<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For quarter ended September 30, 1999 Commission File No. 0-19312
------------------ -------
MEDAREX, INC.
-------------
(Exact name of registrant as specified in its charter.)
New Jersey 22-2822175
- ---------- ----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
1545 Route 22 East, Annandale, New Jersey 08801
- ----------------------------------------- -----
(Address or principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (908) 713-6001
--------------
Indicate by check mark whether registrant (1) has filed all reports required to
be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
The number of shares of common stock, $.01 par value, outstanding as of November
9, 1999 was 31,706,587 shares.
Page 1 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
December 31, September 30,
---------------- ----------------
1998 1999
ASSETS
- ------
<S> <C> <C>
Current assets
Cash and cash equivalents $ 4,411 $ 4,059
Marketable securities 30,253 16,179
Trade accounts receivable, less allowance for doubtful
accounts of $5 16 22
Inventory 49 36
Prepaid expenses and
other current assets 1,796 1,926
-------------- ---------------
Total current assets 36,525 22,222
Property and equipment
Machinery and equipment 4,439 4,960
Furniture and fixtures 282 355
Leasehold improvements 2,321 2,250
-------------- ---------------
7,042 7,565
Less accumulated depreciation and amortization (3,703) (4,333)
-------------- ---------------
3,339 3,232
Investments in, and advances to affiliates 561 549
Segregated cash 1,300 1,300
Patent rights and other assets 510 478
-------------- ---------------
Total assets $ 42,235 $ 27,781
============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Trade accounts payable $ 394 $ 340
Accrued liabilities 4,867 2,465
Deferred contract revenue 1,683 408
-------------- ---------------
Total assets 6,944 3,213
Long-term obligations 62 29
Commitments - -
Stockholders' equity
Preferred stock, $1.00 par value, 2,000,000 shares authorized;
none issued and outstanding - -
Common stock, $.01 par value; 40,000,000 shareS authorized;
31,507,186 shares issued and outstanding at December 31,
1998 and 32,154,036 shares issued and 31,551,536 shares
outstanding at September 30, 1999 315 322
Captial in excess of par value 144,252 144,495
Treasury stock, at cost 0 and 602,500 shares, respectively - (3,031)
Deferred compensation - 2,970
Accumulated other comprehensive income (loss) 67 (367)
Accumulated deficit (109,405) (119,850)
-------------- ---------------
Total stockholders' equity 35,229 24,539
-------------- ---------------
Total liabilites and stcokholders' equity $ 42,235 $ 27,781
============== ===============
</TABLE>
See notes to theses unauditied consolidated financial statements.
Page 2 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except share data)
<TABLE>
<CAPTION>
Nine Months Ended Three Months Ended
September 30, September 30, September 30, September 30,
1998 1999 1998 1999
-------------- ------------- ------------- ------------
<S> <C> <C> <C> <C>
Sales $ 574 $ 532 $ 53 $ 45
Grants, contract and license revenues 4,086 7,809 1,203 1,269
-------------- ------------- ------------- ------------
Total revenues 4,660 8,341 1,256 1,314
Costs and expenses:
Cost of sales 472 183 25 27
Research and development 16,106 15,166 5,156 4,998
General and administrative 3,619 4,245 1,415 1,629
-------------- ------------- ------------- ------------
Operating loss (15,537) (11,253) (5,340) (5,340)
Interest and dividend income 1,640 814 440 256
Interest expense 1,531 6 322 2
-------------- ------------- ------------- ------------
Pre tax loss (15,428) (10,445) (5,222) (5,086)
Provision for income taxes 342 - 342 -
-------------- ------------- ------------- ------------
Net loss $ (15,770) $ (10,445) $ (5,564) $ (5,086)
============== ============= ============= ============
Basic and diluted net loss per share ($0.67) ($0.33) ($0.22) ($0.16)
============== ============= ============= ============
Weighted-average number of common
shares outstanding during the period
-basic and diluted 23,405,584 31,774,055 25,815,038 32,144,114
</TABLE>
See notes to these unauditied consolidated statements.
Page 3 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
For the Nine Months Ended
September 30,
------------
1998 1999
---- ----
<S> <C> <C>
Operating activities: $ (15,770) $ (10,445)
Net loss
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 573 480
Amortization 336 257
Non-cash interest expense 1,521 -
Changes in operating assets and liabilities, net of acquisition:
Trade accounts receivable, net 1 (6)
Inventory (679) 13
Prepaid expenses and other current assets (652) (130)
Trade accounts payable (39) (54)
Accrued liabilities (1,935) (2,390)
Deferred contract revenue - (1,275)
------------------- -------------------
Net cash used in operating activities (16,644) (13,550)
Investing activities:
Purchase of property and equipment (1,399) (598)
Decrease in note receivable 15,000 -
Increase in other assets (360) -
Increase (decrease) in advances to affiliate (100) 12
Purchase of marketable securities (20,757) (4,000)
Sale of marketable securities 19,475 17,640
------------------- -------------------
Net cash provided by investing activites 11,859 13,054
Financing activities:
Cash received from sales of securities, net 4,992 189
Principal payments under debt obligations (195) (45)
------------------- -------------------
Net cash provided by financing activities 4,797 144
------------------- -------------------
Net increase (decrease) in cash and cash equivalents 12 (352)
Cash and cash equivalents at beginning of period 6,723 4,411
------------------- -------------------
Cash and cash equivalents at end of period $ 6,735 $ 4,059
=================== ===================
Supplemental disclosures of cash flow information
Cash paid during period for:
Income taxes $ 983 $ -
=================== ===================
Interest $ 10 $ 6
=================== ===================
</TABLE>
See notes to these unaudited consolidated financial statements.
Page 4 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
1. Organization and basis of presentation
The unaudited consolidated financial statements have been prepared from the
books and records of Medarex, Inc. and Subsidiaries (the "Company") in
accordance with the instructions to Form 10-Q and, accordingly, do not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary for a
fair presentation have been included. Interim results are not necessarily
indicative of the results that may be expected for the year. For further
information, refer to the financial statements and footnotes thereto included in
the Company's annual report on Form 10-K for the year ended December 31, 1998.
2. Net loss per common share
Basic and diluted earnings per share is calculated in accordance with the
Financial Accounting Standards Board ("FASB") SFAS No. 128, Earnings per Share.
3. Marketable Securities
Marketable securities consist of fixed income investments with a maturity
of greater than three months and other highly liquid investments which can be
readily purchased or sold using established markets. Such securities, which are
classified as available-for-sale, are carried at market with unrealized gains
and losses reported as a separate component of stockholders' equity.
4. Inventory
Inventory consists primarily of antibodies to be sold to the research
community and to licensees pursuant to licensing arrangements for use in human
clinical testing of the Company's products and is stated at the lower of cost or
market with cost determined on a first-in-first-out basis.
5. Contingencies
In connection with the merger of the Company and Essex Medical Products,
Inc., the Company issued promissory notes to Essex Chemical Corporation
("Essex") in the principal amount of $100, which have been subsequently repaid,
and committed to pay 20% of the Company's net after tax income until a total of
$1,000 has been paid. At the Company's option, this obligation may be
satisfied by the payment of shares of the Company's Common Stock having a fair
market value equal to the amount owed, provided such shares are registered for
sale with the Securities and Exchange Commission. Amounts up to $1,000 will be
payable to Essex, based solely on the earnings of the Company, by March 31 of
each year, to the extent of 20% of net after tax earnings of the Company
realized during the preceding fiscal year.
Page 5 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
6. Executive Deferred Compensation Plan
Effective March 31, 1999 the Company instituted an executive deferred
compensation plan to permit certain individuals to defer the gain on the
exercise of stock options to a specified future period. In June 1999, six
individuals deferred the gain on the exercise of options to purchase 602,500
shares of the Company's common stock which is included as treasury stock in the
Company's September 30, 1999 consolidated balance sheet. The Company's
executive deferred compensation plan does not permit diversification and must be
settled by the delivery of 590,521 shares of the Company's stock on September 7,
2002 and accordingly changes in the fair value of the amount owed to the
individuals is not recognized.
7. Comprehensive Income
On January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" (SFAS 130). SFAS 130
establishes new rules for the reporting and display of comprehensive income and
its components. The adoption of SFAS 130 had no impact on the Company's results
of operations or stockholders' equity. SFAS 130 requires unrealized gains or
losses on the Company's available-for-sale securities, which prior to adoption
were reported separately in stockholders' equity to be included in other
comprehensive income. The components of comprehensive loss for the three and
nine months ended September 30, are as follows:
<TABLE>
<CAPTION>
Nine months ended Three months ended
September 30, September 30,
1998 1999 1998 1999
------------------ ------------------ ------------------ ------------------
<S> <C> <C> <C> <C>
Net loss $(15,770) $(10,445) $(5,564) $(5,086)
Unrealized gain (loss) on securities (106) (434) 6 (32)
--------------------------------------- ---------------------------------------
Total comprehensive loss $(15,876) $(10,879) $(5,558) $(5,118)
</TABLE>
8. Segment Information
The Company is an integrated monoclonal antibody-based company with
antibody discovery, development and manufacturing capabilities. The operations
of the Company and its wholly-owned subsidiaries constitute one business
segment.
Page 6 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
8. Segment Information (con't)
Revenue from customers representing 10% or more of total revenues for the
three and nine months ended September 30, 1998 and 1999 is as follows:
<TABLE>
<CAPTION>
Nine Months Ended Three Months Ended
September 30, September 30,
Customer 1998 1999 1998 1999
- -------- ---- ---- ---- ----
<S> <C> <C> <C> <C>
Centocor, Inc. 10% 48% 0% 0%
Merck KGaA 17% 24% 27% 37%
Genmab A/S 0% 7% 0% 15%
Centeon L.L.C. 21% 4% 22% 2%
Novartis Pharma AG 0% 4% 0% 11%
Amgen, Inc. 0% 2% 0% 15%
Schering AG 8% 1% 11% 3%
Santen Pharmaceutical Co., Ltd. 14% 0% 18% 0%
Eisai Co., Ltd. 16% 0% 0% 0%
</TABLE>
No other single customer accounted for more than 10% of the Company's total
revenues for the three and nine months ended September 30, 1998 and 1999,
respectively.
Page 7 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
This Quarterly Report on Form 10-Q contains "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, which represent
the Company's projections, estimates, expectations or beliefs concerning among
other things, financial items that relate to management's future plans or
objectives or to the Company's future economic and financial performance.
Forward-looking statements involve known and unknown risks and uncertainties and
are indicated by words such as "anticipates", "expects", "believes", "plans",
"could" and similar words and phrases. These risks and uncertainties include,
but are not limited to, the Company's early stage of product development,
history of operating losses and accumulated deficit, additional financing
requirements and access to capital funding, dependence on strategic alliances,
government regulation of the biopharmaceutical industry and other risks that may
be detailed from time to time in the Company's periodic reports and registration
statements filed with the Securities and Exchange Commission.
Liquidity and Capital Resources
- -------------------------------
The Company had approximately $20,200 in cash, cash equivalents and
marketable securities and approximately $1,300 in a segregated cash account as
of September 30, 1999. Operating activities consumed $13,550 of cash for the
nine-month period ended September 30, 1999.
To date, the Company's sources of cash have been the proceeds from the sale
of its securities through public and private placements, sales of its products
for research purposes and technology transfer and license fees.
The Company's current sources of liquidity are its cash, cash equivalents
and marketable securities, interest and dividends earned on such cash, cash
equivalents and marketable securities, sales of its products for research and
contract and licensing revenues. Management believes that under existing
operating plans its current sources of liquidity will be sufficient to meet
anticipated cash requirements for at least the next 15 months.
The Company has leased approximately 53,000 square feet of laboratory,
clinical trial production and office space in a modern facility on a research
campus in Annandale, New Jersey, that was developed by Exxon Research and
Engineering Company as its corporate research headquarters. Management believes
that this facility is well suited for clinical-grade production of bispecific
and monoclonal antibodies as it has in place most utilities required for
clinical-grade production of such antibodies, including a production unit
designed to meet cGMP standards. By leasing this facility and spending modestly
to adapt it, management believes that the Company has preserved a considerable
amount of capital that might otherwise have been used to build a
biopharmaceutical production facility.
Page 8 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Liquidity and Capital Resources (con't)
- ---------------------------------------
This lease runs through September 30, 2003. On January 8, 1998, the Company
signed a lease for laboratory and office space in San Jose, California. This
lease runs through December 2001. On July 2, 1999, the Company signed a lease
for 6,410 square feet of office space in Princeton, New Jersey. This lease runs
through July 2004. On August 9, 1999, the Company signed a lease for 10,588
square feet of office space in Annandale, New Jersey, to replace 9,300 square
feet of office space that will be vacated in the Exxon facility. This lease
runs through November 2004. The minimum combined lease commitments for all
facilities range between $1,600 and $2,300 per year and the aggregate future
minimum lease commitments over the remainder of the lease terms are
approximately $8,900. As of September 30, 1999, the Company had commitments for
approximately $501 of capital expenditures.
Upon exhaustion of its current cash reserves, the Company's continued
operations will depend on its ability to raise additional funds through equity
or debt financing and/or enter into licensing or joint development agreements,
including collaborative research and development arrangements with large
pharmaceutical companies pursuant to which certain costs associated with the
regulatory approval process for certain of its products would be borne by the
licensees or joint developers. There can be no assurance that these sales or
financing activities will be successful.
Year 2000 Implications
- ----------------------
Many currently installed computer systems and software products are coded
to accept only two-digit entries in the date code field and cannot reliably
distinguish dates beginning on January 1, 2000 from dates prior to the year
2000. Many companies' software and computer systems may need to be upgraded or
replaced in order to correctly process dates beginning in 2000 and to comply
with the "Year 2000" requirements. The Company has determined that there are no
significant Year 2000 issues with its systems or services. With respect to its
internal systems, the Company in conjunction with expert third-party Year 2000
consultants, has completed a review of its business systems including its
research and development, financial, communication and administrative operations
and is implementing programs to address its potential exposures to the Year 2000
issue. Based on this review, systems identified as non-year 2000 compliant are
either being replaced or corrected through software upgrades. The Company has
replaced or corrected all non-compliant systems. The Company estimates the cost
of its Year 2000 efforts to be approximately $60, of which approximately $25 has
been incurred to date. The total cost estimate is based on management's current
assessments and is subject to change.
In addition, the Company has gathered information about the Year 2000
compliance status from its significant suppliers and subcontractors and
continues to monitor their compliance. Although the Company believes that its
systems are Year 2000 compliant, the equipment and software of its suppliers and
subcontractors may not be Year 2000 compliant. Failure of such third-party
equipment and software to properly process dates for the year 2000 and
thereafter could require the Company to incur unanticipated expenses to remedy
any problems.
Page 9 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Year 2000 Implications (con't)
- ------------------------------
The Company has alternative suppliers for most of its critical materials.
However, the Company cannot accurately predict the occurrence or the outcome of
any such problems, nor can the dollar amount of any such problems be estimated.
The failure to identify and remedy Year 2000 problems could disrupt important
operations such as product development and ongoing clinical trials. Such
disruptions could affect the development and ultimate marketing of potential
products as well as put the Company at a competitive disadvantage to companies
that have corrected such problems. Additionally, these events could have a
material adverse effect on results of operations and financial condition. The
Company has developed contingency plans to address these potential problems with
internal systems and with third parties, these plans, may need to be refined, as
more information becomes available.
Results of Operations
- ---------------------
Nine months ended September 30, 1998 and 1999
- ---------------------------------------------
Revenue for the nine-month period ended September 30, 1999 increased by
$3,681, a 79% increase from the nine-month period ended September 30, 1998. The
increase relates principally to a $4,000 milestone payment from Centocor, Inc.
("Centocor"). Centocor holds exclusive commercial licenses to develop HuMAb
antibodies to four targets. Additionally, the increase reflects payments
pursuant to license agreements with Merck KGaA.
Cost of sales decreased by $289 during the first nine months of 1999, a 61%
decrease as compared to the first nine months of 1998. The decrease is due to
lower 1999 production of MDX-447 for Merck KGaA.
Research and development expenses decreased $940 during the first nine months
of 1999, a 6% decrease from the first nine months of 1998. The decrease is
principally due to a lower level of human clinical trial activity reflecting the
suspension of patient enrollment in the Phase III trial of MDX-RA. This savings
was partially offset by higher personnel costs and license fees.
General and administrative expenses increased by $626 for the first nine
months of 1999, a 17% increase from the first nine months of 1998. The increase
is primarily attributable to heightened business development activities and
shareholder relation expenses.
Page 10 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Results of Operations
- ---------------------
Nine months ended September 30, 1998 and 1999 (con't)
- -----------------------------------------------------
Interest and dividend income decreased by $826 for the nine-months ending
September 30, 1999, a 50% decrease as compared to the nine months ended
September 30, 1998. Interest income in the nine-month period ended September 30,
1998 included interest of $788 on a $15 million note from Cell Genesys, Inc.
("Cell Genesys"). This note matured and was paid in September 1998.
Interest expense decreased by $1,525 for the nine-months ending September 30,
1999, a 100% decrease as compared to the nine months ended September 30, 1998.
Interest expense in the nine-month period ended September 30, 1998 was
attributable to amortization of a discount associated with the accounting
treatment of the value of the liability due to the shareholders of GenPharm
International, Inc. ("GenPharm") pursuant to the acquisition of GenPharm by the
Company in October 1997. This liability was satisfied on various dates through
September 1, 1998.
Results of Operations
- ---------------------
Three months ended September 30, 1998 and 1999
- ----------------------------------------------
Revenue for the three-month period ended September 30, 1999 increased by $58,
a 5% increase from the three-month period ended September 30, 1998. The
increase reflects revenues from collaborations with Amgen, Inc., Genmab A/S and
Novartis Pharma AG partially offset by lower revenues from Centeon L.L.C. and
Sante Pharmaceutical Co., Ltd.
Cost of sales were approximately the same during the third quarter of 1999,
as compared to the quarter ended September 30, 1998.
Research and development expenses decreased $158 during the quarter ended
September 30, 1999, a 3% decrease as compared to the same period in 1998. The
decrease is principally due to lower clinical trial expenses reflecting the
suspension of patient enrollment in the Phase III trial of MDX-RA, as well as, a
reduction in manufacturing expenses, partially offset by higher patent and
license fees.
General and administrative expenses increased by $214 for the three-month
period ending September 30, 1999, a 15% increase from the same period in 1998.
The increase is primarily attributable to increased business development costs
and shareholder relations expenses.
Page 11 of 14
<PAGE>
MEDAREX, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
(Dollars in thousands)
Results of Operations
- ---------------------
Three months ended September 30, 1998 and 1999 (con't)
- ------------------------------------------------------
Interest and dividend income decreased by $184 for the three-months ending
September 30, 1999, a 42% decrease as compared to the quarter ended September
30, 1998. Interest income in the three-month period ended September 30, 1998
included interest of $263 on a $15 million note from Cell Genesys. This note
matured and was paid in September 1998.
Interest expense decreased by $320 for the three-months ending September 30,
1999, a 100% decrease as compared to the same quarter ended September 30, 1998.
Interest expense in the three-month period ended September 30, 1998 was
attributable to amortization of a discount associated with the accounting
treatment of the value of the liability due to the shareholders of GenPharm
pursuant to the acquisition of GenPharm by the Company in October 1997. This
liability was satisfied on various dates through September 1, 1998.
Page 12 of 14
<PAGE>
Part II - Other Information
Item 6. Exhibits and reports on Form 8-K
(a) Reports on Form 8-K: None
(b) Exhibits
10.86 Annandale Lease
27.1 Financial Data Schedule
Page 13 of 14
<PAGE>
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.
MEDAREX, INC.
-------------
(Registrant)
Date: November 10, 1999 By /s/ Michael A. Appelbaum
------------------------
Michael A. Appelbaum
Executive Vice President
Finance & Administration
(Principal Financial and
Accounting Officer)
Page 14 of 14
<PAGE>
EXHIBIT 10.86
LEASE
THE HUNTERDON GROUP
a New Jersey Proprietorship
as Landlord
and
MEDAREX, INC.
A Corporation of the State of New Jersey
as Tenant
Dated: August 9, 1999
<PAGE>
THIS LEASE, made this 9 day of August 1999, between THE HUNTERDON GROUP, a
New Jersey Proprietorship with an address of PO Box 83, Pittstown (hereinafter
referred to as "LANDLORD") and MEDAREX, INC., a New Jersey Corporation with an
address of 1545 Route 22 East, PO Box 953, Annandale, New Jersey 08801,
hereinafter referred to as "TENANT"), and for and in consideration of the mutual
covenants herein contained, and upon the terms and conditions herein set forth,
it is hereby agreed between the LANDLORD and the TENANT as follows:
1. DESCRIPTION OF PREMISES: The LANDLORD hereby leases to the TENANT, and
the TENANT hereby hires from the LANDLORD, subject to the conditions hereinafter
expressed, the following space in the building known as the Stratford Building,
as built substantially in accordance with plans, as modified to this date, on
file in the LANDLORD'S office and available for inspection by the TENANT upon
notice to the LANDLORD.
(A) The entire BUILDING known as the Stratford Building, in the Annandale
Square Complex located at 67 Beaver Avenue and old Allerton Roads,
Clinton Township, Hunterdon County, New Jersey, as such space is shown
on the plan attached hereto, (such leased space being hereinafter
called the "PREMISES", such building being hereinafter called the
"BUILDING" and such complex being hereinafter called the "SQUARE").
Leased PREMISES having an calculated square footage of 10,588 square
feet.
TOGETHER WITH, the right to use in common with the other occupants of
the SQUARE, their agents, customers, invitees and licensees, those
public areas of the Square, all on the terms and conditions
hereinafter set forth.
2. CONDITION OF PROPERTY. Neither the LANDLORD nor its agents have made any
representations with respect to the BUILDING, the land upon which it is erected
or the leased PREMISES except as expressly set forth herein. No rights,
easements or licenses are acquired by the TENANT by implication or otherwise
except as expressly set forth in the provisions of this lease. The taking of
possession of the leased property by the TENANT shall be conclusive evidence
that the TENANT accepts the same "as is" and that the leased PREMISES and the
BUILDING of which the same form or are a part of were in good condition at the
time possession was taken, subject to and excluding any latent defects in the
BUILDING. The rent hereunder shall in no case be withheld or diminished on
account of any defect in such property, any change in the condition thereof, any
damage occurring thereto or the existence with respect thereto of any violations
of the laws or the regulations of any governmental authority. However, TENANT
shall not be obligated to pay any rent payments while any such defect prevents
TENANT'S use of the leased PREMISES.
3. LANDLORD'S REPRESENTATION OF GOOD TITLE. The LANDLORD represents that it
has the full right, power and authority to enter into this lease for the term
herein granted.
2
<PAGE>
4. TERM. The leased PREMISES is leased for a term of FIVE (5) years (the
"Original Lease Term"), commencing upon the issuance of a certificate of
occupancy for the PREMISES (currently anticipated to be on or about December 1,
1999), and ending on a date five (5) years thence, or, assuming a commencement
date of December 1, 1999, on November 31, 2004.
5. OPTION FOR EXTENSION. The TENANT is hereby granted an option to renew
this lease, which option may be exercised a maximum of ONE (1) time, upon the
following terms and conditions:
a. Notice of the exercise of the option for extension shall be sent to
the LANDLORD, in writing, at least EIGHT (8) months before the
expiration of the Original Lease Term.
b. No default by the TENANT shall exist on the date of the giving of the
notice of extension or on the date of the commencement of the extended
term.
c. The extended term shall be for a term of five (5) years to commence at
the expiration of the Original Lease Term and all of the terms and
conditions of this lease, other than the basic rent, shall apply
during any such extended term.
d. The basic annual rent (payable in equal monthly installments) shall be
at a rate determined by taking the FIFTH year monthly lease amount,
paid in the Original Lease Term, and increasing said monthly lease
amount, for the 12 (TWELVE) months following by the same percentage as
the percentage increase in the Consumer's Price Index for the New
York, New York/Northeastern New Jersey Metropolitan Area, taken from
the time period of TWELVE months prior to the renewal period or by
increasing the base rent by 3%whichever is greater, but in no event
shall said increase be greater than 5%.
e. During any extended term, the basic annual rent shall be adjusted for
each year of such extended term using the formula described in the
above paragraph (paragraph d).
The new annual rent as so determined pursuant to the terms of this section
shall be due and payable by the TENANT in equal monthly installments commencing
with the first month of each year of the extended term of the lease.
6. BASIC RENT. The TENANT shall pay to the LANDLORD during the original
lease term, basic rent in the amount of ONE MILLION EIGHTY SIX THOUSAND EIGHT
HUNDRED FIFTY FIVE DOLLARS AND N0/100 ($1,086,855.00) (the "Basic Rent") payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts. The
Basic Rent for the original leased term
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shall be payable in monthly installments, in advance, on the first day of each
calendar month during the term, in the following amounts:
On the first day of each and every month of the Original Lease Term,
$18,114.25, shall be due and payable provided, however, that a
proportionately lesser sum shall be paid for the first month of the
Original Lease Term if the original lease term commences on a date other
than the first day of the month. The TENANT shall make all rental payments,
including any additional rent as defined in section 25 of this lease (the
"additional rent") to the LANDLORD, at the LANDLORD'S above stated address,
or at such other place as the LANDLORD may designate in writing, without
demand and without any counterclaim, deduction, or set-off whatsoever at
any time.
7. SECURITY DEPOSIT. The TENANT shall not be required to deposit with the
LANDLORD any security deposit.
8. ISRA. TENANT shall, at TENANT'S own expense, comply with the Industrial
Site Recovery Act, N.J.S.A. 13:1k-6 et seq. and the regulations promulgated
thereunder (hereinafter referred to as "ISRA") in line with the closing,
termination and transfer of TENANT'S operation, use and occupancy of the leased
PREMISES, and shall furnish the LANDLORD with evidence of such compliance prior
to the closing, termination or transfer or TENANT'S operations or the cessations
of use and occupancy at the leased PREMISES.
TENANT shall also provide all information within TENANT'S control requested
by LANDLORD or the Bureau of Industrial Site Evaluation of the New Jersey
Department of Environmental Protection or Preparation of Non-Applicability
Affidavits should LANDLORD or the New Jersey Department of Environmental
Protection so request, and TENANT shall promptly execute such affidavit should
the information contained therein be found by TENANT to be complete and
accurate.
TENANT shall indemnify and defend LANDLORD from and against any
liabilities, losses and costs, including LANDLORD'S reasonable counsel fees,
which LANDLORD may incur by reason of TENANT'S breach of the provisions of this
paragraph. These provisions shall survive the termination of this lease.
TENANT shall be responsible only to the LANDLORD for conditions occurring
during the term of this lease, or any extensions or renewals of this lease.
LANDLORD guarantees and warrants to the TENANT and the TENANT accepts that
the previous Tenant in the lease space used the PREMISES for general office use
only and that there exists no violations under ISRA regulations.
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9. USE AND OCCUPANCY. The TENANT may use and occupy the leased PREMISES for
any lawful purpose, The TENANT shall not use or knowingly permit any part of the
leased PREMISES to be used for any unlawful purpose.
10. CARE AND ALTERATION OF PREMISES. The TENANT shall commit no act of
waste and shall take good care of the PREMISES and the fixtures and
appurtenances therein, and shall, in the use and occupancy of the PREMISES,
conform to all laws, orders and regulations of the Federal, State and Municipal
Governments. The TENANT shall not, without first obtaining the written consent
of the LANDLORD, make any alterations or improvements in, to or about the
PREMISES. All alterations and improvements made by the TENANT to the PREMISES,
which are so attached to the PREMISES that they cannot be removed without
material injury to the PREMISES, shall become the property of the LANDLORD upon
installation. Not later than the last day of the term of this lease or any
extension thereof pursuant to Section Six of this lease, the TENANT shall, at
the TENANT'S sole expense, remove all of the TENANT'S personal property and
those alterations and improvements made by the TENANT which have not become the
property of the LANDLORD, including trade fixtures; repair all injury caused to
the PREMISES during the TENANT'S use thereof, including but not limited to
injury caused by or in connection with the installation or removal of said
property, alterations and improvements; and surrender the PREMISES in as good
condition as they were at the beginning of the Original Lease Term, reasonable
wear and tear and damage by fire, the elements, casualty or other uninsurable
cause not due to misuse or neglect by the TENANT, the TENANT'S agents,
customers, invitees or licensees excepted. All other property of the TENANT
remaining on the PREMISES after the last day of the term of this lease, or any
extension thereof pursuant to Section 5 of this lease, shall be conclusively
deemed abandoned and may be removed by the LANDLORD, and the TENANT shall
reimburse the LANDLORD for the actual costs of such removal and for all costs in
collecting said sum. The LANDLORD may, but need not, have any such property
stored at the TENANT'S risk and expense and nothing herein shall obligate the
LANDLORD to store or otherwise provide a secure place for such property.
11. REPAIRS AND CARE. The TENANT has examined the PREMISES and has entered
into this lease without any representation on the part of the LANDLORD as to the
condition thereof. The TENANT shall take good care of the PREMISES and shall at
the TENANT'S own cost and expense, make all non-capital repairs, including
painting and decorating, and shall maintain the PREMISES in good condition and
state of repair, except as set forth hereinafter. The TENANT shall neither
encumber nor obstruct the sidewalks, driveways, yards, entrances, hallways and
stairs, but shall keep and maintain the same in clean condition, free from
debris, trash, and refuse. The LANDLORD shall maintain the sidewalks, driveways,
yards, entrances and all other exterior portions of the BUILDING free of snow
and ice.
The LANDLORD'S obligations to make repairs hereunder shall be limited to
making such repairs as are necessary to the common facilities, leased PREMISES
(structural, HVAC, plumbing, other capital items or electrical facilities only
in the leased PREMISES), the parking area and the access ways of the PREMISES.
However, in the event that any such repair is made
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necessary by misuse or neglect on the part of the TENANT or any agent, customer,
invitee or licensee of the TENANT, and is not recoverable under the LANDLORD'S
insurance policies, the TENANT shall reimburse the LANDLORD upon demand, as
additional rent, for the cost of such repair. The LANDLORD shall give the TENANT
such advanced notice of making such repairs as may be reasonable except in the
case of an emergency, and except in the case of repair requested by the TENANT.
The LANDLORD shall attempt, in good faith, to coordinate its schedule with that
of the TENANT in making any such repair. If the LANDLORD intends to require that
any such repair be paid for by the TENANT, LANDLORD shall, before making such
repair, obtain at least three (3) competitive bids for such repair work and
shall select, in its sole discretion, the lowest responsible bidder to perform
such work.
12. INCREASE OF INSURANCE RATE. If for any reason, it shall be impossible
to obtain fire and other hazard insurance in the buildings and improvements in
any portion of the SQUARE, in an amount and in the form and in insurance
companies acceptable to the LANDLORD, the LANDLORD may, if the LANDLORD so
elects at any time thereafter, terminate this lease in the term hereof, upon
giving to the TENANT sixty (60) days notice in writing of the LANDLORD'S
intention so to do, and upon the giving of such notice, this lease and the term
thereof shall terminate. LANDLORD will take no intentional action to cause this
position to be triggered. If by reason of the use to which the PREMISES are put
by the TENANT or character of or the manner in which the TENANT'S business is
carried on, the insurance rates for fire and other hazards shall be increased,
the TENANT shall upon demand, pay to the LANDLORD, as rent, the amounts by which
the premiums for such insurance are increased. Such payments shall be paid with
the next installment of rent but in no case later than one month after such
demand, whichever occurs sooner.
13. COMPLIANCE WITH LAWS. The LANDLORD represents that the BUILDING was
constructed in accordance with all applic le laws and ordinances and will obtain
a certificate of occupancy for the PREMISES. The TENANT shall promptly comply
with all laws, ordinances, rules, regulations, requirements and directives of
the Federal, State and Municipal Governments or public authorities and of all
their departments, bureaus and subdivisions, applicable to and affecting the
said PREMISES, their use and occupancy, for the correction, prevention and
abatement of nuisances, violations or other grievances in, upon or connected
with the said PREMISES, during the term hereof; and shall promptly comply with
all orders, regulations, requirements and directives of the Board of Fire
Underwriters or similar authority and of any insurance companies which have
issued or are about to issue policies of insurance covering the said PREMISES
and its contents, for the prevention of fire or other casualty, damage or
injury, at the TENANT'S own cost and expense, provided, nothing herein shall
require TENANT to make or pay for any capital improvements.
The TENANT shall also observe and comply with such reasonable rules and
regulations as the LANDLORD may promulgate from time to time, on written notice
to the TENANT, for the safety, care and cleanliness of the PREMISES, and the
comfort, quiet and convenience of the occupants of the BUILDING. The TENANT
shall not place an unusual load upon any floor of
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the PREMISES except as may be agreed upon between the LANDLORD and the TENANT in
consultation with the LANDLORD'S architect and which is allowed by law. The
LANDLORD reserves the right to prescribe the weight and position of all
extraordinary safes, business machines and mechanical equipment in the PREMISES.
Such installations shall be placed and maintained by the TENANT, at the TENANT'S
expense, in setting sufficient, in LANDLORD'S judgment, to absorb and prevent
vibration, noise and annoyance. LANDLORD shall not be obligated to discover or
inspect for excessive floor loads.
14. FIRE AND CASUALTY INSURANCE, FIRE AND OTHER CASUALTY AND WAIVER OF
SUBROGATION. LANDLORD shall maintain, at its expense, fire and other casualty
(All-Risk) insurance on the Building in an amount sufficient to prevent LANDLORD
from being a co-insurer thereunder, with standard form of waiver of subrogation.
In case of fire or other casualty, the TENANT shall give immediate notice to the
LANDLORD. If the PREMISES shall be partially damaged by fire, the elements or
other casualty, the LANDLORD shall repair the same as speedily as practicable,
but the TENANT'S obligation to pay rent hereunder shall not cease. If, in the
opinion of the Municipal Building Inspector, the PREMISES be so extensively and
substantially damaged as to render then untenantable, then the rent shall cease
until such time as the PREMISES shall be made tenantable by the LANDLORD.
However, if, in the opinion of the LANDLORD, the PREMISES be totally destroyed
or so extensively and substantially damaged as to require practically a
rebuilding thereof, then the rent shall be paid up to the time of such
destruction and then and from thenceforth this lease shall come to an end.
In addition, the TENANT and the LANDLORD waive all rights of recovery
against each other or any of their agents, servants and/or employees for any
loss, damage or injury of any nature whatsoever for which the TENANT or the
LANDLORD is actually insured or required to insure under the terms hereof. Each
insurance policy obtained by the TENANT or the LANDLORD shall contain (by
endorsement or otherwise) a waiver of subrogation whereby the insurer waives any
right to be subrogated to the rights of any named insured (by mortgagee
endorsement or otherwise) as against the TENANT or the LANDLORD, in the event
that the insurer shall pay any insurance proceeds to one or more of such named
insureds. Further, it is the LANDLORD'S obligation to maintain appropriate
casualty insurance.
15. ASSIGNMENT. The TENANT shall not assign, mortgage or hypothecate this
LEASE nor sublet or sublease the premises or any part thereof without the
written consent of the LANDLORD, which consent shall not be unreasonably
withheld. There shall not be any penalty to the TENANT if consent by LANDLORD is
approved.
16. LANDLORD'S INSPECTION AND REPAIR. The LANDLORD and its representatives
may, upon 24 hours notice, enter the leased PREMISES, at any reasonable time
during normal business hours, for the purpose of inspecting the leased PREMISES,
performing any work which the LANDLORD elects to undertake made necessary by
reason of the TENANT'S default under the terms of this lease, exhibiting the
leased PREMISES for sale, lease or mortgage financing, or posting notices of
non-responsibility under any mechanic's lien law. The
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LANDLORD shall be allowed to take all material into and upon the leased PREMISES
that may be required therefore without the same constituting an eviction of the
TENANT in whole or in part. The rent reserved shall not abate while decorations,
repairs, alterations, improvements or additions are being made, whether by
reason of loss or interruption of the business of the TENANT or otherwise.
If the TENANT shall not be personally present to open and permit an entry
into the leased PREMISES and accompany the LANDLORD into the PREMISES at any
time when for any reason an entry therein shall be necessary or permissible, the
LANDLORD shall be permitted entry by way of a master key, and the TENANT shall
not cause nor permit additional locks or deadbolts to be installed without the
express written consent of the LANDLORD. The LANDLORD'S right of entry set forth
herein shall not be deemed to impose upon the LANDLORD any obligation,
responsibility or liability for the care, supervision or repair of the leased
PREMISES other than as herein provided. Any entry as provided herein shall be
nondestructive of the TENANT'S business and/or occupancy of the PREMISES, to the
extent practicable.
17. CONDEMNATION AND EMINENT DOMAIN. If the land and BUILDING of which the
leased PREMISES are a part, or any portion thereof, shall be taken under eminent
domain or condemnation proceedings, or if suit or other action shall be
instituted for the taking or condemnation thereof, or if in lieu of any formal
condemnation proceedings or actions, the LANDLORD shall grant an option to
purchase or shall sell and convey the said PREMISES or any portion thereof, to
the governmental or other public authority, agency, body or public utility,
seeking to take said land and PREMISES or any portion thereof, then this lease,
at the option to the LANDLORD, shall terminate, and the term hereof shall end as
of such date as the LANDLORD shall fix by notice in writing; and the TENANT
shall have only such claim or right to claim damages as may be by law
compensable and attributable to the value of the leasehold created by this
lease, All rights to the TENANT to damages other than as to the value of the
leasehold created by this Agreement, together with relocation expenses as
aforesaid, if any, are hereby assigned to the LANDLORD. The TENANT agrees to
execute and deliver any instruments, at the expense of the LANDLORD, as may be
deemed necessary or required to expedite any condemnation proceedings or to
effectuate a proper transfer of title to such governmental or other public
authority, agency, body or public utility seeking to take or acquire the said
lands and PREMISES or any portion thereof. The TENANT covenants and agrees to
vacate the said PREMISES, remove all the TENANT'S personal property therefrom
and deliver up peaceable possession thereof to the LANDLORD or to such other
party designated by the LANDLORD in the aforementioned notice. Failure by the
TENANT to comply with any provisions in this clause shall subject the TENANT to
such costs, expenses, damages and losses as the LANDLORD may incur by reason of
the TENANT'S breach hereof.
18. SIGNS. The TENANT shall not place nor allow to be placed any signs of
any kind whatsoever upon, in or about the PREMISES or any part thereof, except
of a design and structure and in or at such places as may be indicated and
consented to by the LANDLORD in writing. In
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case the LANDLORD or the LANDLORD'S agents, employees or representatives shall
deem it necessary to remove any such signs in order to paint or make any
repairs, alterations or improvements in or upon the PREMISES or any part
thereof, they may be so removed, but shall be replaced at the LANDLORD'S expense
when the said repairs, alterations or improvements shall have been completed.
Any signs permitted by the LANDLORD shall at all times conform with all
municipal ordinances or other laws and regulations applicable thereto. LANDLORD
shall furnish interior directory and TENANTS' door signage. All costs associated
with this signage shall be an additional cost to the TENANT. Said cost for
graphics shall be $950.00, which shall include exterior directories (located
throughout the landscaped areas of the SQUARE) aluminum "bronze" exterior door
directory. If TENANT desires its company logo, there will be an additional cost
for the graphics associated with the logo and its, installation.
19. INSOLVENCY OF LESSEE. The TENANT shall be in default under the terms of
this lease and this lease shall, at the option of the LANDLORD, be terminated,
upon any one of the following occurrences.
a. The appointment of a receiver to take possession of all or
substantially all of the assets of the TENANT.
b. A general assignment by the TENANT for the benefit of creditors.
c. The initiation of a proceeding against the TENANT under any bankruptcy
or insolvency law, or by the TENANT under a Chapter 7 petition under
the bankruptcy laws as now existing in the United States of America or
by the TENANT under any insolvency law.
Upon notice by the LANDLORD to the TENANT, in writing, of the LANDLORD'S
election to terminate this lease in accordance with this paragraph, the TENANT
shall have a period of sixty (60) days within which to cure the cause for the
LANDLORD'S election. In the event a cure is not accomplished, or substantial
steps towards a cure not accomplished, within said sixty (60) day period, the
TENANT'S right to possession of the premises shall cease, and the TENANT shall
then quit and surrender the PREMISES to the LANDLORD, but the TENANT shall
remain liable to the LANDLORD for all rents or other charges as provided in this
lease.
20. REMEDIES UPON TENANT'S DEFAULT. If there should occur any default on
the part of the TENANT in the performance of any conditions and covenants herein
contained, said default continuing for twenty (20) days after written notice by
the LANDLORD if monetary in nature or continuing for sixty (60) days after
written notice by the LANDLORD if a non-monetary default, or if during the term
hereof, the PREMISES or any portion thereof shall be or become abandoned or
deserted, vacated or vacant (and rent shall not be timely paid during the vacant
or abandoned time period) or should the TENANT be evicted by summary proceedings
or otherwise, the LANDLORD, in addition to any other remedies herein provided or
as may be permitted by law, may either by force or otherwise, without being
liable for prosecution therefore,
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or for damages, re-enter the said PREMISES and the same have and again possess
and enjoy, The LANDLORD may also, as agent for the TENANT or otherwise, relet
the PREMISES and receive the rents therefore and apply the same, first to the
payment of such expenses, reasonable attorney's fees and costs, as the LANDLORD
may have been put to in re-entering and repossessing the same and in making such
repairs and alterations as may be necessary, and second to the payment of the
rents due hereunder. The TENANT shall remain liable for such rents as may be in
arrears and also the rents as may accrue subsequent to the re-entry by the
LANDLORD, to the extent of the difference between the rents reserved hereunder
and the rents, if any, received by the LANDLORD during the remainder of the
unexpired term hereof, after deducting the aforementioned expenses, fees and
costs. The said rent, expenses, fees and costs as aforesaid are to be paid as
such deficiencies arise and are ascertained each month. All remedies contained
herein are subject to mitigations as required by law. LANDLORD shall attempt to
relet at fair market value.
21. SUBORDINATION AND MORTGAGE PRIORITY. This lease shall not be a lien
against the said PREMISES in respect to any mortgages that may hereafter be
placed upon said PREMISES. The recording of such mortgage or mortgages shall
have preference and precedence and be superior and prior in lien to this lease,
irrespective of the date of recording, and the TENANT agrees to execute any
instruments, without cost, which may be deemed necessary or desirable to further
effect the subordination of this lease to any such mortgage or mortgages. A
refusal by the TENANT to execute such instruments when requested by the LANDLORD
shall entitle the LANDLORD to the option of canceling this lease, and the term
hereof is hereby expressly limited accordingly. In no event shall the TENANT
record this lease or any amendment, modification, alteration or change thereto.
The provisions of the subordination agreement contained in this paragraph shall
be self- operative and no further instrument of subordination shall be required
in order to bind the tenant hereunder.
22. REIMBURSEMENT OF LANDLORD. If the TENANT shall fail or refuse to comply
with and perform any conditions and covenants of the within lease, the LANDLORD
may, if the LANDLORD so elects, carry out and perform such conditions and
covenants, at the cost and expense of the TENANT, and the said cost and expense
shall be payable on demand, or at the option of the LANDLORD shall be added to
the installment of rent due immediately thereafter but in no case later than one
(1) month after such demand, whichever occurs sooner, and shall be due and
payable as such. This remedy shall be in addition to such other remedies as the
LANDLORD may have hereunder by reason of the breach by the TENANT of any of the
covenants and conditions in this lease contained. Prior to the LANDLORD carrying
out and performing any such conditions and covenants at the cost and expense of
the TENANT, the LANDLORD shall supply the TENANT within ten (10) days written
notice of his intention to do so, unless the granting of such ten (10) day
notice would cause additional detriment or loss to the LANDLORD or to the
PREMISES, in which case such notice as is reasonable shall be given by the
LANDLORD. Any payment due would be due on the day of the next rent payment or
thirty days from the date of demand, whichever is later.
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23. MECHANIC'S LIENS. The TENANT shall, within ten (10) days after it
becomes aware thereof, discharge or satisfy by bonding or otherwise any
mechanic's lien for materials or labor claimed to have been furnished to the
PREMISES on the TENANT'S behalf.
24. SERVICES TO BE PROVIDED BY LANDLORD. Subject to intervening statutes,
ordinances, rules, regulations and executive orders, while the TENANT is not in
default under any of the provisions of this LEASE, the LANDLORD agrees to
furnish the following services:
a. The LANDLORD shall clean and maintain in proper fashion all interior
hallways and lavatories located in the SQUARE that are used in common
by all tenants of the SQUARE. The interior hallways and lavatories
located within the LEASED PREMISES are not used in common by all
tenants of the SQUARE.
b. The LANDLORD shall provide hot water for the usual and expected use of
the leased PREMISES.
c. The LANDLORD shall supply restroom supplies for restrooms located in
the SQUARE that are used in common by all tenants of the SQUARE. The
restroom5 located within the LEASED PREMISES are not used in common by
all tenants of the SQUARE.
d. The LANDLORD shall provide maintenance of the parking lot, access ways
and landscaped area of the PREMISES and lighting of the parking area
from the onset of darkness until 10:00 P.M.
e. The LANDLORD will furnish a reasonable amount of electricity, as the
LANDLORD may determine, for lighting the common areas of the SQUARE
during business hours. The LANDLORD will also furnish a reasonable
amount of potable water, as the LANDLORD may determine for satisfying
the usual and expected potable water demands of the TENANT. The
LANDLORD will also furnish natural gas in quantities as the LANDLORD
may determine, for the general use of the TENANT. The LANDLORD shall
not incur any liability for a failure to supply either such
electricity, potable water or natural gas, or for any interruption or
deficiency thereof, due to any reason beyond the LANDLORD'S control.
All electricity, water, sewer and gas charges shall be the
responsibility of the TENANT. Sewer and Water charges shall be billed
by the LANDLORD to the TENANT as a result of Sewer and Water not being
individually Tenant metered. Sewer and Water shall be billed to the
TENANT at a pro rata cost to the TENANT.
f. The LANDLORD shall provide a heating, ventilating and air conditioning
("HVAC") system in the BUILDING that is capable of maintaining the
PREMISES at a temperature and in a manner befitting a first class
building and will use all
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reasonable care to keep such system in proper and efficient operating
condition. The LANDLORD will riot be responsible for the failure of
the HVAC system if such failure results from the occupancy of the
leased PREMISES by more than an average of one person for each hundred
(100) square feet or if the TENANT installs and operates machines and
appliances the total connected electrical load of which exceeds 2 volt
amperes per square toot of area or that which is otherwise agreed
between the LANDLORD and the TENANT. The LANDLORD shall not be liable
for any failure to supply such heat or air conditioning, or for any
interruption or deficiencies thereof, due to any reason beyond the
LANDLORD'S control. The costs of energy in operating the HVAC system
and general use shall be born by the TENANT and shall be paid by the
TENANT directly to Jersey Central Power and Light Company ("JCP&L") or
any other utility company providing such energy, as hereinafter
provided. The TENANT shall at all times maintain in the PREMISES a
temperature of not less than fifty (50) degrees in the heating season
and not more than eighty (80) degrees in the cooling season.
The TENANT shall not install or use at the PREMISES any equipment,
machinery, appliance or the like requiring more than 220 volt service
without the prior written consent of the LANDLORD, which consent shall
not be unreasonably withheld. In the event the TENANT solicits and the
LANDLORD consents to an electric services exceeding 220 volts the
TENANT may, at its sole cost and expense, cause Jersey Central Power &
Light Company or any other licensed utility to install such electric
service to the PREMISES.
g. The LANDLORD shall provide a complete sewage removal system for the
PREMISES. Said system will be or has been installed and approved by
the appropriate governmental bodies of the Township of Clinton, County
of Hunterdon and State of New Jersey. The LANDLORD shall be
responsible for such repair of the system as may be considered to be a
capital improvement.
25. ADDITIONAL RENT. TENANT shall pay its proportionate share of increases
of Annual Real Estate Taxes and Annual Operating Costs above a base year,
adjusted to reflect 95% occupancy and a fully assessed PROPERTY. Said base year
will begin the first month of occupancy. Any increases shall not exceed 5% of
the prior year. The term "Proportionate Share" represents the gross square feet
of the PREMISES divided by the gross square footage of the SQUARE. The
Proportionate Share of the PREMISES is currently 34%.
a. Real Estate Taxes. Real Estate Taxes, as used in this Section, means,
in respect to each calendar year, all real estate taxes, assessments
and charges (whether ordinary or extraordinary) imposed upon the
SQUARE or upon the rents, as such (other than as income or profits
tax), payable to the LANDLORD in respect of the SQUARE; and all
municipal sewer charges and rents imposed upon the SQUARE; and all
real estate taxes and assessments (whether ordinary or extraordinary)
imposed upon the
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land upon which the SQUARE is constructed. If, due to a future change
in the method of taxation, any franchise, income or profits tax shall
be levied against the LANDLORD expressly in substitution for any of
the taxes, assessments or charges included in such definition of
annual real estate taxes, then such franchise, income or profits tax
(to the extent it is in respect of the SQUARE) shall also be included
in such definition of annual real estate taxes.
b. Annual Operating Costs. Annual Operating Costs shall cover all
necessary expenses incurred in the operation and maintenance of said
land and buildings in which the leased PREMISES are a part, in
accordance with accepted principles of sound management and accounting
practices as applied to the operation and maintenance of a first class
office complex.
26. ESTOPPEL. The TENANT shall, from time to time, on not less than five
(5) days prior written request by the LANDLORD, execute, acknowledge and deliver
to the LANDLORD, a written statement certifying that the lease is unmodified and
in full force and effect, or that the lease is in full force and effect as
modified and listing the instruments of modification; the dates to which the
rents and charges have been paid; and, to the best of the TENANT'S knowledge,
whether or not the LANDLORD is in default. It is intended that any such
statements delivered pursuant to this section of the lease may be relied upon by
a prospective purchaser of the LANDLORD'S interest or mortgagee of the
LANDLORD'S interest or assignee of any mortgage of the lessor's interest.
27. LATE CHARGE. Not withstanding anything in this lease to the contrary,
at the LANDLORD'S option, the TENANT shall pay, as additional rent, a late
charge of 5%, per month, of any installment of rent or additional rent paid more
than TEN (10) days after the due date thereof, to cover the extra expense
involved in handling delinquent payments.
28. HOLD OVER TENANCY. If the TENANT holds possession of the PREMISES after
the original Lease Term or any extension thereof, the TENANT shall become a
TENANT from month to month under the provisions herein provided, but at a
monthly basic rental equal to 125% of the monthly rental installment for the
calendar month immediately prior to the end of such term, as provided for
pursuant to N.J.S.A. 2A: 42-6, and without the requirements for demand or notice
by the LANDLORD to the TENANT demanding delivery of possession of the PREMISES,
which sum shall be payable in advance on the first day of each month.
29.1 TENANT'S LIABILITY INSURANCE. The TENANT shall provide to the
LANDLORD, an or before the commencement date of the Original Lease Term of this
lease, evidence of a policy of commercial general liability insurance together
with evidence of proof of payment of the premium therefore, naming the LANDLORD
as an additional insured for claims based upon the acts or omissions of TENANT,
insuring the TENANT and the LANDLORD against any liability commonly insured
against and occasioned by any act or omission by the TENANT on or about the
PREMISES. Such policy is to be written by an insurance company
13
<PAGE>
qualified to do business in the State of New Jersey. The policy shall be with
limits not less than two million dollars ($2,000,000.00) in respect of any one
person, in respect of any one accident and in respect of property damage. Said
limits shall be subject to periodic review, and LANDLORD reserves the right to
require the TENANT to obtain an increase in said coverage limits if, in the
reasonable opinion of the LANDLORD, said coverage becomes inadequate or is less
than that commonly maintained by tenants in similar buildings 'in the area by
tenants making similar uses. At least fifteen (15) days prior to the expiration
or termination date of any such policy, the TENANT shall deliver to the LANDLORD
a renewal or replacement policy with proof of the payment of the premium
therefore. Each such policy shall provide that it shall not be canceled except
on thirty (30) days prior written notice to the LANDLORD.
29.2 LANDLORD'S LIABILITY INSURANCE. The LANDLORD shall maintain the
required Building Owner's Policy of general liability insurance. Such policy is
to be written by an insurance company qualified to do business in the State of
New Jersey. The policy shall be with limits not less than two million dollars
($2,000,000.00) in respect of any one person, in respect of any one accident and
in respect of property damage.
30. COMPLETE CONTRACT. This lease contains the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes
completely all prior agreements and understandings, whether written or oral, and
all contemporaneous oral agreements and understandings. No representative, agent
or employee of the LANDLORD has been authorized to make any representations or
promises with reference to the within letting or to vary, alter or modify the
terms hereof. No additions, changes or modifications, renewals or extensions
thereof, shall be binding unless reduced to writing and signed by the LANDLORD
and the TENANT.
31. RIGHT TO SHOW PREMISES. The LANDLORD may show the PREMISES to
prospective purchasers and mortgagees, and, during the final EIGHT (8) months of
this lease, prospective tenants, on 24 hours notice to the TENANT during normal
business hours.
32. QUIET ENJOYMENT. The LANDLORD covenants that the TENANT on paying the
rent and performing the conditions and covenants herein contained, shall and may
peaceably and quietly have, hold and enjoy the leased PREMISES for the term
before mentioned and any extended term hereof.
33. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT. The TENANT shall indemnify
and save harmless the LANDLORD and its agents against and from and will provide
LANDLORD a defense for, any and all claims arising from the conduct by the
TENANT, or any agent, customer, invitee or licensee of the TENANT, of any
business in or about the PREMISES, or any act or thing whatsoever done, or any
condition created in or about the PREMISES, arising from any negligent, willful
or otherwise wrongful act or omission of the TENANT or any agent of the TENANT,
and all costs and expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against the LANDLORD by reason of any such claim, the
TENANT,
14
<PAGE>
upon notice from the LANDLORD, shall resist and defend such action or
proceeding. This section shall survive the termination of this lease, but only
with respect to acts or omissions occurring during any term thereof.
The TENANT shall also pay all costs and reasonable attorney's fees incurred
by or against the LANDLORD in enforcing the covenants, terms and provisions of
this lease, or in terminating this lease, by reason of the TENANT'S default; and
all such costs and reasonable attorney's fees, if paid by the LANDLORD, and all
taxes and assessments, and the payment of all monies provided in this lease to
be made by the TENANT, shall, if paid by the LANDLORD, be, and they hereby are
declared to be, a LANDLORD'S lien upon the TENANT'S interest in any personal
property placed upon the PREMISES at any time during the term of this lease. All
such additional rent or other monies as called for as set forth in this Section
shall be paid, together with interest at the rate of 12% per annum, from the
date of payment by the LANDLORD, and shall be collected as any other rent
specifically reserved herein.
34. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT. The LANDLORD shall
indemnify and save harmless the TENANT and its agents against and from and will
provide TENANT a defense for, any and all claims arising from the conduct by the
LANDLORD, or any agent, customer, invitee or licensee of the LANDLORD, of any
business in or about the BUILDING, or any act or thing whatsoever done, or any
condition created in or about the BUILDING, arising from any negligent, willful
or otherwise wrongful act or omission of the LANDLORD or any agent of the
LANDLORD, and all costs and expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon. In case
any action or proceeding be brought against the TENANT by reason of any such
claim, the LANDLORD, upon notice from the TENANT, shall resist and defend such
action or proceeding. This section shall survive the termination of this lease,
but only with respect to acts or omissions occurring during any term thereof.
The LANDLORD shall also pay all costs and reasonable attorney's fees
incurred by or against the TENANT in enforcing the covenants, terms and
provisions of this lease, or in terminating this lease, by reason of the
LANDLORD'S default; and all such costs and reasonable attorney's fees, if paid
by the TENANT, and all taxes and assessments, and the payment of all monies
provided in this lease to be made by the TENANT, shall, if paid by the TENANT,
be, and they hereby are declared to be, a TENANT'S lien upon the LANDLORD'S
interest in any personal property placed upon the PREMISES at any time during
the term of this lease. All such additional rent or other monies as called for
as set forth in this Section shall be paid, together with interest at the rate
of 12% per annum from the date of payment by the TENANT, and shall be collected
as any other rent specifically reserved herein.
35. NOTICES. All notices required under the terms of this lease shall be
given and shall be complete by mailing such notices by certified or registered
mail, return receipt requested, to the address of the parties as shown at the
head of this lease, or to such addressed as may be designated in writing, which
notice of change of address shall be given in the same manner.
15
<PAGE>
36. NON-WAIVER BY LANDLORD. The various rights, remedies, options and
elections of the LANDLORD or the TENANT, expressed herein, are cumulative, and
the failure of the LANDLORD or TENANT to enforce strict performance by the
TENANT or the LANDLORD of the conditions and covenants of this lease or to
exercise any election or option or to resort or have recourse to any remedy
herein conferred or the acceptance by the LANDLORD of any installment of rent
after any breach by the TENANT, in any one or more instances, shall not be
construed or deemed to be waiver or a relinquishment for the future by the
LANDLORD of any such conditions and covenants, options, elections or remedies,
but the same shall continue in full force and effect.
37. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this lease shall
apply to, bind and inure to the benefit of the LANDLORD and the TENANT, and
their respective heirs, successors, legal representatives and assigns. It is
understood that the term LANDLORD as used in this lease means only the owner, a
mortgagee in possession or a term tenant of the BUILDING, so that in the event
of any sale of the BUILDING or of any lease thereof, or if a mortgagee shall
take possession of the BUILDING, the LANDLORD named herein shall be and hereby
is entirely freed and relieved of all covenants and obligations of the LANDLORD
hereunder accruing thereafter.
38. NON-LIABILITY OF LANDLORD. Except in the event of negligence or willful
misconduct by the LANDLORD or the LANDLORD'S agents, servants and/or employees,
the LANDLORD shall not be liable for any damage or injury which may be sustained
by the TENANT or any other person, as a consequence of the failure, breakage,
leakage or obstruction of the water, plumbing, steam, sewer, waste or soil
pipes, roof, drains, leaders, gutters, valleys, downspouts or the like or of the
electrical, gas, power, conveyer, refrigeration, sprinkler, air conditioning or
heating systems, elevators or hoisting equipment; or by reason of the elements;
or resulting from the carelessness, negligence or improper conduct on the part
of any other tenant any other tenant's agents, employees, guest, licensees,
invitees, sub-tenants, assignees or successors; or attributable to any
interference with, interruption of or failure, beyond the control of the
LANDLORD, of any Services to be furnished or supplied by the LANDLORD. TENANT
does not agree herein to indemnify the LANDLORD for the LANDLORDS' own
negligence.
39. ASSIGNMENT OF PARKING SPACES. The LANDLORD reserves the right to
assign, at some future time, designated parking spaces in the common parking
areas to the TENANT which shall be reasonably proximate to the portion of the
BUILDING occupied by the TENANT. In the event such assignment takes place, the
TENANT shall be entitled to a minimum number of spaces, such number being at
least equal to TENANT's Proportionate Share (as defined in Paragraph 25) at all
times during the term of this LEASE.
40. VALIDITY OF LEASE PROVISIONS. The terms, conditions, covenants and
provisions of this lease shall be deemed to be severable. If any clause or
provision herein contained shall be adjudged to be invalid or unenforceable by a
court of competent jurisdiction or by operation of any applicable law, it shall
not affect the validity of any other clause or provision
16
<PAGE>
herein, but such other clauses or provisions shall remain in full force and
effect and shall be valid and enforceable to the fullest extent permitted by
law.
41. LIMITS OF LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary contained in this lease, it is specifically understood and agreed (such
agreement being a primary consideration for the execution of this lease by the
LANDLORD) that (except as provided in this Section) there shall be absolutely no
personal liability on the part of the LANDLORD'S, its successors, assigns,
constituent partners or shareholders, or any mortgagee in possession, with
respect to any of the terms, covenants or conditions of this lease, and that the
TENANT shall look solely to the greater of: (i) the equity of the LANDLORD in
the building; or (ii) the sum of One Million Dollars ($1,000,000.00) of other
assets of the LANDLORD, for the satisfaction of each and every remedy of the
TENANT in the event of any breach by the LANDLORD or any of the terms, covenants
and conditions of this lease to be performed by the LANDLORD, such exculpation
of liability to be absolute and without any exceptions whatsoever.
42. BROKERAGE COMMISSION. The TENANT hereby represents and warrants that no
broker or realtor is entitled or has any right to any brokerage or realtor fees
or commissions arising from in or out of this lease or its creation.
43. ARBITRATION. Any disputes arising under this Lease shall be subject to
resolution through binding arbitration. The parties may each appoint one
arbitrator and those two arbitrators will agree on a third arbitrator. The
dispute will be arbitrated under the rules of the American Arbitration
Association. The prevailing party will pay for their own arbitrator and the
losing party pays for their own and the third arbitrator. However, the pendency
of an arbitratable dispute shall not operate as a bar to any proceeding
available due to default under the terms of this Agreement. Any sums of money in
dispute must be deposited into escrow or banded by the party seeking
arbitration.
44. NON-SMOKING PROVISION. TENANT acknowledges that there shall be no
smoking in or about the PREMISES or the common areas of the BUILDING. The
purpose of this provision of "non-smoking" is for the health and enjoyment of
all tenants within the SQUARE. Violation of this provision shall constitute a
breach of TENANTS' covenants and, if violations continue after written notice,
TENANT shall be in breach of this lease.
17
<PAGE>
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals, or caused these presents to be signed by their proper corporate officers
and their proper corporate seals to be hereto affixed, the day and year first
above written.
WITNESS: THE HUNTERDON GROUP
/s/ Cecilia L. Hopkins BY /s/ Aram Papazian
- ------------------------------------ -------------------------------
Aram R. Papazian, Prop.
WITNESS: MEDAREX, INC.
/s/ Kathy Reamer BY /s/ Michael Appelbaum
- ------------------------------------ -------------------------------
Title Exec. V.P. Title
STATE OF NEW JERSEY, COUNTY OF HUNTERDON:
I certify that on _______________, 1999, Aram R. Papazian personally came
before me and this person acknowledged under oath, to my satisfaction, that:
(a) is named in and personally signed the attached Lease Agreement on
behalf of THE HUNTERDON GROUP;
Signed and sworn to before me
on _______________, 1999
- ------------------------------------ -------------------------------
STATE OF ______________________, COUNTY OF ____________________:
I certify that on __________________, 1999
personally came before me and this person acknowledged under oath, to my
satisfaction, that:
(a) this person is the ______________ President Controller of the TENANT,
MEDAREX, INC., the corporation named in this document:
(b) this person is the attesting witness to the signing of this document by
the proper corporate office who is the President or Controller of the TENANT,
18
<PAGE>
(c) this document was signed and delivered by the TENANT as its voluntary
act duly authorized by a proper resolution of it Board of Directors;
(d) this person knows the proper seal of the TENANT.
Signed and sworn to before me
on _______________, 1999
- ------------------------------------ -------------------------------
19
<PAGE>
ADDENDUM TO LEASE
-----------------
WORKLETTER
THIS ADDENDUM TO LEASE made this _________ day of August 1999 between THE
HUNTERDON GROUP, a New Jersey Proprietorship, "LANDLORD" and MEDAREX, INC., a
Corporation of the State of New Jersey, as "TENANT", is an addendum to the lease
dated of even date between the parties.
It is hereby further agreed between the LANDLORD and the TENANT as follow:
1. LANDLORD shall construct PREMISES as depicted on the plan attached to
this LEASE AGREEMENT and identified as "PLAN LAYOUT". TENANT shall pay to
LANDLORD, upon execution of this LEASE AGREEMENT the SUM Of $ 40,000.00, which
represents Tenant's share of the cost of Tenant fit-up.
The LEASED PREMISES shall be constructed in accordance with all applicable
building codes and shall include the following:
a. Framing of all interior walls.
b. Sound attenuation (insulation) of interior walls where necessary.
c. Sheetrocking of all interior walls.
d. Painting of entire interior of PREMISES.
e. Wallcoverings in front vestibule, reception, rest rooms and central
stairway areas.
f. Marble or porcelain tile installed in reception area.
g. Carpeting installed throughout all office and hallway areas.
h. Vinyl tile installed in kitchen/lounge area.
i. Required electrical outlets and switching for individual offices.
j. New lighting for CEO, CFO and reception areas. Fluorescent type with
parabolic type diffusers.
k. Patching of the existing suspended type ceiling where necessary.
Replace soiled or damaged ceiling tiles, where necessary.
20
<PAGE>
l. Supply and install "white" board in conference room wall.
m. Install a security alarm system with passive infrared detectors
throughout the PREMISES to provide security of the PREMISES. System
shall be capable of central station monitoring. Central station
monitoring shall be additional in cost. The annual cost for central
station monitoring shall be $275.00, payable to the LANDLORD upon
billing.
All materials and workmanship shall be of the same or similar quality as
that of the other Buildings located in Annandale Square. Within 45 hays from the
execution of this LEASE agreement, LANDLORD will provide TENANT with a set of
architectural plans and list of specifications of the work to be performed on
the PREMISES (the "Plans and Specifications") for the TENANT's approval which
shall specify all types of and quality of materials to be used and the work to
be performed by the LANDLORD in order to complete the above described work.
TENANT'S approval shall be in writing, within five (5) business days from date
of submission to the TENANT or otherwise deemed approved.
2. The above described work shall be performed and completed no later than
December 31, 1999. LANDLORD shall apply for and obtain all necessary permits
required, at no additional cost to the TENANT.
TENANT shall be given a reasonable opportunity to inspect the PREMISES
following the substantial completion of the above described work but prior to
the date of the issuance of a certificate of occupancy. Immediately following
such inspection, (within five (5) business days) TENANT shall deliver to
LANDLORD an Inspection Statement which shall set forth all items (if any) of the
above described work which in TENANT's reasonable opinion shall not have been
completed in accordance with the Plans and Specifications ( the "Punch List
Items"). LANDLORD hereby agrees to correct any such Punch List items and to cure
any defects in workmanship as promptly as practicable. Nothing contained herein
shall relieve the TENANT of the obligation to take possession of the PREMISES
and to pay the Basic Rent in accordance with the terms of this LEASE upon the
delivery by the LANDLORD to the TENANT of the certificate of occupancy.
In the event that a certificate of occupancy is not obtained by December
31, 1999, and the TENANT can not occupy the PREMISES by January 2, 2000, this
LEASE AGREEMENT may become null and void, at the option of the TENANT. In the
event that the TENANT wishes to extend the completion date beyond December 31,
1999, it may do so, in writing, to the LANDLORD.
3. The LANDLORD shall, at no additional cost to the TENANT, clean all
windows, paint the front exterior entrance way to the PREMISES and provide, upon
commencement of the LEASE term, the PREMISES in a first class condition, in
keeping with the other buildings and grounds within the SQUARE.
21
<PAGE>
4. The LEASE term shall commence upon the issuance of a certificate of
occupancy for the PREMISES. LANDLORD shall keep TENANT apprised and aware of
this target occupancy date throughout the course of construction.
WITNESS: THE HUNTERDON GROUP
/s/ Cecilia L. Hopkins BY /s/ Aram Papazian
- ------------------------------------ -------------------------------
Aram R. Papazian, Prop.
WITNESS: MEDAREX, INC.
/s/ Kathy Reamer BY /s/ Michael Appelbaum
- ------------------------------------ -------------------------------
Title Title
22
<PAGE>
RIDER to Lease dated as of the 9th day of August, 1999, between THE
HUNTERDON GROUP, a New Jersey Proprietorship, as Landlord, and MEDAREX,
INC., as Tenant, for premises known as the Stratford Building in the
Annandale Square Complex, 67 Beaver Avenue and Old Allerton Road, Clinton
Township, New Jersey 08540.
The part of this Lease containing Sections 1 through 44 is hereby modified
and supplemented as follows. Wherever there is any conflict between this rider
and such other part of this Lease, the provisions of this rider are paramount
and this Lease shall be construed accordingly, the provisions of Section 30
notwithstanding.
45. The Lease is hereby amended in the following respects:
(A) That part of Section 5-b, that follows the word "extension" is
deleted.
(B) The word "FIFTH" is changed to "SEVENTH" in. Section 5.d.
(C) The words "or Preparation of" are changed to "for preparation of" in
the fourth line of the second paragraph of Section 9. In addition,
Landlord agrees to provide all information in Landlord's control which
may be necessary to enable Tenant to obtain a letter of
non-applicability or any other clearance, approval or consent from the
New Jersey Department of Environmental Protection.
(D) The words "Section Six" are changed to "Section 5" in the 15th line of
Section 10.
(E) The first two sentences of Section 12 are deleted.
(F) The clause, "which the Landlord agrees to enforce in a
non-discriminatory manner", is added to Section 13 immediately
following the phrase "from time to time."
(G) The phrase, "exhibiting the Leased Premises for sale, lease or
mortgage financing" is deleted from the first sentence of Section 16.
(H) The phrase, "..., together with relocation expenses" is added at the
end of the first sentence of Section 17.
(I) The clause, "within ten (10) days after it becomes aware thereof" is
changed to "within thirty (30) days after receipt of a demand
therefor" in Section 23.
(J) The clause, "..., but not in an amount greater than the amount for
which the Landlord would be liable were the Square the Landlord's only
asset" is added at the end of Section 25.a.
46. The provisions of Section 10 are in all respects subject to Section 14
in the event of damage or destruction of all or part of the Premises by fire or
other casualty.
47. Anything to the contrary in Section 13 notwithstanding, Tenant shall
not be required to comply with any requirements of law or of the Board of Fire
Underwriters or any insurance company unless such requirements are violated by
actions taken by Tenant in or about the Premises or by reason of Tenant's use of
the Premises in a manner different from the normal use thereof for
executive/administrative offices.
23
<PAGE>
48. The provisions of Sections 6, 14, 16, 17 and 24 notwithstanding, if by
reason of fire or other casualty, Landlord's entry into the leased Premises, a
condemnation or Landlord's inability to perform its obligations under the Lease,
Tenant's normal use of the Premises is materially interfered with, such that
Tenant is compelled to discontinue occupancy of the Premises, in which or in
Part, during the time that such interference persists, then the rental shall be
equitably adjusted during the time of such discontinuance of occupancy.
49. The provisions of Sections 14 and 17 notwithstanding, in the event that
a material portion of the Leased Premises is destroyed and, in the reasonable
judgment of the Tenant, cannot be repaired within six (6) months, or is
condemned, Tenant shall have the right, excercisable by a written notice to the
Landlord, to terminate this Lease effective as of any date set forth in such
notice.
50. The provisions of Section 15 relating to Landlord's consent to a
proposed sublease or assignment are inapplicable to a sublease or assignment to
an entity controlled by, controlling, or under common control with the Tenant.
51. It is agreed that as to any mortgages hereafter placed on the Premises,
the subordination provided for in Section 21 shall extend only to mortgages
under which the mortgagee by agreement in the mortgage or in a separate
instrument contracts in substance (i) not to disturb Tenant's occupancy so long
as Tenant performs its obligations in this Lease and (ii) not unreasonably to
withhold or delay any consent or approval required to be obtained from such
mortgagee by Tenant.
52. (a) Tenant, at its own cost and expense, after notice to Landlord, may
contest the amount or validity of any municipal taxes; in any manner permitted
by law, in Tenant's name, and whenever necessary, in Landlord's name, provided
that Tenant does so in good faith. Landlord will cooperate with Tenant and
execute any documents or pleadings reasonably required for such purposes,
provided that the same shall be without cost, liability or expense to Landlord.
Such contest may include appeals from any judgment, decree or order until a
final determination is made by a court or governmental department or authority
having final jurisdiction in the matter. However, notwithstanding such contest,
Tenant shall pay its share of the contested municipal taxes in the manner and on
the dates provided for in section 25, unless the payment of municipal taxes by
Landlord would operate as a bar to such contest or materially interfere with the
prosecution thereof; and in such case, Tenant may require Landlord to defer the
payment of the contested taxes. Upon the termination of such contest, Tenant
shall pay its share of the amount of the contested taxes as finally determined
in such contest, and all interest penalties and all other costs, charges, fees
and liabilities in connection therewith. Tenant shall indemnify and hold
harmless Landlord against and from any and all liability, loss, damage and
expense (including, without limitation, reasonable attorney's fees and expenses)
which Landlord may sustain by reason of any such contest or Tenant's delay in
paying any contested taxes.
24
<PAGE>
(b) Anything in Section 25 to the contrary notwithstanding, Annual
Operating Costs shall not include Real Estate Taxes, capital improvement costs
(unless any such cost, after amortization over the useful life of the
improvement, reduces operating expenses; provided, however, that only the then
currently depreciable portion of such amortized cost may be included in Annual
Operating Expenses), costs reimbursed by insurance, the cost of work or services
performed specifically for any other tenant in the Square (whether or not such
tenant reimburses Landlord), costs in connection with preparing space for a new
tenant, advertising expenses, real estate brokers' commissions, franchise,
transfer, inheritance or capital stork taxes or other taxes imposed upon or
measured by the income or profits of Landlord, administrative wages and salaries
or any other general and administrative overhead of Landlord, the cost of any
electricity furnished to any space occupied by other tenants, and fines and/or
penalties incurred due to violation by Landlord of any law or any governmental
rule, regulation or directive.
53. The provisions of Sections 33 and 34 notwithstanding, no payment by
either Tenant or Landlord shall give rise to or create a lien on any personal
property of the other party.
54. Landlord agrees to reserve as confidential any information concerning
Medarex, its business or its personnel obtained as a consequence of any entry
into the leased Premises.
55. Any work required or undertaken by Landlord under this Article or under
any other provision of this Lease shall be performed with due diligence.
56. It is agreed that no consent or approval of Landlord referred to in
this Lease shall be unreasonably withheld or delayed.
57. The Landlord represents and warrants that:
(a) Landlord has no knowledge of any pending or contemplated condemnation
or eminent domain proceeding which would affect the Building or the Premises or
any part thereof and there is no litigation, proceeding (zoning or otherwise) or
governmental investigation pending or, to the knowledge of Landlord, threatened
against Landlord or the Building which would affect the Building or the
Premises.
(b) There are no pending tax abatement or exemption proceedings in respect
of the Building or the Square, and no existing tax abatements or exemptions,
total or partial in respect of the Building or the Square, nor have any been
applied for.
25
<PAGE>
(c) To the knowledge of the Landlord, there has been no release, discharge
or deposit in or about the Building or any portion thereof of any hazardous or
toxic substances which would violate any environmentally related statute or
governmental regulation.
LANDLORD: THE HUNTERDON GROUP
By: /s/ Aram Papazian
------------------------------
Title: Proprietor
---------------------------
TENANT: MEDAREX, INC.
By: /s/ Michael Appelbaum
------------------------------
Title: Exec. V.P.
---------------------------
26
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements for the nine months ended September 30, 1999, and is
qualified in its entirety by reference in such statement.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 4,059
<SECURITIES> 16,179
<RECEIVABLES> 27
<ALLOWANCES> (5)
<INVENTORY> 36
<CURRENT-ASSETS> 22,222
<PP&E> 7,565
<DEPRECIATION> (4,333)
<TOTAL-ASSETS> 27,781
<CURRENT-LIABILITIES> 3,213
<BONDS> 0
0
0
<COMMON> 322
<OTHER-SE> 24,217
<TOTAL-LIABILITY-AND-EQUITY> 27,781
<SALES> 532
<TOTAL-REVENUES> 8,341
<CGS> 183
<TOTAL-COSTS> 19,594
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (6)
<INCOME-PRETAX> (10,445)
<INCOME-TAX> 0
<INCOME-CONTINUING> (10,445)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (10,445)
<EPS-BASIC> (0.33)
<EPS-DILUTED> (0.33)
</TABLE>
