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EXHIBIT 10.3
LANDLORD'S CONSENT TO SUBLEASING
THIS LANDLORD'S CONSENT ("Consent") is made this 27th DAY OF April, 2001
(the "Effective Date"), by and among 401 Xxxxxxx Xxxx, LLC, a Washington limited
liability company ("Landlord"), F5 Networks, Inc., a Washington corporation
("Tenant"), and Cell Therapeutics, Inc., a Washington corporation ("Subtenant").
Landlord and Tenant are parties to that certain Amended and Restated Office
Lease Agreement dated April 3, 2000 (the "Master Lease") pursuant to which
Landlord leased to Tenant a total of 84,765 rentable square feet, floors 1
through 4 in that certain building located at 000 Xxxxxx Xxxx, Xxxxxxx, XX
("Building Two") and 110,111 rentable square feet of area, floors 1 through 4 in
that certain building located at 000 Xxxxxx Xxxxxx, Xxxx, Xxxxxxx, XX ("Building
Three") (Building Two and Building Three shall sometimes herein be collectively
referred to as the "Premises"). A copy of the Master Lease is attached to this
Consent as Exhibit "A." Except as otherwise defined herein, all capitalized
terms used herein shall have the meanings assigned in the Master Lease.
Landlord hereby gives its consent to the subleasing from Tenant to
Subtenant, pursuant to that certain Sublease Agreement dated March 30, 2001 a
copy of which is attached hereto as Exhibit "B" and incorporated by this
reference (the "Sublease") of the entire Building Three, comprising 110,111
rentable square feet (the "Subleased Premises") which is part of the Premises
described in the Master Lease, subject to the following conditions:
1. Tenant shall remain liable for the performance of all of the
obligations arising under the Master Lease, as the same may be amended or
modified from time to time, until the termination thereof. Except as
specifically provided herein, as between Landlord and the Tenant, insofar as the
specific terms, provisions or conditions of the Sublease purport to amend or
modify or are in conflict with the specific terms, conditions or provisions of
the Master Lease, the terms, conditions or provisions of the Master Lease shall
govern and control.
2. Landlord agrees that in the event (a) the Master Lease is terminated
for any reason whatsoever, (b) a rejection or disaffirmance of the Master Lease
by Tenant pursuant to bankruptcy or any law affecting creditor's rights due to
Tenant's default or (c) Subtenant exercises its Lease Option as more
particularly set forth in Paragraph 10 below, then, provided that (i) Subtenant
is not then in material default in any payments due under the Sublease and has
not been in material default in any payments due under the Sublease more than
twice in any twelve (12) month period, (ii) there is no existing non-rent
default relating to the Sublease Premises and Subtenant has not been in material
default with respect to any non-rent obligations under the Master Lease or
Sublease more than twice in any twelve (12) month period, and (iii) Subtenant
posts a security deposit
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commensurate with the lease and restoration obligations under the Direct Lease,
which deposit must be such, given Subtenant's then creditworthiness, as to meet
a reasonable lender's criteria for a lease that makes the Building financeable
on market terms for similar buildings, and (iv) the entry into a Direct Lease is
approved by Landlord's lender, then Landlord shall enter into a Direct Lease
with Tenant for the Sublease Premises. As used herein, "Direct Lease" means a
lease on the same terms and conditions as the Master Lease, subject, however, to
the security deposit requirement set forth above and to such modifications in
Landlord's standard form lease as may have been required in the interim by
Landlord's lender, and provided that Subtenant's ("Tenant" under the Direct
Lease) obligations with respect to restoration of the Premises on surrender
shall reference the condition of the Premises on commencement of the Sublease
(as opposed to the condition on commencement of the Direct Lease). If Landlord
and Subtenant cannot agree upon the amount of the security deposit to be
provided by Subtenant for any Direct Lease pursuant to this Paragraph 2, then
the amount of the security deposit shall be determined by the arbitration
process stated in Paragraph 10 below. In addition, Landlord agrees to use
commercially reasonable efforts to obtain within nine (9) months of the
Effective Date hereof, Landlord's lender's approval of the Direct Lease rights
granted to Subtenant pursuant to the terms of this Consent.
3. The consent hereby given by Landlord does not constitute a waiver of
the necessity of the consent by Landlord to any subsequent subleasing, in whole
or in part, of the Premises or to any assignment of the Master Lease; nor except
as specifically provided herein, shall this consent be deemed to modify in any
way the terms and conditions of the Master Lease nor shall it constitute
agreement by Landlord with or acceptance by Landlord of any terms or provisions
of any Sublease executed between Tenant and Subtenant.
4. No representation respecting the condition of the Premises or
Subleased Premises has been made by the Landlord to the Subtenant.
5. Although Landlord has received a copy of the proposed Sublease
between Tenant and Subtenant, it is not a party to that agreement and does not
by executing this Consent agree to be bound by the terms thereof, such Sublease
being an agreement between Tenant and Subtenant only.
6. Except as otherwise provided herein or in any Direct Lease: (a)
Landlord shall have no obligation to accept, consider, or respond to any
request, inquiry, demand or other communication from Subtenant, whether of a
type described in the Sublease, or otherwise; (b) Subtenant shall have no right
to enforce any of the Tenant's rights under the Master Lease against the
Landlord, all of such rights being personal to the Tenant; and (c)
notwithstanding Subtenant's undertaking to perform the duties, responsibilities
and obligations of Tenant, as required by Paragraph 9 of this Consent, Landlord
shall have no direct duties, responsibilities or obligations to Subtenant, and
Subtenant shall have no rights against Landlord, Subtenant's rights being
exclusively against Tenant.
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7. If Landlord issues any notices of default under Paragraph 20 of the
Master Lease, or notices relating to damage and destruction or condemnation
pursuant to Paragraphs 17 and 18 of the Master Lease Landlord shall
simultaneously deliver a copy of such notice to Subtenant at the address set
forth below (using the notice procedures set forth in the Master Lease). Except
as set forth above and except for notices to be sent pursuant to Paragraphs 17
and 18 of the Master Lease, notwithstanding anything to the contrary contained
in the Sublease, Landlord shall have no obligation to deliver any notices called
for under the Sublease or the Master Lease to the Subtenant. Landlord shall
continue to deliver notices to the Tenant at the Premises in accordance with the
Master Lease. Landlord agrees not to accept any elections by Tenant pursuant to
Paragraphs 17 or 18 of the Lease relating to the Sublease Premises unless
Landlord has so delivered a copy of the notice required under Paragraphs 17 or
18 as applicable, and Landlord shall use reasonable means to confirm that
Subtenant is in accord with Tenant's election (but shall not be liable for
failure to make such confirmation so long as Landlord has delivered notices as
required hereunder).
8. As stated in Section 19, Assignment of Sublease, of the Master Lease,
one-half (1/2) of any rent received by Tenant from its subtenants or assignees
in excess of the Rent payable by Tenant to Landlord under this Lease (less the
cost and expenses incurred by Tenant in connection with any such sublease or
assignment) shall be paid to Landlord by Tenant.
9. With respect to all non-rent obligations under the Lease, Subtenant
agrees to perform and fulfill all the terms, convenants, conditions, duties,
responsibilities and obligations and to accept all liabilities of Tenant under
the Lease relating to the Sublease Premises as if Subtenant were the Tenant
under the Lease (including but not limited to indemnifications of Landlord,
rights of Landlord to be named as an additional insured, and releases of
Landlord, all as contained in the Lease), all to the extent same arise after the
date hereof.
10. As used in this Paragraph 10, the "Renewal Exercise Period" shall
mean the period not more than twenty-four (24) and not less than eighteen (18)
months prior to expiration of the initial term of the Master Lease or the
expiration of the first Extension Option, as the case may be. Subject to
Subtenant meeting the requirements for a Direct Lease set forth in Paragraph 2
above at the time of each exercise of a renewal option, Landlord hereby grants
Subtenant an option to lease the Subleased Premises on a direct basis from
Landlord (the "Lease Option") for two (2) consecutive five (5) year periods at
the expiration of the initial term of the Master Lease and the First Extension
Option, as applicable. Subtenant shall exercise each respective Lease Option by
delivering written notice to Landlord of its election during the respective
Renewal Exercise Period, in which event Landlord and Subtenant, as tenant, shall
enter into a Direct Lease for the Sublease Premises for the applicable Extension
Option, all on the terms and conditions set forth in Section 29 of the Master
Lease. In addition, Subtenant shall post a Security Deposit for
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its obligations under the Direct Lease in an amount that would be reasonably
required by landlords under leases of similar size with tenants of similar
credit standing and restoration obligations. If Landlord and Subtenant cannot
agree upon the amount of the Security Deposit, then the amount of the Security
Deposit shall be determined using the arbitration procedure provided in Section
29 of the Master Lease concurrently with the determination of the Fair Market
Rental Rate. Regardless of whether Subtenant elects to enter into a Direct Lease
as provided in this Paragraph 10, the Master Lease between Landlord and Tenant
shall expire at the end of the initial term of the Master Lease as by expiration
of its term notwithstanding any Direct Lease between Landlord and Subtenant, and
Tenant shall be entitled to a return of the then-existing balance of its
security deposit in accordance with the terms and conditions of the Master Lease
(provided further that if Landlord and Subtenant have entered into a Direct
Lease with security satisfactory to Landlord securing restoration obligations,
then Tenant's restoration obligations shall be superseded by the obligations of
Subtenant under the Direct Lease).
11. Landlord hereby consents, pursuant to Section 7 of the Master Lease,
to use of the Sublease Premises for laboratory uses of the types generally
permitted by institutional landlords of similar buildings in multi-tenant
developments in the Seattle area, provided that Landlord shall be permitted to
impose such special restrictions or precautions as are commonly required by
institutional landlords of similar tenants in the area. Landlord agrees to
diligently process, pursuant to the consent provisions of the Master Lease,
additional requests for additional permitted uses.
12. Notwithstanding anything in the Master Lease to the contrary,
Landlord hereby agrees the Subtenant shall be permitted to exercise Tenant's
right to install signage on the Sublease Premises pursuant to Section 37 of the
Master Lease.
13. Landlord, Tenant and Subtenant contemplate that Subtenant will
request of Tenant (and Tenant will in response request of Landlord) consent to
alterations that will convert portions of the Premises to laboratory or other
related non-office space, and that such alterations may be ones that Landlord
will require Tenant to restore on termination of the Master Lease or Direct
Lease, if applicable, pursuant to the terms of the Master Lease and this
Consent. The installation by Subtenant of any improvements or alterations to the
Subleased Premises necessary for the Permitted Use shall require Landlord's
consent pursuant to Section 14 of the Master Lease. Landlord acknowledges that,
pursuant to the Master Lease: "at the time Tenant submits plans for alterations
to Landlord for Landlord's approval, Tenant may request that Landlord elect
whether such alterations shall be removed at the termination of this Lease, and
if so requested, Landlord shall make such election simultaneous with its
approval of the alterations." Subtenant agrees to provide to Landlord
concurrently with its submission of plans for Landlord's consent, a removal and
restoration plan prepared by Subtenant's approved contractor (the "Removal
Plan") which Removal Plan shall provide an estimate of the cost to remove such
alterations and restore the Premises to its pre-alteration condition
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following the termination of the sublease or Direct Lease, as applicable. The
parties further acknowledge that Landlord may (and is expected to) require
Tenant to post or arrange for the posting of a letter of credit securing
restoration obligations under the Master Lease if the Sublease Premises are
materially altered from their current improved state and Landlord requires that
Subtenant remove any proposed alterations to be installed by Subtenant pursuant
to the terms of the Master Lease and this Consent. This restoration obligation
will be triggered by expiration or earlier termination of the Master Lease
unless Landlord and Subtenant have entered into a Direct Lease (which Direct
Lease shall, in such event, include a security deposit pursuant to Paragraph 2
above in the form of a letter of credit to secure restoration obligations).
Tenant may (and is expected to) satisfy letter of credit requirements relating
to restoration obligations by causing Subtenant to post a satisfactory letter of
credit payable directly to Landlord, and Subtenant hereby recognizes this
obligation. The form of the Letter of Credit and Landlord's rights thereunder
are as set forth in Exhibit C, which is hereby incorporated by reference.
Exhibit C is drafted on the assumption that the Letter of Credit will be posted
directly by Subtenant. If posted by Tenant, the references shall be amended to
reflect that fact. The amount of the restoration letter of credit to be posted
pursuant to this Section 13 shall be equal to one hundred fifteen percent (115%)
of the amount estimated in the Removal Plan for the cost of removal and Premises
restoration relating to such alterations as Subtenant has elected to install and
Landlord is requiring be removed pursuant to the Master Lease and this Consent,
provided, however, that Tenant's contractor's estimate of the cost of removal
and restoration shall be in lease-expiration dollars (calculated on an assumed
3% per annum inflation in costs).
14. Landlord agrees that within sixty (60) days of the parties' entry
into a Direct Lease pursuant to the terms set forth herein, Landlord shall use
commercially reasonable efforts to obtain for Subtenant's benefit (as tenant
under such Direct Lease) a commercially reasonable form of non-disturbance
agreement from any mortgage or ground lessor of the Subleased Premises.
15. Landlord and Tenant hereby represent and warrant to Subtenant and
each other that (a) attached hereto as Exhibit "A" is a true correct and
complete copy of the Master Lease and all amendments or side letter agreements
related thereto (b) the Master Lease is in full force and effect, and has not
been amended (c) that all Base Monthly Rent, monthly estimates of Tenant's Share
of Expenses and other sums due under the Master Lease have been paid through
Xxxxx 00, 0000, (x) the Master Lease commenced on July 25, 2000, and shall
expire on July 31, 2012; and (e) that neither Landlord nor Tenant is aware of
any material defaults under the Master Lease by themselves or by the other
party. Landlord and Tenant agree not to enter into any amendments affecting the
Sublease Premises during the term of the Master Lease without Subtenant's prior
written approval, which shall not be unreasonably withheld, conditioned, or
delayed.
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THIS CONSENT SHALL BE DEEMED EFFECTIVE ONLY UPON LANDLORD'S RECEIPT OF A FULLY
EXECUTED ORIGINAL OF THIS DOCUMENT SIGNED BY ALL PARTIES.
RECEIPT ACKNOWLEDGED:
Landlord: 401 XXXXXXX XXXX, L.L.C.
By: CHERLIN L.L.C.,
Its: Manager and Member
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Its: Managing Member
By: KMC-ONE, L.L.C.
Its: Member
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
Xxxxxxx XxXxxxxx & Company
Its: Managing Member
Dated this 27th day of April, 2001.
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Tenant: F5 NETWORKS, INC.
By: /s/ XXXXXX X. XXXXXXXXXXX
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Its: CFO
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Dated this ___ day of ______________, 2001.
Subtenant: CELL THERAPEUTICS, INC.
By: /s/ XXXXX XXXXXX
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Its: President and CEO
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ACKNOWLEDGEMENT OF LANDLORD
STATE OF WASHINGTON )
) ss:
COUNTY OF KING )
I certify that I know or have satisfactory evidence that XXXXXXX X.
XXXXXX and XXXXXXX X. XXXXXXX are the persons who appeared before me, and said
persons acknowledged that they signed this instrument, on oath stated that they
were authorized to execute this instrument and acknowledged it as the Managing
Member on behalf of CHERLIN LLC and KMC-ONE LLC and Member of 401 XXXXXXX XXXX
LLC to be the free and voluntary act of such party for the uses and purposes
mentioned in this instrument.
DATED: 4/27/01.
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Print Name: Xxxxxx X. Xxxxxxxx
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NOTARY PUBLIC in and for the State of
Washington, residing at Makilteo
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My Appointment expires: 7/9/04
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ACKNOWLEDGEMENT OF TENANT
STATE OF WASHINGTON )
) ss:
COUNTY OF KING )
On this 18th day of April, 2001, before me personally appeared Xxxxxx
Xxxxxxxxxxx, to me known to be the SVP & CFO of F5 NETWORKS, INC., the
corporation that executed the within and foregoing Sublease Agreement and
acknowledged the said instrument to be the free and voluntary act of said
corporation, for the uses and purposes therein mentioned, and on oath stated
that they were authorized to execute said instrument and that the seal affixed
is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year fist above written.
/s/ XXXXXX X. XXXXXXX
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NOTARY PUBLIC in and for the State of
Washington, residing at Snohomish Co.
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My Appointment expires: 6/1/02
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Print Name Xxxxxx X. Xxxxxxx
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ACKNOWLEDGEMENT OF SUBTENANT
STATE OF WASHINGTON )
) ss:
COUNTY OF KING )
On this 19th day of April, 2000, before me personally appeared Xxxxx
Xxxxxx, to me known to be the President & CEO of CELL THERAPEUTIC, INC., the
corporation that executed the within and foregoing ___________________ and
acknowledged the said instrument to be the free and voluntary act of said
corporation, for the uses and purposes therein mentioned, and on oath stated
that they were authorized to execute said instrument and that the seal affixed
is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year fist above written.
/s/ XXXXX X. XXXXXXX
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NOTARY PUBLIC in and for the State of
Washington, residing at Vashon
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My Appointment expires: 3/29/04
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Print Name Xxxxx X. Xxxxxxx
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EXHIBIT A
MASTER LEASE
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EXHIBIT B
SUBLEASE AGREEMENT
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EXHIBIT C
LETTER OF CREDIT RIGHTS AND CRITERIA
A. AMOUNT OF LETTER OF CREDIT. Landlord and Subtenant acknowledge and
agree that in accordance with Section 13 of the Landlord's Consent, (i)
Subtenant shall cause a Letter of Credit in the amount determined pursuant to
Section 13 of the Landlord's Consent, to be issued by the L/C Bank in favor of
Landlord, and its successors, assigns and transferees; (ii) Subtenant will cause
the Letter of Credit to remain in full force and effect during the entire Term
of the Sublease and any Direct Lease and thereafter until the earlier of the
date Landlord acknowledges Subtenant has completed all restoration obligations
under the lease or 60 days after expiration or earlier termination of the Lease;
and (iii) the initial Letter of Credit will be delivered to Landlord prior to
Subtenant commencing any alterations on the Premises that will be required to be
removed pursuant to Section 13 (and will be adjusted in amount if additional
alterations are thereafter constructed that must be removed). The specific
requirements for the Letter of Credit and the rights of Landlord to make draws
thereon will be as set forth in Section 13 of the Landlord's Consent and this
Exhibit C.
B. PAYMENT AND HOLDING OF DRAW PROCEEDS. Immediately upon, and at any
time or from time to time after, the occurrence of any one or more Draw Events,
Landlord will have the unconditional right to draw on the Letter of Credit, in
the full amount thereof or in any lesser amount or amounts as Landlord may
determine, in its sole and absolute discretion, in accordance with Section 13 of
the Landlord's Consent and this Exhibit C. Upon the payment of Landlord of the
Draw Proceeds, Landlord will hold the Draw Proceeds in its own name and for its
own account, without liability for interest, and as security for the performance
by Subtenant of Subtenant's covenants and obligations (theretofore or thereafter
arising) under Section 13 of the Landlord's Consent and this Exhibit C, and will
be entitled to use and apply any and all of the Draw Proceeds from time to time
solely to compensate Landlord hereunder. Among other things, it is expressly
understood that the Draw Proceeds will not be considered an advance payment of
Base Rent or Additional Rent or a measure of Landlord's damages resulting from
any event of default under the Master Lease or this Sublease (past, present or
future). Further, immediately upon the occurrence of any one or more Draw
Events, Landlord may, from time to time and without prejudice to any other
remedy, use the Draw Proceeds (whether from a contemporaneous or prior draw on
the Letter of Credit) to the extent necessary to pay to Landlord any and all
amounts to which Landlord is entitled in connection with the pursuit of any one
or more of its remedies hereunder, and to compensate Landlord for any and all
other damage, injury, expense or liability caused to Landlord by any and all
such Events of Default. Any delays in Landlord's draw on the Letter of credit or
in landlord's use of the Draw Proceeds as provided in Section 13 of the
Landlord's Consent and this Exhibit C will not constitute a waiver by Landlord
of any of its rights hereunder with respect to the Letter of Credit or the Draw
Proceeds. Following any such application of the Draw Proceeds, Subtenant will
either pay to Landlord on demand the cash amount so applied in order to restore
the Draw Proceeds to the full amount thereof immediately prior to such
application or cause the Letter of Credit to be replenished to its full amount
thereunder. Landlord will not be liable for any indirect, consequential, special
or punitive damages incurred by Subtenant arising from a claim that Landlord
violated the bankruptcy code's automatic stay in connection with any draw by
Landlord of any Draw Proceeds, Landlord's liability under such circumstances
being limited to the reimbursement of direct costs as and to the extent
expressly provided in Section 13 of the Landlord's Consent and this Exhibit C.
Nothing in this Landlord's Consent or in the Letter of Credit will confer upon
Subtenant any property rights or interests in any Draw Proceeds; provided,
however, that upon the expiration or earlier termination of the Lease, and so
long as there then exist no Draw Events hereunder, Landlord agrees to return any
remaining unapplied balance of the Draw Proceeds then held by Landlord, and the
Letter of Credit itself (if and to the extent not previously drawn in full) to
the L/C Bank.
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C. TRANSFERABILITY. If Landlord transfers its interest in the Premises,
or any portion thereof, during the Term, Landlord may transfer the Letter of
Credit and any and all Draw Proceeds then held by Landlord to the transferee and
thereafter will have no further liability with respect to the Letter of Credit
or the Draw Proceeds, including, without limitation, any liability for the
return of the Letter of Credit. Subtenant is responsible for any and all fees or
costs (whether payable to the L/C Bank or otherwise) in order to effect such
transfer of the Letter of Credit.
D. APPLICABLE DEFINITIONS.
"DRAW EVENT" means each of the following events:
(a) the occurrence of any one or more of the following: (i) Subtenant's
filing of a petition under any chapter of the Bankruptcy Code, or under
any federal, state or foreign bankruptcy or insolvency statute now
existing or hereafter enacted, or Subtenant's making a general
assignment or general arrangement for the benefit of creditors, (ii) the
filing of an involuntary petition under any chapter of the Bankruptcy
Code, or under any federal, state or foreign bankruptcy or insolvency
statute now existing or hereafter enacted, or the filing of a petition
for adjudication of bankruptcy or for reorganization or rearrangement,
by or against Subtenant (or its guarantor hereunder) and such filing not
being dismissed within 60 days, (iii) the entry of an order for relief
under any chapter of the Bankruptcy Code, or under any federal, state or
foreign bankruptcy or insolvency statute now existing or hereafter
enacted, (iv) the appointment of a "custodian," as such term is defined
in the Bankruptcy Code (or of an equivalent thereto under any federal,
state or foreign bankruptcy or insolvency statute now existing or
hereafter enacted), for Subtenant, or the appointment of a trustee or
receiver to take possession of substantially all of Subtenant's assets
located at the Premises or of Subtenant's interest in the Sublease and
possession not being restored to Subtenant within 60 days, or (v) the
subjection of all or substantially all of Subtenant's assets located at
the Premises or of Subtenant's interest in the Sublease to attachment,
execution or other judicial seizure and such subjection not being
discharged within 60 days; or
(b) the failure of Subtenant, not less than 30 days prior to the stated
expiration date of the Letter of Credit then in effect, to cause an
extension, renewal or replacement issuance of the Letter of Credit, at
the reduced amount, if any, applicable under Section 13 of the Landlord
Consent, to be effected, which extension, renewal or replacement
issuance will be made by the L/C Bank, and will otherwise meet all of
the requirements of the initial Letter of Credit hereunder, which
failure will be a Draw Event under Section 13 of the Landlord's Consent
and this Exhibit C; or
(c) The failure of Subtenant to fulfill those restoration obligations
under Section 26 of the Master Lease which are applicable to the
Subleased Premises and Section 13 of the Landlord's Consent to which
this is attached.
"DRAW PROCEEDS" means the proceeds of any draw or draws made by Landlord under
the Letter of Credit, together with any and all interest accruing thereon.
"L/C BANK" means any United States bank which is approved by Landlord in
Landlord's discretion.
"LETTER OF CREDIT" means that certain one-year irrevocable letter of credit, in
the amount set forth in Section 13 of the Landlord's Consent, issued by the L/C
Bank, as required under Section 13 of the Landlord's Consent and, if applicable,
as extended, renewed, replaced or modified from time to time in accordance with
Section 13 of the Landlord's Consent and this Exhibit C, which letter of credit
will be in substantially the same form as attached hereto.
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SUBLEASE AGREEMENT
This Sublease Agreement ("Sublease") dated for reference purposes March
30, 2001, and is made between F5 Networks, Inc., a Washington corporation
("Sublandlord"), and Cell Therapeutics, Inc., a Washington corporation
("Subtenant"). This Sublease shall be effective on the date (the "Effective
Date") that it is signed by Sublandlord and Subtenant, and Master Landlord has
consented to this Sublease as provided in Section 14 below.
RECITALS
A. Pursuant to the Amended and Restated Office Lease Agreement dated
April 3, 2000, between 401 Xxxxxxx Xxxx L.L.C., a Washington limited liability
corporation, as landlord ("Master Landlord"), and Sublandlord as tenant
(together with all modifications, amendments, riders and exhibits thereto, the
"Master Lease"), a copy of which is attached hereto as Exhibit A, Master
Landlord leased to Sublandlord 110,111 rentable square feet of space in Building
Three (as defined in the Master Lease) located at 000 Xxxxxxx Xxxxxx Xxxx in
Seattle, Washington (the "Building"), which comprises all of the rentable area
in the Building.
B. Sublandlord wishes to sublease the entire Building to Subtenant, with
the sublease term for different portions of the Subleased Premises to start on
different dates, on the terms and conditions provided below.
C. Unless otherwise provided herein, all capitalized terms shall have
the meaning set forth in the Master Lease.
NOW, THEREFORE, in consideration of the above Recitals which are
incorporated by this reference, the mutual covenants contained in this Sublease,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, Sublandlord and Subtenant hereby
agree as follows:
AGREEMENT
1. SUBLEASE
Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases
from Sublandlord the entire Building (the "Subleased Premises"), for the Term
(as defined in Section 2 below), at the rental, and upon all of the terms and
conditions set forth, together with the right to use, in common with others
entitled thereto, the Common Areas (as defined in the Master Lease). The
Subleased Premises are comprised of the following areas on different floors in
the Building (each, an "Area"): 19,333 rentable square feet on the first floor
described as "Area 1A;" 4,442 rentable square feet on the first floor of the
Building described as "Area 1B;" 14,666 rentable square feet on the second floor
described as "Area 2A;" 14,188 rentable square feet on the second floor
described as "Area 2B;" 28,741 rentable square feet on the third floor described
as "Area 3;" and 28,741 rentable square feet on the fourth floor described as
"Area 4." Sublandlord shall deliver to Subtenant possession of the Subleased
Premises in their "AS IS"
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condition. The Subleased Premises are more particularly shown on Exhibit "C"
attached hereto and incorporated by this reference.
2. TERM
The term of this Sublease (the "Term") shall commence on the following
dates (each, a "Commencement Date") for each Area: (i) the Effective Date for
Areas 1B, 2B, 3 and 4; (ii) February 1, 2002 for Area 1A; and (iii) for Xxxx 0X,
the date Sublandlord has for any reason recovered possession of that Area from
NeoRx Corporation, Inc., a Washington corporation ("NeoRx"). Sublandlord shall
deliver notice of termination to NeoRx within five (5) business days after
Sublandlord receives written notice from Subtenant stating that Subtenant wishes
for Sublandlord to terminate NeoRx's tenancy. Subtenant acknowledges that
Sublandlord must give NeoRx written notice nine (9) months prior to the
effective termination date, and that Sublandlord may not require that the
termination date be sooner than November 1, 2002. Sublandlord shall use
commercially reasonable efforts to regain possession of Area 2A in a timely
manner after delivering a notice of termination to NeoRx. Notwithstanding the
foregoing, Subtenant's obligation to pay Base Rent and Additional Rent for Areas
1B, 2B, 3 and 4 shall be calculated from April 6, 2001 (which shall be the "Rent
Commencement Date" for those Areas). The Rent Commencement Dates for Areas 1A
and 2A shall be the same as the Commencement Dates for those Areas.
Sublandlord and Subtenant hereby acknowledge and agree that Area 3 is
currently subleased by Subtenant from Sublandlord pursuant to that certain
Sublease dated December 4, 2000 (the "Prior Sublease"). Sublandlord and
Subtenant agree that on the Effective Date hereto the Prior Sublease shall
terminate and the parties shall have no further rights or obligations
thereunder. The Term for the entire Subleased Premises shall expire on July 31,
2012 (the "Expiration Date").
If for any reason Sublandlord does not deliver to Subtenant possession
of Areas 1A or 2A on the Commencement Date for those Areas, then Base Rent and
Operating Expenses, as defined in Section 3, for those Areas shall xxxxx on a
per diem basis until delivery of possession as required herein. In the event
Sublandlord does not deliver possession of any Area within sixty (60) days of
the respective Commencement Date for that Area, then Subtenant shall have the
right to terminate this Sublease with respect to the subject Area by providing
written notice of such election to terminate to Sublandlord or Subtenant may
specifically enforce Sublandlord's obligations to deliver possession of that
Area. The Expiration Date shall not be extended due to any delay in the
Commencement Dates for any of the Areas.
Upon the execution of this Sublease by Sublandlord and Subtenant,
Subtenant shall have the right to enter the Sublease Premises to begin planning
and design work for the alterations contemplated by Section 10 below. Subtenant
shall indemnify, defend and hold Sublandlord harmless from any liability or
damages that arises from such early entry. This indemnification and defense
obligation shall survive termination of this Sublease.
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3. BASE RENT AND OPERATING EXPENSES
3.1 BASE RENT
Subtenant shall pay to Sublandlord monthly installments of Base Rent (as
that term is defined below) on or before the first day of each calendar month
during the Term at Sublandlord's address stated in Section 14. The monthly
installments of Base Rent shall be prorated on a per diem basis for the first or
last month of the Term if the Rent Commencement Date for any Area or the
Expiration Date is not the first day or last day of a calendar month. Subtenant
shall pay to Sublandlord within one (1) business day after the Effective Date.
a) Area 1A and 1B. The annualized Base Rent for Area 1A and Area
1B on the first floor of the Building shall be $26.50 per rentable square foot
for the period from the Commencement Date for each Area through December 31,
2003. On January 1, 2004, the annualized Base Rent for Areas 1A and 1B shall be
$27.50 per rentable square foot, and the annualized Base Rent for those Areas
shall increase on January 1 of each subsequent year during the Term by $1.00 per
rentable square foot.
b) Area 2A, 2B, 3 and 4. The annualized Base Rent for Areas 2A,
2B, 3 and 4, on the second, third and fourth floors respectively, of the
Building shall be $28.00 per rentable square foot for the period from the
Commencement Date for each Area through December 31, 2003. On January 1, 2004,
the annualized Base Rent for Areas 2A, 2B, 3 and 4 shall be $29.00 per rentable
square foot, and shall increase on January 1 of each subsequent year during the
Term at the rate of $1.00 per rentable square foot.
3.2 OPERATING EXPENSES
Subtenant shall pay to Sublandlord as Additional Rent its
proportionate share of all Expenses, as defined in Section 4(c) of the Master
Lease, including all increases in Expenses during the Term of this Sublease.
Subtenant's proportionate share of Expenses will be calculated from the Rent
Commencement Dates for each Area, and the first monthly installment shall be due
within one (1) business day after the Effective Date. Subtenant's proportionate
share of Expenses separately allocated to the Building shall be calculated by
dividing the agreed area of the portion of the Subleased Premises possession of
which has been delivered to Subtenant pursuant to Paragraph 2 above by the total
area of the Building, which is deemed to be 110,111 rentable square feet.
Subtenant's proportionate share will change during the Term as the agreed area
of the Subleased Premises increases. For example, prior to the Effective Date,
the Subleased Premises will include only Area 3 comprising 28,741 rentable
square feet, which results in Subtenant's proportionate share of 26.10%. On the
Effective Date, the Subleased Premises will likely include Areas 1B, 2B, 3, and
4 comprising 76,112 rentable square feet, which results in Subtenant's
proportionate share of 69.12%. On February 1, 2002, Area 1A will be included in
the Subleased Premises, which will increase the agreed area of the Subleased
Premises to 95,445 rentable square feet, resulting in Subtenant's proportionate
share of 86.68%. Finally, upon the addition of Area 2A, Subtenant's
proportionate share will be 100%.
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Sublandlord shall continue to pay all Expenses separately
allocated to portions of the Premises (as defined in the Master Lease)
possession of which has not been delivered to Subtenant pursuant to Paragraph 2
above. If any Expenses that are attributable to the occupancy of the remainder
of the Premises leased by Sublandlord under the Master Lease and Building 3 and
are not separately stated, then Subtenant's proportionate share shall be
calculated by dividing the agreed area of the portion of the Subleased Premises
possession of which has been delivered to Subtenant pursuant to Paragraph 2
above, by the combined areas of the remainder of the Premises leased by
Sublandlord under the Master Lease. The area of Building 2 shall be deemed to be
85,446 rentable square feet as provided in the Master Lease. Subtenant's
proportionate share of Expenses attributable to the entire Project (as defined
in the Master Lease), shall be calculated by dividing the portion of the
Subleased Premises possession of which has been delivered to Subtenant pursuant
to Paragraph 2 above, by the Project Area, which is deemed to be 299,643
rentable square feet, as provided in the Master Lease.
4. SIGNAGE
Subtenant shall be permitted to exercise and utilize all signage rights
granted to Sublandlord pursuant to Section 37 of the Master Lease with respect
to the Subleased Premises, subject to all the same approvals, conditions, rules,
regulations, and restrictions as set forth in the Master Lease. Sublandlord will
not unreasonably withhold its consent to any signage requested by Subtenant and
shall use reasonable efforts and diligence in submitting Subtenant's requests
for signage to Master Landlord for approval.
5. DIRECT LEASE WITH MASTER LANDLORD UPON THE EXPIRATION OF THE TERM
Subtenant acknowledges that Sublandlord has the option to extend the
term of the Master Lease for two additional terms of five (5) years each (the
"Renewal Options"), the Renewal Options are not assignable, and Sublandlord is
currently not willing to extend the term of the Master Lease. Sublandlord hereby
relinquishes its right to exercise the Renewal Options, and agrees that
Subtenant may enter into a direct lease with Master Landlord at the end of the
Term. Provided, however, the foregoing relinquishment shall be deemed void and
Sublandlord shall again have the right to exercise the Renewal Options without
the need for any further action by either party upon the termination of this
Sublease (other than by expiration on the Expiration Date) for any reason other
than a material default by Sublandlord which is not cured within any applicable
cure period. Sublandlord agrees that in the event Subtenant exercises its option
to enter into a direct lease with Master Landlord for the Subleased Premises as
more particularly provided in the Master Landlord Consent: (i) Sublandlord shall
not be permitted to exercise the Renewal Options, and (ii) the Master Lease with
respect to the Subleased Premises shall terminate on the expiration of the
initial Lease Term under the Master Lease.
6. PARKING
Subtenant shall be permitted to exercise all parking rights to
Sublandlord with respect to the Subleased Premises pursuant to Section 11 and 41
of the Master Lease with regard to those Areas of the Subleased Premises for
which the Term has commenced, which is 1.9 stalls per 1,000 rentable square
feet, throughout the Term of the Sublease on an unreserved basis in the
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Building parking garage. Subtenant's parking rights shall increase as the Term
commences for additional Areas. Subtenant shall pay to Sublandlord rent for the
stalls in the same manner and in the same amount as charged to Sublandlord under
the Master Lease. If the Master Lease provides for direct payment of parking
rent to a parking garage operator, then Subtenant shall pay rent for those
stalls directly to that operator.
7. SECURITY DEPOSIT
Within one (1) business day after the Effective Date, Subtenant shall
deposit with Sublandlord an irrevocable, unconditional standby letter of credit
issued by a financial institution reasonably acceptable to Sublandlord, in
substantially the form attached to this Sublease (the "Letter of Credit") in an
amount equal to Two Million Dollars ($2,000,000) as security for Subtenant's
faithful performance of Subtenant's obligations hereunder ("Security Deposit").
If Subtenant fails to pay rent or other charges when due under this Sublease
beyond any applicable notice and cure period, or fails to perform any of its
obligations hereunder beyond any applicable notice and cure period, Sublandlord
may use or apply all or any portion of the Security Deposit for the payment of
any rent or other amount then due hereunder and unpaid, for the payment of any
other sum for which Sublandlord may become obligated pursuant to this Sublease
by reason of Subtenant's default or breach, or for any loss or damage sustained
by Sublandlord as a result of Subtenant's default or breach pursuant to this
Sublease. Upon demand following application of the Security Deposit pursuant to
this Section 7, Subtenant shall immediately restore the Security Deposit to its
full amount. Concurrently with Subtenant's delivery of the Letter of Credit,
Sublandlord shall return to Subtenant the security deposit that it holds under
Prior Sublease in the amount of $131,729.58. Any portion of the Security Deposit
not applied pursuant to this Section 7 and remaining at the expiration of this
Sublease shall be returned to Subtenant within twenty (20) days of the
expiration of the Term.
8. USE OF SUBLEASED PREMISES
Sublandlord and Subtenant agree and acknowledge that Subtenant will use
the Subleased Premises for laboratory purposes and that such laboratory uses are
not currently permitted under the Master Lease. Sublandlord and Subtenant agree
that it shall be a condition to the effectiveness of this Sublease pursuant to
Section 13 below that Master Landlord agree in the Master Landlord Consent that
Laboratory use be included as a permitted use under the Master Lease. For
purposes of this Sublease and the Master Lease, "Laboratory Use" shall be deemed
to include the installation, operation, and maintenance of the following:
X-0 Xxxx
X-0 is a Uniform Fire Code (UFC) classification for a particular room or
building that allows the dispensing and storage of flammable and other
hazardous materials. The design and construction requirements for an H-2
room are described in the Uniform Building Code (UBC) and the UFC. H-2
rooms often have requirements such as dikes or berms to trap firewater
and contain spills, increased ventilation requirements, and explosion
proof lighting and electrical systems;
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Hydrogenation Facility
Use of hydrogen gas in synthetic organic chemistry is common in the
biotech and pharmaceutical industries. Hydrogen gas (H2) is a flammable
gas and can reach explosive mixtures in air, thus use of H2 is heavily
regulated by the UFC and industry. The hydrogenation facility would
likely include explosion proof lighting and electrical systems, blowout
panels if required, dikes and berms to trap firewater and spills.
NMR Facility
Nuclear Magnetic Resonance (NMR) is the research version of the Magnetic
Resonance Imaging (MRI). An NMR facility sometimes involves concrete
walls and additional floor stabilization; however, with modern advances
in vibration dampening and reduction in magnetic fields, this is not
expected.
Synthetic Chemistry Facilities
Synthetic chemistry and process development laboratories will likely
have a large number of walk-in and bench chemical fume hoods. The fume
hoods necessitate additional ducting, gas distribution manifolds and
plumbing, and chemical storage capability.
Animal Facility
Animal facilities are likely to include specialized washing, sanitation,
and sterilization equipment, a separate HVAC system, and additional
security measures. Walls, ceilings and floors will be sealed, and
electrical systems will likely be required to meet electric code
requirements for wet environments.
9. ASSIGNMENT AND SUBLEASE
9.1 Subtenant shall have a continuing right to assign or sublease all or
a portion of the Subleased Premises, subject to prior approval of Sublandlord
and Master Landlord, which approvals shall not be unreasonably withheld,
conditioned or delayed. Subtenant shall provide written notice to Sublandlord as
to the amount of space Subtenant elects to sublease or assign, and when
Subtenant is prepared to sublease or assign such space. Sublandlord shall have
the right to terminate this Sublease ("Recapture") in the event Sublandlord's
consent is required and Subtenant proposes to assign this Sublease to an entity
other than an Affiliate (as defined below). In addition, Sublandlord shall have
the right to Recapture that portion of the Subleased Premises which Subtenant
proposed to sublease to an entity which is not an Affiliate in the following
circumstances: (i) the portion of the Subleased Premises which Subtenant has
elected to sublease includes 10,000 rentable square feet or more of office space
(as opposed to lab space); or (ii) the term for such sublease is more than 50
percent of the remainder of the Term. Sublandlord shall respond within ten (10)
days of receiving such written notice from Subtenant of Sublandlord's decision
to approve or disapprove of the subletting or assignment pursuant to this
Section 9. If
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Sublandlord does not respond within such ten-day period, the non-response shall
be deemed an election of Sublandlord not to Recapture the space (if applicable)
and to approve such assignment or sublease and Subtenant shall have the right to
proceed with the proposed subleasing or assignment subject to any approval of
the Master Landlord required under the Master Lease. An Affiliate shall mean any
entity or foundation which has a substantial and continuing business or
philanthropic relationship with Subtenant, and may include, research partners,
non-profit corporations, and joint venture partners.
9.2 Notwithstanding the foregoing to the contrary, Sublandlord's consent
shall not be required for any assignment or subletting for which the Master
Landlord's consent is not required under the Master Lease.
10. ALTERATIONS
Notwithstanding anything in this Sublease or the Master Lease to the
contrary, Sublandlord agrees that Subtenant shall only be required to obtain
Master Landlord's consent to any alterations or improvements to the Subleased
Premises pursuant to Section 14 of the Master Lease and shall not be required to
obtain Sublandlord's consent to any such alterations or improvements, provided
that Subtenant shall provide Sublandlord with copies of all plans and
specifications for any alterations or improvements concurrently with its
delivery of such plans and specifications to Master Landlord for review and
approval.
11. INCORPORATION BY REFERENCE
11.1 SUBJECT TO LEASE
Subject to Section 11.2 below, this Sublease is subject to all
of the terms and condition of the Master Lease by and between Sublandlord and
Master Landlord. Subtenant shall obtain insurance for the Subleased Premises and
name Sublandlord as an additional insured in the policy.
11.2 INTERPRETATION
The terms, conditions and respective obligations of Sublandlord
and Subtenant to each other under this Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master Lease
which are directly contradicted by this Sublease, in which event the terms of
this Sublease shall control over the Master Lease, and except for the following
sections of the Master Lease which shall not apply to the Sublease: Sections
1(a) through 1(j), 1(l) through 1(n), 1(p) through 1(r), 3, 5, 6, 29 through 35,
and 41 (regarding the Building Two reserved parking, provided Subtenant shall
have the right to use the Building 3 reserved parking pursuant to Paragraph 6
above), and Exhibits A (pages 1 through 4), C, F and H. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Landlord" is
used it shall be deemed to mean the Sublandlord herein and wherever in the
Master Lease the word "Tenant" is used it shall be deemed to mean the Subtenant
herein.
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Except as provided herein, Subtenant assumes and agrees to
perform Sublandlord's obligations under the Master Lease during the Term to the
extent that such obligations are applicable to the Subleased Premises, except
that the obligation to pay Rent and Expenses to Master Landlord under the Master
Lease shall be considered performed by Subtenant to the extent and in the amount
rent is paid to Sublandlord in accordance with Section 3 of this Sublease.
Subtenant shall not commit or suffer any act or omission that will violate any
of the provisions of the Master Lease. Sublandlord will exercise reasonable and
good faith efforts in attempting to cause Master Landlord to perform its
obligations under the Master Lease for the benefit of Subtenant.
In the event of termination of the Master Lease, the Subtenant's
rights and obligations for the Subleased Premises shall survive such termination
and remain in full force and effect unless or until the Master Landlord and
Subtenant alter the rights and obligations between them in writing; provided,
however, if the Master Lease terminates as a result of the default or breach by
Sublandlord or Subtenant under this Sublease, then the defaulting party shall be
liable to the non-defaulting party for the damage suffered as a result of such
termination. Sublandlord shall not make any election pursuant to Sections 17 or
18 of the Master Lease with respect to the Subleased Premises without
Subtenant's prior written approval, which approval shall not be unreasonably
withheld, conditioned, or delayed.
12. SUBLANDLORD'S REPRESENTATIONS AND WARRANTIES
Sublandlord represents and warrants to Subtenant as follows:
12.1 The Master Lease is in full force and effect and has not been
modified, supplemented or amended.
12.2 Sublandlord has the right to complete possession of the Master
Premises subject to the Sublease to NeoRx of Area 2A.
12.3 Sublandlord has fulfilled all its duties under the Master Lease and
is not in default under the Master Lease and shall not commit or suffer any act
or omission that will result in a violation of or a default under any of the
provisions of the Master Lease and/or the Sublease.
12.4 To the best of Sublandlord's knowledge Master Landlord has
fulfilled all its duties under the Master Lease and is not in default under the
Master Lease.
12.5 Sublandlord has not assigned, transferred or delegated any of its
right or duties under the Master Lease or pledged or encumbered any of its
interest in, or right under the Master Lease.
12.6 Sublandlord has all right, power and authority necessary to enter
into and deliver this Sublease and to perform its obligations hereunder.
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12.7 To the best of Sublandlord's knowledge there has been no Hazardous
Materials used, disposed or stored on, in or around the Subleased Premises in
violation of the Master Lease.
13. COVENANTS REGARDING LEASE
13.1 Sublandlord shall not commit or suffer any act or omission that
will result in a violation of or a default under any of the provisions of the
Sublease.
13.2 Sublandlord shall exercise commercially reasonable good faith
efforts in attempting to cause Master Landlord to perform its obligations and
give any required consents under the Master Lease for the benefit of Subtenant.
13.3 Sublandlord covenants as follows: (i) not to voluntarily terminate
the Master Lease, (ii) not to modify the Master Lease so as to adversely affect
Subtenant's rights hereunder, and (iii) to take all actions reasonably necessary
to preserve the Master Lease; provided, however, Sublandlord may modify the
Master Lease or terminate the Master Lease with respect to portions of the
Premises other than the Subleased Premises, so long as such modification or
termination does not adversely effect Subtenant's rights under this Sublease or
the Landlord Consent (for example if this Sublease was replaced with a direct
lease from the Master Landlord on the same terms).
13.4 Sublandlord agrees to deliver to Subtenant a copy of any notice
received from Master Landlord relating to the Premises, Subleased Premises, or
any right or obligation of Subtenant within two (2) business days of its receipt
thereof.
13.5 In the event that Sublandlord defaults under its obligations to be
performed under the Master Lease, Subtenant shall have the right among other
remedies to cure the default before the date Sublandlord's applicable cure
period expires under the Master Lease. If such default is cured by Subtenant,
Sublandlord shall reimburse Subtenant for such amounts within ten (10) days
after notice and demand therefore from Subtenant, together with interest at the
interest rate specified in the Master Lease. If Sublandlord fails to reimburse
Subtenant within such ten (10) day period, Subtenant may deduct such amounts
from subsequent installments of rent due to Sublandlord under this Sublease.
13.6 Sublandlord shall not voluntarily terminate the Master Lease
without Subtenant's prior written consent, which shall not be unreasonably
withheld, conditioned, or delayed.
13.7 Sublandlord shall not amend or make any election under the Master
Lease that would adversely affect the Subleased Premises or Subtenant's rights
or obligations under this Sublease without Subtenant's prior written consent,
which shall not be unreasonably withheld, conditioned, or delayed.
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14. CONDITIONS PRECEDENT
This Sublease is conditioned upon Master Landlord consenting to this
Sublease pursuant to a Master Landlord Consent (the "Master Landlord Consent")
in form reasonably acceptable to Subtenant and Sublandlord. The Master Landlord
Consent shall contain, among other things Master Landlord's agreement to: (i)
enter into a direct lease with Subtenant for the Subleased Premises upon on
terms and conditions consistent with the Master Lease if the Master Lease is
terminated for any reason, the bankruptcy or other assignment for the benefit of
creditors by Sublandlord, or upon the expiration of the initial Lease Term under
the Master Lease; (ii) permit Sublandlord and Subtenant to use the Subleased
Premises for Laboratory Uses; (iii) allow Subtenant to install signage on the
exterior of the Building pursuant to Section 37 of the Master Lease, and (iv)
not unreasonably withhold, condition, or delay its consent to Subtenant making
those alterations and improvements necessary to allow the Subleased Premises to
be used for Laboratory Use. If Master Landlord has not consented to this
Sublease within thirty (30) days after this Sublease has been signed by
Sublandlord and Subtenant, then either party may terminate this Sublease by
delivering written notice of termination to the other party.
15. INDEMNIFICATION
15.1 SUBTENANT'S INDEMNIFICATION
Subtenant shall indemnify, defend and hold harmless Sublandlord
from and against all losses, costs, damages, expenses and liabilities,
including, without limitation, reasonable attorneys' fees and disbursements,
which Sublandlord may incur or pay out (including, without limitation, to Master
Landlord) by reason of (a) any accidents, damages or injuries to persons or
property occurring in, on or about the Subleased Premises (unless the same shall
have been caused by Sublandlord's negligence or wrongful act or the negligence
or wrongful act of Master Landlord), (b) any breach or default hereunder on
Subtenant's part, (c) the successful enforcement of Sublandlord's rights under
this Section or any other Section of this Sublease, (d) any work done after the
date hereof in or to the Subleased Premises except if done by Sublandlord or
Master Landlord, or (e) any act, omission or negligence on the part of Subtenant
and/or its officers, partners, employees, agents, customers and/or invitees, or
any person claiming through or under Subtenant.
15.2 SUBLANDLORD'S INDEMNIFICATION
Sublandlord shall indemnify, defend and hold harmless Subtenant
from and against all losses, costs, damages, expenses and liabilities,
including, without limitation, reasonable attorneys' fees and disbursements,
which Subtenant may incur or pay out (including, without limitation, to Master
Landlord) by reason of (a) any accidents, damages or injuries to persons or
property occurring in, on or about any portion of the Master Premises other than
the Subleased Premises (unless the same shall have been caused by Subtenant's
negligence or wrongful act), (b) any breach or default hereunder or under the
Master Lease on Sublandlord's part, or (c) any act, omission or negligence on
the part of Sublandlord and/or its officers, partners, employees, agents,
customers and/or invitees, or any person claiming through or under Sublandlord.
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16. NOTICES
All notices and demands that may or are to be required or permitted are
to be given by either party on the other hereunder shall be in writing. All
notices and demands by Master Landlord, Sublandlord to Subtenant shall be
personally delivered or sent by a nationally recognized private carrier of
overnight mail (e.g. FedEx) or by United States Certified Mail, return receipt
requested and postage prepaid, to the parties at the addresses listed below or
at such other addresses as the parties may designate by notice from time to
time.
To Sublandlord: F5 Networks, Inc
000 Xxxxxxx Xxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, General
Counsel
To Subtenant: Cell Therapeutics, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Dr. Xxxxx Xxxxxx
cc: Legal Affairs
17. QUIET ENJOYMENT
Provided that Subtenant is not in default of any term or provision of
the Master Lease or this Sublease beyond any applicable notice and cure period
therein, Subtenant shall have peaceful and quiet enjoyment of the Subleased
Premises without interference from Sublandlord or any person or entity claiming
by, through or under Sublandlord.
18. SURRENDER
At the end of the Term, Sublessee shall surrender all keys to the
Subleased Premises to Sublandlord and Subtenant shall deliver the Subleased
Premises in the condition required under the Master Lease and Master Landlord
Consent and shall be permitted to remove all of its furniture, furnishings,
personal property, trade fixtures and the "Equipment" listed on Exhibit B
attached hereto and incorporated herein, which are made by Subtenant in the
Subleased Premises, and shall repair all damage caused by such removal,
reasonable wear and tear, casualty and condemnation excepted. Subtenant's
obligations under this Section 18 shall survive the expiration or earlier
termination of this Sublease. Except as otherwise provided herein, any items
remaining in the Subleased Premises on the Expiration Date shall be deemed
abandoned for all purposes. Sublandlord may dispose of the same without
liability of any nature and at the expense of Subtenant.
19. LIMITATIONS
Notwithstanding anything to the contrary in this Sublease, the only
services or rights to which Subtenant is entitled hereunder are those to which
Sublandlord is entitled under the Master
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Lease. Subtenant will look to Master Landlord for all such services and rights.
Sublandlord will cooperate with Subtenant as reasonably requested by Subtenant
to assist Subtenant in obtaining services and rights from Master Landlord.
20. INSURANCE
Prior to the Commencement Date for each Area which comprises the
Subleased Premises, Subtenant shall provide Sublessor with evidence that it has
obtained the insurance required by Section 16 of the Master Lease. Such
insurance shall name Sublandlord, Master Landlord and Master Landlord's
management contractor as additional insureds.
21. ATTORNEY'S FEES
If Sublandlord or Subtenant shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing party shall
be entitled to recover its costs of suit and reasonable attorney's fees.
22. ENTIRE AGREEMENT
This Sublease, the Exhibits attached hereto and the Master Lease, which
is incorporated herein by reference, constitute the entire agreement between
Sublandlord and Subtenant with respect to the Subleased Premises and may not be
amended or altered except by written agreement executed by both parties.
23. BROKERAGE COMMISSIONS
Subtenant hereby provides notice it is represented by Colliers
International. Sublandlord hereby provides notice it is represented by
Washington Partners, Inc. Sublandlord agrees to pay and be solely responsible
for a commission equal to $5.00 per rentable square foot subleased to Colliers
International for its role in this transaction, less the commission paid to
Colliers International as a result of the Prior Sublease to Subtenant.
Sublandlord also agrees to pay Washington Partners a commission equal to
one-half of the commission payable to Colliers International. One-half of the
commissions due Colliers shall be paid within 5 business days following the
mutual execution of the Sublease and approval by Master Landlord. The balance of
the commissions shall be paid within 5 business days after the scheduled
Commencement Dates for each of the areas in proportion to the percentage of the
Building then occupied by Subtenant. Subtenant and Sublandlord acknowledge
receipt of the pamphlet entitled "The Law of Real Estate Agency".
24. BINDING ON SUCCESSORS
This Sublease shall bind the parties' heirs, successors, representatives
and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as
of the day and year first above written.
SUBLANDLORD: F5 Networks, Inc. SUBTENANT: Cell Therapeutics, Inc.
By /s/ XXXXXX X. XXXXXXXXXXX By /s/ XXXXX X. XXXXXX
----------------------------------- ------------------------------------
Name Xxxxxx X. Xxxxxxxxxxx Name Xxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Title SVP - CFO Title E.V.P. Finance & Administration
-------------------------------- ---------------------------------
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STATE OF WASHINGTON )
) Ss.
COUNTY OF KING )
On this 5th day of April 1, 2001, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxxx X. Xxxxxxxxxxx, to me known to be the person who
signed as SVP - CFO of F5 NETWORKS, INC., the corporation that executed the
within and foregoing instrument, and acknowledged said instrument to be the free
and voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that he was duly elected, qualified and acting as
said officer of the corporation, that he was authorized to execute said
instrument and that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
Signature /s/ XXXXXX X. XXXXXXX
-----------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Snohomish County
My appointment expires: 6/1/02
14
28
STATE OF WASHINGTON )
) Ss.
COUNTY OF KING )
On this 3rd day of April, 2001, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxx X. Xxxxxx, to me known to be the person who signed as
EVP, Finance & Admin of CELL THERAPEUTICS, INC., the corporation that executed
the within and foregoing instrument, and acknowledged said instrument to be the
free and voluntary act and deed of said corporation for the uses and purposes
therein mentioned, and on oath stated that he was duly elected, qualified and
acting as said officer of the corporation, that he was authorized to execute
said instrument and that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
Signature /s/ XXXXX X. XXXXXXX
-----------------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Vashon, WA
My appointment expires: 3/29/04
15
29
EXHIBIT A
MASTER LEASE
30
EXHIBIT B
LIST OF EQUIPMENT AND INSTALLATIONS
TO BE REMOVED ON SUBLEASE EXPIRATION
OFFICE MISC
Desks All Telephone equipment
Task chairs Computer network systems
Visitor's side chairs Specialized animal washing,
sanitation equipment
Bookshelves
File cabinets Autoclave boilers
Meeting tables Cable TV and satellite equipment
Computers and related accessories Computer room racking systems
Printers, fax machines, copiers
Credenzas
LABS
Biological safety cabinets
Refrigerators, Refrigerators/freezers, freezers
Centrifuges
Column racks
Compressed gas tanks & manifolds
(excluding piping systems)
31
Computers & associated system equipment
Incubators
Autoclaves
Shakers
Film developer and film processors
"Metro shelving" and benches
All mobile benches, tables, carts, cabinets,
lab chairs, and stools
Scintillation counters
Balances and balance tables
All bench-top lab equipment
Freeze dryers
Laboratory ovens
Microwave ovens
Fluorometer
NMR/compressor
All analytical chemistry equipment
Irradiator (137C3)
Vacuumpump from vacuum system
Laboratory glass cleaning equipment
32
EXHIBIT C
FLOOR PLAN OF SUBLEASED PREMISES
33
FIRST AMENDMENT TO SUBLEASE AGREEMENT
This First Amendment ("Amendment") is dated for reference purposes April
13, 2001, and amends that certain Sublease Agreement dated March 30, 2001 (the
"Sublease") made by and between F5 Networks, Inc., a Washington corporation, as
Sublandlord, and Cell Therapeutics, Inc., a Washington corporation, as
Subtenant. The capitalized terms in this Amendment shall have the meaning given
to those same terms in the Sublease, unless a different meaning has been
provided herein.
NOW, THEREFORE, the parties hereby amend the Sublease as follows:
1. Security Deposit. The Sublease is hereby amended by deleting the
second to the last sentence of Section 7. Sublandlord will apply the balance of
the Subtenant's cash security deposit in the amount of sixty-five thousand eight
hundred sixty-four dollars and seventy-nine cents ($65,874.79) deposited under
the Prior Sublease (as defined in Section 2 of the Sublease) against the Base
Rent due for the first month of the Term.
2. Letter of Credit. The amount of the letter of credit to be posted by
Subtenant pursuant to Section 7 of the Sublease is hereby amended to be six
hundred seventy thousand dollars ($670,000).
3. Use of Subleased Premises. Section 8 of the Sublease is deleted in
its entirety and replaced with the following:
Subtenant may use the Sublease Premises for laboratory uses of the
types generally permitted by institutional landlords of similar
buildings of multi-tenant developments in the Seattle area, provided
that Subtenant shall comply with any special restrictions or
precautions imposed by Master Landlord.
4. Alterations. Section 10 of the Sublease is amended by adding the
following new paragraph at the end of that Section:
Master Landlord may (and is expected to) require Sublandlord to post
or arrange for the posting of a Letter of Credit securing restoration
obligations under the Master Lease if the Subleased Premises are
materially altered from their current improved state and Master
Landlord requires that Sublandlord remove any proposed alterations to
be installed by Subtenant pursuant to the terms of the Master Lease
and the Master Landlord's Consent referenced in Section 14 below (the
"Restoration Deposit"). Subtenant shall post the Restoration Deposit
directly with Master Landlord. Sublandlord shall have no obligation
to post the Restoration Deposit
34
5. Conditions Precedent. Section 14 of the Sublease is hereby deleted in
its entirety and replaced with the following:
This Sublease is conditioned upon Master Landlord consenting to this
Sublease pursuant to the Landlord's Consent to Subleasing attached to
this Amendment as Exhibit B (the "Master Landlord Consent"). If
Master Landlord has not so consented to this Sublease within thirty
(30) days after this Sublease has been signed by Sublandlord and
Subtenant, then either party may terminate this Sublease by
delivering written notice of termination to the other party.
6. Miscellaneous. In the event of any conflict between the terms of this
Amendment and the Sublease, this Amendment shall control. The parties hereby
ratify and confirm their obligations under the Sublease as amended by this
Amendment. This Amendment, the Sublease, the exhibits attached to the Sublease
and this Amendment, and the Master Lease constitute the entire agreement between
Sublandlord and Subtenant with respect to the Subleased Premises, and may not be
amended or altered except by written agreement executed by both parties. This
Amendment may be executed in one or more counterparts; each signed counterpart
shall be deemed an original and all counterparts together shall constitute a
single, integrated agreement. Facsimile transmission of any signed original
document, and retransmission of any signed facsimile transmission, shall be the
same as delivery of an original. At the request of either party, the parties
will confirm facsimile transmitted signatures by signing an original document.
IN WITNESS WHEREOF, the parties hereto hereby execute this Amendment as
of day and year first above written.
SUBLANDLORD: SUBTENANT:
F5 NETWORKS, INC., a CELL THERAPEUTICS, INC., a
Washington corporation Washington corporation
By: /s/ XXXXXX XXXXXXXXXXX By: /s/ XXXXX XXXXXX
---------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxxx Xxxxxx
-------------------------- ----------------------------------
Title: SVP - CFO Title: President & CEO
------------------------- --------------------------------
35
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
DATED APRIL ___, 2001
[FINANCIAL INSTITUTION REASONABLY
ACCEPTABLE TO SUBLANDLORD]
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
DATE: April ___, 2001
BENEFICIARY: 000 Xxxxxxx Xxxx, XXX
_________________________
Xxxxxxx, XX _______
Attn: Xxxxx Xxxxxxx
APPLICANT: Cell Therapeutics, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Dr. Xxxxx Xxxxxx
AMOUNT: USD ________
(__________________ US Dollars)
EXPIRY DATE: April ___, 2002
LOCATION: At our counter in Seattle, WA
Dear Sir:
We hereby establish our irrevocable standby letter of credit No.
____________________ in your favor. Available for payment by [name and address
of financial institution] of Beneficiary's draft at sight drawn on us, and
accompanied by the following documents:
1. The original of this letter of credit and all amendment(s) if any.
2. A signed and dated certification from the Beneficiary stating the following:
"(a) A Draw Event (as defined in the Landlord's Consent) has occurred
under that certain Landlord's Consent between Applicant and
Beneficiary (the "Landlord's Consent"); and
-1-
36
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
DATED APRIL ___, 2001
(b) This is to certify that Beneficiary will hold funds drawn under
this letter of credit as provided in Landlord's Consent; or
(c) We hereby certify that this letter of credit is within thirty (30)
days prior to its expiry date and has not been extended or replaced
as required under the Landlord's Consent.
Special Condition:
1. It is a condition of this letter of credit that it will be deemed
automatically renewed without an amendment for a period of one year from the
present or each future expiration date unless at least thirty (30) days prior
to such expiry date we notify you in writing by overnight courier (i.e.
Federal Express, UPS, DHL, or any other express courier) or registered mail
that we elect not to renew this letter of credit for such additional period.
In no event shall this letter of credit be automatically extended beyond
[insert date 60 days after expiration of Master Lease].
2. This letter of credit is transferable in whole but not in part only upon our
receipt of the attached Exhibit "A" (transfer form) duly completed and
executed by the Beneficiary together with this original letter of credit and
all amendments if any (our transfer charges of $________ are for Applicant's
account).
3. Partial drawings are permitted.
All documents including draft(s) must indicate the number and date of this
credit.
Each draft presented hereunder must be accompanied by this original letter of
credit for our endorsement thereon of the amount of such draft(s).
Documents must be sent to us via overnight courier (i.e. Federal Express, UPS,
DHL or any other express courier) at our address: [name and address of financial
institution].
We hereby engage with drawers and/or bonafide holders that draft(s) drawn under
and negotiated in conformance with the terms and conditions of the subject
credit will be duly honored on presentation.
-2-
37
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
DATED APRIL ___, 2001
This credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993 revision), International Chamber of Commerce Publication 500.
--------------------------------- ---------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
[FINANCIAL INSTITUTION LETTERHEAD]
EXHIBIT "A"
DATE:
TO: [Name & address of financial RE: Standby Letter of Credit No.
institution] Issued by [Financial Institution]
L/C Amount: $
GENTLEMEN:
For value received, the undersigned Beneficiary hereby irrevocably transfer to:
(NAME OF TRANSFEREE)
(ADDRESS)
All rights of the undersigned Beneficiary to draw under the above letter of
credit up to its available amount as shown above as of the date of this
transfer.
By this transfer, all rights of the undersigned Beneficiary in such letter of
credit are transferred to the transferee. Transferee shall have the sole rights
as Beneficiary thereof, including sole rights relating to any amendments,
whether increases or extensions or other amendments, and whether now existing or
hereafter made. All amendments are to be advised direct to the transferee
without necessity of any consent of or notice to the undersigned Beneficiary.
-3-
38
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
DATED APRIL ___, 2001
The original of such letter of credit is returned herewith, and we ask you to
endorse the transfer on the reverse thereof, and forward it direct to the
transferee with your customary notice of transfer.
Sincerely,
----------------------------------------
(Beneficiary's Name)
----------------------------------------
Signature of Beneficiary
Signature Authenticated
----------------------------------------
(Name of Bank)
----------------------------------------
Authorized Signature
-4-
