Exhibit 10.1
SUBLEASE AGREEMENT
This Sublease Agreement (this "Sublease") is made on this 16th day of July, 2002
between Antigenics, Inc., a Massachusetts Corporation, with an address of 34
Commerce Way, Woburn, Massachusetts 01801 a wholly-owned subsidiary of
Antigenics Inc., a Delaware corporation formerly known as Aquila
Biopharmaceuticals, Inc. ("Sublessor") and GTC Biotherapeutics, Inc., a
Massachusetts corporation with an address of 175 Crossing Boulevard, Suite 410,
Framingham, Massachusetts ("Sublessee").
RECITALS
WHEREAS, Aquila Biopharmaceuticals, Inc., a Delaware corporation and
wholly owned subsidiary of Sublessor, is the tenant under a lease with NDNE 9/90
Corporate Center LLC (the "Prime Lessor") dated September 19, 1997 as amended by
that certain First Amendment to Lease ("First Amendment") dated December 17,
1997, as further amended by that certain Second Amendment to Lease ("Second
Amendment") dated as of January 14, 1998, as further amended by that certain
Third Amendment to Lease ("Third Amendment") dated as of February 3, 1998, as
further amended by that certain Fourth Amendment to Lease ("Fourth Amendment")
dated as of February 27, 1998, as further Amended by that certain Fifth
Amendment to Lease ("Fifth Amendment") dated as of March 13, 1998 and as
affected by that certain Consent to Assignment of Lease ("Consent") dated April
2001 (the Lease as so amended and affected by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and
the Consent is hereinafter called the "Prime Lease") which relates to space in
the Building (as said term is defined in the Prime Lease) comprised of
approximately 41,020 rentable square feet located on the 1st, 2nd and 3rd floors
of the Building (the "Leased Premises");
WHEREAS, Sublessee desires, and Sublessor has agreed, to sublet a
portion of the Leased Premises to the Sublessee consisting of approximately
11,852 rentable square feet located on the third floor of the Leased Premises
(referred to hereinafter as "Primary Space") and a portion of the Leased
Premises located on the second floor to Sublessee consisting of approximately
8,036 rentable square feet located on the second floor of the Leased Premises
(referred to hereinafter as "Secondary Space"); and
WHEREAS, Sublessee desires, and Sublessor has agreed to grant, an
option to sublease the remainder of the Leased Premises consisting of
approximately 21,132 rentable square feet located on the first and second floor
of the Leased Premises (referred to hereinafter as "Tertiary Space").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee covenant
and agree as follows:
1. DEFINITIONS:
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a. Additional Rent: any sum designated under this Sublease and/or the Prime
Lease constitutes "Additional Rent" including, without limitation,
payments by Sublessee to the Sublessor under the Antigenics Leasehold
Lease. With respect to any amounts due under Prime Lease, Sublessee shall
only be responsible for Sublessee's Proportionate Share of such costs.
b. Annual Fixed Rent: the Annual Fixed Rent payable by the Sublessee to the
Sublessor as set forth in Exhibit B attached hereto and made a part
hereof, shall commence on the Sublease Commencement Date.
c. Annual Rent: Annual Fixed Rent, Additional Rent and any other charge,
and/or assessment payable by Sublessor to the Prime Lessor under the Prime
Lease or payable by Sublessee to Sublessor under this Sublease. With
respect to any amounts due under the Prime Lease, Sublessee shall only be
responsible for Sublessee's Proportionate Share of such costs.
d. Commencement Date of Prime Lease: September 9, 1998.
e. Antigenics Leasehold Lease: shall refer to that lease agreement entered
into between the Sublessor and the Sublessee as of the date hereof,
attached hereto as Exhibit C.
f. Primary Space: shall refer to that portion of the Leased Premises
consisting of approximately 11,852 rentable square feet located on the
third floor.
g. Secondary Space: shall refer to that portion of the Leased Premises
consisting of approximately 8,036 rentable square feet located on the
second floor.
h. Sublease Commencement Date: July 19, 2002 for the Primary Space and
January 1, 2003 for the Secondary Space.
i. Sublease Termination Date: December 31, 2006, unless the Sublessee
exercises its rights to sublease the Tertiary Space, in which event the
Sublease Termination Date shall be extended to September 30, 2010.
j. Subleased Premises: the Subleased Premises consists of the Primary Space,
the Secondary Space and the Tertiary Space, in the event Sublessee elects
to exercise its rights under the Tertiary Space Option, as shown on a
sketch plan attached hereto as Exhibit A.
k. Sublessee's Proportionate Share: shall be based on the square footage of
the Subleased Premises leased by the Sublessee divided by the square
footage of the
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Leased Premises in order to determine the Sublessee's equitable share of
expenses.
l. Sublessee's Security Deposit: shall refer to the Letter of Credit to be
provided by the Sublessee to the Sublessor in an amount not less than Two
Hundred Thousand and 00/100 Dollars ($200,000.00), the form of which is
attached hereto as Exhibit E.
m. Sublease Term: shall refer to the Sublessor's remaining term under the
Prime Lease, specifically excluding any option terms.
n. Tertiary Space: the remaining portion of the Leased Premises consisting of
approximately 21,132 rentable square feet located on the second floor and
first floor of the Leased Premises.
o. Tertiary Space Option: shall refer to the Sublessee's option to sublease
the Tertiary Space, as further set forth herein.
All other capitalized terms used in this Sublease not otherwise defined herein
shall have the meanings ascribed to such terms as set forth in the Prime Lease
and/or the Antigenics Leasehold Lease.
2. PRIME LEASE: The terms and conditions of the Prime Lease are hereby
incorporated by reference and made a part hereof, meaning that, as applicable,
references to "Tenant" therein shall be deemed to be "Sublessee" hereunder,
references to "Landlord" therein shall be deemed to be "Sublessor" hereunder,
and such other terms shall be deemed modified as may be appropriate in the given
context, provided:
a. Prime Lessor shall continue to have all rights set forth in the
Prime Lease (notwithstanding the fact that Sublessor shall also have
the same rights under this Sublease);
b. Sublessor shall not be deemed to have assumed any of the obligations
of Prime Lessor as a result of the incorporation of the Prime Lease
unless specifically set forth herein;
c. Sublessor, except as otherwise provided herein, shall not be liable
for the performance of any of the obligations of Prime Lessor under
the Prime Lease;
d. Sublessee shall have no claim against Sublessor by reason of any
default in fulfilling such obligations upon the part of Prime Lessor
unless such default
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results from Sublessor's being in default under the Prime Lease and
not due to a default of Sublessee hereunder;
e. Sublessor agrees not to modify or amend the Prime Lease without the
consent of the Sublessee, which consent shall not be unreasonably
withheld or delayed; and
f. with respect to work, services, repairs and restoration or the
performance of other obligations required of Prime Lessor under the
Prime Lease, if any, Sublessor's sole obligation with respect
thereto, shall be to request the same, after requested by Sublessee,
and to send all notices required under the Prime Lease to Prime
Lessor, as the case may be.
3. TERM AND SUBLEASED PREMISES. Sublessor hereby sublets and demises unto
Sublessee and Sublessee hereby takes and hires from Sublessor the Subleased
Premises for the period commencing on the Sublease Commencement Date until the
Sublease Termination Date, unless this Sublease shall sooner terminate as herein
provided. Sublessee shall have the non-exclusive right to use, in common with
others entitled thereto, that certain number of parking spaces on the Leasehold
Parking Area, as defined under Section 2.3(a) of the Prime Lease, equal to four
(4) spaces per each 1,000 square feet of Subleased Premises.
4. ANNUAL RENT. Sublessee covenants and agrees to pay to Sublessor at the
address set forth above, or to such other address as Sublessor may specify by
notice to Sublessee:
a. Annual Fixed Rent which shall commence on Sublease Commencement Date
and thereafter be due and payable on the first day of each and every
month during the term of this Sublease at the rates set forth in
Exhibit B, without notice or demand:
b. Additional Rent which shall be due and payable within the applicable
time periods set forth in the Prime Lease and/or within ten (10)
days after Sublessee's receipt of a demand in writing for such
payment by Sublessor, or as otherwise set forth in the Antigenics
Leasehold Lease. If the Sublessee shall fail to pay the Additional
Rent when due or any other amounts, the Sublessor may elect to pay
the same in which event all such payments shall be charged to and
paid by the Sublessee, on demand, as Additional Rent, at Sublessor's
option draw under the Letter of Credit. Sublessor shall be entitled
to charge any fees or interest on such Additional Rent as permitted
under the Prime Lease; and
c. Annual Rent for any portion of a calendar month at the beginning or
end of the Sublease Term shall be prorated on a per diem basis.
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5. SECURITY DEPOSIT. This Sublease and the Antigenics Leasehold Lease shall be
secured by an Irrevocable Letter of Credit ("Letter of Credit") as further set
forth herein. The Letter of Credit shall be in the form of Exhibit E and shall
otherwise:
a. be in the stated original amount of not less than Two Hundred
Thousand and 00/00 Dollars ($200,000.00) which amount shall increase
by One Hundred Seventy Five Thousand Dollars ($175,000.00) by a
replacement Letter of Credit for a total of Three Hundred Seventy
Five Thousand 00/100 Dollars ($375,000.00), in the event the
Sublessee shall elect to exercise its right to sublease the Tertiary
Space, as provided hereunder. The Sublessor's receipt of the
replacement Letter of Credit in the amount of Three Hundred Seventy
Five Thousand 00/100 Dollars ($375,000.00) shall be a condition
precedent to Sublessee occupying the Tertiary Space;
b. be issued in a form reasonably acceptable to Sublessor;
c. name Sublessor as its beneficiary;
d. be drawn on a FDIC insured financial institution reasonably
satisfactory to Sublessor; and
e. expire no earlier than thirty (30) days after the expiration of the
Sublease Termination Date.
Sublessor may, from time to time, without prejudice to any other remedy, use all
or a portion of the Letter of Credit to:
a. satisfy amounts owing to Sublessor under this Sublease and/or the
Antigenics Leasehold Lease as a result of an Event of Default under
such agreements;
b. cure any uncured Event of Default by Sublessee under this Sublease
or the Antigenics Leasehold Lease; or
c. pay for any and all damages or costs incurred by Sublessor to
enforce its rights under this Sublease or the Antigenics Leasehold
Lease.
6. USE. Sublessee covenants and agrees to use the Subleased Premises only for
those uses specifically authorized in the Prime Lease.
7. INSURANCE. Sublessee agrees to observe and comply with the provisions of
Section 7 of the Prime Lease and, in addition, Sublessee shall maintain its own
insurance with respect to its personal property. All policies of insurance
procured by Sublessee shall be issued in forms and
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by insurance carriers reasonably acceptable to Sublessor and Prime Lessor and
name them both as additional insureds. Before Sublessor shall deliver possession
of the Subleased Premises to Sublessee, Sublessee shall provide Sublessor with
certificates of insurance evidencing the insurance coverages set forth in this
Section. Such certificates shall provide that, in the event of cancellation or
material change, thirty (30) days' prior written notice shall be given to
Sublessor and all other named insureds. To the extent provided in the Prime
Lease, each party agrees to waive the rights of recovery and to obtain from its
respective insurer a waiver of subrogation.
8. CONDITION OF SUBLEASED PREMISES: Sublessee acknowledges that it has inspected
the Subleased Premises and agrees to accept the Subleased Premises in "as-is"
condition, and further acknowledges that no representations or warranties as to
the condition thereof have been made to it by Sublessor and/or the Prime Lessor,
except as may be specifically set forth in Paragraph 9 of this Sublease.
Sublessee hereby covenants and agrees to undertake and perform all obligations
with respect to the Subleased Premises that Sublessor has undertaken to Prime
Lessor in the Prime Lease except as specifically set forth in Paragraph 9 of
this Sublease. Notwithstanding the above, Sublessor hereby agrees that it shall
be Sublessor's obligation to deliver the Subleased Premises, including the
Tertiary Space, on the Sublease Commencement Date , in the following condition
and with all of the following tasks completed (the "Sublessor Tasks") prior to
the Sublease Commencement Date for each leased space, at Sublessor's sole cost
and expense, subject only to the Sublessee Contribution, as defined below:
a. The Subleased Premises shall be clean of all chemicals and reagents;
b. All biosafety cabinets shall be decontaminated by a qualified vendor
licensed in The Commonwealth of Massachusetts and Sublessor shall
deliver to Sublessee copies of all decontamination records including
documentation qualifying the Subleased Premises for release for
unrestricted use per Commonwealth of Massachusetts regulations, 105
CMR 120.291 and the Nuclear Regulatory Commission (NRC) document
entitled "Guidelines for Decontamination of Facilities and Equipment
Prior to Release for Unrestricted Use: Table 1."
c. All floors shall be broom clean and all lab counters and desks shall
be free of dust and debris; and
d. Any damage to walls, floors, and/or ceilings caused by equipment
removal shall be repaired and painted.
Sublessee shall reimburse Sublessor for costs associated with undertaking and
completing the Sublessor Tasks, in an aggregate amount for all of the Subleased
Premises not to exceed Fifteen Thousand and 00/100 Dollars ($15,000.00)
("Sublessee Contribution"). The Sublessee Contribution shall be charged to and
paid by the Sublessee, as Additional Rent with the monthly
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rent payment next due after Sublessee receives copies of invoices from the
vendors or suppliers substantiating the Sublessee Contribution.
9. OBLIGATION TO PROVIDE AND MAINTAIN UTILITY SERVICES
a. Sublessor's Obligations. Sublessor agrees to provide the
following utility services which are located in Tertiary Space
to the Primary and Secondary Spaces, respectively, for the
sole benefit of Sublessee, such services to be provided seven
(7) days per week, twenty-four (24) hours per day, with the
exception of steam which shall only be provided between the
hours of 6:00 AM and 4:30 PM Monday-Friday.
i. Commencing on the Sublease Commencement Date the
Sublessor shall provide:
(aa) water (hot and cold);
(bb) tempered water for the safety showers and
eye washers;
(cc) compressed air;
(dd) steam;
(ee) purified water (RODI);
(ff) electricity;
(gg) natural gas;
(hh) heating ventilation and cooling (HVAC);
(ii) PH adjustment for the waste system;
(jj) emergency power; and
(kk) plumbing systems.
(Subparagraphs (aa) through (kk) shall be collectively
referred to as the "Utility Services").
ii. Sublessor's obligation to provide Utility Services for
the benefit of Sublessee shall terminate on December 31,
2006 (the "Utility Services Termination Date").
iii. Sublessor's obligations to provide Utility Services
shall only apply to those Utility Services that are
generated from the utility/maintenance room located in
the Tertiary Space.
iv. Utilities Services will be charged by Sublessor and paid
by Sublessee at the rates set forth in Exhibit B (the
"Utility Rates"), which are based on the percentage of
office space and laboratory space located in the
Subleased Premises as of the date of this Sublease. The
Utility Rates are subject to change based on Sublessee's
change in use or percentage of office and laboratory
space of the Subleased Premises and/or an increase
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in actual rates charged to Sublessor by the utility
providers. In the event that any of the utility
providers increase the rates payable by Sublessor,
Sublessor shall deliver to Sublessee copies of written
notices, bills or invoices received by Sublessor from
the utility providers documenting the increased rates
before increasing any such Utility Rates. The increases
in Utility Rates shall exclude however, costs that are
directly attributable to those portions of the Leased
Premises leased by Sublessor. Any adjustments to the
Utility Rates shall not be effective until twenty (20)
days after Sublessor provides written notice to
Sublessee of such increased Utility Rate.
Notwithstanding the foregoing, in no event shall the
Utility Rates or monthly payment amounts set forth in
Exhibit B increase prior to January 1, 2003.
v. Payment's for Utility Services shall be due and payable
as Annual Fixed Rent on the first day of each month
without notice, in the amounts set forth in Exhibit B
commencing on the Sublease Commencement Date and ending
on the Utility Services Termination Date, provided,
however, that Sublessee shall remain responsible for the
cost of any Utility Services provided to Sublessee
during such term, notwithstanding, whether an invoice
was submitted by Sublessor or the utility providers
prior to the Utility Services Termination Date. Failure
to pay such charges when due shall constitute a monetary
Event of Default under Paragraph 14 of this Sublease.
vi. Sublessor, to the best of its knowledge, represents that
all of the Utility Services are connected to the
Subleased Premises and the Utility Systems that provide
the Utility Services to the Subleased Premises,
including all generation and distribution systems
located in any of the Subleased Premises (collectively
referred to herein as the "Utility Systems"), are in
good condition and repair.
vii. Except as expressly provided in subparagraphs 9(b)(ii)
and 9(b)(iii) below, Sublessor agrees to perform all
ordinary maintenance, repair, and replacement of the
Utility Systems located within the utility/maintenance
room in the Tertiary Space at its sole cost and expense
until the Utility Services Termination Date. In
addition, Sublessor shall be responsible for any and all
damage to the Utility Services and Utility Systems
caused by Sublessor, its employees, contractors,
licensees, and invitees. Notwithstanding the above,
Sublessor shall not be responsible for undertaking
and/or completing any improvements to the Utility
Systems or the Utility Services in order to upgrade
and/or expand the capacities of the Utility Systems or
the Utility Services for Sublessee's use, provided
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however, that Sublessee shall have the right to make
such improvements, at its expense, subject to the
provisions below.
viii. Sublessor agrees to use reasonable efforts to ensure
that the Utility Systems and Utility Services are
maintained and functioning properly prior to the earlier
of the Sublease Termination Date or the Sublessee's
occupancy of the Tertiary Space.
b. Sublessee's Obligations Concerning Utility Services.
i. Sublessee agrees and acknowledges that commencing on the
Sublease Commencement Date until the Sublease
Termination Date, to pay for all Utility Services at the
rates and at the monthly payment amounts set forth in
Exhibit B on the first day of each month without notice
or demand;
ii. Sublessee agrees and acknowledges that it has had the
opportunity to inspect the Utility Systems and Utility
Services and is accepting the Utility Systems and
Utility Services in their current condition (the
"Acceptance"), subject only to Sublessor obligation to
continue to maintain, repair and replace the Utility
Systems as set forth in subparagraph 9(a)(vii) of this
Sublease;
iii. Sublessee agrees and acknowledges that in the event the
sublessee elects to exercise its right to sublease the
Tertiary Space commencing on January 1, 2007 or the
sooner occupancy of the Tertiary Space, Sublessee shall
be solely responsible for the maintenance, repair and
replacement of the Utility Services and Utility Systems.
iv. Sublessee shall be solely responsible for any and all
damage to the Utility Services and Utility Systems
caused by Sublessee, its employees, contractors,
licensees, and invitees and for any Alterations (as
defined below). In the event the Sublessee exercises its
right to occupy the Tertiary Space, Sublessee shall be
solely responsible for any and all damage to the Utility
Services and Utility Systems commencing on January 1,
2007.
v. Sublessee shall coordinate the construction, repair,
replacement or maintenance of the Utility Systems with
Sublessor;
vi. Sublessee shall certify to Sublessor the square footage
of laboratory space and office space leased by
Sublessee, on a semi-annual basis;
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vii. Sublessee shall be solely responsible for providing
telecommunication services to the Subleased Premises.
c. Utility Rates do not include the construction, repair,
replacement or maintenance of any Utility Systems and/or
Utility Services located within the Subleased Premises leased
by the Sublessee, which shall be the sole and exclusive
responsibility of Sublessee, except as otherwise provided in
subparagraph 9(a)(vii) of this Sublease.
d. Sublessor acknowledges and agrees that Sublessee may desire to
upgrade and/or expand the capacities of the Utility Services
and Utility Systems, provided, however that Sublessee shall
not make or perform, or permit the making or performance of,
any alterations, improvements, or additions in or about the
Subleased Premises, including upgrading and/or expanding the
capacities of the Utility Services and Utility Systems
(collectively, "Alterations") without obtaining on each
occasion Sublessor's prior written consent which consent shall
not be unreasonably withheld or delayed and the consent of the
Prime Lessor. Sublessor agrees not to unreasonably withhold
its consent to such Alterations, provided that such
Alterations are performed only by licensed and insured
contractors or mechanics first reasonably approved by
Sublessor and no Alterations shall adversely affect the
Utility Services and/or Utility Systems within the Leased
Premises. All Alterations shall be done at Sublessee's sole
cost and expense and at such times and in such manner as to
minimize, interference with the operations of Sublessor.
Sublessee shall provide not less than 24 hour prior written
notice to Sublessor of the commencement of any such
Alterations.
No approval of any plans or specifications by Sublessor or
consent by Sublessor allowing Sublessee to make any
Alterations or any inspection of Alterations made by or for
Sublessor shall in any way be deemed to be an agreement by
Sublessor that the contemplated Alterations comply with any
legal requirements or insurance requirements or the
certificate of occupancy for the Subleased Premises, nor shall
it be deemed to be a waiver by Sublessor of the compliance by
Sublessee of any provision of this Sublease.
Sublessee shall promptly reimburse Sublessor for all
reasonable fees, costs and expenses including, but not limited
to, those of architects and engineers, incurred by Sublessor
in connection with the review of Sublessee's plans and
specifications and inspecting the Alterations to determine
whether the same are being or have been performed in
accordance with the approved plans and specifications therefor
and with all legal and insurance requirements in an aggregate
amount not to exceed Five Thousand Dollars ($5,000.00) on each
occasion.
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10. ANTIGENICS LEASEHOLD LEASE. In consideration of Sublessor's current
leasehold improvements made to the Subleased Premises and for Sublessor's right,
title and interest in the Yield Up Equipment located within the Subleased
Premises, Sublessee hereby agrees to pay, without notice or demand except as set
forth therein , the Antigenics Leasehold Lease Payments in accordance with the
terms and conditions of the Antigenics Leasehold Lease, attached hereto and made
a part hereof as Exhibit C.
11. GRANT OF OPTION FOR THE TERTIARY SPACE. Sublessor does hereby grant to
Sublessee the exclusive right and option to sublease the Tertiary Space upon the
terms and conditions as set forth below:
a. Sublessee may exercise its exclusive right to sublease the
Tertiary Space pursuant to the terms in this Sublease,
effective as of January 1, 2007, by giving written notice
thereof to Sublessor not later than July 1, 2006 in which
event Sublessor agrees to deliver the Tertiary Space to
Sublessee in the condition required under Section 8 of this
Sublease on or before January 1, 2007. The parties agree to
execute an amendment to this Sublease within thirty (30) days
after the date Sublessee exercises its option for the sole
purpose of:
i. incorporating the Tertiary Space as being a part of
the Subleased Premises;
ii. adjusting the Sublessee's Proportionate Share and the
Annual Rent, as set forth in Exhibit B attached
hereto and made a part hereof;
iii. providing Sublessor with an amended or replacement
Letter of Credit in an amount equal to Three Hundred
Seventy Five Thousand and 00/100 Dollars
($375,000.00).
b. At the time of leasing the Tertiary Space, the Sublessee shall
have any and all rights of Sublessor under the Prime Lease
with respect to the exterior signage.
c. Sublessor hereby agrees that the rights granted herein for the
Subleased Premises shall be exclusive and agrees that, from and
after the Sublease Commencement Date until the Sublease
Termination Date, Sublessor shall not offer to or enter into a
lease, sublease, rental, or occupancy agreement affecting any
portion of the Subleased Premises, nor permit any tenant or
licensee to use or occupy any portion of the Subleased Premises,
without receipt of written consent of Sublessee, which consent
shall not be unreasonably withheld or delayed.
12. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign this Sublease, nor
sublet the whole or any part of the Subleased Premises, or suffer or permit any
other person to occupy the same without first obtaining, on each occasion, the
prior written consent of Sublessor and Prime
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Lessor, which consent shall not be unreasonably withheld but shall be
conditioned upon the same terms set forth in Section 9.13 of the Prime Lease.
Notwithstanding the foregoing, Sublessee may assign or sub-sublease this
Sublease to Related Occupants, as defined in Section 9.13 of the Prime Lease,
any affiliated entity or purchaser so long as the affiliated entity or purchaser
has a net worth equal to or greater than Sublessee as of the date of this
Sublease or on the date of such assignment, whichever is greater. Sublessee
agrees to pay all Sublessor's reasonable attorneys' fees in connection with such
assignment and/or subletting and the cost of preparation of any documents
required by the Sublessor and/or Prime Lessor in connection therewith with the
Sublessor's legal fees and document preparation not to exceed Five Thousand
Dollars ($5,000.00) on each occasion.. In all events, Sublessee will continue to
remain responsible to Sublessor for the payment of the Annual Rent and the
performance of all obligations contained herein. At Sublessor's sole election,
Sublessor may require Sublessee to cause any permitted sub-Sublessee to pay the
Annual Rent directly to Sublessor.
13. DAMAGE, DESTRUCTION OR TAKING. Sublessor and Sublessee agree that in the
event the Subleased Premises is destroyed, damaged by fire or other casualty, or
taken by eminent domain, payment of the Annual Rent, the right to terminate this
Sublease and the right to pursue awards shall be governed by the provisions of
Section 10 of the Prime Lease.
14. DEFAULT AND REMEDIES. An Event of Default shall occur if:
a. if a Default, as defined in Section 11 of the Prime Lease,
shall occur with respect to the Sublessee.
b. Sublessee fails to pay when due any installment of Annual
Rent, without notice or demand, provided, however that
Sublessor agrees to permit Sublessee to cure such monetary
default by paying the late fee set forth herein,, within five
(5) days after receipt of written notice to Sublessee of such
non-payment of Annual Rent ("Grace Period"), provided further
that such Grace Period shall only be permitted to occur twice
in any twelve month period.
c. Sublessee shall fail to perform or observe any non-monetary
covenant, condition or agreement to be performed or observed
by it under this Sublease and such failure continues uncured
for more than twenty (20) days after written notice thereof to
Sublessee by Sublessor (unless such default is of a nature
that it cannot be cured within such twenty (20) day period, in
which event no default shall occur so long as Sublessee shall
diligently commence the curing of the default within the
twenty (20) day cure period and promptly prosecutes the curing
of the same), provided further that such event of default
shall not be deemed an Event of Default under the Prime Lease,
in which event the notice periods set forth in the Prime Lease
shall control.
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d. Sublessee attempts to remove, sell, transfer, encumber, part
with possession or sublet the Equipment, as defined under the
Antigenics Leasehold Lease, without the prior written approval
of Sublessor.
e. Sublessee, as Lessee, defaults under the Antigenics Leasehold
Lease.
Upon the occurrence of an Event of Default and the expiration of any
applicable notice and cure period, Sublessor shall have all the rights and
remedies provided by applicable law, this Sublease, the Prime Lease and/or the
Antigenics Leasehold Lease. In addition, Sublessor, at its sole election, may:
a. declare all unpaid Annual Fixed Rent and other sums due and to
become due hereunder under this Sublease immediately due and
payable; and/or
b. proceed by appropriate court action or actions or other
proceedings either at law or in equity to enforce performance
by Lessee of any and all covenants of this Sublease and to
recover damages for the breach thereof; and/or
c. draw on the Letter of Credit; and/or
d. perform the same for the account of Sublessee without thereby
waiving such Event of Default, and any reasonable amount paid
or expense (including reasonable attorneys' fees), penalty or
other liability incurred by Sublessor in such performance,
together with interest at the rate of one and one-half
(1-1/2%) percent per month thereon until paid by Sublessee to
Sublessor, shall be payable by the Sublessee upon demand as
Additional Rent").
Should any proceedings be instituted by or against Sublessor hereunder and/or
for possession of any or all of the Sublease Premises and/or the Equipment or
for any other relief, Sublessee shall pay a Sublessor's reasonable attorney's
fees and court costs.
No remedy of Sublessor hereunder shall be exclusive of any remedy herein or by
law provided, but each shall be cumulative and in addition to every other
remedy.
In addition to any and all remedies set forth herein, Sublessor shall have all
remedies available to the Prime Lessor under the Prime Lease and at law or in
equity, and any and all remedies shall be cumulative and non-exclusive.
15. SUBLESSEE'S OBLIGATIONS UNDER PRIME LEASE. For so long as the Prime Lease
remains in full force and effect, Sublessee agrees to perform, fulfill and
observe all of the covenants, agreements, obligations, conditions,
representations, warranties, terms and provisions imposed upon Sublessor as
tenant under the Prime Lease and which are applicable to the Subleased Premises
except for the covenants and agreements of Sublessor set forth therein with
respect to any remaining portions of the Leased Premises not being Subleased to
the Sublessee hereunder, including, Sublessor's obligations with respect to the
payment of the Annual Rent. Sublessee
13
agrees to indemnify and hold Sublessor harmless from and against all claims,
liabilities, losses and damages of any kind whatsoever which Sublessor may incur
by reason of Sublessee's failure to perform, fulfill or observe any of the
covenants or agreements set forth herein or the applicable provisions set forth
in the Prime Lease. Sublessor agrees to indemnify and hold Sublessee harmless
from and against all claims, liabilities, losses and damages of any kind
whatsoever incurred by Sublessee as a result of any default by Sublessor under
the Prime Lease.
16. ENFORCEMENT AND DELIVERY OF PREMISES AT SUBLEASE TERMINATION DATE. Sublessee
agrees that it will pay all Sublessor's expenses, including reasonable
attorneys' fees incurred in enforcing any obligation of the Sublessee or
remedies of the Sublessor under this Sublease, or in recovering possession of
the Subleased Premises. Sublessee agrees that the Subleased Premises will, at
the expiration or earlier termination of this Sublease, be returned in good
condition, ordinary wear and tear and damage by fire or other casualty only
excepted. In the event of the Sublessee's failure to remove any of the
Sublessee's property from the Subleased Premises, specifically excluding the
Yield Up Equipment, the Sublessor is hereby authorized, after written notice to
Sublessee without liability to the Sublessee for any loss or damage thereto, and
at the sole risk of the Sublessee, to remove and store any of the property at
the Sublessee's sole cost and expense; or to retain same under the Sublessor's
exclusive use and control; or to sell at public or private sale, without notice
to the Sublessee all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due hereunder, or to destroy
such property.
17. NOTICES. All notices or other communications hereunder shall be in writing
and delivered to the addresses set forth below by registered or certified mail,
return receipt requested, postage prepaid, or sent by an overnight express
courier service which provides evidence of delivery or attempted delivery. If
intended for Sublessor addressed to it at 34 Commerce Way, Woburn, Massachusetts
01801, Attention: Mr. Neal Gordon. If intended for Sublessee, addressed to it at
175 Crossing Boulevard, Suite 410, Framingham, Massachusetts 01702, Attention:
Mr. Jack Green, with a courtesy copy to Palmer & Dodge LLP, 111 Huntington
Avenue, Boston, Massachusetts 02199; Attention: Thomas G. Schnorr, Esq. Notices
shall be deemed given when mailed and otherwise on the earlier to occur of the
date of delivery or the date delivery was first attempted, as shown by postal
records. The parties hereto may, from time to time, by notice given hereunder,
designate in writing any different address to which subsequent notices,
certificates or other communications shall be sent.
18. BROKERAGE COMMISSION. Sublessor shall be solely responsible for the payment
of a Eighty Thousand and 00/100 Dollar ($80,000.00) brokerage commission to CB
Richard Ellis. Sublessor represents and warrants that it has not dealt with any
broker any other than Insignia/ESG in connection with this Sublease and will
indemnify and hold harmless Sublessee from and against any loss or expense
suffered by Sublessee as a result of such dealings with any other broker. If
Sublessee exercises its option for the Tertiary Space, and an amendment is fully
executed by both parties and consented to by the Prime Lessor, Sublessor shall
pay CB Richard
14
Ellis an additional brokerage fee of $21,132.00. Sublessee represents and
warrants that it has not dealt with any broker other than CB Richard Ellis in
connection with this Sublease and will indemnify and hold harmless each of
Sublessor and Prime Lessor from and against any loss and expenses suffered by
either of them as a result of such dealings with any broker. Sublessor
represents and warrants that it has not dealt with any broker other than
Insignia/ESG in connection with this Sublease and will indemnify and hold
harmless the Sublessee from and against any loss and expenses suffered by
Sublessee as a result of such dealings with any broker, including any additional
brokerage commissions which may be due CB Richard Ellis in connection with this
Sublease.
19. SUBLESSEE'S REPRESENTATIONS AND WARRANTIES.
a. Sublessee acknowledges it has read and examined the Prime
Lease, and is fully familiar with the terms, covenants and
conditions on the Sublessor's part as tenant, to be performed
thereunder, and all of the applicable terms, covenants and
conditions of the Prime Lease are included herein.
b. Sublessee does hereby assume and agree to be bound by and
perform all the aforesaid terms, covenants and conditions on
the Sublessor's part (as tenant under the Prime Lease) to be
performed under the Prime Lease with respect to the Subleased
Premises, except as otherwise herein specified, and Sublessee
agrees to indemnify, defend (by counsel reasonably acceptable
to Sublessor) and hold Sublessor harmless against any claim or
liability asserted against Sublessor by reason of Sublessee's
failure to perform such obligations. Sublessee agrees that
this Sublease is separate from and subordinate in all respects
to the Prime Lease (and amendments thereto) and to any
agreement to which the Prime Lease is subject. In the event
Sublessee shall default in the full performance of any of the
terms, covenants and conditions on its part to be performed
under this Sublease, then Sublessor shall have the same rights
and remedies with respect to such default as are given to
Prime Lessor with respect to defaults by Sublessor as tenant
under the Prime Lease, all with the same force and effect as
though the provisions of the Prime Lease with respect to
defaults, and the rights and remedies of Prime Lessor in the
event thereof, were set forth at length herein. Sublessee
further agrees that Sublessor shall have no liability of any
nature whatsoever to Sublessee as a consequence of Prime
Lessor's default under the Prime Lease, including, but not
limited to, Prime Lessor's breach of a covenant of quiet
enjoyment. Any conflicts between the terms, covenants and
conditions of this Sublease and the Prime Lease shall be
resolved in favor of the Prime Lease.
15
c. In any case, where Prime Lessor reserves the right to enter
the Subleased Premises, said right shall enure to Prime Lessor
as well as to Sublessor. Furthermore, Sublessor reserves the
right upon 24 hours prior notice to Sublessee to enter the
Subleased Premises for the purpose of accessing, repairing and
maintaining the Subleased Premises. Sublessee may elect to
have a representative present at the time of such entry. No
such prior notice shall be required in the event of an
emergency.
d. Sublessee agrees to perform and comply with the terms,
provisions, covenants and conditions of the Prime Lease and
not to do, or suffer or permit anything to be done, which
would result in a default under, or cause the Prime Lease to
be terminated or forfeited.
e. In the event that any mechanic's lien or other lien is filed
against the Sublease Premises, or any part thereof, for any
reason whatsoever by reason of Sublessee's acts or failure to
act, then Sublessee shall cause same to be discharged in the
time periods set forth in Section 9.4 of the Prime Lease.
f. Sublessee will fully and faithfully perform the terms and
conditions of the Prime Lease on its part to be performed, and
in addition thereto, Sublessee will not do, or cause to be
done or suffer or permit any act or thing to be done, which
would, or might, cause the Prime Lease or the rights of
Sublessor as tenant under the Prime Lease to be endangered,
cancelled, terminated, forfeited, or surrendered, or which
would or might make Sublessor liable for any damages, claim or
penalty.
20. SUBLESSOR'S REPRESENTATIONS AND WARRANTIES.
Sublessor represents and warrants to Sublessee that:
a. the Prime Lease is in full force and effect and has not been
modified or amended (except as expressly set forth in the
recitals to this Sublease); and there are no other documents,
instruments, agreements or the like creating obligations on
Sublessor's part under the Prime Lease;
b. Sublessor has delivered to Sublessee redacted copies of:
i. the Prime Lease and the other documents expressly set forth
in the recitals to this Sublease, and
ii. all riders, modifications, schedules, exhibits and addenda
relating thereto;
c. Sublessor is the current tenant under the Prime Lease;
d. neither the Prime Lessor nor Sublessor is in default under the
Prime Lease; nor has any event occurred which, with the giving
of notice, the passage of time, or
16
both, would constitute a default under the Prime Lease; nor
has Sublessor received any notice from Prime Lessor that any
outstanding charges for Annual Fixed Rent, Additional Rent
and/or other charges under the Prime Lease are past due;
e. Prime Lessor has consented to this Sublease and this Sublease
shall not constitute a default under the Prime Lease; and
f. In the event that pursuant to the terms in the Prime Lease,
the Sublessor under the fire and condemnation provisions, if
any, contained in the Prime Lease has the right to terminate
the Prime Lease, Sublessor agrees that it will not exercise
such right of termination without first obtaining Sublessee's
consent to said termination.
g. Sublessor does hereby assume and agree to be bound by and
perform all the aforesaid terms, covenants and conditions on
the Sublessor's part to be performed under this Sublease with
respect to the Subleased Premises, and Sublessee agrees to
indemnify, defend (by counsel reasonably acceptable to
Sublessee) and hold Sublessee harmless against any claim or
liability asserted against Sublessee by reason of Sublessor's
failure to perform such obligations.
h. Sublessor agrees to perform and comply with the terms,
provisions, covenants and conditions of the Prime Lease and
not to do, or suffer or permit anything to be done, which
would result in a default under, or cause the Prime Lease to
be terminated or forfeited.
21. ARBITRATION. All disputes arising out of or in connection with this Sublease
Agreement and/or the Antigenics Leasehold Lease shall be finally settled under
the Commercial Arbitration Rules of the American Arbitration Association then in
effect by an arbitrator appointed in accordance with such rules. The
arbitrator's award shall be final and binding. Judgment upon the award rendered
may be entered in any court having jurisdiction over the party against which the
award is rendered. The parties expressly consent to the jurisdiction of the
federal and state courts situated in The Commonwealth of Massachusetts for the
purpose of enforcing any arbitration award rendered pursuant to this Section.
The arbitration shall take place in Framingham, Massachusetts or such other
place as the parties may agree. The arbitration shall include (a) a provision
that the prevailing party in such arbitration shall recover its costs of the
arbitration and reasonable attorneys' fees from the other party, and (b) the
amount of such costs and fees.
22. PRIME LANDLORD CONSENT. This Sublease shall be contingent upon the
Sublessor's receipt of the Prime Landlord's written consent to this Sublease, in
the form attached hereto as Exhibit D.
17
23. COVENANT OF QUIET ENJOYMENT. Sublessor hereby warrants and covenants that
upon payment of the Annual Rent and any additional rent due hereunder, and upon
the performance of all the terms and covenants of this Sublease, Sublessee shall
have peaceful and quiet use and possession of the Subleased Premises without
hindrance or interruption on the part of Sublessor.
24. MISCELLANEOUS.
a. This Sublease and the Antigenics Leasehold Lease contain the
entire and exclusive agreement between the parties and
supersedes all prior arrangements, understandings and
agreements, whether oral or written. This Sublease may not be
amended or modified except by a written instrument executed by
Sublessor and Sublessee and approved in each instance by Prime
Lessor.
b. One or more waivers of any covenant or condition by Sublessor
shall not be construed as a waiver of a subsequent breach of
the same or any other covenant or condition, and the consent
or approval by Sublessor to or of any act by Sublessee
requiring Sublessor's consent or approval shall not be
construed to waive or render unnecessary Sublessor's consent
or approval to or of any subsequent similar act by Sublessee.
c. This Sublease shall be governed by and interpreted in
accordance with the laws of The Commonwealth of Massachusetts.
In the event any provision of this Sublease shall be
determined invalid or unenforceable under applicable law, or
shall be determined to be a violation of the Prime Lease, this
Sublease shall be construed as if such provision had never
been made a part hereof, but shall otherwise continue in full
force and effect.
d. The headings used herein are used only for convenience of
reference and are not to be considered part of this Sublease
or to be used in determining the intent of the parties hereto.
e. This Sublease shall be binding upon and inure to all
successors and permitted assigns, including all permitted
sub-subleases, of the parties hereto.
f. Sublessor shall in no event be construed, held or become in
any way or for any purpose a partner, associate or joint
venturer of Sublessee or any party associated with Sublessee
in the conduct of its business or otherwise.
g. Sublessee knowingly agrees to and hereby waives any and all
rights to trial by jury in any matter arising out of this
Sublease or otherwise with the Sublessor.
18
h. The specific remedies to which Sublessor may resort under the
terms of this Sublease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to
which it may be lawfully entitled in case of any breach or
threatened breach by Sublessee of any provisions of this
Sublease. In addition to the other remedies provided in this
Sublease, Sublessor shall be entitled to the restraint by
injunction of the violation or attempted or threatened
violation of any of the covenants, conditions or provisions of
this Sublease or to a decree compelling specific performance
of any such covenants, conditions or provisions.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as an
instrument under seal by their duly authorized officers on the day and the year
first above written
PRIME LESSOR SUBLESSOR
Antigenics Inc., a Massachusetts
corporation and a wholly owned
subsidiary of Antigenics Inc., a
Delaware corporation.
By: /s/ Neal Gordon
---------------------------------
- --------------------------------- Name: Neal Gordon
All Terms and Provisions Approved Title: Senior Vice President
SUBLESSEE
GTC Biotherapeutics, Inc.
By: /s/ John B. Green
---------------------------------
Name: John B. Green
Title: Senior Vice President
By:
---------------------------------
Name:
Title:
19
EXHIBIT A
(SUBLEASE PREMISES)
SKETCH PLAN
Utility Equipment Area - Tertiary Space - First Floor
[FIRST FLOOR PLAN]
20
Secondary/Tertiary Space Segregation on Second Floor
Hatched Area is Secondary Space
Open Area is Tertiary Space
[SECOND FLOOR PLAN]
21
Primary Space - Third Floor
[THIRD FLOOR PLAN]
22
EXHIBIT B
(ANNUAL FIXED RENT AND ADDITIONAL RENT)
23
ANTIGENICS, INC.
SUBLEASE AGREEMENT - EXHIBIT B
UPDATED: JULY 8, 2002
SQ. FT. TOTAL SQ. FT. - UTILITIES ALLOC.
------ OFFICE LAB
------ ------
Phase 1 - Square Feet 11,852 8,891 2,961
Phase 2 - Square Feet 8,036 5,125 2,911
Phase 3 - Square Feet 21,132 3,297 17,835
------ ------ ------
TOTAL SQUARE FEET 41,020 17,313 23,707
------ ------ ------
Base rent per sq ft @ 7/1/02 $ 21.38
Base rent per sq ft @ 9/1/02 $ 22.88
Base rent per sq ft @ 9/1/06 $ 24.38
Monthly 2002 CAM Escalation(1) $ 6,347.58
Monthly 2002 RE Tax Escalation(1) $ 4,834.68
JUL-AUG SEP-OCT NOV-DEC JAN-DEC JAN-DEC JAN-DEC
MONTHLY SUB-LEASE PAYMENTS 2002 2002 2002 2003 2004 2005
---------- ---------- ---------- ---------- ---------- ----------
Base Rent $21,116.31 $22,597.81 $22,597.81 $37,919.79 $37,919.79 $37,919.79
CAM Escalation(1) 1,834.02 1,834.02 1,834.02 3,077.54 3,077.54 3,077.54
RE Tax Escalation(1) 1,396.89 1,396.89 1,396.89 2,344.03 2,344.03 2,344.03
Leasehold Improvements Allocation - - 9,231.61 17,533.00 17,533.00 17,533.00
Utilities Allocation(2,3) 4,531.62 4,531.62 4,531.62 8,925.12 9,639.13 10,410.26
---------- ---------- ---------- ---------- ---------- ----------
TOTAL MONTHLY PAYMENTS $28,878.85 $30,360.35 $39,591.96 $69,799.47 $70,513.48 $71,284.61
---------- ---------- ---------- ---------- ---------- ----------
JAN-AUG SEP-DEC JAN-DEC JAN-DEC JAN-DEC JAN-SEP
MONTHLY SUB-LEASE PAYMENTS 2006 2006 2007 2008 2009 2010
---------- ---------- ----------- ----------- ----------- -----------
Base Rent $37,919.79 $40,405.79 $83,338.97 $83,338.97 $83,338.97 $83,338.97
CAM Escalation(1) 3,077.54 3,077.54 6,347.58 6,347.58 6,347.58 6,347.58
RE Tax Escalation(1) 2,344.03 2,344.03 4,834.68 4,834.68 4,834.68 4,834.68
Leasehold Improvements Allocation 17,533.00 17,533.00 39,155.05 39,155.05 39,155.05 39,155.05
Utilities Allocation(2,3) 11,243.08 11,243.08 all costs all costs all costs all costs
---------- ---------- ----------- ----------- ----------- -----------
TOTAL MONTHLY PAYMENTS $72,117.43 $74,603.43 $133,676.28 $133,676.28 $133,676.28 $133,676.28
---------- ---------- ----------- ----------- ----------- -----------
- -------------------
(1) Annual escalation of CAM & RE Tax to be passed through to sub-lessee at
appropriate % as invoiced by NDNE
(2) Utilities allocation charge calculated at $0.20/square foot for office and
$0.93/square foot for laboratory
An inflationary factor of 8% is used for calculating annual increases and
subject to adjustment based on actual rate increases of the Utility
providers.
(3) 100% of incurred costs for utilities to be borne by sub-lessee.
24
EXHIBIT C
ANTIGENIC LEASEHOLD LEASE
25
ANTIGENICS LEASEHOLD LEASE
THIS ANTIGENICS LEASEHOLD LEASE (this "Leasehold Lease") dated as of
this 19th day of July, 2002 entered into between GTC Biotherapeutics, Inc. a
Massachusetts corporation, formerly known as Genzyme Transgenics Corporation,
with an address of 175 Crossing Boulevard, Suite 410, Framingham, Massachusetts
("Lessee") and Antigenics Inc., a Massachusetts Corporation ("Lessor"), and a
wholly-owned subsidiary of Antigenics Inc., a Delaware corporation, formerly
known as Aquila Biopharmaceuticals, Inc., with an address of 34 Commerce Way,
Woburn, Massachusetts 01801.
RECITALS
WHEREAS, Aquila Biopharmaceuticals, Inc., a Delaware corporation and
wholly owned subsidiary of Sublessor, is the tenant under a lease with NDNE 9/90
Corporate Center LLC (the "Prime Lessor") dated September 19, 1997 as amended by
that certain First Amendment to Lease ("First Amendment") dated December 17,
1997, as further amended by that certain Second Amendment to Lease ("Second
Amendment") dated as of January 14, 1998, as further amended by that certain
Third Amendment to Lease ("Third Amendment") dated as of February 3, 1998, as
further amended by that certain Fourth Amendment to Lease ("Fourth Amendment")
dated as of February 27, 1998, as further Amended by that certain Fifth
Amendment to Lease ("Fifth Amendment") dated as of March 13, 1998 and as
affected by that certain Consent to Assignment of Lease ("Consent") dated April,
2001 (the Lease as so amended and affected by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and
the Consent is hereinafter called the "Prime Lease") which relates to space in
the Building (as said term is defined in the Prime Lease) comprised of
approximately 41,020 rentable square feet located on the 1st, 2nd and 3rd floors
of the building (the "Leased Premises");
WHEREAS, Lessor and Lessee entered into a Sublease Agreement (the
"Sublease") for a portion of the Leased Premises dated July 16, 2002 (the
"Subleased Premises");
WHEREAS, pursuant to the terms of the Sublease, the Lessor, as
Sublessor, and the Lessee, as Sublessee, agreed to enter into this Leasehold
Lease Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee covenant and
agree as follows:
All terms not otherwise defined herein shall have the same meaning as
set forth in the Prime Lease and the Sublease.
Lessor hereby leases to Lessee, and Lessee hereby hires and takes from
Lessor, the leasehold improvements, fixtures and personal property described in
Exhibit A, attached hereto and made a part hereof (hereinafter, with all
replacement parts, additions, repairs and accessories incorporated therein
and/or affixed thereto, collectively referred to as "Equipment"), subject to the
following terms and conditions:
1
1. TERM AND RENTALS: This Leasehold Lease is for the term beginning on the
Sublease Commencement Date and terminating on December 31, 2006 unless all of
the following conditions are satisfied:
(a) Lessee exercises its right under the Tertiary Space Option;
(b) Lessor and Lessee enter into an amendment to the Sublease adding
the Tertiary Space and extending the term of the Sublease until
September 30, 2010, as provided for under the Sublease; and
(c) Prime Lessor fails to exercise its Take Back Option with respect to
the Leased Premises pursuant to Section 9.13 of the Prime Lease, in
which event this Leasehold Lease shall terminate on September 30, 2010.
During the term, Lessee agrees to pay to Lessor the monthly rental
amounts set forth in Exhibit B of the Sublease as the Leasehold Improvements
Allocation (the "Leasehold Rent") on or before the first day of each month. All
Leasehold Rent due under this Leasehold Lease shall be paid to Lessor or its
assigns without notice or demand and without abatement, offset, defense or
counterclaim, with the exception of any rights Lessee may have under subsection
3(d) of this Leasehold Lease, at Lessor's principal office address set forth
above, or such other place as Lessor or its assignee may designate in writing to
Lessee.
If Lessee fails to pay Leasehold Rent or other payments due under this
Leasehold Lease on or before the same becomes due and upon the expiration of any
applicable notice and grade periods, Lessor may, at its election without notice
or demand:
(a) accept the Leasehold Rent payment in arrears and Lessee shall pay,
as liquidated damages, a late charge equal to one and one-half (1 1/2)
percent per month (computed on the basis of a thirty (30) day month) on
each defaulted Leasehold Rent payment from the due date thereof; or
(b) declare all unpaid Leasehold Rent and other sums due hereunder
immediately due and payable, as further set forth in Section 7 of this
Leasehold Lease.
In addition, Lessor, as Sublessor, shall have all of the rights under the
Sublease, including the right to draw down on the Letter of Credit.
Lessee's obligation to pay the Leasehold Rent and other payments due
under this Leasehold Lease shall be absolute and unconditional and shall not be
affected by reason of:
(a) any defect in, lack of fitness for a particular purpose, use of,
damage to, loss of possession or use of or destruction of, all or any
of the Equipment;
(b) the prohibition or other restriction against Lessee's use of said
Equipment; or
2
(c) for any other cause, being the agreement of the parties that this
Leasehold Lease and any other amount payable by Lessee hereunder shall
continue to be payable in all events in the manner and at the times
provided herein.
Notwithstanding the above, Lessee shall be entitled to off-set Leasehold Rent
payments due under this Leasehold Lease but not the Sublease, pursuant to the
provisions of subsection 3(d)(iii)) of this Leasehold Lease.
2. DESTRUCTION OF EQUIPMENT: The Lessor agrees to maintain insurance on
the Equipment located in the Subleased Premises (the location of the Equipment
is set forth in Exhibit B) until the Sublease Commencement Date for the Primary
Space, Secondary Space and the Tertiary Space, respectively. Lessee agrees to
maintain insurance on the Equipment located in the Subleased Premises during the
Sublessee's lease of the Primary, Secondary and Tertiary Space. In the event of
any loss or damage to the Equipment the respective party shall, to the extent
permitted under the Prime Lease, use the proceeds of any insurance to repair or
replace the Equipment. Lessor shall have no further obligations with respect to
the Equipment after the Lessee's leasing of the Tertiary Space.
3. INSPECTION; WARRANTIES BY LESSOR; MAINTENANCE, COMPLIANCE WITH LAWS
AND INSURANCE:
(a) Except as provided in subsection 3(d) of this Leasehold Lease,
Lessee agrees that it has had the opportunity to inspect all
of the Equipment prior to the date of this Leasehold Lease and
that Lessee is taking the Equipment "as-is" in its current
condition and location as set forth in Exhibit B (the
"Acceptance").
(b) Except as provided in subsection 3(d) of this Leasehold Lease,
Lessor, not being the manufacturer of the Equipment, nor
manufacturer's agent, makes no warranty or representation,
either express or implied, as to the fitness, quality, design,
capacity, suitability, merchantability or performance of the
Equipment or of the material or workmanship thereof, it being
agreed that the Equipment is leased "as is" and that all such
risks, as between Lessor and Lessee, are to be borne by the
Lessee at its sole risk and expense. Lessee further agrees,
regardless of cause, not to assert any claim whatsoever
against the Lessor for loss of anticipatory profits or
consequential damages.
(c) No oral agreement, guaranty, promise, condition,
representation or warranty shall be binding; all prior
conversations, agreements or representations related hereto
and/or to the equipment are integrated herein, and no
modification hereof shall be binding unless in writing signed
by parties.
(d) Lessor shall have the following maintenance obligations with
regard to the Equipment.
(i) Lessor agrees to maintain the Equipment located
within the Leased Premises leased by Lessor in at
least the same condition as of the date of this
Leasehold Lease (with the exception of normal wear
and tear), under
3
the same maintenance procedures currently utilized by
Lessor, until the Sublease Commencement Date for the
Primary Space, Secondary Space and Tertiary Space,
respectively, at which time Lessee shall be solely
obligated to maintain the Equipment located within
the applicable portion of the Subleased Premises as
set forth below. As stated above, Lessee's obligation
to maintain, install, repair, erect, test, adjust or
service the Equipment shall not commence until such
time as the Sublease Commencement Date for the
Primary Space, with respect to Equipment located in
the Primary Space, the Sublease Commencement Date for
the Secondary Space with respect to Equipment located
in the Secondary Space and in the event the Lessee
elects to exercise its option to sublease the
Tertiary Space, January 1, 2007 with respect to
Equipment located in the Tertiary Space.
(ii) Lessor shall provide reasonable evidence of such
maintenance to Lessee upon written request by sending
Lessee copies of its maintenance records and Lessee
shall have the right to inspect the Equipment and
audit such maintenance records at reasonable times
upon 24 hour prior written notice to Lessor.
(iii) If Lessor fails to maintain the Equipment in the
required condition during its occupancy thereof,
Lessee may, after prior written notice to Lessor and
only after Lessor fails to maintain such Equipment
within ten (10) days after receipt of such written
notice, arrange to have the Equipment maintained or
repaired by a licensed professional and off-set an
amount equal to the actual cost of such
maintenance/repair from its next Leasehold Rent
payment under this Leasehold Lease, provided however,
that any rights of off-set shall not apply to a
Lessee, as Sublessee, payment of Annual Fixed
Leasehold Rent under the Sublease. Lessee shall
provide Lessor with copies of all such invoices for
such maintenance as a condition precedent to any
rights of set-off. Provided further that, Lessee
shall not be entitled to off-set Leasehold Rent, if
it is determined that such maintenance obligation
resulted from any acts of Lessee, its contractors,
employees or invitees.
(iv) From and after Sublessee's occupancy of the Primary
Space, Secondary Space, and Tertiary Space, Lessor
shall have no further obligations to maintain,
install, repair, erect, test, adjust or service the
Equipment located within such occupied space.
(e) Lessee shall have the following Maintenance Obligations with
regard to the Equipment:
(i) From and after the Sublease Commencement Date for the
Primary Space, Secondary Space and Tertiary Space,
respectively, Lessee shall be
4
obligated to maintain the Equipment located in the
applicable portion of the Subleased Premises as set
forth in Schedule C in at least the same condition as
of the date Sublessee leases such portion of the
Subleased Premises (with the exception of normal wear
and tear), under the same maintenance procedures
currently utilized by Lessor.
(ii) If Lessee has not maintained the Equipment in the
required condition, Lessor may, after prior written
notice to Lessee and only after Lessee fails to
maintain such Equipment within ten (10) days after
receipt of such written notice, arrange to have the
Equipment maintained or repaired by a licensed
professional and charge the actual cost of such
maintenance/ repair as Additional Rent due with the
next monthly Leasehold Rent payment. Lessor shall
provide Lessee with copies of all such invoices for
such maintenance as a condition precedent to charging
any Additional Rent.
(f) Lessee and Lessor each agree, at their own cost and expense,
to comply with all of the following requirements with respect
to the Equipment while such party leases the Leased Premises
in which such Equipment is located:
(i) to pay all charges and expenses in connection with
the operation of each item of Equipment;
(ii) to comply with all governmental laws, ordinances,
regulations, requirements and rules with respect to
the use, maintenance and operation of each item of
Equipment;
(iii) to maintain at all times public liability, property
damage, fire with extended coverage, theft and
comprehensive insurance in an amount equal to the
book value of such Equipment, as set forth on the
depreciation schedule attached hereto as Exhibit C,
protecting the other party's interest as it may
appear, delivering to the other party evidence of
such insurance coverage upon the commencement of this
Leasehold Lease and annually thereafter, provided,
however that Lessor shall have no further obligations
to insure the Equipment after the earlier of the
Sublease Termination Date or the Sublessee's leasing
of the Tertiary Space; and
(iv) all insurance policies shall provide that no
cancellation thereof shall be effective without
thirty (30) days prior written notice to the other
party.
4. LESSOR'S TITLE, RIGHT OF INSPECTION AND IDENTIFICATION OF EQUIPMENT:
Title to the Equipment shall at all times remain in the Lessor and Lessee will
at all times protect and defend, at its own cost and expense, the title of
Lessor from and against all claims, liens and legal processes of creditors of
Lessee and keep all the Equipment free and clear from all such claims, liens and
processes. Lessor shall have the right from time to time during reasonable
business hours, with reasonable advance notice, to enter upon the Subleased
Premises
5
for the purpose of confirming the existence, condition and proper maintenance of
the Equipment. Lessor shall be accompanied by a representative of Lessee during
any such inspection. The foregoing rights of entry are subject to any applicable
governmental laws, regulations and rules concerning industrial security. Prime
Lessor has consented to this Leasehold Lease and this Leasehold Lease shall not
constitute a default under the Prime Lease. Lessor hereby represents that it
either has or does not require authority to lease the Equipment and that this
Leasehold Lease does not constitute a breach of any agreement with respect to
the Equipment.
5. POSSESSION, PLACE OF USE AND CHANGES IN LOCATION OF EQUIPMENT: So
long as Lessee shall not be in default under this Leasehold Lease or the
Sublease the Lessee shall be entitled to the possession and use of the Equipment
in accordance with the terms of this Leasehold Lease and the Sublease. The
Equipment shall be used in the conduct of the lawful business of Lessee and
shall be kept at the address of Lessee set forth above. Lessee shall not,
without Lessor's prior written consent, remove the Equipment from such location,
part with possession or control of the Equipment or attempt or purport to sell,
pledge, mortgage or otherwise encumber any of the Equipment or otherwise dispose
of or encumber any interest under this Leasehold Lease.
6. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR: In the Event of
Default (as defined below), the Lessor may, at its option, perform the same for
the account of Lessee without thereby waiving such Event of Default, and any
reasonable amount paid or expense (including reasonable attorneys' fees),
penalty or other liability incurred by Lessor in such performance, together with
interest at the rate of one and one-half (1 -1/2%) percent per month thereon
until paid by Lessee to Lessor, shall be payable by the Lessee upon demand as
additional rent ("Additional Rent") for the Equipment.
7. EVENT OF DEFAULT: An "Event of Default" by Lessee shall occur if:
(a) Lessee fails to pay when due any installment of Leasehold Rent
and/or Additional Rent, without notice or demand, provided,
however that Lessor agrees to permit Lessee to cure such
monetary default by paying the late fee set forth in Section
1(a) of this Leasehold Lease, within five (5) days after
receipt of written notice to Lessee of such non-payment of
Leasehold Rent ("Grace Period"), provided further that such
Grace Period shall only be permitted to occur twice in any
twelve month period and shall not apply to any payments due
under the Sublease with the exception of payments made under
this Leasehold Lease;
(b) Lessee shall fail to perform or observe any non-monetary
covenant, condition or agreement to be performed or observed
by it under this Leasehold Lease and such failure continues
uncured for twenty (20) days after written notice thereof to
Lessee by Lessor (unless such default is of a nature that it
cannot be cured within such twenty (20) day period, in which
event no default shall occur so long as Lessee shall
diligently commence the curing of the default within the
twenty (20) day cure period and promptly prosecutes the curing
of the same);
6
(c) Lessee ceases doing business, makes an assignment for the
benefit of creditors, admits in writing its inability to pay
its debts as they become due, files a voluntary petition in
bankruptcy, is adjudicated a bankrupt or an insolvent, files a
petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law or
regulation or files an answer admitting the material
allegations of a petition filed against it in any such
proceeding, consents to or acquiesces in the appointment of a
trustee, receiver, or liquidator of it or of all or any
substantial part of its assets or properties, or if it or its
shareholders shall take any action looking to its dissolution
or liquidation;
(d) within ninety (90) days after the commencement of any
proceedings against Lessee seeking reorganization,
arrangement, readjustment, liquidation dissolution or similar
relief under any present or future statute, law or regulation,
such proceedings shall not have been dismissed, or if within
ninety (90) days after the appointment without Lessee's
consent or acquiescence of any trustee, receiver or liquidator
of it or of all or any substantial part of its assets and
properties, such appointment shall not be vacated;
(e) Lessee attempts to remove, sell, transfer, encumber, part with
possession or sublet the Equipment or any item thereof,
without the prior written approval of Lessor; or
(f) Lessee, as Sublessee shall be in default under the Sublease.
Upon the occurrence of an Event of Default and the expiration of any
applicable notice and cure period, Lessor shall have all the rights and remedies
provided by applicable law, this Leasehold Lease and/or the Sublease. In
addition, Lessor, at its sole election, may:
(a) declare all unpaid Leasehold Rent and other sums due and to
become due under this Leasehold Lease immediately due and
payable; and/or
(b) proceed by appropriate court action or actions or other
proceedings either at law or in equity to enforce performance
by Lessee of any and all covenants of this Leasehold Lease and
to recover damages for the breach thereof.
Lessor shall also be entitled to recover immediately as liquidated
damages for loss of the bargain and not as penalty any unpaid Leasehold Rent
that accrued on or before the occurrence of the Event of Default for the
unexpired term of this Leasehold Lease. No remedy of Lessor hereunder shall be
exclusive of any remedy herein or by law provided, but each shall be cumulative
and in addition to every other remedy.
8. INDEMNITY: Lessee agrees that Lessor shall not be liable to Lessee
for, and Lessee shall indemnify and save Lessor harmless from and against any
and all liability, loss, damage, expense, causes of action, suits, claims or
judgments arising from or caused directly or indirectly by an Event of Default
by Lessee under this Leasehold Lease; or injury to person or
7
property resulting from or based upon the actual use, operation, delivery or
transportation of any or all of the Equipment or its location or condition,
after the Sublease Commencement Date unless caused by the negligence of Lessor
or its agents, employees, contractors or representatives; and shall, at its own
cost and expense, defend any and all suits which may be brought against Lessor,
either alone or in conjunction with others upon any such liability or claim or
claims and shall satisfy, pay and discharge any and all judgments and fines that
may be recovered against Lessor in any such action or actions, provided,
however, that Lessor shall give Lessee written notice of any such claim or
demand.
9. ASSIGNMENT, NOTICES, REMEDIES AND WAIVERS: Lessee shall not be
permitted to assign this Leasehold Lease without the prior written consent of
Lessor, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, as long as there is no Event of Default by the
Lessee under the provisions of this Leasehold Lease and/or the Sublease, this
Leasehold Lease and any rights pursuant hereto may be assigned by Lessee as
provided under Section 9.13 of the Prime Lease. Notwithstanding, the Lessee may
assign its rights hereunder to any Related Occupants, as defined in Section 9.13
of the Prime Lease, any affiliated entity or purchaser so long as the affiliated
entity or purchaser has a net worth equal to or greater than Lessee as of the
date of this Leasehold Lease or on the date of such assignment, whichever is
greater. It shall be a condition of the validity of any assignment that the
assignee agrees directly with Lessor, to be bound by all of the terms and
obligations of Lessee hereunder. No assignment shall relieve Lessee from its
obligations hereunder and Lessee shall remain fully and primarily liable
therefor.
10. NOTICES: All notices relating hereto shall be delivered in person
to an officer of the Lessor or Lessee or shall be mailed registered to Lessor or
Lessee at its respective address below shown or at any later address last known
to the sender. If intended for Lessor, addressed to Antigenics Inc., 34 Commerce
Way, Woburn, Massachusetts 01801, Attention: Mr. Neal Gordon. If intended for
Lessee, addressed to GTC Biotherapeutics, Inc., 175 Crossing Boulevard, Suite
410, Framingham, Massachusetts 01702, Attention: Mr. Jack Green, with a courtesy
copy to Palmer & Dodge LLP, 111 Huntington Avenue, Boston, Massachusetts 02199,
Attention: Thomas G. Schnorr, Esq. No remedy of Lessor hereunder shall be
exclusive of any other remedy herein or by law provided, but each shall be
cumulative and in addition to every other remedy. A waiver of a default shall
not be a waiver of any other or a subsequent default.
11. FURTHER ASSURANCES: Lessee shall execute and deliver to Lessor,
upon Lessor's request, such instruments and assurances as Lessor deems necessary
or advisable for the confirmation or perfection of this Leasehold Lease and
Lessor's rights hereunder, including the filing or recording of this agreement
at Lessor's option and at Lessor's sole cost and expense.
12. LEASE IRREVOCABILITY: This Leasehold Lease is irrevocable for the
full term hereof and for the aggregate rentals hereinabove reserved and the
Leasehold Rent shall not abate by reason of termination of Lessee's right of
possession, except in the event of default by the Lessor under the Prime Lease
or in the event Prime Lessor exercises its Take Back Option with respect to the
Leased Premises pursuant to Section 9.13 of the Prime Lease
8
13. PURCHASE OPTION: Lessee shall purchase the Equipment upon the
expiration of this Leasehold Lease, provided all Leasehold Rent and Additional
Rent is paid in full, for consideration in the amount of One Dollar ($1.00).
14. LESSOR AND LESSEE REPRESENTATION: The parties hereto hereby
represent and warrant as follows:
(a) Lessee hereby represents and warrants as follows:
(i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction
of its incorporation, has all requisite corporate
power and authority to own its property and conduct
its business as is now conducted, is duly qualified
and in good standing as a Massachusetts corporation
and is duly authorized to do business in each
jurisdiction where the nature of its properties or
business requires such qualification; and
(ii) the execution, delivery and performance of this
Leasehold Lease and the related documents referenced
to herein: (aa) is within its corporate power and
authority; (bb) has been authorized by all necessary
corporate proceedings; (cc) does not and will not
require the consent of the stockholders of Lessee or
approvals of any governmental authority; (dd) will
not contravene any provision of the charter documents
or by-laws of Lessee or any law, rule or regulation
applicable to Lessee; (ee) will not constitute a
default under any other agreement, order or
undertaking binding on Lessee; and (ff) will not
require the consent or approval of any obligee or
holder of any instrument relating to any indebtedness
of Lessee.
(b) Lessor hereby represents and warrants as follows:
(i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction
of its incorporation, has all requisite corporate
power and authority to own its property and conduct
its business as is now conducted, is duly qualified
and in good standing as a Massachusetts corporation
and is duly authorized to do business in each
jurisdiction where the nature of its properties or
business requires such qualification; and
(ii) the execution, delivery and performance of
this Leasehold Lease and the related
documents referenced to herein: (aa) is
within its corporate power and authority;
(bb) has been authorized by all necessary
corporate proceedings; (cc) does not and
will not require the consent of the
stockholders of Lessor or approvals of any
governmental authority; (dd) will not
contravene any provision of the charter
documents or by-laws of Lessee or any law,
rule or regulation applicable to Lessee; and
(ee) will not constitute a
9
default under any other agreement, order or
undertaking binding on Lessor.
(iii) Prime Lessor has consented to this Leasehold
Lease and this Leasehold Lease shall not
constitute a default under the Prime Lease;
15. CONSENT: This Leasehold Lease is contingent upon the prior written
approval of Silicon Valley Bank and shall not be effective until and unless
Silicon Valley Bank has given its approval hereto, if such approval is required.
16. ARBITRATION: All disputes arising out of or in connection with this
Lease Agreement shall be finally settled under the Commercial Arbitration Rules
of the American Arbitration Association then in effect by an arbitrator
appointed in accordance with such rules. The arbitrator's award shall be final
and binding. Judgment upon the award rendered may be entered in any court having
jurisdiction over the party against which the award is rendered. The parties
expressly consent to the jurisdiction of the federal and state courts situated
in The Commonwealth of Massachusetts for the purpose of enforcing any
arbitration award rendered pursuant to this Section. The arbitration shall take
place in Framingham, Massachusetts or such other place as the parties may agree.
The arbitration shall include (a) a provision that the prevailing party in such
arbitration shall recover its costs of the arbitration and reasonable attorneys'
fees from the other party, and (b) the amount of such costs and fees.
17. MISCELLANEOUS PROVISIONS: No oral agreement, guaranty, promise,
condition, representation or warranty shall be binding; all prior conversations,
agreements or representations related hereto and/or to the equipment are
integrated herein, and no modification hereof shall be binding unless in writing
signed by Lessor and Lessee. If any provision of the Leasehold Lease is held to
be invalid or unenforceable by a court of competent jurisdiction, all of the
other provisions hereof shall remain in full force and effect and shall be
liberally construed in favor of the Lessor in order to effect the provisions of
the Leasehold Lease.
This Leasehold Lease shall be governed, construed and enforced under
the laws of the Commonwealth of Massachusetts. Lessee also agrees that any and
all legal actions hereunder or related to the Leasehold Lease shall be pursued
in the courts located in the Commonwealth of Massachusetts and agrees to submit
to the jurisdiction of the courts of the Commonwealth of Massachusetts for such
purposes.
No delays or omissions by the Lessor in exercising or enforcing any of
the Lessor's rights and remedies shall constitute a waiver of or otherwise
impair any such right or remedy, nor shall it be construed to be a waiver of any
such Event of Default or an acquiescence therein. A waiver on one occasion shall
not operate as a bar to or waiver of any such right or remedy on any future
occasion, nor shall it be deemed a continuing waiver.
The Schedules attached hereto are made a part of this Leasehold Lease
for all purposes.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
LESSEE
GTC BIOTHERAPEUTICS, INC.
By: /s/ John B. Green
- ------------------------- -----------------------------------
Witness Name: John B. Green
Title: Senior Vice President
By:
- ------------------------- -----------------------------------
Witness Name:
Title:
11
LESSOR
ANTIGENICS INC., a Massachusetts
Corporation and a wholly owned
subsidiary of Antigenics Inc., a
Delaware Corporation
By: /s/ Neal Gordon
- ------------------------- -----------------------------------
Witness Name: Neal Gordon
Title: Senior Vice President
/s/ Karla Brown By:
- ------------------------- -----------------------------------
Witness Name:
Title:
12
Exhibit A
LEASEHOLD LEASE AGREEMENT
(EQUIPMENT AND FIXED EQUIPMENT)
Project Administration $8,445 Plumbing Fixture and Equipment $46,392
Principal $15,840 Plumbing Fixtures $5,000
Project Manager $135,140 Casework Plumbing Fixtures $6,800
Assit Project Manager $41,551 Casework Fixtures-Eyewash $1,020
Superintendent $173,345 Heating Boiler & Accessories $112,155
Clerical Support $8,158 Condensers $100,000
Reimbursables $14,725 Air Handling Units $130,570
Travel-Job Site $6,040 Ducts $317,699
Drawings & Prints $5,785 Ductwork Demolition $7,750
Pre-Construction Estimating $12,915 Fans $20,000
Liability Insurance $26,600 HVAC Instrument and Control $533
Bonds $96,275 Testing, Adjusting & Balancing $12,556
Permits $31,010 Electrical Contract $104,517
Small Tools and Equipment $9,148 Standby Generator Conduit/Wiring $14,010
Temp Facilities & Control $3,987 Control Wiring $14,757
Fire Protection Details $15,310 Power Wiring, Equipment $47,849
Execution $5,465 Electrical Service $125,495
Cleaning $8,820 Power Wiring, UPS Power $16,242
Tunneling, Boring, and
Jacking $11,340 Security Wiring $9,025
Concrete $760 Security System HW/SW $4,864
Concrete $57,017 Swipe/Strikes & Interlocks $31,994
13
Masonry Contractor $11,740 Additional Power Supplies $1,050
Structure Steel $1,992 Security System Sales Tax $1,410
Metal Fabrication $2,290 Emergency Generator $64,750
Rough Carpentry $6,000 Lighting $146,898
Custom Casework $29,575 Communications $4,427
Roofing $21,038 Tel/Data Wiring/ Outlet $25,411
Solvent Storage Vault Roof $7,003 Fiber & Copper Backbone $13,500
Solvent Storage Blowout
Panels $2,875 Tel/Data Faceplate/Jacks $1,700
Metal Doors and Frames $144,664 Termination-Station Cable $1,300
Door Closures $1,500 Instruments $30,952
Architecture Contract $106,603 Instrumentation Freight $3,158
Misc. Patch/Caulk $2,366 PLC & Automation $6,334
Ceiling Suspension $62,890 Control Panel HW & SW $12,354
Plaster & Gypsum Board $132,263 Dumpsters $12,100
Flooring $135,672 Equipment $297,371
Paints and Coatings $51,040 Centrifugal Pump $8,221
Specialties $20,257 Sales Tax $23,887
Rigging $122,876 Process Piping Sales Tax $15,020
Pass-Thru $1,833 Equipment Freight $2,172
Manufacturing Metal
Casework $128,950 HVAC Sub Consultants $19,241
Epoxy Resin Tables $6,960 Plumbing Eng. Subconsultant $15,000
Fume Hoods $58,745 Structural Eng. Subconsultant $7,147
Stainless Steel Tables $1,650 Fire Protection Subconsultant $10,413
14
Cold Rooms $37,185 MEP Subconsultant $5,898
Instruments $242 Engineering Sub Consultant $2,280
Building Automation Control $158,232 Electrical Sub Consultant $20,000
Elevators $20,580 Architectural Sub Consultant $52,553
Mechanical $203,814 Arch Sub Consultant $53
HVAC Contract $51,726 C/I Sub Consultant $3,040
Plumbing Supervisor $7,471 Process Sub Consultant $1,040
Plumbing Miscellaneous $1,296 Telecom Subconsultant $10,868
Hangers and Supports $12,674 Design and Engineering $63,435
Mechanical Identification $1,962 CAD Design $69,063
Mechanical Insulation $37,558 HVAC Engineering $53,345
Duct Insulation $73,100 Mechanical Engineering $21,120
Pipes and Tubes $130,000 Instrument Engineering $94,935
Pumps $25,000 Lead Process Engineer $58,300
Domestic Water Piping $33,300 Process Engineer $108,489
Sanitary Waste and Vent Pipe $3,669 Construction Support $71,795
Fuel Piping $26,375 Start Up IQ/OQ Support $37,073
Process Piping $43,022 Turnover Books $5,940
Process Mechanical
Demolition $2,400 Fee $178,240
Equipment Disconnects $24,880 Warranty $21,629
Stainless Steel Piping $88,594 Warranty Labor $1,695
Stainless Steel Valves $10,493 Reduction in final payment ($27,207)
Passivation $6,500
QA/QC $6,000 $6,064,092
15
Process Piping Copper $58,600
Process Piping Copper
- -Valve $6,760
Process Piping Plastic $128,597
Process Piping Plastic-
Valve $34,933
Chilled Water Piping $54,287
Plant Steam Piping $138,547
Process Water and Waste
Pipe $106,351
Fire Protection Contract $74,861
16
EXHIBIT B
LEASEHOLD LEASE AGREEMENT
BREAKDOWN OF EQUIPMENT BY ROOM
UPDATED: JULY 10, 2002
MANUFACTURING AREAS - SECOND FLOOR
SPACE ROOM EQUIPMENT TAG NUMBER SERIAL NUMBER VENDOR
- ----- ---- --------- ---------- ------------- ------
Tertiary 200 2- Combo Walk In/Bench top
Fume hoods Hood 200-01 Labconco
Tertiary 200 2- Combo Walk In/Bench top
Fume hoods Hood 200-02 Labconco
Tertiary 200 Exhuast "Snorkels" Alsedent
Tertiary 206 Walk In Hood No Tag Labconco
Tertiary 206 Exhaust "Snorkel" Alsedent
Tertiary 208 Lancer Glass Washer 4042 Aquila Lancer
Tertiary 215 Getinge Autoclave 0237 Aquila Getinge
Tertiary 215 Getinge Autoclave 0155 Aquila Getinge
Tertiary 215 1 Gruenberg Oven 4136 Aquila Gruenberg
Tertiary 211 1 BSC (Not ducted) 1227 Cambridge Nuaire
Tertiary 213 Walk In Fume Hood 0277 Aquila Labconco
Tertiary 213 Combo Walk In/bench top
Fume Hood 0276 Aquila Labconco
Tertiary 214 Lancer Glass Washer 4120 Aquila Lancer
Tertiary 214 Dryer 4119 Aquila Forma Quick
Tertiary 219 Fume Hood 981141263F Labconco
Tertiary 221 1 BSC 0194 Cambridge
Tertiary 221 1 Class 100 Soft Wall
Clean Room 4114 Aquila
Tertiary 223 Cold Room
Tertiary 224 1 BSC 000304 The Baker
Antigenics Company
ANIMAL FACILITY - SECOND FLOOR
Secondary 246 6' BSC (Ducted) 1226 Cambridge 56-1530IV
Secondary 246 4' BSC (Ducted) 4223 Aquila Nuaire
Secondary 246 1 Getinge Autoclave 4220 Aquila Getinge
RESEARCH LABS - SECOND FLOOR
Tertiary 250 1- 6' BSC (Not Ducted) 4206 Aquila 14154 SR Nuaire
Tertiary 252 1- 6' BSC (Not Ducted) 4214 Aquila 18940 UT Nuaire
Tertiary 254 1 Fume Hood No Tag 13937SP Nuaire
Tertiary 254 BSC (Not ducted) 117 Cambridge Nuaire
Tertiary 254 BSC Not ducted) 175 Cambridge Nuaire
Tertiary 257 Fume Hood No Tag Labconco
Tertiary
Tertiary 257 Electric Boiler 4186 Aquila N4-11336-P89
Tertiary 257 Autoclave (small) 4280 120176 Market Forge
2 260 Fume Hood No Tag Labconco
2 262 1- 4' BSC (Not ducted) 4208 Aquila Nuaire
2 262 1- 6' BSC (Not Ducted) 4209 Aquila Nuaire
2 264 Cold Room Bally
Tertiary 267 Cold Room Masterbilt
FACILITY SYSTEMS - FIRST FLOOR
Tertiary PH Neutralization System P73938A-2 Nettco
Tertiary PH Neutralization System P73938A-1 Nettco
Tertiary Solvent Delivery System PRV602501
Tertiary Purified Water System Cal Tags
683,684,685
Tertiary Compressed Air K7775U84F
Tertiary Glycol Chiller 3396 Cambridge L87E02251
Tertiary 2 Hot Water Boilers BT-6384 Cleaver Brooks
Tertiary Hot Water Boiler BT-6385 Cleaver Brooks
Tertiary High Pressure Boilers 64638 Fulton
Tertiary High Pressure Boilers 81992 Fulton
Tertiary 1 Low Pressure Boiler 64546 Fulton
Tertiary 1 Electric Chromulux Boiler 875-10882
Tertiary 1 Clean Steam Generator 910125A-1
Tertiary 1 Biokill System LSL 112100
Tertiary 1 Stand by Generator 981120
Tertiary 1 Siemens Building Automation
System No Tag
Tertiary 1 Intellution Monitoring System for
Biokill/Solvent 66685A1
6685A2
17
EXHIBIT C
LEASEHOLD LEASE AGREEMENT
DEPRECIATION CALCULATIONS
UPDATED: JULY 10, 2002
PRIMARY SPACE
-------------
Total Res & Admin
Spending 3RD FLOOR
-------- ---------
Gross Fixed Assets
Equipment(1) $ 705,484 $ --
Leasehold Improvements 5,358,608 1,303,237
----------- -----------
Total Gross Fixed Assets 6,064,092 1,303,237
----------- -----------
Accum. Depr / Amort @ 12/31/01
Equipment (302,350) --
Leasehold Improvements (1,370,825) (343,150)
----------- -----------
Total Accum Depr / Amort (1,673,175) (343,150)
----------- -----------
Net Gross Fixed Assets $ 4,390,916 $ 960,087
=========== ===========
NET EQUIPMENT & LEASEHOLD IMPROVEMENTS $ 4,390,916 $ 960,087
----------- -----------
LEASE MONTHS REMAINING @ 12/31/01 104
AMORTIZATION OF LHI PER MONTH $ 9,231.61
===========
SECONDARY SPACE
----------------------------
Total Research E-Prise Space
Spending 2ND FLOOR 2ND FLOOR
-------- --------- ---------
Gross Fixed Assets
Equipment(1) $ 705,484 $ -- $ --
Leasehold Improvements 5,358,608 947,178 195,436
----------- ----------- -----------
Total Gross Fixed Assets 6,064,092 947,178 195,436
Accum. Depr / Amort @ 12/31/02
Equipment (403,133) -- --
Leasehold Improvements (1,818,334) (321,405) (57,481)
----------- ----------- -----------
Total Accum Depr / Amort (2,221,467) (321,405) (57,481)
----------- ----------- -----------
Net Gross Fixed Assets $ 3,842,624 $ 625,773 $ 137,955
=========== =========== ===========
NET EQUIPMENT & LEASEHOLD IMPROVEMENTS $ 3,842,624 $ 625,773 $ 137,955
----------- ----------- -----------
LEASE MONTHS REMAINING @ 12/31/02 92
AMORTIZATION OF LHI PER MONTH $ 8,301.39
===========
18
TERTIARY SPACE
--------------
Total Manufacturing Manufacturing Facilities
Spending QS-21 Fel-V Mech Room
-------- ----- ----- ---------
Gross Fixed Assets
Equipment(1) $ 705,484 $ 172,595 $ 167,506 $ 365,382
Leasehold Improvements 5,358,608 1,239,669 1,203,114 469,974
----------- ----------- ----------- -----------
Total Gross Fixed Assets 6,064,092 1,412,265 1,370,620 835,356
Accum. Depr / Amort @ 12/31/06
Equipment (705,484) (172,595) (167,506) (365,382)
Leasehold Improvements (3,608,369) (834,766) (810,150) (316,470)
----------- ----------- ----------- -----------
Total Accum Depr / Amort (4,313,852) (1,007,361) (977,656) (681,852)
----------- ----------- ----------- -----------
Net Gross Fixed Assets $ 1,750,239 $ 404,903 $ 392,963 $ 153,504
=========== =========== =========== ===========
NET EQUIPMENT & LEASEHOLD IMPROVEMENTS $ 1,750,239 $ 404,903 $ 392,963 $ 153,504
=========== =========== =========== ===========
LEASE MONTHS REMAINING @ 12/31/06 44
AMORTIZATION OF LHI PER MONTH $ 21,622.05
19
EXHIBIT D
PRIME LESSOR CONSENT
CONSENT TO SUBLEASE
PREAMBLE
THIS CONSENT TO SUBLEASE ("Consent") dated as of July 18, 2002, is made
with reference to that certain Sublease dated July 16, 2002 (the "Sublease") by
and between Antigenics, Inc., a Massachusetts corporation having an address of
34 Commerce Way, Woburn, MA 01801,a wholly owned subsidiary of Antigenics, Inc.,
a Delaware corporation formerly known as Aquila Biopharmaceuticals, Inc.
("Sublandlord") and GTC Biotherapeutics, Inc., a Massachusetts corporation
having an address at 175 Crossing Boulevard, Suite 410, Framingham, MA 01702
("Subtenant"), and is entered into by and among NDNE 9/90 Corporate Center LLC,
a Massachusetts limited liability company, having an address c/o National
Development, 2310 Washington Street, Newton Lower Falls, MA 02462
("Overlandlord"), Sublandlord, and Subtenant, with respect to the following
facts:
A. Overlandlord and Sublandlord are the parties to that certain
Lease dated as of September 19, 1997, as amended by (i) that
certain First Amendment to Lease ("First Amendment") dated
December 17, 1997 (ii) that certain Second Amendment to Lease
("Second Amendment") dated as of January 14, 1998 (iii) that
certain Third Amendment to Lease ("Third Amendment") dated
February 3, 1998 (iv) that certain Fourth Amendment to Lease
("Fourth Amendment") dated February 27, 1998 and (v) that
certain Fifth Amendment to Lease ("Fifth Amendment") dated as
of March 13, 1998 and as affected by that certain Consent to
Assignment of Lease ("Consent") dated May 8, 2001 (said
Lease as amended and affected by the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment,
the Fifth Amendment and the Consent is hereafter the
"Overlease") pertaining to certain space comprised of
approximately 41,020 rentable square feet rentable square feet
located on the 1st, 2nd and 3rd floor(s) (the "Original
Premises") of a building owned by Overlandlord and known as
and numbered 175 Crossing Boulevard, Framingham, Massachusetts
(the "Building");
B. Sublandlord and Subtenant wish to enter into the Sublease;
C. The Overlease provides, inter alia, that Sublandlord may not
enter into any sublease without Overlandlord's prior written
approval; and
D. Sublandlord and Subtenant have presented the fully executed
Sublease (a true copy of which is attached hereto as Exhibit
A) to Overlandlord for Overlandlord's review and approval.
Agreements
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
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1. Overlandlord hereby consents to the execution and delivery of
the Sublease upon the terms and conditions set forth in the
General Conditions of Consent to Sublease ("General
Conditions") attached hereto and made an integral part hereof.
2. Sublandlord and Subtenant hereby acknowledge receipt of the
General Conditions and further acknowledge that Overlandlord's
consent is subject to such General Conditions, and that in the
event of a conflict between (a) this Consent and the General
Conditions and (b) the Sublease or any other agreement by and
between Sublandlord and Subtenant including, without
limitation, the Equipment Lease (as defined in the Sublease),
this Consent and the General Conditions shall control.
3. Notwithstanding anything contained in the Sublease to the
contrary, as a result of the subletting of the Subleased
Premises to Subtenant and the Additional Rent payable under
the Sublease as the result of the Antigenics Leasehold Lease,
Overlandlord is entitled to receive the amounts set forth in
Exhibit B to this Consent from Sublandlord pursuant to the
last sentence of Section 9.13(a) of the Overlease. Such amount
is considered Additional Rent under the Overlease and shall be
paid by Sublandlord to Overlandlord as Additional Rent under
the Overlease on or before the first (1st) day of each and
every calendar month. The Sublease Overage is subject to
increase and adjustment upon any increase in the rent payable
under the Sublease and/or the Antigenics Leasehold Lease from
time to time (whether due to increased rates or additions to
the Subleased Premises or equipment demised under the Sublease
and/or Antigenics Leasehold Lease from time to time).
4. In no event shall Sublandlord or Subtenant remove any of the
Yield Up Equipment described in Exhibit N of the Overlease
from the Original Premises or Property upon expiration or
earlier termination of the Sublease Term.
5. The parties hereto acknowledge and agree that, as and to the
extent that the Sublease initially constitutes a subletting of
only 19,888 square feet of the 41,020 square foot Original
Premises, this Consent does not constitute a consent to a
subletting of the entire Original Premises demised under the
Overlease and, accordingly, the Take Back Option set forth in
Section 9.13(c) of the Lease does not apply to the initial
subletting of only the Primary Space and the Secondary Space.
However, in the event Subtenant shall exercise its option to
sublease the "Tertiary Space" pursuant to the Tertiary Space
Option contained in paragraph 11 of the Sublease, the Take
Back Option set forth in Section 9.13(c) of the Lease shall be
applicable and, in such event, Landlord shall be entitled to
exercise any and all rights afforded Landlord under Section
9.13(c) of the Overlease.
Notwithstanding anything contained in the Sublease to the
contrary, upon the giving of the notice of exercise of
Subtenant's option to sublease the Tertiary Space described in
paragraph 11(a) of the Sublease by Subtenant, Subtenant shall
simultaneously provide Overlandlord with such written notice
in the form sent to
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Sublandlord. The parties agree that the Take Back Option
granted to Overlandlord pursuant to Section 9.13(c) of the
Lease shall then apply and Overlandlord shall have the right
to exercise the Take Back Option as to the entire Premises
then demised under the Overlease (including the Primary Space,
the Secondary Space, the Tertiary Space and any other portion
of the Building then leased by Sublandlord pursuant to the
Overlease, as amended) within the thirty (30) day period
immediately following Overlandlord's receipt of the notice
from Subtenant exercising its right to Sublease the Tertiary
Space. In no event shall any exercise of the Tertiary Space
Option be effective unless and until Overlandlord is provided
with a copy of the Subtenant's exercise of the Tertiary Space
Option and Overlandlord shall fail or refuse to timely
exercise the Take Back Option with respect to the entire
Premises then demised under the Overlease within the thirty
(30) day period provided in this paragraph 5 of this
Agreements section of this Consent.
6. In no event shall Subtenant or Sublandlord modify, amend or
alter the terms and provisions of the Sublease and/or the
Antigenics Leasehold Lease without the written consent of
Overlandlord, which consent may be granted or denied by
Overlandlord in its sole but reasonable judgment.
Overlandlord shall not unreasonably withhold or delay its
consent to any such modification, alteration or amendment
unless the same would materially and adversely affect
Overlandlord's rights or the economic entitlements of the
Overlandlord under the Overlease or this Consent.
EXECUTED under seal as of the date first written above.
OVERLANDLORD: SUBLANDLORD:
NDNE 9/90 Corporate Center LLC Antigenics, Inc.
By: NDNE 9/90 Corporate Center LLC
Its: Manager
By: [Signature illegible] By: /s/ Neal Gordon
------------------------------------- ------------------------
Its: Treasurer Its: Senior Vice President
------------------------------------- ------------------------
hereunto duly authorized hereunto duly authorized
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SUBTENANT:
GTC Biotherapeutics, Inc.
By: /s/ John B. Green
---------------------------------
Its: Senior Vice President
---------------------------------
hereunto duly authorized
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GENERAL CONDITIONS OF CONSENT TO SUBLEASE
The following General Conditions are an integral part of and are hereby
incorporated into the foregoing Consent to Sublease:
1. Neither the Overlease, the Sublease nor this Consent shall be
deemed, nor are such documents intended to grant to Subtenant,
any rights whatsoever against Overlandlord. Subtenant hereby
acknowledges and agrees that its sole remedy for any alleged
or actual breach of its rights in connection with the Sublease
shall be solely against Sublandlord. Subtenant acknowledges
and agrees that it is not a third party beneficiary under the
Overlease and is not entitled to assert any of Sublandlord's
rights thereunder against Overlandlord, whether in its own
right or on behalf of Sublandlord.
2. This Consent and the Sublease shall not (i) be deemed or
construed to mean that Overlandlord shall be bound by any of
the terms, covenants or conditions of the Sublease and
Overlandlord shall not be bound thereby or (ii) release
Sublandlord from any existing or future duty, obligation or
liability to Overlandlord pursuant to the Overlease (and
Sublandlord shall be and remain liable for the full payment,
performance and observance of all of the terms, covenants and
conditions contained in the Overlease to be paid, performed
and observed by the "Tenant" thereunder as if the Sublease and
this Consent had never been made), or (iii) change, modify or
amend the Overlease in any manner, except insofar as it
constitutes Overlandlord's mere consent to the execution and
delivery of the Sublease. Notwithstanding the generality of
the foregoing, this Consent expressly shall not absolve
Sublandlord from any requirement set forth in the Overlease
that Sublandlord (a) obtain Overlandlord's prior written
approval of any additional subleases, assignments or other
dispositions of its interest in the Overlease or the Premises
(as defined in the Overlease) or (b) pay any amounts due and
payable to Overlandlord pursuant to Section 9.13 of the
Overlease in connection with the subletting contemplated by
the Sublease and/or the letting under the Antigenics Leasehold
Lease as they may be amended (with Overlandlord's Consent as
provided herein) from time to time or (c) surrender and
deliver the Premises to Overlandlord in the condition and
manner required by the Lease upon expiration or earlier
termination of the Lease including, without limitation,
surrender and delivery of the Yield-up Equipment described in
Exhibit N of the Overlease.
3. (a) In the event of Overlease Termination (as hereinafter
defined) prior to the expiration or earlier termination of the
Sublease, and subject to the provisions of Section 3(b)
hereof, Overlandlord may, at its discretion, by written notice
to Subtenant (an "Assumption Notice") within ten (10) days
after Overlease Termination, but shall not be required to,
require Subtenant to assume and agree to perform Sublandlord's
obligations under the Overlease with respect to the entire
Original Premises as a direct tenancy between Overlandlord and
Subtenant
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beginning as of and with respect to matters which accrue or
are to be performed from and after (x) the date (the
"Assumption Date") of such Assumption Notice with respect to
those portions of the Original Premises subleased to Subtenant
under the Sublease as of the date of Overlease Termination and
(y) the Effective Date (as hereafter defined) as to those
portions of the Original Premises then not leased to
Subtenant. It is agreed and understood that Subtenant shall
not be responsible for any breaches of the Overlease by
Sublandlord prior to the Assumption Date and the Effective
Date as to those respective portions of the Original Premises
provided, however, that Subtenant shall be responsible for any
breach or default under the Overlease which arises or occurs
prior to such dates where such breach or default is the result
of the acts or omissions of Subtenant. Such assumption by
Subtenant of each and every one of the obligations of
Sublandlord under the Overlease with respect to the entire
Original Premises shall entitle the Subtenant to occupy the
entire Original Premises leased pursuant to the Overlease, but
shall not relieve Sublandlord from any liability to
Overlandlord under the Overlease. In the event of such
assumption, Subtenant agrees to execute and deliver at any
time and from time to time, within ten (10) business days
after written request of Overlandlord, any instruments which
may reasonably be necessary or reasonably appropriate to
evidence such assumption; provided, however, that Subtenant's
failure or refusal to execute and deliver such instruments
within such ten (10) day period shall not be deemed or
construed to release Subtenant from its obligations under the
Overlease as a direct tenancy with Overlandlord as provided
herein. As used herein, the term "Effective Date" shall mean
that date upon which Sublandlord shall vacate and deliver up
the portions of the Original Premises which are not then
subleased to Subtenant as of the date of Overlease
Termination. In the event Overlandlord requires such
assumption, Overlandlord shall not (i) be liable to Subtenant
for any act, omission or breach of the Sublease by
Sublandlord, (ii) be subject to any offsets or defenses which
Subtenant might have against Sublandlord under the Sublease,
(iii) be bound by any rent or additional rent which Subtenant
might have paid in advance to Sublandlord, (iv) be bound to
honor any rights of Subtenant in any security deposit or
advance rent made with or paid to Sublandlord by Subtenant
except to the extent Sublandlord has specifically assigned and
turned over such security deposits and advance rent to
Overlandlord, or (v) be bound by any provision of the
Sublease.
Sublandlord hereby agrees that in the event of Overlease
Termination, at Overlandlord's request, Sublandlord shall
immediately pay or transfer to Overlandlord any security
deposits (or cause Overlandlord to be named as the beneficiary
under any Letter of Credit given as a Security Deposit under
the Sublease and simultaneously amend such Letter of Credit so
that it constitutes a security deposit under the Overlease
between Subtenant and Overlandlord in form satisfactory to
Overlandlord in its sole but reasonable judgment), rent or
other sums then held by Sublandlord in connection with the
subleasing of the Subleased Premises. Such security deposit or
Letter of Credit may be applied by
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Overlandlord pursuant to the terms of the Overlease in the
event of any holding over by Subtenant beyond expiration of
the Sublease or upon the occurrence of a Monetary Default by
the Subtenant pursuant to Section 11.1(a) of the Overlease
after an Overlease Termination and exercise of Landlord's
rights pursuant to this Section 3(a) to cause Subtenant to
assume Sublandlord's rights and obligations under the
Overlease as a direct Lease between Overlandlord and Subtenant
as provided above. Subtenant hereby agrees that under no
circumstances whatsoever shall Overlandlord (x) be required to
release any Security Deposit or other form of Security given
to Overlandlord by Sublandlord and securing Sublandlord's
obligations to Overlandlord under the Overlease whether or not
such obligations accrue or arise under the Overlease before or
after Overlease Termination or (y) be held in any way
responsible or accountable for any security deposit or any
sums paid by Subtenant to Sublandlord unless and until and to
the extent that Overlandlord has actually received such sums
from Sublandlord and has acknowledged their source, and
Subtenant shall have no claim to any security or other deposit
made by Sublandlord under the Overlease.
(b) "Overlease Termination" means any event, which by
voluntary or involuntary act or by operation of law, causes
the Overlease to be terminated, expire, or be canceled
including, but not limited to: (i) a termination of the
Overlease as the result of a default by Sublandlord under the
Overlease or any of the terms and provisions thereof or hereof
which continues past receipt of applicable notice of such
default and the expiration of any applicable cure period, if
any; (ii) foreclosure proceedings brought by the holder of any
mortgage or trust deed to which the Overlease is subject and
from whom Sublandlord has not received a non-disturbance
agreement pursuant to Section 12.2 of the Overlease; (iii) the
termination of Sublandlord's leasehold estate by dispossession
proceeding or otherwise; and (iv) termination of the Overlease
in accordance with its terms.
4. In addition to Overlandlord's rights under Section 3 hereof,
in the event Sublandlord is in default under any of the terms
and provisions of the Overlease after receipt of applicable
notice(if any is required) and expiration of applicable cure
periods, if any, Overlandlord may elect to receive directly
from Subtenant all sums due or payable to Sublandlord by
Subtenant pursuant to the Sublease, and upon receipt of
Overlandlord's written notice to Sublandlord and Subtenant,
Sublandlord agrees that Subtenant shall thereafter pay to
Overlandlord any and all sums becoming due or payable under
the Sublease and Sublandlord shall receive from Overlandlord a
credit for such sums actually received by Overlandlord against
any and all payments then owing from Sublandlord under the
Overlease. Neither the service of such written notice nor the
receipt of such direct payments shall cause Overlandlord to
assume any of Sublandlord's duties, obligations and/or
liabilities under the Sublease, nor shall such event impose
upon Overlandlord the duty or obligation to honor the
Sublease, nor subsequently to accept any purported attornment
by Subtenant. Sublandlord grants Overlandlord a security
interest in all such future payments due to Sublandlord from
Subtenant, which security
7
interest Overlandlord may perfect by filing a UCC-1 (which
Sublandlord shall sign within three (3) days of Overlandlord's
request and Sublandlord hereby irrevocably appoints
Overlandlord as its attorney-in-fact, coupled with an
interest, to execute on behalf of Sublandlord and file such
instrument if Sublandlord fails to do so). Overlandlord shall
credit payments actually received pursuant to this conditional
assignment to Sublandlord's obligations under the Overlease.
Without limitation of the foregoing, acceptance of rent or
other payments from Sublandlord and/or Subtenant by
Overlandlord shall not: (i) constitute a waiver or cure of any
default or breach of the Overlease or (ii) cause nor result in
a reinstatement of the Overlease as between Overlandlord and
Sublandlord after Overlease Termination or (iii) be deemed or
construed to mean that Overlandlord has accepted the Subtenant
as its "Tenant" under the Overlease (unless Overlandlord
expressly so elects in writing pursuant to paragraph 3 of
these General Conditions) or (iv) be deemed to mean that
Subtenant is entitled to any rights under the Sublease or the
Overlease.
5. Subtenant hereby acknowledges that it has read and has
knowledge of all of the terms, provisions, rules and
regulations of the Overlease and agrees not to do or omit to
do anything which would cause Sublandlord to be in breach of
the Overlease. Any such act or omission also shall constitute
a breach of the Overlease and this Consent and shall entitle
Overlandlord to recover any damage, loss, cost, or expense
which it thereby suffers, from Sublandlord and/or Subtenant.
6. In the event of the commencement of an action at law or in
equity by the filing of a complaint or other similar action
involving a request for relief from a judicial body between or
involving the parties hereto with respect to the Sublease, the
Overlease, this Consent or the rights of the parties hereto,
hereunder or thereunder, the Sublandlord and Subtenant,
jointly and severally, hereby agree to pay the Overlandlord on
demand all reasonable costs, expense and attorneys' fees
incurred therein by Overlandlord, which amounts may be
included as a part of any judgment rendered in favor of
Overlandlord therein.
7. The parties acknowledge that the Sublease constitutes the
entire agreement between Sublandlord and Subtenant with
respect to the subject matter thereof, and that no amendment,
termination, modification or change therein will be binding
upon Overlandlord unless Overlandlord shall have given its
prior written consent thereto, which consent may be granted or
denied by Overlandlord in its sole and absolute discretion.
8. This Consent shall be binding upon and shall inure to the
benefit of the parties' respective successors in interest and
assigns, subject at all times, nevertheless, to all agreements
and restrictions contained in the Overlease, the Sublease, and
herein, with respect to subleasing, assignment or other
transfer and the foregoing shall not be deemed to limit or
negate Overlandlord's rights to prohibit or
8
condition its consent to a future dispossession of
Sublandlord's or Subtenant's interests. The agreements
contained herein constitute the entire understanding between
parties with respect to the subject matter hereof and
supersede all prior agreements.
9. This Consent shall not be assignable and shall only apply with
respect to the Sublease by and between Sublandlord and
Subtenant.
10. The consent by Overlandlord to the use and occupancy of the
Subleased Premises by Subtenant shall not be construed as a
consent by Overlandlord to the use and occupancy of the
Subleased Premises by anyone other than Subtenant or
Sublandlord or as a consent to further subletting by
Sublandlord or by Subtenant of the Subleased Premises, or any
part thereof except as expressly provided in the Sublease but
subject to the provisions of paragraph 5 of the "Agreements"
section of this Consent and the Take Back Option set forth in
Section 9.13(c) of the Overlease with respect to Subtenant's
right to Lease any portion of the Original Premises other than
the Primary Space and the Secondary Space (as each of those
terms are defined in the Sublease). Neither the Sublease nor
any of the rights, privileges or obligations thereunder shall
be assigned, modified, renewed or extended, nor shall the
Subleased Premises, or any part thereof, be further sublet or
occupied by others except by Sublandlord, in accordance with
and subject to the terms and provisions of the Overlease or by
Subtenant in accordance with the terms and provisions of the
Sublease but subject to the provisions of paragraph 5 of the
"Agreements" section of this Consent and the Take Back Option
set forth in Section 9.13(c) of the Overlease with respect to
Subtenant's right to Lease any portion of the Original
Premises other than the Primary Space and the Secondary Space
(as each of those terms are defined in the Sublease).
11. Subject to the provisions of General Condition numbered 3 of
this Consent to Sublease and the rights of Overlandlord
thereunder, on or before the day immediately preceding the
date of expiration of the Overlease or upon the date of any
earlier termination of the term of the Overlease, the Sublease
and its term shall expire, terminate and come to an end as of
the effective date of the expiration or termination of the
Overlease, and Sublandlord shall cause Subtenant to vacate and
surrender the Subleased Premises on or before such date in
accordance with the applicable provisions of the Overlease
regarding surrender and delivery of the Premises to
Overlandlord.
12. Sublandlord and Subtenant hereby acknowledge and agree that
Overlandlord shall not be responsible for any brokers
commissions or fees of any kind or nature in connection with
the Sublease or the subject matter thereof and they each
hereby agree to indemnify and hold Overlandlord harmless from
and against any such claims including all reasonable attorneys
fees sustained or incurred by Overlandlord as a result of any
such claim against Overlandlord. Sublandlord and Subtenant
hereby jointly and severally agree to indemnify and hold
Overlandlord
9
harmless from and against any and all claims, costs or damages
sustained or incurred by Overlandlord as the result of any
claim by any party that they are entitled to a commission or
broker's fee in connection with this Consent or the Sublease.
The indemnity contained herein shall include, without
limitation, all reasonable attorneys' fees and expenses
incurred by Overlandlord in connection with any such claim.
This paragraph 12 shall survive expiration or earlier
termination of the Sublease.
13. Sublandlord and Subtenant, jointly and severally, hereby agree
to indemnify and hold Overlandlord harmless with respect to
any and all liability to and claims by Subtenant in connection
with the Sublease, Subtenant's use and occupancy of the
Subleased Premises, or the subject matter hereof unless
arising from the gross negligence or willful misconduct of
Overlandlord. The within indemnity shall be joint and several
and shall include all losses, costs, damages or expenses
including, without limitation, reasonable attorneys fees
sustained or incurred by Overlandlord arising out of the
matters contained herein. The provisions of this paragraph 13
shall survive any expiration or earlier termination of the
Sublease or the Overlease.
14. In the event that there shall be any conflict between the
terms, covenants and conditions of this Consent to Sublease
and the terms, covenants and, conditions of the Sublease
and/or any other agreement by and between Sublandlord and
Subtenant, then the terms, covenants and conditions of this
Consent to Sublease shall prevail in each instance and any
conflicting terms, covenants or conditions of the Sublease
shall be deemed modified to conform with the terms, covenants
and conditions of this Consent to Sublease.
15. Notwithstanding anything contained in the Sublease to the
contrary, Sublandlord and Subtenant represent to and agree
with Overlandlord that no changes, additions or improvements
including, without limitation, electrical, HVAC or other
construction work shall be performed in the Subleased Premises
unless detailed plans and specifications for such work are
first submitted to Overlandlord for its approval and
Overlandlord shall have granted such approval in writing. Such
approval shall be given or withheld in accordance with the
applicable terms of the Overlease. In accordance with the
provisions of the Overlease, all such work, if approved by
Overlandlord, shall be subject to the requirements contained
in the Overlease applicable to construction within or
alterations of the Subleased Premises and shall be performed
in accordance with the Overlease.
16. No signs shall be placed upon or within the Building and/or
the Subleased Premises without the express written consent of
Overlandlord, which consent may be granted or withheld by
Overlandlord in its sole and absolute discretion.
10
17. Subtenant shall, within 10 Business Days of written request
from Overlandlord therefor, execute and deliver to
Overlandlord and/or the holder of any mortgage upon or
proposed purchasers of the Building, a so-called "Estoppel
Letter" in form satisfactory to Overlandlord or such holder of
a Mortgage or proposed purchaser which shall include, among
other things, if so requested, a statement (i) certifying that
the Sublease is in full force and effect and has not been
assigned, modified or amended, (ii) that to Subtenant's
knowledge, Sublandlord is not in default thereunder, (iii) the
date through which rent has been paid and (iv) that, to
Subtenant's knowledge, there are no defenses or set-offs
against enforcement of the Sublease or this Agreement against
Subtenant.
18. Subtenant hereby further agrees that upon the written request
of Overlandlord, Subtenant shall subordinate its interest in
the Sublease to the lien of any mortgage, security agreement
or lease now or hereafter affecting the Building or the land
upon which the Building is constructed. Provided, however,
that in the event of Overlease Termination and Overlandlord's
election to treat the Overlease as a direct lease between
Subtenant and Overlandlord pursuant to Section 3 of these
General Conditions then, Subtenant shall step into the place
of Sublandlord for purposes of Section 12.2 of the Lease and
Sublandlord's rights to receive a non-disturbance agreement in
accordance with and subject to the provisions of Section 12.2.
19. As a condition to the effectiveness of the within Consent, as
additional rent under the Overlease, Sublandlord shall, within
ten (10) days after invoice, reimburse Overlandlord for all
costs and expenses including without limitation, attorneys
fees sustained or incurred by Overlandlord in connection with
Sublandlord's request for Overlandlord's Consent to the
execution and delivery of the Sublease including, without
limitation, review of the Sublease and preparation and
negotiation of this Consent.
20. All notices and demands which may or are to be required or
permitted to be given by any party hereunder shall be in
writing. All notices and demands to Subtenant shall be sent by
United States Mail, certified mail return receipt requested,
postage prepaid, addressed to Subtenant at the Subleased
Premises, and to the address of Subtenant set forth in the
Preamble to this Consent, or to such other place as Subtenant
may from time to time designate in a notice to the other
parties hereto given in the manner herein provided.
All notices and demands to Sublandlord shall be sent by United
States Mail, certified mail return receipt requested, postage
prepaid, addressed to the Sublandlord at the address of
Sublandlord set forth in the Preamble to this Consent, and to
such other person or place as the Subtenant may from time to
time designate in a notice to the other parties hereto given
in the manner herein provided.
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ALL NOTICES AND DEMANDS TO OVERLANDLORD SHALL BE SENT BY
UNITED STATES MAIL, CERTIFIED MAIL RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, ADDRESSED TO THE OVERLANDLORD AT THE ADDRESS
OF OVERLANDLORD SET FORTH IN THE PREAMBLE TO THIS CONSENT, AND
TO SUCH OTHER PERSON OR PLACE AS THE OVERLANDLORD MAY FROM
TIME TO TIME DESIGNATE IN A NOTICE TO THE OTHER PARTIES HERETO
GIVEN IN THE MANNER HEREIN PROVIDED.
Notices may also be sent via overnight courier to such
addresses, as applicable.
21. Submission of this document to the Sublandlord and/or the
Subtenant shall have no binding effect and shall not be deemed
or construed to mean that Overlandlord has consented or will
consent to the subletting contemplated by the Sublessor.
Execution of this Consent to Sublease by Sublandlord and/or
Subtenant and delivery thereof to Overlandlord shall similarly
have no binding effect unless and until Overlandlord has
approved the terms and provisions of the Sublease and Landlord
has approved, executed and delivered this Consent to Sublease
to both Sublandlord and Subtenant. In submitting this document
to Sublandlord and/or Subtenant, Overlandlord hereby reserves
any and all rights, privileges and protections afforded to
Overlandlord under the Lease, at law and in equity.
-Remainder of this Page Intentionally left Blank-
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EXHIBIT E
Form of Letter of Credit
SILICON VALLEY BANK
International Division
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02IS4413
DATE: JULY 18, 2002
BENEFICIARY:
ANTIGENICS, INC
34 COMMERCE WAY
WOBURN, MA 01801
AS "SUBLANDLORD"
APPLICANT:
GTC BIOTHERAPEUTICS, INC.
175 CROSSING BLVD., SUITE 410
FRAMINGHAM, MA 01702
AS "SUBTENANT"
AMOUNT: US$200,000.00 (TWO HUNDRED THOUSAND AND 00/100 U.S. DOLLARS)
EXPIRATION DATE: JULY 18, 2003
LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02IS4413 IN
YOUR FAVOR AVAILABLE BY YOUR DRAFT DRAWN ON US AT SIGHT IN THE FORM OF EXHIBIT
"B" ATTACHED AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.
2. A DATED CERTIFICATION FROM THE BENEFICIARY SIGNED BY AN AUTHORIZED
OFFICER, FOLLOWED BY ITS DESIGNATED TITLE, STATING THE FOLLOWING:
(A) "THE AMOUNT REPRESENTS FUNDS DUE AND OWING TO US AS A RESULT
OF AN EVENT OF DEFAULT BY APPLICANT WITH RESPECTS TO ONE OR
MORE OF THE TERMS OF THAT CERTAIN SUBLEASE AND/OR ANTIGENICS
LEASEHOLD LEASE BY AND BETWEEN BENEFICIARY, AS SUBLANDLORD,
AND APPLICANT, AS SUBTENANT."
OR
(B) "WE HEREBY CERTIFY THAT WE HAVE RECEIVED WRITTEN NOTICE FROM
SILICON VALLEY BANK THAT LETTER OF CREDIT NO. SVB02ISXXXX WILL
NOT BE RENEWED, AND THAT WE HAVE NOT RECEIVED A REPLACEMENT OF
THIS LETTER OF CREDIT FROM APPLICANT SATISFACTORY TO US AT
LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS
LETTER OF CREDIT."
PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS
HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE
BENEFICIARY UNLESS IT IS FULLY UTILIZED
PAGE 1 OF 2
3003 TASMAN DRIVE | SANTA CLARA, CA, U.S.A. 95054 | www.svb.com
PHONE: 408-654-7400 | DIRECT LINE: 408-654-7736 | FAX: 408-496-2418 OR
408-969-6510
SILICON VALLEY BANK
International Division
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB02IS4413
DATED JULY 18, 2002
DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD
OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE
UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE
NOTIFY YOU AND THE APPLICANT BY REGISTERED MAIL/OVERNIGHT COURIER SERVICE AT THE
ABOVE ADDRESSES THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE
CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE
AUTOMATICALLY EXTENDED BEYOND DECEMBER 31, 2006.
THIS LETTER OF CREDIT MAY ONLY BE TRANSFERRED IN ITS ENTIRETY BY THE ISSUING
BANK UPON OUR RECEIPT OF THE ATTACHED "EXHIBIT A" DULY COMPLETED AND EXECUTED BY
THE BENEFICIARY AND ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND ALL
AMENDMENTS, IF ANY, WITH THE PAYMENT OF OUR TRANSFER FEE OF -1/4 OF 1% OF THE
TRANSFER AMOUNT (MINIMUM USD250.00). THE TRANSFEREE FEE WILL BE PAID BY THE
BENEFICIARY.
ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE ORIGINAL
APPROPRIATE DOCUMENTS PRIOR TO 10:00 A.M. CALIFORNIA TIME, ON A BUSINESS DAY AT
OUR OFFICE (THE "BANK'S OFFICE") AT: SILICON VALLEY BANK, 3003 TASMAN DRIVE
SANTA CLARA, CA 95054, ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION
OR BY FACSIMILE TRANSMISSION AT: (408) 654-6211 OR (408) 496-2418; AND
SIMULTANEOUSLY UNDER TELEPHONE ADVICE TO: (408) 654-7120 OR (408) 654-3052),
ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION WITH ORIGINALS TO FOLLOW
BY OVERNIGHT COURIER SERVICE; PROVIDED, HOWEVER, THE BANK WILL DETERMINE HONOR
OR DISHONOR ON THE BASIS OF PRESENTATION BY FACSIMILE ALONE, AND WILL NOT
EXAMINE THE ORIGINALS.
PAYMENT AGAINST CONFORMING PRESENTATIONS HEREUNDER SHALL BE MADE BY BANK DURING
NORMAL BUSINESS HOURS OF THE BANK'S OFFICE WITHIN TWO (2) BUSINESS DAYS AFTER
PRESENTATION.
WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS
DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF
CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON
OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500.
/s/ Evelio G. Barairo /s/ Cesar Agoncillo
- -------------------------------------- ----------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
PAGE 2 OF 2
3003 TASMAN DRIVE | SANTA CLARA, CA, U.S.A. 95054 | www.svb.com
PHONE: 408-654-7400 | DIRECT LINE: 408-654-7736 | FAX: 408-496-2418 OR
408-969-6510
SILICON VALLEY BANK
International Division
EXHIBIT "A"
DATE:
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE RE: STANDBY LETTER OF CREDIT
SANTA CLARA, CA 95054 NO. SVB02IS4413 ISSUED BY
ATTN:INTERNATIONAL DIVISION. SILICON VALLEY BANK, SANTA CLARA
STANDBY LETTERS OF CREDIT L/C AMOUNT:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR
HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
- -----------------------------
(BENEFICIARY'S NAME)
- -----------------------------
SIGNATURE OF BENEFICIARY
SIGNATURE AUTHENTICATED
- ----------------------------
(NAME OF BANK)
- ----------------------------
AUTHORIZED SIGNATURE
3003 TASMAN DRIVE | SANTA CLARA, CA, U.S.A. 95054 | www.svb.com
PHONE: 408-654-7400 | DIRECT LINE: 408-654-7736 | FAX: 408-496-2418 OR
408-969-6510
EXHIBIT "B"
DATE: _______________ REF. NO. ___________________
AT SIGHT OF THIS DRAFT
PAY TO THE ORDER OF _________________________________________ US$__________
USDOLLARS _________________________________________________________________
DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY
LETTER OF CREDIT NUMBER NO. _____________________ DATED ___________________
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE _______________________________
SANTA CLARA, CA 95054 (BENEFICIARY'S NAME)
_______________________________
AUTHORIZED SIGNATURE
GUIDELINES TO PREPARE THE DRAFT
1. DATE: ISSUANCE DATE OF DRAFT.
2. REF. NO.: BENEFICIARY'S REFERENCE NUMBER, IF ANY.
3. PAY TO THE ORDER OF: NAME OF BENEFICIARY AS INDICATED IN THE L/C (MAKE SURE
BENEFICIARY ENDORSES IT ON THE REVERSE SIDE).
4. US$: AMOUNT OF DRAWING IN FIGURES.
5. USDOLLARS: AMOUNT OF DRAWING IN WORDS.
6. LETTER OF CREDIT NUMBER: SILICON VALLEY BANK'S STANDBY L/C NUMBER THAT
PERTAINS TO THE DRAWING.
7. DATED: ISSUANCE DATE OF THE STANDBY L/C.
8. BENEFICIARY'S NAME: NAME OF BENEFICIARY AS INDICATED IN THE L/C.
9. AUTHORIZED SIGNATURE: SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY.
IF YOU NEED FURTHER ASSISTANCE IN COMPLETING THIS DRAFT, PLEASE CALL OUR L/C
PAYMENT SECTION AND ASK FOR:
ALICA DA LUZ: 408-654-7120
CESAR AGONCILLO: 408-654-3052