as its
prime or base rate, plus 4%, or (b) the maximum applicable
legal rate, if any, from the date such amount became due
and payable to the date of payment thereof by Tenant.
(h) The term "Lease Year " shall mean the
12-month period beginning on the Commencement Date or
commencing on any anniversary of the Commencement Date.
(i) The term "Legal Requirements" shall mean
laws and ordinances of any or all of the federal, state,
city, town, county, borough and village governments and
rules, regulations, orders and directives of any and all
departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-
public authorities having jurisdiction over the Building
and/or the Premises, and the direction of any public
officer pursuant to law, whether now or hereafter in force.
(j) The term "person" shall mean any natural
person or persons, a partnership, a corporation, and any
other form of business or legal association or entity.
(k) The term "Tenant" shall mean the Tenant
herein named or any assignee or other successor in interest
(immediate or remote) of the Tenant herein named, which at
the time in question is the owner of the Tenant's estate
and interest granted by this Lease; but the foregoing
provisions of this subsection shall not be construed to
permit any assignment of this Lease not otherwise permitted
hereunder or to relieve the Tenant herein named or any
assignee or other successor in interest (whether immediate
or remote) of the Tenant herein named from the full and
prompt payment, performance and observance of the
4
covenants, obligations and conditions to be paid, performed
and observed by Tenant under this Lease.
ARTICLE 2 - Use
2.01. Tenant shall use and occupy the Premises
solely as laboratories and/or general and executive offices and
for no other purpose.
2.02. If any governmental license or permit shall be
required for the proper and lawful conduct of Tenant's business
in the Premises or any part thereof (other than the present
certificate of occupancy for the Premises or for the Building),
Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and, upon written request of
Landlord, submit the same to Landlord for inspection. Tenant
shall at all times comply with the terms and conditions of each
such license or permit. Tenant shall not at any time use or
occupy, or suffer or permit anyone to use or occupy, the
Premises, or any part thereof, in any manner (a) which violates
the certificate of occupancy for the Premises or for the
Building or any other permit or license issued pursuant to any
Legal Requirements; (b) which causes or is liable to cause
injury to the Building or any equipment, facilities or systems
therein; (c) which constitutes a violation of the Legal
Requirements or Insurance Requirements; (d) which impairs the
character or appearance of the Building as a first class office
and research building; (e) which impairs the proper and
economic maintenance, operation and repair of the Building
and/or its equipment, facilities or systems; or (f) which
unreasonably annoys or inconveniences other tenants or
occupants of the Project. Tenant shall not at any time use or
occupy, or suffer or permit anyone to use or occupy, the
Premises, or any part thereof, for (i) the production or
disposal of any toxic chemicals, (ii) a banking, trust company,
or safe deposit business, or (iii) a restaurant and/or bar.
ARTICLE 3 - Condition of Premises
3.01. Tenant is leasing the Premises "as is" on the
date hereof, except for the Tenant Improvements (as hereinafter
defined); and the taking of possession by Tenant of the
Premises shall be conclusive evidence as against Tenant that
the Premises and the Building were in good and satisfactory
condition at the time such possession was taken.
3.02. If Landlord is unable to give possession of
the Premises on the Commencement Date because of the fact that
a temporary or permanent certificate of occupancy has not been
procured, or for any other reason (including, but not limited
to, the occurrence of any of the events described in Sec-
tion 41.04), Landlord shall not be subject to any liability for
5
failure to give possession on the Commencement Date and the
validity of this Lease shall not be impaired under such
circumstances, nor shall the same be construed in any way to
extend the Term, but the Fixed Rent and Additional Charges
payable hereunder shall be abated (provided Tenant is not
responsible for the inability to obtain possession) until
Landlord tenders possession to Tenant. Tenant hereby waives
the provisions of Section 223-a of the Real Property Law of the
State of New York, and agrees that the provisions of this
Article are intended to constitute "an express provision to the
contrary" within the meaning of said Section 223-a.
3.03. Landlord agrees to install and construct at
the Premises the tenant improvements (the "Tenant
Improvements") described in the plans and specifications
identified in Exhibit E attached hereto (the "Tenant
Improvement Plans"). The materials to be installed and the
work to be rendered and performed by Landlord, or which
Landlord causes to be rendered or performed by outside
contractors, pursuant to this Section 3.03 shall hereinafter be
called "Landlord's Work".
3.04. The cost of constructing the Tenant
Improvements (the "TI Cost") shall be borne and paid as
follows:
(a) Landlord shall bear and pay up to the first
$500,000 of the TI Cost and shall provide to Tenant copies
of all invoices and/or bills relating to the first
$500,000 of the TI cost.
(b) If the TI Cost is less than $500,000 then
Tenant shall receive a credit against the first monthly
Fixed Rent payment(s) due under the Lease equal to the
difference between $500,000 and the TI Cost.
(c) If the TI Cost exceeds $500,000, Tenant
shall bear and pay such excess, as Additional Charges
within 10 days after demand by Landlord (which may be made
from time to time after such excess begins to accrue),
which demand shall be accompanied by copies of all
invoices and/or bills relating to the Landlord's Work (to
the extent not theretofore provided to Tenant).
(d) Landlord shall have right to stop
Landlord's Work if Tenant fails to pay any sums due under
paragraph 3.04(c).
3.05. (a) Landlord shall give Tenant notice (the
"Landlord's Anticipated Completion Notice") approximately 30
days prior to the date when Landlord expects Landlord's Work to
be substantially complete, but Landlord shall have no liability
6
as a consequence of the substantial completion of Landlord's
Work before or after such date.
(b) Landlord shall give Tenant notice (the
"Landlord's Substantial Completion Notice") on (or promptly
after) the date that Landlord's Work has been (or is deemed to
have been) substantially completed. For purposes of this
Lease, subject to Section 3.05(c), the "Substantial Completion
Date" shall be the later of (i) the date of giving of
Landlord's Substantial Completion Notice or (ii) the date 30
days after the date of the giving of Landlord's Anticipated
Completion Notice. If the Landlord's Substantial Completion
Notice is not based upon the deemed substantial completion of
Landlord's Work pursuant to Section 3.06(b), then such Notice
shall be accompanied by a certification of Landlord's architect
or construction consultant ("Landlord's Certification")
certifying the substantial completion of Landlord's Work.
(c) The Landlord's Substantial Completion Notice
shall be conclusive and binding on Tenant unless Tenant
disputes Landlord's determination of the Substantial Completion
Date within 15 days thereafter. Landlord and Tenant shall
endeavor in good faith to resolve such a dispute, but until the
resolution thereof (whether by mutual agreement or
adjudication), Landlord's determination shall apply for all
purposes hereof.
3.06. (a) Landlord's Work shall be deemed
substantially completed for the purposes of this Section 3.06,
notwithstanding the fact that minor or insubstantial details of
construction, mechanical adjustment or decoration remain to be
performed, the noncompletion of which does not materially
interfere with Tenant's use of the Premises.
(b) Landlord's Work shall also be deemed
substantially completed for purposes of this Section 3.06 if a
delay shall occur in the substantial completion of the
Landlord's Work as the result of:
(i) any request by Tenant that Landlord
delay the completion of any Landlord's Work;
(ii) any breach or default by Tenant in the
performance of its obligations under this Lease;
(iii) any negligent or wrongful act of Tenant
or its officers, agents, servants or contractors;
or
(iv) any reasonably necessary displacement
of the Landlord's Work from its place in Landlord's
construction schedule resulting from any of the
7
causes for delay described above and the fitting of such
Landlord's Work back into such schedule.
ARTICLE 4 - Tax Payments
4.01. For the purposes of this Article 4 and other
provisions of this Lease:
(a) The term "Taxes" shall mean (i) the real
estate taxes, assessments and special assessments imposed
upon the Project by any federal, state, municipal or other
governments or governmental bodies or authorities excluding
however any income or franchise taxes imposed on Landlord
and (ii) any expenses incurred by Landlord in contesting
such taxes or assessments and/or the assessed value of the
Improvements and/or the Land, which expenses shall be
allocated to the Tax Year to which such expenses relate.
If at any time during the Term the methods of real estate
taxation prevailing on the date hereof shall be altered so
that in lieu of, or as an addition to or as a substitute
for, the whole or any part of such real estate taxes,
assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (x) a
tax, assessment, levy, imposition, license fee or charge
wholly or partially as a capital levy or otherwise on the
rents received therefrom, or (y) any other such additional
or substitute tax, assessment, levy, imposition or charge,
then all such taxes, assessments, levies, impositions, fees
or charges or the part thereof so measured or based shall
be deemed to be included within the term "Taxes" for the
purposes hereof.
(b) The term "Tax Year" shall mean the period of
12 calendar months beginning on January 1, 1998, and each
succeeding 12-month period thereafter.
(c) The term "Tenant's Proportionate Share"
shall mean 2.77%, subject to change as provided in Sec-
tion 4.06 and subject to change as provided below in this
subdivision (c). If any building or buildings is or are
enlarged, demolished or removed from the Land or any new
building or buildings is or are erected on the Land, then,
except as is otherwise provided in Section 5.02, the term
"Tenant's Proportionate Share" shall mean the percentage
that represents a fraction the numerator of which is the
number of square feet of gross rentable area in the
Premises and the denominator of which is the aggregate
number of square feet of gross rentable area of all the
buildings on the Land, subject to change as provided in
Section 4.06.
8
4.02. Any Taxes for a real estate fiscal tax year, a
part of which is included within a particular Tax Year and a
part of which is not so included, shall be apportioned on the
basis of the number of days in the real estate fiscal tax year
included in the particular Tax Year for the purpose of making
the computations under Section 4.03.
4.03. For each Tax Year, any part of which shall
occur during the Term, Tenant shall pay to Landlord an amount
(prorated to the extent provided in Section 4.05, if
applicable) (herein called the "Tax Payment") equal to Tenant's
Proportionate Share of the Taxes for such Tax Year. The Tax
Payment for each Tax Year shall be due and payable in
installments in the same manner and at the same time that the
Taxes for such Tax Year are first due and payable to the
appropriate taxing authority. Landlord shall bill Tenant for
any Tax Payment installment(s) payable by Tenant pursuant to
this Article, such bill to set forth in reasonable detail the
computation of the Tax Payment and the particular
installment(s) thereof being billed. In the event of any
increase or decrease in the Taxes for any Tax Year, whether
during or after such Tax Year, the Tax Payment for such Tax
Year shall be appropriately adjusted and paid or refunded, as
the case may be, in accordance therewith.
4.04. If Landlord shall receive a refund of the
Taxes for any Tax Year, Landlord shall either pay to Tenant, or
permit Tenant to credit against subsequent payments under this
Lease, Tenant's Proportionate Share of the net refund (after
deducting from such total refund the costs and expenses,
including, but not limited to, appraisal, accounting and legal
fees of obtaining the same, to the extent that such costs and
expenses were not included in the Taxes for such Tax Year);
provided, however, such payment or credit to Tenant shall in no
event exceed Tenant's Tax Payment paid for such Tax Year.
4.05. If a Tax Year ends after the expiration or
termination of the Term, the Tax Payment therefor shall be
prorated to correspond to that portion of such Tax Year
occurring within the Term.
4.06. If Landlord causes part or parts of the Land
to become a separate tax lot or separate tax lots, then, except
as is otherwise provided in Section 5.02, the term "Tenant's
Proportionate Share" shall be the percentage that represents a
fraction, the numerator of which is the number of square feet
of gross rentable area in the Premises and the denominator of
which is the aggregate number of square feet of gross rentable
area of all the buildings in the separate tax lot of which the
Premises are a part.
9
ARTICLE 5 - Operating Expense Payments
5.01. For the purposes of this Article 5 and other
provisions of this Lease:
(a) The term "Operating Expenses" shall mean all
expenses paid or incurred by Landlord or on Landlord's
behalf in respect of the repair, maintenance and operation
of the Project, including, without limitation, all expenses
paid or incurred as a result of Landlord complying with its
obligations under this Lease. Operating Expenses shall
include, without limitation, (i) salaries, wages, medical,
surgical, union and general welfare benefits (including,
without limitation, group life insurance and pension and
welfare payments and contributions and all other fringe
benefits paid to, for or with respect to all persons
(whether employees of Landlord or its managing agent)
engaged in the repair, operation and maintenance of the
Project; (ii) payroll taxes, workers' compensation,
uniforms, dry cleaning, and related expenses for such
persons; (iii) the cost of all charges for gas, steam,
electricity, heat, ventilation, air-conditioning, water and
other utilities furnished to the buildings within the
Project (including, without limitation, the common areas
thereof) together with any taxes on such utilities
(excluding however, the cost of electricity, heat,
ventilating and air-conditioning described in clauses (9)
and (10) of this definition); (iv) the cost of painting any
portion of the Project other than rentable areas; (v) the
cost of building and cleaning supplies and equipment, cost
of replacements for tools and equipment used in the
operation, maintenance, and repair of the Project and
charges for public telephone service for the Project;
(vi) financial expenses incurred in connection with the
operation of the Project, such as insurance premiums
(including, without limitation, liability insurance, fire
and casualty insurance, rent insurance and any other
insurance), reasonable attorneys' fees and disbursements
(exclusive of any such fees and disbursements incurred in
applying for any reduction of Taxes or in connection with
the leasing of space in the Project or the enforcement of
leases), auditing and other professional fees and expenses,
association dues and any other ordinary and customary
financial expenses incurred in connection with the
operation of the Project; (vii) the cost or rentals of all
supplies (including, without limitation, cleaning
supplies), tools, materials and equipment, and sales and
other taxes thereon; (viii) cost of hand tools and other
movable equipment used in the repair, maintenance or
operation of the Project; (ix) the cost of all charges for
window and other cleaning and janitorial and security
services; (x) charges of independent contractors for the
10
provision of goods and/or services otherwise includible as
Operating Expenses under this Section 5.01; (xi) the cost
of repairs and replacements made by Landlord; (xii) the
cost of alterations and improvements to the Project made by
reason of Legal Requirements or Insurance Requirements
(subject to the amortization requirements set forth in
clause (12) below); (xiii) payments under service
contracts; (xiv) management fees or, if no managing agent
is employed by Landlord, a sum in lieu thereof which is not
in excess of the then prevailing rates for management fees
of similar properties in Westchester County (but not less
than 3-1/2% of the rents and additional charges); and (xv)
all other charges properly allocable to the repair,
operation and maintenance of the Project in accordance with
generally accepted accounting principles ("GAAP") (and,
except as provided in clause (11) below, not required under
GAAP to be capitalized); excluding, however, (1)
depreciation, (2) interest on and amortization of debts,
(3) ground rent, (4) leasehold improvements made for
existing or future tenants of the Project, (5) brokerage
commissions, (6) refinancing costs, (7) costs and expenses
in connection with the construction of new buildings, (8)
Taxes, (9) the cost of Basic Electric and HVAC Electric (as
such terms are defined in Section 15.01) furnished to the
Premises or to other tenants of the Project, (10) the cost
of producing and furnishing steam and chilled water to
provide heat, ventilating and air-conditioning furnished to
the Premises or to other tenants of the Project, (11)
salaries of officers of Keren Developments Inc. at or above
the level of vice president, and (12) the cost of any
improvement, machinery or equipment that is required to be
capitalized for federal income tax purposes, except
(x) expenditures designed to result in savings or a
reduction of Operating Expenses (e.g., energy saving
devices), and (y) expenditures required by law, in either
of which case such expenditure shall, subject to the
immediately following sentence, be included in Operating
Expenses for the Operating Year in which such expenditure
is incurred and subsequent Operating Years, on a straight
line basis, to the extent that such items are depreciated
over an appropriate period considering the useful life
thereof with an interest factor equal to the rate announced
by Citibank, N.A. or its successor as its prime or base
rate at the time Landlord incurs such expenditure.
Notwithstanding the foregoing, in no event shall any
expenditure of the type described in the foregoing clause
(12)(x) be included in Operating Expenses during any one
Operating Year in an amount in excess of the amount of
Operating Expenses saved during such year (as reasonably
estimated by Landlord) as the result of the expenditure in
question, and in the event that such an excess exists for
any Operating Year, the period for depreciating such
11
item(s) shall be extended until Landlord has fully included
such excess in Operating Expenses. If Landlord leases any
equipment designed to result in savings or reductions in
Operating Expenses, then the rentals and other costs paid
pursuant to such leasing shall be included in Operating
Expenses for the Operating Year in which they are incurred.
Any cost or expense shall be included in Operating Expenses
for any Operating Year no more than once, notwithstanding
that such cost or expense may fall under more than one of
the categories listed above. Landlord may use related or
affiliated entities to provide services or furnish
materials for the Project provided that the rates or fees
charged by such entities are competitive with those charged
by unrelated or unaffiliated entities for the same services
or materials. Operating Expenses shall be calculated on
the accrual basis of accounting.
(b) The term "Operating Year" shall mean the
calendar year beginning on January 1, 1998, and each
succeeding calendar year thereafter.
(c) The term "Operating Statement" shall mean a
written statement prepared by Landlord or its agent,
setting forth Landlord's computation of the sum payable by
Tenant under this Article for a specified Operating Year.
5.02. For each Operating Year, any part of which
occurs during the Term, Tenant shall pay to Landlord an amount
(prorated to the extent provided in Section 5.06, if
applicable) (herein called the "Operating Payment") equal to
Tenant's Proportionate Share of the Operating Expenses for such
Operating Year. Said payments shall be made as provided in
Section 5.03. Tenant's Proportionate Share with respect to
Operating Expenses shall not be subject to adjustment pursuant
to Section 4.06 (and the third sentence of Section 1.01 shall
not apply to change the definition of the "Land" for computing
Tenant's Proportionate Share with respect to Operating
Expenses). Also, Tenant's Proportionate Share shall not be
subject to adjustment pursuant to the second sentence of
Section 4.01(c) upon the erection of a new building or
buildings upon the Land unless the operating expenses for such
new building(s) are generally included in the determination of
operating expenses of the Project under provisions analogous to
this Article 5 in leases of space at the Project that contain
such provisions.
5.03. Landlord shall furnish to Tenant, prior to the
commencement of each Operating Year, a written statement
setting forth Landlord's estimate of the Operating Payment for
such Operating Year. Tenant shall pay to Landlord on the first
day of each month during such Operating Year an amount equal to
one-twelfth of Landlord's estimate of the Operating Payment for
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such Operating Year. If, however, Landlord shall furnish any
such estimate for an Operating Year subsequent to the commence-
ment thereof, then (a) until the first day of the month
following the month in which such estimate is furnished to
Tenant, Tenant shall pay to Landlord on the first day of each
month an amount equal to the monthly sum payable by Tenant to
Landlord under this Section in respect of the last month of the
preceding Operating Year; (b) after such estimate is furnished
to Tenant or included in or together with such estimate,
Landlord shall give notice to Tenant stating whether the
installments of the Operating Payment previously made for such
Operating Year were greater or less than the installments of
the Operating Payment to be made for such Operating Year in
accordance with such estimate, and (i) if there shall be a
deficiency, Tenant shall pay to Landlord the amount thereof
within 10 days after demand therefor, or (ii) if there shall
have been an overpayment, Landlord shall promptly either refund
to Tenant the amount thereof or permit Tenant to credit the
amount thereof against subsequent payments under this Article
or Article 4; and (c) on the first day of the month following
the month in which such estimate is furnished to Tenant, and
monthly thereafter throughout the remainder of such Operating
Year, Tenant shall pay to Landlord an amount equal to one-
twelfth of the Operating Payment shown on such estimate.
Landlord may, at any time during each Operating Year, furnish
to Tenant a revised statement of Landlord's estimate of the
Operating Payment for such Operating Year; and in such case,
the Operating Payment for such Operating Year shall be adjusted
and paid or refunded, as the case may be, substantially in the
same manner as provided in the preceding sentence.
5.04. Within 120 days after the end of each
Operating Year Landlord shall furnish to Tenant an Operating
Statement for such Operating Year. If the Operating Statement
shows that the sums paid by Tenant under Section 5.03 exceeded
the Operating Payment to be paid by Tenant for such Operating
Year, Landlord shall promptly either refund to Tenant the
amount of such excess or permit Tenant to credit the amount of
such excess against
subsequent payments under this Article or Article 4; and if the
Operating Statement for such Operating Year shows that the sums
so paid by Tenant were less than the Operating Payment to be
paid by Tenant for such Operating Year, Tenant shall pay to
Landlord the amount of such deficiency within 10 days after
demand therefor.
5.05. (a) Tenant, upon notice given within 60 days
of the receipt of such Operating Statement, may elect to have
Tenant's designated (in such notice) agent (who may be an
employee of Tenant) examine such of Landlord's books and
records as are directly relevant to the Operating Statement in
question. (If Tenant shall not give such notice within such
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60-day period, then the Operating Statement as furnished by
Landlord shall be conclusive and binding upon Tenant.) Tenant,
pending the resolution of any contest shall continue to pay all
sums as determined to be due in the first instance by
Landlord's Operating Statement and upon the resolution of such
contest, suitable adjustment shall be made in accordance
therewith with appropriate refund to be made by Landlord to
Tenant (or credit allowed Tenant against the Fixed Rent and
Additional Charges becoming due).
(b) If the resolution of any contest over disputed
Operating Expenses finds that Operating Expenses are more than
4% less than as reported in the applicable Operating Statement
from Landlord to Tenant, the Landlord shall pay the reasonable
cost of Tenant's audit.
5.06. If an Operating Year ends after the expiration
or termination of this Lease, any Additional Charges in respect
thereof payable under this Article shall be equitably prorated
to correspond to that portion of the Operating Year occurring
within the Term.
ARTICLE 6 - Subordination, Notice to Superior
Lessors and Superior Mortgagees
6.01. The holder of any mortgage which may now or
hereafter affect the Land and/or the Building and/or any
Superior Lease (as hereinafter defined) may elect that this
Lease and all rights of Tenant hereunder shall have priority
over such mortgage and, upon notification by such holder to
Tenant, this Lease shall be deemed to have priority over such
mortgage, whether this Lease is dated prior to or subsequent to
the date of such mortgage. Except for any mortgage where the
holder gave the aforesaid notification that this Lease shall
have priority over such mortgage, this Lease, and all rights of
Tenant hereunder, are and shall be subject and subordinate to
all ground leases, overriding leases and underlying leases of
the Land and/or the Improvements now or hereafter existing and
to all mortgages which may now or hereafter affect the Land
and/or the Improvements and/or any of such leases, including,
without limitation, that certain Mortgage Consolidation,
Modification, Extension and Spreader Agreement dated as of
September 30, 1987, between Landlord, as Mortgagor, and Swiss
Bank Corporation, New York Branch (herein called "Swiss Bank"),
as Mortgagee, and that certain Restated Mortgage dated as of
September 30, 1987, between Landlord, as Mortgagor, and Union
Carbide Corporation (now known as Union Carbide Chemicals and
Plastics Company Inc.) (herein called "Carbide"), as Mortgagee,
whether or not such mortgages shall also cover other lands
and/or buildings and/or leases, to each and every advance made
or hereafter to be made under such mortgages, and to all
renewals, modifications, replacements and extensions of such
14
leases and such mortgages and spreaders and consolidations of
such mortgages. This Section shall be self-operative and no
further instrument of subordination or priority (as described
in the first sentence of this Section) shall be required. In
confirmation of such subordination or priority (as described in
the first sentence of this Section), Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord,
the lessor under any such lease or the holder of any such
mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination or priority;
and if Tenant fails to execute, acknowledge or deliver any such
instruments within 10 days after request therefor, Tenant
hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute
and deliver any such instruments for and on behalf of Tenant.
Any lease to which this Lease is, at the time referred to,
subject and subordinate is herein called a "Superior Lease,"
and the lessor of a Superior Lease or its successor in
interest, at the time referred to, is herein called a "Superior
Lessor" and any mortgage (a) to which this Lease is, at the
time referred to, subject and subordinate or (b) to which this
Lease shall have priority due to the effect of the first
sentence of this Section is herein called a "Superior Mortgage"
and the holder of a Superior Mortgage is herein called a
"Superior Mortgagee."
6.02. If any act or omission of Landlord would give
Tenant the right, immediately or after lapse of a period of
time, to cancel or terminate this Lease, or to claim a partial
or total eviction, Tenant shall not exercise such right
(a) until it has given written notice of such act or omission
to Landlord and each Superior Mortgagee and each Superior
Lessor whose name and address shall previously have been
furnished to Tenant, and (b) until a reasonable period for
remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior
Mortgagee or Superior Lessor shall have become entitled under
such Superior Mortgage or Superior Lease, as the case may be,
to remedy the same (which reasonable period shall in no event
be less than the longer of 180 days or the period to which
Landlord would be entitled under this Lease or otherwise, after
similar notice, to effect such remedy), provided such Superior
Mortgagee or Superior Lessor shall with due diligence give
Tenant notice of intention to, and commence and continue to,
remedy such act or omission. The current address of Swiss
Bank, a Superior Mortgagee, is Swiss Bank Tower, 15th Floor,
10 East 50th Street, New York, New York 10022, Attention of
Real Estate Department, Mr. Roy Chin, Director, Restructuring.
The current address of Carbide, a Superior Mortgagee, is 39 Old
Ridgebury Road, Danbury, Connecticut 06817-0001, Attention of
Mr. James N. Barton, Director of General Services.
Notwithstanding anything to the contrary contained herein, if
15
Tenant is prevented from having any access to the Premises
solely because of a breach of this Lease by Landlord, and such
access has not been restored within 30 days after notice
thereof from Tenant to Landlord, and to each Superior Mortgagee
and Superior Lessor, then Tenant shall have the right to
receive an abatement of the Fixed Rent for the period following
such 30th day until the date Tenant's access to the Premises is
restored.
6.03. If any Superior Mortgagee or Superior Lessor
shall succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of
a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called a "Successor
Landlord") and upon such Successor Landlord's written agreement
to accept Tenant's attornment, Tenant shall attorn to and
recognize such Successor Landlord as Tenant's landlord under
this Lease and shall promptly execute and deliver any
instrument that such Successor Landlord may reasonably request
to evidence such attornment. Upon such attornment this Lease
shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease
except that the Successor Landlord shall not (a) be liable for
any previous act or omission of Landlord under this Lease;
(b) be subject to any offset, not expressly provided for in
this Lease, which theretofore shall have accrued to Tenant
against Landlord; (c) be obligated to complete any work to
prepare the Premises for Tenant's occupancy; (d) be obligated
to make any payment to or on behalf of Tenant; (e) be required
to account for any security deposit other than any actually
delivered to the Successor Landlord; or (f) be bound by any
previous modification of this Lease or by any previous
prepayment of more than one month's Fixed Rent, unless such
modification or prepayment shall have been expressly approved
in writing by the lessor of the Superior Lease or the holder of
the Superior Mortgage through or by reason of which the
Successor Landlord shall have succeeded to the rights of
Landlord under this Lease.
6.04. If any prospective or actual Superior
Mortgagee or Superior Lessor requires any modification of this
Lease, Tenant shall, upon notice thereof from Landlord,
promptly execute and deliver to Landlord the instrument
accompanying said notice from Landlord to effect such
modification if such instrument does not adversely affect in
any material respect any of Tenant's rights under this Lease
and does not increase in any material respect any of Tenant's
obligations under this Lease.
6.05. Provided Tenant is not in default beyond any
applicable notice or grace period under this Lease, the
16
subordination of this Lease and the rights of Tenant hereunder
to any Superior Mortgage or Superior Lease shall be conditioned
upon the execution and delivery to Tenant by the Superior
Mortgagee or Superior Lessor thereunder of a subordination and
non-disturbance agreement with respect to this Lease, in such
Superior Mortgagee's or Superior Lessor's standard form.
Tenant agrees to execute and deliver such agreement to such
Superior Mortgagee or Superior Lessor promptly upon request.
ARTICLE 7 - Quiet Enjoyment
7.01. So long as Tenant pays all of the Fixed Rent
and Additional Charges and performs all of Tenant's other
obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Premises without hindrance, ejection or
molestation by Landlord or any person lawfully claiming through
or under Landlord, subject, nevertheless, to the provisions of
this Lease and to any Superior Leases and Superior Mortgages.
This covenant shall be construed as a covenant running with the
Land, and is not, nor shall it be construed as, a personal
covenant of Landlord, except to the extent of Landlord's
interest in this Lease and only so long as such interest shall
continue, and thereafter this covenant shall be binding only
upon subsequent successors in interest of Landlord's interest
in this Lease, to the extent of their respective interests, as
and when they shall acquire the same, and so long as they shall
retain such interest.
ARTICLE 8 - Assignment, Subletting and Mortgaging
8.01. Tenant shall not, whether voluntarily,
involuntarily, or by operation of law or otherwise (a) assign
or otherwise transfer this Lease, or offer or advertise to do
so, (b) sublet the Premises or any part thereof, or offer or
advertise to do so, or allow the same to be used, occupied or
utilized by anyone other than Tenant, or (c) mortgage, pledge,
encumber or otherwise hypothecate this Lease or the Premises or
any part thereof in any manner whatsoever, without in each
instance obtaining the prior consent of Landlord and all
Superior Mortgagees.
8.02. (a) If and so long as Tenant is a corporation
or a partnership, the following shall be deemed to be an
assignment of this Lease under Section 8.01 prohibited by said
Section unless Tenant obtains the prior consent of Landlord and
all Superior Mortgagees (which Landlord shall undertake to
obtain, provided Landlord has not rejected such proposed
assignment or exercised its rights under Section 8.07 hereof):
one or more sales or transfers of stock or partnership
interests, voluntarily, involuntarily, by operation of law or
otherwise, or the issuance of new stock or partnership
interests, by which an aggregate of more than 50% of Tenant's
17
stock or partnership interests shall be vested in a party or
parties who are not stockholders or partners as of the date
hereof. This Section shall not apply to transactions with a
corporation or partnership into or with which Tenant is merged
or consolidated or to which substantially all of Tenant's
assets are transferred or any affiliate of Tenant if (a) the
successor to Tenant has a tangible net worth computed in
accordance with generally accepted accounting principles at
least equal to the greater of (i) the tangible net worth of
Tenant immediately prior to such merger, consolidation or
transfer, or (ii) the tangible net worth on the date of this
Lease of the original Tenant herein named, and (b) proof
satisfactory to Landlord of such tangible net worth is
delivered to Landlord at least 10 days prior to the effective
date of any such transaction. The provisions of this Sec-
tion shall not apply to any stock or partnership interests
listed on a national securities exchange (as defined in the
Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the
National Association of Securities Dealers through its
automated system for reporting quotations.
(b) Notwithstanding anything to the contrary
contained in Section 8.01, but subject to the provisions of
Sections 8.13 and 8.15, Tenant shall have the right to sublet
the Premises to any affiliate of Tenant without Landlord's
consent, upon written notice to Landlord to be accompanied by a
conformed or photostatic copy of the proposed sublease. For
the purposes of this Section 8.02, the term "affiliate of
Tenant" shall mean (i) any corporation which, directly or
indirectly, controls, is controlled by or is under common
control with, Tenant, and (ii) any joint venture, partnership
or similar entity controlled by Tenant; and the term "control"
shall mean, in the case of a corporation, ownership, directly
or indirectly, of more than 50% of each class of the voting
stock, and in the case of a joint venture or partnership or
similar entity, ownership, directly or indirectly, of more than
50% of all of the interests therein."
(c) Tenant shall have the right without the consent
of Landlord to permit persons who are not its employees to work
with Tenant's employees in research projects within the
Premises; provided, however:
(i) such persons will be treated as Tenant's
invitees, and as such, must comply with all the Rules
and Regulations that Tenant must comply with under
this Lease, and Tenant will be fully responsible for
the acts and omissions of such persons;
18
(ii) such persons shall not pay Tenant any rent
or user fee for the use of any portion of the
Premises;
(iii) such persons' use of the Premises (1) is
temporary and project-specific, (2) does not
encompass a substantial portion of the Premises and
(3) is not pursuant to (or equivalent in substance
to) a sublease of the Premises or any portion
thereof.
8.03. If this Lease is assigned, whether or not in
violation of the provisions of this Lease, Landlord may collect
rent from the assignee. If the Premises or any part thereof
are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such
default, collect rent from the subtenant or occupant. In
either event, Landlord may apply the net amount collected to
the Fixed Rent and Additional Charges herein reserved, but no
such assignment, subletting, occupancy or collection shall be
deemed a waiver of any of the provisions of Section 8.01, or
the acceptance of the assignee, subtenant or occupant as
tenant, or a release of Tenant from the performance by Tenant
of Tenant's obligations under this Lease. The consent by
Landlord and any Superior Mortgagee to assignment, mortgaging,
subletting or use or occupancy by others shall not in any way
be considered to relieve Tenant from obtaining the consent of
Landlord and all Superior Mortgagees to any other or further
assignment, mortgaging, subletting or use or occupancy by
others not expressly permitted by this Article. References in
this Lease to use or occupancy by others (that is, anyone other
than Tenant) shall not be construed as limited to subtenants
and those claiming under or through subtenants but as including
also licensees and others claiming under or through Tenant,
immediately or remotely.
8.04. Any assignment or transfer, whether made with
Landlord's and all Superior Mortgagees' consent pursuant to
Section 8.01 or without the requirement of Landlord's and all
Superior Mortgagees' consent pursuant to Section 8.02, shall be
made only if, and shall not be effective until, the assignee
shall execute, acknowledge and deliver to Landlord an agreement
in form and substance reasonably satisfactory to Landlord and
all Superior Mortgagees whereby the assignee shall assume the
obligations of this Lease on the part of Tenant to be performed
or observed and whereby the assignee shall agree that the
provisions in Section 8.01 shall, notwithstanding such
assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers.
Notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding
19
the acceptance of the Fixed Rent or Additional Charges by
Landlord from an assignee, transferee, or any other party, the
original named Tenant shall remain fully liable for the payment
of the Fixed Rent and Additional Charges and for the other
obligations of this Lease on the part of Tenant to be performed
or observed.
8.05. The liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance
of the obligations of this Lease on Tenant's part to be
performed or observed shall not be discharged, released or
impaired in any respect by any agreement or stipulation made by
Landlord with the then Tenant extending the time of, or
modifying any of the obligations of, this Lease, or by any
waiver or failure of Landlord to enforce any of the obligations
of this Lease.
8.06. Neither the listing of any name other than
that of Tenant, whether on the door of the Premises or on any
directory, or otherwise, nor the acceptance by Landlord of any
check not drawn by Tenant in payment of Fixed Rent or
Additional Charges, shall operate to vest any right or interest
in this Lease or in the Premises, nor shall it be deemed to be
the consent of Landlord to any assignment or transfer of this
Lease or to any sublease of the Premises or to the use or
occupancy thereof by others.
8.07. Except as specifically provided to the
contrary in this Article 8, if Tenant shall at any time or
times during the Term desire to assign this Lease or sublet all
or any part of the Premises, Tenant shall give notice thereof
to Landlord and all Superior Mortgagees (the "Initial Notice").
The Initial Notice shall be accompanied by a summary of all
material terms of the proposed assignment or sublease (the
"Term Sheet"). The Initial Notice shall be deemed an offer
from Tenant to Landlord whereby Landlord (or Landlord's
designee) may, at its option, (i) sublease such space from
Tenant upon the terms and conditions hereinafter set forth or
(ii) terminate this Lease (if the proposed transaction is an
assignment or a sublease of all or substantially all of the
Premises). Said options may be exercised by Landlord by notice
to Tenant (the "Recapture Notice") at any time within 20 days
after the Initial Notice has been received by Landlord (the
"20-day Period"). During the 20-day Period Tenant shall not
assign this Lease or sublet such space to any person. If
Landlord does not desire to exercise its rights (the "Recapture
Rights") under the foregoing clauses (i) and (ii) then Landlord
shall give written notice (the "Rejection of Recapture Notice")
to Tenant within the 20-day Period that Landlord is not
exercising its Recapture Rights. If Landlord fails to give
either the Recapture Notice or Rejection of Recapture Notice
within the 20-day Period, such failure shall be deemed to be
20
the same as Landlord sending a Rejection of Recapture Notice.
If, after receiving the Rejection of Recapture Notice, Tenant
still desires to proceed with the transaction described in the
Term Sheet, then, within 120 days thereafter, Tenant shall send
to Landlord a second written notice (the "Second Notice")
accompanied by a conformed or photostatic copy of the proposed
assignment or sublease, the effective or commencement date of
which shall be at least 60 days after the giving of the Second
Notice, (b) a statement setting forth in reasonable detail the
identity of the proposed assignee or subtenant, the nature of
its business and its proposed use of the Premises, and
(c) current financial information with respect to the proposed
assignee or subtenant, including, without limitation, its most
recent financial report. During such 60-day period Tenant
shall not assign this Lease or sublet such space to any person
except for the proposed assignee and sublessee under the form
of assignment or sublease which Tenant has submitted for
approval to Landlord and all Superior Mortgagees, provided,
however, such assignment or sublease remains contingent upon
the approval of Landlord and all Superior Mortgagees before
becoming effective.
8.08. If Landlord exercises its option to terminate
this Lease pursuant to Section 8.07 above in the case where
Tenant desires either to assign this Lease or sublet all or
substantially all of the Premises, then this Lease shall end
and expire on the date that such assignment or sublet was to be
effective or commence, as the case may be, and the Fixed Rent
and Additional Charges shall be paid and apportioned to such
date.
8.09. If Landlord exercises its option to sublet the
Premises which Tenant desires to sublet, such sublease to
Landlord or its designee (as subtenant) shall be at the lower
of (i) the rental rate per rentable square foot of the Fixed
Rent and Additional Charges then payable pursuant to this Lease
or (ii) the rentals set forth in the Term Sheet and shall be
for the same term as that of the proposed subletting, and:
(a) the sublease shall be expressly subject to
all of the covenants, agreements, terms, provisions and
conditions of this Lease except such as are irrelevant or
inapplicable, and except as otherwise expressly set forth
to the contrary in this Section;
(b) such sublease shall be upon the same terms
and conditions as those contained in the Term Sheet, except
such as are irrelevant or inapplicable and except as
otherwise expressly set forth to the contrary in this
Section;
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(c) such sublease shall give the sublessee the
unqualified and unrestricted right, without Tenant's
permission, to assign such sublease or any interest therein
and/or to further sublet the Premises or any part or parts
thereof and to make any and all changes, alterations, and
improvements in the Premises;
(d) such sublease shall provide that any
assignee or further subtenant of Landlord or its designee
may, at the election of Landlord, be permitted to make
alterations, decorations and installations in such space or
any part thereof and shall also provide in substance that
any such alterations, decorations and installations in such
space therein made by any assignee or subtenant of Landlord
or its designee must be removed, in whole or in part, by
such assignee, subtenant and/or Landlord, prior to or upon
the expiration or other termination of such sublease, if
one year or more remains in the Term of this Lease on the
date of the expiration or other termination of the term of
such sublease. Landlord, the assignee and/or subtenant
shall repair any damage and injury to such sublet space
caused by the removal of such installations, alterations or
decorations, so that, except for reasonable wear and tear,
and damage by fire or other casualty, the Premises are in
substantially the same condition as the Premises were at
the beginning of the term of such sublease. If less than
one year remains in the Term of this Lease at the
expiration or other termination of such sublease, then
Landlord and the assignee and/or subtenant shall have the
right, but not the obligation, to remove such subtenant's
or assignee's installations, alterations or decorations.
(e) such sublease shall provide that (i) the
parties to such sublease expressly negate any intention
that any estate created under such sublease be merged with
any other estate held by either of said parties, (ii) any
assignment or further subletting by Landlord or its
designee (as the sublessor) may be for any purpose or
purposes that Landlord, in Landlord's uncontrolled discre-
tion, shall deem suitable or appropriate, and (iii) at the
expiration of the term of such sublease, Tenant will accept
the space covered by such sublease in its then existing
condition, subject to (i) the obligations of the subtenant
to make such repairs thereto as may be necessary to
preserve the premises demised by such sublease in good
order and condition, and (ii) the applicable removal and
repair obligation described in paragraph 8.09(d).
8.10. If Landlord does not exercise its options
pursuant to Section 8.07 to so sublet the Premises or terminate
this Lease and providing that Tenant is not in default of any
of Tenant's obligations under this Lease, Landlord's consent
22
(which shall be in form reasonably satisfactory to Landlord) to
the proposed assignment or sublease shall not be unreasonably
withheld, provided and upon condition that:
(a) Tenant shall have complied with the
provisions of Section 8.07 and Landlord shall not have
exercised any of its options under said Section 8.07 within
the time permitted therefor;
(b) in Landlord's reasonable judgment the
proposed assignee or subtenant is engaged in a business and
the Premises will be used in a manner which (i) is in
keeping with the then standards of the Building, (ii) is
limited to any of the uses expressly permitted under Sec-
tion 2.01, and (iii) will not violate any negative covenant
as to use contained in any other lease of space in the
Project;
(c) the proposed assignee or subtenant is a
reputable person of good character and with sufficient
financial worth considering the responsibility involved,
and Landlord has been furnished with reasonable proof
thereof;
(d) neither (i) the proposed assignee or
sublessee nor (ii) any person which, directly or
indirectly, controls, is controlled by, or is under common
control with, the proposed assignee or sublessee or any
person who controls the proposed assignee or sublessee, is
then an occupant of any part of the Project unless no space
in the Project, comparable to space Tenant desires to
assign or sublet, is then available for leasing by
Landlord;
(e) the proposed assignee or sublessee is not a
person with whom Landlord is then negotiating or in the
prior six-month period was negotiating to lease space in
the Project, unless no space in the Project, comparable to
space Tenant desires to assign or sublet, is then available
for leasing by Landlord;
(f) the form of the proposed sublease (if Tenant
proposes to sublease all of the Premises) shall be in form
reasonably satisfactory to Landlord and shall comply with
the applicable provisions of this Article; and
(g) the consent of any Superior Mortgagee whose
Superior Mortgage requires the consent of the Superior
Mortgagee shall have been obtained.
8.11. Tenant shall reimburse Landlord on demand for
any reasonable costs that may be incurred by Landlord in
23
connection with any proposed assignment or sublease, whether
consented to by Landlord or not, including, without limitation,
the reasonable costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and
reasonable legal costs incurred in connection with the granting
of any requested consent.
8.12. The amount of the aggregate rent per rentable
square foot to be paid by a proposed subtenant under a proposed
sublease shall not be less than 90% of the then current market
rent per rentable square foot for the Premises as though the
Premises were vacant. The rental and other material terms and
conditions of any actual sublease shall be substantially the
same as those contained in the proposed sublease furnished to
Landlord pursuant to Section 8.07. Tenant shall not (a)
advertise or publicize in any way the availability of the
Premises without prior notice to and approval by Landlord, or
(b) list the Premises for subletting, whether through a broker,
agent, representative or otherwise at a rental rate less than
the Fixed Rent and Additional Charges at which Landlord is then
offering to lease comparable space in the Project.
8.13. Except for any subletting by Tenant to
Landlord or its designee pursuant to the provisions of this
Article, each subletting pursuant to this Article shall be
subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any
such subletting to Landlord or any such subletting to any other
subtenant and/or acceptance of rent or additional rent by
Landlord from any subtenant, Tenant shall and will remain fully
liable for the payment of the Fixed Rent and Additional Charges
due and to become due hereunder and for the performance of all
the covenants, agreements, terms, provisions and conditions
contained in this Lease on the part of Tenant to be performed
and all acts and omissions of any licensee or subtenant or
anyone claiming under or through any subtenant which shall be
in violation of any of the obligations of this Lease, and any
such violation shall be deemed to be a violation by Tenant.
Tenant further agrees that notwithstanding any such subletting,
no other and further subletting of the Premises by Tenant or
any person claiming through or under Tenant (except as provided
in Section 8.09) shall or will be made except upon compliance
with and subject to the provisions of this Article. If
Landlord shall decline to give its consent to any proposed
assignment or sublease in accordance with the terms hereof, or
if Landlord shall exercise any of its options under Sec-
tion 8.07, Tenant shall indemnify, defend and hold harmless
Landlord against and from any and all loss, liability, damages,
costs and expenses (including reasonable counsel fees)
resulting from any claims that may be made against Landlord by
the proposed assignee or sublessee or by any brokers or other
24
persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
8.14. If (a) Landlord fails to exercise all of its
options under Section 8.07 and Landlord consents to a proposed
assignment or sublease, and (b) Tenant fails to execute and
deliver the assignment or sublease to which Landlord consented
within 60 days after the giving of such consent, then Tenant
shall again comply with all of the provisions and conditions of
Section 8.07 before assigning this Lease or subletting all or
any part of the Premises.
8.15. With respect to each and every sublease or
subletting authorized by Landlord under the provisions of this
Lease, it is further agreed that:
(a) no subletting shall be for a term ending
later than one day prior to the expiration date of this
Lease;
(b) no sublease shall be valid, and no subtenant
shall take possession of the Premises or any part thereof,
until an executed counterpart of such sublease has been
delivered to Landlord; and
(c) each sublease shall provide that it is
subject and subordinate to this Lease and to the matters to
which this Lease is or shall be subordinate, and that in
the event of termination, reentry or dispossess by Landlord
under this Lease Landlord may, at its option, take over all
of the right, title and interest of Tenant, as sublessor,
under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord
shall not (i) be liable for any previous act or omission of
Tenant under such sublease, (ii) be subject to any offset
which theretofore accrued to such subtenant against Tenant,
or (iii) be bound by any previous modification of such
sublease or by any previous prepayment of more than one
month's rent.
8.16. If Landlord gives its consent to any
assignment of this Lease or to any sublease, Tenant shall, in
consideration therefor, pay to Landlord, as Additional Charges:
(a) in the case of an assignment, an amount
equal to 50% of (i) all sums and other considerations paid
to Tenant by the assignee for or by reason of such
assignment (including, without limitation, sums paid for
the sale of Tenant's fixtures, leasehold improvements,
equipment, furniture, furnishings or other personal
property (collectively, the "Tenant Property")), less
25
(ii) the sum of (x) the then net unamortized or
undepreciated costs of the Tenant Property being assigned,
as determined on the basis of amortization or depreciation
used in Tenant's federal income tax returns, and (y) the
reasonable out-of-pocket costs incurred by Tenant to
effectuate such assignment, including reasonable legal
fees, reasonable brokerage fees and the reasonable costs
of constructing tenant improvements, if any, which are
required to be paid for by Tenant pursuant to such
assignment; and
(b) in the case of a sublease, 50% of (i) any
rents, additional charges or other consideration payable
under the sublease to Tenant by the subtenant (including,
without limitation, sums paid for the sale or rental of
the Tenant Property) which are in excess of the Fixed Rent
and Additional Charges accruing during the term of the
sublease in respect of the subleased space (at the rate
per square foot payable by Tenant hereunder) pursuant to
the terms hereof, less (ii) the sum of the following
(which shall be deducted each month from the excess
referred to in clause (i) for such month, ratably over the
term of the sublease), (x) in the case of the sale of the
Tenant Property, the then net unamortized or undepreciated
costs determined on the basis of amortization or
depreciation used in Tenant's federal income tax returns,
and (y) the reasonable out-of-pocket costs incurred by
Tenant to effectuate such sublease, including reasonable
legal fees, reasonable brokerage fees and the reasonable
cost of constructing tenant improvements, if any, which
are required to be paid for by Tenant pursuant to such
sublease.
ARTICLE 9 - Compliance With Legal and Insurance Requirements
9.01. Tenant shall give prompt notice to Landlord of
any notice it receives of the violation of any Legal
Requirements or Insurance Requirements with respect to the
Premises or the use or occupation thereof. Tenant shall, at
Tenant's expense, comply with all Legal Requirements and
Insurance Requirements which shall, in respect of the Premises
or the use and occupation thereof, or the abatement of any
nuisance in, on or about the Premises, impose any violation,
order or duty on Landlord or Tenant, arising from (a) Tenant's
use of the Premises, (b) the manner of conduct of Tenant's
business or operation of its installations, equipment or other
property therein, (c) any cause or condition created by or at
the instance of Tenant, or (d) breach of any of Tenant's
obligations hereunder, and Tenant shall pay all the costs,
expenses, fines, penalties and damages which may be imposed
upon Landlord or any Superior Lessor or Superior Mortgagee by
reason of or arising out of Tenant's failure to fully and
26
promptly comply with and observe the provisions of this
Section. However, Tenant need not comply with any such Legal
Requirements and Insurance Requirements so long as Tenant is
contesting the validity thereof, or the applicability thereof
to the Premises, in accordance with Section 9.02. Subject to
the provisions of Section 9.03, Landlord, at its expense, shall
comply with all other Legal Requirements and Insurance
Requirements as shall affect the Premises, but may similarly
defer compliance so long as Landlord shall be contesting the
validity or applicability thereof.
9.02. Tenant, at its expense, after notice to
Landlord, may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to
the Premises, of any Legal Requirements and Insurance
Requirements, provided that (a) neither Landlord nor any
Superior Mortgagee or Superior Lessor shall be subject to
criminal penalty or to prosecution for a crime, nor shall the
Premises or any part thereof be subject to being condemned or
vacated, by reason of noncompliance or otherwise by reason of
such contest; (b) Tenant shall indemnify Landlord and any
Superior Mortgagees and Superior Lessors against the cost
thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees
and expenses), resulting from or incurred in connection with
such contest or noncompliance; (c) such noncompliance or
contest shall not constitute or result in any violation of any
Superior Lease or Superior Mortgage, or if any such Superior
Lease Superior Mortgage shall permit such noncompliance or
contest on condition of the taking of action or furnishing of
security by Landlord, such action shall be taken and such
security shall be furnished at the expense of Tenant; and (d)
Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above,
Landlord and/or a Superior Mortgagee and/or Superior Lessor
shall be deemed subject to prosecution for a crime if Landlord
or the Superior Mortgagee or Superior Lessor or any managing
agent for the Project, or any officer, director, partner,
shareholder or employee of Landlord or a Superior Mortgagee or
Superior Lessor or any managing agent for the Project, as an
individual, is charged with a crime of any kind or degree
whatever, whether by service of a summons or otherwise, unless
such charge is withdrawn before Landlord or the Superior
Mortgagee or Superior Lessor or any managing agent for the
Project, or such officer, director, partner, shareholder or
employee of Landlord or the Superior Mortgagee or Superior
Lessor or any managing agent for the Project (as the case may
be) is required to plead or answer thereto.
9.03. If Landlord or any Superior Mortgagee or
Superior Lessor is required under this Lease or pursuant to law
to comply with any Legal Requirements or Insurance Requirements
27
affecting the Premises and the cost of such compliance is
reasonably expected to exceed $100,000 per annum, then Landlord
may, at its option, elect to terminate this Lease by giving not
less than 30 days' notice thereof to Tenant. If Tenant gives
notice to Landlord, within 15 days after the giving by Landlord
of such notice of termination, that Tenant shall cause the
required repairs or alterations to be made at Tenant's expense,
then (a) such notice of termination shall be ineffective, and
(b) Tenant shall, at Tenant's expense, promptly and diligently
cause such repairs or alterations to be performed and shall
indemnify and hold harmless Landlord and the Superior
Mortgagees and Superior Lessors from any and all costs,
expenses, penalties and/or liabilities in connection therewith.
The provisions of Article 12 hereof, to the extent applicable,
shall apply to the work (and the plans and specifications
therefor) which Tenant shall be required to perform or cause to
be performed under this Section.
ARTICLE 10 - Insurance
10.01. Tenant shall not violate, or permit the
violation of, any Insurance Requirements and shall not do, or
permit anything to be done, or keep or permit anything to be
kept in the Premises which would subject Landlord or any
Superior Mortgagee or Superior Lessor to any liability or
responsibility for bodily injury or death or property damage,
or which would increase any insurance rate in respect of
insurance maintained by or for the benefit of Landlord over the
rate which would otherwise then be in effect or which would
result in insurance companies of good standing refusing to
insure all or any part of the Project or any contents thereof
in amounts reasonably satisfactory to Landlord, or which would
result in the cancellation of or the assertion of any defense
by the insurer in whole or in part to claims under any policy
of insurance in respect of the Project. Landlord represents
that, to its knowledge, the type of use of the Premises
described in Section 2.01 hereof will not, in and of itself,
increase the insurance premiums payable by Landlord for
insurance policies maintained by Landlord with respect to the
Project.
10.02. If, by reason of any failure of Tenant to
comply with the provisions of Section 9.01 or Section 10.01,
the premiums on insurance maintained by or for the benefit of
Landlord shall be higher than they otherwise would be, Tenant
shall reimburse Landlord, on demand, for that part of such
premiums attributable to such failure on the part of Tenant. A
schedule or "make up" of rates for insurance maintained by or
for the benefit of Landlord issued by the New York Fire
Insurance Rating Organization or other similar body making
rates for such insurance shall be conclusive evidence of the
28
facts therein stated and of the several items and charges in
the insurance rate then applicable to such insurance.
10.03. Tenant, at its expense, shall maintain at all
times during the Term (a) "all risk" property insurance
covering the Tenant's Property (hereinafter defined) with a
limit of not less than 80% of the replacement cost thereof, and
(b) commercial general liability insurance, including a
contractual liability endorsement, with respect to Tenant's
indemnification obligations hereunder, in respect of the
Premises and the conduct or operation of business therein, with
Landlord and its managing agent, if any, and any Superior
Lessors and Superior Mortgagees, including, without limitation,
Swiss Bank and Carbide, whose names and addresses shall have
been furnished to Tenant, as additional insureds, with limits
of not less than $5,000,000 combined single limit bodily injury
and property damage liability. The limits of such insurance
shall not limit the liability of Tenant hereunder. Tenant
shall deliver to Landlord and any additional insureds
certificates and copies of the binders for such insurance in
form reasonably satisfactory to Landlord issued by the
insurance company or its authorized agent no later than 10 days
before the Commencement Date and prior to the commencement of
any work by Tenant. Tenant shall procure and pay for renewals
of such insurance from time to time before the expiration
thereof, and Tenant shall deliver to Landlord and any
additional insureds certificates and copies of the binders for
such renewal policy issued by the insurance company or its
authorized agent at least 30 days before the expiration of any
existing policy. All such policies shall be issued by
companies licensed to do business in New York State and
reasonably satisfactory to Landlord. All such policies shall
be noncancellable in respect of Landlord and any additional
insureds unless 30 days' prior written notice is given to
Landlord and all additional insureds and all such policies
shall provide that no act or omission of Tenant shall affect or
limit the obligations of the insurer in respect of Landlord and
the additional insureds.
10.04. Each party agrees to have included in each of
its insurance policies (insuring the Building and Landlord's
property therein in the case of Landlord, and insuring the
Tenant's Property in the Premises in the case of Tenant,
against loss, damage or destruction by fire or other casualty)
a waiver of the insurer's right of subrogation against the
other party during the Term or, if such waiver is unobtainable
or unenforceable, (a) an express agreement that such policy
shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered
by the policy before the casualty, or (b) any other form of
permission for the release of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be,
29
obtainable from either party's then current insurance company,
the insured party shall so notify the other party promptly
after learning thereof, and shall use its best efforts to
obtain the same from another insurance company described in
Section 10.03. If such waiver, agreement or permission is
obtainable only by payment of an additional charge, the insured
party shall so notify the other party promptly after learning
thereof, and the insured party shall not be required to obtain
said waiver, agreement or permission unless the other party
pays the additional charge therefor. Each party hereby
releases the other, in respect of any claim (including a claim
for negligence) which it might otherwise have against the other
for loss, damage or destruction in respect of its property
occurring during the Term to the extent to which it is insured
under a policy or policies containing a waiver of subrogation
or permission to release liability, as provided in the
preceding sentences of this Section. Nothing contained in this
Section shall be deemed to relieve either party of any duty
imposed elsewhere in this Lease to repair, restore or rebuild
or to nullify any abatement of rents provided for elsewhere in
this Lease.
10.05. Landlord may from time to time, but not more
frequently than once every year, require that the amount of
commercial general liability insurance to be maintained by
Tenant under Section 10.03 be reasonably increased, so that the
amount thereof adequately protects Landlord's interest.
10.06. Landlord agrees that during the Term,
Landlord shall maintain property insurance covering the
Building. Nothing contained in this Section shall, however,
act to diminish or relieve Tenant of any of Tenant's insurance
obligations under this Lease.
ARTICLE 11 - Rules and Regulations
11.01. Tenant and its employees and agents shall
faithfully observe and comply with the rules and regulations
attached hereto as Exhibit C, and such reasonable changes
therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter makes and communicates
to Tenant, which, in Landlord's reasonable judgment, shall be
necessary for the reputation, safety, care and appearance of
the Project, or the preservation of good order therein, or the
operation or maintenance of the Project or its equipment and
fixtures, and which do not unreasonably affect the conduct of
Tenant's business in the Premises (such rules and regulations
as changed from time to time being herein called the "Rules and
Regulations"); provided, however, that in case of any conflict
or inconsistency between the provisions of this Lease and any
of the Rules and Regulations, the provisions of this Lease
shall control.
30
11.02. Nothing in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the
Rules and Regulations against any other tenant or any employees
or agents of any other tenant, and Landlord shall not be liable
to Tenant for violation of the Rules and Regulations by any
other tenant or its employees, agents, invitees or licensees.
Landlord shall enforce the Rules and Regulations in a non-
discriminatory manner with respect to all tenants of the
Project.
ARTICLE 12 - Alterations
12.01. Tenant may from time to time after the
completion of Landlord's Work and, at its expense, make
alterations (herein called the "Alterations") in and to the
Premises, excluding structural changes, provided and upon
condition that: (a) the outside appearance of the Building
shall not be affected; (b) the Alterations are nonstructural
and the strength of the Building shall not be affected; (c) the
Alterations are to the interior of the Premises and no part of
the Building outside of the Premises shall be affected; (d) the
proper functioning of the mechanical, electrical, sanitary and
other service systems of the Building shall not be adversely
affected and the usage of such systems by Tenant shall not be
increased beyond their then available capacity; (e) before
proceeding with any Alteration, Tenant shall submit to Landlord
for Landlord's approval (which shall not be unreasonably
withheld or delayed if the approval of all Superior Mortgagees
whose Superior Mortgages require the approval of the Superior
Mortgagee shall have been obtained) two sets of plans and
specifications for the work to be done, and Tenant shall not
proceed with such work until it obtains such approval;
(f) Tenant shall pay to Landlord upon demand the reasonable
cost and expense of Landlord in (i) reviewing said plans and
specifications and (ii) inspecting the Alterations to determine
whether the same are being performed in accordance with the
approved plans and specifications and all Legal Requirements
and Insurance Requirements, including, without limitation, the
reasonable out-of-pocket fees or cost of any architect,
engineer or draftsman, including the cost, based upon the
actual salaries and fringe benefits of architects, engineers or
draftsmen who are employees of Landlord, for such purposes;
(g) before proceeding with any Alteration which will cost more
than $100,000 (exclusive of the costs of decorating work and
items constituting the Tenant's Property), as estimated, at
Tenant's expense, by a reputable contractor reasonably
satisfactory to Landlord and all Superior Mortgagees, Tenant
shall obtain and deliver to Landlord such security as shall be
satisfactory to Landlord and all Superior Mortgagees; and (h)
Tenant shall fully and promptly comply with and observe the
Rules and Regulations of Landlord then in force with respect to
the making of the Alterations. Tenant agrees that any review
31
or approval by Landlord of any plans and/or specifications with
respect to any Alterations is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant
with respect to the adequacy, correctness or efficiency thereof
or otherwise. Notwithstanding anything to the contrary
contained herein, Tenant shall have the right to move or
rearrange Tenant's trade fixtures and machinery within the
Premises without Landlord's consent provided such rearrangement
does not involve structural changes, adversely affect the
Building systems, or exceed the weight-bearing capacity of any
floor area.
12.02. Tenant, at its expense, shall obtain all
necessary governmental permits and certificates for the
commencement and prosecution of the Alterations and for final
approval thereof upon completion, and shall cause the
Alterations to be performed in compliance therewith and with
all applicable Legal Requirements and Insurance Requirements.
The Alterations shall be diligently performed in a good and
workmanlike manner, using new materials at least equal in
quality and class to the original installations. The
Alterations shall be performed by contractors first approved by
Landlord under the supervision of a licensed architect, which
approval Landlord will not unreasonably withhold or delay. The
Alterations shall be performed in such a manner as not to
violate union contracts affecting the Project, or create any
work stoppage, picketing, labor disruption or dispute or any
interference with the business of Landlord or any tenant of the
Project. In addition, the Alterations shall be performed in
such a manner as not to otherwise unreasonably interfere with
or delay and as not to impose any additional expense upon
Landlord in the construction, maintenance, repair, operation or
cleaning of the Project, and if any such additional expense
shall be incurred by Landlord as a result of Tenant's
performance of the Alterations, Tenant shall pay such
additional expense to Landlord on demand. Throughout the
performance of the Alterations, Tenant shall carry, or cause
its contractors to carry, workers' compensation insurance in
statutory limits, "Builder's Risk" insurance reasonably
satisfactory to Landlord, and commercial general liability
insurance, with completed operation endorsement, for any
occurrence in or about the Project, under which Landlord and
its managing agent and any Superior Lessors and Superior
Mortgagees, whose names and addresses were furnished to Tenant
shall be named as additional insureds, in such limits as
Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in
effect before the commencement of the Alterations and, on
request, at reasonable intervals during the continuance of the
Alterations. If any Alterations involve the removal of any
fixtures, equipment or other property in the Premises which are
32
not Tenant's Property, such fixtures, equipment or other
property shall be replaced prior to the end of the Term at
Tenant's expense with new fixtures, equipment or other property
of like utility and at least equal value. Upon completion of
any Alterations (other than mere decorations) Tenant shall
deliver to Landlord scaled and dimensioned reproducible mylars
of "as-built" plans for such Alteration.
12.03. Tenant, at its expense, and with diligence
and dispatch, shall procure the cancellation or discharge of
all notices of violation arising from or otherwise connected
with the Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, or any person
claiming through or under Tenant, which shall be issued by the
County of Westchester or the Town of Greenburgh or the Town of
Mount Pleasant or any other public authority having or
asserting jurisdiction. Tenant shall indemnify and save
harmless Landlord and any Superior Mortgagees and Superior
Lessors from and against any and all mechanics' and other liens
and encumbrances filed in connection with the Alterations, or
any other work, labor, services or materials done for or
supplied to Tenant, or any person claiming through or under
Tenant, including, without limitation, security interests in
any materials, fixtures or articles so installed in and
constituting part of the Premises and against all costs,
expenses and liabilities incurred in connection with any such
lien or encumbrance or any action or proceeding brought
thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and
encumbrances within 20 days after the filing thereof. However,
nothing herein contained shall prevent Tenant from contesting,
in good faith and at its own expense, any notice of violation,
provided that Tenant shall comply with the provisions of Sec-
tion 9.02.
ARTICLE 13 - Landlord's and Tenant's Property
13.01. All fixtures, equipment, improvements and
appurtenances, including, without limitation, utility lines and
equipment, attached to or built into the Premises at the
commencement of or during the Term, whether or not by or at the
expense of Tenant, shall be and remain a part of the Premises,
shall be deemed the property of Landlord and shall not be
removed by Tenant, except as provided in Section 13.02.
Further, any carpeting or other personal property in the
Premises on the Commencement Date, unless installed and paid
for by Tenant, shall be and shall remain Landlord's property
and shall not be removed by Tenant.
13.02. All movable partitions, business and trade
fixtures, machinery and equipment, communications equipment and
office equipment, whether or not attached to or built into the
33
Premises, which are installed in the Premises by or for the
account of Tenant without expense to Landlord and can be
removed without structural damage to the Building, and all
furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (herein
collectively called the "Tenant's Property ") shall be and
shall remain the property of Tenant and may be removed by
Tenant at any time during the Term; provided that if any of the
Tenant's Property is removed, Tenant shall repair or pay the
cost of repairing any damage to the Premises or to the Building
resulting from the installation and/or removal thereof. Any
equipment or other property for which Landlord shall have
granted any allowance or credit to Tenant shall not be deemed
to have been installed by or for the account of Tenant without
expense to Landlord, shall not be considered the Tenant's
Property, and shall be deemed the property of Landlord.
Notwithstanding anything contained herein to the contrary, the
Tenant Improvements shall remain the property of Landlord and
shall not be removed by Tenant at the end of the Term.
13.03. At or before the expiration date of this
Lease, or within 15 days after the date of any earlier
termination of this Lease, Tenant, at its expense, shall remove
from the Premises all of the Tenant's Property, and Tenant
shall repair any damage to the Premises or the Building
resulting from any installation and/or removal of the Tenant's
Property. Any other items of the Tenant's Property which shall
remain in the Premises after the expiration date of this Lease,
or after a period of 15 days following an earlier termination
date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine at
Tenant's expense.
ARTICLE 14 - Repairs and Maintenance
14.01. Tenant shall, at its expense, throughout the
Term, take good care of the Premises, the fixtures and
appurtenances therein and the Tenant's Property. Tenant shall
be responsible for all repairs and replacements, interior and
exterior, structural and nonstructural, ordinary and
extraordinary, in and to the Premises and the Building and the
facilities and systems thereof, the need for which arises out
of (a) the performance or existence of any work by Tenant or
Alterations, (b) the installation, use or operation of the
Tenant's Property in the Premises, (c) the moving of the
Tenant's Property in or out of the Premises or the Building, or
(d) the act, omission, misuse or neglect of Tenant or any of
its subtenants or its or their employees, agents, contractors
or invitees. Tenant, at its expense, shall promptly repair or
replace all scratched, damaged or broken doors and glass in and
34
about the Premises and shall be responsible for all repairs,
painting, maintenance and replacement of wall and floor
coverings (with respect to floor coverings, ordinary wear and
tear excepted) in the Premises and for the repair and
maintenance of all sanitary and electrical fixtures and
equipment therein unless the necessity for such repairs arises
from causes outside the Premises not attributable to the acts,
omissions, misuse or neglect of Tenant or any of its subtenants
or its or their employees, agents and/or invitees. Tenant
shall promptly make, at Tenant's expense, all repairs in or to
the Premises for which Tenant is responsible. Any repairs
required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other
systems of the Building shall be performed only by
contractor(s) approved by Landlord which approval shall not be
unreasonably withheld or delayed. Any other repairs in or to
the Building and the facilities and systems thereof for which
Tenant is responsible, may be performed by Landlord at Tenant's
expense.
14.02. Landlord shall promptly make all repairs and
replacements, structural and otherwise, interior and exterior,
as and when needed in or about the Premises, except for those
repairs and replacements for which Tenant is responsible
pursuant to any of the provisions of this Lease.
14.03. Except as otherwise expressly provided in
this Lease, Landlord shall have no liability to Tenant, nor
shall Tenant's covenants and obligations under this Lease be
reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business
arising from Landlord's making any repairs or changes which
Landlord is required or permitted by this Lease, or required by
law, to make in or to any portion of the Building or the
Premises, or in or to the fixtures, equipment or appurtenances
of the Building or the Premises. Landlord, however, shall use
reasonable efforts to minimize any interference with or
interruption of Tenant's business while making such repairs and
changes in the Premises; provided Landlord shall not be
required to pay any overtime charges or premium rates in
connection therewith.
ARTICLE 15 - Electric Energy
15.01. Subject to the provisions of this Article,
Landlord shall furnish the electric energy that Tenant shall
reasonably require in the Premises for the purposes permitted
under this Lease. Landlord represents that the electric power
available to the Premises as of the date hereof is at least 35
watts per actual square foot in the laboratory portion of the
Premises and 3 watts per actual square foot in the office
portion of the Premises. Except for electric energy required
35
to operate motors on the air handlers providing heat,
ventilating and conditioning to the Premises ("HVAC Electric"),
such electric energy furnished after December 31, 1997 may at
Landlord's option either be calculated pursuant to the
mathematical model which Landlord will furnish to Tenant or be
furnished through a meter or meters and related equipment,
installed and maintained by Landlord at Tenant's expense,
measuring the amount of electric energy furnished to the
Premises. Tenant shall pay Landlord for such electric energy
furnished after December 31, 1997, as Additional Charges,
within ten days after Landlord bills Tenant therefor, which
bills shall be rendered not more often than monthly. The
amount of such Additional Charges (a) for HVAC Electric shall
be 105% of Landlord's cost and (b) for other electric energy
furnished to the Premises ("Basic Electric") shall be based
upon rates equal to 105% of the rates that would be applicable
if such electric energy were supplied directly to Tenant
through a meter or meters on a direct meter basis by the public
utility company then supplying electric energy to the area of
Westchester County in which the Premises are located; provided
that such Additional Charges for Basic Electric shall in no
event be based on rates that are less than 105% of the average
of the rates at which Landlord purchases electric energy for
the Project directly from such public utility company;
including in each case, without limitation, those charges
applicable to or computed on the basis of electric consumption,
demand and hours of use, any sales or other taxes regularly
passed on to or collected from similar consumers by such public
utility company, fuel rate adjustments and surcharges, and
weighted in each case to reflect differences in consumption or
demand applicable to each rate level. Tenant and its
authorized representatives may have access to such meter or
meters (if any) on at least three days' notice to Landlord, for
the purposes of verifying Landlord's meter readings (if any).
From time to time during the Term of this lease, Landlord may,
in its sole discretion, install or eliminate, or increase or
reduce the number of, such meters or vary the portions of the
Premises which they serve or replace any or all of such meters.
Tenant shall not be obligated to pay for HVAC Electric or Basic
Electric furnished from the Commencement Date through Decem-
ber 31, 1997.
15.02. If pursuant to any Legal Requirements, the
charges to Tenant pursuant to Section 15.01 shall be reduced
below that to which Landlord is entitled under such Section,
the deficiency shall be paid by Tenant within 10 days after
being billed therefor, as additional rent for the use and
maintenance of the electric distribution system of the
Building.
15.03. Landlord shall not be liable in any event to
Tenant for any failure or defect in the supply or character of
36
electric energy furnished to the Premises by reason of any
requirement, act or omission of the public utility serving the
Building with electric energy or for any other reason not
attributable solely to Landlord's willful misconduct or gross
negligence.
15.04. Tenant may, at Tenant's option, have Landlord
furnish and install all replacement lighting tubes, lamps,
bulbs and ballasts required in the Premises, and Tenant shall
pay to Landlord or its designated contractor upon demand the
then established charges therefor of Landlord or its designated
contractor, as the case may be, if Tenant has the Landlord, or
its designated contractor, install such lighting replacements.
15.05. Tenant's use of electric energy in the
Premises shall not at any time exceed the capacity of any of
the electrical conductors and equipment in or otherwise serving
the Premises. In order to insure that such capacity is not
exceeded and to avert possible adverse effect upon the
Building's distribution of electricity via the Building's
electric system, Tenant shall not, without Landlord's prior
consent in each instance (which shall not be unreasonably
withheld, based upon availability of electric energy in the
Building as allocated by Landlord to various areas of the
Building) connect any fixtures, appliances or equipment (other
than normal business machines which do not materially increase
Tenant's electrical consumption) to the Building's electric
system or make any alterations or additions to the electric
system of the Premises existing on the Commencement Date.
Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be provided by Landlord
and the cost thereof shall be paid by Tenant to Landlord on
demand. Landlord shall have the right to require Tenant to pay
sums on account of such cost prior to the installation of any
such risers or equipment.
15.06. If required by any Legal Requirements,
Landlord, upon at least sixty days' notice to Tenant, or any
longer period required for the applicable public utility
company to supply the Premises directly with electrical energy,
may discontinue Landlord's provision of electric energy (or
either HVAC Electric or Basic Electric, as the case may be)
hereunder. If Landlord discontinues provision of electric
energy pursuant to this Section, Tenant shall not be released
from any liability under this Lease, except that as of the date
of such discontinuance, Tenant's obligation to pay Landlord
Additional Charges under Section 15.01 for electric energy (or
either HVAC Electric or Basic Electric, as the case may be)
thereafter supplied to the Premises shall cease. As of such
date, Landlord shall permit Tenant to receive electric energy
directly from the public utility company supplying electric
energy to the Project, and Tenant shall pay all costs and
37
expenses of obtaining such direct electrical service. Such
electric energy may be furnished to Tenant by means of the then
existing Building system feeders, risers and wiring to the
extent that the same are available, suitable and safe for such
purpose. All meters and additional panel boards, feeders,
risers, wiring and other conductors and equipment which may be
required to obtain electric energy directly from such public
utility company shall be furnished and installed by Landlord at
Landlord's expense (which shall constitute an Operating
Expense, amortized on a straight line basis over the useful
life of the items in question, as reasonably determined by
Landlord).
ARTICLE 16 - Heat, Ventilation and Air-Conditioning
16.01. Landlord shall maintain and operate the
heating, ventilating and air-conditioning systems serving the
Premises, and shall furnish heat, ventilating and air-
conditioning in the Premises as may be reasonably required
(except as otherwise provided in this Lease and except for any
special requirements of Tenant arising from its particular use
of the Premises) for reasonably comfortable occupancy of the
Premises with 12 air changes per hour in the laboratory space
of the Premises and with 4 air changes per hour in the office
space of the Premises available at all times. If Tenant shall
require heat, ventilating or air conditioning service in
addition to the foregoing, Landlord shall furnish such service
for such times upon not less than 48 hours advance notice from
Tenant. Tenant shall pay Landlord for heat, ventilating and
air-conditioning furnished to the Premises after December 31,
1997, as Additional Charges, within ten days after Landlord
bills Tenant therefor, which bills shall be rendered not more
often than monthly. The amount of such Additional Charges for
a given period of time shall be equal to 105% of the total cost
to Landlord of delivering steam and chilled water for the
Premises during such period. Tenant shall not be obligated to
pay for steam or chilled water furnished from the Commencement
Date through December 31, 1997.
16.02. The performance by Landlord of its
obligations under Section 16.01 is subject to Tenant's
compliance with the conditions of occupancy and connected load
established by Landlord. Use of the Premises, or any part
thereof, in a manner exceeding the heating, ventilating and/or
air-conditioning design conditions (including occupancy and
connected electrical load), or rearrangement of partitioning
which interferes with normal operation of the heating,
ventilating and/or air-conditioning in the Premises, or the use
of computer or data processing machines or other machines or
equipment, may require changes in the heating, ventilating
and/or air-conditioning systems servicing the Premises, in
order to provide comfortable occupancy. Such changes, so
38
occasioned, shall be made by Tenant, at its expense, as
Alterations in accordance with the provisions of Article 12,
but only to the extent permitted and upon the conditions set
forth in that Article.
ARTICLE 17 - Other Services; Service Interruption
17.01. Landlord shall furnish adequate hot and cold
water to the Premises for drinking, lavatory and cleaning
purposes. If Tenant uses water for any other purpose (such as
laboratory purpose), Landlord may install and maintain, at
Tenant's expense, meters to measure Tenant's consumption of
cold water and/or hot water for such other purposes. Tenant
shall reimburse Landlord for the quantities of cold water and
hot water shown on such meters on demand.
17.02. Landlord shall cause the Premises, including
the exterior and the interior of the windows thereof but
excluding any laboratory space, to be cleaned in accordance
with the cleaning schedule attached hereto as Exhibit I.
Tenant shall pay to Landlord on demand the costs incurred by
Landlord for (a) extra cleaning work in the Premises required
because of (i) misuse or neglect on the part of Tenant or its
subtenants or its or their employees or visitors, (ii) the use
of portions of the Premises for special purposes requiring
greater or more difficult cleaning work than office areas,
(iii) interior glass partitions or unusual quantity of interior
glass surfaces, and (iv) special materials or finishes on items
installed by Tenant or its subtenants or its or their employees
or visitors or at its or their request; (b) removal from the
Premises and the Building of any refuse or rubbish of Tenant in
excess of that ordinarily accumulated in business office
occupancy or at times other than Landlord's standard cleaning
times; and (c) the use of the Premises by Tenant or its
subtenants or its or their employees or visitors other than
during Business Hours on Business Days.
17.03. Landlord, its cleaning contractor and their
employees shall have access to the Premises after 5:30 p.m. and
before 8:00 a.m. unless Tenant gives Landlord written notice
that Tenant does not want Landlord, its cleaning contractor or
their employees in the Premises or a designated portion
thereof, and Tenant shall thereafter be responsible for
cleaning the Premises or such portion thereof, until 30 days
after further written notice from Tenant to Landlord requesting
that Landlord's cleaning contractor again be responsible for
cleaning the Premises or such portion thereof. Landlord, its
cleaning contractor and their employees shall have the right to
use, without charge therefor, all light, power and water in the
Premises reasonably required to clean the Premises as required
under Section 17.02.
39
17.04. If Landlord shall furnish either gas or steam
to the Premises, Landlord shall not be liable in any event to
Tenant for any failure or defect in the supply or character of
the gas or steam furnished to the Premises by reason of any
requirement, act or omission of the public utility serving the
Building with steam or for any other reason not attributable
solely to Landlord's willful misconduct or gross negligence.
Tenant's use of gas or steam in the Premises shall not at any
time exceed the capacity of any of the gas lines and equipment
or steam lines and equipment in or otherwise then serving the
Premises.
17.05. Landlord reserves the right, without any
liability to Tenant and without affecting Tenant's covenants
and obligations hereunder, to stop or interrupt or reduce
service of any of the heating, ventilating, air-conditioning,
electric, sanitary, elevator, gas, steam, water or other
Building systems serving the Premises, or to stop or interrupt
or reduce any other services required of Landlord under this
Lease (whether or not specified in Article 16 or this Article
17), whenever and for so long as may be necessary, by reason of
(a) accidents, emergencies, strikes or the occurrence of any of
the other events described in Section 41.04, (b) the making of
repairs or changes which Landlord is required or is permitted
by this Lease or by law to make or in good faith deems
necessary, (c) difficulty in securing proper supplies of fuel,
gas, steam, water, electricity, labor or supplies, or (d) any
other cause beyond Landlord's reasonable control, whether
similar or dissimilar. Landlord shall use reasonable efforts
(a) to minimize any interference with or interruption to
Tenant's business at the Premises caused by the interruption of
such services to the Premises and (b) to give Tenant reasonable
notice (except in the case of an emergency, when Landlord or
its agents may enter the Premises with no notice at any time or
times), in the event of such an interruption of services to the
Premises.
ARTICLE 18 - Access and Name of Project
18.01. Except for the space within the inside
surfaces of all walls, hung ceilings, floors, windows and doors
bounding the Premises, all of the Building, including, without
limitation, exterior Building walls, core corridor walls and
doors and any core corridor entrances, any terraces or roofs
adjacent to the Premises and any space in or adjacent to the
Premises used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as reasonable access
thereto through the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord.
40
18.02. Landlord reserves the right, and Tenant shall
permit Landlord, to install, erect, use and maintain pipes,
ducts and conduits in and through the Premises provided the
same do not result in a material loss of usable area in the
Premises. In the exercise of its rights under this Sec-
tion 18.02, Landlord shall use reasonable efforts to minimize
any interference with, or interruption to, Tenant's business at
the Premises.
18.03. Landlord and its agents shall have the right
to enter and/or pass through the Premises at any time or times
(a) to examine the Premises and to show them to actual and
prospective Superior Lessors, Superior Mortgagees, or
prospective purchasers, mortgagees or lessees of the Building
and (b) to make such repairs, alterations, additions and
improvements in or to the Premises and/or in or to the Building
or its facilities and equipment as Landlord is required or
desires to make. Landlord shall be allowed to take all
materials into and on the Premises that may be required in
connection therewith, without any liability to Tenant and
without any reduction of Tenant's covenants and obligations
hereunder. In the exercise of its rights under this Sec-
tion 18.03, Landlord shall use reasonable efforts to minimize
any interference with, or interruption to, Tenant's business at
the Premises.
18.04. If at any time any windows of the Premises
are temporarily darkened or obstructed by reason of any
repairs, improvements, maintenance and/or cleaning in or about
the Building, or if any part of the Building, other than the
Premises, is temporarily or permanently closed or inoperable,
the same shall be without any reduction or diminution of
Tenant's obligations under this Lease.
18.05. During the period of 18 months prior to the
expiration date of this Lease, Landlord and its agents may
exhibit the Premises to prospective tenants. In the exercise
of its rights under this Section 18.05, Landlord shall use
reasonable efforts to minimize any interference with, or
interruption to, Tenant's business at the Premises.
18.06. If, during the last month of the Term, Tenant
has removed all or substantially all of the Tenant's Property
from the Premises, Landlord may, without notice to Tenant,
immediately enter the Premises and alter, renovate and decorate
the same, without reducing or diminishing Tenant's obligations
under this Lease.
18.07. Landlord reserves the right, at any time,
without incurring any liability to Tenant therefor, and without
affecting or reducing or diminishing any of Tenant's
obligations hereunder, to make such changes, alterations,
41
additions and improvements in or to the Building and the
fixtures and equipment thereof, as well as in or to the
entrances, doors, halls, passages, elevators, escalators and
stairways thereof, and other public parts of the Building, as
Landlord shall deem necessary or desirable. In the exercise of
its rights under this Section 18.07, Landlord shall use
responsible efforts to minimize any interference with, or
interruption to, Tenant's business at the Premises.
18.08. Landlord may adopt any name for the Project.
Landlord reserves the right to change the name and/or address
of the Project at any time.
18.09. Landlord and its agents shall have the right
to permit access to the Premises at any time, whether or not
Tenant shall be present, (a) by any receiver, trustee, sheriff,
marshal or other public official entitled to, or purporting to
be entitled to, such access (i) for the purpose of taking
possession of or removing any property of Tenant or of any
other occupant of the Premises, or (ii) for any other lawful
purpose, or (b) by any representative of the fire, police,
building, sanitation or other department or instrumentality of
any town, county, city, state or federal government. Nothing
contained in, nor any action taken by Landlord under this
Section, shall be deemed to constitute recognition by Landlord
that any person other than Tenant has any right or interest in
this Lease or the Premises.
18.10. If Tenant is not present when for any reason
entry into the Premises is necessary or permissible, Landlord
or Landlord's agents may enter same by a master key, or may
forcibly enter same, without rendering Landlord or such agents
liable therefor (if during such entry Landlord or such agents
accord reasonable care to the Tenant's Property), and such
entry shall not be deemed an actual or constructive eviction
and shall have no effect upon Tenant's obligations under this
Lease.
18.11. Landlord agrees to use reasonable efforts
(a) to keep confidential any information regarding Tenant's
business which Landlord obtains in the course of its entry into
the Premises and (b) to require its agents and their employees
to keep confidential any such information such agents or
employees obtain in the course of their entry into the
Premises, provided that nothing herein shall preclude
disclosure of such information to the extent required by law or
to the extent necessary to enforce Tenant's obligations
hereunder.
42
ARTICLE 19 - Notice of Occurrences
19.01. Tenant shall give prompt notice to Landlord
of (a) any occurrence in or about the Premises for which
Landlord might be liable, (b) any fire or other casualty in the
Premises, (c) any damage to or defect in the Premises,
including the fixtures, equipment and appurtenances thereof,
for the repair of which Landlord might be responsible, and (d)
any damage to or defect in any part or appurtenance of the
Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in or passing
through the Premises or any part thereof.
ARTICLE 20 - Non-Liability and Indemnification
20.01. Neither Landlord nor any Superior Lessor or
Superior Mortgagee shall be liable to Tenant for any loss,
injury or damage to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury,
damage or loss, unless caused by or resulting from the
negligence or willful misconduct of Landlord or the Superior
Lessor or Superior Mortgagee, in the operation or maintenance
of the Premises or the Project. Neither Landlord nor any
Superior Lessor or Superior Mortgagee shall be liable (a) for
any damage caused by other tenants or persons in, on or about
the Project, or (b) even if resulting from negligence or
willful misconduct, for consequential damages of Tenant or any
subtenant or licensee of Tenant.
20.02. Notwithstanding any provision to the
contrary, Tenant shall look solely to the estate and property
of Landlord in and to the Project in the event of any claim
against Landlord or any partner, director, officer, agent or
employee of Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant or Tenant's use
of the Premises, and the liability of Landlord arising out of
or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Premises, shall be limited to
such estate and property of Landlord. No other properties or
assets of Landlord or any partner, director, officer, agent or
employee of Landlord shall be subject to levy, execution or
other enforcement procedures for the satisfaction of any
judgment (or other judicial process) or for the satisfaction of
any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's
use of the Premises, and if Tenant acquires a lien on or
interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or
interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that
effect prepared by Landlord's attorneys.
43
20.03. Tenant shall indemnify and hold harmless
Landlord and all Superior Lessors and all Superior Mortgagees,
including, without limitation, Swiss Bank and Carbide, and its
and their respective partners, directors, officers, agents and
employees from and against any and all claims arising from or
in connection with (a) the conduct or management of the
Premises or of any business therein, or any work or thing
whatsoever done, or any condition created (other than by
Landlord) in or about the Premises during the Term or during
the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Premises; (b) any act,
omission or negligence of Tenant or any of its subtenants or
licensees or its or their employees or contractors; (c) any
accident, injury or damage whatever (unless caused by
Landlord's negligence or willful misconduct) occurring in, at
or upon the Premises; (d) any breach or default by Tenant in
the full and prompt payment and performance of Tenant's
obligations under this Lease; and (e) the failure of Tenant or
any of its subtenants or licensees or its or their employees or
contractors to comply with all Legal Requirements and Insurance
Requirements; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses. In case any action or
proceeding is brought against Landlord and/or any Superior
Lessor or Superior Mortgagee and/or its or their partners,
directors, officers, agents and/or employees by reason of any
such claim, Tenant, upon notice from Landlord or such Superior
Lessor or Superior Mortgagee, shall resist and defend such
action or proceeding (by counsel reasonably satisfactory to
Landlord).
ARTICLE 21 - Damage or Destruction
21.01. If the Building or the Premises shall be
partially or totally damaged or destroyed by fire or other
casualty (and if this Lease shall not be terminated as provided
in this Article) Landlord shall repair the damage and restore
and rebuild the Building and/or the Premises (except for the
Tenant's Property) with reasonable dispatch after notice to it
of the damage or destruction and the collection of the
insurance proceeds attributable to such damage.
21.02. Subject to the provisions of Section 21.05,
if all or part of the Premises is damaged or destroyed or
rendered completely or partially untenantable on account of
fire or other casualty, the Fixed Rent and Additional Charges
under Article 4 and Article 5 shall be reduced in the
proportion that the untenantable area of the Premises bears to
the total area of the Premises, for the period from the date of
the damage or destruction (a) to a date 30 days after the date
Tenant receives notice from Landlord that the damage to the
44
Premises is substantially repaired, or (b) if the Building and
not the Premises is so damaged or destroyed, the date on which
the Premises is made tenantable; provided, however, should
Tenant reoccupy a portion of the Premises during the period the
repair work is taking place and prior to the date the Premises
are substantially repaired or made tenantable the Fixed Rent
and Additional Charges under Article 4 and Article 5 allocable
to such reoccupied portion, based upon the proportion which the
area of the reoccupied portion of the Premises bears to the
total area of the Premises, shall be payable by Tenant from the
date of such occupancy.
21.03. (a)(i) If the Premises shall be materially
(i.e., 40% or more) damaged or destroyed by fire or other
casualty, or (ii) if the Building shall be so damaged or
destroyed by fire or other casualty (whether or not the
Premises are damaged or destroyed) that its repair or
restoration requires the expenditure (as estimated by a
reputable contractor or architect designated by Landlord) of
more than 20% of the full insurable value of the Building
immediately prior to the casualty, then in either such case
Landlord may terminate this Lease by giving Tenant notice to
such effect within 180 days after the date of the fire or other
casualty and the Fixed Rent and Additional Charges shall be
prorated and adjusted as of the date of termination. Landlord
shall not exercise its right to terminate this Lease pursuant
to clause (a)(ii) above unless Landlord shall also terminate
the leases of the other tenants in the Building whose leases
contain provisions similar to such clause.
(b) Notwithstanding anything to the contrary
contained in Section 21.04 hereof, if (i) a material portion
(i.e., 40% or more) of the Premises shall be damaged or
destroyed or otherwise rendered untenantable by fire or other
casualty, and (ii) Landlord fails to substantially restore the
Premises within 180 days after the date of the fire or other
casualty (which 180-day period shall be extended by any delays
caused by the acts or omissions of Tenant and/or its agents,
employees or contractors ("Tenant Delays") or by any of the
causes set forth in clauses (a) and (b) of Section 41.04), then
Tenant shall have the right thereafter to terminate this Lease
by giving Landlord and the Superior Mortgagees notice to such
effect prior to the substantial completion of such restoration,
in which event the Fixed Rent and Additional Charges shall be
prorated and adjusted as of the date of termination. If
Landlord determines during such 180-day period that through no
fault of Tenant or its agents, employees or contractors that
the restoration of the Premises will exceed such 180-day
period, then, unless the same is caused by Tenant Delays,
Landlord shall make reasonable efforts to give notice to Tenant
of such extended restoration period, but Landlord shall have no
45
liability as a consequence of its failure to give such notice.
21.04. Except as herein expressly provided, Tenant
shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Premises or of the
Building pursuant to this Article. Landlord shall use its best
efforts to make such repair or restoration promptly and in such
manner as not unreasonably to interfere with Tenant's use and
occupancy of the Premises, but Landlord shall not be required
to do such repair or restoration work except during Business
Hours on Business Days.
21.05. Notwithstanding any of the foregoing
provisions of this Article, if by reason of some act or
omission on the part of Tenant or any of its subtenants or its
or their partners, directors, officers, servants, employees,
agents or contractors, Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all or
substantially all of the insurance proceeds (including, without
limitation, rent insurance proceeds) applicable to damage or
destruction of the Premises or the Building by fire or other
casualty, then, without prejudice to any other remedies which
may be available against Tenant, there shall be no reduction of
the Fixed Rent or Additional Charges.
21.06. Landlord will not carry insurance of any kind
on the Tenant's Property and shall not be obligated to repair
any damage to or replace the Tenant's Property.
21.07. The provisions of this Article shall be
deemed an express agreement governing any case of damage or
destruction of the Premises by fire or other casualty, and Sec-
tion 227 of the Real Property Law of the State of New York,
providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter
in force, shall have no application in such case.
ARTICLE 22 - Eminent Domain
22.01. Except as otherwise provided in Sec-
tion 22.05, if the whole of the Building or the Premises shall
be taken by condemnation or in any other manner for any public
or quasi-public use or purpose, this Lease shall terminate as
of the date of vesting of title on such taking (herein called
the "Date of the Taking"), and the Fixed Rent and Additional
Charges shall be prorated and adjusted as of such date.
22.02. Except as otherwise provided in Sec-
tion 22.05, if any part of the Building or the Land shall be so
taken, this Lease shall be unaffected by such taking, except
46
that (a) Landlord may, at its option, terminate this Lease by
giving Tenant notice to that effect within 90 days after the
Date of the Taking, and (b) if 20% or more of the Premises
shall be so taken and the remaining area of the Premises shall
not be reasonably sufficient for Tenant to continue the
operation of its business in substantially the same manner as
prior to the taking, Tenant may terminate this Lease by giving
Landlord notice to that effect within 90 days after the Date of
the Taking. This Lease shall terminate on the date that such
notice from Landlord or Tenant to the other shall be given, and
the Fixed Rent and Additional Charges shall be prorated and
adjusted as of such termination date. Upon such partial taking
and this Lease continuing in force as to any part of the
Premises, the Fixed Rent and Additional Charges shall be
adjusted according to the rentable area remaining.
22.03. Except as otherwise provided in Sec-
tion 22.05, Landlord shall be entitled to receive the entire
award or payment in connection with any taking without
deduction therefrom for any estate vested in Tenant by this
Lease and Tenant shall receive no part of such award. Tenant
hereby expressly assigns to Landlord all of its right, title
and interest in and to every such award or payment. Notwith-
standing anything contained herein to the contrary, Tenant
shall have the right to make a claim, separate from (and not in
diminution of) Landlord's, for the value of Tenant's Property
taken as well as for moving costs incurred by Tenant in
connection with any taking.
22.04. Except as otherwise provided in Sec-
tion 22.05, in the event of any taking of less than the whole
of the Building and/or the Land which does not result in
termination of this Lease, Landlord, at its expense, and
whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair the
remaining parts of the Building and the Premises (other than
those parts of the Premises which are the Tenant's Property) to
substantially their former condition to the extent that the
same may be feasible (subject to reasonable changes which
Landlord shall deem desirable) and so as to constitute complete
and tenantable the Building and the Premises.
22.05. If the temporary use or occupancy of all or
any part of the Premises is taken by condemnation or in any
other manner for any public or quasi-public use or purpose,
this Lease and the Term shall remain unaffected by such taking
and Tenant shall continue to be responsible for all of its
obligations under this Lease (except to the extent prevented
from so doing by reason of such taking). In such event Tenant
shall be entitled to claim, prove and receive the entire award
unless the period of temporary use or occupancy extends beyond
the expiration date of this Lease, in which event Landlord
47
shall be entitled to claim, prove and receive that portion of
the award attributable to the restoration of the Premises, and
the balance of such award shall be apportioned between Landlord
and Tenant as of the expiration date of this Lease. If such
temporary use or occupancy terminates prior to the expiration
date of this Lease, Tenant, at its own expense, shall restore
the Premises as nearly as possible to its condition prior to
the taking.
ARTICLE 23 - Surrender and Holding Over
23.01. On the last day of the Term, or upon any
earlier termination of this Lease, or upon any reentry by
Landlord upon the Premises, Tenant shall quit and surrender the
Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore
under this Lease, and Tenant shall remove all of the Tenant's
Property therefrom except as otherwise expressly provided in
this Lease. No act or thing done by Landlord or its agents
shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender shall be valid unless
in writing and signed by Landlord.
23.02. If Tenant remains in possession of the
Premises after the termination of this Lease without the
execution of a new lease, Tenant, at the option of Landlord,
shall be deemed to be occupying the Premises as a tenant from
month to month, subject to all of the other terms and
conditions of this Lease insofar as the same are applicable to
a month-to-month tenancy, but at a monthly rental equal to the
greater of (a) two times the monthly Fixed Rent last payable by
Tenant hereunder, plus all Additional Charges payable
hereunder, and (b) Landlord's then asking price, on a monthly
basis, for comparable space in the Building (or, if Landlord
has no asking price, the monthly rental equal to the prevailing
rate for comparable space in comparable buildings in the
vicinity of the Building). Nothing contained in this Sec-
tion shall (i) imply any right of Tenant to remain in the
Premises after the termination of this Lease without the
execution of a new lease, (ii) imply any obligation of Landlord
to grant a new lease or (iii) be construed to limit any right
or remedy that Landlord has against Tenant as a holdover tenant
or trespasser.
23.03. Tenant expressly waives, for itself and for
any person claiming through or under Tenant, any rights which
Tenant or any such person may have under the provisions of Sec-
tion 2201 of the New York Civil Practice Law and Rules and of
any similar or successor law of same import then in force, in
connection with any holdover proceedings which Landlord may
institute to enforce the terms and conditions of this Lease.
48
ARTICLE 24 - Default
24.01. This Lease and the Term are subject to the
limitation that whenever Tenant, or any Guarantor, makes an
assignment for the benefit of creditors, or files a voluntary
petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or
insolvency is filed against Tenant or such Guarantor under any
bankruptcy or insolvency law, or whenever a petition is filed
by or against Tenant or such Guarantor under the reorganization
provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition is
filed by Tenant or such Guarantor under the arrangement
provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a permanent
receiver of Tenant or such Guarantor, or of or for the property
of Tenant or such Guarantor is appointed, then Landlord (a) if
such event occurs without the acquiescence of Tenant or such
Guarantor, as the case may be, at any time after the event
continues for 60 days, or (b) in any other case at any time
after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of five
days from the date of service of such notice of intention, and
upon the expiration of said five-day period this Lease, whether
or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the
expiration date of this Lease, but Tenant shall remain liable
for damages as provided in Article 26.
24.02. This Lease is subject to the further
limitations that:
(a) if Tenant defaults (i) in the payment of any
Fixed Rent or Additional Charges, or (ii) in the payment of
any sum due to Landlord from Tenant under any other
agreement between Landlord and Tenant executed in
connection with this Lease, and, in either case, such
default continues for five days after notice of default
from Landlord to Tenant, or
(b) if Tenant, whether by action or inaction, is
in default of any of its obligations under this Lease
(other than a default in the payment of Fixed Rent or
Additional Charges) and such default continues and is not
remedied within 30 days after Landlord gives to Tenant a
notice specifying the same, or, in the case of a default
which cannot with due diligence be cured within a period of
30 days and the continuance of which for the period
required for cure will not (i) subject Landlord or any
Superior Lessor or Superior Mortgagee to prosecution for a
crime (as more particularly described in Section 9.02) or
(ii) result in the termination of any Superior Lease or
49
foreclosure of any Superior Mortgage, if Tenant does not,
(1) within said 15-day period advise Landlord of Tenant's
intention to take all steps necessary to remedy such
default, (2) duly commence within said 15-day period, and
thereafter diligently prosecute to completion all steps
necessary to remedy the default and (3) complete such
remedy within a reasonable time after the date of said
notice of Landlord, or
(c) if any event occurs or any contingency
arises whereby this Lease or the estate hereby granted or
the unexpired balance of the Term would, by operation of
law or otherwise, devolve upon or pass to any person, firm
or corporation other than Tenant, except as expressly
permitted by Article 8, or
(d) if Tenant vacates or abandons the Premises,
or
(e) if Tenant defaults under any other lease
with Landlord at the Project and such default is not
remedied within the applicable grace period, if any,
provided therefor under such other lease
then in any of said cases Landlord may give to Tenant a notice
of intention to end the Term at the expiration of 10 days from
the date of the service of such notice of intention, and upon
the expiration of said 10 days this Lease, whether or not the
Term theretofore had commenced, shall terminate with the same
effect as if that day were the expiration date of this Lease,
but Tenant shall remain liable for damages as provided in
Article 26.
ARTICLE 25 - Re-entry by Landlord
25.01. If Tenant defaults in the payment of any
Fixed Rent or Additional Charges, and such default continues
for five days after notice of default, or if this Lease
terminates as provided in Article 24, Landlord or Landlord's
agents and employees may immediately or at any time thereafter
re-enter the Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding
at law without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove
any person therefrom, to the end that Landlord may have, hold
and enjoy the Premises. The word "re-enter," as used herein,
is not restricted to its technical legal meaning. If this
Lease is terminated under the provisions of Article 24, or if
Landlord re-enters the Premises under the provisions of this
Article 25, or in the event of the termination of this Lease,
or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of
50
default hereunder on the part of Tenant, Tenant shall thereupon
pay to Landlord the Fixed Rent and Additional Charges payable
up to the time of such termination of this Lease, or of such
recovery of possession of the Premises by Landlord, as the case
may be, and shall also pay to Landlord damages as provided in
Article 26.
25.02. In the event of a breach or threatened breach
by Tenant of any of its obligations under this Lease, Landlord
shall also have the right of injunction. The special remedies
to which Landlord may resort hereunder are cumulative and are
not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may
invoke any remedy allowed at law or in equity as if specific
remedies were not provided for herein.
25.03. If this Lease terminates under the provisions
of Article 24, or if Landlord re-enters the Premises under the
provisions of this Article, or in the event of the termination
of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all monies, if any, paid
by Tenant to Landlord, whether as advance rent, security or
otherwise, but such monies shall be credited by Landlord
against any Fixed Rent or Additional Charges due from Tenant at
the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Article 26
or pursuant to law.
ARTICLE 26 - Damages
26.01. If this Lease is terminated under the
provisions of Article 24, or if Landlord re-enters the Premises
under the provisions of Article 25, or in the event of the
termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of
Tenant, Tenant shall pay to Landlord as damages, at the
election of Landlord, either:
(a) a sum which at the time of such termination
of this Lease or at the time of any such re-entry by
Landlord, as the case may be, represents the then present
value (determined using a discount rate equal to the rate
announced at such time by Citibank, N.A. or its successor
as its prime or base rate) of the excess, if any, of (i)
the aggregate amount of the Fixed Rent and the Additional
Charges under Article 4 and Article 5 which would have been
payable by Tenant (conclusively presuming the average
monthly Additional Charges under Article 4 and Article 5 to
be the same as were payable for the year, or if less than
51
365 days have then elapsed since the Commencement Date, the
partial year, immediately preceding such termination or re-
entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry,
as the case may be, and ending with the date contemplated
as the expiration date hereof if this Lease had not so
terminated or if Landlord had not so re-entered the
Premises, over (ii) the aggregate rental value of the
Premises for the same period, or
(b) sums equal to the Fixed Rent and the
Additional Charges which would have been payable by Tenant
had this Lease not so terminated, or had Landlord not so
re-entered the Premises, payable upon the due dates
therefor specified herein following such termination or
such re-entry and until the date contemplated as the
expiration date hereof if this Lease had not so terminated
or if Landlord had not so re-entered the Premises,
provided, however, that if Landlord shall relet the
Premises during said period, landlord shall credit Tenant
with the net rents received by Landlord from such
reletting, such net rents to be determined by first
deducting from the gross rents as and when received by
Landlord from such reletting the expenses incurred or paid
by Landlord in terminating this Lease or in re-entering the
Premises and in securing possession thereof, as well as the
reasonable expenses of reletting, including, without
limitation, altering and preparing the Premises for new
tenants, brokers' commissions, legal fees, and all other
reasonable expenses properly chargeable against the
Premises and the rental therefrom, it being understood that
any such reletting may be for a period shorter or longer
than what would have been the remaining Term, but in no
event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the
collection of damages pursuant to this subdivision to a
credit in respect of any net rents from a reletting, except
to the extent that such net rents are actually received by
Landlord. If the Premises or any part thereof should be
relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the
rent received from such reletting and of the expenses of
reletting.
If the Premises or any part thereof is or are relet to any
unrelated third party in an arm's length transaction by
Landlord for what would have been the unexpired portion of the
Term, or any part thereof, before presentation of proof of such
damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall, prima facie, be the
fair and reasonable rental value for the Premises, or part
52
thereof, so relet during the term of the reletting. Landlord
shall not be liable in any way whatsoever for its failure or
refusal to relet the Premises or any part thereof, or if the
Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such refusal or
failure to relet or failure to collect rent shall release or
affect Tenant's liability for damages or otherwise under this
Lease.
26.02. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by
Landlord from time to time at its election, and nothing
contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired
if it had not been so terminated under the provisions of
Article 24, or under any provisions of law, or had Landlord not
re-entered the Premises. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against
Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of
Tenant. Nothing herein contained shall be construed to limit
or prejudice the right of Landlord to prove for and obtain as
damages by reason of the termination of this Lease or re-entry
on the Premises for the default of Tenant under 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, such damages are to be proved whether or not such
amount be greater than, equal to, or less than any of the sums
referred to in Section 26.01.
26.03. In addition, if this Lease is terminated
under the provisions of Article 24, or if Landlord re-enters
the Premises under the provisions of Article 25, Tenant agrees
that:
(a) the Premises then shall be in the same
condition as that in which Tenant has agreed to surrender
the same to Landlord at the expiration of the Term;
(b) Tenant shall have performed prior to any
such termination any covenant of Tenant contained in this
Lease for the making of any Alteration or for restoring or
rebuilding the Premises or the Building, or any part
thereof; and
(c) for the breach of any covenant of Tenant set
forth above in this Section 26.03, Landlord shall be
entitled immediately, without notice or other action by
Landlord, to recover, and Tenant shall pay, as and for
liquidated damages therefor, the reasonable cost of
53
performing such covenant (as estimated by an independent
contractor selected by Landlord).
ARTICLE 27 - Affirmative Waivers
27.01. Tenant, on behalf of itself and any and all
persons claiming through or under Tenant, does hereby waive and
surrender all right and privilege which it, they or any of them
might have under or by reason of any present or future law, to
redeem the Premises or to have a continuance of this Lease
after being dispossessed or ejected therefrom by process of law
or under the terms of this Lease or after the termination of
this Lease as provided in this Lease.
27.02. If Tenant is in arrears in payment of Fixed
Rent or Additional Charges, Tenant waives Tenant's right, if
any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments
made by Tenant to such items as Landlord sees fit, irrespective
of and notwithstanding any designation or request by Tenant as
to the items to which any such payments shall be credited.
27.03. Landlord and Tenant hereby waive trial by
jury in any action, proceeding or counterclaim brought by
either against the other on any matter whatsoever arising out
of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises,
including, without limitation, any claim of injury or damage,
and any emergency and other statutory remedy with respect
thereto.
27.04. Tenant shall not interpose any counterclaim
of any kind in any summary proceeding commenced by Landlord to
recover possession of the Premises unless the failure by Tenant
to interpose such counterclaim would preclude Tenant from
asserting the subject matter of such counterclaim in a separate
action, and shall not seek to consolidate such proceeding with
any action which may have been or will be brought by Tenant or
any other person.
ARTICLE 28 - No Waivers
28.01. The failure of either party to insist in any
one or more instances upon the strict performance of any one or
more of the obligations of this Lease, or to exercise any
election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one
or more obligations of this Lease or of the right to exercise
such election, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act or
omission. The receipt by Landlord of Fixed Rent or Additional
54
Charges with knowledge of breach by Tenant of any obligation of
this Lease shall not be deemed a waiver of such breach.
ARTICLE 29 - Curing Defaults
29.01. If Tenant defaults in the performance of any
of Tenant's obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated
to) perform the same for the account and at the expense of
Tenant, without notice in a case of emergency, and in any other
case only if such default continues after the expiration of
30 days from the date Landlord gives Tenant notice of the
default.
29.02. Bills for any expenses incurred by either
Landlord or Tenant in connection with any performance by either
party for the account of the other party, and bills for all
costs, expenses and disbursements, including reasonable counsel
fees, involved in (a) Landlord collecting or endeavoring to
collect the Fixed Rent or Additional Charges or (b) Landlord or
Tenant enforcing or endeavoring to enforce any rights against
the other party or their obligations hereunder, including any
cost, expense and disbursement of Landlord involved in
instituting and prosecuting summary proceedings or in
recovering possession of the Premises after default by Tenant
or upon the expiration or sooner termination of this Lease, and
interest at the Lease Interest Rate on all sums advanced by
Landlord or Tenant and reimbursable by the other hereunder, may
be sent by either party to the other party monthly, and such
amounts shall be due and payable in accordance with the terms
of such bills.
29.03. Notwithstanding anything to the contrary
contained herein, the prevailing party in any action or
proceeding to enforce rights or obligations hereunder shall be
entitled to recover its costs and expenses in connection
therewith from the other party.
ARTICLE 30 - Broker
30.01. Each of Tenant and Landlord represents to the
other that no broker except Cushman & Wakefield, Inc. (herein
called the "Broker") was instrumental in bringing about or
consummating this Lease and that it had no conversations or
negotiations with any broker except the Broker concerning the
leasing of the Premises. Each of Tenant and Landlord shall
indemnify and hold the other harmless against and from any
claims for any brokerage commissions and all costs, expenses
and liabilities in connection therewith, including, without
limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by such indemnifying party
with any broker other than the Broker. Landlord shall pay any
55
brokerage commissions due the Broker as per a separate
agreement between Landlord and the Broker.
ARTICLE 31 - Notices
31.01. Any notice, consent, approval or other
communication required or permitted to be given, rendered or
made by either party to the other shall be in writing (whether
or not so stated elsewhere in this Lease) and shall be deemed
to have been properly given, rendered or made only if either
sent by (a) registered or certified mail, return receipt
requested, posted in a United States post office station or
letter box in the continental United States, or (b) reputable
overnight courier, in either event addressed to the other party
at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give
notice to the contrary, shall be the Premises), and shall be
deemed to have been given, rendered or made either (i) on the
first day after the day so mailed with respect to notice by
certified or registered mail, unless mailed outside of the
State of New York, in which case it shall be deemed to have
been given, rendered or made on the third business day after
the day so mailed, or (ii) on the day received if sent by
overnight courier. Either party may, by notice as aforesaid,
designate a different address or addresses for notices,
statements, demands, consents, approvals or other
communications intended for it. A duplicate original of any
notice given to Landlord shall be simultaneously and similarly
sent by Tenant to the attention of Executive Vice President,
Keren Developments, Inc., 777 Old Saw Mill River Road,
Tarrytown, New York 10591-6705. A duplicate copy of any notice
given to Tenant shall be simultaneously sent in the same manner
to the attention of Marshall J. Cohen, Esq., Stadtmauer
Bailkin, 110 East 59th Street, New York, New York 10022.
ARTICLE 32 - Estoppel Certificates
32.01. Each party shall, at any time and from time
to time, if requested by the other party with not less than 10
days' prior notice, execute and deliver to the other a
statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent
and Additional Charges have been paid, stating whether or not,
to the best knowledge of the signer, the other party is in
default in performance of any of its obligations under this
Lease, and, if so, specifying each such default of which the
signer shall have knowledge, and stating whether or not, to the
best knowledge of the signer, any event has occurred which with
the giving of notice or passage of time, or both, would
constitute such a default, and, if so, specifying each such
56
event, it being intended that any such statement delivered
pursuant hereto shall be deemed a representation and warranty
to be relied upon by the party requesting the certificate and
by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any
such statement such other information concerning this Lease as
Landlord may reasonably request.
ARTICLE 33 - Execution and Delivery of Lease
33.01. Submission by Landlord of the within Lease
for review and execution by Tenant shall confer no rights nor
impose any obligations on either party unless and until both
Landlord and Tenant shall have executed this Lease and
duplicate originals thereof shall have been delivered to the
respective parties.
ARTICLE 34 - Recording of Lease
34.01. At the request of Landlord, Tenant shall
promptly execute, acknowledge and deliver to Landlord a
memorandum in respect of this Lease and/or any amendment or
modification of this Lease sufficient for recording, setting
forth only the matters required to be set forth pursuant to
Section 291-c of the New York Real Property Law. Such
memorandum shall not in any circumstance be deemed to change or
otherwise affect any of the terms of this Lease. Tenant shall
not record this Lease or said memorandum or any other document
related hereto.
ARTICLE 35 - Parking
35.01. Landlord shall, without charge to Tenant
(except as consequence of the cost thereof being included in
Operating Expenses), provide and maintain, for the non-
exclusive use of Tenant's employees and invitees, parking areas
sufficient to accommodate at least 60 standard size automobiles
in the area(s) shown as "parking" on the plan, including 10
spaces specially striped and marked attached hereto as
Exhibit D for "Tenant's Officers and Visitors". In the event
Landlord utilizes such parking areas for Landlord's development
purposes, Landlord will provide Tenant with substantially
equivalent parking facilities.
ARTICLE 36 - Environmental Compliance
36.01. Tenant assumes sole and full responsibility
for compliance with all applicable Federal, state and local
environmental statutes, regulations and ordinances (including
licensing and permitting) (herein called the "Environmental
Laws") in respect of the Premises from and after the
Commencement Date and agrees to indemnify, defend, save and
57
hold harmless Landlord and all Superior Lessors and Superior
Mortgagees, and its and their respective partners, directors,
officers, agents and employees from and against any and all
claims, demands, losses and liability (including reasonable
attorneys' fees) resulting from any alleged or actual violation
thereof by Tenant or any of its subtenants or licensees or its
or their employees or contractors. Tenant assumes sole and
full responsibility for all present and future acts or
omissions of Tenant or any of its subtenants or licensees or
its or their employees or contractors while at, near or on the
Project and covenants and agrees to indemnify, defend, save and
hold harmless Landlord and all Superior Lessors and Superior
Mortgagees, and its and their respective partners, directors,
officers, agents and employees, from and against any and all
claims, demands, losses, and liability (including reasonable
attorneys' fees) resulting from any alleged or actual violation
thereof, including, but not limited to, personal injury (and
death resulting therefrom), property damage, damage to natural
resources, and strict liability under Environmental Laws. The
provisions of this Section 36.01 shall survive the expiration
or termination of this Lease.
36.02 Landlord shall indemnify Tenant and its
partners, directors, officers, agents and employees against any
and all claims, demands, losses and liability (including
reasonable attorneys' fees) resulting from any alleged or
actual violation of Environmental Laws at the Premises by
Landlord or any of its agents, employees or contractors.
Landlord assumes sole and full responsibility for all present
and future acts or omissions of Landlord or any of its agents,
employees or contractors while at, near or on the Project and
covenants and agrees to indemnify, defend, save and hold
harmless Tenant and its respective directors, officers, agents
and employees, from and against any and all claims, demands,
losses, and liability (including reasonable attorneys' fees)
resulting from such acts or omissions, including, but not
limited to, personal injury (and death resulting therefrom),
property damage, damage to natural resources, and strict
liability under Environmental Laws.
36.03. Landlord represents, as of the date hereof,
that Landlord knows of no violations of any Environmental Laws
at the Premises caused by International Business Machines
Corporation (the previous tenant).
ARTICLE 37 - Signs
37.01. Tenant may not place signs anywhere in the
Project, including on the exterior of the Building, without the
prior written consent of Landlord. Landlord agrees to place
signs, in a style and materials mutually satisfactory to
Landlord and Tenant, on roads within the Project and outside of
58
the Building, as is reasonably necessary to direct Tenant's
invitees and contractors to the Premises.
ARTICLE 38 - Approval Contingency
38.01. This Lease shall not be effective until and
unless approved in writing by Swiss Bank and Carbide. If Swiss
Bank or Carbide disapproves this Lease, then this Lease shall
be deemed null and void and of no effect. Any such approval in
accordance with the provisions of this Article 38 shall be
deemed retroactive to the Commencement Date. Notwithstanding
any provision to the contrary, if Tenant occupies the Premises
or causes any work to be performed thereon prior to receipt of
Swiss Bank's or Carbide's approval or disapproval, then as
between Tenant and Landlord the provisions of this Lease shall
be applicable and enforceable. If either Swiss Bank or Carbide
does not give its approval or disapproval within 60 days after
the date hereof, either party may give notice of cancellation
of this Lease to the other after said 60-day period but prior
to the giving of said approval, and if either party gives such
cancellation notice timely, this Lease shall be deemed null and
void and of no effect.
ARTICLE 39 - Relocation of Premises
39.01. Landlord may, at its option, before or after
the Commencement Date, elect by notice to Tenant to substitute
for the Premises other equivalent space in the Project (herein
called the "Substitute Premises") designated by Landlord,
provided that the Substitute Premises contains at least the
same usable square foot area as the Premises. Landlord's
notice shall be accompanied by a plan of the Substitute
Premises, and such notice or the plan shall set forth the
usable square foot area of the Substitute Premises. Tenant
shall vacate and surrender the Premises and shall occupy the
Substitute Premises promptly (and, in any event, not later than
15 days) after Landlord has substantially completed the work to
be performed by Landlord in the Substitute Premises pursuant to
Section 39.02. Tenant shall pay the same Fixed Rent and
Additional Charges under Article 4 and Article 5 with respect
to the Substitute Premises as were payable with respect to the
Premises, without regard to the usable square foot area of the
Substitute Premises.
39.02. Tenant shall not be entitled to any
compensation for any inconvenience or interference with
Tenant's business, nor to any abatement or reduction of Fixed
Rent or Additional Charges, but Landlord shall, at Landlord's
expense, do the following: (a) furnish and install in the
Substitute Premises fixtures, equipment, improvements and
appurtenances at least equal in kind and quality to those
contained in the Premises at the time such notice of
59
substitution is given by Landlord, (b) provide to Tenant
personnel to perform under Tenant's direction the moving of
Tenant's Property from the Premises to the Substitute Premises,
(c) promptly reimburse Tenant for Tenant's actual and
reasonable out-of-pocket costs incurred by Tenant in connection
with the relocation of any telephone or other communications
equipment from the Premises to the Substitute Premises, and
(d) promptly reimburse Tenant for any other actual and
reasonable out-of-pocket costs incurred by Tenant in connection
with the Tenant's move from the Premises to the Substitute
Premises provided such costs are approved by Landlord in
advance, which approval shall not be unreasonably withheld or
delayed. Tenant shall cooperate with Landlord so as to
facilitate the prompt completion by Landlord of its obligations
under this Section and the prompt surrender by Tenant of the
Premises. Without limiting the generality of the preceding
sentence, Tenant shall provide to Landlord promptly any
approvals or instructions, and any plans and specifications or
any other information reasonably requested by Landlord.
39.03. From and after the date that Tenant actually
vacates and surrenders the Premises to Landlord, this Lease
(a) shall no longer apply to the Premises, except in respect of
obligations which accrued on or prior to such surrender date,
and (b) shall apply to the Substitute Premises as if the
Substitute Premises had been the space originally demised under
this Lease.
39.04. Notwithstanding anything contained herein to
the contrary, Landlord's rights under this Article 39 to
relocate Tenant may not be exercised at any time when 60% or
more of the rentable square footage in the Building is subject
to leases.
ARTICLE 40 - Partnership or Multi-Person Tenant
40.01. If the original Tenant herein named is a
partnership (or is comprised of two or more persons,
individually or as co-partners of a partnership) or if Tenant's
interest in this Lease is assigned to a partnership (or to two
or more persons, individually or as co-partners of a
partnership), the following provisions shall apply: (a) the
liability of each of the persons at any time comprising Tenant
shall be joint and several, (b) each of the persons at any time
comprising Tenant shall be bound by (i) any written instrument
executed by Tenant or any successor Tenant changing, modifying,
extending or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord,
(ii) any Notices given by Tenant or by any of the persons
comprising Tenant, and (iii) any statement executed by Tenant
or any of the persons comprising Tenant, pursuant to Sec-
tion 32.01, (c) any notices given to Tenant or to any of such
60
persons shall be binding on Tenant and all such persons, (d) if
Tenant admits new partners, all of such new partners shall, by
their admission to Tenant, be deemed to have assumed joint and
several liability for the performance of all of Tenant's
obligations under this Lease, (e) Tenant shall give prompt
notice to Landlord of the admission of any such new partners,
and on demand of Landlord shall cause each such new partner to
execute and deliver to Landlord an agreement in form
satisfactory to Landlord wherein each such new partner assumes
joint and several liability for the performance of all of
Tenant's obligations under this Lease (but neither Landlord's
failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to
Landlord shall vitiate the provisions of clause (d) of this
Section), and (f) the death, adjudication of incompetency or
withdrawal of an individual comprising Tenant or of an
individual partner shall not relieve him or his personal
representatives of any liability for the performance of
Tenant's obligations under this Lease. Nothing in this Article
40 shall apply to a joint venturer or partner of the Tenant in
joint research projects whose personnel are using a portion of
the Premises in conformity with Section 8.02(c).
ARTICLE 41 - Miscellaneous
41.01. Tenant expressly acknowledges and agrees that
Landlord has not made and is not making, and Tenant, in
executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease
or in any other written agreement which may be made between the
parties concurrently with the execution and delivery of this
Lease and which expressly refer to this Lease. All
understandings and agreements heretofore had between the
parties are merged in this Lease and any other written
agreements made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are
entered into after full investigation, neither party relying
upon any statement or representation not embodied in this Lease
or any other written agreements made concurrently herewith.
41.02. No agreement shall be effective to change,
modify, waive, release, discharge, terminate or effect an
abandonment of this Lease, in whole or in part, unless such
agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, termination or
effectuation of the abandonment is sought. If Tenant shall at
any time request Landlord to relet the Premises for Tenant's
account, Landlord or its agent is authorized to receive keys
for such purpose without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases
61
Landlord of any liability for loss or damage to any of the
Tenant's Property in connection with such reletting.
41.03. Except as otherwise expressly provided in
this Lease, the obligations of this Lease shall bind and
benefit the successors and assigns of the parties hereto with
the same effect as if mentioned in each instance where a party
is named or referred to; provided, however, that (a) no
violation of the provisions of Article 8 shall operate to vest
any rights in any successor or assignee of Tenant and (b) the
provisions of this Article shall not be construed as modifying
the conditions of limitation contained in Article 24. No
provision in this Lease shall be construed for the benefit of
any third party except as expressly provided herein.
41.04. The obligations of Tenant hereunder shall not
be affected, impaired or excused, nor shall Landlord have any
liability to Tenant, because (a) Landlord is unable to fulfill,
or is delayed in fulfilling, any of its obligations under this
Lease by reason of strike, other labor trouble, governmental
preemption of priorities or other controls in connection with a
national or other public emergency, or shortage of fuel,
supplies or labor, or any other cause, whether similar or
dissimilar, beyond Landlord's reasonable control; or (b) of any
failure or defect in the supply, quantity or character of
electricity, steam, oil, gas or water furnished to the
Premises, by reason of any requirement, act or omission of the
public utility or other entity serving the Building with
electric energy, steam, oil, gas or water, or for any other
reason whether similar or dissimilar, beyond Landlord's
reasonable control.
41.05. All references in this Lease to the consent
or approval of Landlord shall be deemed to mean only the
written consent or approval of Landlord and no consent or
approval of Landlord shall be effective for any purpose unless
such consent or approval is set forth in a written instrument
executed by Landlord. If Tenant requests Landlord's consent
and Landlord fails or refuses to give such consent, Tenant
shall not be entitled to any damages for any withholding by
Landlord of its consent, it being intended that Tenant's sole
remedy shall be an action for specific performance or
injunction, and that such remedy shall be available only in
those cases where this Lease provides that Landlord may not
unreasonably withhold its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
41.06. If an excavation is made upon land adjacent
to or under the Building, or is authorized to be made, Tenant
shall afford to the person causing or authorized to cause such
excavation, license to enter the Premises for the purpose of
performing such work as said person shall deem necessary or
62
desirable to preserve and protect the Building from injury or
damage and to support the same by proper foundations, without
any claim for damages or liability against Landlord and without
reducing or otherwise affecting Tenant's obligations under this
Lease.
41.07. Tenant agrees that the exercise of its rights
pursuant to the provisions of Article 12 or of any other
provisions of this Lease or the Exhibits hereto shall not be
done in a manner which would violate Landlord's union contracts
affecting the Project, nor create any work stoppage, picketing,
labor disruption or dispute or any interference with the
business of Landlord or any tenant or occupant of the Project.
41.08. Irrespective of the place of execution or
performance, this Lease shall be governed by and construed in
accordance with the laws of the State of New York. If any
provision of this Lease or the application thereof to any
person or circumstances shall, for any reason and to any
extent, be invalid or unenforceable, the remainder of this
Lease and the application of that provision to other persons or
circumstances shall not be affected but rather shall be
enforced to the extent permitted by law. The table of
contents, captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its
interpretation. This Lease shall be construed without regard
to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. Each covenant,
agreement, obligation or other provision of this Lease on
Tenant's part to be performed, shall be deemed and construed as
a separate and independent covenant of Tenant, not dependent on
any other provision of this Lease. All terms and words used in
this Lease, regardless of the number or gender in which they
are used, shall be deemed to include any other number and any
other gender as the context may require.
ARTICLE 42 - Right of First Offer
42.01. (a) If at any time during the Term of this
Lease all or a portion (in either case, the "Offered Space") of
the rentable space in the Building other than the Premises (the
"First Offer Space"; which is shown on Exhibit F hereto)
becomes vacant and not subject to any lease or other right of
occupancy, and Landlord does not desire itself to use or occupy
all or a material portion thereof, then, provided Tenant is not
in default beyond any applicable notice and grace periods, if
any, under this Lease, Landlord shall make a good faith offer
to rent the Offered Space to Tenant (the "First Offer") by
sending a written notice to Tenant (the "Offered Space Notice")
prior to submitting a formal written offer to rent the Offered
Space to any other potential tenant. The Offered Space Notice
shall set forth (i) the fixed rent Landlord is then considering
63
charging for the Offered Space, (ii) an identification of the
Offered Space and (iii) such other matters as Landlord may deem
appropriate for such Offered Space Notice. Tenant must notify
the Landlord in writing, within 30 days after such written
notice is given, stating whether Tenant accepts or rejects the
First Offer (the "Election Notice"), time being of the essence
with respect to the giving of the Election Notice. If Tenant
fails to give an Election Notice within such 30-day period,
then Tenant will be deemed to have rejected the First Offer.
The First Offer Space shall include the Expansion Space (as
hereinafter defined) provided Tenant has not previously
exercised its rights under Article 43 hereof. Landlord shall
have no obligation to pay for or perform any work in the
Offered Space to prepare it for Tenant's occupancy.
(b) If Tenant accepts, by means of the Election
Notice, the First Offer contained in the Offered Space Notice
within the required 30-day period, then Landlord shall lease to
Tenant the Offered Space, on the same terms and conditions as
those contained in this Lease and for a term commencing on the
first day of the month immediately following the month in which
the Election Notice is given and continuing coterminous with
the Term of this Lease, except (i) the Fixed Rent will be
payable at the rate contained in the Offered Space Notice, (ii)
Tenant's Proportionate Share under this Lease shall be
increased to include the Offered Space and (iii) as may
otherwise be set forth in the Offered Space Notice. Such
demise of the Offered Space shall be reflected by an amendment
to this Lease to include the Offered Space as part of the
Premises (but Tenant's failure to execute and deliver such an
amendment shall not affect its obligations with respect to the
Offered Space).
(c) If Tenant rejects (or is deemed to have
rejected) the First Offer then:
(i) Landlord shall have a period of 365 days (the
"365-day Period") from the giving of the Offered Space Notice
to enter into a lease for all or a part of the Offered Space
for a fixed rent per rentable square foot of not less than 90%
of the fixed rent per rentable square foot contained in the
Offered Space Notice and on such other material business terms
as are not substantially more favorable to the lessee than
those contained in the Offered Space Notice.
(ii) If Landlord does not enter into a lease for the
Offered Space within the 365-day Period, the right of First
Offer accorded to Tenant in this Section 42.01 shall be deemed
revived and reinstated with respect to any subsequent desire of
Landlord to lease all or part of the Offered Space after the
365-day Period (but shall not be deemed to revive the
64
particular First Offer theretofore rejected or deemed rejected
by Tenant); and
(iii) Notwithstanding the foregoing, in the event
that Landlord shall submit a new Offered Space Notice to Tenant
within the 365-day Period applicable to a previous First Offer
which Tenant rejected or was deemed to reject, and Tenant shall
also reject or be deemed to have rejected the First Offer in
the new Offered Space Notice, then the provisions of
subparagraph (c)(i) above shall be deemed to apply to the terms
and conditions of the new Offered Space Notice, and the terms
of this subparagraph (c)(iii) shall always be applicable to the
most recent Offered Space Notice with respect to which Tenant
shall have rejected or been deemed to have rejected a First
Offer.
ARTICLE 43 - Expansion Option
43.01. Landlord grants Tenant the option (the
"Expansion Option") to rent approximately 6,577 rentable square
feet of the additional space in the Building that is shown on
Exhibit G hereto (the "Expansion Space"). The Expansion Option
may be exercised only by Tenant's written notice given to
Landlord within 365 days after the date hereof, time being of
the essence with respect to the giving of such notice, and only
if Tenant shall not be in default beyond any applicable notice
and grace period under this Lease either as of the date of the
giving of such written notice by Tenant or the first day of the
month immediately following the month in which Tenant gives
such written notice. If Tenant exercises the Expansion Option
in accordance with this Section 43.01, then Landlord shall
lease to Tenant the Expansion Space on the same terms and
conditions as those contained in this Lease and for a term
commencing on the first day of the month immediately following
the month in which Tenant gives written notice of its exercise
of the Expansion Option and continuing coterminous with the
Term of this Lease. Tenant's Proportionate Share under this
Lease shall be adjusted to reflect the inclusion of the
Expansion Space. The demise of the Expansion Space shall be
accomplished by an amendment to this Lease to include the
Expansion Space as part of the Premises (but Tenant's failure
to execute and deliver such an amendment shall not affect its
obligations with respect to the Expansion Space). If Tenant
exercises its Expansion Option Landlord shall have no
obligation to pay for or perform any work in the Expansion
Space, to prepare such space for Tenant's occupancy. Tenant
shall have forever waived its right to exercise the Expansion
65
Option if it fails for any reason whatsoever to give notice of
exercise to Landlord within the 365-day period after the date
hereof, whether such failure is inadvertent or intentional.
IN WITNESS WHEREOF, Landlord and Tenant have duly
executed this Lease as of the day and year first above written.
LANDLORD:
KEREN LIMITED PARTNERSHIP
By: Keren Management Limited
Partnership, General Partner
By: Keren Developments Inc., its
general partner
By:_________________________
Name: James F. Kay
Title: President
TENANT:
APPLIED MICROBIOLOGY, INC.
By:________________________________
Name: Fredric Price
Title: President
Tenant's Federal Identification
Number
11-2653613
66
)
: ss.:
)
On the ____ day of January, 1995, before me
personally came James F. Kay to me known, who, being by me duly
sworn, did depose and say that he resides at _________________,
__________________; that he is the President of Keren
Developments Inc. which corporation is the general partner of
Keren Management Limited Partnership, which limited partnership
is the general partner of KEREN LIMITED PARTNERSHIP, the
partnership described in and which executed the foregoing
instrument; and that he signed his name thereto by order of the
board of directors of said corporation (Keren Developments
Inc.) as general partner of Keren Management Limited
Partnership, as general partner of Keren Limited Partnership.
--------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On the ____ day of January, 1995, before me
personally came Fredric Price, to me known, who, being by me
duly sworn, did depose and say that he resides at
_____________________, _____________________________________;
that he is the President of APPLIED MICROBIOLOGY, INC., the
corporation described in and which executed the foregoing
instrument; and that he signed his name thereto by order of the
board of directors of said corporation.
--------------------------
Notary Public
PLAN OF PREMISES
EXHIBIT A
SCHEDULE OF FIXED RENT
FIXED RENT
PERIOD PER ANNUM
Commencement Date - The day preceding the $378,650.00
the first anniversary of
the Commencement Date
First Anniversary - The day preceding the $401,369.00
of the Commencement second anniversary of
Date the Commencement Date
Second Anniversary - December 31, 1997 $424,088.00
of the Commencement
Date
January 1, 1998 - December 31, 1998 $449,394.00
January 1, 1999 - December 31, 1999 $449,394.00
January 1, 2000 - December 31, 2000 $449,394.00
January 1, 2001 - December 31, 2001 $449,394.00
January 1, 2002 - The last day of the $449,394.00
month in which the
seventh anniversary
of the Commencement
Date occurs.
EXHIBIT B
RULES AND REGULATIONS
1. The rights of each tenant in the entrances,
corridors and elevators servicing the Building are limited to
ingress to and egress from such tenant's premises for the tenant
and its employees, licensees and invitees, and no tenant shall
use, or permit the use of, the entrances, corridors or elevators
for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or
under such conditions as to interfere with the use and enjoyment
of any of the plazas, entrances, corridor, elevators and other
facilities of the Building by any other tenants. Fire exits and
stairways are for emergency use only, and they shall not be used
for any other purpose by the tenants, their employees, licensees
or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, elevators, fire exits or stairways of the
Building. Landlord reserves the right to control and operate the
public portions of the Building and the public facilities, as
well as facilities furnished for the common use of the tenants,
in such manner as it in its reasonable judgment deems best for
the benefit of the tenants generally.
2. Landlord may refuse admission to the Building
outside of Business Hours on Business Days (as such terms are
defined in the lease to which this Exhibit is attached) to any
person not known to the watchman in charge or not having a pass
issued by Landlord or the tenant whose premises are to be entered
or not otherwise properly identified, and Landlord may require
all persons admitted to or leaving the Building outside of
Business Hours on Business Days to provide appropriate
identification. Landlord will supply identification cards and be
reimbursed by Tenant at Landlord's cost plus 5%. Tenant shall be
responsible for all persons for whom it issues any such pass and
shall be liable to Landlord for all acts or omissions of such
persons. Tenant shall promptly notify Landlord in writing of any
lost identification cards and will reimburse Landlord at cost
plus 5% for replacement of identification cards. Any person
whose presence in the Building at any time shall, in the
reasonable judgment of Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be
denied access to the Building or may be ejected therefrom.
During any invasion, riot, public excitement or other commotion,
Landlord may prevent all access to the Building by closing the
doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. No tenant shall obtain or accept for use in its
premises towel, barbering, bootblacking, floor polishing,
cleaning or other similar services from any persons reasonably
prohibited by Landlord in writing from furnishing such services.
EXHIBIT C
Page 1
Such services shall be furnished only at such reasonable hours,
and under such reasonable regulations, as may be fixed by
Landlord from time to time.
4. The cost of repairing any damage to the public
portions of the Building or the public facilities or to any
facilities used in common with other tenants, caused by a tenant
or its employees, agents, contractors, licensees or invitees,
shall be paid by such tenant.
5. No awnings or other projections shall be attached
to the outside walls of the Building. No curtains, blinds,
shades or screens which are different from the standards adopted
by Landlord for the Building shall be attached to or hung in, or
used in connection with, any exterior window or door of the
premises of any tenant, without the prior written consent of
Landlord. Such curtains, blinds, shades or screens must be of a
quality, type, design and color, and attached in the manner
reasonably approved by Landlord.
6. No lettering, sign, advertisement, notice or object
shall be displayed in or on the exterior windows or doors, or on
the outside of any tenant's premises, or at any point inside any
tenant's premises where the same might be visible outside of such
premises, without the prior written consent of Landlord. In the
event of the violation of the foregoing by any tenant, Landlord
may remove the same without any liability, and may charge the
expense incurred in such removal to the tenant violating this
rule. Interior signs, elevator cab designations and lettering on
doors and the Building directory shall, if and when approved by
Landlord, be inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size,
color and style acceptable to Landlord.
7. The sashes, sash doors, skylights, windows and
doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be
covered or obstructed by any tenant, nor shall any bottles,
parcels or other articles be placed on the window sills or on the
peripheral air conditioning enclosures, if any.
8. No showcases or other articles shall be put in
front of or affixed to any part of the exterior of the Building,
nor placed in the halls, corridors or vestibules except within
the Premises.
9. No noise, including, but not limited to, music or
the playing of musical instruments, recordings, radio or
television, which, in the reasonable judgment of Landlord, might
disturb other tenants in the Building, shall be made or permitted
by any tenant. Nothing shall be done or permitted in the
premises of any tenant which would impair or interfere with the
EXHIBIT C
Page 2
use or enjoyment by any other tenant of any other space in the
Building.
10. Additional locks or bolts of any kind which shall
not be operable by the Grand Master Key for the Building shall
not be placed upon any of the doors or windows by any tenant, nor
shall any changes be made in locks or the mechanism thereof which
shall make such locks inoperable by said Grand Master Key.
Additional keys for a tenant's premises and toilet rooms shall be
procured only from Landlord who may make a reasonable charge
therefor. Each tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and
toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys furnished by
Landlord, such tenant shall pay to Landlord the cost thereof.
11. All removals, or the carrying in or out of any
safes, freight, furniture, packages, boxes, crates or any other
object or matter of any description must take place during such
hours and in such elevators, and in such manner as Landlord or
its agent may determine from time to time. The persons employed
to move safes and other heavy objects shall be reasonably
acceptable to Landlord and, if so required by law, shall hold a
Master Rigger's license. Arrangements will be made by Landlord
with any tenant for moving large quantities of furniture and
equipment into or out of the Building. All reasonable labor and
engineering costs incurred by Landlord in connection with any
moving specified in this rule, including a reasonable charge for
overhead and profit, shall be paid by tenant to Landlord, on
demand.
12. Landlord reserves the right to inspect all objects
and matter to be brought into the Building and to exclude from
the Building all objects and matter which violate any of these
Rules and Regulations or the lease of which this Exhibit is a
part. Landlord may require any person leaving the Building with
any package or other object or matter to submit a pass, listing
such package or object or matter, from the tenant from whose
premises the package or object or matter is being removed, but
the establishment and enlargement of such requirement shall not
impose any responsibility on Landlord for the protection of any
tenant against the removal of property from the premises of such
tenant. Landlord shall in no way be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection
of any person to or from the premises or the Building under the
provisions of this Rule or of Rule 2 hereof.
13. No tenant shall occupy or permit any portion of its
premises to be occupied as an office for a public stenographer or
public typist, or for the storage, manufacture, or sale of
liquor, narcotics, dope, tobacco in any form, or as a barber,
beauty or manicure shop, or as a school. No tenant shall use or
EXHIBIT C
Page 3
permit its premises or any part thereof to be used for
manufacturing or the sale at retail or auction of merchandise,
goods or property of any kind.
14. Landlord shall have the right to prohibit any
advertising or identifying sign by any tenant which, in
Landlord's reasonable judgment, tends to impair the reputation of
the Building or its desirability as a building for others, and
upon written notice from Landlord, such tenant shall refrain from
and discontinue such advertising or identifying sign.
15. Landlord shall have the right to prescribe the
weight and position of safes and other objects of excessive
weight, and no safe or other object whose weight exceeds the
lawful load for the area upon which it would stand shall be
brought into or kept upon any tenant's premises. If, in the
reasonable judgment of Landlord, it is necessary to distribute
the concentrated weight of any heavy object, the work involved in
such distribution shall be done at the expense of the tenant and
in such manner as Landlord shall reasonably determine.
16. No machinery or mechanical equipment other than
ordinary portable business machines may be installed or operated
in any tenant's premises without Landlord's prior written consent
which consent shall not be unreasonably withheld or delayed, and
in no case (even where the same are of a type so excepted or as
so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants;
but machines and mechanical equipment which may be permitted to
be installed and used in a tenant's premises shall be so
equipped, installed and maintained by such tenant as to prevent
any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any
other area of the Building.
17. Landlord, its contractors, and their respective
employees, shall have the right to use, without charge therefor,
all light, power and water in the premises of any tenant while
cleaning or making repairs or alterations in the premises of such
tenant.
18. No premises of any tenant shall be used for lodging
or sleeping or for any immoral or illegal purpose.
19. The requirements of tenants will be attended to
only upon application at the office of the Building. Employees
of Landlord shall not perform any work or do anything outside of
their regular duties, unless under special instructions from
Landlord.
EXHIBIT C
Page 4
20. Canvassing, soliciting and peddling in the Building
are prohibited and each tenant shall cooperate to prevent the
same.
21. No tenant shall cause or permit any unusual or
objectionable odors to emanate from its premises which would
annoy other tenants or create a public or private nuisance. No
cooking shall be done in the premises of any tenant except as is
expressly permitted in such tenant's lease.
22. Nothing shall be done or permitted in any tenant's
premises, and nothing shall be brought into or kept in any
tenant's premises, which would impair or interfere with any of
the Building's services or the proper and economic heating,
ventilating, air conditioning, cleaning or other servicing of the
Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any
tenant any ventilating, air-conditioning, electrical or other
equipment of any kind which, in the reasonable judgment of
Landlord, might cause any such impairment or interference.
23. No acids, vapors or other materials shall be
discharged or permitted to be discharged into the waste lines,
vents or flues of the Building which may damage them. The water
and wash closets and other plumbing fixtures in or serving any
tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no
sweepings, rubbish, rags, acids or other foreign substances shall
be deposited therein. All damages resulting from any misuse of
the fixtures shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees shall have, caused the
same. Any cuspidors or containers or receptacles used as such in
the premises of any tenant or for garbage or similar refuse,
shall be emptied, cared for and cleaned by and at the expense of
such tenant.
24. All entrance doors in each tenant's premises shall
be left locked and all windows shall be left closed by the tenant
when the tenant's premises are not in use. Entrance doors shall
not be left open at any time. Each tenant, before closing and
leaving its premises at any time, shall turn out all lights.
25. Hand trucks not equipped with rubber tires and side
guards shall not be used within the Building.
26. All windows in each tenant's premises shall be kept
closed, and all blinds therein above the ground floor shall be
lowered as reasonably required because of the position of the
sun, during the operation of the Building air-conditioning system
to cool or ventilate the tenant's premises. If Landlord shall
elect to install any energy saving film on the windows of any
premises or to install energy saving windows in place of the
EXHIBIT C
Page 5
present windows, each tenant shall cooperate with the reasonable
requirements of Landlord in connection with such installation and
thereafter the maintenance and replacement of the film and/or
windows and permit Landlord to have access to the tenant's
premises at reasonable times during Business Hours to perform
such work. In connection with any installation or maintenance
required in this Paragraph 26, Landlord shall use reasonable
efforts to minimize any interference with, or interruption to,
Tenant's business at the Premises.
27. Landlord reserves the right to rescind, alter or
waive any rule or regulation at any time prescribed for the
Building when, in its reasonable judgment, it deems it necessary,
desirable or proper for its best interest and for the best
interests of the tenants generally, and no alteration or waiver
of any rule or regulation in favor of one tenant shall operate as
an alteration or waiver in favor of any other tenant. Landlord
shall not be responsible to any tenant for the nonobservance or
violation by any other tenant of any of the rules and regulations
at any time prescribed for the Building.
EXHIBIT C
Page 6
PARKING AREA
EXHIBIT D
DESCRIPTION OF PLANS AND
SPECIFICATIONS FOR THE TENANT IMPROVEMENTS
EXHIBIT E
DESCRIPTION OF FIRST OFFER SPACE
EXHIBIT F
DESCRIPTION OF EXPANSION SPACE
EXHIBIT G
CLEANING SCHEDULE
EXHIBIT H
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of June 28, 1995, ("Agreement"),
between General Electric Capital Corporation, with an office at 303
International Circle, Suite 300, Hunt Valley, MARYLAND 21031, (hereinafter
called, together with its successors and assigns, if any, "Lessor"), and
Applied Microbiology, Inc., a corporation, organized and existing under the
laws of the State of New York, with its mailing address and chief place of
business at 771 Old Saw Mill River Road, Tarrytown, NY 10591 (hereinafter
called "Lessee").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor agrees
to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment
("Equipment") described in Annex A to any schedule hereto ("Schedule") and
this Agreement shall be effective from and after the date of execution hereof.
Terms defined in a Schedule and not otherwise defined herein shall have the
meanings ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase Equipment from the manufacturer
or supplier thereof ("Supplier"), and to lease the same to Lessee under any
Schedule shall be subject to receipt by Lessor, prior to the Lease
Commencement Date (with respect to such Equipment), of each of the following
documents in form and substance satisfactory to Lessor: (i) a Schedule
relating to the Equipment then to be leased hereunder, (ii) a Purchase Order
Assignment and Consent in the form of Annex B to the applicable Schedule,
unless Lessor shall have delivered its purchase order for such Equipment,
(iii) evidence of insurance which complies with the requirements of Section X,
and (iv) such other documents as Lessor may reasonably request. As a further
condition to such obligations of Lessor, Lessee shall, upon delivery of such
Equipment (but not later than the Last Delivery Date specified in the
applicable Schedule) execute and deliver to Lessor a Certificate of Acceptance
(in the form of Annex C to the applicable Schedule) covering such Equipment.
Lessor hereby appoints Lessee its agent for inspection and acceptance of the
Equipment from the Supplier. Upon execution by Lessee of any Certificate of
Acceptance, the Equipment described thereon shall be deemed to have been
delivered to, and irrevocably accepted by, Lessee for lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the Equipment
shall commence on the date of execution by Lessee of the Certificate of
Acceptance for such Equipment ("Lease Commencement Date"). The term of this
Agreement shall be the period specified in the applicable Schedule. If any
term is extended, the word "term" shall be deemed to refer to all extended
terms, and all provisions of this Agreement shall apply during any extended
terms, except as may be otherwise specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated above, except as
otherwise directed by Lessor. Payments of rent shall be in the amount set
forth in, and due in accordance with, the provisions of the applicable
Schedule. If one or more Advance Rentals are payable, such Advance Rental
shall be (i) set forth on the applicable Schedule, (ii) due upon acceptance by
Lessor of such Schedule, and (iii) when received by Lessor, applied to the
first rent payment and the balance, if any, to the final rental payment(s)
under such Schedule. In no event shall any Advance Rental or any other rent
payments be refunded to Lessee. If rent is not paid within ten days of its due
date, Lessee agrees to pay a late charge of five cents ($.05) per dollar on,
and in addition to, the amount of such rent but not exceeding the lawful
maximum, if any.
(c) So long as no default shall have occurred and be continuing under
the terms of this agreement, neither Lessor nor its agents, employees,
creditors, or assigns will disturb Lessee's quiet, peaceful and uninterrupted
possession of the Equipment during the term of this Lease and Lessee's
uninterrupted use thereof for its intended purpose.
III. RENT ADJUSTMENT:
(a) The periodic rent payments in each Schedule have been calculated on
the assumption (which, as between Lessor and Lessee, is mutual) that the
maximum effective corporate income tax rate (including any surcharge but
exclusive of any minimum tax rate) for calendar year taxpayers ("Effective
Rate") will be thirty-five percent (35%) for each year of the lease term.
(b) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to, the Internal Revenue Code of 1986 ("Code"), the Effective Rate is higher
than thirty-five percent (35%) for any year during the lease term, then Lessor
shall have the right to increase such rent payments by requiring payment of a
single additional sum equal to the product of (i) the Effective Rate
(expressed as a decimal) for such year less .35 (or, in the event that any
adjustment has been made hereunder for any previous year, the Effective Rate
(expressed as a decimal) used in calculating the next previous adjustment)
times (ii) the adjusted Stipulated Loss Value divided by the difference
between the new Effective Tax Rate (expressed as a decimal) and one (1). The
adjusted Stipulated Loss Value shall be the Stipulated Loss Value (calculated
as of the first rental due in the year for which such adjustment is being
made) less the product of the Tax Benefits that would be allowable under
Section 168 of the Code (as of the first day of the year for which such
adjustment is being made and all subsequent years of the lease term). Lessee
shall pay to Lessor the full amount of the additional rent payment on the
later of (i) receipt of notice or (ii) the first day of the year for which
such adjustment is being made.
(c) Lessee's obligations under this Section III shall survive any
expiration or termination of this Agreement.
IV. TAXES: Except as provided in Sections III and XV(c), Lessee shall
have no liability for taxes imposed by the United States of America or
any State or political subdivision thereof which are on or measured by
the net income of Lessor. Lessee shall report (to the extent that it is
legally permissible) any pay promptly all other taxes, fees and
assessments due, imposed, assessed or levied against any Equipment (or
the purchase, ownership, delivery, leasing, possession, use or operation
therof), this Agreement (or any rentals or receipts hereunder), any
Schedule, Lessor or Lessee by any foreign, federal, state or local
government or taxing authority during or related to the term of this
Agreement, including, without limitation, all license and registration
fees, and all sales, use, personal property, excise, gross receipts,
franchise, stamp or other taxes, imposts, duties and charges, together
with any penalties, fines or interest thereon (all hereinafter called
"Taxes"). Lessee shall (i) reimburse Lessor upon receipt of written
request for reimbursement for any Taxes charged to or assessed against
Lessor, (ii) on request of Lessor, submit to Lessor written evidence of
Lessee's payment of Taxes, (iii) on all reports or returns show the
ownership of the Equipment by Lessor, and (iv) send a copy thereof to
Lessor. The obligations of Lessee under this Section IV shall survive
any expiration or termination of this Agreement.
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days after any
tax or other lien shall attach to any Equipment, of the full particulars thereof
and of the location of such Equipment on the date of such notification.
(b) Lessee will within ninety (90) days of the close of each fiscal year
of Lessee, deliver to Lessor, Lessee's complete financial statements,
certified by a recognized firm of certified public accountants. Lessee will,
within thirty (30) days after the date on which they are filed, deliver to
Lessor all Forms 10-K and 10-Q filed with the Securities and Exchange
Commission. Upon request Lessee will deliver to Lessor quarterly, within
ninety (90) days of the close of each fiscal quarter of Lessee, in reasonable
detail, copies of Lessee's quarterly financial report certified by the chief
financial officer of Lessee. Upon request, Lessee will deliver to Lessor one
copy of each financial statement, report, notice or proxy statement sent by
Lessee to shareholders generally and one copy of each regular or periodic
report, registration statement or prospectus filed by Lessee with any
securities exchange or the Securities and Exchange Commission or any successor
agency, such copies to be delivered to Lessor within thirty (30) days after
they become available or are otherwise filed.
(c) Lessee will permit Lessor to inspect any Equipment during normal
business hours.
(d) Lessee will keep the Equipment at the Equipment Location (specified
in the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. Upon the written request of Lessor, Lessee will
notify Lessor forthwith in writing of the location of any Equipment as of the
date of such notification.
(e) Lessee will promptly and fully report to Lessor in writing if any
Equipment is lost or damaged (where the estimated repair costs would exceed ten
percent (10%) of its then fair market value), or is otherwise involved in an
accident causing personal injury or property damage.
(f) Within thirty (30) days after any request by Lessor, Lessee will
furnish a certificate of an authorized officer of Lessee stating that he has
reviewed the activities of Lessee and that, to the best of his knowledge,
there exists no default (as described in Section XII) or event which with
notice or lapse of time (or both) would become such a default.
VI. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in the
conduct of its business and in a manner complying with all applicable federal,
state, and local laws and regulations and any applicable insurance policies
and Lessee shall not discontinue use of the Equipment.
(c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER, NOR SHALL LESSEE REMOVE ANY
EQUIPMENT FROM THE CONTINENTAL UNITED STATES, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE LESSOR.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
VII. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear expected. Lessee shall,
if at any time requested by Lessor, affix in a prominent position on each
unit of Equipment plates, tags or other identifying labels showing ownership
thereof by Lessor.
(b) Lessee will not, without the prior consent of Lessor, affix or
install any accessory, equipment or device on any Equipment if such addition
will impair the originally intended function or use of such Equipment. All
additions, repairs, parts, supplies, accessories, equipment, and devices
furnished, attached or affixed to any Equipment which are not readily
removable shall be made only in compliance with applicable law, including
Internal Revenue Service guidelines, shall be free and clear of all liens,
encumbrances or rights of others, and shall become the property of Lessor.
Lessee will not, without the prior written consent of Lessor and subject to
such conditions as Lessor may impose for its protection, affix or install any
Equipment to or in any other personal or real property.
(c) Any alterations or modifications to the Equipment that may, at any
time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessee.
VIII. STIPULATED LOSS VALUE: Lessee shall promptly and fully notify
Lessor in writing if any unit of Equipment shall be or become worn out,
lost, stolen, destroyed, irreparably damaged in the reasonable
determination of Lessee, or permanently rendered unfit for use from any
cause whatsoever (such occurrences being hereinafter called "Casualty
Occurrences"). On the rental payment date next succeeding a Casualty
Occurrence (the "Payment Date"), Lessee shall pay Lessor the sum of (x)
the Stipulated Loss Value of such unit calculated as of the rental next
preceding such Casualty Occurrence ("Calculation Date") and (y) all
rentals and other amounts which are due hereunder as of the Payment
Date. Upon payment of all sums due hereunder, the term of this lease as
to such unit shall terminate and (except in the case of the loss, theft
or complete destruction of such unit) Lessor shall be entitled to
recover possession of such unit.
IX. LOSS OR DAMAGE: Lessee hereby assumes and shall bear the entire risk
of any loss, theft, damage to, or destruction of, any unit of Equipment
from any cause whatsoever from the time the Equipment is shipped to
Lessee.
X. INSURANCE: Lessee agrees, at its own expense, to keep all Equipment
insured for such amounts and against such hazards as Lessor may require,
including, but not limited to, insurance for damage to or loss of such
Equipment and liability coverage for personal injuries, death or property
damage, with Lessor named as additional insured and with a loss payable
clause in favor of Lessor, as its interest may appear, irrespective of any
breach of warranty or other act or omission of Lessee. All such policies
shall be with companies, and on terms, satisfactory Lessor. Lessor agrees to
deliver to Lessor evidence of insurance satisfactory to Lessor. No Insurance
shall be subject to any co-insurance clause. Lessee hereby appoints Lessor as
Lessees.
attorney-in-fact to make proof of loss and claim for insurance, and to make
adjustments with insurers and to receive payment of and execute or endorse all
documents, checks or drafts in connection with payments made as a result of
such insurance policies. Any expense of Lessor in adjusting or collecting
insurance shall be borne by Lessee. Lessee will not make adjustments with
insurers except (i) with respect to claims for damage to any unit of Equipment
where the repair costs do not exceed ten percent (10%) of such unit's fair
market value, or (ii) with Lessor's written consent. Said policies shall
provide that the insurance may not be altered or cancelled by the insurer
until after thirty (30) days' written notice to Lessor. Lessor may, at its
option, apply proceeds of insurance, in whole or in part, to (i) repair or
replace Equipment or any portion thereof, or (ii) satisfy any obligation of
Lessee to Lessor hereunder.
XI. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, Lessee shall promptly, at its own cost and expense: (i)
perform any testing and repairs required to place the affected units of
Equipment in the same condition and appearance as when received by
Lessee (reasonable wear and tear excepted) and in good working order for
their originally intended purpose; (ii) if deinstallation, disassembly
or crating is required, cause such units to be deinstalled, disassembled
and crated by an authorized manufacturer's representative or such other
service person as is satisfactory to Lessor; and (iii) return such units
to a location within the continental United States as Lessor shall
direct.
(b) Until Lessee has fully complied with the requirements of Section
XI(a) above, Lessee's rent payment obligation and all other obligations
under this Agreement shall continue from month to month notwithstanding any
expiration or termination of the lease term. Lessor may terminate such
continued leasehold interest upon ten (10) days' notice to Lessee.
XII. DEFAULT:
(a) Lessor may in writing declare this Agreement in default if: Lessee
breaches its obligation to pay rent or any other sum when due and fails to
cure the breach within ten (10) days; Lessee breaches any of its insurance
obligations herewith under Section X; Lessee breaches any of its other
obligations hereunder and fails to cure that breach within thrity (30) days
after written notice thereof; any representation or warranty made by or on
behalf of Lessee in connection with this Agreement shall be false or
misleading in any material respect; Lessee or any guarantor becomes insolvent
or ceases to do business as a going concern; any Equipment is illegally used;
a petition is filed by or against Lessee or any guarantor under any bankruptcy
or insolvency laws; there is a revocation or anticipatory repudiation of any
guarantor's obligations under any guaranty issued in connection with this
Agreement; Lessee or any guarantor shall be in default under any material
obligation and the applicable grace period with respect thereto shall have
expired; Lessee or any guarantor shall have terminated its existence,
consolidated with, merged into or conveyed or leased substantially all of its
assets as an entirety to any person (such actions being referred to as an
"Event"), unless not less than sixty (60) days prior to such Event: (x) such
person is organized and existing under the laws of the United States or any
state, and executes and delivers to Lessor an agreement containing an
effective assumption by such person of the due and punctual performance of
this Lease or guaranty thereof, as the case may be, and (y) Lessor is
reasonably satisfied as to the credit worthiness of such person; if Lessee or
any guarantor is a privately held corporation and effective control of
Lessee's or any guarantor's voting capital stock, issued and outstanding from
time to time, is not retained by the present stockholders (unless Lessee shall
have provided sixty (60) days' prior written notice to Lessor of the proposed
disposition of stock and Lessor shall have consented thereto in writing);
or if Lessee or any guarantor is a publicly held corporation as a result of or
in connection with a material change in the ownership of Lessee's or any
guarantor's capital stock, Lessee's or any guarantor's debt-to-worth ratio
equals or exceeds twice Lessee's or any guarantor's debt-to-worth ratio as of
the date of this Lease (unless Lessor shall have given its prior written
consent thereto), if Lessee or any guarantor is a natural person, any death or
incompetency of Lessee or such guarantor. As used herein, "debt-to-worth
ratio" shall mean the ratio of (x) total liabilities which, in accordance with
generally accepted accounting principles ("GAAP") would be included in the
liability side of a balance sheet to (y) tangible net worth including the sum
of the par or stated value of all outstanding capital stock, surplus and
undivided profits, less any amounts attributable to goodwill, patents,
copyrights, mailing lists, catalogs, trademarks, bond discount and
underwriting expenses, organization expense and other intangibles, all
determined in accordance with GAAP. Any provision of this Agreement to the
contrary notwithstanding, Lessor may exercise all rights and remedies
hereunder independently with respect to each Schedule.
(b) After default, at the requrest of Lessor, Lessee shall comply with
the provisions of Section XI(a). Lessee hereby authorizes Lessor to enter,
with or without legal process, any premises where any Equipment is believed to
be and take possession thereof. Lessee shall, without further demand,
forthwith pay to Lessor as liquidated damages for loss of a bargain and not as
a penalty, the Stipulated Loss Value of the Equipment (calculated as of the
rental date next preceding the declaration of default), and all rentals and
other sums then due hereunder. Lessor may terminate this Agreement as to any
or all of the Equipment, provided that a termination shall occur only upon
written notice by Lessor to Lessee and only as to the items of Equipment
specified in any such notice. Lessor may, but shall not be required to, sell
Equipment at private or public sale, in bulk or in parcels, with or without
notice, and without having the Equipment present at the place of sale; or Lessor
may, but shall not be required to, lease, otherwise dispose of or keep idle all
or part of the Equipment; and Lessor may use Lessee's premises for any or all of
the foregoing without liability for rent, costs, damages or otherwise. The
proceeds of sale, lease or other disposition, if any, shall be applied in the
following order of priorities: (1) to pay all of Lessor's costs, charges and
expenses incurred in taking, removing, holding, repairing and selling, leasing
or otherwise disposing of Equipment; then, (2) to the extent not previously paid
by Lessee, to pay Lessor all sums due from Lessee hereunder; then (3) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages;
and (4) any surplus shall be retained by Lessor. Lessee shall pay any deficiency
in (1) and (2) forthwith.
(c) The foregoing remedies are cumulative, and any or all thereof may be
exercised in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition
(and the time and place thereof), and the manner and place of any advertising.
Lessee shall pay Lessor's actual attorney's fees incurred in connection with
the enforcement, assertion, defense or preservation of Lessor's rights and
remedies hereunder, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall be a waiver of any other or subsequent
default.
(d) Any default under the terms of this or any other agreement between
Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
XIII. ASSIGNMENT: Lessor may, without the consent of Lessee, assign this
Agreement or any Schedule or any interests therein. Lessee agrees that if
Lessee receives written notice of an assignment from Lessor, Lessee will pay
all rent and all other amounts payable under any assigned Equipment Schedule
to such assignee or as instructed by Lessor. Lessee further agrees to confirm
in writing receipt of the notice of assignment as may be reasonably requested
by assignee. Lessee hereby waives and agrees not to assert against any such
assignee any defense, set-off, recoupment, claim or counterclaim which Lessee
has or may at any time have against Lessor for any reason whatsoever.
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease. Lessee's
obligation to pay rent and other amounts due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reductions of,
or set-offs against, said rent or other amounts, including, without
limitation, those arising or allegedly arising out of claims (present or
future, alleged or actual, and including claims arising out of strict tort or
negligence of Lessor) of Lessee against Lessor under this Agreement or
otherwise. Nor shall this Agreement terminate or the obligations of Lessee be
affected by reason of any defect in or damage to, or loss of possession, use
or destruction of, any Equipment from whatsoever cause. It is the intention of
the parties that rents and other amounts due hereunder shall continue to be
payable in all events in the manner and at the times set forth herein unless
the obligation to do so shall have been terminated pursuant to the express
terms hereof.
XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless Lessor,
its agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including
legal expenses, of whatsoever kind and nature, in contract or tort or
otherwise, unless caused by the gross negligence or willful misconduct of
Lessor, and including, but not limited to, Lessor's strict liability in tort,
arising out of (i) the selection, manufacture, purchase, acceptance or
rejection of Equipment, the ownership of Equipment during the term of this
Agreement, and the delivery, lease, possession, maintenance, uses, condition,
return or operation of Equipment (including, without limitation, latent and
other defects, whether or not discoverable by Lessor or Lessee and any claim
for patent, trademark or copyright infringement or environmental damage) or
(ii) the condition of Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any
actions based on, or arising out of, any of the foregoing.
(b) The Lease has been entered into on the assumption that (i) the Lease
will be treated for federal income tax purposes as a true lease and the Lessor
will be treated as the owner and lessor of the Equipment and the Lessee will
be treated as the lessee of the Equipment, and (ii) on the Lease Commencement
Date for any unit of Equipment, such unit will qualify for all of the items of
deduction and credit specified in Section C of applicable Schedule ("Tax
Benefits") in the hands of Lessor (all references to Lessor in this Section XV
include Lessor and the consolidated tax payer group of which Lessor is a
member).
(c) If for any reason whatsoever (i) tax counsel of Lessor shall
determine that Lessor is not entitled to claim on its federal income tax
return all or any portion of the Tax Benefits with respect to any Equipment or
(ii) any such Tax Benefit claimed on the federal income tax return of Lessor
is disallowed or adjusted by the Internal Revenue Service or (iii) any such
Tax Benefit is recomputed or recaptured (any such determination, disallowance,
adjustment, recomputation, or recapture being hereinafter called a "Loss"),
then Lessee shall pay to Lessor, as an indemnity and as additional rent, such
amount as shall, in the reasonable opinion of Lessor, cause Lessor's after-tax
economic yields and cash flows, computed on the same assumptions, including
tax rates (unless any adjustment has been made under Section III hereof, in
which case the Effective Rate used in the next preceding adjustment shall be
substituted), as were utilized by Lessor in originally evaluating the
transaction (such yields and flows being hereinafter called the "Net Economic
Return") to equal the Net Economic Return that would have been realized by
Lessor if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount. Anything in this paragraph to the contrary
notwithstanding, Lessee shall have no obligation to indemnify Lessor from or
against any such Loss to the extent that such Loss is caused by: (i) any
failure by Lessor to properly or timely claim on its federal income tax return
any Tax Benefits on any Equipment (unless such failure is based upon a
determination by tax counsel of Lessor that Lessor is not entitled to claim
such Tax Benefits with respect to such Equipment); (ii) any failure of Lessor
to have sufficient taxable income to benefit from the Tax Benefits; (iii) any
liability of the Lessor for any alternative minimum taxes; (iv) the status of
Lessor for purposes of federal income taxes; (v) any sale or other disposition
of any Equipment by Lessor other than after an event of default by Lessee;
(vi) any tax election made or not made by Lessor relating to the Tax Benefits;
or (vii) any event which results in a payment by Lessee in an amount equal to,
or measured by, the Stipulated Loss Value to the extent that such Loss was
included in Lessor's calculation of such Stipulated Loss Value.
(d) all of Lessor's rights, privileges and indemnities contained in this
Section XV shall survive the expiration or other termination of this
Agreement and the rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by Lessor, its
successors and assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL LESSOR BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY
OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All
such risks as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
lessee or any other person with respect to any of the following, regardless of
any negligence of Lessor (i) any liability, loss or damage caused or alleged to
be caused directly or indirectly by any Equipment, any inadequacy thereof, any
deficiency or defect (latent or otherwise) therein, or any other circumstance in
connection therewith; (ii) the use, operation or performance of any Equipment or
any risks relating thereto; (iii) any interruption of service, loss of business
or anticipated profits or consequential damages, or (iv) the delivery,
operation, servicing, maintenance, repair, improvement or replacement of any
Equipment. If, and so long as, no default exists under this Lease, Lessee shall
be, and hereby is, authorized during the term of this Lease to assert and
enforce, at Lessee's sole cost and expense, from time to time, in the name of
and for the account of Lessor and/or Lessee, as their interests may appear,
whatever claims and rights Lessor may have against any Supplier of the
Equipment.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and
warrants to Lessor that on the date hereof and on the date of execution of
each Schedule:
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "Documents")
and is duly qualified to do business wherever necessary to carry on its present
business and operations, including the jurisdiction(s) where the Equipment is
or is to be located:
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into
or performance by Lessee of the Documents except such as have already been.
(d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's Certificate of Incorporation or By-Laws; or (ii) result
in any breach of, constitute a default under or result in the creation of any
lien, charge, security interest or other encumbrance upon any Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or
affecting Lessee, which if decided adversely will have a material adverse
effect on the ability of Lessee to fulfill its obligations under this
Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and
will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in
accordance with GAAP consistently applied, and since the date of the most
recent such financing statement, there has been no material adverse change.
(h) Lessee is and will be at all times validly existing and in good
standing under the laws of the State of its incorporation (specified in the
first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business
purposes.
XVIII. PURCHASE OPTION:
(a) So long as no default exists hereunder and the lease has not been
earlier terminated, Lessee may at lease expiration, upon at least one hundred
eighty (180) days' prior written notice to Lessor, purchase all (but not less
than all) of the Equipment in any Schedule on an AS IS, WHERE IS BASIS without
recourse to or warranty from Lessor, express or implied ("AS IS BASIS") for
cash equal to its then Fair Market Value (plus all applicable sales taxes).
(b) "Fair Market Value," shall mean the price which a willing buyer (who
is neither a lessee in possession nor a used equipment dealer) would pay for
the Equipment in an arm's-length transaction to a willing seller under no
compulsion to sell; provided, however, that in such determination: (i) the
Equipment shall be assumed to be in the condition in which it is required to
be maintained and returned under this Agreement; (ii) in the case of any
installed Equipment, that Equipment shall be valued on an installed basis; and
(iii) costs of removal from current location shall not be a deduction from
such valuation. If Lessor and Lessee are unable to agree on the Fair Market
Value at least one hundred thirty-five (135) days before lease expiration,
Lessor shall appoint an independent appraiser (reasonably acceptable to
Lessee) to determine Fair Market Value, and that determination shall be final,
binding and conclusive. Lessee shall bear all costs associated with any such
appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after Fair Market Value is determined (by agreement
or appraisal).
XIX. MISCELLANEOUS:
(A) LESSEE HEREBY UNCONDITIONALLY WAIVES IT RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
(INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STAUTORY CLAIMS). THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS LEASE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) Unless and until Lessee exercises its rights under Section XVIII
above, nothing herein contained shall give or convey to Lessee any right,
title or interest in and to any Equipment except as a lessee. Any cancellation
or termination by Lessor, pursuant to the provision of this Agreement, any
Schedule, supplement or amendment hereto, or the lease of any Equipment
hereunder, shall not release Lessee from any then oustanding obligations to
Lessor hereunder. All Equipment shall at all times remain personal property of
Lessor regardless of the degree of its annexation to any real property and
shall not by reason of any installation in, or affixation to, real or personal
property become a part thereof.
(c) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith. Lessee agrees, upon Lessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder shall be deemed
adequately given if sent by registered or certified mail to the addressee at
its address stated herein, or at such other place as such addressee may have
designated in writing and shall be deemed effective when sent. This Agreement
and any Schedule and Annexes thereto constitute the entire agreement of the
parties with respect to the subject matter hereof. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO.
LESSOR /s/ SMS
LESSEE /s/ BTS
(d) In case of a failure of Lessee to comply with any provision of this
Agreement, Lessor shall have the right, but shall not be obligated to, effect
such compliance, in whole or in part; and all moneys spent and expenses and
obligations incurred or assumed by Lessor in effecting such compliance shall
constitute additional rent due to Lessor within five days after the date
Lessor sends notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due hereunder shall
bear interest, both before and after any judgment or termination hereof, at
the lesser of eighteen percent (18%) per annum or the maximum rate allowed by
law. Any provisions in this Agreement and any Schedule which are in conflict
with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representatives as of the date first
above written.
LESSOR: LESSEE:
General Electric Capital Corporation Applied Microbiology, Inc.
By: /s/ Steven M. Spivey By: /s/ Benjamin T. Sporn
Name: Steven M. Spivey Name: Benjamin T. Sporn
Title: Senior Credit Analyst Title: Vice President Legal & Secretary
MARY LOU MURRAY
Notary Public, State of New York
No. 60-4644049
Qualified in Westchester County
Commission Expires 2/28/1996
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Applied Microbiology, Inc.:
We consent to incorporation by reference in the Registration Statement
No. 33-73332 on Form S-8 of Applied Microbiology, Inc. of our report dated July
21, 1995, relating to the consolidated balance sheets of Applied Microbiology,
Inc. and subsidiary as of June 30, 1995 and 1994, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended June 30, 1995, which report appears in the
June 30, 1995 annual report on Form 10-K of Applied Microbiology, Inc.
KPMG Peat Marwick LLP
New York, New York
September 28, 1995
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JUN-30-1995
<PERIOD-END> JUN-30-1995
<CASH> 3337
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<RECEIVABLES> 1850
<ALLOWANCES> 14
<INVENTORY> 2865
<CURRENT-ASSETS> 9359
<PP&E> 7542
<DEPRECIATION> 4096
<TOTAL-ASSETS> 13788
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<SALES> 11264
<TOTAL-REVENUES> 11874
<CGS> 3258
<TOTAL-COSTS> 10955
<OTHER-EXPENSES> 380
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<INCOME-PRETAX> 537
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