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EXHIBIT 10.2
SUBORDINATION NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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This AGREEMENT is made and entered into as of March 28, 1997, by and among
LaSalle National Bank, AS TRUSTEE FOR Asset Securitization Corporation
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES D4 ("Lender"), OLD
CAMBRIDGE PROPERTY LLC ("Landlord") and MILLENNIUM PHARMACEUTICALS INC.
("Tenant").
1. RECITALS.
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1.1 MORTGAGE. Lender is the holder of a Promissory Note dated
December 27, 1996, in the original principal amount of $69,700,000 of Landlord,
which is secured, inter alia, by a Mortgage and Security Agreement (the
"Mortgage") and Assignment of Lease and Rents (the "Lease Assignment") covering
premises more particularly described in the Mortgage (the "Premises").
1.2 LEASE. Landlord and Tenant entered into a Lease dated March 28,
1997, (the "Lease"), whereby Landlord demised to Tenant a portion of the
Premises (the "Demised Premises").
2. CONSIDERATION. The terms of the Lease constitute a material inducement
to Lender's consent thereto and entering into and performing this Agreement.
3. SUBORDINATION OF THE LEASE. Subject to the terms hereof, this Lease
shall be and is hereby made subject and subordinate to the Mortgage.
4. NON-DISTURBANCE. Lender shall not, in the exercise of any right,
remedy, or privilege granted by the Mortgage or the Lease Assignment, or
otherwise available to Lender at law or in equity, disturb Tenant's possession
or rights under the Lease so long as:
(a) Tenant is not in default beyond applicable notice and cure
periods under any provision of the Lease or this Agreement at the
time Lender exercises any such right, remedy or privilege; and
(b) The Lease at that time is in force and effect according to its
original terms, or with such amendments or modifications as
Lender shall have approved, if such approval is required by the
terms of the Mortgage or the Lease Assignment; and
(c) Tenant thereafter continues to fully and punctually perform all
of its obligations under the Lease without default thereunder
beyond any applicable cure period; and
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(d) Tenant attorns to or at the direction of Lender, as provided in
Paragraph 5.
Without limiting the foregoing, and so long as the foregoing conditions are met,
Lender agrees that (i) Tenant will not be named as a party to any foreclosure or
other proceeding instituted by Lender to enforce the terms of the Mortgage or
the Lease Assignment; (ii) any sale or other transfer of the Demised Premises or
of the Landlord's interest in the Lease, pursuant to foreclosure or any
voluntary conveyance or other proceeding in lieu of foreclosure, will be subject
and subordinate to Tenant's possession under the Lease; and (iii) the Lease will
continue in force and effect according to its original term, or with such
amendments as Lender shall have approved, if such approval is required by the
terms and conditions of the Mortgage or the Lease Assignment.
5. ATTORNMENT. Tenant shall attorn to Lender, to any receiver or similar
official for the Demised Premises appointed at the instance and request, or with
the consent, of Lender and to any person who acquires the Demised Premises, or
the Landlord's interest in the Lease, or both, pursuant to Lender's exercise of
any right, remedy or privilege granted by the Mortgage, or otherwise at law or
in equity. Without limitation, Tenant shall attorn to any person or entity that
acquired the Demised Premises pursuant to foreclosure of the Mortgage, or by any
proceeding or voluntary conveyance in lieu of such foreclosure, or from Lender,
whether by sale, exchange or otherwise. Any attornment to anyone other than
Lender shall be conditioned upon Tenant receiving a non-disturbance from such
entity.
Upon any attornment under this Paragraph 5, the Lease shall continue in
full force and effect as a direct lease between Tenant and the person or entity
to whom Tenant attorns, except that such person or entity shall not be:
(i) liable for any breach, act or omission of any prior landlord
(except to the extent continuing during such person's
ownership); or
(ii) subject to any offsets, claims or defenses which Tenant might
have against any prior landlord; or
(iii) bound by any rent or additional rent or other payment in lieu of
rent which Tenant might have paid to any prior landlord more
than 30 days in advance of its due date under the Lease or which
such person or entity has physical possession of; or
(iv) bound by any amendment or modification of the Lease made without
Lender's written consent, where such consent is required by the
Mortgage; or
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(v) bound by any notice given by Tenant to Landlord, whether or not
such notice is given pursuant to the terms of the Lease, unless a
copy thereof was then also given to Lender; or
(vi) be liable for any security deposit or other sums held by any
prior landlord, unless actually received.
The person or entity to whom Tenant attorns shall be liable to Tenant under the
Lease only during such person or entity's period of ownership, and such
liability shall not continue or survive as to the transferor after a transfer by
such person or entity of its interest in the Lease and the Demised Premises.
6. REPRESENTATIONS AND WARRANTIES.
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6.1 JOINT AND SEVERAL. Landlord and Tenant hereby jointly and
severally represent and warrant to Lender as follows regarding the Lease:
(a) A true and correct copy of the Lease (inclusive of all riders and
exhibits thereto) is attached to the counterpart of this
Agreement being delivered to Lender. There are no other oral or
written agreements, understandings or the like between Landlord
and Tenant relating to the Demised Premises or the Lease
transaction.
(b) Under the Lease, upon occupancy, Tenant will be obligated to pay
base rent without present right of defense or offset, at the rate
of $37,986.00 per month. No rent has been paid more than 30 days
in advance, and Tenant has no claim against the Landlord for any
deposits or other sums (other than the security deposit).
(c) The Lease has not been modified, altered or amended in any
respect.
(d) The addresses for notices to be sent to Tenant and Landlord are
as set forth in the Lease.
(d) To Tenant's knowledge, Tenant has no right of first refusal,
option or other right to purchase the Premises or any part
thereof, including, without limitation, the Demised Premises.
6.2 SEVERAL. Landlord and Tenant severally represent and warrant to
Lender with respect to themselves, but not with respect to the other.
(a) The execution of the Lease was duly authorized, the Lease was
properly executed and is in full force and effect and is valid,
binding and
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enforceable against Tenant and Landlord and there exists no
default, nor state of facts which with notice, the passage of
time, or both, could ripen into a default, on the part of either
Tenant or Landlord.
(b) There has not been filed by or against nor, to the best of the
knowledge and belief of the representing party, is there
threatened against or contemplated by, Landlord or Tenant, a
petition in bankruptcy, voluntary or otherwise, any assignment
for the benefit of creditors, any petition seeking reorganization
or arrangement under the bankruptcy laws of the United States or
of any state thereof, or any other action brought under said
bankruptcy laws.
(c) There has not been any assignment, hypothecation or pledge of the
Lease or rents accruing under the Lease, other than pursuant to
the Mortgage and the Lease Assignment. Tenant makes the
representation set forth in this subparagraph only to its best
knowledge and belief.
7. RENTS. Landlord and Tenant jointly and severally acknowledge that the
Lease Assignment provides for the direct payment to Lender of all rents and
other monies due and to become due to Landlord under the Lease upon the
occurrence of certain conditions as set forth in the Lease Assignment without
Lender's taking possession of the Demised Premises or otherwise assuming
Landlord's position or any of Landlord's obligations under the Lease. Upon
receipt from Lender of written notice to pay all such rents and other monies to
or at the direction of Lender, Landlord authorizes and directs Tenant thereafter
to make all such payments to or at the direction of Lender, releases Tenant of
any and all liability to Landlord for any and all payment so made, and shall
defend, indemnify and hold Tenant harmless from and against any and all claims,
demands, losses, or liabilities asserted by, through or under Landlord (except
by Lender) for any and all payments so made. Upon receipt of such notice, Tenant
thereafter shall pay all monies then due and becoming due from Tenant under the
Lease to or at the direction of Lender, notwithstanding any provision of the
Lease to the contrary. Tenant agrees that neither Lender's demanding or
receiving any such payments, nor Lender's exercising any other right, remedy,
privilege, power or immunity granted by the Mortgage or the Lease Assignment,
will operate to impose any liability upon Lender for performance of any
obligation of Landlord under the Lease unless and until Lender elects otherwise
in writing or takes possession of the Premises. Such payments shall continue
until Lender directs Tenant otherwise in writing.
Tenant agrees not to pay any rent under the Lease more than 30 days in
advance without Lender's consent. The provisions of this Paragraph 7 will apply
from time to time throughout the term of the Lease.
8. CURE. If Tenant becomes entitled to terminate the Lease or offset,
withhold or ▇▇▇▇▇ rents because of any default by Landlord, then Tenant shall
give Lender written notice specifying Landlord's default. Lender then shall have
the right, but not the obligation, to cure the
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specified default within the following time periods:
(a) Fifteen days after receipt of such notice with respect to
defaults that can be cured by the payment of money; or
(b) Thirty days after receipt of such notice with respect to any
other default; unless the cure requires Lender to obtain
possession of the Demised Premises, in which case such thirty day
period shall not commence until Lender acquires possession, so
long as Lender proceeds promptly to acquire possession of the
Demised Premises with due diligence, by foreclosure of the
Mortgage or otherwise.
Nothing contained in this Paragraph 8 shall require Lender to commence or
continue any foreclosure or other proceedings, or, if Lender acquires possession
of the Demised Premises, to continue such possession, if all defaults specified
by Tenant in its notice are cured. Possession by a receiver, or other similar
official appointed at the instance, or with the consent, of Lender shall
constitute possession by Lender for all purposes under this Paragraph 8.
9. ESTOPPEL LETTERS. Whenever reasonably requested by Lender, Landlord
and Tenant from time to time shall severally execute and deliver to or at the
direction of Lender, and without charge to lender, one or more written
certifications of all of the matters as set forth in Paragraph 6, whether Tenant
has exercised any renewal option or options and any other information the Lender
may reasonably require to confirm the current status of the Lease, including,
without limitation, a confirmation that the Lease is and remains subordinated as
provided in this Agreement.
10. CASUALTY AND EMINENT DOMAIN. Landlord and Tenant jointly and severally
agree that the Mortgage permits Lender, at its option, to apply to the
indebtedness from time to time secured by the Mortgage any and all insurance
proceeds payable with respect to any casualty loss at the Demised Premises and
any and all awards or other compensation that may be payable for the
condemnation of all or any portion of the Demised Premises, or any interest
therein, or by way of negotiated settlement or conveyance in lieu of
condemnation; and Landlord and Tenant jointly and severally consent to any such
application by Lender. Notwithstanding the foregoing, Landlord and Lender agree
that any and all insurance or condemnation proceeds payable with respect to
Tenant's property or the interruption or relocation of Tenant's business (except
for rental loss insurance proceeds) will be paid to Tenant.
11. NOTICES. All notices, demands, and other communications that must or
may be given or made in connection with this Agreement must be in writing and,
unless receipt is expressly required, will be deemed delivered or made 5 days
after having been mailed by registered or certified mail, return receipt
requested, or one day after having been mailed by express mail, in any event
with sufficient postage affixed, and addressed to the parties as follows:
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TO LENDER: C/O AMRESCO MANAGEMENT, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ASSET MANAGEMENT GROUP
TO LANDLORD: OLD CAMBRIDGE PROPERTY LLC
C/O THE ATHENAEUM GROUP, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TO TENANT: MILLENNIUM PHARMACEUTICALS INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such addresses may be changed by notice pursuant to this Paragraph 11; but
notice of change of address is effective only upon receipt. Landlord and Tenant
jointly and severally agree that they will furnish Lender with copies of all
notices relating to the Lease. All communications to Lender shall reference
"AMRESCO Loan No.: 400028062."
12. SUCCESSORS AND ASSIGNS. As used in this Agreement, the word "Tenant"
shall mean Tenant and any subsequent holder or holders of an interest under the
Lease, as the text may require, provided that the interest of such holder is
acquired in accordance with the terms and provisions of the Lease and the word
"Lender" shall mean Lender or any other subsequent holder or holders of the
Mortgage or any party acquiring title to the Demised Premises by purchase at a
foreclosure sale, by deed of the Lender, or otherwise. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of Landlord, Tenant and
Lender, their legal representatives, successors and assigns. The terms Lease,
Mortgage and Lease Assignment shall include any and all amendments,
modifications, replacements, substitutions, extensions, renewals and supplements
thereto.
13. FURTHER ASSURANCES. Landlord and Tenant from time to time shall
execute and deliver at Lender's request all instruments that may be necessary or
appropriate to evidence their agreement hereunder provided such instrument
neither increases Tenant's obligations or decreases its rights under the Lease.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all such
counterparts shall constitute one and the same instrument.
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15. SEVERABILITY. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision, and any determination that the application of any provision of
this Agreement to any person or to any person or to particular circumstances is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LENDER:
LaSalle National Bank, AS TRUSTEE FOR
Asset Securitization Corporation COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES D4
BY: AMRESCO MANAGEMENT, INC.,
ITS AUTHORIZED AGENT
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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DESIGNATED SERVICING OFFICER
LANDLORD:
BY: OLD CAMBRIDGE PROPERTY LLC
NAME: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE: President
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Cambridge F.A. Inc.
Managing Member
TENANT:
BY: MILLENNIUM PHARMACEUTICALS INC.
NAME: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TITLE: Treasurer
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