EXHIBIT 10.10
THIRD AMENDMENT TO LEASE
PREMIER NORTH
This THIRD AMENDMENT TO LEASE (this "Third Amendment") is made this 15th day of
April, 2002, by and between TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA,
INC., a New York corporation ("Landlord") and ICOS CORPORATION, a Delaware
corporation ("Tenant").
RECITALS
Landlord is the landlord and Tenant is the tenant under that certain Lease
dated February 6, 1992 (the "Initial Lease"), for premises located at 00000 00xx
Xxxxxx X.X., Xxxxxxx, Xxxxxxxxxx, 00000, Premier North (legally described on
Exhibit A hereto), as modified by First Amendment to Lease dated for reference
purposes August 21, 1992 (the "First Amendment"), and by Lease Renewal and
Amendment Agreement dated for reference purposes August 5, 1997 (the "Second
Amendment"). As used herein the "Amended Lease" shall mean the Initial Lease as
modified by the First Amendment, the Second Amendment, and the "Lease" shall
mean the Amended Lease as further amended by this Third Amendment.
The parties desire to further amend the Amended Lease as set forth below.
Landlord and Tenant are simultaneously entering into a lease amendment
(the "Premier South Third Amendment") for premises located at 00000 00xx Xxxxxx
X.X., Xxxxxxx, Xxxxxxxxxx, 00000, commonly known as Premier South.
Except as otherwise specifically defined herein all capitalized terms
shall have the meanings assigned in the Amended Lease.
AGREEMENT
Now, therefore, for good and valuable consideration, the parties agree as
follows:
1. Extension. Section 1.05 of the Lease is amended to provide that the
expiration date of the Lease shall be December 31, 2008.
2. Rent Adjustments. Section 1.13 (a) of the Lease shall be amended to
provide the following Base Rent adjustments from and after September 15,
2002:
Effective Date of Rent
Increase New Base Monthly Rent
September 15, 2002 $0.00
December 15, 2002 $81,523.00
January 1, 2004 $83,969.00
January 1, 2005 $86,488.00
January 1, 2006 $89,082.00
January 1, 2007 $91,755.00
January 1, 2008 $94,508.00
3. Liability Insurance. Section 4.04(a) of the Lease is deleted and replaced
in its entirety with the following:
(a) Liability Insurance. From and after September 15, 2002, Tenant shall
maintain a policy of comprehensive general liability insurance at
Tenant's expense, insuring Landlord and its management contractor
against liability arising out of the ownership, use, occupancy, or
maintenance of the Property. The initial amount of such insurance
shall be $1,000,000.00 per occurrence and an excess umbrella
liability of $5,000,000.00. However, the amount of such insurance
shall not limit Tenant's liability nor relieve Tenant of any
obligation hereunder. The policy shall contain cross-liability
endorsements, if applicable, and shall insure Tenant's
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performance of the indemnity provisions of Section 5.04, subsections
(a), (b) and (e). Tenant shall, at Tenant's expense, maintain such
other liability insurance as Tenant deems necessary to protect
Tenant. Tenant's insurance shall be primary and non-contributing,
and Tenant shall name Landlord and its management contractor as
additional insureds and provide copies upon renewal, or at least
once annually.
4. Commissions. Sections 1.09 and 14.01 of the Lease are amended to reflect
that, with respect to this Third Amendment, each party represents that it
has not had dealings with any real estate broker, finder or other person
with respect to this Lease in any manner, except for Insignia/Xxxxxx
Xxxxxxx, who represented Tenant and who shall be compensated by Landlord
pursuant to separate agreement. Each party agrees to indemnify, defend and
hold the other party harmless from any commissions claimed by any broker
through the indemnifying party. Landlord and Tenant recognize that it is
possible that they may hereafter make additional agreements regarding
further extensions or renewal of this Lease or a new lease or leases for
all or one or more parts of the Premises or other space in the Project for
a term or terms commencing after the Commencement Date of this Lease.
Landlord and Tenant recognize that it is also possible that they may
hereafter modify this Lease to add additional space or to substitute space
as part of the Premises. If any such additional agreements, new leases or
modifications to this Lease are made, Landlord shall not have any
obligation to pay any compensation to any real estate broker or to any
other third person engaged by Tenant to render services to Tenant in
connection with negotiating such matters, regardless of whether under the
circumstances such person is or is not regarded by the law as an agent of
Landlord.
5. Option to Renew. All provisions under the Lease and any exhibits thereto
relating to renewal of the Lease are hereby replaced by the following:
Tenant is granted the right to extend the term of this Lease beyond the
expiration date of the term as set forth in this Third Amendment for one
period of sixty (60) months (the "Extended Term"). Tenant may not exercise
its Extension Right if it is then in default beyond any applicable cure
period or if it has ever been in default beyond any applicable cure period
more than two (2) times in any twelve (12) month period. Tenant may
exercise its Extension Right by delivering written notice thereof to
Landlord not later than twelve (12) months prior to the expiration of the
term. In the Extended Term, all terms and conditions of this Lease shall
apply, except (i) there shall be no tenant improvement allowance, no right
of first opportunity, and no further renewal rights, and (ii) the Base
Monthly Rent for the first thirty-six (36) months of the Extended Term
shall be ninety-five percent (95%) of the then prevailing market rate for
a similar lease and term for similarly situated and improved space in the
Bothell-Woodinville High-Tech Industrial Market (the unadjusted number
being referred to herein as the "Fair Market Rent"), provided that in no
event shall the Base Monthly Rent for the Extended Term be less than the
Base Monthly Rent for the last month of the initial term, and (iii) at the
beginning of the thirty-seventh (37th) month of the Extended Term, Base
Rent for the balance of the Extended Term shall be adjusted based upon the
increase in the Consumer Price Index, all Urban Consumers, for the
Seattle/Tacoma SMSA, published by the United States Department of Labor,
Bureau of Labor Statistics ("Index") which is in effect on the first day
of the Extended Term ("Beginning Index"). The corresponding index
("Extension Index") which is in effect on the first day of the
thirty-seventh (37th) month of the Extended Term shall be used as a
comparison in determining the amount of the Base Rent Increase. In
calculating the CPI increase, the Base Monthly Rent shall be increased to
equal the product achieved by multiplying the Base Monthly Rent due with
respect to that first paying month of the Extended Term by a fraction, the
numerator of which is the Extension Index and the denominator of which is
the Beginning Index. If the method of computing the Index is changed from
that in effect when the Beginning Index was established, then the
Beginning Index and all Extension Indexes shall be converted in accordance
with the conversion factor published by the United States Department of
Labor, Bureau of Labor Statistics. If during the Term, the Index is (a)
discontinued or (b) revised without such a Conversion Factor being so
published, such other government index or computation with which it is
replaced shall be used in order to obtain substantially the same result as
would be obtained if the Index had not been discontinued or revised.
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Extension Rights shall apply to all of the Premises then under lease to
Tenant. Tenant's Extension Right is personal and may not be exercised by
any assignee or sublessee other than an Affiliate of Tenant or a successor
by merger or consolidation.
If Landlord and Tenant are not able to agree on the Fair Market Rent
component of the Base Rent for the Extended Term within thirty days after
Tenant's notice of election to renew, then such Fair Market Rent shall be
determined by arbitration as follows. Landlord and Tenant shall each
select an appraiser with at least ten years experience in the
office/high-tech industrial market in the eastside area. If the two
appraisers are unable to agree within ten days after their selection, they
shall select a similarly qualified third appraiser (the "Neutral
Appraiser"). If the three appraisers are unable to agree unanimously on
Fair Market Rent within fourteen (14) days after appointment of the
neutral Appraiser, the issue shall be resolved by the three appraisers in
accordance with the following procedure. The appraiser selected by each of
the parties shall state in writing his determination of the Fair Market
Rent supported by the reasons therefore with counterpart copies to each
party. The appraisers shall arrange for a simultaneous exchange of such
proposed resolutions. The role of the Neutral Appraiser shall be to select
which of the two proposed resolutions most closely approximates his
determination of Fair Market Rent. The Neutral Appraiser shall have no
right to propose a middle ground or any modification of either of the two
proposed resolutions. The resolution he chooses as most closely
approximating his determination shall constitute the decision of the
appraisers and be final and binding upon the parties. Each party shall
bear cost of its own appraiser, and the non-prevailing party shall pay the
costs of the Neutral Appraiser.
6. Landlord's Third Amendment Work. Landlord hereby agrees to perform, at
Landlord's expense, the following work:
(a) Repaint the exterior of the Building during 2003.
(b) Pressure wash all walkways during 2002.
(c) Install RBPVs as required by Alderwood Water District during 2002.
7. Combined Tenant Improvement Allowance. Within Sixty (60) days after full
execution of this Third Amendment and the Premier South Third Amendment,
Landlord shall advance Tenant two hundred fifty thousand dollars
($250,000) in total for both buildings (the "Third Amendment Allowance")
for use in construction of improvements to the Premises and to Premier
South, including replacement of an HVAC compressor on the Premises. All
such improvements shall be constructed pursuant to Article Six of the
Lease. The Third Amendment Allowance may be used only for the following
costs
(a) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical,
electrical, plumbing and structural drawings and of all other
aspects of the tenant improvement plans.
(b) The payment of plan check, permit and license fees relating to
construction of the Third Amendment Improvements.
(c) Construction of the Third Amendment Improvements, including, without
limitation, the following:
(1) Installation within the Premises of all partitioning, doors,
floor coverings, ceilings, wall coverings and painting,
millwork and similar items.
(2) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the
Premises.
(3) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion
of the heating, ventilation and air conditioning systems
within the Premises, I including the cost of meter and key
control for after-hour air conditioning.
(4) Any additional Tenant requirements including, but not limited
to, odor control, special heating, ventilation and air
conditioning, noise or vibration control or other special
systems.
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(5) All fire and life safely control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and
accessories installed within the Premises.
(6) All plumbing, fixtures, pipes and accessories to be installed
within the Premises.
(7) Testing and inspection costs.
(8) Contractor's fees, including but not limited to any fees based
on general conditions.
Upon completion of the improvements, but not later than December 31, 2003,
Tenant shall provide Landlord with an accounting of the uses of the Third
Amendment Allowance. Any funds not used for permitted purposes as of that
date shall be refunded to Landlord.
8. No Other Modification. Except as expressly modified herein, all of the
terms, covenants and conditions of the Lease shall continue in full force
and effect and are hereby ratified by the parties.
Landlord: Teachers Insurance & Annuity Association
of America, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Assistant Secretary
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Tenant: Icos Corporation, a Delaware corporation
By: /s/ Xxxx Xxxxxx
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Its: Exec. Vice President
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STATE OF New York )
) ss.
COUNTY OF New York )
I certify that I know or have satisfactory evidence that Xxxxx X. Xxxxxxxx
signed this instrument, on oath stated that (he/she) was authorized to execute
the instrument and acknowledged it in (his/her) capacity as Assistant Secretary
of TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA, INC. to be the free and
voluntary act of such party for the uses and purposes mentioned in the
instrument.
GIVEN under my hand and official seal this 17th day of June, 2002.
/s/ Xxxxxxx X. Xxxxxxx
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NOTARY PUBLIC in and for the
State of New York, residing
at Bronx;
My commission expires: 1-12-2006
Xxxxxxx X. Xxxxxxx
-------------------------------------------
[Type or Print Notary Name]
STATE OF )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that Xxxx X. Xxxxxx
signed this instrument, on oath stated that (he/she) was authorized to execute
the instrument and acknowledged it in (his/her) capacity as EVP of Operations
of ICOS CORPORATION to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
GIVEN under my hand and official seal this 6th day of June, 2002.
/s/ Xxxxxx Xxxxxxx
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NOTARY PUBLIC in and for the
State of Washington, residing
at Bothell;
My commission expires: 10-9-05
Xxxxxx Xxxxxxx
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[Type or Print Notary Name]
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