SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
--------------------
[x] QUARTERLY REPORT PURSUANT SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarter ended December 31, 1996
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to _____________
Commission File No. 0-18728
INTERNEURON PHARMACEUTICALS, INC.
(exact name of registrant as specified in its charter)
Delaware 04-3047911
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
One Ledgemont Center, 99 Hayden Avenue 02173
Lexington, Massachusetts (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code (617) 861-8444
(Former name,former address and former fiscal year, if changed since last
report): Not Applicable
Indicate by check 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 periods 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 ___
---
Indicate the number of shares outstanding of each of the issuer's class of
common stock, as of the latest practicable date.
Class Outstanding at February 12, 1997:
Common Stock $.001 par value 41,075,797 shares
INTERNEURON PHARMACEUTICALS, INC.
INDEX TO FORM 10-Q
<TABLE>
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PART I. FINANCIAL INFORMATION PAGE
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of December 31, 1996
and September 30, 1996.......................................................................3
Consolidated Statements of Operations for the Three Months
ended December 31, 1996 and 1995.............................................................4
Consolidated Statements of Cash Flows for the Three Months ended
December 31, 1996 and 1995 ..................................................................5
Notes to Unaudited Consolidated Financial Statements..................................................6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations...................................................................7
PART II. OTHER INFORMATION
Item 5. Other Information .........................................................................16
Item 6. Exhibits and Reports on Form 8-K...........................................................16
SIGNATURES...........................................................................................17
</TABLE>
2
INTERNEURON PHARMACEUTICALS, INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(Dollar amounts in thousands except per share data)
<TABLE>
<CAPTION>
December 31, September 30,
1996 1996
------------ -------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $127,620 $145,901
Marketable securities 19,192 17,068
Accounts receivable 3,001 4,338
Inventories 7,483 8,376
Prepaids and other current assets 1,859 1,324
----------- ------------
Total current assets 159,155 177,007
Marketable securities 22,791 6,639
Property and equipment, net 2,808 2,689
Other assets 125 103
------------ -------------
$184,879 $186,438
============ =============
LIABILITIES
Current liabilities:
Accounts payable $ 1,894 $ 2,575
Accrued expenses 11,852 11,604
Deferred revenue 8,333 6,921
Current portion of capital lease obligations 663 661
---------- -------------
Total current liabilities 22,742 21,761
Long-term portion of capital lease obligations 357 526
Other long-term liabilities 21 16
Minority interest 19,695 19,373
STOCKHOLDERS' EQUITY
Preferred stock; $.001 par value, authorized 5,000,000 shares: Series B, 239,425
shares issued and outstanding at December 31, 1996 and September 30, 1996,
(liquidation preference at December 31, 1996 $3,034) 3,000 3,000
Series C, 5,000 shares issued and outstanding at December 31, 1996
and September 30, 1996 (liquidation preference at
December 31, 1996 $503) 500 500
Common stock,$.001 par value, 60,000,000 shares authorized;
41,073,297 and 41,015,969 shares issued and outstanding at
December 31, 1996 and September 30, 1996, respectively 41 41
Additional paid-in capital 248,232 247,999
Accumulated deficit (109,709) (106,778)
---------- -------------
Total stockholders' equity 142,064 144,762
---------- -------------
$184,879 $186,438
============ =============
The accompanying notes are an integral part of these unaudited consolidated financial statements.
</TABLE>
3
INTERNEURON PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
For the three months ended December 31, 1996 and 1995
(Unaudited)
(Amounts in thousands except per share data)
<TABLE>
<CAPTION>
Three months ended December 31,
---------------------------------------
1996 1995
--------- ---------
<S> <C> <C> <C>
Revenues:
Product revenue $13,711 $ -
Contract and license fees 3,981 5,344
--------- -----
Total revenues 17,692 5,344
Costs and expenses:
Cost of product revenue 9,904 -
Research and development 7,518 3,126
Selling, general and administrative 5,517 2,711
Purchase of in-process research and development - 2,150
--------- --------
Total costs and expenses 22,939 7,987
Net loss from operations (5,247) (2,643)
Investment income, net 2,589 434
Minority interest (273) (974)
---------- ---------
Net loss ($2,931) ($3,183)
========= =========
Net loss per common share ($0.07) ($0.09)
========= =========
Weighted average common
shares outstanding 41,020 33,524
========= =========
The accompanying notes are an integral part of these unaudited consolidated financial statements.
</TABLE>
4
INTERNEURON PHARMACEUTICALS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the three months ended December 31, 1996 and 1995
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three months ended December 31,
---------------------------------
1996 1995
------------ -------------
<S> <C> <C>
Cash flows from operating activities:
Net loss ($2,931) ($3,183)
Adjustments to reconcile net loss to net cash
(used) provided by operating activities:
Depreciation and amortization 318 190
Loss on disposal of fixed assets - 2
Minority interest in net income/loss of
consolidated subsidiaries 273 974
Purchase of in-process research and development - 2,082
Noncash compensation 171 283
Change in assets and liabilities:
Accounts receivable 1,337 (9)
Other assets (557) (1,266)
Inventories 893 -
Accounts payable (681) 436
Deferred revenue 1,412 -
Accrued expenses and other liabilities 354 259
--------- -----------
Net cash provided (used) by operating activities 589 (232)
--------- -----------
Cash flows from investing activities:
Capital expenditures (438) ( 77)
Purchase of marketable securities (23,124) (16,462)
Proceeds from maturities and sales of
marketable securities 4,849 16,947
Proceeds from disposal of fixed assets - 9
--------- -----------
Net cash provided (used) by investing activities (18,713) 417
--------- -----------
Cash flows from financing activities:
Net proceeds from issuance of stock and other
equity transactions 10 1,303
Principal payments of capital lease obligations (167) ( 75)
----------- ------------
Net cash provided (used) by financing activities (157) 1,228
----------- ---------
Net change in cash and cash equivalents (18,281) 1,413
Cash and cash equivalents at beginning of period 145,901 16,781
--------- -----------
Cash and cash equivalents at end of period $127,620 $18,194
========= ===========
The accompanying notes are an integral part of these unaudited
consolidated financial statements.
</TABLE>
5
INTERNEURON PHARMACEUTICALS, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
A. Basis of Presentation:
The consolidated financial statements included herein have been prepared
by Interneuron Pharmaceuticals, Inc. without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to such rules and regulations. In the opinion of management,
the accompanying unaudited consolidated financial statements include all
adjustments (consisting only of normal recurring adjustments) necessary to
present fairly the consolidated financial position, results of operations and
cash flows of the Company. The consolidated financial statements included herein
should be read in conjunction with the audited consolidated financial statements
and the notes thereto included in the Company's Form 10K for the fiscal year
ended September 30, 1996.
The consolidated financial statements include the accounts of Interneuron
Pharmaceuticals, Inc. ("Interneuron" or the "Company") and its subsidiaries (the
"Subsidiaries"), Progenitor, Inc. ("Progenitor"), Transcell Technologies, Inc.
("Transcell"), Intercardia, Inc. ("Intercardia"), and InterNutria, Inc.
("InterNutria"). All significant intercompany activity has been eliminated.
B. Significant Accounting Policies:
Certain prior year amounts have been reclassified to conform with fiscal
1997 classifications.
C. Agreements:
In December 1996, Progenitor entered into an agreement with Amgen, Inc.
("Amgen") (the "Amgen Agreement") , granting Amgen certain exclusive rights for
the development and commercialization of products using Progenitor's leptin
receptor technology. Amgen paid Progenitor a $500,000 initial license fee in
January 1997, which was reflected in contract and license fee revenue in the
three month period ended December 31, 1996. Progenitor may also receive certain
development and regulatory milestone payments and potential royalties on sales.
Amgen also agreed to purchase Progenitor Common Stock in the event of a
Progenitor initial public offering.
In December 1996, Intercardia executed an agreement with BASF Pharma/Knoll
AG ("Knoll") ("the Knoll Collaboration") to provide for the development,
manufacture and marketing of bucindolol in all countries with the exception of
the United States and Japan (the "Territory"). The Knoll Collaboration relates
to both the twice-daily bucindolol formulation and the once-daily bucindolol
formulation currently under development. Under the terms of the Knoll
Collaboration, Knoll made a $2,143,000 payment to CPEC, Inc. ("CPEC",
Intercardia's majority-owned subsidiary, of which Interneuron owns the minority
portion) in December 1996, which was recognized as contract and license fee
revenue in the three month period ended December 31, 1996, and a $1,000,000
payment
6
due to CPEC in January 1997. Knoll will make future payments to CPEC upon the
achievement of product approval and sales milestones.
Knoll and Intercardia will share the development and marketing costs of
bucindolol in the Territory. In general, Knoll shall pay approximately 60% of
the development and marketing costs prior to product launch and Intercardia
shall pay approximately 40% of such costs, subject to certain maximum dollar
limitations. CPEC will be entitled to a royalty equal to 40% of net profits, as
defined in the Knoll Collaboration, and would be responsible for, and pay to
Knoll, 40% of any net loss, as defined.
D. Inventories
Inventories consisted of: December 31, September 30,
1996 1996
-------------- --------------
Raw materials $4,244,000 $5,420,000
Finished goods 3,239,000 2,956,000
---------- ----------
$7,483,000 $8,376,000
========== ==========
Raw materials consist primarily of dexfenfluramine drug substance and
finished goods consist primarily of finished Redux(TM).
E. Subsequent Events
In February 1997, the Company announced that its Board of Directors has
authorized it to purchase from time to time through open market transactions up
to 200,000 shares of the common stock of Intercardia. As of February 13, 1997,
the Company owned 59.6% of Intercardia's 6,743,000 outstanding shares of common
stock. A purchase of Intercardia shares will result in a charge to the
consolidated results of operations of Interneuron.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations:
7
Statements in this Form 10-Q that are not descriptions of historical facts are
forward-looking statements that are subject to risks and uncertainties. Actual
results could differ materially from those currently anticipated due to a number
of factors, including those set forth in the Company's SEC filings under "Risk
Factors", including, in particular risks relating to the commercialization of
Redux, such as marketing, competition, safety, regulatory, patent, product
liability, supply and other risks; uncertainties relating to clinical trials;
manufacturing and supply risks; the early stage of products under development;
risks relating to product launches and managing growth; government regulation,
patent risks, dependence on third parties and competition.
The following discussion should be read in conjunction with the unaudited
Consolidated Financial Statements and Notes thereto appearing elsewhere in this
report. Unless the context indicates otherwise, all references to the Company
include Interneuron and its Subsidiaries.
Redux
On April 29, 1996, the Company's first pharmaceutical product, Redux
(dexfenfluramine hydrochloride capsules) C-IV received clearance by the U.S.
Food and Drug Administration ("FDA") for marketing as a twice-daily prescription
therapy to treat obesity. The approved indication is for the management of
obesity, including weight loss and maintenance of weight loss in patients on a
reduced calorie diet who have a body mass index ("BMI") of greater than or equal
to 30 kg/m2 or greater than or equal to 27 kg/m2 in the presence of other risk
factors, such as hypertension, diabetes and elevated cholesterol. Under license
and co-promotion agreements, Redux is being marketed in the U.S. by Wyeth-Ayerst
Laboratories ("Wyeth- Ayerst"), a division of American Home Products Corp.,
("AHP"), and co-promoted by the Company.
The Company's revenues relating to Redux are currently primarily derived
from: (1) royalties paid by AHP to the Company based on the net sales of Redux
capsules by AHP to distributors (2) sales of Redux capsules to AHP and (3)
financial support of the Company's sales force provided by AHP.
The Company's license agreement with AHP provides for royalties to the
Company consisting of (i) "base" royalties equal to 11.5% of AHP's net sales,
(an amount equal to the royalty required to be paid by the Company to Les
Laboratoires Servier ("Servier"), a French pharmaceutical company from which the
Company obtained U.S. rights to Redux to treat abnormal carbohydrate craving and
obesity,) and (ii) "additional" royalties based on net sales of Redux by AHP.
The percentage of "additional" royalties varies depending upon (x) the status of
Redux as a scheduled or descheduled drug and (y) whether or not the Company
supplies the finished dosage formulation of Redux to AHP. Redux is currently
scheduled as a controlled substance, and the Company manufactures the finished
dosage formulation of the drug. The Company recognizes royalty revenue and
associated expense in the fiscal quarter when AHP reports to Interneuron AHP's
shipments to distributors. Accordingly, such revenue is reported by the Company
in the quarter following actual shipments by AHP.
8
The following sets forth the currently applicable additional royalties on
net sales payable to the Company, on an annual contract basis, based on (i) the
status of dexfenfluramine as a scheduled drug and (ii) the Company supplying
Redux to AHP:
First $50,000,000 5.0%
Next $100,000,000 8.0%
Over $150,000,000 10.0%
Royalty rates are subject to a 50% reduction if generic drug competition exceeds
a 10% market share in two consecutive quarters.
Under a co-promotion agreement with Wyeth-Ayerst, the Company's sales force
is promoting Redux to selected specialists, in return for financial support of
the sales force and a percentage of resulting revenues less certain expenses.
The copromotion agreement with AHP calls for a reduction of the Redux sales
force costs paid by AHP to Interneuron from 100% during the first year of the
agreement to 50% during the second year of the agreement. Total maximum payments
from AHP will be reduced to approximately $1,650,000 for the twelve month period
beginning June 1997 from approximately $3,300,000 for the twelve month period
which commenced in June 1996. Under the agreement, total payments to the Company
in connection with sales force support and profit sharing will not exceed
$10,000,000 per year. The copromotion agreement is cancellable by Wyeth-Ayerst
under certain conditions.
The Company has a manufacturing agreement with Boehringer Ingelheim
Pharmaceuticals, Inc. ("Boehringer") under which Boehringer manufactures
finished dosage formulation of Redux capsules on behalf of the Company for sale
to AHP. This agreement obligates Boehringer to provide, and the Company to
purchase, manufactured Redux capsules to the extent defined in the agreement,
through the current contract expiration date of December 31, 1998. At the
expiration or termination of the agreement, the Company would be obligated to
purchase from Boehringer any unused manufacturing materials, work in process, or
finished product and to assume any unfilled Boehringer purchase commitments that
could not be canceled prior to the expiration or termination of the agreement.
The Company recognizes revenue from the sale of these capsules upon acceptance
by AHP, typically 45 days after shipment.
Included in the FDA-approved labeling for Redux are references to certain
risks that may be associated with dexfenfluramine and which were highlighted
during the FDA's review of the drug. One issue relates to whether there is an
association between appetite suppressants, including dexfenfluramine, and the
development of primary pulmonary hypertension ("PPH"), a rare but serious lung
disorder estimated to occur in the general population at one to two cases per
million adults per year. An epidemiologic study conducted in Europe known as
IPPHS (International Primary Pulmonary Hypertension Study) examined risk factors
for PPH and showed that among other factors, weight reduction drugs, including
dexfenfluramine, and obesity itself were associated with a higher risk of PPH.
In the final report of IPPHS, published in the New England Journal of Medicine
(August 29, 1996), the authors estimated yearly occurrence of PPH for patients
taking appetite suppressants for greater than three months duration to be
between 23 and 46 cases per million patients per year. The revised labeling for
Redux discloses this revised estimate.
9
The FDA-approved labeling for Redux also includes discussion as to whether
dexfenfluramine is associated with certain neurochemical changes in the brain.
Certain studies conducted by third parties related to this issue purport to show
that very high doses of dexfenfluramine cause prolonged serotonin depletion in
certain animals, which some researchers believe is an indication of
neurotoxicity. The Company has presented data relating to the lack of
neurocognitive effects in patients taking Redux to the FDA and believes that, as
demonstrated in human trials, these animal studies are clinically irrelevant to
humans because of pharmacokinetic differences between animals and humans and
because of the high dosages used in the animal studies. The Company and
Wyeth-Ayerst have agreed with the FDA to conduct a Phase 4, or post marketing,
study of Redux. Approximately 50% of the costs of the Phase 4 study, which is
expected to be conducted over an approximately two to three year period, is
expected to be paid by AHP.
The use patent on dexfenfluramine expires in mid 2000. The Company believes
it is entitled under the Waxman-Hatch Act to a minimum three year period of
exclusivity, during which applications for generic versions of the drug may not
be approved. Although the Company has applied for a five year period of
exclusivity and for patent extension, there can be no assurance of receipt of
such exclusivity or extension or of a timely decision. Redux may be subject to
substantial competition. AHP also sells Pondimin to treat obesity. In addition,
other drugs, including sibutramine, for which an NDA has been filed, and
technologies are under regulatory review or development to treat obesity.
Inventories of $7,483,000 at December 31, 1996 consist primarily of
dexfenfluramine drug substance and finished Redux capsules. Inventory levels
depend to a large extent on sales forecasts provided by AHP, production planning
by the Company, and production capabilities of Boehringer. There can be no
assurance that Boehringer will be able to manufacture product in adequate
quantities or on a timely basis, or that AHP's sales forecasts and the Company's
production planning will be accurate, which may result in higher inventory costs
to the Company or inadequate or excessive supplies of the product. In addition,
there can be no assurance that the manufacture of the capsules and their sale to
AHP will result in profits to Interneuron. There may be potential seasonality
associated with Redux inventories and revenues which the Company is not
currently able to determine. AHP pays the Company for certain portions of
dexfenfluramine drug substance prior to its incorporation into the manufacturing
process. Such payments are included in, and are the primary components of, the
deferred revenue balance of $8,333,000 at December 31, 1996.
Results of Operations
Product revenue of $13,711,000 in the three month period ended December
31,1996 consists primarily of royalty revenue of approximately $6,800,000 from
AHP based upon AHP-reported net sales of Redux and approximately $6,800,000 of
revenue from the Company's sale of Redux capsules to AHP. The Company recognizes
Redux royalty revenue when net sales are reported to the Company by AHP, which
occurs in the quarter after AHP shipments of Redux to distributors.
Contract and license fee revenue decreased $1,363,000, or 26%, from
$5,344,000 for the three month period ended December 31, 1995 to $3,981,000 for
the three month period ended December 31,1996. During the three month period
ended December 31, 1996, contract revenue consisted primarily of approximately
$2,100,000 Intercardia received from an initial payment pursuant to the Knoll
Collaboration, $500,000 due to Progenitor pursuant to the Amgen Agreement and
$825,000 Interneuron received pursuant to the Copromotion Agreement with Wyeth
Ayerst to support the Interneuron Redux
10
sales force. During the three month period ended December 31,1995, contract and
license fee revenue consisted primarily of $5,000,000 Intercardia received from
an initial payment pursuant to the Development and Marketing Collaboration and
License Agreement between Astra Merck Inc.("Astra Merck"), Intercardia, Inc.,
and CPEC, Inc. (" the Astra Merck Collaboration").
Total costs and expenses increased $14,952,000, or 187%, from
$7,987,000 for the three month period ended December 31,1995 to $22,939,000 for
the three month period ended December 31,1996. Of this increase, $9,904,000, or
66% consists of cost of product revenue which did not exist in the comparable
period of the prior fiscal year. Cost of product revenue is comprised primarily
of the cost of Redux capsules and dexfenfluramine drug substance sold to AHP and
royalties paid to Servier based upon AHP's reported net sales of Redux. Total
costs and expenses during the three month period ended December 31, 1995
included a charge of $2,150,000 for InterNutria's acquisition of technology and
know-how related to PMS Escape(TM) which would be paid for by the issuance of
the Company's Common Stock. In December 1996, the Company issued approximately
55,000 shares of Common Stock as the first of two payments for InterNutria's
acquisition of this technology. The second $1,200,000 installment will be paid
in December 1997 through an additional issuance of the Company's Common Stock.
Research and development expenses increased $4,392,000, or 140%, from
$3,126,000 for the three month period ended December 31,1995 to $7,518,000 for
the three month period ended December 31,1996. This increase is primarily the
result of expenses relating to two pivotal Phase 3 citicoline trials, the
initiation of a pivotal Phase 2/3 pagoclone clinical trial, certain
post-approval clinical expenses relating to Redux and additional staffing and
related expenses at the Subsidiaries. Research and development expenses include
only a relatively small amount for bucindolol as a substantial portion of the
non-government sponsored development expenses of bucindolol have been assumed
and are being paid by Astra Merck.
Selling, general and administrative expenses increased $2,806,000, or
104%, from $2,711,000 for the three month period ended December 31,1995 to
$5,517,000 for the three month period ended December 31,1996. The largest
portion of the increase is due to approximately $1,843,000 of the Company's cost
for its Redux sales force and promotional expenses incurred by the Company for
Melzone, a low-dose form of melatonin as a dietary supplement for normal,
restful sleep, and by InterNutria for its products. Also contributing to the
increase in fiscal 1997 are costs resulting from additional staffing,
consultants and insurance relating to the Company's growth.
Investment income, net of interest expense, increased $2,155,000, or
497%, from $434,000 for the three month period ended December 31, 1995 to
$2,589,000 for the three month period ended December 31,1996. This increase is
due to significantly higher invested balances of cash, cash equivalents and
marketable securities resulting primarily from funds received from public
offerings in fiscal 1996 by Interneuron and Intercardia.
Primarily as a result of the foregoing, the Company incurred a net loss
of ($2,931,000), or ($.07) per share, for the three month period ended December
31, 1996 compared to a net loss of ($3,183,000), or ($.09) per share, for the
three month period ended December 31, 1995. Weighted average common shares
increased in the three month period ended December 31, 1996 reflecting
additional equity issuances.
11
The Company from time to time explores various technology, product or
company acquisitions and/or financing opportunities and is currently engaged in
discussions relating to such opportunities. Any such initiatives may involve the
issuance of shares of Interneuron's Common Stock and/or financial commitments to
fund product development, either of which may adversely affect the Company's
consolidated financial condition or results of operations.
Liquidity and Capital Resources
Cash, Cash Equivalents and Marketable Securities:
At December 31, 1996, the Company had cash, cash equivalents and
marketable securities aggregating $169,603,000, compared to $169,608,000 at
September 30, 1996. Cash, cash equivalents and marketable securities remained
constant primarily due to the $2,931,000 net loss incurred in the three months
ended December 31, 1996 adjusted for certain noncash expenses and cash being
provided by a decrease in accounts receivable and an increase in deferred
revenue resulting primarily from payments by AHP.
Clinical Studies:
The Company is incurring substantial expenditures for product
development and clinical trials, including expenses required under collaborative
agreements. In particular, the Company is performing two pivotal Phase 3
clinical trials of citicoline (along with other supportive trials), for
treatment of stroke, one of which is expected to extend into fiscal 1998. The
costs of the clinical trials and related studies and the preparation of the NDA
are estimated, based upon current trial protocols, to aggregate approximately
$17,500,000, of which approximately $2,500,000 has been paid through December
31, 1996. The Company is unable to predict with certainty the costs of any
related or additional studies which will depend upon FDA requirements. Further,
in the event the Company markets citicoline directly, significant additional
funds would be required for manufacturing, distribution, and selling efforts.
The Company has begun to incur substantial costs to develop pagoclone
for which a Phase 2/3 trial commenced in November 1996. The Company has
estimated the total costs of all currently planned clinical studies, license
fees to Rhone-Poulenc Rorer Pharmaceuticals, Inc., and NDA preparation for
pagoclone to be approximately $33,000,000, which will be incurred over the next
several years. This amount does not include funds that will be required to
manufacture and market pagoclone.
In December 1996, the Company entered into an agreement with Algos
Pharmaceutical Corporation to collaborate in the development and
commercialization of LidodexNS[TM], which combines two drugs that are currently
marketed for other indications. This combination product is in pre-clinical
development for the acute intra-nasal treatment of migraine headaches. The
development of this and other products, including those which may be acquired by
the Company in the future will require substantial additional funds.
There can be no assurance that results of ongoing current preclinical
or clinical trials will be successful, that additional trials will not be
required, that any drug under development will receive FDA approval in a timely
manner
12
or at all, or that such drug could be successfully manufactured or in accordance
with good manufacturing practice regulations marketed in a timely manner, or at
all, any of which could materially adversely affect the Company.
Subsidiaries:
Intercardia
-----------
Pursuant to the Astra Merck Collaboration, Intercardia has agreed to
pay Astra Merck $10,000,000 in December 1997 and up to $11,000,000 for one-third
of product launch costs for bucindolol incurred beginning when Intercardia files
an NDA with the FDA for the twice-daily formulation of bucindolol and continuing
through the first 12 months subsequent to the first commercial sale of the
formulation. In the event Intercardia elects not to make these payments, the
royalties payable by Astra Merck to Intercardia would be substantially reduced.
There can be no assurance of the success of the Beta-blocker Evaluation of
Survival Trial (the "BEST Study") or that bucindolol will be successfully
commercialized. A substantial portion of the bucindolol development costs are
being assumed and paid by the National Institutes of Health, the Department of
Veterans Affairs and Astra Merck.
Pursuant to the Knoll Collaboration (see Note C of Notes to Unaudited
Consolidated Financial Statements), Intercardia is responsible for approximately
40% of the development and marketing costs of bucindolol in the Territory, which
includes all countries other than the United States and Japan, subject to
certain maximum dollar limitations. The Company's portion of development and
clinical trial costs for the Territory is estimated to be up to $10,000,000.
Intercardia is also responsible for approximately 40% of the once-daily
development costs which relate to development solely for the Territory and
approximately 67% of once-daily development costs which have a worldwide
benefit.
In May 1996, an FDA advisory committee met and discussed the use of
carvedilol, a competitive drug being developed by SmithKline Beecham for the
treatment of congestive heart failure ("CHF"), but recommended against its
approval. Another advisory panel meeting has been scheduled to review carvedilol
on February 27, 1997 and there can be no assurance that carvedilol will not be
approved for treatment of CHF in the United States.
Progenitor
----------
13
In December 1996, Progenitor entered into an agreement with Amgen,
granting Amgen certain exclusive rights for the development and
commercialization of products using Progenitor's leptin receptor technology.
Amgen paid Progenitor a $500,000 initial license fee in January 1997, which was
reflected in contract and license fee revenue in the three month period ended
December 31, 1996. Progenitor may also receive certain development and
regulatory milestone payments and potential royalties on sales. Amgen also
agreed to purchase Progenitor Common Stock in the event of a Progenitor initial
public offering.
General
-------
Interneuron is currently funding operations of Progenitor, Transcell
and InterNutria. Expenses of the Subsidiaries, including those required under
collaboration agreements, constitute a significant part of the Company's overall
expenses.
In February 1997, the Company announced that its Board of Directors has
authorized it to purchase from time to time through open market transactions up
to 200,000 shares of the common stock of Intercardia. As of February 13, 1997,
the Company-owned 59.6% of Intercardia's 6,743,000 outstanding shares of common
stock. Based upon Intercardia's closing price of $18.00 on February 12, 1997,
the Company could expend up to $3,600,000 if it were to purchase all 200,000
shares. A purchase of Intercardia shares will result in a charge to the
consolidated results of operations of Interneuron.
Accounts receivable of $3,001,000 at December 31, 1996 consists
primarily of Intercardia's receivable from Astra Merck relating to Astra Merck's
funding of certain costs of the BEST Study, the Company's receivable from AHP
and Progenitor's receivable from Amgen.
Accrued expenses of $11,852,000 at December 31, 1996 consist primarily
of obligations related to clinical trials and sponsored research, consultants
and other service providers, compensation and other items.
The Company's strategy includes evaluation of various technology,
product or company acquisition and/or financing opportunities (including private
placements and initial and follow-on equity offerings) and the Company and
certain of its subsidiaries are currently engaged in discussions relating to
such opportunities. Any such initiatives may involve the issuance of securities
of Interneuron or its subsidiaries and/or financial commitments and would result
in increased expenses for research and development, on a consolidated basis.
While the Company believes it has sufficient cash for currently planned
expenditures in fiscal 1997, it may seek additional funds through other equity
and/or debt finances and corporate collaborations
14
to provide working capital financing and funding for new business opportunities
and future growth. In addition, certain subsidiaries are exploring various
financings (including issuances of securities of the subsidiaries, possibly in
combination with securities of Interneuron, in public offerings or private
placements), collaborations or business combinations. If such efforts are not
successful, certain activities at these subsidiaries may be reduced.
Although Interneuron may acquire additional equity in subsidiaries
through participation in financings, purchases from third parties, including
open market purchases and conversion of inter-company debt, equity financings by
a subsidiary will likely reduce Interneuron's percentage ownership of that
subsidiary and funds held by the subsidiaries will generally not be available to
Interneuron. The Company's goal is for its subsidiaries to establish independent
operations and financing through corporate alliances, third-party financings,
mergers or other business combinations, with Interneuron generally retaining an
ongoing equity interest. The nature of any such transaction is expected to vary
depending on the business and capital needs of each subsidiary and the state of
development of their respective technologies or products.
15
PART II - OTHER INFORMATION
Item 5. Other Information
On February 12, 1997, a registration statement relating to the
resale by certain stockholders of Interneuron of an aggregate of
1,555,422 shares of Interneuron's Common Stock (including 500,000
shares underlying warrants) was declared effective by the
Securities and Exchange Commission.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.87 - Lease dated February 5, 1997 between Registrant and
Ledgemont Realty Trust
27 - Financial Data Schedule
(b) Reports on Form 8-K
In January 1997, the Company filed a report on Form 8-K dated December 19,
1996 reporting information under Item 5 thereof.
16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERNEURON PHARMACEUTICALS, INC.
Date: February 14, 1997 By: /s/ Glenn L. Cooper
------------------------------------
Glenn L. Cooper, M.D., President
and Chief Executive Officer
(Principal Executive Officer)
Date: February 14, 1997 By: /s/ Thomas F. Farb
------------------------------------
Thomas F. Farb,
Executive Vice President, Finance
Chief Financial Officer and Treasurer
Date: February 14, 1997 By: /s/ Dale Ritter
------------------------------------
Dale Ritter
Vice President, Corporate Controller
(Principal Accounting Officer)
17
LEASE
-----
ARTICLE I
------------------
Fundamental Lease Provisions
----------------------------
1.1 Reference Subjects. Each reference in this Lease to any of the
following subjects shall be construed to incorporate the information stated for
that subject in this Section.
DATE: February 5, 1997
PREMISES: Portions of the Building totaling
approximately 43,268 rentable square feet
described on Appendix Al attached, (consisting
of approximately 22,753 rentable square feet
on the 200 level of the East Wing (the
"Expansion Premises"), approximately 9,356
rentable square feet on the 100 level of the
East Wing, currently leased to J. Howard and
scheduled to be delivered to Tenant as
described in Section 2.3 (the "Second
Expansion Premises"), approximately 1,000
square feet of storage space on the 100 level
in the parking garage (the "Storage Space")
and approximately 10,159 rentable square feet
on the 300 Level of the East Wing (the
"Existing Premises")). The areas set forth
herein are determined under the Standard
Method of Floor Measurement for Office
Buildings published by The Real Estate Board
of New York, Inc.
BUILDING: The Building complex known as Ledgemont
Development Center and consisting of the
"Richards House," "Building B," "B Annex,"
"Building C," "East Wing," the parking garage
and other appurtenances thereto located at 128
Spring Street, Lexington, Massachusetts. The
Building consists of approximately 182,317
rentable square feet, of which the East Wing
consists of approximately 50,883 rentable
square feet.
LANDLORD: LEDGEMONT REALTY TRUST u/d/t dated December
12, 1984
ORIGINAL ADDRESS c/o The Beal Companies
OF LANDLORD: 177 Milk Street
Boston, Massachusetts 02109
LANDLORD'S MANAGING The Beal Companies
AGENT: 177 Milk Street
Boston, Massachusetts 02109
TENANT: Interneuron Pharmaceuticals, Inc., a Delaware
corporation
ORIGINAL ADDRESS 99 Hayden Avenue
OF TENANT: Lexington, Massachusetts 02173
INITIAL TERM: Five (5) years and one and one-half months
COMMENCEMENT DATE: March 1, 1997, or, if later, the date on which
both (i) Landlord has delivered possession of
the Expansion Premises to Tenant and (ii)
Landlord has given Tenant 14 days' advance
notice of when possession of the Expansion
Premises will be delivered.
RENT COMMENCEMENT DATE: One and one-half months after the Commencement
Date, estimated to be April 15, 1997.
ENDING DATE: April 14, 2002, subject to extension as set
forth herein
-2-
ANNUAL FIXED RENT--
INITIAL TERM:
<TABLE>
<CAPTION>
Commencement Date to Delivery of Delivery of Second
Second Expansion Premises Expansion Premises to
3/31/2002
<S> <C> <C>
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
Rent Per Square Foot of Existing Premises and $17.00 $17.00
Expansion Premises
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
(1) $559,504.00 $559,504.00
Rent For Existing Premises and Expansion Premises
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
Rent Per Square Foot of Storage Space $6.00 $6.00
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
(2) $6,000.00 $6,000.00
Rent For Storage Space
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
Rent Per Square Foot of Second Expansion Premises $14.00
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
(3) $130,984.00
Rent for Second Expansion Premises
- ----------------------------------------------------- ------------------------------------ ---------------------------
- ----------------------------------------------------- ------------------------------------ ---------------------------
(1+2+3) $565,504.00 $696,488.00
TOTAL RENT
</TABLE>
EXTENSION TERM: Five (5) Lease years
ANNUAL FIXED RENT -- 95% of Fair Market Rent as provided in
EXTENSION TERM: Section 4.1.2, but never less than the
Annual Base Rent payable during the
year immediately preceding the
beginning of the Extension Term.
MINIMUM NET WORTH: N/A
SECURITY DEPOSIT: None
-3-
TENANT IMPROVEMENT
ALLOWANCE: $392,000
PARKING SPACES: Ninety (90) spaces until delivery of
the Second Expansion Premises and One
Hundred Twenty (120) spaces thereafter
TENANT'S OPERATING 64.7% until delivery of the Second
PERCENTAGE SHARE: Expansion Premises and 83.1% thereafter
TENANT'S TAX PERCENTAGE: 18.5% until delivery of the Second
SHARE Expansion Premises and 23.8% thereafter
Tenant's Operating Percentage Share and
Tenant's Tax Percentage Share shall not
increase as a result of Landlord's
remeasurement of the Building.
PERMITTED USES: Office use and all lawful uses related
thereto.
PUBLIC LIABILITY INSURANCE: $1,500,000
BROKER: Whittier Partners
APPENDICES: Appendix A - Premises Sketch Plan
Appendix B - Special Maintenance and
Operation Requirements
Appendix C - Initial Hazardous
Substances or Materials per Section
5.1.8
Appendix D - Tenant Work Insurance
Schedule
Appendix E - Description of W.R. Grace
Space
Appendix F - Cleaning Specifications
-4-
ARTICLE II
----------
Premises and Term
-----------------
2.1 Premises. Landlord hereby leases to Tenant, and Tenant hereby leases
from Landlord, the Premises identified in Section 1.1, subject to and with the
benefit of the terms, covenants and conditions of this Lease, and of rights,
agreements, easements and restrictions of record applicable to the property of
which the Premises are a part, all of which Tenant shall perform and observe
insofar as the same are applicable to the Premises. Subject to the reasonable
rules and regulations established by Landlord, Tenant shall have the appurtenant
rights in common with others to use (a) the exterior walkways, sidewalks and
driveways necessary for access to the Premises; and (b) up to the number of
Parking Spaces as set forth in Section 1.1 for the non-exclusive use of Tenant
and Tenant's employees and business invitees in areas located on-site designated
from time to time by Landlord.
Tenant, at its sole cost and expense, shall be permitted to furnish the
existing reception area in the East Wing (the "Reception Area") in the manner
consistent with its condition as of the date hereof and to staff such Reception
Area with a receptionist, so long as such receptionist provides general
reception services to all tenants of the East Wing. No additional rent shall be
charged for Tenant's use of the Reception Area in accordance with the foregoing.
Landlord excepts and reserves the right from time to time (a) to install,
use, maintain, repair, replace and relocate within the Premises and other parts
of the Building, or either, pipes, meters and other equipment, machinery,
apparatus and appurtenant fixtures; and (b) to make additions to the Building
and alter or relocate any entranceways, common areas or other facilities
(including without limitation all access driveways, walkways and parking areas)
serving the Premises, provided in either case that there shall be no reduction
in the useable area of the Premises except to a de minimis extent. Landlord
shall restore at Landlord's expense any part of the Premises disturbed by such
acts of Landlord pursuant to this paragraph and there shall be no reduction in
the services or parking spaces available to Tenant hereunder. In performing any
such work, Landlord shall not unreasonably interfere with Tenant's business
operations at the Premises.
2.2 Acceptance of Premises. Tenant acknowledges that it currently occupies
the Existing Premises and is satisfied with the condition thereof. Tenant
further acknowledges that neither Landlord nor any agent or employee of Landlord
has made any representations or warranties concerning the Premises, their
condition or this Lease, except as set forth herein.
-5-
2.3 Delivery of Possession. Landlord shall endeavor to cause possession of
the Expansion Premises to be delivered to Tenant on or before March 1, 1997. If
there is a holding over or retention of possession of the Expansion Premises, or
any portion thereof, by any prior tenant or occupant, or if Landlord shall
otherwise be unable to deliver possession of the Expansion Premises on March 1,
1997 due to causes beyond its reasonable control, then Landlord shall not be
subject to any liability for the failure or delay in giving possession and such
failure to give possession shall in any other respect affect the validity of
this Lease (including the date on which the Term ends) or any other of the
obligations of Tenant, except that the term of this Lease shall not commence
until Landlord has delivered the Expansion Premises to Tenant vacant and
broom-clean and given Tenant 14 days' prior written notice of the date on which
possession of the Expansion Premises will be delivered. If the delivery of the
Expansion Premises is delayed beyond July 1, 1997 for causes not attributable in
whole or in part to the action or inaction of Tenant, Tenant may give a 14-day
termination notice to Landlord. This Lease shall terminate 14 days after the
giving of such notice if the Expansion Premises are not delivered to Tenant
before such time.
Landlord shall endeavor to deliver the Second Expansion Premises to Tenant
on September 1, 1997. If there is a holding over or retention of possession of
the Second Expansion Premises, or any portion thereof, by any prior tenant or
occupant, or if Landlord shall otherwise be unable to deliver possession of the
Second Expansion Premises on September 1, 1997 due to causes beyond its
reasonable control, then Landlord shall not be subject to any liability for the
failure or delay in giving possession, except that the Second Expansion Premises
shall not be added to the Premises until the Second Expansion Premises are
delivered to Tenant vacant and in broom-clean condition but no earlier than
September 1, 1997. No such failure to give possession shall in any other respect
affect the validity of this Lease (including the date on which the Term ends) or
any other of the obligations of Tenant. Landlord hereby consents to a sublease
by Tenant of the Second Expansion Premises to J. Howard, Inc., provided Tenant
furnishes notice and a copy of such sublease within 30 days after execution
thereof. If Tenant executes such a sublease, the Second Expansion Premises shall
be deemed delivered upon expiration of the J. Howard, Inc. lease and Landlord
shall be excused from the obligation to deliver the Second Expansion Premises
vacant and in broom-clean condition.
2.4 Term. This Lease is for an initial Term beginning on the Commencement
Date and ending on the Ending Date as set forth in Section 1.1.
2.5 Option to Extend. The Lease may be extended for the Extension Term set
forth in Section 1.1 (and Annual Fixed Rent for such Extension Term determined)
in accordance with Section 4.1.2, time being of the essence to such exercise, so
long as at the time of such notice and at the beginning of the Extension Term
Tenant is not in
-6-
default beyond any applicable notice and grace period. All references to the
Term shall mean the Initial Term as it may be extended by any Extension Term.
2.6 Existing Lease Extension. Tenant currently occupies the Existing
Premises in the Building pursuant to a Lease with Landlord dated as of November
1, 1991 (the "Existing Lease"). The term of the Existing Lease shall be extended
until the day before the Rent Commencement Date hereunder. Upon the Rent
Commencement Date, the Existing Lease shall terminate without any further
liability of Tenant to Landlord thereunder, and Tenant shall continue to occupy
and lease the Existing Premises under the provisions of this Lease.
2.7 Right of Refusal for W.R. Grace Space. Prior to or simultaneously with
any offer by Landlord to lease all or a portion of the space on the 300 level of
the East Wing of the Building currently leased to W.R. Grace and more
particularly described in Appendix E (the "W.R. Grace Space") to any third party
other than the tenant of such space or an affiliate of such tenant, Landlord
shall offer to lease such space to Tenant on the same terms and conditions as
Landlord is then willing to lease such space to third parties provided, however,
that (a) Tenant shall lease the space in question for a time period coterminous
with the term of this Lease, as it may be extended, (b) if there are less than
36 months remaining on the term of the Lease at the time the space would be
added to the Premises hereunder, Tenant and Landlord mutually agree on an
extension of the Term to at least 36 months and (c) any free rent amounts,
tenant work allowances, or other similar concessions to be provided under the
proposed third party lease shall be prorated to account for any amount by which
the lease to Tenant is shorter than the proposed lease term to third parties.
Any offer by Landlord under this Section 2.7 may be accepted by Tenant by
notice given within 10 business days of receipt of Landlord's offer. In the
event that Tenant accepts any offer by Landlord under this Section, the leasing
of such additional space shall be documented by an Amendment to this Lease.
Tenant's rights under this Section 2.7 shall be rendered void, at Landlord's
election, if Tenant is in default (after expiration of any applicable notice and
cure period) at the time Landlord offers any space to a third party or at the
time Tenant's lease of any space under this Section 2.7 would otherwise
commence.
2.8 Tenant Improvement Allowance. Landlord shall pay to Tenant the Tenant
Improvement Allowance specified in Section 1.1 in up to two installments within
20 days after presentation by Tenant to Landlord of paid invoices for Tenant
Alterations in the Existing Premises and/or the Expansion Premises.
-7-
ARTICLE III
-----------
Landlord Work and Tenant Work
-----------------------------
3.1 Landlord Work. Except as provided in Section 5.2 and this Section,
Landlord shall not be required to perform any work in connection with Tenant's
occupancy of the Premises. Tenant acknowledges that it has had the full
opportunity to inspect the Premises. Landlord, at its sole expense, shall (a)
recarpet the 200 level common area, including the stairs leading from the 200
level to the 300 level; and (b) touch up paint such common areas, as Landlord in
its reasonable discretion deems necessary ("Landlord's Work").
3.2 Tenant Alterations.
3.2.1 General. "Tenant Alterations" shall mean all work, including
demolition, improvements, additions and alterations, in or to the Premises
exclusive of Landlord's Work. Without limiting the generality of the foregoing,
except for Landlord Work described in Section 3.1, Tenant Alterations shall
specifically include all signs visible from the exterior of the Premises, and
any change in the exterior appearance of the windows in the Premises (including
shades, curtains and the like). All Tenant Alterations shall be subject to
Landlord's prior written approval which approval shall not be unreasonably
withheld or delayed and shall be arranged and paid for by Tenant as provided
herein. Tenant shall neither propose nor effect any Tenant Alterations (i) which
might in any manner affect any structural component of the Building (including,
without limitation, exterior walls, exterior windows, core walls, roofs, or
floor slabs), (ii) which might in any respect be incompatible with the
electrical or mechanical components or systems of the Building, (iii) which
might materially affect in any respect other space in the Building other than
the Premises, including the exterior of the Building), (iv) which might diminish
the value of the Premises for any general purpose office use, (v) or which might
require any unusual expense to re-adapt the Premises for any general purpose
office use. In addition, with respect to any floor not occupied entirely by
Tenant, Tenant shall neither propose nor effect any Tenant Alterations
consisting of improvements, additions, or alterations to the entranceway to the
Premises or any adjoining elevator lobby, corridor, or common area; and with
respect to floors entirely occupied by Tenant, any such work will be in
compliance with this Article III.
3.2.2 Construction Documents. No Tenant Alterations shall be
effected except in accordance with complete, consistent, final construction
drawings and specifications ("Construction Documents") approved in advance by
Landlord in writing, which approval shall not be unreasonably withheld or
delayed. The Construction Documents shall be prepared by an architect ("Tenant's
Architect") experienced in the construction of tenant space improvements in
buildings in the greater Boston area and approved by Landlord in
-8-
writing, which approval shall not be unreasonably withheld or delayed, whenever
any structural component of the Building is affected or architectural design
services are required in Landlord's reasonable judgment. Tenant shall be solely
responsible for the liabilities of and expenses of all architectural and
engineering services relating to Tenant Alterations and for the adequacy,
accuracy, and completeness of the Construction Documents approved by Landlord,
even if Tenant's Architect has been otherwise engaged by Landlord in connection
with the Building. The Construction Documents shall set forth in detail the
requirements for construction of the Tenant Alterations (including all
architectural, mechanical, electrical and structural drawings and detailed
specifications), shall be fully coordinated with one another and with field
conditions as they exist in the Premises and elsewhere in the Building, and
shall show all work necessary to complete the Tenant Alterations including all
cutting, fitting, and patching and all connections to the mechanical and
electrical systems and components of the Building. Tenant shall be responsible
for ensuring that the work described in Construction Documents submitted to
Landlord for approval (i) complies with all applicable laws, regulations,
building codes, and the highest design standards, (ii) does not in any manner
affect any structural component of the Building (including, without limitation,
exterior walls, exterior windows, core walls, roofs or floor slabs), (iii) is in
all respects compatible with the electrical and mechanical components and
systems of the building, (iv) does not materially affect any space in the
Building other than the Premises (including the exterior of the Building), (v)
conforms to floor loading limits, (vi) and with respect to all materials,
equipment and special designs, processes, or products, does not infringe on any
patent or other proprietary rights of others. Landlord's approval of
Construction Documents shall only signify Landlord's consent to the Tenant
Alterations shown thereon and shall not result in any responsibility of Landlord
concerning compliance of the Tenant Alterations with laws, regulations, or
codes, coordination of any aspect of the Tenant Alterations with any other
aspect of the Tenant Alterations or any component or system of the Building, or
the feasibility of constructing the Tenant Alterations without damage or harm to
the Building, all of which shall be the sole responsibility of Tenant.
3.2.3 Performance of Tenant Alterations. The identity of any
person or entity (including any employee or agent of Tenant) performing any
Tenant Alterations ("Tenant Contractor") shall be subject to Landlord's prior
written approval, which approval shall not be unreasonably withheld or delayed.
Once any Tenant Contractor has been approved, then the same may thereafter be
used by Tenant until Landlord notifies Tenant that such Tenant Contractor is no
longer approved for future Tenant Alterations projects. Tenant shall procure all
necessary governmental permits, licenses and approvals before undertaking any
Tenant Alterations. Tenant shall perform all Tenant Alterations at Tenant's risk
in compliance with all applicable laws, codes and regulations and in a good and
workmanlike manner employing new materials of good quality and producing a
result at least equal in quality to the other parts of the Premises. When any
Tenant Alterations is in progress, Tenant shall cause to be maintained (i)
insurance as described in the Tenant
-9-
Alterations Insurance Schedule attached hereto as Appendix D naming Landlord as
an additional insured, and (ii) a statutory lien bond pursuant to M.G.L. c.254,
ss.12 or any successor statute (or such other protection of Landlord's interest
in the Building against liens to which Landlord may reasonably agree) for the
benefit of Landlord. It shall be a condition of Landlord's approval of any
Tenant Alterations that certificates of such insurance and a lien bond in
recordable form (or other equivalent security agreed to by Landlord), both
issued by responsible insurance companies qualified to do business in
Massachusetts and reasonably approved by Landlord, shall have been deposited
with Landlord, that Tenant has provided Tenant's certification of the insurable
value of the work in question for casualty insurance purposes, and that all of
the other conditions of the Lease have been satisfied. Tenant shall reimburse
Landlord's reasonable out-of-pocket costs of reviewing plans for proposed Tenant
Alterations other than the initial Tenant Alterations. Tenant shall pay
Landlord's Agent a supervisory fee of 3% of the cost of the initial Tenant
Alterations performed by Tenant. At all times while performing Tenant
Alterations, Tenant shall require any Tenant Contractor to comply with all
applicable laws, regulations and permits relating to such work of the Town of
Lexington. In performing Tenant Alterations, each Tenant Contractor shall comply
with Landlord's reasonable requirements relating to the time and methods for
such work, use of delivery elevators and other Building facilities; and each
Tenant Contractor shall not interfere or disrupt any other tenant or other
person using the Building except to a de minimis extent. Landlord shall provide
adequate access to the Building at reasonable times to each Tenant Contractor.
Each Tenant Contractor shall in all events work on the Premises without causing
labor disharmony, coordination difficulties, or delay or impair any guaranties,
warranties or obligations of any contractors of Landlord. If any Tenant
Contractor uses any Building services or facilities, such Contractor, jointly
and severally with Tenant, shall agree to reimburse Landlord for the cost
thereof based on Landlord's schedule of charges established from time to time
(and if no such charges have been established, then based on Landlord's
reasonable charge established at the time).
3.2.4 Payment for Tenant Alterations. Tenant shall pay, prior to
the due date thereof, the entire cost of all Tenant Alterations so that the
Premises shall always be free of liens for labor or materials. If any mechanic's
lien (which term shall include all similar liens relating to the furnishing of
labor and materials) is filed against the Premises or the Building or any part
thereof which is claimed by the Contractor to be attributable to Tenant, its
agents, employees or contractors (other than on account of Landlord's Work),
Tenant shall promptly discharge the same by payment or filing any necessary bond
within 20 days after Tenant has notice (from any source) of such mechanic's
lien. Landlord may, as a condition of its approval of any Tenant Alterations of
$100,000 or more, require Tenant to deposit with Landlord a bond, letter of
credit or other similar security in the amount of Landlord's reasonable estimate
of the value of such Work securing Tenant's obligations to make payments for
such Work.
-10-
ARTICLE IV
----------
Rent
----
4.1.1 Annual Fixed Rent - Initial Term. Annual Fixed Rent during
the initial Term of this Lease shall be the amount per annum set forth in
Section 1.1.
4.1.2 Annual Fixed Rent - Extension Term. If the Term is extended
for the Extension Term, then Annual Fixed Rent will be as set forth in Section
1.1.
Fair Market Rent for the Premises during the Extension Term for the
purposes of determining the Annual Fixed Rent for the Extension Term shall be
ascertained, and notice of extension given, as follows:
(a) If Tenant wishes to exercise its extension option under
Section 1.1, Tenant shall so notify Landlord no less than 12 months prior to the
date the Term is then scheduled to expire (the "Extension Notice"). Failure
timely to send a notice shall constitute a waiver of Tenant's right to extend
the Term. Tenant's notice shall specify which of the Existing Premises, the
Expansion Premises, the Second Expansion Premises and the W.R. Grace Space (if
it has been added to the Premises) Tenant wishes to continue to occupy during
the Extension Term. Tenant may elect to extend the Term with respect to all or
any combination of such four components of the Premises, but once the Extension
Notice is given, such election shall be irrevocable. A failure to designate
components of the Premises in the Extension Notice shall be deemed an election
to extend with respect to the entire premises.
(b) Not later than one (1) month after receipt of the Extension
Notice, Landlord shall give written notice to Tenant setting forth Landlord's
determination of Fair Market Rent for each of the Lease years of the Extension
Term (which may be different from year to year).
(c) Tenant may thereafter invoke arbitration according to the
procedure set forth below or negotiate with Landlord with respect to the Fair
Market Rent. If Tenant accepts Landlord's estimate of the Fair Market Rent or if
the parties reach agreement on Fair Market Rent, the parties shall execute an
agreement specifying the agreed Fixed Annual Rent hereunder for the Extension
Term, specifying the modifications to the Lease necessary if Tenant has elected
to extend with respect to less than all of the Premises and acknowledging the
extension of the Term. If Tenant invokes arbitration by written notice to
Landlord, the matter of the Fair Market Rent promptly shall be submitted to
arbitration in accordance with the following procedure. Landlord shall give
notice to Tenant of an appraiser whom Landlord designates to ascertain such
rent. If within 10 days of such notice Tenant objects to such person then Tenant
shall give notice to Landlord and
-11-
designate another appraiser (and failure so to notify Landlord shall bind Tenant
to the appraiser designated by Landlord). If within 10 days of such notice
Landlord objects to such person (and failure so to notify Tenant shall bind
Landlord to the appraiser designated by Tenant), then both such appraisers shall
meet and within 10 days of such objection designate a third appraiser, who alone
shall within 20 days of his or her designation ascertain such fair market rent.
(If the two appraisers fail to designate the third appraiser within such time,
then either Landlord or Tenant may request the American Arbitration Association,
Boston Office to designate the third appraiser.) Any appraiser designated shall
have had at least 10 years experience in the leasing, ownership or management of
office buildings similar in character to the Premises and shall be a member of
A.S.R.E.C. or M.A.I. (or successor professional organization) and duly qualify
as an expert witness over objection to give opinion testimony addressed to the
issue in a court of competent jurisdiction. Fair market rent shall be the Annual
Fixed Rent which a willing tenant would pay to lease the Premises for each year
of the Extension Term in question under terms and conditions substantially the
same as those of this Lease, with the Premises considered free and clear of this
Lease and as though then available for single or multiple occupancies for the
Permitted Uses (or any higher and better use then being made by Tenant, the mix
of any multiple occupancies being what is then customary in light of good real
estate practice) in the condition in which Tenant is required to maintain the
Premises (or if in Landlord's reasonable judgment Tenant Alterations have been
installed which adversely affect rental value and Landlord has the right to have
Tenant remove such Tenant Alterations at the termination of the Term, then as
though such Tenant Alterations were removed), based on rentals for comparable
space over a comparable period with appropriate adjustments made to such rentals
as necessary to establish comparability, with rental historically paid under
this Lease disregarded and taking into account all other then relevant factors.
If the parties do not agree in writing on such rent, then the written opinion of
fair market rent of the appraiser so chosen shall conclusively establish such
rent ("Fair Market Rent"). Both parties shall have the opportunity to present
evidence in accordance with reasonable procedures prescribed by the appraiser,
and the fee of the appraiser giving his or her written opinion shall be paid
equally by the parties. If Landlord should delay in giving the notice which
begins the valuation procedures of this paragraph, or if the process should
otherwise be delayed for any reason, then such procedures shall nevertheless
remain in effect and be applicable when and as invoked with respect to Annual
Fixed Rent payable during the Extension Term. Notwithstanding the foregoing,
Landlord agrees to use reasonable efforts to cause the arbitration to be
completed prior to the first day of the ninth remaining calendar month in the
Term.
Unless the parties have already executed an agreement specifying the agreed
Annual Fixed Rent hereunder for the Extension Term and acknowledging the
extension of the Term, then on or before the first day of the ninth remaining
calendar month in the Term (calculated without regard to any future extension),
Tenant may withdraw its exercise of Tenant's extension option hereunder by
giving Landlord notice to such effect.
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4.2.1 Method of Payment. Tenant covenants and agrees to pay the
Annual Fixed Rent to Landlord in advance in equal monthly installments (or in
the appropriate monthly installments for monthly periods during any Lease year,
if and as referred to in Section 1.1) on the first day of each calendar month
during the Term beginning on the Rent Commencement Date. "Lease year" shall mean
the twelve month period following the Rent Commencement Date. Tenant shall make
ratable payment of Annual Fixed Rent for any portion of a Lease year (or month)
in which the same accrues, all payments of Annual Fixed Rent and additional rent
and other sums due hereunder to be paid in current U.S. exchange at the Original
Address of Landlord or such other place as Landlord may by notice in writing to
Tenant from time to time direct (or if requested by Landlord in the case of
Annual Fixed Rent, by electronic fund transfer), without demand and without
set-off or deduction, except as set forth herein.
Without limiting the generality of the foregoing, Tenant's obligation so to
pay shall not be discharged or otherwise affected by reason of the application
of any law or regulation now or hereafter applicable to the Premises, or any
other restriction of or interference with the use thereof by Tenant, or (except
as and to the extent expressly provided herein) any damage to or destruction of
the Premises by casualty or taking, or on account of any failure by Landlord to
perform hereunder or otherwise, or due to any other occurrence; nor (except as
expressly provided herein) shall Tenant ever be entitled and Tenant hereby
waives all rights now or hereafter conferred by statute or otherwise to quit,
terminate or surrender this Lease or the Premises or any part thereof, or to
assert any defense in the nature of constructive eviction to any action seeking
to recover rent. Tenant shall, however, have and maintain, subject to the
provisions hereof, the right to seek and obtain from time to time judgments for
direct money damages occasioned by Landlord's breach of the covenants of this
Lease.
4.3.1 Additional Rent - Landlord's Taxes. Tenant covenants and
agrees to pay to Landlord, as additional rent, Tenant's Tax Percentage Share (as
set forth in Section 1.1) of Landlord's Taxes (hereafter defined) for each
fiscal tax period, or ratable portion thereof, included in the Lease Term in
monthly installments on the first day of each month in amounts reasonably
estimated from time to time by Landlord to provide for the full payment of
Tenant's obligation with respect to Landlord's Taxes on the date such Taxes are
due.
4.3.2 Landlord's Taxes - Definition. "Landlord's Taxes" shall mean
all taxes, assessments, betterments, excises, user fees and all other
governmental charges and fees of any kind or nature, or impositions or agreed
payments in lieu thereof or voluntary payments made in connection with the
provision of governmental services or improvements of benefit to the Building
(including any so-called linkage, impact or voluntary betterment payments), and
all penalties and interest thereon (but only if due to Tenant's failure to make
timely payments on account of Landlord's taxes), assessed or
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imposed against the Premises or the property of which the Premises are a part
(including without limitation any personal property taxes levied on such
property or on fixtures or equipment used in connection therewith), or upon
Landlord by virtue of its ownership thereof ("Landlord's Taxes"), other than a
federal or state income tax of general application and any federal or state
inheritance taxes. If during the Term the present system of ad valorem taxation
of property shall be changed so that, in lieu of or in addition to the whole or
any part of such ad valorem tax there shall be assessed, levied or imposed
exclusively on owners or lessees of real property or any kind or nature of
federal, state, county, municipal or other governmental capital levy, income,
sales, franchise, excise or similar tax, assessment, levy, charge or fee (as
distinct from the federal and state income tax or inheritance tax in effect on
the Commencement Date) measured by or based in whole or in part upon Building
valuation, mortgage valuation, rents or any other incidents, benefits or
measures of real property or real property operations, then any and all of such
taxes, assessments, levies, charges and fees, calculated as if the Building were
Landlord's sole asset and the rents Landlord's sole income, shall be included
within the term Landlord's Taxes. To the extent any assessments or betterments
are permitted to be paid in installments, Landlord's Taxes shall include such
assessments or betterments only up to the amount of the installment(s) that
would be due during the relevant year if such betterment or assessment were paid
over the longest period permitted, whether or not Landlord elects to pay in
installments.
Landlord's Taxes include reasonable expenses, including reasonable fees of
attorneys, appraisers and other consultants, incurred in connection with any
efforts to obtain abatements or reductions or to assure maintenance of
Landlord's Taxes for any tax fiscal year wholly or partially included in the
Term, whether or not such efforts involve filing of actual abatement
applications or initiation of formal proceedings, but only if such efforts are
successful. Landlord's Taxes shall be reduced to the extent of any refund (in
excess of the cost of obtaining such refund) in the year in which such refund is
received.
4.4.1 Additional Rent - Operating Expenses. Tenant covenants and
agrees to pay to Landlord, as additional rent, Tenant's Operating Percentage
Share (as set forth in Section 1.1) of Landlord's Operating Expenses (hereafter
defined) for each of Landlord's fiscal years, or ratable portion thereof,
included in the Lease Term in monthly installments on the first day of each
month in advance, based on amounts reasonably estimated from time to time by
Landlord, and with a final payment adjustment between the Parties within 14 days
after Landlord provides Tenant a statement of Landlord's Operating Expenses for
Landlord's most recent fiscal year. If Landlord does not render a statement of
Landlord's Operating Expenses within 90 days after a particular fiscal year,
then Tenant shall not be obligated to pay installments of Landlord's Operating
Expenses for the next fiscal year until such statement is rendered. All monthly
installments deferred pursuant to the preceding sentence shall be due within ten
days after Landlord furnishes the statement for the fiscal year in question.
Tenant and its accountants may examine Landlord's books and
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records supporting such statement of Landlord's Operating Expenses by written
request to Landlord within 30 days of receipt of such statement.
4.4.2 Landlord's Operating Expenses - Definition. "Landlord's
Operating Expenses" means all costs incurred in servicing, operating, managing,
maintaining, and repairing the Building and the land, facilities and
appurtenances thereto, including without limitation the costs of the following:
(i) supplies, materials and total wage and labor costs and all costs and
expenses of independent contractors paid or incurred on account of all persons
engaged in the operation, maintenance, security, cleaning and repair of the
Building and the land, facilities and appurtenances thereto, including social
security, unemployment compensation, pension, vacation, sick pay and other
so-called "fringe benefits"; (ii) services furnished generally to tenants of the
Building by Landlord; (iii) utilities consumed and expenses incurred in the
operation of the Building and the land, facilities and appurtenances thereto;
(iv) casualty, liability, workmen's compensation and all other insurance
expenses (and the amount of any deductible in the event of an insured loss), all
insurance to be in such amounts and insuring against such risks as Landlord may,
in its sole discretion from time to time decide; (v) snow removal, planting,
landscaping, grounds and parking operation, maintenance and repair expenses;
(vi) management fees which do not exceed those customarily paid with respect to
buildings in the area which are similar to the Building, and fees for required
licenses or permits; (vii) rental or reasonable depreciation of equipment used
in the operation of the Building and the land, facilities and appurtenances
thereto, and personal property taxes assessed upon such equipment; and (viii)
expenses of periodic testing to assure that the Premises and surrounding land
are free of hazardous materials, agents or substances, and to assure compliance
with codes, regulations and laws. In addition, if Landlord from time to time
repairs or replaces any existing improvements or equipment or installs any new
improvements or equipment to the Building for the purpose of decreasing
Operating Expenses (including without limitation energy conservation
improvements or other improvements), then the cost of such items amortized over
their reasonable life, together with an actual or imputed interest rate (at the
level not to exceed that then being charged by institutional first mortgagees
for new permanent first mortgage loans on buildings in the area which are
similar to the Building) shall be included in Landlord's Operating Expenses.
Costs and expenses referred to in this Section shall be ascertained in
accordance with generally accepted accounting principles and allocated to
appropriate fiscal periods on the accrual method of accounting. Landlord's
Operating Expenses shall not include payments of principal, interest or other
charges on mortgages or payments of any rent by Landlord on account of any
ground lease of the land on which the Building is situated or any lease of the
Building; costs of work or services for particular tenants separately
reimbursable to Landlord by such tenants; advertising, marketing costs and
leasing commissions; any and all costs of removing hazardous waste or asbestos
from the Building (except to the extent such removal is required as a result of
Tenant's actions); legal fees incurred by Landlord in negotiating and/or
enforcing leases; costs incurred by
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Landlord to ensure the Building's compliance with laws and regulations which are
in effect as of the date the Lease begins; any expenses and costs for which
Landlord is reimbursed by its insurer or other parties; costs associated with
the operating of the business of the entity which constitutes Landlord as the
same are distinguished from the costs of operation of the Building, including
the salaries and benefits of executive-level personnel and the pro rata portion
of wages of any employee who does not devote substantially all of his time to
the Building fairly allocable to time spent on other matters (but specifically
excluding wages and benefits of the assistant property manager and the building
manager) and costs of so-called leasehold improvements to rentable areas in the
Building.
The term "Landlord's Operating Expenses", shall not, however, include the
following items:
1. the cost of any work or services performed for any tenant of
the Building, whether at the expense of Landlord or such
tenant, to the extent that such work or services are in excess
of the work or services which Landlord is furnishing to Tenant
under this Lease at the expense of Landlord;
2. Landlord's Taxes;
3. the cost of any repairs made by Landlord to remedy damage to
the extent caused by or resulting from the gross negligence of
Landlord, its agents, servants or employees;
4. any funds or money given to any tenants in cash, by offset or
otherwise, or the cost of any work done for any tenants in
connection with the leasing of space in the Building;
5. that portion of any cost paid to a corporation or other entity
affiliated with Landlord (i.e., controlling, controlled by or
under common control with Landlord) which is in excess of the
amount which would be paid in the absence of such
relationship;
6. financing and refinancing costs in respect of any indebtedness
of Landlord whether secured or unsecured, including legal and
accounting fees and expenses, prepayment penalties and
interest and amortization payments in connection therewith;
7. rent and additional rent under any ground or underlying lease;
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8. franchise, gross receipts, unincorporated business,
inheritance, foreign ownership or control or income taxes
imposed upon Landlord or any taxes similar to the foregoing
excluded items (other than sales taxes on items or services
otherwise includible in Operating Expenses);
9. costs incurred in connection with the transfer or disposition
of direct or indirect ownership interests in the Building or
Landlord;
10. the costs of repairs or restoration necessitated by
condemnation;
11. fines, judgments or awards against Landlord based on
Landlord's negligence, willful misconduct or criminal act
(except to the extent all or any portion of such fines,
judgments or awards represent that cost of maintenance,
repairs or other items otherwise includible in Operating
Expenses);
12. general overhead of Landlord's or the managing agent's office;
13. costs resulting from Landlord's default under any lease,
except to the extent such costs represent the costs of
maintenance, repairs or other items otherwise includible in
operating expenses;
14. costs for purchasing works of fine art; and
15. items to the extent actually reimbursed to Landlord pursuant
to any warranties or guarantees.
16. capital expenditures, except as expressly included in the
second sentence of Section 4.4.2.
4.5 Allocation of Certain Operating Expenses. If at any time during the
Term, Landlord provides services only with respect to portions of the Building
which include the Premises or incurs other Operating Expenses allocable to
portions of the Building which include the Premises alone, then such Operating
Expenses shall be charged entirely to those tenants, including Tenant, of such
portions receiving such services, notwithstanding the provisions hereof
referring to Tenant's Percentage Share. If, during any period for which
Landlord's Operating Expenses are being computed, less than all of the Building
is occupied by tenants, or if Landlord is not supplying all tenants with the
services being supplied hereunder, Operating Expenses shall be reasonably
estimated and extrapolated by Landlord to determine the Operating Expenses that
would have been incurred if the Building were fully occupied for such year and
such services were being supplied to all tenants, and such estimated and
extrapolated amount shall be deemed to be Landlord's Operating Expenses for such
period.
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ARTICLE V
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Additional Covenants
--------------------
5.1 Tenant's Covenants. Tenant covenants that at all times during the Term
and such further time as Tenant (or persons claiming by, through or under it)
occupies the Premises or any part thereof, it shall perform and observe the
following conditions, all at its sole cost and expense:
5.1.1 Utilities and Services. Tenant shall provide and pay all
charges and deposits for telephone service. It is understood and agreed that
except as may be expressly provided hereunder, Landlord shall be under no
obligation whatsoever to furnish any such services to the Premises, and shall
not be liable for (nor suffer any reduction in any rent on account of) any
interruption or failure in the supply of the same.
5.1.2 Maintenance. Except to the extent that same shall be
Landlord's responsibility hereunder, Tenant shall maintain, repair and secure
the Premises, all improvements and appurtenances thereto, all access areas
thereof, and all utilities, facilities, installations and equipment used in
connection therewith, and shall pay all costs and expenses of so doing, keeping
the Premises in good order, repair and condition, reasonable wear and tear, and
damage by casualty and taking (to the extent provided in Article VI only)
excepted. Without limiting the generality of the foregoing, Tenant shall keep
all interior walls, floor surfaces and coverings, glass, windows, doors,
partitions, all fixtures and equipment, utilities, pipes and drains and other
installations used in connection with the Premises in such good order, repair
and condition, shall provide all painting and floor covering to the Premises,
except as otherwise stated in this Lease and shall remove all refuse from the
Premises. Landlord agrees to operate and maintain the Building as a first class
suburban office building.
Attached as Appendix B and a part hereof are particular requirements of
certain aspects of maintenance and operation of the Premises which Tenant shall
perform and conform to in addition to, and not in limitation of, the foregoing.
5.1.3 Use and Compliance with Law. Tenant shall use the Premises
only for the Permitted Uses set forth in Section 1.1, and then only as permitted
under laws, regulations and orders applicable from time to time, including
without limitation municipal by-laws, land use and environmental laws and
regulations, and shall procure all approvals, licenses and permits necessary
therefor, in each case giving Landlord true and complete copies of the same
which affect the Building and all applications therefor. Tenant shall promptly
comply with all present and future laws applicable to Tenant's particular use of
the Premises or Tenant's signs thereon, foreseen or unforeseen, and whether or
not the same necessitate structural or other extraordinary changes or
improvements to the Premises
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or interfere with its use and enjoyment of the Premises, and shall keep the
Premises equipped with adequate non-structural safety appliances and comply with
all requirements reasonable in light of the use Tenant is making of the Premises
of insurance inspection or rating bureaus having jurisdiction. If Tenant's
particular use of the Premises results in any increase in the premium for any
insurance carried by Landlord, then upon Landlord's notice to Tenant of such
increase Tenant shall either cease the relevant activity or pay the same to
Landlord within 20 days after demand as additional rent. Tenant shall, in any
event, indemnify and save Landlord harmless from all loss, claim, damage, cost
or expense (including reasonable attorneys' fees of counsel of Landlord's choice
against whom Tenant makes no reasonable objection) on account of Tenant's
failure so to comply with the obligations of this Section (paying the same to
Landlord upon demand as additional rent). Tenant shall bear the sole risk of all
present or future laws affecting Tenant's particular use of the Premises or
appurtenances thereto (as opposed to its mere occupancy thereof), and Landlord
shall not be liable for (nor suffer any reduction in any rent on account of) any
interruption, impairment or prohibition affecting the Premises or Tenant's use
thereof resulting from the enforcement of laws with which Tenant is responsible
for complying. Tenant shall conform to all reasonable rules and regulations from
time to time promulgated by Landlord for the operation, care and use of the
common areas of the Building and appurtenant improvements and areas in which
Tenant is granted rights of use by the terms of this Lease. Landlord shall not
enforce or fail to enforce the Building rules and regulations in such a manner
as to discriminate against Tenant. Notwithstanding anything to the contrary in
this Section, Landlord shall be responsible for compliance with laws and
regulations that relate to the Building generally (except those laws and
regulations which apply specifically to Tenant's particular use of the Premises,
with respect to which Tenant shall be responsible), and Landlord shall pay for
the cost of installing any life safety systems which are installed on a
Building-wide basis.
5.1.4 Liens and Encumbrances. Tenant shall not create or suffer,
shall keep Landlord's property, the Premises and Tenant's leasehold free of, and
shall promptly remove and discharge, any lien, notice of contract, charge,
security interest, mortgage (except for chattel mortgages, equipment leases or
security interests in Tenant's movable property) or other encumbrance which
arises for any reason, voluntarily or involuntarily, as a result of any act or
omission by Tenant or persons claiming by, through or under Tenant, or any of
their agents, employees or independent contractors, including without limitation
liens which arise by reason of labor or materials furnished or claimed to have
been furnished to Tenant or for the Premises.
5.1.5 Indemnity. Tenant shall assume exclusive control of all
areas of the Premises, including all improvements, utilities, facilities and
installations now or hereafter thereon, and all liabilities, including without
limitation tort liabilities, incident thereto relating to Tenant's acts; and
Tenant shall indemnify, save harmless and defend Landlord its partners,
mortgagees, agents, employees, (collectively "Indemnitees") from all liability,
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claim or cost (including reasonable attorneys' fees of counsel of an
Indemnitee's choice against whom Tenant makes no reasonable objection) arising
in whole or in part out of any injury, loss, theft or damage (except if such is
due to the negligence or misconduct of Landlord or its employees, partners,
mortgagees or agents) to any person or property while on or about the Premises
or the Reception Area, or out of any condition within the Premises or the
Reception Area which is not Landlord's responsibility, or arising out of any
breach of any Lease covenant, or from any act or omission of Tenant or persons
claiming by, through or under Tenant, or any of their agents, employees,
independent contractors, or invitees (while in the Premises only), paying the
same to Landlord upon demand as additional rent. Landlord shall assume exclusive
control of all common areas of the Building (other than Tenant's right to
operate the Reception Area) and Landlord shall indemnify, save harmless and
defend Tenant from all liability, claim or cost (including reasonable attorneys'
fees of counsel of Tenant's choice against whom Landlord makes no reasonable
objection) arising in whole or in part out of any injury, loss or damage (except
if such is due to the operation of the Reception Area or to the negligence or
misconduct of Tenant or its employees or agents) to any person or property while
on or about the common areas of the Building or out of any condition within the
common areas of the Building. The provisions of this Section shall survive the
Term of this Lease.
5.1.6 Landlord's Right to Enter. Landlord and its agents or
employees may upon reasonable notice enter the Premises during business hours
(and in case of emergency at any time), for the purpose of exercising any of the
rights reserved to Landlord herein, or securing or protecting Landlord's
property or the Premises, or removing any alterations or additions not consented
to by Landlord, and similarly upon reasonable notice may show the Premises to
prospective purchasers and lenders, and during the last 12 months of the Term to
prospective tenants. Except in case of emergency, Landlord shall be subject in
entering the Premises to reasonable security conditions, if any, set forth by
Tenant in writing to Landlord.
5.1.7 Personal Property at Tenant's Risk. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and description
which, during the occupancy of the Premises by Tenant (or persons claiming by,
through or under Tenant) may be on the Premises or elsewhere on Landlord's
property, shall be at the sole risk and hazard of Tenant. Except to the extent
such damage is caused by the negligence or misconduct or breach of this Lease by
Landlord or its employees, Landlord shall not be liable for, and Tenant
expressly waives all claims against Landlord, its agents and employees, for
damage to person or property sustained by Tenant, or any person claiming by,
through or under Tenant, resulting from any accident or occurrence in or on the
Premises or the property of which the Premises are a Part, including but not
limited to, claims for damage resulting from water, wind, ice, steam, explosion
or otherwise, or from the rising of water or the leakage or bursting of water
pipes, steam pipes, gas pipes, the sprinkler system or other pipes, or from
theft, vandalism, lack of repair, defect, structural
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or non-structural failure, or from any other cause whatsoever, and except only
to the extent provided above in this Section, no part of said loss or damage
shall be charged to or borne by Landlord or Landlord's agents or employees.
5.1.8 Overloading, Nuisance, Etc. Tenant shall not, either with or
without negligence, injure, overload, deface, damage or otherwise harm
Landlord's property, the Premises or any part or component thereof; commit any
nuisance; permit the emission of any hazardous agents or substances; allow the
release or other escape of any biologically or chemically active or other
hazardous substances or materials so as to impregnate, impair or in any manner
affect, even temporarily, any element or part of Landlord's property or the
Premises, or allow the storage or use of such substances or materials in any
manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials; nor shall
Tenant bring onto the Premises any such materials or substances except to use in
the ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of such substances or materials (the identity
of all such substances and materials, if any, so used on the date hereof being
set forth on Appendix C); permit the occurrence of objectionable noise or odors;
or make, allow or suffer any waste whatsoever to Landlord's property or the
Premises. Landlord may inspect the Premises from time to time during business
hours upon reasonable notice, and Tenant will cooperate with such inspections.
Without limitation, hazardous substances shall include such substances described
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. ss.9601 et seq. and the regulations adopted
thereunder, and hazardous materials shall include such materials described in
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss.6901 et
seq.; in the Massachusetts Hazardous Waste Management Act, as amended, M.G.L.
Chapter 21, and the Massachusetts Oil and Hazardous Material Release Prevention
Act, as amended, M.G.L., Chapter 21E, and the regulations adopted under these
acts. In addition, Tenant shall execute affidavits, representations and the like
from time to time at Landlord's reasonable request concerning Tenant's best
knowledge and belief regarding the presence or absence of hazardous materials on
the Premises or land pertaining thereto. In all events, Tenant shall indemnify
Landlord and mortgagees in the manner elsewhere provided from any release of
hazardous materials on the Premises occurring while Tenant is in possession. (At
the request of Landlord, Tenant will from time to time confirm such indemnity to
mortgagees directly with such mortgagees.) Landlord shall indemnify Tenant in
the manner elsewhere provided from any release of hazardous materials in or
around the Building resulting from any conduct or omission of Landlord or its
employees or agents. Landlord shall use reasonable efforts to notify Tenant
promptly if there is a release of hazardous materials at the Building that
Landlord believes poses threat to the health or safety of occupants of the
Premises.
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5.1.9 Yield Up. At the expiration or earlier termination of this
Lease, Tenant (and all persons claiming by, through or under it) shall, without
the necessity of any notice, surrender the Premises (including all Tenant
Alterations and all replacements thereof, except such additions, alterations and
other Tenant Alterations as Landlord and Tenant have agreed prior to the
installation of such Tenant Alterations that Tenant shall remove, which shall be
removed by Tenant and the Premises restored to their pre-existing condition) and
all keys to the Premises, remove all of its trade fixtures and personal property
not permanently attached to the Premises (and such trade fixtures and other
property permanently attached to the Premises as Landlord and Tenant have agreed
prior to the installation of such Tenant Alterations that Tenant shall remove),
and all Tenant's signs wherever located, in each case repairing damage to the
Premises which results in the course of such removal. Landlord agrees that the
initial Tenant Improvements to the extent permanently affixed to the Premises
and to the extent approved by Landlord as required in Section 3.2.1, shall be
left in the Premises at the expiration of the Term. Tenant shall have the right,
at the time it requests approval for Tenant Alterations (other than the initial
Tenant Alterations), to ask Landlord's permission to leave such Tenant
Alterations in place at the end of the Term (which permission shall not be
unreasonably withheld) and if Landlord gives such permission, Tenant shall not
be required to remove such Tenant Alterations at the end of the Term. Tenant
shall yield up the Premises broom-clean and in good order, repair and condition,
reasonable wear and tear and damage by casualty and taking (to the extent
provided in Article VI only) excepted. Any personal property not so removed
within thirty (30) days after the expiration or termination of the Lease shall
be deemed abandoned and may be removed and disposed of by Landlord in such
manner as Landlord shall determine, and Tenant shall pay to Landlord the entire
cost and expense incurred by it in effecting such removal and disposition and in
making any incidental repairs to the Premises.
5.1.10 Holding Over. If Tenant (or anyone claiming by, through or
under Tenant) shall remain in possession of the Premises or any part thereof
after the expiration or earlier termination of this Lease with respect to any
portion of the Premises without any agreement in writing executed with Landlord,
then the person remaining in possession shall be deemed a tenant at sufferance
of such possessed space, and Tenant shall thereafter pay Annual Fixed Rent for
the first month of holdover at 150% of, and for each month thereafter at 200% of
the amount payable for the twelve month period immediately preceding such
expiration or termination and with all additional rent payable and covenants of
Tenant in force as otherwise herein provided, and Tenant shall be liable to
Landlord for all damages, including consequential damages, of such breach. After
acceptance of the full amount of any monthly rent by Landlord the person
remaining in possession shall be deemed a tenant from month-to-month at such
rent and otherwise subject to and having agreed to perform all of the provisions
of this Lease, but Landlord will not be deemed to have relinquished any claims
for damages.
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5.1.11 Assignment, Subletting. Subject to Tenant's compliance with
the other conditions of this Section, Tenant may, without the consent of
Landlord, assign this Lease or sublet or license the Premises or any portion
thereof to (i) any affiliate or subsidiary of Tenant or (ii) to any other person
whose net worth is at least equal to or greater than Tenant's on the date of
such transfer, provided that Tenant remains primarily liable under this Lease
("Permitted Transfers"). Tenant shall not assign this Lease, or sublet or
license the Premises or any portion thereof, or permit the occupancy of all or
any portion of the Premises by anybody other than Tenant except as set forth
herein (all of the foregoing actions are sometimes collectively referred to as a
"transfer") without obtaining, on each occasion, the prior consent of Landlord
which consent shall not be unreasonably withheld, delayed or conditioned. If
Landlord has not responded within ten days after receiving written notice from
Tenant requesting Landlord's consent to a particular transfer, then Tenant may
send a second notice stating that Landlord's consent to the transfer will be
deemed given if Landlord fails to respond within five days. If Landlord fails to
respond within five days after receipt of such a second notice, consent to the
transfer shall be deemed given. A transfer shall exclude any transfer of
Tenant's interest in this Lease by operation of law, merger or consolidation of
Tenant into any other firm or corporation, the transfer or sale of a controlling
interest in Tenant whether by sale of its capital stock or otherwise or any
liquidation of Tenant or a substantial part of Tenant's assets provided that
Tenant has given Landlord prior written notice thereof, and provided further
that the successor entity has a financial net worth that is at least equal to
$25,000,000 (except with respect to the successor entity created by a transfer
of capital stock). Tenant may also sublease a portion of the Premises to a
subsidiary or affiliate of Tenant without Landlord's consent, provided Tenant
has given Landlord prior written notice thereof, and provided further that
Tenant remains primarily obligated under this Lease. Landlord shall not be
obligated to consent to a transfer to (i) any tenant in the Building unless
Landlord has no comparable space available (comparability to be determined with
respect to price, size, condition, timing of availability and the like); (ii)
any party with whom, to Tenant's knowledge, Landlord is then negotiating with
respect to space in the Building; or (iii) any party which would be of such
type, character or condition as to be inappropriate as a tenant for a first
class office building. If Tenant proposes an assignment of this Lease or a
sub-letting of all or substantially all of the Premises for the balance of the
Lease Term, Landlord may elect by written notice to Tenant given within 30
business days after Tenant's proposal to terminate this Lease contingent upon
the proposed transferee becoming directly obligated to Landlord upon such
proposed terms; and upon the proposed assignee or sub-tenant so obligating
itself, Tenant shall thereafter be free of further obligation hereunder. If
Tenant does transfer with Landlord's consent, where Landlord's consent is
required hereunder, and if the consideration, rent, or other charges payable to
Tenant under such transfer exceed the rent and other charges to be paid
hereunder (pro-rated based on floor area in the case of a sub-letting, license
or other occupancy of less than the entire floor area of the Premises in
question), then Tenant shall pay to Landlord, as additional rent, 50% of the
amount of such excess when and as received less Tenant's
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reasonable out-of-pocket expenses incurred in such subleasing or assignment.
Without limiting the generality of the foregoing, any lump-sum payment or series
of payments due which are not reimbursements for expenses (including for the
purchase of so-called leasehold improvements if in excess of the fair market
value thereof) on account of any transfer shall be deemed to be in excess of
rent and other charges in its or their entirety.
Except for Permitted Transfers, Tenant shall give reasonable good faith
consideration to any request by Landlord's Managing Agent, Beal and Company,
Inc. (or such other manager of the Building appointed from time to time by
Landlord) to be Tenant's co-exclusive broker for a period of six months with
respect to any proposed transfer so long as Tenant intends to engage a broker
(and before so engaging any broker Tenant will so notify Landlord and give
Landlord's Agent, or such other manager, such consideration). Such Agent (or
other manager) if so engaged by Tenant (Tenant being under no obligation to
engage Agent or such other manager) shall be paid a brokerage fee for any
transfer which it procured in accordance with such Agent's commission schedule
then in effect so long as such schedule is competitive with similar schedules of
major Greater Boston brokerage firms.
Notwithstanding any transfer of this Lease, Tenant's liability to Landlord
shall in all events remain direct and primary. In the case of any requested
consent to a transfer, Tenant shall deliver to Landlord at the time thereof (i)
a true and complete copy of the proposed instrument containing all of the terms
and conditions of such transfer, and (ii) a written agreement of the assignee,
sub-tenant or licensee, in recordable form reasonably approved by Landlord,
agreeing with Landlord to perform and observe all of the terms, covenants and
conditions of this Lease. Tenant shall pay to Landlord, as additional rent,
Landlord's reasonable out-of-pocket attorneys' fees in reviewing any transfer
contemplated by this Section, whether or not Landlord consents to the same. Any
transferee of all or a substantial part of Tenant's interest in the Premises
shall be deemed to have agreed directly with Landlord to be jointly and
severally liable with Tenant for the performance of all of Tenant's covenants
under this Lease from and after the date of transfer; and such assignee shall
upon request execute and deliver such instruments as Landlord reasonably
requests in confirmation thereof (and agrees that its failure to do so shall be
subject to the default provisions). If Tenant shall default hereunder and such
default shall continue beyond any applicable notice and cure period, Landlord
may collect rent and other charges from such transferee (and upon notice such
transferee shall pay directly to Landlord) and apply the net amount collected to
the rent and other charges herein reserved, but no transfer shall be deemed a
waiver of the provisions of this Section, or the acceptance of the transferee as
a tenant, or a release of Tenant or any guarantor from direct and primary
liability for the performance of all of the covenants of this Lease. The consent
by Landlord to any transfer shall not relieve Tenant from the obligation of
obtaining the express consent of Landlord to any modification of such transfer
or a further assignment, subletting, license or occupancy; nor shall Landlord's
consent alter in any manner
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whatsoever the terms of this Lease, to which any transfer at all times shall be
subject and subordinate.
5.2 Building Services. Landlord shall furnish the services and utilities
hereafter described. Tenant may obtain additional services and utilities from
time to time if the same are obtainable by Landlord upon reasonable advance
request, and Tenant shall pay for the same at reasonable rates from time to time
established by Landlord (which rates shall be determined by Landlord as the
rates reasonably necessary to reimburse Landlord for the actual cost of
providing such services) within 20 days after demand as additional rent.
Landlord's obligation shall be subject to the other provisions of this Lease,
reasonable wear and tear and damage caused by or resulting from the acts or
omissions of Tenant or its transferees (or their agents, employees, invitees and
independent contractors), fire, casualty or eminent domain takings.
5.2.1 Landlord's Maintenance. Landlord shall reasonably repair,
maintain and replace, as necessary, the foundations, exterior walls, masonry,
structural floors and roof, the heating, ventilating and air conditioning,
electrical and plumbing systems, and elevators of the Building insofar as such
elements affect the Premises, heating, ventilating, electrical, plumbing,
air-conditioning and other mechanical systems to the extent located in party
walls and the exterior walkways, sidewalks, driveways and parking areas referred
to in Section 2.1; but in no event shall Landlord be obligated to repair broken
glass, windows or doors of the Premises, whether interior or exterior (which
responsibility shall be Tenant's).
5.2.2 Electricity. Landlord shall furnish to Tenant throughout the
Term ___ watts per rentable square foot of 120 volt current. Tenant covenants
and agrees to pay, as an additional charge, the cost of such electricity, as
reasonably estimated by Landlord, in accordance with engineering studies
conducted at Landlord's cost, to reimburse Landlord for the actual cost of such
electricity. Tenant shall pay such estimated electricity charges monthly, with a
readjustment, if necessary, to be made after actual charges are determined and
allocated at the end of each year of the Lease Term.
5.2.3 Office Identification. Subject to Section 5.1.3, Landlord
shall provide and install, at Landlord's expense, letters or numerals on entry
doors to the Premises and on the Building Directory to identify Tenant's
official name and Building address; all such letters and numerals to be in the
Building standard graphics.
5.2.4 Grounds Maintenance. Landlord shall maintain the grounds
adjacent to the Building and the walkways, driveways and parking areas referred
to in Section 2.1 in a first class manner.
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5.2.5 Security. Landlord, as part of Landlord's Operating
Expenses, shall continue to provide the existing level of security patrols in
the Building, so long as no tenant in the Building refuses to pay its
proportional share of the cost thereof.
5.2.6 Cleaning. Landlord, at its expense, shall cause the Premises
(other than the Storage Space) to be reasonably cleaned in accordance with the
specifications annexed as Appendix F.
5.2.7 Heat and Air-Conditioning. Landlord shall furnish water,
heat and air-conditioning to the Premises on Mondays through Fridays excepting
legal holidays (legal holidays shall consist of ten days to be agreed upon by
Landlord and Tenant on an annual basis) from 8:00 a.m. to 6:00 p.m. (such hours
on such days being referred to as "business days") and on any other days upon
Tenant's request. If Tenant requests Landlord to provide heat or
air-conditioning after 6:00 p.m. on any business day, on Saturday, Sunday or on
a legal holiday, Tenant shall pay Landlord therefor at rates reasonably
established by Landlord from time to time (the current rate being $86.00 per
hour).
5.3 Interruptions. Landlord shall not be liable to Tenant in damages or by
reduction of rent or otherwise by reason of inconvenience or annoyance or for
loss of business arising from Landlord or its agents or employees entering the
Premises for any of the purposes authorized in this Lease or for repairing,
altering or improving the Building in a manner reasonable in light of the
circumstances. In case Landlord is prevented or delayed from making any repairs
or replacements or furnishing any services or performing any other covenant or
duty to be performed on Landlord's part by reason of any cause reasonably beyond
Landlord's control, Landlord shall not be liable to Tenant therefor, nor shall
the same give rise to a claim in Tenant's favor that such failure constitutes
actual or constructive, total or partial, eviction from the Premises. Landlord
shall promptly commence cure of such interruption to the extent possible and
diligently pursue such cure to completion. If the heating or air conditioning
systems shall fail and Landlord reasonably decides that the circumstances
warrant providing such services from other facilities within the Building, then
Tenant shall pay the cost of such replacement services, as reasonably estimated
by Landlord, to or as directed by Landlord on demand as additional rent.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed; provided, however, that in each instance of stoppage, Landlord
shall give Tenant such notice as is practicable under the circumstances of the
expected duration of such stoppage and will exercise reasonable diligence to
eliminate the cause thereof. Except in case of emergency repairs Landlord will
give Tenant reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof. If Tenant is unable to occupy the Premises for more than three
consecutive business days as a result of a stoppage of a service or utility
system or a condition that results in a governmental order to vacate the
Premises and such
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stoppage or condition is not due to any act or omission of Tenant, then rent
hereunder shall abate until such time as such service or utility system is
restored or such condition is remedied to the extent necessary to bring the
Premises back to a habitable condition.
ARTICLE VI
----------
Insurance; Casualty; Taking
---------------------------
6.1.1 Public Liability Insurance. Tenant shall obtain and maintain
throughout the Term comprehensive public liability insurance against all claims
and demands for any injury to persons or property which may be claimed to have
occurred on or in connection with the Premises as a result of the acts or
omissions of Tenant, naming Landlord and, if requested, Landlord's mortgagees
and other persons designated by Landlord as additional insureds, in an amount
which shall, at the beginning of the Term, be at least equal to the amount set
forth in Section 1.1, and from time to time during the Term shall be for such
higher amount, if any, as directed by Landlord based on amounts customarily
carried in the Boston metropolitan area with respect to property similar to and
used for similar purposes as Tenant then is using the Premises. Such insurance
shall provide that it will not be subject to cancellation, termination or change
except after at least 20 days' prior written notice to Landlord (and Landlord's
mortgagees and such additional insureds). The policy or policies, or a duly
executed certificate or certificates for the same, shall be deposited with
Landlord at the beginning of the Term, and renewals of such policies shall be so
deposited not less than 20 days prior to the expiration of coverage.
6.1.2 Insurance By Landlord.
(a) In the event Tenant breaches any covenant or fails to
observe any condition set forth above in this Article VI, then without limiting
any other right or remedy, and, provided the required insurance has not lapsed,
any applicable notice and cure period (or without notice and cure if such
insurance has lapsed), Landlord may immediately and without notice to Tenant
obtain such insurance, and Tenant shall pay the cost thereof and Landlord's
reasonable expenses related thereto within twenty (20) days after demand as
additional rent.
(b) Landlord shall maintain commercially reasonable
casualty insurance on the Building.
6.2 Waivers of Subrogation. Any insurance carried by either Landlord or
Tenant with respect to the Premises or property therein or occurrences thereon
shall include a clause or endorsement denying to the insurer rights of
subrogation against the other party to the extent rights have been waived by the
insured hereunder prior to occurrence of
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injury or loss. Without limiting any other provisions of this Lease, each party
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by such insurance, to the extent only of the indemnification
received thereunder.
6.3 Damage or Destruction of Premises. If the Premises or any part thereof
shall be damaged by fire or other insured casualty, then, subject to the
following provisions of this Section, Landlord shall proceed with diligence,
subject to then applicable statutes, building codes, zoning ordinances and other
laws and regulations of any governmental authority, and at the expense of
Landlord (but only to the extent of insurance proceeds received and made
available to Landlord by any mortgagee) to repair or cause to be repaired such
damage, excluding any items installed or paid for by Tenant which Tenant is
permitted to remove upon expiration, (which items shall be Tenant's
responsibility to repair.) If (i) all or any substantial part (meaning more than
25% of floor area or of insurable value) of the Premises are materially damaged
by fire or other casualty (whether or not insured) or (ii) the Building (whether
or not including any portion of the Premises) is so damaged by fire or other
casualty (whether or not insured) that substantial alteration, reconstruction or
demolition of the Building shall in Landlord's sole discretion be appropriate,
or (iii) if any casualty occurs to the Premises during the last year of the Term
and its repair will reasonably cost more than $100,000, then in any such case,
this Lease and the Term hereof may be terminated at the election of Landlord by
a notice in writing of its election so to terminate given to Tenant within six
(6) months following the date of the casualty, the effective termination date
being not less than thirty (30) nor more than sixty (60) days thereafter.
Landlord shall notify Tenant in writing within seventy-five (75) days of the
date of casualty whether Landlord elects to repair the damage or to terminate
the Lease in accordance with the terms of this Section. If Landlord elects to
repair the damage, such notice shall include Landlord's estimate of the time to
repair. Notwithstanding anything to the contrary herein, if the Premises are
substantially damaged so as to prevent Tenant from using the Premises for its
intended purposes, Tenant shall have the right to terminate this Lease by prior
written notice thereof either (i) within fifteen days after receipt of
Landlord's notice electing to repair the damage if Landlord estimates that the
repair will take longer than six (6) months to complete or (ii) if Landlord
fails to repair the damage prior to the later of six (6) months from the date of
Landlord's notice or such longer time period as Landlord estimates in Landlord's
notice.
Tenant shall be entitled to a just abatement of Annual Fixed Rent (and
additional rent on account of Landlord's Taxes and Operating Expenses) during
the period of impaired use of the Premises (including a partial abatement if
only a portion of the Premises is untenantable). If any mortgagee refuses
without fault by Tenant to permit insurance proceeds to be applied to
replacement of the Premises, and neither Landlord nor such mortgagee has
commenced such replacement within six (6) months following adjustment of such
casualty loss with the insurer, then Tenant may, until any such replacement
commences, terminate this Lease by giving at least thirty (30) days prior
written notice
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thereof to Landlord. Except as provided in this paragraph, Tenant's obligation
to pay all rent and to perform and observe all other covenants and conditions of
this Lease shall not be affected by any damage or casualty, and the Term of this
Lease and rent hereunder shall continue nonetheless.
6.4 Eminent Domain. In the event that all or any substantial part of the
Premises or the Building (meaning in either case more than 25% of floor area)
are taken (other than for temporary use, which shall be a taking for ninety (90)
days or less, hereafter described) by public authority under power of eminent
domain (or by conveyance in lieu thereof), then by notice given within three
months following the recording of such taking (or conveyance) in the appropriate
registry of deeds, this Lease may be terminated at Landlord's election 30 days
after such notice, and rent shall be apportioned as of the date of termination.
If this Lease is not terminated as aforesaid, Landlord shall within a reasonable
time thereafter, diligently restore what may remain of the Premises (excluding
any items installed or paid for by Tenant which Tenant is permitted or may be
required to remove upon expiration) to a tenantable condition. If Landlord fails
to restore the Premises within six (6) months from the date of the notice of the
taking (or 90 days in the case of the last Lease Year), Tenant shall have the
right to terminate this Lease by prior written notice thereof. In the event some
portion of rentable floor area is taken (other than for temporary use) and this
Lease is not terminated, Annual Fixed Rent (and additional rent on account of
Landlord's Taxes and Operating Expenses) shall be proportionally abated for the
remainder of the Term. In the event of any taking of the Premises or any part
thereof for temporary use, (i) this Lease shall be and remain unaffected thereby
and rent shall not abate, and (ii) Tenant shall be entitled to receive for
itself such portion or portions of any award made for such use with respect to
the period of the taking which is within the Term, provided that if such taking
shall remain in force at the expiration or earlier termination of this Lease,
then Tenant shall pay to Landlord a sum equal to the reasonable cost of
performing Tenant's obligations hereunder with respect to surrender of the
Premises and upon such payment shall be excused from such obligations. If a
taking affects a substantial portion of the Premises (meaning more than 15% of
floor area) and is not a temporary taking (as defined above), Tenant shall have
the option to terminate this Lease upon not less than ninety (90) days' notice
to Landlord given within thirty (30) days after Tenant receives notice of such
taking. If a taking results in the termination of this Lease, the Annual Fixed
Rent and additional rent on account of Landlord's Taxes and Operating Expenses
shall be abated on a pro rata basis as of the date of such termination.
Any specific damages which are expressly awarded to Tenant on account of
its relocation expenses, and specifically so designated, shall belong to Tenant.
Except as provided in the preceding sentences of this paragraph, Landlord
reserves to itself, and Tenant releases and assigns to Landlord, all rights to
damages accruing on account of any taking or by reason of any act of any public
authority for which damages are payable.
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Tenant agrees to execute such further instruments of assignment as may be
reasonably requested by Landlord, and to turn over to Landlord any damages that
may be recovered in any proceeding or otherwise.
ARTICLE VII
-----------
Default
-------
7.1 Events of Default. (a) If Tenant fails to pay Annual Fixed Rent or any
additional rent or other sum or charge hereunder and such default continues for
ten (10) days after notice; or (b) if any assignment shall be made by Tenant (or
any assignee of Tenant) for the benefit of creditors, or (e) if Tenant's
leasehold interest shall be taken on execution or by other process of law and
all rights of appeal have been exhausted, or (f) if a petition is filed by
Tenant for adjudication as a bankrupt, or for reorganization or an arrangement
under any provision of any bankruptcy act then in force and effect, or (g) if an
involuntary petition under the provisions of any bankruptcy act is filed against
Tenant (or any assignee of Tenant) and such involuntary petition is not
dismissed within ninety (90) days thereafter, or (h) if Tenant (or any assignee
of Tenant) shall be declared bankrupt or insolvent according to law, or (i) if a
receiver, trustee or assignee shall be petitioned for and not contested by
Tenant for the whole or any part of Tenant's property, or if a receiver, trustee
or assignee shall be appointed over Tenant's objection and not be removed within
sixty (60) days thereafter, or (j) if any representation or warranty made by
Tenant shall be untrue in any material respect, or (k) if Tenant fails to
perform any other covenant, agreement or condition hereunder and such default
continues for thirty (30) days after notice (provided, however, that such thirty
(30) day period shall be reasonably extended in the case of non-monetary default
if the matter complained of can be cured, but the cure cannot be completed
within such period and Tenant begins promptly to cure within such period and
thereafter diligently completes the cure), then, and in any such case, Landlord
and its agents and employees lawfully may, in addition to and not in derogation
of any remedies for any preceding breach, immediately or at any time thereafter,
without demand or notice and with process of law, enter into and upon the
Premises or any part thereof in the name of the whole, or mail or deliver a
notice of termination of the Term addressed to Tenant at the Premises or at any
other address herein provided, and thereby terminate this Lease and repossess
the same as of Landlord's former estate. Upon such entry or mailing or delivery,
as the case may be, the Term shall terminate, all executory rights of Tenant and
all obligations of Landlord under this Lease shall immediately cease, and
Landlord may expel Tenant and all persons claiming by, through or under Tenant
and remove its and their effects in accordance with law without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of covenants; and
Tenant hereby waives all statutory and equitable rights to its leasehold
(including without
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limitation rights in the nature of further cure or of redemption, if any).
Landlord may, without notice, store Tenant's effects (and those of any person
claiming by, through or under Tenant) at the expense and risk of Tenant and, if
Landlord so elects, may sell such effects at public auction or auctions or at
private sale or sales after seven (7) business days notice to Tenant (which
notice Tenant agrees is reasonable) and apply the net proceeds to the payment of
all sums due to Landlord from Tenant, if any, and pay over the balance, if any,
to Tenant. Tenant agrees that a notice by Landlord alleging any default shall,
at Landlord's option (the exercise of such option shall be indicated by the
inclusion of the words "notice to quit" in such notice), constitute a statutory
notice to quit and waives any further notices to quit or of intention to
re-enter, and any grace periods provided for herein shall run concurrently with
any statutory notice periods. If any payment of Annual Fixed Rent, additional
rent, or other payment due from Tenant to Landlord is not paid when due, then
Landlord may, at its option, in addition to all other remedies hereunder, impose
a late charge on Tenant equal to 5% of the amount in question, which late charge
will be due upon demand as additional rent.
7.2 Remedies for Default.
(a) Reletting Expenses Damages. If this Lease is terminated for
default, then Tenant covenants, as an additional cumulative obligation after
such termination, to pay all of Landlord's reasonable costs and expenses related
thereto or in collecting amounts due hereunder, including reasonable attorneys
fees, and all of Landlord's reasonable expenses in connection with reletting the
Premises, including without limitation, tenant inducements, brokerage
commissions, fees for legal services, reasonable expenses of preparing the
Premises for reletting and the like ("Reletting Expenses"). It is agreed by
Tenant that Landlord may (i) relet the Premises or any part or parts thereof for
a term or terms which may at Landlord's option be equal to or less than or
exceed the period which would otherwise have constituted the balance of the
Term, and may grant such tenant inducements as Landlord in its sole judgment
considers advisable, and (ii) make such alterations, repairs and decorations in
the Premises as Landlord in its sole discretion considers advisable to a
customary standard of improvement only, and no action of Landlord in accordance
with the foregoing nor any failure to relet or to collect rent under any
reletting shall operate or be construed to release or reduce Tenant's liability,
provided however that Landlord shall make reasonable efforts to relet the
Premises and mitigate its other damages. Any obligation to relet the Premises
imposed upon Landlord by law shall be subject to Landlord's reasonable
objectives of developing its property in a harmonious manner with appropriate
mixes of tenants, uses, floor areas, terms, etc. Landlord's Reletting Expenses
together with all sums otherwise provided for in this Lease, whether incurred
prior to or after such termination, shall be due and payable within 20 days
after notice from Landlord.
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(b) Termination Damages. If this Lease is terminated for default,
then unless and until Landlord elects lump sum liquidated damages described in
(c) below Tenant covenants, as an additional cumulative obligation after any
such termination, to pay punctually to Landlord all the sums which Tenant
covenants in this Lease to pay in the same manner and to the same extent and at
the same time as if this Lease had not been terminated. In calculating the
amounts to be paid by Tenant pursuant to the preceding sentence Tenant shall be
credited with the net proceeds of any rent then actually received by Landlord
from a reletting of the Premises after deducting all sums provided for in this
Lease to be paid by Tenant and not then paid.
(c) Lump Sum Liquidated Damages. If this Lease is terminated for
default, then Tenant covenants, as an additional cumulative obligation after
termination, to pay forthwith to Landlord at Landlord's election made by written
notice to Tenant at any time after termination, as liquidated damages a single
lump sum payment equal to the sum of (i) all sums provided for in this Lease to
be paid by Tenant and not then paid at the time of such election, plus (ii) the
excess of all of the rent reserved for the residue of the Term (with additional
rent on account of Landlord's Taxes and Operating Expenses deemed to increase 5%
in each year on a compounding basis) over all of the rent actually received (or
which rent Tenant shows by clear and convincing evidence will be received), on
account of the Premises during such period, which rent from reletting shall be
reduced by reasonable projections of vacancies and by Landlord's Reletting
Expenses described above to the extent not theretofore paid to Landlord.
7.3 Remedies Cumulative. Any and all rights and remedies Landlord or Tenant
may have under this Lease, and at law and equity, shall be cumulative and shall
not be deemed inconsistent with each other (except with respect to liquidated
damages as set forth in the last paragraph of Section 7.2), and any two or more
of all such rights and remedies may be exercised at the same time insofar as
permitted by law. Nothing contained in this Lease shall, however, limit or
prejudice the right of Landlord to prove and obtain in proceedings for
bankruptcy or insolvency by reason of the termination of this Lease, an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when and governing the proceedings in which the damages are to be proved,
whether such amount be greater, equal to, or less than the amount of the loss or
damages referred to in the preceding Section.
7.4 Effect of Waivers of Default. Any consent or permission by Landlord or
Tenant to any act or omission which otherwise would be a breach of any covenant
or condition, or any waiver by Landlord or Tenant of the breach of any covenant
or condition, shall not in any way be held or construed to operate so as to
impair the continuing obligation of such covenant or condition, or otherwise
operate to permit other similar acts or omissions. No breach shall be deemed to
have been waived unless and until such waiver be in writing and signed by the
party granting such waiver. The failure
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of either party to seek redress for violation of or insist upon the strict
performance of any covenant or condition of this Lease, or the receipt by
Landlord of rent with knowledge of any violation, shall not be deemed a consent
to or waiver of such violation, nor shall it prevent a subsequent act, which
would otherwise constitute a violation, from in fact being a violation.
7.5 No Accord and Satisfaction; No Surrender. No acceptance by Landlord of
a lesser sum than the Annual Fixed Rent, additional rent or any other sum or
charge then due shall be deemed to he other than on account of the earliest
installment of such rent, sum or charge due; nor shall any endorsement or
statement on any check or in any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or Payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other right or remedy available to it. The delivery of keys (or
any similar act) to Landlord or any agent or employee of Landlord shall not
operate as a termination of this lease or an acceptance of a surrender of the
Premises.
7.6 Waiver of Jury. Landlord and Tenant hereby waive trial by jury in any
summary proceeding in any emergency or other statutory remedy, or in any action
based, in whole or in part, on non-payment of rent; and Tenant further agrees
that it shall not interpose any counterclaim or set-off in any such proceeding
except to the extent such counterclaim or set-off is required under the
applicable rules of procedure to be raised in the same action or to avoid its
waiver.
7.7 Landlord's Curing and Enforcement. If Tenant shall neglect or fail to
perform or observe any covenant or condition of this Lease and shall not cure
such default within the applicable cure period, Landlord may, at its option,
without waiving any claim for breach, at any time thereafter cure such default
for the account of Tenant, and any amount reasonably paid or any liability
reasonably incurred by Landlord in so doing shall be deemed paid or incurred for
the account of Tenant after notice thereof to Tenant (except in an emergency),
and Tenant shall reimburse Landlord therefor, together with an administrative
charge of five (5%) per cent of the amount thereof, within 20 days after notice
as additional rent; and Tenant shall further indemnify and save Landlord
harmless in the manner elsewhere provided in this Lease in connection with all
of Landlord's actions in effecting any such cure except for Landlord's
negligence or willful misconduct. Notwithstanding any other provision herein
concerning cure periods, Landlord may cure any default for the account of Tenant
after such notice to Tenant, if any, as is reasonable under the circumstances
(including telephone notice) if the curing of such default prior to the
expiration of the applicable cure period is reasonably necessary to prevent
likely damage to the Premises or other improvements or possible injury to
persons, or to protect Landlord's interest in its property or the Premises.
Tenant shall pay to Landlord on demand as additional rent all of the reasonable
costs and expenses of Landlord, including
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such administrative charge and reasonable attorneys' fees, incurred in enforcing
any covenant or condition of this Lease. Without limiting any of its other
rights or remedies, any sum due hereunder shall, in addition, bear interest from
the date due at the greater of (i) one and one-half (1 1/2%) per cent for each
month (or ratable portion thereof) the same remains unpaid, or (ii) three (3%)
per cent per annum (or ratable portion thereof) above the so-called base or
prime lending rate charged by State Street Bank and Trust Company of Boston from
time to time on 90 day loans to its most credit-worthy borrowers; provided that
interest shall never exceed the maximum rate permitted under applicable law.
7.8 Landlord's Default. In no event shall Landlord be in default unless
notice thereof has been given to Landlord (and all mortgagees of which Tenant
has notice) and Landlord (or any such mortgagee at its sole discretion) fails to
perform within 30 days (provided, however, that such 30 day period shall be
reasonably extended in the event of non-monetary defaults if such performance
begins within such period and thereafter is diligently pursued, or if such
mortgagee notifies Tenant within such period that it intends to cure on behalf
of Landlord and thereafter begins and diligently pursues curing with reasonable
promptness).
ARTICLE VIII
------------
Miscellaneous Provisions
------------------------
8.1 Notice from One Party to the Other. All notices required or permitted
hereunder shall be in writing and shall be deemed duly served if mailed by
certified mail, postage prepaid, addressed, if to Tenant, at the Original
Address of Tenant or such other address as Tenant shall have last designated by
notice in writing to Landlord and, if to Landlord, at the Original Address of
Landlord or such other address as Landlord shall have last designated by notice
in writing to Tenant. If requested, Tenant shall send copies of all such notices
in like manner to Landlord's mortgagees and any other persons having an interest
in the Premises and designated by Landlord. Any notice so addressed shall be
deemed duly served on the second business day following the day of mailing if so
mailed by registered or certified mail, return receipt requested, whether or not
accepted.
8.2 Quiet Enjoyment. Landlord agrees that upon Tenant's paying all rent and
performing and observing all covenants, conditions and other provisions on its
part to be performed and observed, Tenant may peaceably and quietly have, hold
and enjoy the Premises during the Term without disturbance by Landlord or anyone
claiming by, through or under it, subject always to the terms of this Lease,
provisions of law, and rights or interests of record to which this Lease may be
or become subject and subordinate.
-34-
8.3 Limitation of Landlord's Liability. Landlord shall be liable only for
breaches of Landlord's obligations occurring while Landlord is owner of the fee
of which the Premises are a part provided, however, that if Landlord shall ever
sell and lease-back such fee, or the ground thereof or the improvements thereon,
then "fee" shall, in such event, be deemed to mean Landlord's leasehold interest
and provided further that as to claims made by Tenant prior to a sale of the
property of which the Premises are a part, the "fee" shall include the proceeds
from a sale of the property . Tenant (and all persons claiming by, through or
under Tenant) agrees to look solely to Landlord's interest from time to time in
the fee of which the Premises are a part for satisfaction of any claim or
recovery of any judgment from Landlord; it being agreed that neither Landlord
nor any trustee, beneficiary, partner, agent or employee of Landlord shall ever
be personally or individually liable for any claim or judgment, or otherwise, to
Tenant (or such persons). In no event shall Landlord ever be liable to Tenant
(or such persons) for indirect or consequential damages; nor shall Landlord ever
be answerable or liable in any equitable judicial proceeding or order beyond the
extent of its interest in the fee of which the Premises are a part.
8.4 Excusable Delay. In any case where either party hereto is required to
do any act (other than the payment of Annual Fixed Rent, additional rent or any
other sum or charge, including without limitation ascertaining the dates when
such rental payments are payable), including the completion of Landlord's Work
and Landlord's obligations to rebuild under Sections 6.3 and 6.4, delays caused
by or resulting from war, civil commotion, fire, flood or other casualty, labor
difficulties, shortages or other unavailability of labor, materials, equipment,
energy or utility services, unusually severe weather, or other like causes
beyond such party's reasonable control shall not be counted in determining the
time during which such act shall be completed, whether such time be a fixed
date, a fixed time or "a reasonable time," and such time shall be deemed to be
extended by the period of such delay except to the extent otherwise permitted
under this Lease. This Section 8.4 shall not affect Tenant's right of
termination contained in Section 2.3.
8.5 Applicable Law and Construction. This Lease may be executed in
counterpart copies and shall be governed by and construed as a sealed instrument
in accordance with the laws of The Commonwealth of Massachusetts. If any
provision shall to any extent be invalid, the remainder of this Lease shall not
be affected. Other than contemporaneous instruments executed and delivered of
even date, if any, this Lease contains all of the agreements between Landlord
and Tenant with respect to the Premises and supersedes all prior dealings
between them with respect thereto. There are no oral agreements between Landlord
and Tenant affecting this Lease. This Lease may be amended only by an instrument
in writing executed by Landlord and Tenant. The enumeration of specific examples
of a general provision shall not be construed as a limitation of the general
provision. Unless a party's approval or consent is required by its terms not to
be
-35-
unreasonably withheld, such approval or consent may be withheld in the party's
sole discretion. If Tenant is granted any extension or other option, to be
effective the exercise (and notice thereof) shall be unconditional, time always
being of the essence to any options; and if Tenant purports to condition the
exercise of any option or vary its terms in any manner, then the option granted
will automatically and immediately become null and void and the purported
exercise will be ineffective. This Lease and all consents, notices and other
related instruments may be reproduced by any party by photographic, microfilm,
microfiche or other reproduction process and the originals thereof may be
destroyed; and each party agrees that reproductions will be admissible in
evidence to the same extent as the original itself in and judicial or
administrative proceeding (whether or not the original is in existence and
whether or not reproduction was made in the regular course of business), and
further reproduction will likewise be admissible. The titles of the several
Articles and Sections are for convenience only, and shall not be considered a
part hereof. The submission of a form of this Lease or any summary of its terms
shall not constitute an offer by Landlord to Tenant; but a leasehold shall only
be created and the parties bound when this Lease is executed and delivered by
both Landlord and Tenant.
8.6 Successors and Assigns. Except as herein provided otherwise, the
agreements and conditions in this Lease contained on the part of Landlord to be
performed and observed shall be binding upon Landlord and its legal
representatives, successors and assigns, and shall inure to the benefit of
Tenant and its legal representatives, successors and assigns; and the agreements
and conditions on the part of Tenant to be performed and observed shall be
binding upon Tenant (and any guarantor of Tenant) and Tenant's legal
representatives, successors and assigns and shall inure to the benefit of
Landlord and its legal representatives, successors and assigns.
8.7 Relationship of the Parties. Nothing herein shall be construed as
creating the relationship between Landlord and Tenant of principal and agent, or
of partners or joint venturers; it being understood and agreed that neither the
manner of fixing rent, nor any other provision of this Lease, nor any act of the
parties, shall ever be deemed to create any relationship between them other than
the relationship of landlord and tenant.
8.8 Estoppel Certificate. Within two weeks of either party's request,
Landlord and Tenant agree, in favor of the other, to execute, acknowledge and
deliver a statement in writing certifying that this Lease is unmodified and in
full force and effect (or, if there have been any modifications that the same is
in full force and effect as modified and stating the modifications), and the
amount and dates to which the Annual Fixed Rent (and additional rent and all
other charges) have been paid and any other information reasonably requested.
Both parties intend and agree that any such statement may be relied upon by any
prospective purchaser, mortgagee, or other person to whom the same is delivered.
If Tenant fails to provide such a statement within the time period set forth
above, Tenant
-36-
hereby irrevocably appoints Landlord as Tenant's attorney-in-fact, in its name,
place and stead to do so.
8.9 Notice of Lease. Neither party shall record this Lease, but each party
will, upon request of the other, execute a recordable notice of lease in a form
reasonably approved by Landlord and, upon termination for whatever reason, a
like notice of termination of lease; and Tenant irrevocably appoints Landlord as
its attorney-in-fact, with full power of substitution, to execute, acknowledge
and deliver a notice of termination of lease in Tenant's name, place and stead
if Tenant fails so to do with five (5) days of any request, provided that Tenant
is no longer occupying the Premises.
8.10 Landlord and Tenant as Business Entities. If Landlord and Tenant are
business entities, each warrants and represents that (a) it is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it was organized; (b) it has duly executed and delivered this Lease; (c)
its execution, delivery and performance of this Lease (i) are within its powers,
and (ii) have been duly authorized by all requisite action; and (d) the Lease is
a valid and binding obligation upon it in accordance with the terms set forth
therein. This warranty and representation shall survive the termination of the
Term.
ARTICLE IX
----------
Brokers
-------
9.1 Brokers. Tenant and Landlord each represents and warrants to the other
that it has not dealt with any broker (other than Landlord's Agent and the
person identified as the Broker in Section 1.1, if any) in connection with this
Lease or the Premises and each agrees to indemnify and save the other harmless
from all loss, claim, damage, cost or expense (including reasonable attorneys'
fees of counsel of the indemnitee's choice against whom the indemnitor makes no
reasonable objection) arising from any breach of this representation and
warranty. This warranty and representation shall survive the term or any early
termination of this Lease. The fees of Landlord's Agent will be paid by
Landlord. Any commission payable to the Broker shall be paid by Tenant.
-37-
ARTICLE X
---------
Landlord's Financing
--------------------
10.1 Subordination and Superiority of Lease. Tenant agrees that this Lease
and the rights of Tenant hereunder will be subject and subordinate to the
present or future lien of any first mortgage, (and at Landlord's election, to
the lien of any subordinate mortgage or mortgages) and to the rights of any
lessor under any ground or improvements lease of the Premises (collectively
referred to in this Lease as a "mortgage" and the holder or lessor thereof from
time to time as a "mortgagee"), and to all advances and interest thereunder and
all modifications, renewals, extensions and consolidations thereof; provided
however, that with respect to future liens, the mortgagee of any mortgage or the
holder of any ground or improvement lease hereafter granted executes and
delivers to Tenant an agreement in which the mortgagee agrees that Tenant shall
not be disturbed in its possession upon Tenant's attornment to such mortgagee as
Landlord and performance of its Lease covenants (both of which conditions Tenant
agrees with all mortgagees to perform). Tenant agrees that any mortgagee may at
its option unilaterally elect to subordinate, in whole or in part and by
instrument in form and substance satisfactory to such mortgagee alone, the lien
of its mortgage (or the priority of its ground lease) to some or all provisions
of this Lease. Landlord shall use reasonable efforts to obtain an amended
nondisturbance and attornment agreement from Landlord's existing mortgagee on
such mortgagee's customary form and shall request such a nondisturbance and
attornment agreement within 30 days after executing this Lease. Landlord shall
use good faith efforts to obtain a nondisturbance and attornment agreement from
any future mortgagee of Landlord on such mortgagee's customary form.
Tenant agrees that this Lease shall survive the merger of estates of ground
(or improvements) lessor and lessee. Until a mortgagee (either superior or
subordinate to this Lease) forecloses Landlord's equity of redemption (or
terminates in the case of a ground or improvements lease), no mortgagee shall be
liable for failure to perform any of Landlord's obligations (and such mortgagee
shall thereafter be liable only after it succeeds to and holds Landlord's
interest and then only as limited herein). No mortgagee shall be bound by any
payment of rent more than one month in advance. Tenant shall, if requested by
Landlord or any mortgagee, give notice of any alleged non-performance on the
part of Landlord to any such mortgagee; and Tenant agrees that such mortgagee
shall have a separate, consecutive reasonable cure period of no less than 30
days (to be reasonably extended in the same manner Landlord's 30 day cure period
is to be extended) or more than 60 days following Landlord's cure period during
which such mortgagee may, but need not, cure any non-performance by Landlord.
The agreements in this Lease with respect to the rights and powers of a
mortgagee constitute a continuing offer to any person which may be accepted by
taking a mortgage (or entering into a ground or improvements lease) of the
Premises.
-38-
10.2 Rent Assignment. If from time to time Landlord assigns this Lease or
the rents payable hereunder to any person, whether such assignment is
conditional in nature or otherwise, such assignment shall not be deemed an
assumption by the assignee of any obligations of Landlord; but the assignee
shall be responsible only for non-performance of Landlord's obligations which
occur after it succeeds to and only while it holds Landlord's interest in the
Premises.
10.3 Other Instruments. The provisions of this Article shall be
self-operative; nevertheless, Tenant agrees to execute, acknowledge and deliver
any subordination, attornment or priority agreements or other instruments
conforming to the provisions of this Article (and being otherwise commercially
reasonable) from time to time requested by Landlord or any mortgagee in
furtherance of the foregoing, and further agrees that its failure to do so
within 20 days after written demand shall be subject to the monetary default
provisions of this Lease.
WITNESS the execution hereof under seal as of the date first set forth
above.
TENANT:
Interneuron Pharmaceuticals, Inc.
By: /s/ Glenn L. Cooper
----------------------------------------
President
By: /s/ Thomas F. Farb
----------------------------------------
Treasurer
LANDLORD:
Ledgemont Realty Trust
By: /s/ Robert L. Beal
-----------------------------------------
Trustee, but not individually
-39-
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<DEPRECIATION> (2106000)
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