**Exhibit 10.2**

 

**LOAN NO. 850203350**

 

**SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT**

 

ThisSubordination, Non-Disturbance and Attornment Agreement (the “Agreement”)is dated as of the 11th day of October 2010, by and between Bank ofAmerica, National Association, as successor by merger to LaSalle Bank NationalAssociation, as Trustee for the portfolio known as the Bear Sterns CommercialMortgage Securities, Inc. Commercial Pass Through Certificates, Series 2006-PWR13,acting by and through Helios AMC, LLC, the Special Servicer (“Lender”),and CELLDEX THERAPEUTICS, INC., a Delaware corporation (“Tenant”).

 

RECITALS

 

A.            Tenant is the tenant underthat certain Agreement of Lease, dated October 5, 2005 (the “OriginalLease”), with Phillipsburg Associates, L.P., a Pennsylvania limitedpartnership (“Landlord”), as landlord, relating to certain premises comprisingof approximately nineteen thousand three hundred sixty-eight (19,368) rentablesquare feet of floor area in building #20 located at 942 Memorial Parkway,Phillipsburg, New Jersey 08865 (the “Demised Premises”), as moreparticularly described in the Lease, and which relates to certain real propertyas more particularly described on Exhibit A hereto (the “Property”);which Original Lease was modified by that certain First Amendment to Agreementof Lease, dated                        , 2010 (the “First Amendment”;together with the Original Lease, hereinafter collectively referred to as the “Lease”).

 

B.            This Agreement is beingentered into in connection with a certain mortgage loan (the “Loan”)made by Lender to Landlord, which is secured by, among other things:  (a) a first priority amended andrestated mortgage to secure debt on and of the Property (the “Mortgage”)to be recorded with the registry or clerk of the county in which the Propertyis located; and (b) a first priority amended and restated assignment ofleases and rents on the Property (the “Assignment of Leases and Rents”)which was also recorded.  The Mortgageand the Assignment of Leases and Rents are hereinafter collectively referred toas the “Security Documents”.

 

C.            Tenant acknowledges thatLender will rely on this Agreement in connection with its Loan to Landlord.

 

AGREEMENT

 

Formutual consideration, including the mutual covenants and agreements set forthbelow, the receipt and sufficiency of which are hereby acknowledged, theparties hereto agree as follows:

 

1.             Tenant agrees that the Lease is and shall be subject and subordinate tothe Security Documents and to all present or future advances under theobligations secured thereby and all renewals, amendments, modifications,consolidations, replacements and extensions of the secured obligations and theSecurity Documents, to the full extent of all 

 

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amounts secured by the Security Documents from timeto time.  Said subordination is to havethe same force and effect as if the Security Documents and such renewals,modifications, consolidations, replacements and extensions thereof had beenexecuted, acknowledged, delivered and recorded prior to the Lease, anyamendments or modifications thereof and any notice thereof.

 

2.             Lender agrees that, if the Lender exercises any of its rights under theSecurity Documents, including an entry by Lender pursuant to the Mortgage or aforeclosure of the Mortgage, Lender shall not disturb Tenant’s right of quietpossession of the Premises under the terms of the Lease so long as Tenant isnot in default beyond any applicable grace period of any term, covenant orcondition of the Lease.

 

3.             Tenant agrees that, in the event of a foreclosure of the Mortgage byLender or the acceptance of a deed in lieu of foreclosure by Lender or anyother succession of Lender to fee ownership, Tenant will attorn to andrecognize Lender as its landlord under the Lease for the remainder of the termof the Lease (including all extension periods which have been or are hereafterexercised) upon the same terms and conditions as are set forth in the Lease,and Tenant hereby agrees to pay and perform all of the obligations of Tenant pursuantto the Lease.

 

4.             Tenant agrees that, in the event Lender succeeds to the interest ofLandlord under the Lease, Lender shall not be:

 

(a)           liable for any act or omission of any priorLandlord (including, without limitation, the then defaulting Landlord), or

 

(b)           subject to any defense or offsets which Tenantmay have against any prior Landlord (including, without limitation, the thendefaulting Landlord), or

 

(c)           bound by any payment of rent or additionalrent which Tenant might have paid for more than one month in advance of the duedate under the Lease to any prior Landlord (including, without limitation, thethen defaulting Landlord), or

 

(d)           bound by any obligation to make any payment toTenant which was required to be made prior to the time Lender succeeded to anyprior Landlord’s interest, or

 

(e)           accountable for any monies deposited with anyprior Landlord (including security deposits), except to the extent such moniesare actually received by Lender, or

 

(f)            bound by any surrender, termination, amendmentor modification of the Lease made without the consent of Lender (except atermination that is permitted in the Lease without Landlord’s consent).

 

5.             Tenant agrees that, notwithstanding any provision hereof to the contrary,the terms of the Mortgage shall continue to govern with respect to thedisposition of any insurance proceeds or eminent domain awards, and anyobligations of Landlord to restore the real estate of which the Premises are apart shall, insofar as they apply to Lender, be 

 

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limited to insurance proceeds or eminent domainawards received by Lender after the deduction of all costs and expensesincurred in obtaining such proceeds or awards.

 

6.             Tenant hereby agrees to give to Lender copies of all notices of Landlorddefault(s) under the Lease in the same manner as, and whenever, Tenantshall give any such notice of default to Landlord, and no such notice ofdefault shall be deemed given to Landlord unless and until a copy of suchnotice shall have been so delivered to Lender. Lender shall have the right to remedy any Landlord default under theLease, or to cause any default of Landlord under the Lease to be remedied, andfor such purpose Tenant hereby grants Lender such additional period of time asmay be reasonable to enable Lender to remedy, or cause to be remedied, any suchdefault in addition to the period given to Landlord for remedying, or causingto be remedied, any such default.  Tenantshall accept performance by Lender of any term, covenant, condition oragreement to be performed by Landlord under the Lease with the same force andeffect as though performed by Landlord. No Landlord default under the Lease shall exist or shall be deemed toexist (i) as long as Lender, in good faith, shall have commenced to curesuch default within the above referenced time period and shall be prosecutingthe same to completion with reasonable diligence, subject to force majeure, or (ii) ifpossession of the Premises is required in order to cure such default, or ifsuch default is not susceptible of being cured by Lender as long as Lender, ingood faith, shall have notified Tenant that Lender intends to instituteproceedings under the Security Documents, and, thereafter, as long as suchproceedings shall have been instituted and shall be prosecuted with reasonablediligence.  Lender shall have the right,without Tenant’s consent, to foreclose the Mortgage or to accept a deed in lieuof foreclosure of the Mortgage or to exercise any other remedies under theSecurity Documents.

 

7.             Tenant hereby consents to the Assignment of Leases and Rents fromLandlord to Lender in connection with the Loan. Tenant acknowledges that the interest of the Landlord under the Leasehas been assigned to Lender solely as security for the purposes specified insaid assignments, and Lender shall have no duty, liability or obligationwhatsoever under the Lease or any extension or renewal thereof, either byvirtue of said assignments or by any subsequent receipt or collection of rentsthereunder, unless Lender shall specifically undertake such liability inwriting or unless Lender or its designee or nominee becomes, and then only withrespect to periods in which Lender or its designee or nominee becomes, the feeowner of the Premises.  Tenant agreesthat upon receipt of a written notice from Lender of a default by Landlordunder the Loan, Tenant will thereafter, if requested by Lender, pay rent toLender in accordance with the terms of the Lease.

 

8.             The Lease shall not be modified, amended or terminated (except atermination that is permitted in the Lease without Landlord’s consent) withoutLender’s prior written consent in each instance.

 

9.             Any notice, election, communication, request or other document or demandrequired or permitted under this Agreement shall be in writing and shall bedeemed delivered on the earlier to occur of (a) receipt or (b) thedate of delivery, refusal or nondelivery indicated on the return receipt, ifdeposited in a United States Postal Service Depository, postage prepaid, sentcertified or registered mail, return receipt requested, or if sent via a 

 

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recognized commercial courier service providing fora receipt, addressed to Tenant or Lender, as the case may be, at the followingaddresses:

 
| If  to Tenant:   | At  the Demised Premises              |
|------------------|---------------------------------------|
|             |                                  |
| with  a copy to: | Lowenstein  Sandler PC                |
|             | 65  Livingston Avenue                 |
|             | Roseland,  New Jersey 07068           |
|             | Attn:                                 | Anthony O. Pergola, Esq. |
|             |                                  |
| If  to Lender:   | Helios  AMC, LLC, as special servicer |
|             | 350  Sentry Parkway                   |
|             | Building  630, Suite 100         |
|             | Blue  Bell, PA 19422                  |
|             | Attn:                                 | Tom  Deja, Asset Manager |
|             |                                  |
| with  a copy to: | Klehr  Harrison Harvey Branzburg LLP  |
|             | 1835  Market Street, Suite 1400  |
|             | Philadelphia,  Pennsylvania 19103     |
|             | Attn:                                 | Frank  Correll, Jr., Esq. |

 

10.           The term “Lender” as used herein includes any successor or assign of thenamed Lender herein, including without limitation, any co-lender at the time ofmaking the Loan, any purchaser at a foreclosure sale and any transfereepursuant to a deed in lieu of foreclosure, and their successors and assigns,and the terms “Tenant” and “Landlord” as used herein include any successor andassign of the named Tenant and Landlord herein, respectively; provided,however, that such reference to Tenant’s or Landlord’s successors and assignsshall not be construed as Lender’s consent to any assignment or other transferby Tenant or Landlord.

 

11.           If any provision of this Agreement is held to be invalid or unenforceableby a court of competent jurisdiction, such provision shall be deemed modifiedto the extent necessary to be enforceable, or if such modification is notpracticable, such provision shall be deemed deleted from this Agreement, andthe other provisions of this Agreement shall remain in full force and effect,and shall be liberally construed in favor of Lender.

 

12.           Neither this Agreement nor any of the terms hereof may be terminated,amended, supplemented, waived or modified orally, but only by an instrument inwriting executed by the party against which enforcement of the termination,amendment, supplement, waiver or modification is sought.

 

13.           This Agreement shall be construed in accordance with the laws of thestate of in which the Property is located.

 

14.           The person executing this Agreement on behalf of Tenant is authorized byTenant to do so and execution hereof is the binding act of Tenant enforceableagainst Tenant.

 

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Witnessthe execution hereof as of the date first above written.

 
|       | **LENDER:**                            |                                  |
|------------|----------------------------------------|---------------------------------------|
|       |                                   |
|       | Bank  of America, National Association |
|       |                                   |
|       | By:                                    | Helios  AMC, LLC, solely in its       |
|       |                                   | capacity  as Special Servicer         |
|       |                                   | pursuant  to that certain Pooling and |
|       |                                   | Servicing  Agreement dated as of      |
|       |                                   | September 1,  2006               |
|       |                                   |                                  |
|       |                                   |                                  |
|       | By:                                    | /s/  Allen D. Hanson                  |
|       | Name:                                  | Allen  D. Hanson                      |
|       | Title:                                 | S.V.P.                                |
| ** ** | ** **                             |                                  |
| ** ** | ** **                             |                                  |
|       | **TENANT:**                            |                                  |
| ** ** | ** **                             |                                  |
|       |                                   |                                  |
|       | CELLDEX  THERAPEUTICS, INC.,      |
|       | a  Delaware corporation                |
|       |                                   |                                  |
|       |                                   |                                  |
|       | By:                                    | /s/  Antony S. Marucci                |
|       | Name:                                  | Anthony  S. Marucci                   |
|       | Title:                                 | President &  CEO             |
|            |                                        |                                       |  |

 

Theundersigned Landlord hereby consents to the foregoing Agreement and confirmsthe facts stated in the foregoing Agreement.

 

 
|   | **LANDLORD:**                       |
|--------|-------------------------------------|
|   | ** **                          |
|   | PHILLIPSBURG  ASSOCIATES, L.P.,     |
|   | a  Pennsylvania limited partnership |
|   |                                |
|   | By:                                 | Phillipsburg, Inc.,  its general partner |
|   |                                |   |
|   | By:                                 | The  Flynn Company as Receiver for |
|   |                                | Phillipsburg  Associates, L.P. |
|   |                                |   |
|   | By:                                 | /s/  William F. Henderson |
|   | Name:                               | William  F. Henderson |
|   | Title:                              | Controller |
|        |                                     |  |  |

 

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|                   |   |   |   |   |
|------------------------|--------|--------|--------|--------|
| STATE  OF Pennsylvania | :      |   |   |
|                   |   | :      | SS     |   |
| COUNTY  OF Montgomery  | :      |   |   |

 

 

On this, the 12th day of October 2010,before me, the subscriber, a Notary Public in an for the State/Commonwealth ofPennsylvania, personally appeared Allen D. Hanson who acknowledged him/herselfto be the S.V.P. of HELIOS AMC, LLC, acting on behalf of Bank of America,National Association solely in its capacity as Special Servicer pursuant tothat certain Pooling and Servicing Agreement dated as of September 1,2006, and that he/she as such officer executed the foregoing document for thepurposes therein contained.

 

IN WITNESS WHEREOF, Ihave hereunder set my hand and notarial seal.

 
|   | /s/                    |
|--------|------------------------|
|   | NOTARY PUBLIC          |
|   | MY COMMISSION EXPIRES: |

 
|                 |   |   |   |   |
|----------------------|--------|--------|--------|--------|
| STATE  OF New Jersey | :      |   |   |
|                 |   |   | SS     |   |
| COUNTY  OF Hunterdon | :      |   |   |

 

On this, the 5th day of October 2010, before me, thesubscriber, a Notary Public in an for the State/Commonwealth of New Jersey,personally appeared Anthony S. Marucci who acknowledged him/herself to be thePresident & CEO of CELLDEX THERAPEUTICS, INC., a Delawarecorporation, and that he/she as such officer executed the foregoing documentfor the purposes therein contained.

 

IN WITNESS WHEREOF, Ihave hereunder set my hand and notarial seal.

 
|   | /s/                    |
|--------|------------------------|
|   | NOTARY PUBLIC          |
|   | MY COMMISSION EXPIRES: |

 
|                    |   |   |   |   |
|-------------------------|--------|--------|--------|--------|
| STATE  OF Pennsylvania  | :      |   |   |
|                    |   | :      | SS     |   |
| COUNTY  OF Philadelphia | :      |   |   |

 

On this, the 11th day of October 2010, before me, thesubscriber, a Notary Public in an for the State/Commonwealth of Pennsylvania,personally appeared William F. Henderson who acknowledged himself to be theController of The Flynn Company acting as Receiver for Phillipsburg Associates,L.P., and that he as such officer executed the foregoing document for thepurposes therein contained.

 

IN WITNESS WHEREOF, Ihave hereunder set my hand and notarial seal.

 
|   | /s/                    |
|--------|------------------------|
|   | NOTARY PUBLIC          |
|   | MY COMMISSION EXPIRES: |

 

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EXHIBIT “A”

 

*LegalDescription of Property*

 

ALL THAT CERTAIN lot, piece or parcel of landsituate in the Town of Phillipsburg, Warren County, New Jersey, being a portionof Lot 7, Block 3201 to be known as “Proposed Lot 7.01, Block 3201”, asfollows:

 

Beginning at a point in the Municipal Boundary linebetween Lopatcong Township and the Town of Phillipsburg, also being thedividing line between Lot 7, Block 3201, Town of Phillipsburg and Lot 1, Block101, Lopatcong Township where same is intersected with the southerly line ofLot 3, Block 300, Lopatcong Township (n/f Conrail Morris and Essex Division,formerly Erie-Lackawanna Railroad Company) and from said Point or Place ofBeginning running thence;

 

1.          Along the Municipal Boundaryline between Lopatcong Township and the Town of Phillipsburg, also being thedividing line between Lot 7, Block 3201, Town of Phillipsburg and Lot 1, Block101, Lopatcong Township, South 26° 28’ 35” East — 398.54 feetto a point, thence;

 

2.          Leaving said MunicipalBoundary line between Lopatcong Township and the Town of Phillipsburg andrunning along a new proposed lot line dividing Proposed Lot 7.01, Block 3201and Proposed Lot 7.02, Block 3201, South 81° 04’ 03” West 415.13 feet to apoint, thence;

 

3.          Still along the same, North08° 55’ 57” West –380.00 feet to a point in the aforesaid Municipal Boundary line betweenLopatcong Township and the Town of Phillipsburg also being the southerly lineof Lot 3, Block 300 (n/f Conrail Morris and Essex Division, formerlyErie-Lackawanna Railroad Company), thence;

 

4.          Along said MunicipalBoundary line between Lopatcong Township and the Town of Phillipsburg, alsobeing the southerly line of Lot 3, Block 300 Lopatcong Township (n/f ConrailMorris and Essex Division, formerly Erie-Lackawanna Railroad Company), North81° 04’ 03’ East – 295.00 feet to the Point or Place of Beginning.

 

The above description is in accordance with a mapentitled “Final Subdivision Plat, Former Ingersoll-Rand Site, Lot 7, Block3201, Town of Phillipsburg, Warren County, New Jersey” dated June 9, 2004and revised through June 17, 2004 and prepared by Chester, Ploussas,Lisowsky Partnership, LLP, Engineers and Surveyors, Matawan, New Jersey.

 

Being a portion of Lot 7, Block 3201 as shown on thecurrent Tax Map of the Town of Phillipsburg.

 

BEING the same premises which Ingersoll-RandCompany, a New Jersey corporation by Deed dated August 27, 2004 andrecorded November 9, 2004 in the Clerks Office of Warren County, NewJersey, in Book 1965 page 197, granted unto Phillipsburg Associates, L.P.,a Pennsylvania limited partnership, in fee.

 

TOGETHER WITH Declaration of Cross Easement by andbetween Phillipsburg Associates, L.P.; Phillipsburg Associates I, L.P.;Phillipsburg Associates II, L.P. and Phillipsburg Associates III, L.P., datedSeptember 27, 2004, and recorded November 9, 2004, in Book 1965 page 246.Amended and Restated Declaration of Cross Easements, Restrictions, Covenantsand Withdrawal of Property as in Book 2031 page 45.

 

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