EXHIBIT 10.2
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT ("Third Amendment") is entered into
by and between XXXXX X. XXXXX AND XXXXXX X. XXXXX, husband and wife
("Landlord") and CELL THERAPEUTICS, INC., a Washington corporation ("Tenant"),
with respect to the following facts:
RECITALS
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A. Landlord and Tenant are parties to that certain: 1) Lease Agreement
dated March 27, 1992, as amended, modified or supplemented by the certain First
Amendment to Lease Agreement dated March 31, 1993, Second Amendment to Lease
Agreement dated October 13, 1993; and 2) the Assignment of Lease dated April 23,
1993, whereby Tenant was assigned and assumed certain space in the Building
(collectively the "Lease Agreement"). Defined terms used herein, unless
otherwise expressly defined, shall have the meaning as set forth in the Lease
Agreement.
B. Pursuant to Section 47 of the Lease Agreement (as added by the First
Amendment to the Lease Agreement), Landlord shall deliver and Tenant shall take
possession of the Additional Expansion Space upon the expiration of the current
tenant's lease of the Additional Expansion Space. Landlord has notified Tenant
of the availability of Additional Expansion Space and Tenant has notified
Landlord of its acceptance of the Additional Expansion Space.
C. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant, certain trade fixtures, equipment and improvements ("Trade
Improvements"), currently located in the Additional Expansion Space.
D. Landlord and Tenant are executing this Amendment to acknowledge
specific terms of Tenant's lease of the Additional Expansion Space, lease of
Trade Improvements in the Additional Expansion Space and to further amend the
Lease in accordance with terms set forth herein below.
AMENDMENTS
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NOW THEREFORE, in consideration of the mutual covenants of the parties,
Landlord and Tenant hereby agree as follows:
1. Premises. Paragraph 1.b of the Lease Agreement is hereby amended in its
entirety to read as follows:
b. Premises: The premises shall consist of:
. a Storage Area (approximately 3,410 net rentable square feet),
Maintenance Office Space (398 square feet), and Storage Tank Space
(64 square feet), located in the north garage servicing the
Building as outlined on the attached floor plan, Exhibit A-1;
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. the Third (3rd) Floor (23,162 net rentable square feet, which
includes 17,372 net rentable square feet, which for purposes of
this Lease Agreement is referred to as the "Tenant Space", and 5790
net rentable square feet, which is the Additional Expansion Space),
located in the Building as outlined on the attached floor plan,
Exhibit A-4;
. the Fourth (4th) Floor (18,304 net rentable square feet) located in
the Building as outlined on the attached floor plan, Exhibit A-5;
and
. the Fifth (5th) Floor (18,304 net rentable square feet) located in
the Building as outlined on the attached floor plan, Exhibit A-6.
Upon execution of this Third Amendment, Tenant shall occupy a total of
60,977 net rentable square feet in the Building (Premises Area). This
includes 1,207 net rentable square feet on the First (1st) Floor
("Hazardous Material Space"), located in the Building as outlined on the
attached floor plan, Exhibit A-2, and the subject of an Assignment of
Lease, dated April 23, 1993, between Tenant and Xxxxxxx Travel, Inc. The
above total 60,977 net rentable square feet excludes the Storage Area,
Maintenance Office Space and Storage Tank Space, specified above.
2. Percentage of Building. Paragraph 1.c. is amended in its entirety to read
as follows:
c. Tenant's Percentage of the Building: Tenant's percentage of the
Building shall mean forty-six and six tenths percent (46.6%),
calculated by dividing the Premises Area (60,977 net rentable square
feet) by the area of the Building (130,949 square feet).
3. Base Rent: Paragraph 1.h.(i) is amended in its entirety to read as
follows:
h. Annual Base Rent: Beginning on August 1, 1996, and continuing until
the fifth (5th) anniversary of the Rent Commencement Date (January 31,
1998), the Annual Base Rent shall be as follows:
SPACE ID NET RENTABLE ANNUAL RATE ANNUAL BASE RENT
Storage Area 3,410 $10 $ 34,100.00
Maintenance Space 398 $10 $ 3,980.00
Tank Storage Space 64 0 0
1st Floor - Hazard. Mat. Space 1,207 $16 $ 19,312.00
3rd Floor - Tenant Space 17,372 $16 $ 277,952.00
3rd Floor - Additional Exp. Space 5,790 $16 $ 92,640.00
4th Floor 18,304 $16 $ 292,864.00
5th Floor 18,304 $16 $ 292,864.00
=============================================
TOTALS: 64,849 $1,013,712.00
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Beginning on February 1, 1998 and continuing until the Expiration Date
(January 31, 2003), the Annual Base Rent Shall be as follows:
Space ID Net Rentable Annual Rate Annual Base Rent
Storage Area 3,410 $12 $ 40,920,00
Maintenance Space 398 $12 $ 4,776.00
Tank Storage Space 64 0 0
1st Floor - Hazard. Mat. Space 1,207 $18 $ 21,726.00
3rd Floor - Tenant Space 17,372 $18 $ 312,696.00
3rd Floor - Additional Exp. Space 5,790 $18 $ 104,220.00
4th Floor 18,304 $18 $ 329,472.00
5th Floor 18,304 $18 $ 329,472.00
=============================================
TOTALS: 64,849 $1,143,282.00
Commencing August 1, 1996, the Annual Base Rent shall be paid in
twelve (12) equal installments on or before the first (1st) day of
each month during the Lease Term.
4. Additional Expansion Space. Section 47 of the Lease Agreement shall be
amended in its entirety to read:
47. Additional Expansion Space.
a. Tenant Occupancy. Landlord shall deliver the Additional Expansion
Space to Tenant on September 1, 1996; provided, however, Tenant may
enter the Expansion Space prior to the delivery date for the purposes
of architectural, design or engineering review. Landlord's delivery of
the Additional Expansion Space shall be in it's "AS IS" condition as
of the date of delivery and Landlord shall not be required to make
alterations, additions, or improvements to the Additional Expansion
Space; except that Landlord shall seal the stairwell presently located
within the Additional Expansion Space, eliminating access between the
second floor and the Additional Expansion Space.
b. Base Service Year. For purposes of determining Additional Rent for the
Additional Expansion Space, the Additional Expansion Space shall have
a Base Service Year of 1992.
c. Trade Improvements. Landlord hereby agrees to lease to Tenant and
Tenant hereby agrees to lease from Landlord, the Trade Improvements
serving the Expansion Space all on the following terms and conditions:
i. Term. Tenant shall lease from Landlord the Trade Improvements
commencing on September 1, 1996, and terminating on the
Expiration Date, unless earlier terminated in accordance with
the Lease. It is the intent of the parties that the term of the
lease for the Trade Improvements be co-terminous with the lease
of the Premises.
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ii. Condition and Uses. Landlord shall deliver the Trade Improvements in
their "AS IS, WHERE IS" condition, without representation or warranty
of any kind whatsoever, whether express or implied, including without
limitation, warranty for habitability, suitability or for particular
use and Landlord shall not be required to make any allegations,
repairs or improvements to the Trade Improvements. Notwithstanding the
foregoing, Landlord represents to Tenant that to the best of their
knowledge, the Trade Improvements have been adequately maintained and
repaired by the prior tenant and owner, Oncomembrane, Inc. and is in
reasonably good working order, normal wear and tear excepted. Tenant
hereby agrees that with respect to its use of the Personal Property,
it will comply with all of the terms of the Lease, including without
limitation, Section 6 of the Lease.
iii. Repair, Maintenance and Alterations. Tenant hereby agrees to maintain
and repair, at Tenant's sole cost and expense, the Trade Improvements
at all times during the term hereof. Tenant shall maintain the Trade
Improvements at all times in good repair. Tenant shall make no
alterations or modifications to the Trade Improvements without the
prior written consent of the Landlord. In addition to the foregoing,
Tenant agrees that all other terms and conditions of the Lease shall
apply to the Trade Improvements and its repair or maintenance, unless
directly contrary to the foregoing terms in this paragraph.
iv. Taxes and Insurance. Tenant shall pay, before delinquency any and all
Real Property Taxes (as defined in the Lease) on the Trade
Improvements and provide Landlord with evidence of such payment.
Tenant shall maintain Liability and property damage insurance on the
Trade Improvements at all times during the term hereof in accordance
with the requirements of Section 16 of the Lease.
v. Removal of Property and Surrender. Tenant shall not remove the Trade
Improvements from the Premises without the prior written consent of
the Landlord. Upon termination of the Lease, Tenant shall surrender
the Trade Improvements to the Landlord in good working condition and
repair, normal wear and tear excepted.
d. Mechanical System. The Additional Expansion Space is serviced by mechanical
and physical systems (collectively, "Mechanical System"), specifically air
handling unit(s), boilers, chillers, natural gas, electricity and vacuum
that also will continue to provide service to the first and second floors
of the Building. Notwithstanding the terms of this paragraph, Tenant shall
continue to be responsible for maintaining mechanical equipment (e.g., air
handling unit and exhaust fans) located in the small mechanical room on the
roof of the second floor of the Building which services the Organic
Chemistry Lab of the Additional Expansion Space (labeled "OCL" on Exhibit
A-4).
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Tenant agrees to an equitable allocation of the costs and expenses of
maintaining, repairing and replacing the Mechanical System between
Tenant and first and second floor tenants, on a pro-rata, square
footage basis, so long as the Mechanical System serves the first and
second floors and the Additional Expansion Space. Landlord and Tenant
agree to cooperate in good faith to work with the first and second
floor tenant with respect to the equitable allocation of costs and
expenses and the use of the Mechanical System by the first and second
floor tenant. Tenant acknowledges that the first or second floor
tenant (currently Pathogenesis Inc.) shall maintain, repair and
replace the Mechanical System for the benefit of Tenant and the first
or second floor tenant. Tenant shall reimburse Pathogenesis Inc., the
successor first or second floor tenant or Landlord (in the event
Landlord has undertaken maintenance and repair responsibility) on a
pro-rata square foot basis, for any and all maintenance, repair or
replacement costs. Tenant shall pay Pathogenesis, Inc. (or the party
maintaining the Mechanical System) such costs on a monthly basis based
on estimates. All costs and expenses shall be reconciled on an annual
basis.
Tenant shall have the option of disconnecting certain of the
Mechanical Systems servicing the Additional Expansion Space and
instead servicing all or a portion of the Additional Expansion Space
with Tenant's mechanical systems currently servicing other space in
the Building leased by Tenant under the lease. In such event, tenants
pro-rata square footage allocation of costs for maintaining and
repairing the Mechanical Systems shall be reduced accordingly.
5. Parking: Paragraph x.x. is amended in its entirety to read as follows:
j. Parking: Tenant shall lease 82 parking stalls (plus 1 additional space
for each 750 feet of expansion space) in and under cover of the
Building, or in the adjacent building commonly known as the P-I
Building, on an unassigned basis at $100.00 per space and adjusted to
the prevailing monthly market rates as established by Landlord every
three (3) years. Landlord will, if reasonably possible, accommodate
Tenant's preference as to location of the parking stalls. The leasing
of parking stalls by Tenant shall be subject to such rules and
regulations as Landlord or its parking operator may adopt from time to
time. Landlord shall also assist Tenant in locating twenty-five (25)
additional parking stalls located within one block of the Building
(plus 1 additional space for each 750 feet of expansion space). These
additional stalls shall be provided at Tenant's sole cost and expense.
6. Miscellaneous. The additional Expansion Space shall be subject to all
other terms and conditions of the Lease Agreement, including without
limitation, the option to extend the Lease Term, determination of Annual
Base Rent and Additional Rent during extension terms, Landlords rights to
approve build out of the Additional Expansion Space and the terms and
conditions with respect to assignment and subletting the Premises.
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7. Amendment. Except as expressly modified and amended herein, the Lease
Agreement shall remain in full force and effect.
DATED this 10 day of September, 1996
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LANDLORD: XXXXX X. XXXXX AND XXXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx individually and
as attorney-in-fact for
Xxxxxx X. Xxxxx
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this day personally appeared before me XXXXX X. XXXXX to me known to be
the individual described in and who executed the within and foregoing
instrument, and acknowledged that he signed the same as his free and voluntary
act and deed, for the uses and purposes therein mentioned.
DATED this 9 day of Sept., 1996
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/s/ Xxxx X. Xxxx
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[SEAL APPEARS HERE] Notary Public in and for the State of Washington,
residing at Seattle
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My Commission Expires: 12-19-97
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XXXX X. XXXX
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(print name)
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TENANT: CELL THERAPEUTICS, INC.
By: /s/ X. Xxxxxx
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Its: President and CEO
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STATE OF WASHINGTON )
) ss
COUNTY OF KING )
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On this 10th day of September, 1996, before me, the undersigned, a Notary
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Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxx X. Xxxxxx, MD, to be known to be the President and CEO
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of the corporation that executed the foregoing instrument, and acknowledged the
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
authorized to execute the said instrument.
Witness my hand and official seal hereto affixed the day and year first
above written.
/s/ Xxxxx Xxxxxxx
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Notary Public in and for the State of Washington,
residing at Everett
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My Commission Expires: August 7, 1997
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Xxxxx Xxxxxxx
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(print name)
