SUBLEASE AGREEMENT
EXHIBIT
10.1
This
Sublease Agreement (“Sublease”) dated as of
December 23, 2009, is made by and between American Capital, Ltd., a
Delaware corporation (f/k/a American Capital Strategies, Ltd.) (“Sublandlord”) and Northwest
Biotherapeutics,
Inc., a Delaware corporation (“Subtenant”).
RECITALS:
A. Pursuant to
an Office Lease (“Original
Lease”) dated September 28, 2001 by and between Hampden Square
Corporation, a Delaware corporation (“Landlord”) and Sublandlord, as
assignee of Abt Associates, Inc., Sublandlord leased certain premises (“Prime Lease Premises”) from
Landlord consisting of 61,342 rentable square feet (“RSF”), in the building located
at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx (“Building”).
B. The
Original Lease was amended by a Notice of Lease Term Dates dated as of January
24, 2003 (“Amendment”
and together with the Original Lease, and as the same may be further amended
from time to time, the “Lease”). A copy of
the Lease is attached hereto as Exhibit A.
C. Sublandlord
desires to sublease to Subtenant, and Subtenant desires to sublease from
Sublandlord, a portion of the Prime Lease Premises constituting approximately
7,097 RSF located on the 8th Floor
of the Building, as depicted on Exhibit B attached hereto (the
“Subleased
Premises”).
Now, therefore, Sublandlord and
Subtenant, hereby agree as follows:
1. Sublease
Term. The term of this Sublease (“Sublease Term”) with respect
to the Subleased Premises shall commence on the Sublease Commencement Date
(hereinafter defined) and shall expire on September 30, 2012 (the “Sublease Expiration
Date”). Except to the extent expressly provided to the
contrary in this Sublease, no termination of this Sublease shall diminish or
otherwise affect the liabilities of Subtenant that accrued prior to the
effective date of termination. The “Sublease Commencement Date”
shall be the later of (i) December 1, 2009 and (ii) the date that is one (1)
business day after execution and delivery by Landlord, Subtenant and Sublandlord
of a sublease consent in substantially the form attached hereto as Exhibit B or such other form
as Landlord may require (“Sublease
Consent”).
2. Subleased Premises;
Subtenant Improvement Allowance.
(a) Except
as otherwise expressly provided herein, Subtenant shall accept possession of the
Subleased Premises “AS IS” on the Sublease Commencement Date, and Except for the
performance of the Sublandlord’s Work (hereinafter defined), Sublandlord shall
have no obligation to make any alterations or improvements of any kind to
prepare the Subleased Premises for Subtenant’s occupancy; provided, however,
that the Subleased Premises shall be delivered in broom clean condition and free
from debris. Sublandlord makes no representations or warranties
whatsoever with respect to the condition of the Subleased Premises or the
building systems serving the Subleased Premises. In entering into
this Sublease, Subtenant has not relied upon or been induced by any statement or
representation regarding the condition or suitability of the Subleased Premises
other than those, if any, set forth in this Sublease. Notwithstanding
the foregoing, Sublandlord shall perform the following work at its sole cost
prior to the Sublease Commencement Date (“Sublandlord’s
Work”): Sublandlord shall cause the water supply and drain in
the kitchen located in the Subleased Premises to be in good working order and
Sublandlord shall repair or replace as necessary the lock on the door to the
rear entrance to the Subleased Premises.
(b) Notwithstanding
the foregoing, Sublandlord shall make available for the performance of
Subtenant’s Work (as hereinafter defined) an allowance (the “Subtenant Allowance”) in an
amount equal to the product of (a) Six and 00/100 Dollars ($6.00) multiplied by
(b) the number of square feet of rentable area comprising the Subleased
Premises, or Forty-Two Thousand Five Hundred Eighty-Two and 00/100 Dollars
($42,582.00). Sublandlord shall pay the Subtenant Allowance to
Subtenant in no more than three (3) installments. Each installment
shall be paid to Subtenant within thirty (30) days following Subtenant’s
completion of that portion of Subtenant’s Work for which the request is being
made and Sublandlord’s receipt from Subtenant of (i) invoices reasonably
evidencing work or services performed with respect to the portion of Subtenant’s
Work for the installment of the Subtenant Allowance that is being requested;
(ii) receipted bills or other evidence that the aforesaid invoices have been
paid in full; and (iii) waivers or releases of liens from each of Subtenant’s
contractors, subcontractors and suppliers in connection with the work performed
or materials supplied as evidenced by the aforesaid invoices, which waivers and
releases may be conditioned upon payment of the amounts set forth
therein. Subtenant shall complete the Specified Work (hereinafter
defined) not later than May 31, 2010. In addition, Subtenant shall
utilize the Subtenant Allowance on or before May 31, 2010. Subtenant
shall not be entitled to any Rent abatement, offset or credit if Subtenant fails
to use any portion of the Subtenant Allowance on or before May 31,
2010. In the event that Sublandlord fails to pay any portion of the
Subtenant Allowance to Subtenant on the date on which such amount is payable to
Subtenant in accordance with the terms of this Sublease, and such failure
continues for thirty (30) days after Subtenant provides to Sublandlord written
notice of such failure, then Subtenant, at its option (exercisable by providing
written notice to Sublandlord) and provided Subtenant is not in default under
the terms of this Sublease at such time, may offset such unpaid amounts against
the next installments of Base Rent coming due hereunder until such amount has
been fully applied.
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(c) Subtenant
shall improve the Subleased Premises in accordance with the Subtenant’s Plans
(as hereinafter defined). Subtenant shall submit to Sublandlord and
Landlord Subtenant’s final plans and specifications for improvements to the
Subleased Premises (the “Subtenant’s Plans”), which
shall be subject to the prior written approval of Sublandlord and Landlord (the
work set forth in the Subtenant’s Plans being hereinafter referred to as “Subtenant’s Work”), which
approval Sublandlord shall not unreasonably withhold or
delay. Notwithstanding anything to the contrary contained in this
Sublease, in all events, the scope of Subtenant’s Work shall include
installation of a dishwasher in the kitchen, special air conditioning units for
the server room, high capacity IT lines to the server room and the conference
rooms, removal of one office wall to create a reception area and relocation of a
glass door from inside the Subleased Premises to the suite entry, removal of one
wall between two existing offices to make a single larger office, and removal of
the telephone cabins across the corridor from the conference rooms
(collectively, the “Specified
Work”). Sublandlord acknowledges and agrees that Sublandlord
has approved the Specified Work pursuant to plans previously provided by
Subtenant to Sublandlord. From and after the date of approval of
Sublandlord and Landlord of the Subtenant’s Plans, any changes to the
Subtenant’s Plans shall not be binding unless approved in writing by both
Sublandlord and Landlord. Sublandlord shall either provide comments
to, or approve, Subtenant’s Plans within ten (10) days after its receipt of an
electronic version and hard copy of a complete and accurate set of Subtenant’s
Plans. If Sublandlord disapproves Subtenant’s Plans, Subtenant shall
promptly resubmit Subtenant’s Plans revised to satisfy Sublandlord’s
objections. Sublandlord shall either provide additional comments to,
or approve, Subtenant’s Plans as revised within ten (10) days after its receipt
of same. If Sublandlord does not provide approval or provide any
comments with respect to Subtenant’s Plans within such 10-day period, Subtenant
may notify Sublandlord in writing that Sublandlord has failed to respond, and if
Sublandlord does not provide approval or provide any comments with respect to
Subtenant’s Plans within five (5) days after Sublandlord’s receipt of
Subtenant’s notice, Subtenant’s Plans shall be deemed to be approved by
Sublandlord. Sublandlord’s approval of the Subtenant’s Plans shall
constitute approval of Subtenant’s design concept only and shall in no event be
deemed a representation or warranty by Sublandlord as to whether the Subtenant’s
Plans comply with any and all legal requirements applicable to the Subtenant’s
Plans and Subtenant’s Work. Upon completion of Subtenant's Work and as part of
the cost of Subtenant's Work, Subtenant will provide Sublandlord and Landlord
with final construction documents consisting of two hard copy sets of bluelines
and an electronic file in a format reasonably acceptable to
Sublandlord. In the performance of Subtenant’s Work, Subtenant shall
comply with all applicable laws, codes and regulations. Subtenant
shall obtain all permits, certificates and other governmental approvals from all
governmental entities having jurisdiction thereover which are necessary for the
prosecution and completion of Subtenant’s Work. Subtenant’s Work
shall include, but not be limited to, the cost of all permits and governmental
inspections, demolition, fire life safety equipment installation, sprinkler
relocation (if necessary) and all architectural and engineering
fees. Prior to commencing Subtenant’s Work, Subtenant shall provide
to Sublandlord the name and address of each contractor and subcontractor which
Subtenant intends to employ to perform Subtenant’s Work, the use of which
subcontractors and contractors shall be subject to Sublandlord’s prior written
approval, which shall not be unreasonably withheld, conditioned or delayed if
(1) the contractor or subcontractor is properly licensed and bonded, and (2)
neither Sublandlord nor any of its affiliates has had any prior experience with
such contractor or subcontractor which was
unsatisfactory. Sublandlord shall indicate whether or not it approves
any such contractor or subcontractor within seven (7) days after Subtenant’s
request for approval. Prior to the commencement of any of Subtenant’s
Work, Subtenant shall deliver to Sublandlord, with respect to each contractor
and subcontractor which Subtenant intends to employ to perform any of
Subtenant’s Work, a certificate of insurance from each such contractor or
subcontractor specifying Sublandlord as a named insured and evidencing that each
such contractor or subcontractor has obtained the insurance coverages required
under the terms of the Lease.
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3. Rent.
(a) Commencing
on the date that is one hundred twenty (120) days after the Sublease
Commencement Date (“Rent Commencement Date”),
Subtenant shall, without deduction, demand, notice from Sublandlord, or right of
offset, pay to Sublandlord for each month during the Sublease Term as annual
basic rent (“Basic
Rent”) in the amount set forth in the following table:
|
Dates
|
Basic
Rent (Monthly)
|
|
Rent
Commencement Date through first day of calendar month following calendar
month in which anniversary of Rent Commencement Date occurs (such period,
“First Lease Year”)
|
$13,306.88
|
|
12-
month period following expiration of First Lease Year (“Second Lease
Year”)
|
$13,706.08
|
|
the
period following Second Lease Year through Sublease Expiration
Date
|
$14,117.26
|
All
payments of Basic Rent shall be made in lawful money of the United States, in
advance on the first (1st) day of
each calendar month during the Sublease Term, the first payment of Basic Rent to
be made as of the date this Sublease is executed and applied against the first
Basic Rent due hereunder. Payments in respect of a period less than a
full calendar month shall be prorated based on the actual number of days in such
month during the Sublease Term.
(b) Commencing
on November 1, 2010 and continuing through the Sublease Term, in addition to
payment of the Basic Rent, Subtenant shall pay to Sublandlord, as to each
calendar year or portion thereof during the Sublease Term, as additional rent
(“Passthrough Rent”),
without deduction, demand, notice from Sublandlord, or right of offset, (i)
Subtenant’s Percentage Share (as hereafter defined) of the amount by which
Operating Expenses (as defined in the Lease) for such calendar year exceed
Operating Expenses in calendar year 2010 (“Subtenant’s Expense Payment”)
and (ii) Subtenant’s Percentage Share of the amount by which Tax Expenses (as
defined in the Lease) for such calendar year exceed the Tax Expenses in calendar
year 2010 (“Subtenant’s Tax
Payment”). As used herein, “Subtenant’s Percentage Share”
shall mean Four and 85/100 percent (4.85%) (7,097 divided by
146,189). At Subtenant’s request, Sublandlord shall deliver to
Subtenant any statements, invoices, or other materials delivered to Sublandlord
by or at the direction of Landlord with respect to the Passthrough
Rent. Subtenant shall have no right to dispute the Operating Expenses
and Tax Expenses once the same is agreed upon by or adjudicated, pursuant to any
dispute mechanism is set forth in the Lease or applicable at law, by Sublandlord
and Landlord. The obligations to make payments hereunder, which
obligations arise during and relate to the period prior to termination or
expiration of this Sublease, shall survive the termination or expiration of this
Sublease.
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(c) “Rent” shall mean all Basic
Rent, Passthrough Rent and all other monies due by Subtenant under the terms of
this Sublease. Any payment of Rent not paid within five (5) days of
the due date thereof shall be subject to a late charge of six percent (6%) of
the amount of such installment. Any amount due from Subtenant to
Sublandlord that is not paid when due shall bear interest at an interest rate
equal to the Prime Rate published from time to time in the Money Rates column of
The Wall Street Journal
plus 5% (or, if lower, the highest rate then allowed under the usury laws of the
State of Maryland) from the date due until the date paid. The right
of Sublandlord to charge a late charge and interest with respect to past due
installments of Rent is in addition to Sublandlord’s other rights and remedies
in the event of a default by Subtenant hereunder.
4. Security
Deposit.
(a) Contemporaneously
upon execution of this Sublease, Subtenant shall deposit with Sublandlord cash
in the amount of $13,306 (“Security Deposit”) as security for the faithful
performance and observance by Subtenant of the terms, provisions, covenants and
conditions of this Sublease. Failure to deliver the same upon
execution of this Sublease shall render this Sublease void ab initio. In
the event Subtenant defaults in respect of any of the terms, provisions,
covenants and conditions of this Sublease after all applicable notice and cure
periods have passed, including, but not limited to, the payment of Rent,
Sublandlord may use, apply or retain the whole or any part of the Security
Deposit to the extent required for the payment of any Rent and any other sum as
to which Subtenant is in default or for any sum which Sublandlord may expend or
may be required to expend by reason of Subtenant’s default in respect of any of
the terms, provisions, covenants and conditions of this Sublease, including but
not limited to, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Sublandlord. In the event that
Subtenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Sublease, the Security Deposit shall be
returned to Subtenant promptly after the date fixed as the end of this Sublease
and after delivery of entire possession of the Subleased Premises to
Sublandlord. In the event of an assignment by Sublandlord of its
interest in the Lease, Sublandlord shall transfer the Security Deposit to the
assignee and shall provide Subtenant with a written notice indicating the name
and address of the assignee. In such event, Sublandlord shall
thereupon be released by Subtenant from all liability for the return of such
Security Deposit, and Subtenant agrees to look solely to the new Sublandlord for
the return of said Security Deposit; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a
new Sublandlord.
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(b) In
the event that Subtenant defaults in respect of any of the terms, provisions,
covenants and conditions of the Sublease and Sublandlord utilizes all or any
part of the security represented by the Security Deposit, Sublandlord may, in
addition to terminating this Sublease and exercising any other rights and
remedies that Sublandlord may have under the Lease, or at law or in equity,
retain the unapplied and unused balance of the principal amount of the Security
Deposit as security for the faithful performance and observance by Subtenant
thereafter of the terms, provisions, and conditions of this Sublease, and may
use, apply, or retain the whole or any part of said balance to the extent
required for payment of Rent, additional rent, or any other sum as to which
Subtenant is in default (after all applicable notice and cure periods set forth
herein have passed) or for any sum which Sublandlord may expend or be required
to expend by reason of Subtenant's default in respect of any of the terms,
covenants, and conditions of this Sublease (after all applicable notice and cure
periods set forth herein have passed). In the event Sublandlord, in
accordance with the terms of this Sublease, applies or retains any portion or
all of the Security Deposit delivered hereunder, Subtenant shall forthwith
restore the amount so applied or retained so that at all times the amount
deposited shall be equal to the security required by Section 4(a).
5. Furniture, Equipment and
Signage.
(a) Subtenant
shall be responsible for providing its own furniture, fixtures, equipment and
cabling at its sole cost and expense. Sublandlord shall have no
obligation to provide any of the foregoing.
(b)
Sublandlord shall have the one-time obligation to use reasonable efforts
promptly following the Sublease Commencement Date to cause to be installed at
Sublandlord’s cost building standard suite entry signage identifying Subtenant
and three of its affiliates, namely Toucan Capital, HealthBank and Oncocidex
(collectively, the “Named
Affiliates”) at the main entrance to the Subleased Premises, which
signage and the final location of the same shall be subject to the approval of
Sublandlord and Landlord (to the extent required by the
Lease). Following the Sublease Commencment Date, Sublandlord shall
have the one-time obligation to seek to obtain from Landlord and make available
to Subtenant (at Landlord’s customary charge) Subtenant’s pro rata share of
directory strips for up to four (4) company names on the main directory board in
the Building lobby identifying Subtenant and the Named
Affiliates. Upon the Sublease Expiration Date, Subtenant shall remove
all suite entry signage and repair any damage resulting therefrom, at
Subtenant’s sole cost and expense.
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6. Access;
Use.
(a) Subject to the terms and
conditions set forth in the Lease, Subtenant shall have access to the Subleased
Premises twenty-four (24) hours per day, three hundred sixty-five (365) days per
year and Landlord’s electronic security and control system will be used for
Building access after normal Building hours.
(b) Sublandlord shall have the
right, at all reasonable times, upon reasonable notice (except in an emergency)
to enter upon the Subleased Premises and to examine and inspect the Subleased
Premises and exercise its rights hereunder. Landlord shall have the
right to access the Subleased Premises in accordance with the terms of the
Lease. In exercising its rights under this paragraph, Sublandlord
shall exercise reasonable diligence to minimize interference with Subtenant’s
use and enjoyment of the Subleased Premises, provided that in the event of an
emergency, Sublandlord’s obligation with respect to minimizing interference with
Subtenant’s use and enjoyment of the Subleased Premises shall be limited to the
extent that is reasonable under the circumstances of such
emergency.
(c) Subtenant shall not use, nor
suffer or permit any other person(s) to use, the Subleased Premises for any
purpose whatsoever other than any as general office purposes, consistent with
similar first-class office buildings in downtown Bethesda,
Maryland. In no event shall Subtenant use the Subleased Premises, or
suffer or permit the Subleased Premises to be used, for any unlawful activity or
purpose or in any unlawful manner or in violation of any order, ordinance,
regulation or rules of any governmental or quasi-governmental body, or for
residential purposes. Subtenant shall not commit or allow any waste
or damage to be committed on any portion of the Subleased Premises.
(d) Subtenant shall at all times
comply with any rules and regulations (including parking rules and regulations)
as may be promulgated from time to time by Landlord for the Building (including
the Rules and Regulations described in the Lease).
7. Covenant of Quiet
Enjoyment. Sublandlord hereby covenants that if and so long as
Subtenant performs every obligation of Subtenant under this Sublease subject to
the notice and cure provisions herein, then, subject to the other provisions of
this Sublease, Subtenant shall peaceably and quietly enjoy the Subleased
Premises during the Sublease Term without hindrance by Sublandlord or any person
lawfully claiming through or under Sublandlord.
8. Alterations. Subtenant
shall not make any alterations or leasehold improvements to the Subleased
Premises without the prior consent of Sublandlord, which consent shall not be
unreasonably withheld or delayed, nor without the prior consent of Landlord in
accordance with the terms of the Lease. It shall be deemed reasonable
for Sublandlord to disapprove or condition any alteration disapproved by, or as
to which similar conditions are imposed by, Landlord (whether or not
reasonable). Except for Sublandlord’s obligation to pay the Tenant Allowance to
Subtenant in accordance with this Sublease, and except for Sublandlord’s
obligation to cause the water supply and drain in the kitchen to be in full
working order on or prior to the Sublease Commencement Date, Subtenant shall be
responsible for all costs associated with any modifications or alterations to
the Subleased Premises, including without limitation the costs of all design,
architectural and engineering work related thereto, construction management
fees, construction costs of alterations, costs of cabling, costs for
installation of equipment, fixtures and furnishings and/or modifications to
existing systems, equipment, fixtures and furnishings, all governmental and
quasi-governmental approvals and permits required therefor, construction
supervision or management fees of Landlord and/or Sublandlord, and all other
direct and indirect construction costs applicable to Subtenant and the Subleased
Premises and all moving expenses.
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9. Services. Pursuant
to the Lease, Landlord is obligated to provide to the Subleased Premises on
behalf of Sublandlord interior climate control, janitorial and cleaning, access
control, elevator, and utility services. Sublandlord shall cooperate with
Subtenant and shall use such reasonable efforts, at Subtenant’s sole cost and
expense, to cause Landlord to provide such services and perform such obligations
for the benefit of Subtenant. Sublandlord shall not be obligated to
perform and shall not be liable for the performance by Landlord of any of the
obligations assumed and undertaken by Landlord under the Lease, and Subtenant
shall have no claim against Sublandlord by reason of any default upon the part
of Landlord or any failure on the part of Landlord to provide any service or
perform any other obligation that Landlord is obligated to provide or perform
under the Lease. Notwithstanding the foregoing, Sublandlord shall use
commercially reasonable efforts to enforce its rights to receive services from
Landlord in accordance with the terms of the Lease.
10. Insurance.
(a) Subtenant shall obtain and
keep in force during the Sublease Term all insurance policies required to be
maintained by the Tenant under and in accordance with the terms of the Lease,
including without limitation Section 10.3 of the Lease. Subtenant
shall name Sublandlord as an additional insured in any case where Subtenant is
required to name Landlord as an additional insured under the terms of the
Lease. In addition, Subtenant shall maintain insurance covering
Subtenant’s trade fixtures, furniture, equipment, other personal property and
any alterations or improvements made to the Subleased Premises by or on behalf
of Subtenant against such other perils and in such amounts as Sublandlord may
from time to time reasonably require upon not less than ninety (90) days’ prior
notice. Not later than the Sublease Commencement Date, and not less
than thirty (30) days prior to the expiration date of each policy providing all
or part of the insurance required above, Subtenant shall furnish to Sublandlord
certificates or other proof of Subtenant’s procurement of the insurance required
hereunder which in all cases are acceptable to Sublandlord as to the insurance
from time to time required hereby, and such other information as may be
reasonably requested by Sublandlord.
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(b) Sublandlord and Subtenant each
hereby agree to exercise all reasonable commercial diligence to have included in
each of its hazard insurance policies pertaining to the Subleased Premises and
the property therein, against loss, damage or destruction by fire or other
casualty therein covered a waiver of the insurer’s right of subrogation against
the other party, or, if such waiver should be unattainable or unenforceable, (i)
an express agreement that such policy shall not be invalidated if the insured
waives, before the casualty, the right of recovery against any party responsible
for a casualty covered by the policy or (ii) any other form of permission for
the release of the other party. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable (A) without additional
charge, or (B) at all, the insured party shall so notify the other party
promptly after learning thereof. In the first such case, if the other
party shall so elect and shall pay the insurer’s additional charge therefor,
such waiver, agreement or permission shall be included in the
policy. Each party hereby releases the other party with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect to the
releasing party’s property occurring during the Sublease Term to the extent to
which the releasing party is insured and receives proceeds under a policy or
policies containing a waiver of subrogation or permission to release liability,
as provided in this Section 10(b). If, notwithstanding the recovery
of insurance proceeds by either party for such loss, damage or destruction of
its property, the other party is liable to the first party with respect thereto
or is obligated under this Sublease to make replacement, repair or restoration
or payment, then (provided the first party’s right of full recovery under its
insurance policies is not thereby prejudiced or otherwise adversely affected)
the amount of the net proceeds of the first party’s insurance against such loss,
damage or destruction shall be offset against the second party’s liability to
the first party therefor, or shall be made available to the second party to pay
for replacement, repair or restoration, as the case may be. Nothing
contained in this Section 10(b) shall relieve either party of any duty imposed
elsewhere in this Sublease to repair, restore or rebuild the leasehold
improvements and alterations in the Subleased Premises.
11. Indemnification. Subtenant
hereby indemnifies and holds Sublandlord harmless from and against any and all
costs, damages, claims, liability, causes of action, suits, judgments and
expenses (including reasonable attorney’s fees, disbursements, and actual
costs), losses and court costs suffered by or claimed against Sublandlord,
directly or indirectly, for death, bodily injury or property damage to the
extent based on or arising wholly or substantially out of any negligent acts or
omissions of Subtenant or its agents and in respect of all costs, damages,
expenses and liabilities incurred by or asserted against Sublandlord in
connection with or arising out of all such claims, liability and/or suits,
including court costs, reasonable attorneys’ fees and the other expenses of any
action, proceeding or suit pertaining thereto, except to the extent attributable
to the grossly negligent acts or omissions of the Sublandlord or its
agents. In addition, Subtenant hereby indemnifies and holds
Sublandlord harmless from and against any and all actual out of pocket
attorneys’ fees and expenses incurred in connection with negotiating this
Sublease in the event that the Subleased Premises are recaptured by Landlord
pursuant to the terms of the Lease. Except as provided in
Section 14 of this Sublease, Subtenant shall not be liable for consequential
damages.
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12. Default;
Remedies. (a) It shall constitute a “Default” if any of the
following occurs:
(i) Subtenant shall fail to pay
Rent, as and when due, and such failure should continue for more than five (5)
business days after receipt of written notice of such failure from
Sublandlord;
(ii) Subtenant shall default in
any other obligation or covenant hereunder, and if such default is curable, if
such default shall continue for a period of more than fifteen (15) days after
Sublandlord gives written notice to Subtenant specifying the default; provided
that, if such default cannot reasonably be cured within such fifteen (15)
day period, the cure period therefore shall be extended for such time as is
reasonably necessary to effect a cure of such default (but in no event beyond
twenty-five (25) days after such notice is given) on the condition that
Subtenant immediately commences and continuously diligently pursues such a cure
to completion, and that, promptly upon determining that the aforesaid fifteen
(15) day cure period is inadequate, Subtenant shall give notice to Sublandlord
of the steps being taken to cure such default and the amount of time reasonably
estimated by Subtenant to effect such cure; and provided further that, if
Subtenant has defaulted in the performance of the same obligation or covenant
three or more times during the Sublease Term and notice of such default has been
given by Sublandlord in each instance, then no cure period shall thereafter be
applicable hereunder;
(iii) the Subleased Premises shall not,
without the prior written consent of Sublandlord and Landlord, be occupied by
any persons other than Subtenant or its permitted assigns or subtenants (except
their respective guests or invitees, on an incidental, non-continuing basis), or
be used for any purpose or by any persons other than those permitted hereunder,
or if Subtenant shall enter into or purport to enter into any assignment,
subletting or other transfer. Notwithstanding the foregoing,
Subtenant shall have the right to permit the Named Affiliates to occupy the
Subleased Premises so long as the Named Affiliates are under common control with
Subtenant.
(iv) Subtenant’s interest in this
Sublease or the balance of the leasehold interest created by this Sublease, or
any material portion of the goods and chattels of Subtenant, shall at any time
be seized in execution, attachment or by other judicial process; provided that
no such execution, attachment or other judicial process shall constitute a
Default if Subtenant shall, contemporaneously with such execution, attachment or
other judicial process, provide Sublandlord with evidence reasonably
satisfactory to Sublandlord that Subtenant will be able to continue to perform
all of Subtenant’s obligations hereunder when and as required;
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(v) Subtenant shall make any general
assignment for the benefit of creditors or become bankrupt or insolvent or take
the benefit of any statute for bankrupt or insolvent debtors, or Subtenant shall
take any steps or suffer any order to be made for its winding-up or other
termination of its existence; or a custodian, trustee, receiver or
receiver-manager or agent or other like person shall be appointed for the assets
of Subtenant (including where such receiver or like person shall be appointed in
an involuntary proceeding, if such appointment shall not be withdrawn within
sixty (60) days from the date of appointment); or
(vi) Subtenant shall abandon the
Subleased Premises.
(b) Upon the occurrence of any
Default, Sublandlord shall have the following rights and remedies, all of which
are cumulative and not alternative and are not to the exclusion of any other or
additional rights and remedies in law or equity available to Sublandlord by
statute or otherwise: (1) cure any Default by making any
payments or taking any actions required to do so, and Subtenant shall promptly
upon presentation of invoices and reasonable supporting documentation, pay all
amounts reasonably incurred by Sublandlord in curing such Default, including
court costs and reasonable attorneys’ fees and disbursements in connection
therewith, together with interest thereon at the rate of ten percent (10%) per
year; (2) recover all accrued but unpaid Rent, together with interest
thereon at the rate of ten percent (10%) per year; (3) terminate this
Sublease by giving notice of such termination to Subtenant, and this Sublease
shall immediately and automatically terminate upon the effective date specified
in such notice; (4) re-enter and resume possession of the Subleased
Premises and remove all persons and property therefrom, by any acts or
proceedings available by law, without being liable for any damages therefor, and
no such re-entry nor any acceptance of keys from Subtenant or cancellation of
Subtenant’s security passes shall be deemed an acceptance of the surrender of
this Sublease, and in the event of any such re-entry, Subtenant shall remain
liable for all Rent for the balance of the Sublease Term; (5) in its name
but as agent for Subtenant if this Sublease is not terminated, or in
Sublandlord’s own behalf if this Sublease is terminated, relet the whole or any
portion of the Subleased Premises for any period equal to or greater or less
than the period which would have constituted the balance of the Sublease Term,
for any sum and on terms and conditions that Sublandlord deems suitable and
satisfactory, making such alterations, repairs, or replacements and decorations
in and to the Subleased Premises as Sublandlord deems appropriate in its sole
discretion for the purpose of re-letting this Premises, and the making of such
alterations or repairs, replacements and decorations shall not operate or be
construed to release Subtenant from liability under this Sublease; (6) if
this Sublease shall be terminated as provided in this paragraph, by summary
proceedings or otherwise as a result of any Default, or if Sublandlord shall
re-enter the Subleased Premises without also terminating this Sublease, whether
the Subleased Premises shall be relet or not, Sublandlord shall be entitled to
recover from Subtenant an amount equal to the sum of (a) all accrued and
unpaid Rent as of the date of termination or re-entry plus (b) at the election
of Sublandlord in its sole discretion either (i) any positive difference between
the Rent due hereunder and the rent actually received by reason of any
reletting, with any suit brought by Sublandlord to enforce collection of such
difference for any one month not prejudicing Sublandlord’s right to enforce the
collection of any difference for any subsequent month in subsequent separate
actions, as said damages shall have been made more easily ascertainable by
successive relettings and with Sublandlord not being liable for any failure to
relet the Subleased Premises or any part thereof or for any failure to collect
any rent due upon any such reletting or (ii) the positive difference between the
present value of the sum of the monthly installments of Rent from and after the
date of re-entry or termination through the end of the applicable Sublease Term
and the present value of the fair market rental value of the Subleased Premises
over the same period, which present value is based on a discount rate equal to
the then-current average yield on Treasury bonds maturing at approximately the
same time as the Sublease Expiration Date; and/or (7) recover all
reasonable costs, damages, expenses and fees incurred by Sublandlord in
connection with any of the foregoing (including reasonable brokerage fees in
connection with any re-letting(s), court costs and reasonable attorneys’ fees
and disbursements, and any reasonable expense for putting and keeping the
Subleased Premises in good order and for making alterations, repairs,
replacements and decorations in and to the Subleased Premises and otherwise
preparing them for re-letting(s)), which amounts shall be due and payable by
Subtenant to Sublandlord on demand. Notwithstanding anything to the
contrary contained in this Sublease, Sublandlord shall use reasonable efforts to
re-let the Subleased Premises in the event that Sublandlord
terminates Subtenant’s right to possess the Subleased Premises.
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(c) In the event that this
Sublease is terminated and/or Subtenant’s right to possession of the Subleased
Premises has terminated, Subtenant hereby waives: (i) any right to
any notice to cure or vacate or to quit provided by any present or future laws;
and (ii) any and all rights of redemption under any present or future
laws.
(d) Each of Sublandlord and
Subtenant agrees to and does hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of them against the other in
respect of any matters arising out of or in any way connected with this
Sublease, the relationship of sublandlord and subtenant, Subtenant’s use or
occupancy of the Subleased Premises, any claim of injury or damage, or any
statutory remedy. Subtenant hereby represents and acknowledges that
neither Sublandlord, nor any broker or agent, has represented or otherwise
indicated that Sublandlord under any circumstances whatsoever will not seek to
enforce this waiver of jury trial.
13. Repairs and
Maintenance. Subtenant shall have the sole responsibility, at its
expense, to maintain all furnishings and equipment in the Subleased Premises and
the improvements and equipment in the Subleased Premises in good condition,
repair, and working order, normal wear and tear and damage by insured casualty
or accident excepted.
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14. Surrender of Premises;
Holdover.
(a) Upon the Sublease Expiration
Date, Subtenant shall fully vacate and surrender the Subleased Premises to
Sublandlord, broom clean and in as good order and condition as they were on the
on the date of this Sublease, ordinary wear and tear, and insured casualties and
damages caused by the elements, fire and other casualty and accident excepted
(provided the insurance proceeds are paid to Sublandlord). If
Landlord requires that Subtenant remove any alterations (including the
Subtenant’s Work) installed by Subtenant, then Subtenant shall cause such
alterations to be removed prior to the expiration of the Sublease
Term. Sublandlord shall have no obligation to provide notice to
Subtenant to remove any such alterations. In the event that Subtenant
fails to surrender the Subleased Premises when and in the condition required by
this Sublease, Subtenant hereby irrevocably agrees that Sublandlord shall have
the right, in its sole discretion, to pursue any legal processes then
available to Sublandlord to evict Subtenant from the Subleased
Premises.
(b) In the event that Subtenant shall
not, on or before the Sublease Expiration Date, have returned the Subleased
Premises to Sublandlord fully vacant, broom clean and otherwise in the condition
required by this Sublease, then Subtenant shall, by virtue of this Sublease,
become a tenant at sufferance at a monthly rental equal to two (2) times the
monthly installments of Rent due under the terms of this Sublease, commencing
said monthly tenancy with the first day after the end of the Sublease
Term. Subtenant, as a tenant at sufferance, shall be subject to all
of the conditions and covenants of this Sublease as though the tenancy had
originally been a monthly tenancy. During the holdover period, each
party hereto shall give to the other at least thirty (30) days’ written notice
to quit the Subleased Premises, except in the event of nonpayment of monthly
installments of Rent when due, or of the breach of any other covenant by
Subtenant, in which event Subtenant shall not be entitled to any notice to quit,
the usual thirty (30) days’ notice to quit being expressly
waived. Notwithstanding the foregoing, if Sublandlord shall desire to
regain possession of the Subleased Premises promptly at the expiration of the
Sublease Term or any extension thereof, Sublandlord may re-enter and take
possession of the Subleased Premises by any legal action or process in force in
the State of Maryland, without any notice to quit being required, such notice to
quit being hereby waived, and Subtenant shall indemnify and hold harmless
Sublandlord for all damages, whether direct, special, actual, indirect, or
otherwise, as may be incurred by Sublandlord as a result thereof, including
without limitation (i) all reasonable attorneys’ fees and other costs and
expenses of Sublandlord incurred thereby, (ii) the cost of restoring the
Subleased Premises to the condition required by this Sublease as of the Sublease
Expiration Date, and (iii) any damages, claims, expenses or losses that
Sublandlord incurs as a result of Subtenant’s holdover (such as, without
limitation, holdover damages under the Lease).
15. Notices.
(a) Notices and other
communications between Subtenant and Sublandlord in connection with this
Sublease shall be in writing and shall be deemed given upon delivery by hand,
overnight courier, or by certified mail, return receipt requested, to
Sublandlord and to Subtenant at the following addresses. Notices
shall be deemed given as of the date received, or the date such notices would
have been received but for the addressee’s refusal thereof:
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If to
Subtenant:
Northwest Biotherapeutics,
Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxx
with a
copy to:
XxXxxxxx Metro, P.C.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000
Xxxxxxxxx, Xxxxxxxx
00000
Attention: Xxxxxxx X.
Xxxxxxx
If to
Sublandlord:
|
Attention: Xxxxxxxxxxx
Xxxxx
American
Capital, Ltd.
0
Xxxxxxxx Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
XX 00000
|
with a
copy to:
|
|
Xxxxxx
& Xxxxxx LLP
|
|
|
000 00xx
Xxxxxx, X.X.
|
|
|
Xxxxxxxxxx,
X.X. 00000
|
|
|
Attention: Xxxxxxx
X. Xxxxxxxx
|
Either
party may change its recipient and address for notices by a notice to the other
in accordance with the foregoing.
(b) Subtenant shall promptly
furnish Sublandlord with copies of all notices that it receives from Landlord
and Sublandlord shall promptly furnish Subtenant with copies of all notices that
Sublandlord receives from Landlord relating to the Subleased
Premises.
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16. Relationship to
Lease.
(a) Subject to Section 16(b) of
this Sublease, notwithstanding anything to the contrary in this Sublease, in the
event that the Lease is terminated prior to its scheduled expiration date, this
Sublease shall thereupon immediately terminate.
(b) Sublandlord hereby agrees
not voluntarily to permit any termination of the Lease (except as a result of
casualty or condemnation or other rights Sublandlord has in the Lease to
terminate the same). This Section 16(b) shall not apply to any
modifications to rules and regulations (including parking rules and regulations)
as may be promulgated from time to time.
(c) Subtenant acknowledges that it
has received and reviewed the Lease (redacted to delete certain business or
confidential terms). Subtenant’s rights pursuant to this Sublease are
subject and subordinate at all times to the Lease and to all of the terms,
covenants, and agreements of the Lease, except as expressly modified by this
Sublease. Subtenant shall not do or permit anything to be done in, or
in connection with Subtenant’s use or occupancy of, the Subleased Premises,
which would violate any of the unredacted terms, covenants, or agreements of the
Lease. Except as modified hereby, Subtenant covenants and agrees to
perform, observe and fulfill all of Sublandlord’s unredacted obligations,
duties, undertakings, and covenants under the Lease which relate to the
Subleased Premises and Subtenant’s rights hereunder. Except as
modified hereby, except for any provisions of this Sublease which conflict with
the Lease (in which case the provisions of this Sublease shall control as
between Sublandlord and Subtenant) and except as provided below, Sublandlord
shall have the same obligations to Subtenant and rights of Landlord against
Subtenant with respect to this Sublease, as the “Landlord” has with respect to
and against the “Tenant” pursuant to the Lease, and Subtenant shall have the
same obligations to Sublandlord and rights of Tenant against Sublandlord with
respect to this Sublease, as the “Tenant” has with respect to and against the
“Landlord” pursuant to the Lease. Sublandlord may enforce directly
against Subtenant any of the rights and remedies granted to Landlord pursuant to
the Lease. The foregoing notwithstanding, the provisions of the Lease
described on Exhibit D attached hereto
shall not be applicable to this Sublease. Sublandlord may enforce
directly against Subtenant any of the rights and remedies granted to Landlord
pursuant to the Lease. Nothing in this Sublease shall be construed or
interpreted to grant any greater rights than Sublandlord has received as Tenant
from Landlord pursuant to the Lease.
(d) If Subtenant desires to take an
action which, under the applicable provisions of the Lease, requires the
approval or consent of Landlord, then Subtenant shall not take such action until
Landlord has provided its approval or consent in connection
therewith.
17. Subleasing and
Assignment. Subtenant shall not assign this Sublease or
sub-sublease all or any portion of the Subleased Premises without the prior
written consent of Sublandlord, which consent may be withheld in the sole and
absolute discretion of Sublandlord. Any attempt by Subtenant to
assign this Sublease or sub-sublease all or any portion of the Subleased
Premises without the prior written consent of Sublandlord shall be void ab initio and shall be deemed
null, void and ineffective.
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18. Sublease
Consent. The parties acknowledge and agree that the Lease
provides that Sublandlord’s ability to sublet the Subleased Premises is subject
to the consent of the Landlord, and therefore, a condition to the effectiveness
of this Sublease is that the Landlord execute and deliver the Sublease Consent
in a form reasonably satisfactory to Sublandlord. Sublandlord shall use reasonable efforts
to obtain such consent, and Subtenant shall reasonably cooperate with
Sublandlord in connection with those efforts, including, without limitation,
promptly delivering such financial and other information and documentation that
Landlord reasonably requests. If, notwithstanding such reasonable
efforts, Landlord does not execute a Sublease Consent in form reasonably
satisfactory to Sublandlord by March 18, 2010 this Sublease shall be null and void
and of no further effect, in which case Sublandlord and Subtenant shall promptly
return to one another any items or funds delivered to the other pursuant to this
Sublease, and neither shall have any further obligations to the other
hereunder. Sublandlord will request
that Landlord incorporate into the Sublease Consent Landlord’s agreement to
recognize this Sublease as a direct lease between Landlord and Subtenant in the
event of the termination of the Lease prior to its scheduled expiration
date. Subtenant acknowledges and agrees that the effectiveness of
this Sublease shall not be contingent on Landlord’s agreement to recognize the
Sublease as a direct lease in the event of the termination of the Lease prior to
its scheduled expiration date.
19. Brokers. Sublandlord
and Subtenant each represents and warrants to the other that it has not dealt
with any broker or finder in connection with this Sublease, other than CBRE and
Xxxxx Xxxx LaSalle (“Broker”). Sublandlord
and Subtenant shall each indemnify and hold the other harmless from the
indemnifying party’s breach of the foregoing representation and
warranty. Sublandlord shall pay a leasing commission to Broker
pursuant to a separate agreement between Sublandlord and Broker. Sublandlord
and Subtenant each represents and warrants to the other that, except as
hereinafter set forth, neither of them has employed any broker in procuring or
carrying on any negotiations relating to this Sublease. Sublandlord
and Subtenant shall indemnify and hold each other harmless from any loss, claim
or damage relating to the breach of the foregoing representation and
warranty. Sublandlord recognizes only CBRE, as Subtenant’s agents,
and Xxxxx Lang LaSalle, as Sublandlord’s agent, as brokers with respect to this
Sublease. Sublandlord shall be responsible for the payment of any
leasing commissions owed to Xxxxx Xxxx LaSalle pursuant to a separate agreement
between Sublandlord and Xxxxx Lang LaSalle. Xxxxx Xxxx
LaSalle shall be solely responsible for compensating CBRE pursuant to a separate
agreement between them.
20. Parking. Sublandlord
shall allocate to Subtenant Sublandlord’s right under the Lease to lease 1
parking space per 550 rentable square feet of the Subleased Premises at
prevailing market rents in accordance with the terms of the
Lease. Subtenant shall be obligated to pay the market price for such
spaces directly to the parking garage operator. If Subtenant desires
to lease fewer than the maximum number of parking spaces available to Subtenant
pursuant to this Section 20, Subtenant shall notify Sublandlord sixty (60) days
in advance of relinquishing such spaces.
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21. Estoppel Certificate.
Subtenant shall, without charge, at any time and from time to time, within five
(5) business days of request therefor by Sublandlord, execute, acknowledge and
deliver a written estoppel certificate certifying, as of the date of such
estoppel certificate, the following: (a) whether or not this Sublease
is unmodified and in full force and effect (or if there has been a modification,
whether or not the Sublease is in full force and effect as modified and setting
forth such modifications); (b) whether or not the Sublease Term has commenced
and the full rental is now accruing; (c) the amounts of Rent currently due and
payable by Subtenant; (d) that no Basic Rent (except the first installment
thereof) has been paid more than thirty (30) days in advance of its due date;
(e) whether or not Subtenant has accepted possession of the Subleased Premises
and is currently operating its business therein; (f) that Subtenant has no
knowledge of any then uncured defaults by Sublandlord of its obligations under
this Sublease (or, if Subtenant has such knowledge, specifying the same in
detail); (g) the address to which notices to Subtenant should be sent; and (h)
any other information reasonably requested by Sublandlord related to this
Sublease.
22. Miscellaneous.
(a) This Sublease contains the entire
agreement between Sublandlord and Subtenant with respect to the use and
occupancy of the Subleased Premises, and any agreement hereafter made shall be
ineffective to amend or modify this Sublease in whole or in part unless such
agreement is in writing and is signed by the party against whom enforcement of
the change, modification or discharge is sought. This Sublease shall
bind and inure to the benefit of the parties hereto and their respective
successors and their respective permitted assigns. Whenever used in
this Sublease, the word “including” shall be deemed to mean “including without
limitation”. Captions used in this Sublease are for convenience of
reference only, and shall be of no force or effect in the construction or
interpretation of this Sublease. References to “Sections,”
“paragraphs,” and “Exhibits” are to the corresponding portions of this Sublease,
unless expressly stated to the contrary. Time is of the essence in
this Sublease and of all provisions hereof, except as expressly set forth to
contrary herein. Nothing contained in this Sublease shall be deemed
or construed as creating the relationship of principal and agent, partnership,
or joint venture between Sublandlord and Subtenant, nor any relationship
whatsoever other than that of sublandlord and subtenant. This
Sublease shall be construed in accordance with the laws of the State of
Maryland. Subtenant shall have no right to record in the applicable
land records this Sublease or any memorandum thereof. The submission
of this Sublease by Sublandlord to Subtenant shall not constitute an offer by
Sublandlord and Sublandlord shall not be bound in any way unless and until this
Sublease is executed and delivered by both parties and the same is consented to
by Landlord, if applicable.
(b) Each party represents
and warrants to the other that it has the power and authority to enter into this
Sublease, and that this Sublease is the valid and binding obligation of such
party and is enforceable against it in accordance with its terms, subject to
general equitable principles and creditors’ rights.
[signatures
appear on following page]
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IN
WITNESS WHEREOF, Sublandlord and Subtenant have respectively executed this
Sublease as of the day and year first above written.
| SUBLANDLORD: | |||
| AMERICAN CAPITAL, LTD. | |||
|
|
By:
|
||
| Name: | |||
| Its: | |||
| SUBTENANT: | |||
| NORTHWEST BIOTHERAPEUTICS, INC. | |||
| By: | |||
| Name: | |||
| Its: | |||
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List of
Exhibits
|
Exhibit
A
|
Copy
of Lease
|
|
Exhibit
B
|
Form of Sublease Consent |
|
Exhibit
C
|
Excluded Lease Provisions |
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-
EXHIBIT A
COPY OF
LEASE
(See
attached)
A-1
EXHIBIT
B
DEPICTION OF SUBLEASED
PREMISES
EXHIBIT
C
CONSENT TO
SUBLEASE
EXHIBIT
D
EXCLUDED LEASE
PROVISIONS
Original
Lease:
Summary
of Basic Lease Information - Section 9, Section 11, Section 12, Section
13
Article
28
Section
29.26
Article
30
Article
31
Article
32
Article
33
Exhibit
B
Amendment:
D-1
