UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 01-19890
LIFECELL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 76-0172936
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
ONE MILLENNIUM WAY 08876
BRANCHBURG, NEW JERSEY (zip code)
(Address of principal executive office)
(908) 947-1100
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
As of October 31, 1999, there were outstanding 11,908,584 shares of common
stock, par value $.001, and 118,038 of series B preferred stock, par value $.001
(which are convertible into approximately an additional 3,807,998 shares of
common stock), of the registrant.
1
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
LIFECELL CORPORATION
BALANCE SHEETS
September 30, December 31,
1999 1998
--------------- -------------
(Unaudited)
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash and cash equivalents $ 4,102,275 $ 8,025,415
Short-term investments - 4,000,745
Accounts and other receivables, net 2,232,893 1,383,920
Inventories 2,821,189 1,749,023
Prepayment and other 326,789 207,570
--------------- -------------
Total current assets 9,483,146 15,366,673
LONG-TERM INVESTMENT 308,871 -
FURNITURE AND EQUIPMENT, net 2,497,833 1,388,339
INTANGIBLE ASSETS, net 348,024 275,687
--------------- -------------
Total assets $ 12,637,874 $ 17,030,699
=============== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 587,804 $ 704,938
Accrued liabilities 2,329,381 2,065,123
Accrued relocation costs 325,000 -
--------------- -------------
Total current liabilities 3,242,185 2,770,061
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Series B preferred stock, $.001 par value, 182,205 shares authorized,
118,038 and 119,084 issued and outstanding, respectively 118 119
Undesignated preferred stock, $.001 par value, 1,817,795 shares
Authorized, none issued and outstanding - -
Common stock, $.001 par value, 48,000,000 shares authorized
11,908,584 and 11,612,852 shares issued and outstanding respectively 11,909 11,612
Warrants outstanding to purchase 3,182,188 shares of common stock 298,344 298,344
Additional paid-in capital 59,798,387 58,426,555
Accumulated deficit (50,713,069) (44,475,992)
--------------- -------------
Total stockholders' equity 9,395,689 14,260,638
--------------- -------------
Total liabilities and stockholders' equity $ 12,637,874 $ 17,030,699
=============== =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE>
<TABLE>
<CAPTION>
LIFECELL CORPORATION
STATEMENTS OF OPERATIONS
(UNAUDITED)
Three Months Ended September 30,
--------------------------------
1999 1998
------------ ------------
<S> <C> <C>
REVENUES
Product sales $ 3,220,297 $ 2,007,249
Research funded by others 125,366 212,406
------------ ------------
Total revenues 3,345,663 2,219,655
------------ ------------
COSTS AND EXPENSES
Cost of goods sold 885,824 730,875
Research and development 857,184 878,250
General and administrative 1,058,790 570,655
Selling and marketing 1,613,786 1,563,429
Relocation charges 528,061 -
------------ ------------
Total costs and expenses 4,943,645 3,743,209
------------ ------------
LOSS FROM OPERATIONS (1,597,982) (1,523,554)
------------
Interest income and other, net 77,282 207,247
------------ ------------
NET LOSS $(1,520,700) $(1,316,307)
============ ============
LOSS PER COMMON SHARE-BASIC AND DILUTED $ (0.14) $ (0.13)
============ ============
SHARES USED IN COMPUTING
LOSS PER COMMON SHARE-BASIC AND DILUTED 11,885,850 11,258,924
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements
3
<PAGE>
<TABLE>
<CAPTION>
LIFECELL CORPORATION
STATEMENTS OF OPERATIONS
(UNAUDITED)
Nine months ended September 30,
-------------------------------
1999 1998
------------ ------------
REVENUES
<S> <C> <C>
Product sales $ 8,494,431 $ 5,825,687
Research funded by others 702,118 523,390
------------ ------------
Total revenues 9,196,549 6,349,077
------------ ------------
COSTS AND EXPENSES
Costs of goods sold 2,456,863 2,278,088
Research and development 2,798,306 2,504,010
General and administrative 3,363,944 2,330,951
Selling and marketing 4,841,304 4,567,322
Relocation charges 1,759,722 -
------------ ------------
Total costs and expenses 15,220,139 11,680,371
------------ ------------
LOSS FROM OPERATIONS (6,023,590) (5,331,294)
------------ ------------
Interest income and other, net 317,812 686,348
------------ ------------
NET LOSS $(5,705,778) $(4,644,946)
============ ============
LOSS PER COMMON SHARE - BASIC AND DILUTED $ (0.53) $ (0.46)
============ ============
SHARES USED IN COMPUTING
LOSS PER COMMON SHARE - BASIC AND DILUTED 11,797,174 11,193,848
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
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<PAGE>
<TABLE>
<CAPTION>
LIFECELL CORPORATION
STATEMENTS OF CASH FLOWS
(UNAUDITED)
Nine months ended September 30,
-------------------------------
1999 1998
------------ -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $(5,705,778) $ (4,644,946)
Adjustments to reconcile net loss to net cash used in
operating activities -
Depreciation and amortization 295,339 409,466
Loss on abandonment of assets 334,874 -
Change in assets and liabilities -
Increase in accounts and other receivables (848,973) (848,645)
Increase in inventories (1,072,167) (405,780)
Increase in prepayments and other (119,218) (133,052)
Increase (decrease) in accounts payable and accrued liabilities 293,454 (587,718)
Decrease in deferred revenues and deferred credit - (59,519)
------------ -------------
Total adjustments (1,116,691) (1,625,248)
------------ -------------
Net cash used in operating activities (6,822,469) (6,270,194)
------------ -------------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (1,735,085) (620,591)
Intangible assets (76,960) (65,157)
Purchases) sales of short-term investments 4,000,745 (4,001,040)
(Purchases) sales of long-term investments (308,871) -
------------ -------------
Net cash provided by (used) in investing activities 1,879,829 (4,686,788)
------------ -------------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of stock 1,372,129 543,417
Cash dividends paid (352,629) (360,921)
------------ -------------
Net cash provided by financing activities 1,019,500 182,496
------------ -------------
Net Decrease in Cash and Cash Equivalents (3,923,140) (10,774,486)
Cash and Cash Equivalents at Beginning of Period 8,025,415 20,781,026
------------ -------------
Cash and Cash Equivalents at End of Period $ 4,102,275 $ 10,006,540
============ =============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid during the period for interest $ - $ 1,605
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
CONDENSED NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND CERTAIN SIGNIFICANT RISKS:
LifeCell Corporation, a Delaware corporation, ("LifeCell" or the "Company") is a
bioengineering company engaged in the development and commercialization of
tissue regeneration and cell preservation products. The Company was
incorporated on January 6, 1992, for the purpose of merging with its predecessor
entity, which was formed in 1986. LifeCell began commercial sales of its first
transplantable tissue product, AlloDerm , a matrix template that provides an
acellular dermal graft, during 1994. The future operating results of the
Company will be principally dependent on the market acceptance of its current
and future products, competition from other products or technologies, protection
of the Company's proprietary technology, and access to funding as required.
Accordingly, there can be no assurance of the Company's future success. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" elsewhere herein and "Risk Factors" in the Company's annual report
on Form 10-K for the year ended December 31, 1998.
2. BASIS OF PRESENTATION
The accompanying unaudited financial statements have been prepared pursuant to
the rules and regulations of the Securities and Exchange Commission (the
"Commission"). Certain information and footnote disclosures normally included
in the annual financial statements prepared in accordance with generally
accepted accounting principles have been condensed or omitted pursuant to those
rules and regulations. This financial information should be read in conjunction
with the financial statements included within the Company's Annual Report on
Form 10-K for the year ended December 31, 1998.
In the opinion of the management of the Company, the accompanying financial
statements reflect all adjustments (consisting only of normal recurring
adjustments) that are necessary for a fair presentation of financial position
and the results of operations for the periods presented. Financial results for
interim periods are not necessarily indicative of the results for the full year
or future interim periods.
3. INVENTORIES
Inventories consist of products in various stages produced for sale and include
the costs of raw materials, labor and overhead. A summary of inventories is as
follows:
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
--------------- -------------
<S> <C> <C>
Raw materials used in production $ 976,603 $ 723,921
Work-in-process. . . . . . . . . 1,044,848 423,839
Finished goods . . . . . . . . . 799,738 601,263
--------------- -------------
Total inventories . . . . . $ 2,821,189 $ 1,749,023
=============== =============
</TABLE>
4. DIVIDENDS PAYABLE ON SERIES B PREFERRED STOCK
The Series B Preferred Stock bears cumulative dividends, payable quarterly for
five years through November 2001, at the annual rate of $6.00 per share.
Dividends may be paid in cash, in additional shares of Series B preferred stock
based on the stated value of $100 per share, or any combination of cash and
Series B Preferred Stock at the Company's option.
While the shares of Series B Preferred Stock are outstanding or any dividends
are owed thereon, the Company may not declare or pay cash dividends on its
Common Stock
During the third quarter of 1999, the Company accrued dividends on the Series B
Preferred Stock of $178,671, payable in cash. Such dividends are payable on
November 15, 1999.
During the first nine months of 1999, the Company accrued dividends on the
Series B Preferred Stock of $531,300, of which $175,480 were paid in cash on May
15, 1999 and $177,149 were paid in cash on August 16, 1999.
6
<PAGE>
5. RELOCATION COSTS
In June 1999, management approved plans to relocate the Company's operations
from The Woodlands, Texas to Branchburg, New Jersey. Costs charged to
operations during the three months ended September 30, 1999 included the cost of
non-relocating employee retention benefits, a non-cash charge to abandon assets
related to the Company's Texas facility and the costs of relocating key
employees to New Jersey.
Costs recorded during the three months and nine months ended September 30, 1999
that are classified as relocation costs in the Statement of Operations are as
follows:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
September 30, September 30,
1999 1999
-------------- --------------
<S> <C> <C>
Non-relocating employee retention benefits $ 234,842 $ 342,634
Facility abandonment costs - 334,875
Relocation costs 293,219 1,082,213
-------------- --------------
Total relocation costs $ 528,061 $ 1,759,722
============== ==============
</TABLE>
The Company expects to incur additional relocation costs during the fourth
quarter of 1999 and the first quarter of 2000 relating to the cost of Texas
lease terminations and additional employee retention benefits. These additional
costs were, pending the Company's decision in such regard either not
quantifiable or not subject to determination as of September 30, 1999.
6. LOSS PER SHARE
Loss per common share has been computed by dividing net loss, which has been
increased for imputed and stated dividends on outstanding Preferred Stock, by
the weighted average number of shares of Common Stock outstanding during each
period. In all applicable years, all Common Stock equivalents, including the
Series B Preferred Stock were antidilutive and, accordingly, were not included
in the computation.
Basic loss per common share was calculated as follows:
<TABLE>
<CAPTION>
Three Months ended Nine Months ended
September 30, September 30,
-------------------------- --------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net Loss. . . . . . . . . . . . . . . . . $(1,520,700) $(1,316,307) $(5,705,778) $(4,644,946)
Less: Preferred dividends. . . . . . . . (178,671) (182,076) (531,300) (542,998)
------------ ------------ ------------ ------------
Net Loss available to Common Stock-basic. $(1,699,371) $(1,498,383) $(6,237,078) $(5,187,944)
============ ============ ============ ============
Weighted average shares outstanding-basic 11,885,850 11,258,924 11,797,174 11,193,848
============ ============ ============ ============
Loss per Common Share-basic . . . . . . . $ (0.14) $ (0.13) $ (0.53) $ (0.46)
============ ============ ============ ============
</TABLE>
Diluted loss per common share is the same as basic loss per share due to the
antidilutive nature of all of the Company's Common Stock equivalents.
7. COMMITMENTS AND CONTINGENCIES
The Company is subject to numerous risks and uncertainties and from time to time
may be subject to various claims in the ordinary course of its operations. The
Company maintains insurance coverage for events and in amounts that it deems
appropriate. There can be no assurance that the level of insurance maintained
will be sufficient to cover any claims incurred by the Company or that the type
of claims will be covered by the terms of insurance coverage.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
The following discussion of operations and financial condition of LifeCell
should be read in conjunction with the Financial Statements and Notes herein.
Certain statements set forth below constitute "Forward-Looking Statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. See "Special
Note Regarding Forward-Looking Statements and Risk Factors."
GENERAL AND BACKGROUND
LifeCell Corporation ("LifeCell" or the "Company") is a bioengineering company
engaged in the development and commercialization of tissue regeneration and cell
preservation products. The Company's patented tissue processing and cell
preservation technologies serve as platforms for a broad range of potential
products addressing significant clinical needs in multiple markets. The
Company's first commercial product is a processed tissue that provides a graft
consisting of an extracellular tissue matrix that retains the essential
biochemical and structural composition of human dermis. The Company believes
that their product is the only commercial tissue transplant product that
promotes normal human soft tissue regeneration. The Company currently markets
the product as AlloDerm in the United States and internationally for use in
reconstructive plastic, dental and burn surgery, and it has been successfully
transplanted in over 40,000 patients. The Company also sells the product as
Repliform for urogynecological applications through Boston Scientific
Corporation, the Company's exclusive distributor. LifeCell's development
programs include Micronized AlloDerm , vascular grafts, nerve connective tissue
and ThromboSol platelet storage solution.
Since inception, LifeCell's activities have been financed through the public and
private sale of equity securities, product sales, corporate alliances and the
receipt of government grants and contracts.
LifeCell began the sale of AlloDerm grafts as a dermal replacement in the
grafting of third-degree burns in December 1993 and commenced commercial
activities in 1994. LifeCell commenced the sale of AlloDerm for periodontal
surgery in September 1995 and for reconstructive plastic surgery uses in
November 1995. The Company began selling Repliform in August 1999. To date,
proceeds from the sale of AlloDerm and Repliform products have not been
sufficient to fund in full the Company's operating activities.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
The net loss for the three months ended September 30, 1999, increased 15% to
approximately $1.5 million compared to approximately $1.3 million for the same
period of 1998. The increase was principally attributable to non-recurring
expenses related to the ongoing relocation of the Company to New Jersey. These
expenses were offset in part by increased product sales.
Total revenues for the three months ended September 30, 1999, increased 45% to
approximately $3.2 million compared to approximately $2.2 million for the same
period of 1998. The increase was primarily attributable to increased sales of
products, which were the result of expanded sales and marketing activities, and
increased pricing of certain AlloDerm products during the 1999 period. This
increase was offset in part by an approximately $87,000 decrease in revenues
from funded research and development grants and alliances during the three
months ended September 30, 1999 as compared to the same period of 1998 due to
the relocation of the Company's research and development group to New Jersey
during the third quarter. The funding available to the Company through these
arrangements is firm and will be realized in future periods. Amounts recognized
as revenues under such cost-reimbursement arrangements are for expenses incurred
during the periods.
Cost of goods sold for the three months ended September 30, 1999, was
approximately $886,000 resulting in a gross margin of approximately 72%,
compared to 64% for the same period of 1998. The increase in gross margin was
principally attributable to pricing benefits resulting from the change from
LifeCell commencing in 1999 direct distribution of its reconstructive plastic
8
<PAGE>
products to hospitals and doctors' offices rather than through third party
distributors. In addition, increases in sales of certain higher margin AlloDerm
products and increased prices of certain AlloDerm products contributed to the
improved gross margin.
Total research and development expenses decreased approximately $21,000 to
approximately $857,000 for the three months ended September 30, 1999 compared to
the same period of 1998. Research expenditures associated with grants decreased
to approximately $125,000 for the three months ended September 30, 1999, as
compared to the same period of 1998. This decrease was principally attributable
to reduced labor and material expenditures related to grants due to the
relocation of the Company's research and development group to New Jersey during
the third quarter.
General and administrative expenses for the three months ended September 30,
1999, increased 93% to approximately $1.1 million compared to approximately
$571,000 for the same period of 1998. This increase was principally due to
higher recruiting and staffing costs incurred in connection with the recruitment
of new key members of senior management and higher consulting costs.
Selling and marketing expenses of approximately $1.6 million for the three
months ended September 30, 1999, were comparable to the same period last year.
Expenditures were shifted from international marketing to domestic programs
including the recruiting of key senior management, hiring additional domestic
sales representatives and developing new marketing tools for the Company's sales
force.
LifeCell incurred relocation costs of approximately $528,000 during the three
months ended September 30, 1999. The relocation costs were the result of the
planned relocation of the Company to New Jersey including retention costs for
non-relocating employees and costs of relocating key employees incurred during
the period. The Company expects to incur additional costs during the fourth
quarter of 1999 and the first quarter of 2000 related to the relocation of the
Company.
Interest income and other, net decreased approximately 63% to approximately
$77,000 for the three months ended September 30, 1999, compared to approximately
$207,000 during the same period of 1998. The decrease was due principally to a
decline in cash available for investment.
NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
The net loss for the nine months ended September 30, 1999, increased 24% to
approximately $5.7 million compared to approximately $4.6 million for the same
period of 1998. The increase was principally attributable to non-recurring
expenses of $1.8 million related to the relocation of the Company to New Jersey
and expenses incurred in the first quarter for professional fees related to
finalizing a distribution agreement. These expenses were offset in part by
increased product sales and revenues from research funding.
Total revenues for the nine months ended September 30, 1999, increased 45% to
approximately $9.2 million compared to approximately $6.3 million for the same
period of 1998. Approximately $2.6 million of such increase was attributable to
increased sales of products, which were the result of expanded sales and
marketing activities and increased pricing of certain AlloDerm products during
the 1999 period. Revenues from funded research and development increased
approximately $179,000 during the nine months ended September 30, 1999, as
compared to the same period of 1998. This increase was attributable to funding
available from the United States Department of Defense for the Company's
ThromboSol and red blood cell research programs. Amounts recognized as revenues
under such cost reimbursement arrangements were for expenses incurred during the
period.
Cost of goods sold for the nine months ended September 30, 1999, was
approximately $2.5 million, resulting in a gross margin of approximately 73%.
The gross margin for the same period of 1998 was approximately 61%. The
increase in gross margin was attributable principally to the pricing benefits
resulting from the change from distributing reconstructive plastic products
through distributors to direct distribution from LifeCell to hospitals and
doctors' offices. In addition, increases in sales of certain higher margin
AlloDerm products and increased prices of certain AlloDerm products also
contributed to the improved gross margin.
9
<PAGE>
Total research and development expenses for the nine months ended September 30,
1999, increased 12% to approximately $2.8 million compared to approximately $2.5
million for the comparable period in 1998. The increase in research and
development expense was primarily attributable to the increased animal and
clinical studies for the expanding uses of AlloDerm. In addition, the Company
has dedicated increased resources to product development programs such as
Micronized AlloDerm (AlloDerm reduced to the size necessary for needle
injections).
General and administrative expenses during the nine months ended September 30,
1999, increased 48% to approximately $3.4 million compared to approximately $2.3
million for the same period of 1998. This increase was principally due to
professional fees incurred for the recruiting of key personnel and expenses
related to finalizing a distribution agreement during the first quarter of 1999.
Selling and marketing expenses increased 4% to approximately $4.8 million during
the nine months ended September 30, 1999, compared to approximately $4.6 million
for the same period of 1998. The increase was principally attributable to the
hiring of additional domestic sales representatives, recruiting key marketing
management and development of additional marketing tools to support the sale of
AlloDerm. These expenses were offset in part by the decrease in resources
dedicated to international marketing programs.
LifeCell incurred relocation costs of approximately $1.8 million during the nine
months ended September 30, 1999. The relocation costs were the result of the
planned relocation of the Company to New Jersey including the costs of
abandoning the Texas facility , retention costs for non-relocating employees and
costs for relocating key employees incurred during the period. The Company
expects to incur additional costs during the fourth quarter of 1999 and the
first quarter of 2000 related to the relocation of the Company.
Interest income and other, net decreased 54% to approximately $318,000 during
the nine months ended September 30, 1999, when compared to the same period in
1998. The decrease was principally attributable to a decrease in funds
available for investment during the 1999 period.
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, LifeCell's principal sources of funds have been equity
offerings, product sales, external funding of research activities, and interest
on investments.
LifeCell expects to incur substantial expenses in connection with its efforts to
expand sales and marketing of AlloDerm, develop expanded uses for AlloDerm,
conduct the Company's product development programs (including costs of clinical
studies), prepare and make any required regulatory filings, introduce products,
relocate its operations to New Jersey and support ongoing administrative and
research and development activities. The Company currently intends to fund
these activities from its existing cash resources, sales of products, research
and development funding received from others, through an incentive financing
package provided by the New Jersey Economic Development Authority and through a
debt financing facility from a certain financial institution from which the
Company has received a commitment letter. While the Company believes that the
proceeds from the expected financing and its existing available funds will be
sufficient to meet its present operating and capital requirements through at
least 2000, there can be no assurance that such sources of funds will be
sufficient to meet these future expenses. If adequate funds are not available,
the Company expects it will be required to delay, scale back or eliminate one or
more of its product development programs and raise additional capital. The
Company's need for additional financing will be principally dependent on the
degree of market acceptance achieved by the Company's products and the extent to
which the Company can achieve substantial growth in product sales during 1999
and 2000, as well as the extent to which the Company may decide to expand its
product development efforts. There can be no assurance that the Company will be
able to obtain any such additional financing on acceptable terms, if at all.
LifeCell has incurred losses since inception and therefore has not been subject
to federal income taxes. As of December 31, 1998, LifeCell had net operating
loss ("NOL") and research and development tax credit carryforwards for income
tax purposes of approximately $40.5 million and $395,000, respectively,
available to reduce future income tax and tax liabilities. Federal tax laws
provide for a limitation on the use of NOL and tax credit carryforwards
following certain ownership changes that could limit LifeCell's ability to use
10
<PAGE>
its NOL and tax credit carryforwards. The sale of common stock in a public
offering in December 1997 resulted in an ownership change for federal income tax
purposes. The Company estimates that the amount of NOL carryforwards and the
credits available to offset taxable income as of December 31, 1998, was
approximately $14.0 million on a cumulative basis. Accordingly, if LifeCell
generates taxable income in any year in excess of its then cumulative
limitation, the Company may be required to pay federal income taxes even though
it has unexpired NOL and tax credit carryforwards.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS AND RISK FACTORS
Statements contained in this report other than historical facts are
forward-looking statements provided in accordance with the provisions of the
Private Securities Litigation Reform Act of 1995. While these statements
reflect the Company's beliefs as of the date of this report, they are subject to
uncertainties and risks that could cause actual results to differ materially.
In addition, the operations and activities of the Company and investments in its
securities are subject to certain significant risks. These risks include, but
are not limited to, the demand for the Company's products and services, economic
and competitive conditions, competitive products and technologies, uncertainty
of patent protection, access to borrowed or equity capital on favorable terms,
and other risks detailed in the Company's Annual Report of Form 10-K for the
year ended December 31, 1998.
YEAR 2000 COMPLIANCE
In recent years, the Company has been replacing and enhancing its information
systems to gain operational efficiencies and keep pace with the Company's
growth. In conjunction with these activities, the Company has been preparing
its information systems for the year 2000.
The Company has completed a comprehensive assessment of the impact of the year
2000 on its internal information systems and applications and intends to make
the necessary revisions or upgrades to its systems to render them year 2000
compliant. The Company is also focusing on compliance attainment efforts and
key interfaces with vendors. To date, all of the Company's computer hardware
and critical software applications have been certified year 2000 compliant. One
of the Company's production systems is undergoing Y2K remediation and the
Company expects that it will be compliant by the end of November 1999.
Notwithstanding the Company's efforts, the Company could experience disruptions
to some aspects of its activities and operations as a result of non-compliant
systems utilized by the Company or unrelated third parties. The Company has
developed contingency plans to mitigate the extent of any such potential
disruption to business operations. The Company does not expect that the costs
of addressing potential year 2000 issues will have a material adverse impact on
the Company's results of operations or financial position.
There can be no assurances that the efforts or the contingency plans related to
the Company's systems, or those of others relied upon by the Company, will be
successful or that any failure to convert, upgrade or plan appropriately for
contingencies would not have a material adverse effect on the Company.
The foregoing statements are intended to be and are hereby designated "Year 2000
Readiness Disclosure" statements within the meaning of the Year 2000 Information
and Readiness Disclosure Act.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
None.
11
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PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
a. Exhibits
10.1 Lease Agreement Dated June 17, 1999 Between registrant and
Maurice M. Weill, Trustee for Branchburg Property and first
amendment to lease dated September 21, 1999 between the registrant
and Maurice. Weill, trustee for Branchburg Property
27.1 Financial Data Schedule
b. Reports on Form 8-K
NONE
12
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused report to be signed on its behalf by the undersigned
thereunto duly authorized.
LIFECELL CORPORATION
Date: November 15, 1999 By: /s/ Paul G. Thomas
---------------------
Paul G. Thomas
President and Chief
Executive Officer
Date: November 15, 1999 By: /s/ Fenel M. Eloi
--------------------
Fenel M. Eloi
Sr. Vice President, Chief
Financial Officer and Secretary
(Principal Financial Officer)
Date: November 15, 1999 By: /s/ David B. Platt
----------------
David B. Platt
Controller
(Principal Accounting Officer)
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EXHIBIT INDEX
10.1 Lease Agreement
27.1 Financial Data Schedule.
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L E A S E A G R E E M E N T
- - - - - - - - - - - - - -
BY AND BETWEEN:
MAURICE M. WEILL, TRUSTEE
FOR BRANCHBURG PROPERTY
as "Landlord"
-and-
LIFECELL CORPORATION,
a corporation
as "Tenant"
PREMISES: Branchburg I
Murray Corporate Center at Branchburg
Route 202 and Old York Road
Branchburg, New Jersey
DATED: June 17, 1999
PREPARED BY: ROBERT K. BROWN, ESQ.
U:\USERS\IN\MMW\30094.016\LEASE504.003
November 15, 1999
<PAGE>
THIS LEASE AGREEMENT, made this 17th day of June , 1999, between
MAURICE M. WEILL, TRUSTEE FOR BRANCHBURG PROPERTY, having an office at 51
Commerce Street, Springfield, New Jersey 07081 (hereinafter called the
"Landlord"); and LIFECELL CORPORATION, a Delaware corporation, having an
office at 3606 Research Forest Drive, The Woodlands, Texas 77381, (hereinafter
collectively called the "Tenant").
W I T N E S S E T H :-
- - - - - - - - - - --
WHEREAS, the Landlord owns certain lands and premises in the Township
of Branchburg, County of Somerset and State of New Jersey, which said lands and
premises are located on Lot 1.01 in Block 61, and are more particularly referred
to and described by metes and bounds on Schedule "A" annexed hereto and made a
part hereof; and
WHEREAS, there shall be allocated to the Building, as hereinafter
defined, a portion of the lands and premises described on Schedule "A"
(hereinafter called the "Property"); and
WHEREAS, the Landlord has erected on the Property an
office/warehouse/laboratory building containing approximately 89,960 square feet
(hereinafter referred to as the "Building"); and
WHEREAS, the Tenant shall rent and occupy a portion of the Building,
containing approximately 57,939 square feet, outside outside dimensions to
center line of common wall, together with the right to utilize the common areas
of the Property (said 57,939 square feet hereinafter called the "Leased
Premises"), all in accordance with the terms and conditions hereinafter
mentioned and the considerations herein expressed,
NOW, THEREFORE, in consideration of the covenants and conditions
hereinafter set forth and for other good and valuable consideration, the
Landlord does demise, lease and let unto the Tenant, and the Tenant does rent
and take from the Landlord the Leased Premises, and the Landlord and Tenant
mutually covenant and agree as follows:
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1. LEASED PREMISES
----------------
1.1 The Leased Premises consists of that portion of the
Building containing approximately 57,939 square feet of space based on outside
outside dimen-sions to center line of common wall. For the purposes of this
lease, the Leased Premises shall constitute 64.4% of the total rentable area of
the Building (hereinafter referred to as "Tenant's Percentage"), which Tenant's
Percentage shall be applicable to all of Tenant's pro rata costs to be paid as
additional rent as hereinafter in this lease provided. Tenant's Percentage
shall be revised in the event of any increase or decrease in the total rentable
area of the Building effective as of the date of any such change.
1.2 The Landlord will provide Tenant with one hundred
seventy-five (175) parking spaces for Tenant's exclusive use, and for Tenant's
employees, agents, servants and invitees, which parking spaces shall be
designated on the Site Plan, as hereinafter defined.
1.3 Landlord reserves the right to promulgate reasonable
rules and regulations with respect to the operation of the Leased Premises and
the Building, which rules and regulations shall be applicable to all tenants of
the Building. Tenant further agrees to furnish to Landlord license and car
information as to its employees who may be using the parking lot as may be
required by the Landlord, and Tenant further agrees to comply with such
reasonable regulations and/or requirements in connection with the use of the
parking facilities as shall be made applicable to all tenants of the Building.
1.4 It is understood and agreed that the Building and the
Property, including the common areas thereof, are located upon that complex
(herein-after referred to as the "Complex") which is being constructed by
Landlord on the Property identified on Schedule "A". It is expressly understood
and agreed that the architectural design, including aesthetic concepts and use
of the Complex, is and shall remain in the control of the Landlord. The
Landlord does hereby reserve the right at any time to make changes and additions
2
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to the Complex without restriction, including, without limitation, eliminating
land, adding land, decreasing or changing the Complex, the Leased Premises
excepted, which changes are deemed desirable by Landlord, and the making of such
changes or additions shall not invalidate or affect this lease or any rights
hereunder nor constitute an eviction of Tenant or a breach of this lease, nor
give rise to any claim for damages, provided that any of the foregoing shall not
decrease or impair the use and enjoyment of the Leased Premises as originally
leased hereunder.
2. TERM OF LEASE
---------------
2.1 The Landlord leases unto the Tenant, and the Tenant hires
the Leased Premises for the term of ten (10) years to commence on the
Commencement Date as hereinafter defined:
Commencement Date shall be September 1, 1999, or the first
day of the calendar month on or following the date when the Leased Premises are
ready for occupancy. The Leased Premises shall be deemed ready for occupancy
when the Leased Premises are substantially completed in Landlord's reasonable
judgment in accordance with Article 3 hereof, and Landlord has procured from the
appropriate municipal agency and delivered to Tenant a temporary or permanent
Certificate of Occupancy for the Leased Premises, which Certificate of Occupancy
shall permit legal occupancy and use of the Leased Premises.
2.2 During any partial monthly occupancy prior to the
Commencement Date, Tenant shall be responsible to pay pro rata Base Rent,
together with pro rata charges or additional rent as in this lease provided.
During said period of partial monthly occupancy, the Tenant shall comply with
all other terms and conditions of the lease upon the part of the Tenant to be
performed.
3
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2.3 It is expressly understood and agreed that for the
purpose of this lease wherever and whenever the term "substantial completion" is
used, the term "sub-stantial completion" shall not include items of maintenance,
service or guarantee which may be required pursuant to the terms and conditions
of this lease.
2.4 Tenant agrees that it will furnish to Landlord, within
thirty (30) days after the Commencement Date of the lease, a "Punch List" of all
items required to be corrected, replaced or completed by Landlord as soon as
practicable after receipt of the written Punch List.
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2.5 If, despite using reasonable commercial efforts, Landlord
shall be unable to give possession of the Leased Premises on the anticipated
Commencement Date by reason of the fact that Leased Premises are not then "ready
for occupancy" for any reason, Landlord shall not be subject to any liability
for such failure. Under such circumstances, the rent reserved and covenanted to
be paid herein shall not commence until the possession of the Leased Premises is
given. No such failure to give possession on the anticipated Commencement Date
shall in any way affect the validity of this lease or the obligations of Tenant
hereunder, nor shall same be construed in any way to extend the term of this
lease.
3. CONDITION OF PREMISES
-----------------------
5
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3.1 Anything herein contained to the contrary
notwithstanding, it is expressly understood and agreed that the Tenant shall
take the Leased Premises and improvements as of the Commencement Date of the
within lease in an "as is" condition, except that Landlord shall install
leasehold improvements in accordance with plans and specifications to be
prepared by Tenant's Architect (the "Plan"), and in accordance with a budget
(the "Budget") to be prepared by Landlord, which Plan and Budget shall be
mutually approved by Landlord and Tenant hereunder and attached to the lease as
Schedule "B". All work required by the Plan shall be performed by Murray
Construction Co., Inc., Landlord's designated contractor, it being understood
that individual line items of more than TEN THOUSAND AND 00/100 ($10,000.00)
DOLLARS, as set forth in the Budget, shall be competitively bid (except for
windows and concrete floors, which have already been bid and awarded), and
Landlord shall seek a minimum of three (3) bids for each such item. Landlord
hereby agrees that it shall contribute up to SEVEN HUNDRED SEVENTY TWO THOUSAND
EIGHT HUNDRED AND 00/100 ($772,800.00) DOLLARS (the "Tenant's Allowance") toward
the cost of completion of all of the work set forth on the Plan. In the event
the cost to complete the Plan shall exceed Tenant's Allowance, Tenant shall pay
such cost ("Tenant's Cost") as hereinafter set forth in Article 3.2. Landlord
warrants that effective as of the Commencement Date of the lease all building
systems, fixtures and equipment shall be in good repair and operating condition.
3.2 Tenant shall pay the Tenant's Cost to Landlord as
follows: (i) ten (10%) percent of Tenant's Cost shall be paid to Landlord prior
to commencement of the work required by the Plan; and (ii) the balance of
Tenant's Cost shall be paid by Tenant based upon monthly invoices to be
submitted by Landlord to Tenant during the course of construction, after
Landlord has first expended Tenant's Allowance. Such invoices shall be paid
within fifteen (15) days following receipt by Tenant of Landlord's invoices
therefor.
6
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3.3 In addition to the work to be installed within the Leased
Premises in accordance with the Plan, Tenant shall install a "clean room"
pursuant to a separate building permit to be obtained by Tenant at Tenant's cost
and expense. The plans and specifications for such clean room shall be
delivered to Landlord for Landlord's prior written approval, which approval
shall not be unreasonably withheld or delayed. Landlord and Tenant shall
cooperate so that the clean room may be constructed as soon as is reasonably
possible, provided that the work to be performed by Tenant shall not interfere
with Landlord's construction or with the establishment of the Commencement Date
hereunder. The performance of this work by Tenant shall not cause Landlord, as
a result thereof, to be subjected to any jurisdictional labor problems which may
prejudice Landlord's negotiations or relationship with Landlord's contractors or
subcontractors or as may disturb harmonious labor relations, and Landlord
reserves the right to summarily order any of Tenant's contractors or
subcontractors from the Leased Premises if their presence causes any disturbance
of harmonious labor relations.
4. RENT
----
4.1 The Tenant covenants and agrees to pay the rent ("Base
Rent") as follows:
(a) During the first (1st) through fifth (5th) years of
the lease term, Tenant shall pay rent in the amount of FIVE HUNDRED THIRTY FIVE
THOUSAND NINE HUNDRED THIRTY FIVE AND 75/100 ($535,935.75) DOLLARS per annum,
payable in equal installments in the sum of FORTY FOUR THOUSAND SIX HUNDRED
SIXTY ONE AND 31/100 ($44,661.31) DOLLARS per month.
(b) During the sixth (6th) through tenth (10th) years of
the lease term, Tenant shall pay rent in the amount of FIVE HUNDRED NINETY
THOUSAND NINE HUNDRED SEVENTY SEVEN AND 80/100 ($590,977.80) DOLLARS per annum,
payable in equal installments in the sum of FORTY NINE THOUSAND TWO HUNDRED
FORTY EIGHT AND 15/100 ($49,248.15) DOLLARS per month.
7
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(c) The foregoing installments of Base Rent shall be
paid promptly, in advance, on the first day of each and every month during the
term of this lease, without demand and without offset or deduction, together
with such additional rent and other charges required to be paid by Tenant as are
hereinafter set forth.
4.2 Tenant covenants and agrees that in the event of any
material dispute with respect to the within lease, its obligation to pay the
rent shall continue without abatement notwithstanding any such dispute, and the
Tenant agrees that it shall seek such remedies as the law may allow by way of
plenary proceedings with respect to such issues in dispute.
4.3 Any installment of Base Rent or additional rent accruing
hereunder, and any other sum payable hereunder by Tenant to Landlord which is
not paid prior to the fifth (5th) business day of any lease month, shall bear a
late charge of five (5%) per cent of such Base Rent or additional rent, to be
paid therewith, and the failure to pay such charge shall be a default. Such
late charge shall be deemed to be additional rent hereunder. It is expressly
understood and agreed that the foregoing late charge is not a penalty, but
agreed upon compensation to the Landlord for administrative costs incurred by
Landlord in connection with any such late payment. In addition, any payment of
Base Rent or additional rent, which is not paid within thirty (30) days of the
date upon which it is due shall require the payment of interest at the rate of
one and one-half (1 %) percent per month, calculated from the date that such
payment was due through the date that any such payment is actually made.
4.4 Receipt and acceptance by Landlord of any Base Rent,
additional rent and any other charge (collectively referred to herein as "rent")
with knowledge of Tenant's default in any covenant or condition of this Lease
shall not be deemed a waiver of such default.
8
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4.5 Simultaneously with the execution hereof, the Tenant has
delivered to the Landlord the first monthly installment of Base Rent payable
hereunder, together with the security deposit referred to herein.
5. OPERATING COST AND TAX ESCALATIONS
--------------------------------------
5.1 It is understood and agreed that the Tenant shall be
responsible to pay to the Landlord, Tenant's Percentage of the increase in the
cost of operational services (hereinafter called "Operational Services") over
the cost of said Operational Services for the first twelve (12) months of the
lease term (hereinafter referred to as the "Base Year"). If the Building shall
not be one hundred (100%) per cent occupied in the Base Year or in any
succeeding year, then in determining the cost of Operational Services for each
of such years, the Landlord shall have the right to make reasonable estimates
and projections of the costs on the assumption that the Building is one hundred
(100%) per cent occupied. If, upon determination at the expiration of any
subsequent lease year, the increase in the cost of Operational Services exceeds
the cost of Operational Services for the Base Year, Tenant shall pay to
Land-lord Tenant's Percentage of the increase in the cost of Operational
Services as hereinafter provided in Article 5.2. "Lease year" as used herein,
shall be deemed to mean each twelve (12) month period of the lease term
following the Base Year.
5.2 At the commencement of the second lease year of the term,
Tenant shall pay to Landlord, monthly, one-twelfth of Tenant's Percentage of
Landlord's estimate of the increase in the cost of Operational Services for such
lease year, which estimate shall not exceed, on a percentage basis, the increase
between the lease year prior to the Base Year and the Base Year. At the
expiration of the second lease year of the term, the certified cost of
Operational Services as hereinabove referred to shall be compared with the
certified cost of Operational Services during the Base Year. Landlord shall
furnish to Tenant a certified computation and breakdown of Tenant's Percentage
of cost escalation as herein required. Tenant shall be credited with or shall
pay to Landlord any differential in Tenant's Percentage of cost escalation
9
<PAGE>
applicable to the prior lease year, which payment shall be paid to Landlord or
credited to Tenant, as applicable, within thirty (30) days after Landlord's
certification. The foregoing procedure shall be followed during each lease year
of the term, except that the estimate of projected cost escalation of
Operational Services shall be increased during each succeeding lease year, based
upon the percentage increase between the prior lease year and the lease year in
question.
5.3 For the purpose of this Article 5, "Operational Services" are
hereby defined to be those expenses paid or incurred by Landlord for
maintaining, operating and repairing the Building and Property, and shall
include, without limitation, the following: the cost of heating, ventilating
and air--conditioning maintenance, maintenance, repair and replacement services
required by Article 7 hereof, insurance, including, but not limited to, fire
insurance, with full extended coverage (all risk), casualty rent insurance,
public liability insurance, workmen's compensation insurance, or any other
insurance carried in good faith by the Landlord and applicable exclusively to
the Property (not including any insurance costs otherwise payable by Tenant
hereunder), snow removal, landscaping, customary and reasonable management fees,
supplies, sundries, sales or use taxes on supplies or services, cost of wages
and salaries of all persons directly engaged in the operation, maintenance and
repair of the Property, and directly attributable to the operation, maintenance
and repair of the Property, including so-called fringe benefits, social security
taxes, unemployment insurance taxes, cost for providing coverage for disability
benefits, cost of any pensions, hospitalization, welfare or retirement plans or
any other similar or like expenses incurred under the provisions of any
collective bargaining agreement, or any other reasonable cost or expense which
Landlord pays or incurs to provide benefits for employees engaged in the direct
10
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operation, maintenance and repair of the Property and directly attributable to
the operation, maintenance and repair of the Property, the charges of any
independent contractor who, under contract with Landlord or its representatives,
does any of the work of operating, maintaining or repairing of the Property,
legal and accounting expenses, or any other expense or charge whether or not
hereinbefore mentioned, which in accordance with generally accepted accounting
and management principles would be considered as an expense of maintaining,
operating or repairing the Property, inclusive of replacement costs, which
replacement costs are not those which are properly capitalized in accordance
with generally accepted accounting principles consistently applied. All utility
charges shall be based on the actual utility costs as charged by the respective
utility companies. In addition to the foregoing, Operational Services shall
also include all costs and expenses for improvements required by any
governmental law or regulation not applicable to the Building prior to the
Commencement Date of this lease, and all other costs and expenses, dissimilar or
similar, necessarily and reasonably incurred by Landlord in the proper operation
and maintenance of a first class office building. The cost of any improvements
required by governmental laws or regulations and cost of any replacement to the
HVAC system of the Building shall be amortized over the useful life of such
improvement (not to exceed ten (10) years) and shall be included within
Operational Services on an annual basis, based upon such amortization.
5.4 There shall not be included as Opera-tional Services for the
maintenance, operation, repair or replacement of the Building and Property,
water furnished to other tenants for purposes other than lavatory and drinking
use, cost of capital improvements and replacements which are to be capitalized
pursuant to generally accepted accounting principles, consistently applied
(except as hereinabove set forth in Article 5.3), or capital repairs or
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replacements for which Landlord shall be compensated by insurance (or cost
arising out of casualties for which insurance would normally be carried), any
work or service which Landlord performs specifically for any tenant in the
Building, any work or service performed for or by any tenant in the Building,
any costs in connection with renovating of space for new tenants, brokerage
commissions paid to brokers for obtaining tenants, legal expenses in enforcing
the terms of the lease or any other lease, costs assumed or required to be paid
by any other tenant, debt servicing on Landlord's financing, income, profit or
franchise taxes, or other such taxes imposed on or measured by the income or
profit of the Landlord from the Property, real estate taxes as hereinafter
described in Article 5.7, depreciation or amortization costs.
5.5 Tenant and its representatives shall have the right to
examine Landlord's books and records with respect to the items in the foregoing
statement of Operational Services during normal business hours at any time
within one (1) year following the delivery by Landlord to Tenant of such
statement. Tenant shall have the one (1) year period aforesaid to file any
written exception to any item of expense, however, nothing herein shall be
deemed to afford Tenant any right to withhold any payment due from Tenant to
Landlord. Each expense for which Landlord shall bill Tenant as set forth
hereinabove shall be necessary and reasonable for the operation of the Building
and Property exclusively and shall be delineated by Landlord in detail to
Tenant.
5.6 If the term of this lease ends on any day other than the last
day of a lease year, any payment due to Landlord or to Tenant by reason of any
increase or decrease in Operational Services shall be prorated and adjusted
within thirty (30) days after determination thereof. This covenant shall
survive the expiration or termination of this lease.
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5.7 In addition to the payment of Tenant's Percentage of increase
in the cost of Operational Services over the Base Year, Tenant shall be
responsible to pay Tenant's Percentage of any increase in real estate taxes and
assessments in the manner and as hereinafter provided as follows:
(a) In the event that the amount of real estate taxes,
assessments, sewer rents, rates and charges, state and local taxes, transit
taxes or any other governmental charge, general, special, ordinary or
extraordinary, (herein-after collectively called "taxes") (but not including
income or franchise taxes or any other taxes imposed upon or measured by the
Landlord's income or profits, except if in substitution for real estate taxes as
hereinafter provided) which may now or hereafter be levied or assessed against
the Property and the Building (hereinafter collectively called the "Real
Property") attributable to any tax year shall be greater than the amount of
taxes on the Real Property attributable to the Base Year, then the Tenant shall
pay to the Landlord as additional rent an amount equal to Tenant's Percentage of
the increase over the Base Year. The Landlord shall take the benefit of the
provisions of any statute or ordinance permitting any assessment to be paid over
a period of time, and Tenant shall be obliged to pay Tenant's Percentage of the
install-ments of any such assessment applicable to the term of this lease or any
renewal hereof.
(b) "Base Year" for purposes of this Article 5.7 shall mean
the first twelve (12) months of the lease term, provided the Building and
Property have been fully assessed as completed; if not, the Base Year shall be
the first full year assessment multiplied by the tax rate in effect during the
first twelve (12) months of the lease term. Commencing with the second year of
the lease term, Tenant shall pay, in addition to the rent required to be paid
pursuant to Article 4 hereof, one-twelfth (1/12th) of Tenant's Percentage of the
increase in taxes over the Base Year as estimated on the basis of the final tax
bill during the immediately preceding year. During the month of August of each
year of the lease term, Landlord shall advise Tenant in writing of the actual
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increase in taxes over the taxes for the Base Year, and shall deliver to Tenant
a true copy of the tax bill for the Base Year and the applicable lease year. If
there is any deficiency in the aggregate monthly tax payment made by Tenant in
said year, or in the event Tenant shall have overpaid Tenant's Percentage of tax
escalation for any prior twelve (12) month period, Tenant shall either pay to or
be credited by Landlord with any such deficiency or excess in monthly tax
payments, which payment or credit shall be made within thirty (30) days after
written demand and certification by Landlord.
(c) The amount of taxes for the Base Year against which
Tenant's liability for additional rent in subsequent years is determined shall
be the amount thereof finally determined to be legally payable by legal
proceedings or otherwise. In the event the amount of taxes for the Base Year
has not been finally determined by legal proceedings or otherwise at the time of
payment of taxes for any subsequent year, the actual amount of taxes paid by
Landlord for the Base Year shall be used in the statement provided by Landlord
as the basis for Tenant's liability hereunder with respect to such subsequent
year. Upon final determination of the amount of taxes for the Base Year by
legal proceedings or otherwise, Landlord shall deliver to Tenant a statement
setting forth the amount of taxes for the Base Year as finally determined and
showing in reasonable detail the computation of any adjustment due to Landlord
by reason thereof. Any payment due to Landlord by reason of such adjustment
shall be paid as hereinbefore provided. In the event any credit is due to
Tenant, the same shall be paid by Landlord within thirty (30) days after
determination of the amount of such credit. It is expressly understood and
agreed that the Base Rent set forth in Articles 4.1 and 45 has been calculated
assuming Base Year real estate taxes in the estimated amount of TWO AND 00/100
($2.00) DOLLARS per square foot (i.e., Base Year real estate taxes in the amount
of ONE HUNDRED SEVENTY NINE THOUSAND NINE HUNDRED TWENTY AND 00/100
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($179,920.00) DOLLARS, as applicable to the Building and other improvements
located on Property). In the event the Base Year real estate taxes shall be
more or less than TWO AND 00/100 ($2.00) DOLLARS per square foot (adjusted to
reflect full assessment of the Property in the event the same is not fully
assessed during the Base Year), the Base Rent payable pursuant to Articles 4.1
and 45 hereof shall be adjusted, up or down, accordingly.
(d) If the tax year for real estate taxes shall be changed
then an appropriate adjustment shall be made in the computation of the
additional tax due to Landlord or any amount due to Tenant. The computation
shall be made in accordance with generally accepted accounting principles
applied on a consistent basis.
(e) If the last year of the term of this lease ends on any
day other than the last day of a tax year, any payment due to Landlord or to
Tenant by reason of any increase or decrease in taxes shall be prorated and
Tenant shall pay any amount due to Landlord within thirty (30) days after being
billed therefor, and Landlord shall pay any amount due to Tenant within thirty
(30) days following receipt of the final tax bill. This covenant shall survive
the expiration or termination of this lease.
(f) If at any time during the term of this lease the method
or scope of taxation prevailing at the commencement of the lease term shall be
altered, modified or enlarged so as to cause the method of taxation to be
changed, in whole or in part, so that in substitution for the real estate taxes
now assessed there is, in whole or in part, a capital levy or other imposition
based on the value of the Real Property, or the rents received therefrom, or
some other form of assessment based in whole or in part on some other valuation
of the Landlord's Real Property, as if such Real Property were the only property
owned by the Landlord, then and in such event such substituted tax or imposition
15
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shall be payable and discharged pro rata, as applicable, in accordance with the
obligations set forth in this Article 5, computed on the basis of such law
promulgated which shall authorize such change in the scope of taxation, and as
required by the terms and conditions of the within lease.
5.8 Tenant's Percentage of the increase in the cost of
Operational Services and taxes over the Base Year shall be deemed additional
rent and such sum shall be paid promptly in the manner set forth in Article 4,
and Landlord shall have all remedies as provided in this lease in the event of
Tenant's default with respect to the making of any such payments.
6. USE
---
6.1 The Tenant covenants and agrees to use and occupy the
Leased Premises for offices, bioscientific research, laboratory and production
purposes only, subject to all applicable laws, ordinances, rules and regulations
of any governmental boards or bodies having jurisdiction thereof.
6.2 The Tenant covenants and agrees that it will not use the
Leased Premises for any use which creates an extra hazard of fire or other
danger or casualty, or which will increase the rate which Landlord or other
tenants must pay to secure fire or liability insurance, or which will render the
Building or its improvements uninsurable.
7. REPAIRS AND MAINTENANCE
-------------------------
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7.1 During the term of this lease, the Landlord, at its cost
and expense, but subject to the provisions of Article 5 hereof, shall keep in
good order, safe condition and repair the structural parts of the Building of
which the Leased Premises are a part, including the walls, roof, floor,
foundation, load bearing members, trusses and joists, as well as all plumbing,
utilities and facilities serving the Leased Premises, except for repairs or
maintenance occasioned by the negligence or deliberate act of Tenant or its
agents, servants, employees and invitees which shall be then repaired at the
cost and expense of the Tenant.
7.2 Subject to Article 5 hereof, the Landlord shall take good
care of and maintain and repair the lawns, shrubbery, driveway, sidewalks,
entranceways, foyers, curbs and parking area on the Property, and the Landlord
shall provide for snow removal.
7.3 Tenant covenants and agrees that it shall not cause or
permit any waste or damage to the Leased Premises or any overloading of the
floor of the Building. Tenant shall, at the expiration of the lease term,
deliver up the Leased Premises in good order and condition, ordinary wear and
tear and damage by fire or other casualty excepted.
8. UTILITIES AND SERVICE
-----------------------
8.1 The Tenant shall, at its own cost and expense, pay all
utility meter and service charges applicable to the Leased Premises, including
gas, sewer, electric, water and standby sprinkler charges, if any, janitorial
and garbage disposal service. The Leased Premises shall be separately metered
for gas, electric and water service and Tenant shall pay for such services
directly to the utility companies providing the same. Tenant shall reimburse
Landlord for Tenant's Percentage of electrical service for exterior lighting,
sewer and standby sprinkler charges.
8.2 Landlord shall not be liable for full or partial
interruption of any of the above services or utilities from conditions beyond
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Landlord's control, but Landlord shall take prompt action to restore the
services and utilities. The rent shall not abate, in whole or in part, during
any such interruption.
8.3 Tenant shall furnish janitorial service to the Leased
Premises in accordance with the schedule which is annexed hereto as Schedule
"C". Tenant shall promptly forward to Landlord a copy of Tenant's janitorial
service contract, and any renewal thereof.
9. INSURANCE
---------
9.1 The Landlord will, subject to the provisions of Article 5
hereof, obtain for the benefit of the Landlord, wherein the Landlord shall be
the named insured, fire insurance with full extended coverage, including flood
insurance if required by Landlord insuring the real Property of which the Leased
Premises are a part, in an amount and value equivalent to the full replacement
value of all the insurable improvements on the Property, without any deductible
clause, which policy of insurance shall include broad form boiler and machinery
coverage (inclusive of air-conditioning system, if any), together with insurance
coverage against sprinkler damage to the building and its improvements. Said
insurance, in any event, shall not be less than the amount of any first mortgage
which may be placed on the Property by the Landlord and shall be in such form as
any such bona fide mortgagee may reasonably require. The Landlord shall have
the right from time to time to determine the full replacement value as may be
required to comply with full replacement insurance requirements. The insurance
to be obtained by Landlord shall include casualty rent insurance payable to and
insuring the interest of the Landlord as to the value of the rental obligation
hereunder to the extent of one (1) year's gross rental value, (inclusive of real
estate taxes and applicable insurance premiums).
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9.2 The Tenant covenants and agrees that it will, at its sole
cost and expense, carry liability insurance covering the Leased Premises in the
minimum amount of THREE MILLION ($3,000,000.00) DOLLARS. Said policy shall be a
single limit policy, issued by a good and solvent insurance company, reasonably
satisfactory to Landlord, licensed to do business in the State of New Jersey.
The Tenant further covenants and agrees that it will add as a party insured by
such policy the interest of the Landlord and if, requested, Landlord's
mortgagee, and Tenant will furnish Landlord with a certificate of said liability
insurance prior to the commencement of the term of this lease, and annually
thereafter. The Tenant agrees that such insurance coverage will be maintained
in full force and effect during the term of the lease.
9.3 Tenant hereby agrees to reimburse Landlord for Tenant's
Percentage of the cost of excess liability coverage in the amount of up to SIXTY
MILLION ($60,000,000.00) DOLLARS, pursuant to an "umbrella policy" to be
obtained by Landlord, with respect to any premium or portion thereof applicable
solely to the real property of which the Leased Premises are a part. In no
event shall the premium exceed the premium that would be payable by a landlord
of average creditworthiness in connection with an amount of coverage that would
be purchased by a prudent building owner for a like building in the region
having like uses.
10. INCREASE OF INSURANCE RATES
------------------------------
If the rate which the Landlord must pay to secure fire insurance
shall be increased because of any change in occupancy or use of the Leased
Premises by the Tenant, or because of the Tenant's non-compliance with the
rules, regulations or requests of the fire insurance carrier, then such increase
shall be paid by the Tenant to the Landlord as additional rent.
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<PAGE>
11. TENANT'S FIRE INSURANCE
-------------------------
The Tenant, at its own cost and expense, shall insure its own
fixtures, equipment and contents, it being expressly understood and agreed that
the same is not the responsibility of the Landlord nor shall it be liable
therefor.
12. WAIVER OF SUBROGATION RIGHTS
-------------------------------
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The Landlord and Tenant mutually waive all right of recovery
against each other, their agents, servants or employees, for any loss, damage or
injury of any nature whatsoever to property for which either party is insured.
Each party shall obtain from its insurance carrier waivers of subrogation rights
under their respective policies which shall be included within the terms of the
policies and will furnish evidence of such waiver upon request.
13. FIRE AND CASUALTY
-------------------
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13.1 In case of any damage to or destruction of the Building
by fire or other casualty occurring during the term of this lease which is not
covered by the insurance required to be carried by Article 9.1, or in the case
of damage to or destruction of the Building which cannot be repaired within two
hundred seventy (270) days from the happening of such casualty, then, in such
event, the term hereby created shall, at the option of either party, upon
written notice to the other by certified mail, return receipt requested, within
thirty (30) days of such fire or casualty, cease and become null and void from
the date of such destruction or damage. However, if neither party shall elect
to cancel this lease within the thirty (30) day period hereinabove provided, the
Landlord shall thereupon repair and restore the Building with reasonable speed
and dispatch, and the Rent shall not be accrued after said damage or while the
repairs and restorations are being made, but shall recommence immediately after
said Building is restored. Landlord, in any event, shall advise Tenant in
writing as to whether or not the Building can be restored within the two hundred
seventy (270) day period from the date of such casualty. Anything in this
Article 13 to the contrary notwithstanding, it is expressly understood and
agreed that the Landlord shall be obligated to restore the Building only to the
extent of such cost as will be equivalent to the proceeds received by Landlord
pursuant to the fire insurance coverage to be provided to Landlord as in Article
9 provided. If the insurance proceeds are not sufficient to restore the
Building to substantially the same condition which they were in prior to the
casualty, then the Landlord shall have a period of thirty (30) days within which
to determine whether to terminate the term hereby created (provided that
Landlord has carried the insurance required under Article 9.1 hereof) unless the
Landlord and Tenant shall mutually agree to the funding of any such excess
construction costs. In the event of cancellation in accordance with this
Article, the Tenant shall immediately surrender the Leased Premises and the
Tenant's interest in said lease to the Landlord, and the Tenant shall only pay
Rent to the time of such destruction or damage, in which event, the Landlord may
re-enter and repossess the Leased Premises thus discharged from this lease and
may remove all parties therefrom.
13.2 In the event of any other insured casualty, which shall
be repairable within two hundred seventy (270) days from the happening of such
damage or casualty, the Landlord shall repair and restore the Building with
reasonable speed and dispatch, and the Rent shall abate and be equitably
apportioned as the case may be as to any portion of the Building which shall be
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unfit for occupancy by the Tenant, or which cannot be used by the Tenant so as
to conduct its business. The Rent, however, shall accrue and recommence
immediately upon restoration of the Building.
13.3 Nothing hereinabove contained with respect to the
Tenant's right to abate Rent under proper conditions shall be construed to limit
or affect the Landlord's right to payment under any claim for damages covered by
the rent insurance policy pursuant to the contract therefor required to be
provided pursuant to Article 9 of this lease.
13.4 For the purposes of this Article 13, in determining what
constitutes reasonable speed and dispatch, consideration shall be given for
delays which would be excuses for non-performance as in Article 31 hereinafter
provided (Force Majeure).
13.5 In the event of such fire or casualty as above provided,
wherein the Landlord shall rebuild, the Tenant agrees, at its cost and expense,
to forthwith remove any and all of its equipment, fixtures, stock and personal
property as the same may be required to permit Landlord to expedite rebuilding
and/or repair. In any event, the Tenant shall assume at its sole risk the
responsibility for damage or security with respect to such fixtures and
equipment in the event the Building area where the same may be located has been
damaged, until the Building shall be restored and made secure.
13.6 Anything in this Article 13 to the contrary
notwithstanding, it is expressly understood and agreed that wherever
reconstruction shall be undertaken, in the event of damage or casualty as in
this Article 13 provided, the Landlord shall prosecute such reconstruction with
reasonable speed and dispatch. In the event, however, such reconstruction or
repair shall not be completed within ten (10) months from the date of such
damage or casualty, then, in that event, the Tenant shall have the option at the
expiration of the ten (10) month period to terminate the lease by notice in
writing by Tenant to Landlord by certified mail, return receipt requested. In
the event of such termination, neither party shall thereafter have any further
liability, one to the other, in accordance with the terms and conditions of the
lease.
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14. ASSIGNMENT AND SUBLETTING
---------------------------
14.1 The Tenant may not assign this lease or sublet the
Leased Premises or any part thereof unless it shall first advise the Landlord in
writing by certified mail, return receipt requested, of its intention to assign
or sublease. In such event the Landlord shall have thirty (30) days from
receipt of such notice to elect to recapture the Leased Premises and terminate
the within lease or to consent to the assignment of the lease or the sublease of
the Leased Premises, which consent shall not be unreasonably withheld, providing
the proposed assignee or subtenant is financially responsible and shall assume
in writing the terms and conditions of the within lease on the part of the
Tenant to be performed. In connection with any permitted assignment or
subletting, the Tenant shall pay to the Landlord one-half ( ) of any increment
in rent or other consideration, per square foot, per annum, received by Tenant
over the Base Rent then in effect, after first deducting therefrom reasonable
attorney's fees, real estate brokerage commissions and advertising costs
incurred by Tenant in connection with such assignment or subletting.
14.2 The Landlord's consent shall not be required and the
terms and conditions of Article 14.1 shall not apply as to Landlord's right of
first refusal to recapture if the Tenant assigns or subleases the Leased
Premises to a parent, subsidiary, affiliate or a company into which Tenant is
merged or with which Tenant is consolidated, or to the purchaser of all or
substantially all of the assets of Tenant.
14.3 In the event of any assignment or subletting permitted
by the Landlord, the Tenant shall remain and be directly and primarily
responsible for payment and performance of the within lease obligations, and the
Landlord reserves the right, at all times, to require and demand that the Tenant
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<PAGE>
pay and perform the terms and con-ditions of this lease. No such assignment or
subletting shall be made to any Tenant who shall occupy the Leased Premises for
any use other than that which is permitted to the Tenant, or for any use which
may be deemed disreputable or extra hazardous, or which would in any way violate
applicable laws, ordinances or rules and regulations of governmental boards and
bodies having jurisdiction thereof.
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<PAGE>
15. COMPLIANCE WITH LOCAL RULES AND REGULATIONS
------------------------------------------------
15.1 Landlord covenants and agrees with Tenant that, upon
acceptance and occupancy of the Leased Premises, the Leased Premises will comply
with all statutes, ordinances, rules, orders, regulations and requirements of
the Federal, State and City Government and of any and all their departments and
bureaus, and with the requirements of the Board of Fire Underwriters or their
equivalent in the State of New Jersey which are applicable to the use and
construction of the same.
15.2 The Tenant covenants and agrees that, upon and after
acceptance and occupancy of the Leased Premises, it will promptly execute and
comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and City Government and of any and all their
departments and bureaus (provided same are applicable to Tenant's occupancy or
use of the Leased Premises) or to the reasonable rules promulgated by the
Landlord in writing for the correction, prevention and abatement of nuisances,
violations or other grievances in, upon or connected with the Leased Premises
during said term and arising from the operations of the Tenant therein, at the
Tenant's cost and expense, subject to the right of the Tenant to contest the
decision by any such department or bureau, as hereinafter mentioned. In the
event the Tenant contests any such governmental decision, it shall indemnify,
defend and save the Landlord harmless from any fine, penalty, costs and
liability imposed upon the Landlord as a result of Tenant's failure so to
comply. The Tenant covenants and agrees, at its own cost and expense, to comply
with such regulations or requests as may be required by the fire or liability
insurance carriers providing insurance for the Leased Premises, and will further
comply with such other requirements that may be promulgated by the Board of Fire
Underwriters in connection with the use and occupancy of the Leased Premises by
the Tenant in the conduct of its business. Anything hereinabove contained to
the contrary notwithstanding, it is expressly understood and agreed that the
Tenant shall not be required to make structural changes in the Building if the
same are required by governmental regulation, as the same may be applicable as a
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<PAGE>
matter of general application to the Building, provided that the Tenant shall be
required to make structural changes that may be required by governmental
regulation if directly attributable and resulting from Tenant's occupancy and
use of the Building in the conduct of its business.
15.3 If the Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them, failure of the Tenant to comply with the requirements of Article
15.2 above shall be deemed an item of default for which the Landlord shall have
recourse by termination of this lease or exercise of any other rights reserved
to the Landlord hereunder in accordance with the terms and conditions of this
lease.
15.4 Without limiting anything hereinabove contained in this
Article 15, Tenant expressly covenants and agrees to fully comply with the
provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6, et
seq.), or any successor statute, hereinafter referred to as "ISRA", and all
regula-tions promulgated thereto (or under the New Jersey Environmental Clean-Up
Responsibility Act, the predecessor statute of ISRA, as applicable) prior to the
expiration or earlier termination of the within lease, or at any time that any
action of the Tenant triggers the applicability of ISRA. In particular, the
Tenant agrees that it shall comply with the provisions of ISRA in the event of
any "closing, terminating or transferring" of Tenant's operations, as defined by
and in accordance with the regulations which have been promulgated pursuant to
ISRA. In the event evidence of such compliance is not delivered to the Landlord
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<PAGE>
prior to surrender of the Leased Premises by the Tenant to the Landlord, it is
understood and agreed that the Tenant shall be liable to pay to the Landlord an
amount equal to two times the Base Rent then in effect, prorated on a monthly
basis, together with all applicable additional rent from the date of such
surrender until such time as evidence of compliance with ISRA has been delivered
to the Landlord, and together with any costs and expenses incurred by Landlord
in enforcing Tenant's obligations under this Article 15.4. Evidence of
compliance, as used herein, shall mean a "letter of non-applicability" issued by
the New Jersey Department of Environmental Protection, hereinafter referred to
as "NJDEP", or an approved "negative declaration", "no further action letter" or
a "remediation work plan" which has been fully implemented and approved by
NJDEP. Evidence of compliance shall be delivered to the Landlord, together with
copies of all submissions made to, and received from, the NJDEP, including all
environmental reports, test results and other supporting documentation. In
addition to the above, Tenant hereby agrees that it shall cooperate with
Landlord in the event of the termination or expiration of any other lease
affecting the Property, or a transfer of any portion of the property indicated
on Schedule "A", or any interest therein, which triggers the provisions of ISRA.
In such case, Tenant agrees that it shall fully cooperate with Landlord in
connection with any information or documentation which may be requested by the
NJDEP. In the event that any remediation of the Property is required in
connection with the conduct by Tenant of its business at the Leased Premises,
Tenant expressly covenants and agrees that it shall be responsible for that
portion of said remediation which is attributable to the Tenant's use and
occupancy thereof. Tenant hereby represents and warrants that its Standard
Industrial Classification No. is 8731, and that Tenant shall not generate,
manufacture, refine, transport, treat, store, handle or dispose of "hazardous
substances" as the same are defined under ISRA and the regulations promulgated
pursuant thereto, except in accordance with applicable laws and regulations.
Tenant hereby agrees that it shall promptly inform Landlord of any change in its
SIC number or the nature of the business to be conducted in the Leased Premises.
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Notwithstanding anything hereinabove contained to the contrary, the Landlord
agrees that it shall indemnify, defend and save harmless the Tenant from and
against any and all claims or liabilities incurred in connection with the
environmental condition of the Leased Premises existing as of the Commencement
Date hereunder. The within covenants shall survive the expiration or earlier
termination of the lease term.
16. FIXTURES
--------
16.1 The Tenant may install and remove property, equipment
and fixtures in the Leased Premises during the term of the lease. If the Tenant
moves out or is dispossessed and fails to remove any such property, equipment
and fixtures, then the said property, equipment and fixtures shall be deemed at
the option of the Landlord to be abandoned, and Tenant shall reimburse to
Landlord the reasonable cost of removal thereof from the Leased Premises,
including any cost of storage or disposal thereof.
16.2 The Tenant shall repair, at its cost and expense, any
damage to the Leased Premises resulting from the removal of its property,
equipment and fixtures. However, if Tenant fails to do so, it shall be
responsible to reimburse the Landlord for the reasonable cost of compliance with
the terms and conditions of the within covenant.
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<PAGE>
16.3 All installation and removal of Tenant's property,
equipment and fixtures shall be done in accordance with all applicable laws,
ordinances and the rules and regulations of all governmental boards and bodies
having jurisdiction thereof.
17. REPAIR OF DAMAGES
-------------------
In case of any waste or damage to the Leased Premises caused by
the negligence or willful act of the Tenant or the Tenant's agents, servants,
employees, or invitees, the Tenant shall repair the said waste or damage as
speedily as possible at the Tenant's own cost and expense, except for damage or
injury for which insurance proceeds are available to Landlord pursuant to the
terms and conditions of this lease.
30
<PAGE>
18. NON-WAIVER
----------
The failure of the Landlord or Tenant to insist upon strict
performance of any of the covenants or conditions of this lease or to exercise
any option herein conferred (except for Tenant's Option to Renew, if any, which
must be exercised strictly in accordance with its terms) in any one or more
instances shall not be con-strued as a waiver or relinquishment of any such
covenants, conditions or options, but the same shall be and remain in full force
and effect. If the Landlord pursues any remedy granted by the terms of this
lease or the terms of applicable law, it shall not be construed as a waiver or
relinquishment of any other remedy afforded thereby.
19. ALTERATIONS AND IMPROVEMENTS
------------------------------
19.1 The Tenant may make alterations, additions or
improvements to the Building only with the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, provided such
alterations, additions or improvements do not require structural changes in the
Building, or do not lessen the value of the Leased Premises or the Building.
Any consent which Landlord may give shall be conditioned upon Tenant furnishing
to Landlord, detailed plans and specifications with respect to any such changes,
to be approved by Landlord in writing. As a condition of such consent, Landlord
reserves the right to require Tenant to remove, at Tenant's sole cost and
expense, any such alterations or additions prior to the expiration of the lease
term. If Landlord does not require such removal, any such alterations or
additions shall be deemed to be part of the realty upon installation, provided
that Tenant, at its option, shall have the right to remove the same, provided it
shall be responsible to repair any damage to the Leased Premises or the Building
occasioned by such removal, provided such removal is made prior to the
expiration of the lease term. Notwithstanding the above, the Tenant shall have
the right to make non-structural additions or improvements, without the
Landlord's prior written consent, provided that (a) such additions or
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<PAGE>
improvements do not cost in excess of TEN THOUSAND AND 00/100 ($10,000.00)
DOLLARS, in the aggregate; (b) the same do not require alteration of the
Building structure or mechanical systems; and (c) Tenant shall forward a copy of
all plans and specifications relating to such work to the Landlord, prior to the
commencement of such work. Tenant shall reimburse Landlord for all costs and
expenses incurred by Landlord for review of said plans and specifications and
for any supervision deemed necessary by Landlord in connection with the work to
be performed by Tenant. All such alterations, additions or improvements shall
be only in conformity with applicable governmental and insurance company
requirements and regulations applicable to the Leased Premises. Tenant shall
hold and save Landlord harmless and indemnify Landlord against any claim for
damage or injury in connection with any of the foregoing work which Tenant may
make as hereinabove provided. Tenant shall have no obligation to remove the
initial installation of leasehold improvements to be constructed by Landlord
pursuant to Article 3 hereof.
19.2 Nothing herein contained shall be construed as a consent
on the part of the Landlord to subject the estate of the Landlord to liability
under the Construction Lien Law of the State of New Jersey, it being expressly
understood that the Landlord's estate shall not be subject to such liability.
19.3 It is expressly understood and agreed that in the event
alterations or improvements required by Tenant are performed by Landlord's
designated contractor, Tenant shall make payments to said contractor strictly in
accordance with the agreement entered into between said parties. Default in
payment by Tenant under said construction contract shall be deemed to be a
default under this Lease for which Landlord shall have the right of termination
as hereinafter set forth in Article 27.
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<PAGE>
20. NON-LIABILITY OF LANDLORD
---------------------------
20.1 It is expressly understood and agreed by and between the
parties to this agreement that the Tenant shall assume all risk of damage to its
property, equipment and fixtures occurring in or about the Leased Premises,
whatever the cause of such damage or casualty.
20.2 It is expressly understood and agreed that, in any
event, the Landlord shall not be liable for any damage or injury to property or
person caused by or resulting from steam, electricity, gas, water, rain, ice or
snow, or any leak or flow from or into any part of the Building, or from any
damage or injury resulting or arising from any other cause or happening
whatsoever, except for the negligence or willful misconduct of the Landlord or
Landlord's agents, servants or employees.
21. GLASS
-----
The Tenant agrees to replace, at its cost and expense, any broken
glass in the windows or other apertures of the Leased Premises, provided such
damage or casualty is caused by the negligence or act of the Tenant, its agents,
servants, employees or invitees.
22. LANDLORD'S ACCESS FOR FUTURE CONSTRUCTION
---------------------------------------------
The Landlord reserves the right to enter the Leased Premises in
connection with the construction and erection of any additions or improvements
to the Building, provided that in the use of such right the Landlord shall not
unreasonably interfere with the use of the parking areas and driveways or with
Tenant's business.
23. QUIET ENJOYMENT
----------------
The Landlord covenants and represents that the Landlord is the
owner of the Leased Premises herein leased and has the right and authority to
enter into, execute and deliver this lease, and does further covenant that the
Tenant on paying the rent and performing the conditions and covenants herein
contained shall and may peaceably and quietly have, hold and enjoy the Leased
Premises for the term aforementioned.
24. SIGNS
-----
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<PAGE>
Tenant shall have the right to install its name and logo on the
exterior facade of the Building, and Tenant shall have the right to install a
"monument" sign on the Property, subject to the Landlord's prior written
approval, which approval shall not be unreasonably withheld or delayed. Tenant
shall also be responsible to obtain all permits and approvals necessary for the
installation of such signs, at Tenant's sole cost and expense. Upon the
expiration or earlier termination of this lease, Tenant shall remove the sign
which has been affixed to the facade of the Building and shall restore said
facade to the condition which existed prior to the installation of said sign, at
Tenant's sole cost and expense.
25. INSPECTION BY LANDLORD
------------------------
The Tenant agrees that the Landlord's agents or other
representatives shall have the right to enter into and upon the Leased Premises,
or any part thereof, at all reasonable hours without unduly disturbing the
operations of the Tenant, for the purpose of examining the Leased Premises or
for making such repairs or alterations therein as may be necessary for the
safety and preservation thereof.
26. NOTICES
-------
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All notices required or permitted to be given to the Landlord
shall be given by certified mail, return receipt requested, addressed to the
Landlord at the address set forth at the head of this lease, or such other place
as the Landlord shall designate in writing. All notices required or permitted
to be given to the Tenant shall be given by certified mail, return receipt
requested, addressed to the Tenant at the Leased Premises (except that, prior to
the Commencement Date, notices to Tenant shall be sent to the address set forth
at the head of this Lease), or such other place as the Tenant shall designate in
writing with a copy to be sent by regular mail to Steven B. Fuerst, Esq.,
Lowenstein, Sandler, 50 Division Street, Somerville, New Jersey 08876.
27. DEFAULT BY TENANT
-------------------
27.1 Each of the following shall be deemed a default by
Tenant and breach of this lease:
(1) (i) filing of a petition by the Tenant for
adjudication as a bankrupt, or for reorganization, or for an arrangement under
any federal or state statute;
(ii) dissolution or liquidation of the Tenant;
(iii) appointment of a permanent receiver or a
permanent trustee of all or substantially all the property of the Tenant;
(iv) taking possession of the property of the Tenant
by a governmental officer or agency pursuant to statutory authority for
dissolution, rehabilitation, reorganization or liquidation of the Tenant;
(v) making by the Tenant of an assignment for
the benefit of creditors;
(vi) abandonment, desertion or vacation of the
Leased Premises by the Tenant.
35
<PAGE>
If any event mentioned in this subdivision (1) shall occur, Landlord
may thereupon or at any time thereafter elect to cancel this lease by ten (10)
days' written notice to the Tenant, and this lease shall terminate on the day in
such notice specified with the same force and effect as if that date were the
date herein fixed for the expiration of the term of the lease.
(2) (i) Default in the payment of the Base Rent or
additional rent herein reserved or any part thereof for a period of seven (7)
days after the same is due and payable as in this lease required.
(ii) A default in the performance of any other
covenant or condition of this lease on the part of the Tenant to be
performed for a period of thirty (30) days after notice. For purposes of this
subdivision (2) (ii) hereof, no default on the part of Tenant in performance of
work required to be performed or acts to be done or conditions to be modified
shall be deemed to exist if steps shall have been commenced by Tenant
diligently after notice to rectify the same and shall be prosecuted to
completion with reasonable diligence, subject, however, to unavoidable
delays.
27.2 In case of any such default under Article 27.1(2) and at
any time thereafter following the expiration of the respective grace periods
above mentioned, or in the event that Tenant is consistently late in the
punctual payment of Base Rent and/or additional rent required to be paid under
this lease as shall be evidenced by late payments made during any period of four
(4) months during any twelve (12) month period measured from the date of the
first late payment, Landlord may serve a notice upon the Tenant electing to
terminate this Lease upon a specified date not less than seven (7) days after
the date of serving such notice and this Lease shall then expire on the date so
specified as if that date has been originally fixed as the expiration date of
36
<PAGE>
the term herein granted; however, a default under Article 27.1(2) hereof shall
be deemed waived if such default is made good before the date specified for
termination in the notice of termination served on Tenant.
27.3 In case this Lease shall be terminated as hereinbefore
provided, or by summary proceedings or otherwise, Landlord or its agents may,
immediately or any time thereafter, re-enter and resume possession of the Leased
Premises or such part thereof, and remove all persons and property therefrom,
either by summary proceedings or by a suitable action or proceeding at law
without being liable for any damages, provided any entry pursuant to the
foregoing shall be in accordance with law. No re-entry by Landlord shall be
deemed an acceptance of a surrender of this lease.
27.4 In case this lease shall be terminated as hereinafter
provided, or by summary proceedings or otherwise, Landlord may, in its own name
and in its own behalf, relet the whole or any portion of the Leased Premises,
for any period equal to or greater or less than the remainder of the then
current term, for any sum which it may deem reasonable, to any tenant which it
may deem suitable and satisfactory, and for any use and purpose which it may
deem appropriate, and in connection with any such lease Landlord may make such
changes in the character of the improvements on the Leased Premises as Landlord
may determine to be appropriate or helpful in effecting such lease and may grant
concessions or free rent. Landlord agrees that it will take reasonable steps to
mitigate Tenant's damages. Landlord shall not in any event be required to pay
Tenant any surplus of any sums received by Landlord on a reletting of the Leased
Premises in excess of the rent reserved in this lease.
27.5 (1) In case this lease be terminated by summary
proceedings, or otherwise, as provided in this Article 27, and whether or not
the Leased Premises be relet, Landlord shall be entitled to recover from the
Tenant, the following:
(i) a sum equal to all expenses, if any, including
reasonable counsel fees, incurred by Landlord in recovering possession of the
Leased Premises, and all reasonable costs and charges for the care of said
Leased Premises while vacant, which damages shall be due and payable by Tenant
37
<PAGE>
to Landlord at such time or times as such expenses shall have been incurred by
Landlord; and
(ii) A sum equal to all damages set forth in this Article
27 and in Article 28 here-inafter referred to.
(2) Without any previous notice or demand, separate
actions may be maintained by Landlord against Tenant from time to time to
recover any damages which, at the commencement of any such action, have then or
theretofore become due and payable to the Landlord under this Article 27 and
subsections hereof without waiting until the end of the then current term.
(3) All sums which Tenant has agreed to pay by way of
taxes, sewer charges, water rents or water meter charges, insurance premiums and
other similar items becoming due from time to time under the terms of this
lease, shall be deemed additional rent reserved in this lease within the meaning
of this Article 27 and subsections hereof.
(4) Notwithstanding anything in this lease to the contrary,
all amounts payable by Tenant to or on behalf of Landlord under this lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of section 502(b)(6)of the Bankruptcy Code, 11 U.S.C. Section
502(b)(6), or any successor statute.
38
<PAGE>
28. LIABILITY OF TENANT FOR DEFICIENCY
--------------------------------------
In the event that the relation of Landlord and Tenant may cease
or terminate by reason of the default by Tenant and the re-entry of Landlord as
permitted by the terms and conditions contained in this lease or by the
ejectment of Tenant by summary proceedings or other judicial proceedings, or
after the abandonment of the Leased Premises by Tenant, it is hereby agreed that
Tenant shall remain liable to pay in monthly payments the rent which shall
accrue subsequent to the re-entry by Landlord, and Tenant expressly agrees to
pay as damages for the breach of the covenants herein contained the difference
between the rent reserved and the rent collected and received, if any, by
Landlord, during the remainder of the unexpired term, as the amount of such
difference or deficiency shall from time to time be ascertained.
29. MORTGAGE PRIORITY
------------------
39
<PAGE>
This lease shall not be a lien against the Leased Premises in
respect to any mortgages that are now or may hereafter be placed upon the
Property. The recording of such mortgage or mortgages shall have preference and
precedence and be superior and prior in lien to this lease irrespective of the
date of recording, and the Tenant agrees to execute any instruments which may be
deemed necessary or desirable to further effect the subordination of this lease
to any such mortgage or mortgages. A refusal by the Tenant to execute such
instruments shall entitle the Landlord to the option of canceling this lease,
and the term hereof is hereby expressly limited accordingly. Landlord hereby
agrees that it shall obtain, for the benefit of Tenant, a Subordination,
Non-Disturbance and Attornment Agreement from Landlord's current mortgagee and
from all future mortgagee's of the Property, it being understood and agreed that
any such Agreement shall be written on the applicable mortgagee's customary
form.
30. STATEMENT OF ACCEPTANCE
-------------------------
40
<PAGE>
Upon the Tenant's accepting the Leased Premises and entering
possession pursuant to the terms and conditions hereof, the Tenant covenants and
agrees that it will furnish to the Landlord a statement that it accepts the
Leased Premises and agrees to pay the rent from the date of acceptance, subject
to the terms and conditions of the lease as herein contained, which statement
may be in recordable form if required by the Landlord. Tenant further agrees
that subsequent to the Commencement Date it will execute, as a condition of the
within lease, an estoppel letter as may be required from Landlord's mortgagee
from time to time, certifying among other things the Commencement Date of the
lease, status of current rent payments by Tenant, and any other pertinent
information as may be reasonably required by such mortgagee as it affects the
status of the within lease. Tenant agrees that it shall not delay issuance of
the statement of acceptance or estoppel letter based on completion of Punch List
items, it being understood that the granting of the statement of acceptance or
estoppel letter shall not diminish or release Landlord from its obligation to
complete and/or correct Punch List items.
41
<PAGE>
31. FORCE MAJEURE
--------------
Except for the obligation of the Tenant to pay rent and other
charges as in this lease provided, the period of time during which the Landlord
or Tenant is prevented from performing any act required to be performed under
this lease by reason of fire, catastrophe, strikes, lockouts, civil commotion,
acts of God or the public enemy, government prohibitions or preemptions,
embargoes, inability to obtain material or labor by reason of governmental
regulations or prohibitions, the act or default of the other party, or other
events beyond the reasonable control of Landlord or Tenant, as the case may be,
shall be added to the time for performance of such act.
32. CHANGES IN OR ABOUT PREMISES
--------------------------------
This lease shall not be affected or impaired by any change in any
sidewalk, alleys or streets adjacent to or around the Building, or any change
parking regulations of applicable governmental boards or bureaus having
juris-diction thereof.
33. LIMIT OF LANDLORD'S LIABILITY
--------------------------------
In case the Landlord shall be a joint venture, trust,
partnership, tenancy in common, association or other form of joint ownership,
the individual members thereof shall have absolutely no personal liability or
obligation with respect to any provision of this lease, or any obligation or
liability arising therefrom or in connection therewith, which covenant
hereinabove referred to, shall be deemed effective as of the date Landlord
completes and delivers the Leased Premises in accordance with the terms and
conditions of the lease.
34. LANDLORD'S RIGHT OF ENTRY AND ALTERATIONS
----------------------------------------------
Landlord or its agents shall have the right at any time to enter
upon the Leased Premises to examine the same, to clean windows, or to make such
repairs, alterations or improvements as Landlord may deem necessary or proper;
and, during such operations, Landlord may close entrances, doors, corridors,
elevators and other facilities, all without any liability to Tenant by reason of
interference, inconvenience or annoyance; provided, however, that if such work
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<PAGE>
should materially reduce the area rented by Tenant, the rent paid by Tenant
shall be proportionately reduced, and further provided that such work will be
done in such a manner as to cause the least possible interference, inconvenience
and annoyance to Tenant. However, this Article shall not be deemed as imposing
any duty on Landlord to undertake any of the acts specified therein.
35. LANDLORD'S REMEDIES
--------------------
35.1 The rights and remedies given to the Landlord in this
lease are distinct, separate and cumulative remedies, and no one of them,
whether or not exercised by the Landlord, shall be deemed to be in exclusion of
any of the others.
35.2 In addition to any other legal remedies for violation or
breach by or on the part of the Tenant or by any undertenant or by anyone
holding or claiming under the Tenant or any one of them, of the restrictions,
agreements or covenants of this lease on the part of the Tenant to be performed
or fulfilled, such violation or breach shall be restrainable by injunction at
the suit of the Landlord.
35.3 No receipt of money by the Landlord from any receiver,
trustee or custodian, debtor in possession, or any permitted subtenant, shall
reinstate, continue or extend the term of this lease or affect any notice
theretofore given to the Tenant, or to any such receiver, trustee or custodian,
debtor in possession, or any permitted subtenant, or operate as a waiver or
estoppel of the right of the Landlord to recover possession of the Leased
Premises for any of the causes therein enumerated by any lawful remedy; and the
failure of the Landlord to enforce any covenant or condition by reason of its
breach by the Tenant shall not be deemed to void or affect the right of the
Landlord to enforce the same covenant or condition on the occasion of any
subsequent default or breach.
35.4 Tenant agrees that it shall reimburse Landlord for
Landlord's reasonable attorney's fees incurred in enforcing the terms and
conditions of this lease on the part of the Tenant to be performed. Tenant
further agrees to reimburse Landlord for Landlord's attorney's fees incurred in
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<PAGE>
connection with the review by Landlord of any Landlord's waiver, assignment or
sublet agreement or any other documentation reviewed by Landlord at Tenant's
request.
36. LANDLORD'S RESERVED RIGHTS
----------------------------
Landlord reserves the following rights:
(1) To decorate, remodel, repair, alter or otherwise prepare
the Leased Premises for re-occupancy if the Tenant vacates the Leased Premises
during or prior to the last ninety (90) days of the term of this lease, as the
same may be extended.
(2) To show the Leased Premises to prospective tenants or
brokers during the last year of the term of this lease, as the same may be
extended, and to prospective purchasers at all reasonable times, provided prior
notice to Tenant in each case is given, and Tenant's use and occupancy of the
Leased Premises shall not be materially inconvenienced by any such action of
Landlord. Landlord may enter upon the Leased Premises and may exercise any or
all of the foregoing rights hereby reserved without being deemed guilty of an
eviction or disturbance of Tenant's use or possession and without being liable
in any manner to Tenant. Notwithstanding the foregoing, Landlord agrees that it
shall arrange said visitation only by appointment with Tenant.
(3) (i) To the extent the same may from time to time or
at any time during the term of this lease be made available, Tenant shall have
the right to the non-exclusive use, in common with others, of driveways and
footways and of such loading and other facilities as may be constructed and
designated by Landlord on the Property for use by tenants of the Property. Said
areas, which are included in the definition of the Property shall hereafter be
referred to as the "Common Area". Landlord may, in its sole discretion, at any
time and from time to time increase, decrease or change in any manner the Common
Area, including, without limitation, eliminate, relocate, expand, reduce, modify
44
<PAGE>
or prescribe changes in the permitted use of any or all of the present or future
Common Area, and no such action of Landlord shall be deemed to be an eviction of
Tenant or breach of this lease, nor give rise to any claim for damages or for
reduction or abatement of the rent or additional rent.
(ii) Landlord may at any time temporarily close the Common
Area to make repairs or changes therein or to effect construction, repairs or
changes within the Complex, or to discourage non-tenant parking, and to do such
other acts in and to the Common Area as in its judgment may be desirable to
improve the convenience thereof.
(iii) If Landlord deems it necessary to prevent the
acquisition of public rights, Landlord from time to time may temporarily close
portions of the Common Area, erect private boundary marks or take further
appropriate action for that purpose, and such action shall not be deemed an
eviction or disturbance of Tenant's use of the Leased Premises or a breach of
this lease, nor give rise to any rent or additional rent.
(iv) No action by Landlord shall be permitted which would
eliminate or substantially reduce access to the Leased Premises.
37. LEASE CONSTRUCTION
-------------------
This lease shall be construed pursuant to the laws of the State
of New Jersey.
38. BIND AND INURE CLAUSE
------------------------
The terms, covenants and conditions of the within lease shall be
binding upon and inure to the benefit of each of the parties hereto, their
respective executors, administrators, heirs, successors and assigns, as the case
may be.
45
<PAGE>
39. DEFINITIONS
-----------
The neuter gender, when used herein and in the acknowledgment
hereafter set forth, shall include all persons, firms and corporations, and
words used in the singular shall include words in the plural where the text of
the instrument so requires.
40. PARAGRAPH HEADING
------------------
The paragraph headings herein are inserted only as a matter of
convenience and for reference, and in no way to define, limit or describe the
scope of this lease nor the intent of any provision hereof.
41. ENTIRE AGREEMENT
-----------------
This lease contains the entire agreement between the parties and
no modifications shall be effective unless set forth in an instrument in writing
executed by both parties hereto.
42. DEFINITION OF TERM OF "LANDLORD"
------------------------------------
When the term "Landlord" is used in this lease it shall be
construed to mean and include only the owner of the fee title of the Leased
Premises. Upon the transfer by the Landlord of the fee title hereunder, the
Landlord shall advise the Tenant in writing by certified mail, return receipt
requested, of the name of the Landlord's transferee. In such event, the then
Landlord shall be automatically freed and relieved from and after the date of
such transfer of title of all personal liability with respect to the performance
of any of the covenants and obligations on the part of the Landlord herein
contained to be performed, provided any such transfer and conveyance by the
Landlord is expressly subject to the assumption by the grantee or transferee of
the obligations of the Landlord to be performed pursuant to the terms and
conditions of the within lease.
43. SURVIVAL OF OBLIGATION
------------------------
It is expressly understood and agreed that in the event there are
any obligations of Tenant with respect to payment or performance as required
under the terms and conditions of this lease that shall have not been performed
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<PAGE>
prior to the expiration or termination of the lease in accordance with its
terms, such obligation, including the obligation to make rent adjustments and
other lease adjust-ments, shall survive the expiration or termination of the
lease term and surrender of the Leased Premises by the Tenant to the Landlord.
44. BROKERAGE
---------
The parties mutually represent to each other that INSIGNIA/ESG,
INC., Park 80 West, Plaza I, Saddle Brook, New Jersey 07663, is the sole broker
who negotiated and consummated the within transaction, and that neither party
dealt with any other broker in connection with the within lease, it being
understood and agreed that the Landlord shall be responsible, at its sole cost
and expense, to pay the real estate brokerage in connection with this lease
transaction pursuant to any written commission agreement entered into between
Landlord and broker. Landlord agrees to indemnify, defend and save harmless
Tenant in connection with the claims of any other real estate brokers claiming
commissions in connection with the within transaction and claiming authority
from Landlord. Tenant agrees to indemnify, defend and save harmless Landlord in
connection with the claims of any other real estate brokers claiming commissions
in connection with the within transaction and claiming authority from Tenant.
45. OPTION TO RENEW
-----------------
45.1 Provided the Tenant is not in default pur-suant to the
terms and conditions of this lease, the Tenant is hereby given the right and
privilege to renew the within lease for two (2) successive five (5) year
periods, to commence at the end of the initial term of this lease, which
renewals shall be upon the same terms and conditions as in this lease contained,
except as follows:
47
<PAGE>
(1) During the first five (5) year renewal period,
Tenant shall pay Base Rent in the amount of SIX HUNDRED EIGHTY THOUSAND SEVEN
HUNDRED EIGHTY THREE AND 25/100 ($680,783.25) DOLLARS per annum, in equal
installments in the sum of FIFTY SIX THOUSAND SEVEN HUNDRED THIRTY ONE AND
94/100 ($56,731.94) DOLLARS per month, in the same manner as required by Article
3 hereof; and
(2) During the second five (5) year renewal period,
Tenant shall pay Base Rent in the amount of SEVEN HUNDRED EIGHTY TWO THOUSAND
ONE HUNDRED SEVENTY SIX AND 50/100 ($782,176.50) DOLLARS per annum, in equal
installments in the sum of SIXTY FIVE THOUSAND ONE HUNDRED EIGHTY ONE AND 38/100
($65,181.38) DOLLARS per month, in the same manner as required by Article 3
hereof.
45.2 The right, option, and privilege of the Tenant to renew
this lease as hereinabove set forth is expressly conditioned upon the Tenant
delivering to the Land-lord, in writing, by certified mail, return receipt
requested, twelve (12) months' prior notice of its intention to renew, which
notice shall be given to the Landlord by the Tenant no later than twelve (12)
months prior to the date fixed for termination of the original term of this
lease.
45.3 The obligation to pay the Base Rent as hereinabove
provided shall be in addition to the obligation to pay all additional rent and
all applicable tax escalations and cost escalations of Operational Services as
required pursuant to the terms and conditions of the within lease computed from
the initial Commencement Date of the within lease as applicable.
46. LOSS OF OPTION RIGHTS
------------------------
Anything in this lease to the contrary notwithstanding, it is
expressly understood and agreed that the Option to Renew as provided in Article
45 shall be deemed null and void and of no further force and effect upon notice
by Landlord to Tenant in the event (i) Landlord is obligated to institute
48
<PAGE>
litigation to enforce payment and performance as required under this lease, and
providing Landlord is successful and prevails in such action; or (ii) Tenant is
consistently late in the punctual payment of annual Base Rent and/or additional
rent required to be paid under this lease as shall be evidenced by late payments
made during any period of four (4) months during any twelve (12) month period
[but only during the last three (3) years of the lease term] measured from the
date of the first late payment.
47. CONDEMNATION
------------
49
<PAGE>
If the whole or part of the Leased Premises shall be acquired by
eminent domain for any public or quasi--public use or purpose so that the Leased
Premises cannot be used for its intended leased purposes, or if the parking
areas shall be taken by eminent domain and the Landlord shall not substantially
replace such parking areas, then and in that event, the term of this lease shall
cease and terminate from the date that possession of the Leased Premises is
taken by the condemning authority in the eminent domain proceeding, or as the
result of the delivery of a deed in lieu of condemnation. The Tenant shall have
no claim against the Landlord for the value of any unexpired term of said lease.
No part of any award made to the Landlord shall belong to the Tenant, nor shall
the Tenant make any claim against the condemning authority for the value of its
leasehold. Anything hereinabove contained to the contrary notwithstanding, it
is expressly understood agreed that, without affecting Landlord's award as
hereinabove referred to, the Tenant may make such independent claim as the law
may allow with respect to Tenant's leasehold improvements, if any, trade
fixtures and equipment.
48. INDEMNITY
---------
Anything in this lease to the contrary notwithstanding, and
without limiting the Tenant's obligation to provide insurance pursuant to
Article 9 hereunder, the Tenant covenants and agrees that it will indemnify,
defend and save harmless the Landlord against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
without limitation reasonable attorneys' fees, which may be imposed upon or
incurred by Landlord by reason of any of the following occurring during the term
of this lease:
(i) Any matter, cause or thing arising out of use, occupancy,
control or management of the Leased Premises and any part thereof;
50
<PAGE>
(ii) Any negligence on the part of the Tenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(iii) Any accident, injury, damage to any person or property
occurring in, or about the Leased Premises;
(iv) Any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms or conditions contained in this lease on
its part to be performed or complied with.
(v) Subject to the exception set forth in Article 20.2, the
foregoing shall not require indemnity by Tenant in the event of damage or injury
occasioned by the negligence or acts of commission or omission of the Landlord,
its agents, servants or employees.
51
<PAGE>
Landlord shall promptly notify Tenant of any such claim asserted
against it and shall promptly send to Tenant copies of all papers or legal
process served upon it in connection with any action or proceeding brought
against Landlord by reason of any such claim.
49. SECURITY
--------
52
<PAGE>
Upon execution of this lease, the Tenant shall deposit with the
Landlord the sum of ONE HUNDRED THOUSAND AND 00/100 ($100,000.00) DOLLARS as
security for the full and faithful performance of this lease upon the part of
the Tenant to be performed. In addition, Tenant shall deliver to Landlord an
irrevocable, unconditional letter of credit (the "Letter of Credit"), drawable
upon sight draft together with a certification of Landlord that Tenant is in
default pursuant to the terms and conditions of this lease (beyond applicable
notice and cure periods), which Letter of Credit shall initially be in the
amount of THREE HUNDRED EIGHT THOUSAND THREE HUNDRED SEVENTY ONE AND 48/100
($308,371.48) DOLLARS, it being understood that the amount of said Letter of
Credit may be reduced by the amount of ten (10%) percent each year during the
term. Said Letter of Credit shall be automatically renewable and shall be
issued by a banking institution located in the State of New Jersey or the City
of New York which is reasonably acceptable to the Landlord. In the event of a
default by Tenant and termination of this lease by Landlord, Landlord shall have
the right to cash said Letter of Credit and to retain that portion thereof which
is equal to the unamortized portion of the real estate brokerage commission to
be paid by Landlord pursuant to Article 44 hereof. Any remaining amount shall
be returned to Tenant. Upon termination of this lease, and providing the Tenant
is not in default hereunder and has performed all of the conditions of this
lease, the Landlord shall return the said sum of ONE HUNDRED THOUSAND AND 00/100
($100,000.00) DOLLARS and the Letter of Credit to the Tenant. Anything herein
contained to the contrary notwithstanding, it is expressly understood and agreed
that the said security deposit shall not bear interest. Tenant covenants and
agrees that it will not assign, pledge, hypothecate, mortgage or otherwise
encumber the aforementioned security during the term of this lease. It is
expressly understood and agreed that the Landlord shall have the right to
co-mingle the security funds with its general funds and said security shall not
be required to be segregated.
50. SUBDIVISION AND SITE PLAN APPROVALS
---------------------------------------
Landlord and Tenant acknowledge that the Property is part of a
larger parcel of land, known as Lot 1.01 in Block 61 on the Tax Maps of the
Township of Branchburg, New Jersey. Promptly following the execution date of
this lease, Landlord shall file subdivision and site plan applications with the
53
<PAGE>
Township of Branchburg so as to properly subdivide the Property and to provide
for parking facilities to serve the Building containing at least one hundred
seventy-five (175) parking spaces (the "Site Plan"). In addition, said
application shall include provisions for the installation of liquid nitrogen
tanks and an aspiration shed in a fenced-in area adjacent to the Building.
Landlord shall diligently prosecute said applications so as to obtain the
required approvals as soon as is reasonably possible.
51. SATELLITE DISH
---------------
51.1 Tenant may, at its sole cost and expense, erect,
maintain, install and operate for the business purposes of Tenant during the
term of the lease, or any extension thereof, a satellite transmittal/receiving
dish antenna (the "Satellite Dish") on the Property, if possible, and otherwise
on the roof of the Building, provided that (i) Tenant shall comply with all
applicable laws, orders and regulations, and the terms and conditions of this
lease, (ii) the installation thereof shall not cause excess structural stress
affecting the load bearing capacity of the roof of the Building, and (iii)
Tenant shall be responsible for any and all damage to the Building caused by or
arising out of the installation, maintenance or removal of the Satellite Dish.
Tenant's right to install the Satellite Dish shall include the right to run
cable lines to the Leased Premises. Landlord hereby reserves the right to grant
to other tenants the right to use the roof for similar purposes.
51.2 The Satellite Dish shall be installed in accordance with
plans, specifications and configurations submitted to Landlord for review, and
Landlord shall have the right to approve the size, location, aesthetics and
manner of installation of the Satellite Dish, said approval not to be
unreasonably withheld or delayed. In the event that any penetrations of the
roof of the Building shall be required, the Tenant shall be required to utilize
the services of the Landlord's roofing contractor in connection with such
installation. Tenant shall promptly reimburse Landlord for all reasonable costs
54
<PAGE>
and expenses, including attorneys' fees, incurred by Landlord in connection with
the Satellite Dish. Tenant shall obtain any governmental licenses and/or
permits now or hereafter required for the installation, operation, use,
maintenance and removal of the Satellite Dish and related facilities.
51.3 Upon notice to Landlord, and provided that the Satellite
Dish may not be located on the ground, Tenant shall be given access to such part
of the roof of the Building (the "Rooftop Space") for the limited purpose of
exercising Tenant's rights with respect to the Satellite Dish, subject to
reasonable controls and restrictions imposed by Landlord from time to time.
Tenant agrees that the Satellite Dish will operate in a band to be used for
broadcast and reception only, and may not be used in any fashion which would
cause any interference to any data processing operation or any other antennae,
radio systems or microwave dishes located at the Building, and any such
interference shall be eliminated within a reasonable period of time not to
exceed seventy-two (72) hours after notice of the same is given to Tenant.
Tenant shall at all times maintain the Satellite Dish and related facilities in
good order and repair, and shall pay all costs therefor, including, without
limitation, the cost of electricity. Upon expiration or termination of this
lease, Tenant shall, at its own expense, and in accordance with applicable laws,
remove the Satellite Dish and all related conduits, cables and facilities
installed on or in the Building and repair any damage caused by such removal to,
and restore, the Rooftop Space, the Leased Premises and the Building.
51.4 Tenant agrees to indemnify, defend and save Landlord,
its employees and its agents, other tenants, licensees, invitees and their
beneficiaries harmless from and against any and all losses, damages, costs
(including the cost of litigation and attorneys' fees), claims, penalties and
liabilities of any nature whatsoever arising out of or in connection with the
Satellite Dish and other facilities related thereto, and shall carry contractual
liability insurance to cover the liability hereby assumed.
52. RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE
------------------------------------------------
In the event Landlord intends to commence construction of an
additional building on the lot which shall be contiguous to the Property,
Landlord shall notify Tenant of such fact and Tenant shall have a thirty (30)
day period within which to negotiate with Landlord for such additional space.
Thereafter, in the event that Landlord receives a bona fide third party offer
55
<PAGE>
for all or any portion of such additional space, or for any portion of the
remaining space in the Building, which offer Landlord is willing to accept,
Landlord shall forward a copy of said offer to Tenant and Tenant shall have a
period of fourteen (14) days within which to notify Landlord that Tenant shall
lease such additional space in accordance with the terms and conditions of the
third party offer which Landlord previously delivered to Tenant. In such event,
Landlord and Tenant shall enter into a lease amendment within thirty (30) days
following Landlord's initial notice to Tenant, incorporating such additional
space into the Leased Premises being leased to Tenant hereunder.
53. TENANCY APPROVAL
-----------------
The within lease is subject to and contingent upon the approval
of Tenant's use of the Leased Premises by the Township of Branchburg. Landlord
shall apply for such approval promptly following the execution of this lease,
and Tenant agrees that it shall cooperate fully with Landlord in connection with
any information, documentation or testimony which is required with regard to
said application.
54. EXECUTION AND DELIVERY
------------------------
The submission of the within lease by Landlord to Tenant for
review and approval shall not be deemed an option to lease, an offer to lease,
or a reservation of the Leased Premises in favor of Tenant, it being intended
that no rights or obligations shall be created by Landlord or Tenant until the
execution and delivery of the within lease by Landlord and Tenant, one to the
other.
55. TENANT'S FINANCING CONTINGENCY
--------------------------------
The within Lease is subject to and contingent upon the Tenant
obtaining a mortgage commitment from a bona fide institutional mortgage lender
in the amount of FIVE MILLION AND 00/100 ($5,000,000.00) DOLLARS, together with
final approval of the New Jersey Economic Development Authority (the "EDA") of a
ONE MILLION FIVE HUNDRED THOUSAND AND 00/100 ($1,500,000.00) DOLLAR guaranty in
connection with said mortgage commitment, as well as approval of a FIVE HUNDRED
THOUSAND and 00/100 ($500,000.00) DOLLAR direct loan from the EDA. In the event
56
<PAGE>
Tenant does not receive the foregoing approvals and commitment, on or before
June 10, 1999, the within Lease shall be null and void and of no further force
and effect. In such case, Tenant shall reimburse Landlord for all costs
incurred in connection with this transaction including, but not limited to,
engineering, architectural and legal fees, and the costs of any application and
professional fees in connection therewith which may be made to the Township of
Branchburg, provided that the amount of said reimbursement shall not exceed the
sum of TWENTY FIVE THOUSAND AND 00/100 ($25,000.00) DOLLARS.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS:
(L.S.)
- --------------------------------- ---------------------------------
MAURICE M. WEILL, TRUSTEE FOR
BRANCHBURG PROPERTY
ATTEST: LIFECELL CORPORATION
- ---------------------------------
By:
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<PAGE>
STATE OF NEW JERSEY )
) SS.:
COUNTY OF )
BE IT REMEMBERED, that on this ________ day of,___1999, before me, the
subscriber,_____________________________________________________________________
personally appeared MAURICE M. WEILL, TRUSTEE FOR BRANCHBURG PROPERTY, who, I am
satisfied, is the Landlord mentioned in the within Instrument, and thereupon he
acknowledged that he signed, sealed and delivered the same as the act and deed
of the Trust, for the uses and purposes therein expressed.
STATE OF )
) SS.:
COUNTY OF )
BE IT REMEMBERED, that on this ____day of _________ ,__1999, before
me, the subscriber,__________________________________ , personally appeared
______________________ , who, I am satisfied, is the person who signed the
within Instrument as, of LIFECELL CORPORATION, acorporation, the Tenant named
therein, and he thereupon acknowledged that the said instrument made by the
corporation and sealed with its corporate seal, was signed and sealed with the
corporate seal and delivered by him as such officer, and is the voluntary act
and deed of the corporation, made by virtue of authority from its Board of
Directors.
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<PAGE>
L E A S E A G R E E M E N T
- - - - - - - - - - - - - -
BY AND BETWEEN:
MAURICE M. WEILL, TRUSTEE
FOR BRANCHBURG PROPERTY
"Landlord"
-and-
LIFECELL CORPORATION,
a corporation
"Tenant"
DATED:________________ , 1999
LAW OFFICES
EPSTEIN, BROWN, MARKOWITZ & GIOIA
A Professional Corporation
245 Green Village Road
P.O. Box 901
Chatham Township, New Jersey 07928-0901
(973) 593-4900
Fax (973) 593-4966
U:\USERS\IN\MMW\30094.016\LEASE504.003
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
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<C> <S> <C>
1. LEASED PREMISES . . . . . . . . . . . . . . 2
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2. TERM OF LEASE . . . . . . . . . . . . . . . 3
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3. CONDITION OF PREMISES . . . . . . . . . . . 4
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4. RENT. . . . . . . . . . . . . . . . . . . . 6
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5. OPERATING COST AND TAX ESCALATIONS. . . . . 7
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6. USE . . . . . . . . . . . . . . . . . . . . 14
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7. REPAIRS AND MAINTENANCE . . . . . . . . . . 15
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8. UTILITIES AND SERVICE . . . . . . . . . . . 15
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9. INSURANCE . . . . . . . . . . . . . . . . . 16
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10. INCREASE OF INSURANCE RATES . . . . . . . . 17
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11. TENANT'S FIRE INSURANCE . . . . . . . . . . 18
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12. WAIVER OF SUBROGATION RIGHTS. . . . . . . . 18
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13. FIRE AND CASUALTY . . . . . . . . . . . . . 18
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14. ASSIGNMENT AND SUBLETTING . . . . . . . . . 20
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15. COMPLIANCE WITH LOCAL RULES AND REGULATIONS 22
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16. FIXTURES. . . . . . . . . . . . . . . . . . 25
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17. REPAIR OF DAMAGES . . . . . . . . . . . . . 25
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18. NON-WAIVER. . . . . . . . . . . . . . . . . 26
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19. ALTERATIONS AND IMPROVEMENTS. . . . . . . . 26
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20. NON-LIABILITY OF LANDLORD . . . . . . . . . 28
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21. GLASS . . . . . . . . . . . . . . . . . . . 28
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22. LANDLORD'S ACCESS FOR FUTURE CONSTRUCTION . 28
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23. QUIET ENJOYMENT . . . . . . . . . . . . . . 28
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24. SIGNS . . . . . . . . . . . . . . . . . . . 29
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25. INSPECTION BY LANDLORD. . . . . . . . . . . 29
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26. NOTICES . . . . . . . . . . . . . . . . . . 29
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27. DEFAULT BY TENANT . . . . . . . . . . . . . 30
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28. LIABILITY OF TENANT FOR DEFICIENCY. . . . . 33
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29. MORTGAGE PRIORITY . . . . . . . . . . . . . 33
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30. STATEMENT OF ACCEPTANCE . . . . . . . . . . 34
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31. FORCE MAJEURE . . . . . . . . . . . . . . . 35
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32. CHANGES IN OR ABOUT PREMISES. . . . . . . . 35
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33. LIMIT OF LANDLORD'S LIABILITY . . . . . . . 35
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34. LANDLORD'S RIGHT OF ENTRY AND ALTERATIONS . 35
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35. LANDLORD'S REMEDIES . . . . . . . . . . . . 36
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36. LANDLORD'S RESERVED RIGHTS. . . . . . . . . 37
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37. LEASE CONSTRUCTION. . . . . . . . . . . . . 38
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38. BIND AND INURE CLAUSE . . . . . . . . . . . 38
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39. DEFINITIONS . . . . . . . . . . . . . . . . 39
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40. PARAGRAPH HEADING . . . . . . . . . . . . . 39
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41. ENTIRE AGREEMENT. . . . . . . . . . . . . . 39
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42. DEFINITION OF TERM OF "LANDLORD". . . . . . 39
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43. SURVIVAL OF OBLIGATION. . . . . . . . . . . 39
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44. BROKERAGE . . . . . . . . . . . . . . . . . 40
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45. OPTION TO RENEW . . . . . . . . . . . . . . 40
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46. LOSS OF OPTION RIGHTS . . . . . . . . . . . 41
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47. CONDEMNATION. . . . . . . . . . . . . . . . 42
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48. INDEMNITY . . . . . . . . . . . . . . . . . 42
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49. SECURITY. . . . . . . . . . . . . . . . . . 43
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50. SUBDIVISION AND SITE PLAN APPROVALS . . . . 44
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51. SATELLITE DISH. . . . . . . . . . . . . . . 45
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52. RIGHT OF FIRST REFUSAL ON ADDITIONAL SPACE. 46
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53. TENANCY APPROVAL. . . . . . . . . . . . . . 47
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54. EXECUTION AND DELIVERY. . . . . . . . . . . 47
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55. TENANT'S FINANCING CONTINGENCY. . . . . . . 47
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</TABLE>
Schedule "A" - Legal Description of Property
Schedule "B" - Plan and Budget
Schedule "C" - Janitorial Services
FIRST AMENDMENT TO LEASE, made the 21 day of September , 1999, by and between
MAURICE M. WEILL, TRUSTEE FOR BRANCHBURG PROPERTY having an office at 51
Commerce Street, Springfield, New Jersey 07081 (hereinafter called the
"Landlord"); and LIFECELL CORPORATION, a Delaware corporation, having an office
at 3606 Research Forest Drive, The Woodlands, Texas 77381,(hereinafter called
the "Tenant").
W I T N E S S E T H :-
- - - - - - - - - - --
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WHEREAS, the Landlord and Tenant have entered into a certain Lease
Agreement dated June 17, 1999, hereinafter called the "Lease", in connection
with lands and premises known as Lot 1.01 in Block 61, Route 202 and Old York
Road, Branchburg, New Jersey, all as more particularly described on Schedule "A"
annexed to the Lease (the "Property"); and
WHEREAS, the Landlord has erected an industrial-type building
containing 89,960 square feet, outside outside dimensions, located on the
Property (hereinafter referred to as the "Building"); and
WHEREAS, due to the design requirements of Tenant, it is necessary to
adjust the square footage of the Leased Premises, as set forth in Article 1.1 of
the Lease; and
WHEREAS, Landlord and Tenant desire to further modify the Lease to
make such changes as are required by the establishment of the final square
footage of the Leased Premises.
NOW, THEREFORE, in consideration of the sum of ONE ($1.00) DOLLAR and
other good and valuable consideration, the parties hereto mutually covenant and
agree as follows:
i. Article 1.1 of the Lease is hereby amended so as to provide
that Tenant's leased premises shall consist of 58,296 square feet, in lieu of
the 57,939 square feet as in the Lease now provided. Tenant's Percentage, as set
forth in Article 1.1 of the Lease is hereby deemed to be 64.8%.
ii. Article 4.1 (a) and (b) of the Lease are hereby modified, as
follows:
iii. "(a) During the first (1st) through fifth (5th) years of
the lease term, Tenant shall pay Base Rent in the amount of FIVE HUNDRED THIRTY
NINE THOUSAND TWO HUNDRED THIRTY EIGHT AND 00/100 ($539,238.00) DOLLARS per
annum, payable in equal monthly installments in the sum of FORTY FOUR THOUSAND
NINE HUNDRED THIRTY SIX AND 50/100 ($44,936.50) DOLLARS per month.
iv. (b) During the sixth (6th) through tenth (10th) years of
the lease term, Tenant shall pay Base Rent in the amount of FIVE HUNDRED NINETY
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FOUR THOUSAND SIX HUNDRED NINETEEN AND 20/100 ($594,619.20) DOLLARS per annum,
payable in equal monthly installments in the sum of FORTY NINE THOUSAND FIVE
HUNDRED FIFTY ONE AND 60/100 ($49,551.60) DOLLARS per month."
v. Article 3.1 of the Lease is hereby modified to provide that the
Tenant's Allowance shall be in the amount of SEVEN HUNDRED SEVENTY SEVEN
THOUSAND FIVE HUNDRED SIXTY TWO AND 00/100 ($777,562.00) DOLLARS.
vi. Article 45.1 of the Lease is hereby deleted in its entirety
and the following Article 45.1 is hereby inserted in its place and stead:
vii. "45.1 Provided the Tenant is not in default pur-suant to
the terms and conditions of this lease, the Tenant is hereby given the right and
privilege to renew the within lease for two (2) successive five (5) year
periods, to commence at the end of the initial term of this lease, which
renewals shall be upon the same terms and conditions as in this lease contained,
except as follows:
viii. (1) During the first five (5) year renewal
period, Tenant shall pay Base Rent in the amount of SIX HUNDRED EIGHTY FOUR
THOUSAND NINE HUNDRED SEVENTY EIGHT AND 00/100 ($684,978.00) DOLLARS per annum,
in equal installments in the sum of FIFTY SEVEN THOUSAND EIGHTY ONE AND 50/100
($57,081.50) DOLLARS per month, in the same manner as required by Article 3
hereof; and
ix. (2) During the second five (5) year renewal
period, Tenant shall pay Base Rent in the amount of SEVEN HUNDRED EIGHTY SIX
THOUSAND NINE HUNDRED NINETY SIX AND 00/100 ($786,996.00) DOLLARS per annum, in
equal installments in the sum of SIXTY FIVE THOUSAND FIVE HUNDRED EIGHTY THREE
AND 00/100 ($65,583.00) DOLLARS per month, in the same manner as required by
Article 3 hereof."
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x. Except as hereinabove provided, all other terms and conditions
shall remain in full force and effect, otherwise unmodified and unimpaired.
xi. This agreement shall be binding on the parties hereto, their
heirs, successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS:
(L.S.)
- --------------------------------- ---------------------------------
MAURICE M. WEILL,
TRUSTEE FOR BRANCHBURG PROPERTY
ATTEST: LIFECELL CORPORATION
----------------------------------------
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STATE OF NEW JERSEY )
) SS
COUNTY OF )
BE IT REMEMBERED, that on this day of , 1999, before me, the
subscriber, , personally appeared MAURICE M.
WEILL, TRUSTEE FOR BRANCHBURG PROPERTY, who, I am satisfied, is the Landlord
mentioned in the within Instrument, and thereupon he acknowledged that he
signed, sealed and delivered the same as his act and deed, for the uses and
purposes therein expressed.
STATE OF )
) SS.:
COUNTY OF )
BE IT REMEMBERED, that on this ___ day of _______________, 1999, before me,
the subscriber, _____________________, personally appeared _____________________
, who, I am satisfied, is the person who signed the within Instrument as
_______________, of LIFECELL CORPORATION, a Delaware corporation, the
Corporation named therein, and he thereupon acknowledged that the said
instrument made by the corporation and sealed with its corporate seal, was
signed and sealed with the corporate seal and delivered by him as such officer,
and is the voluntary act and deed of the corporation, made by virtue of
authority from its Board of Directors.
PREPARED BY; ROBERT K. BROWN, ESQ.
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<PAGE>
FIRST AMENDMENT TO LEASE
BY AND BETWEEN:
MAURICE M. WEILL, TRUSTEE
FOR BRANCHBURG PROPERTY
"Landlord"
-and-
LIFECELL CORPORATION,
a Delaware corporation
"Tenant"
DATED:__________
LAW OFFICES
EPSTEIN, BROWN, MARKOWITZ & GIOIA
A Professional Corporation
245 Green Village Road
P.O. Box 901
Chatham Township, NJ 07928-0901
(201) 593-4900
Fax (201) 593-4966
U:\USERS\IN\MMW\30094.016\1STAMEND.002
November 15, 1999
66
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
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<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 4102275
<SECURITIES> 0
<RECEIVABLES> 2274244
<ALLOWANCES> (41351)
<INVENTORY> 2821189
<CURRENT-ASSETS> 9483146
<PP&E> 3989064
<DEPRECIATION> (1491231)
<TOTAL-ASSETS> 12637874
<CURRENT-LIABILITIES> 3242185
<BONDS> 0
0
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<COMMON> 11909
<OTHER-SE> 298344
<TOTAL-LIABILITY-AND-EQUITY> 9395689
<SALES> 8494431
<TOTAL-REVENUES> 9514361
<CGS> 2456863
<TOTAL-COSTS> 12763276
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (5705778)
<INCOME-TAX> 0
<INCOME-CONTINUING> (5705778)
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<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (5705778)
<EPS-BASIC> (.53)
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