<PAGE>
EXHIBIT 10.34
LEASE AGREEMENT
Date: November 4, 2005
THIS LEASE AGREEMENT (the "Lease") is entered into this 4th day of
November
2005. Between The International Union of Operating Engineers Local
302
("Landlord"), and NW Biotherapeutics, a Delaware Corporation
("Tenant").
Landlord and Tenant agree as follows:
1. LEASE
SUMMARY.
A.
LEASE PREMISES.
The leased commercial real estate (the "Premises")
consist of an agreed area of 2,325 rentable square feet and are
outlined on the floor plan attached as Exhibit A, located on the
land
legally described on attached Exhibit B, and is commonly known as
the
IUOE Building. The Premises do not include, and Landlord reserves,
the
exterior walls and roof of the Premises, the land beneath the
Premises, the pipes and ducts, conduits, wires, fixtures, and
equipment above the suspended ceiling or structural elements of
the
building in which the Premises are located (the "Building").
The
Building, the land upon which it is situated, all other
improvements
located on such land, and all common areas appurtenant to the
Building
are referred to as the "Property".
B.
LEASE
COMMENCEMENT DATE. The Lease shall commence on January 1, 2006,
or such earlier or later date as provided in Section 3 (the
"Commencement Date").
C.
LEASE
TERMINATION DATE. The Lease shall terminate on December 31,
2006, or such earlier or later date as provided in Section 3
(the
"Termination Date").
D.
MONTHLY RENT.
The monthly rent shall be (check one): [X] $3,100.00, or
[ ] according to the Rent Rider attached hereto. Rent shall be
payable
at Landlord's address shown in Section 1(h) below, or such other
place
designated in writing by Landlord.
E.
PREPAID RENT.
Upon execution of this Lease, Tenant shall deliver to
Landlord the sum of $3,100 as prepaid rent, to be applied to the
Rent
due for the first month(s) of the Lease.
F.
SECURITY
DEPOSIT. The amount of the security deposit is $3,100.00
G.
PERMITTED USE.
The Premises shall be used only for general office use
and for no other purpose without prior written consent of the
Landlord.
H.
NOTICE AND
PAYMENT OF ADDRESSES:
Landlord:
Tenant:
Attention: Beverly Colesgrove
Attention: Alton Boynton
International Union of Operating Engineers Local 302 NW Biotherapeutics
18701 120th Ave NE
18701 120th Ave NE
Bothell, WA 98011-9514
Bothell, WA 98011
2. PREMISES.
Landlord leases to Tenant, and Tenant leases from landlord the
Premises upon the terms specified in this Lease.
3. TERM.
A.
COMMENCEMENT
DATE. The Lease shall commence on the date specified in
Section 1(b), or on such earlier or later date as may be specified
by
written notice delivered by Landlord to Tenant advising Tenant
that
the premises are ready for possession and specifying the
Commencement
Date, which shall not be less than 30 days following the date of
such
notice. If Tenant occupies the Premises before the Commencement
Date
specified in Section 1(b), then the Commencement Date shall be
the
date of occupancy. If Landlord acts diligently to make the
Premises
available to Tenant, neither Landlord nor any agent or employee
of
Landlord shall be liable for any damage or loss due to
Landlord's
inability or failure to deliver possession of the Premises to
Tenant
as provided in this Lease. The Termination Date shall be modified
upon
any change in the Commencement Date so that the length of the
Lease
term is
not changed. If Landlord does not deliver possession of the
Premises to Tenant within 60 days after the date specified in
Section
1(b), Tenant may elect to cancel this Lease by giving written
notice
to Landlord within ten (10) days after such time period ends.
If
Tenant gives such notice, the Lease shall be cancelled, all
prepaid
rent and security deposits shall be refunded to Tenant, and
neither
Landlord nor Tenant shall have any further obligations to the
other.
The first "Lease Year" shall commence on the Commencement Date
and
shall end on the date which is twelve (12) months from the end of
the
month in which the Commencement Date occurs. Each successive
Lease
Year during the initial term and any extension terms shall be
twelve
(12) months, commencing on the first day following the end of
the
preceding Lease Year, except that the Lease Year shall end on
the
Termination Date.
B.
TENANT
OBLIGATIONS. To the extent Tenant's tenant improvements are not
complete in time for the Tenant to occupy or take possession of
the
Premises on the Commencement Date due to the failure of Tenant
to
fulfill any of its obligations under this Lease, the Lease
shall
nevertheless commence on the Commencement Date.
Except as specified elsewhere in this Lease, Landlord makes no
representations or warranties to Tenant regarding the Premises,
including the structural condition of the Premises and the
condition
of all mechanical, electrical, and other systems on the
Premises.
Except for any tenant improvements described on attached Exhibit C
to
be
completed by Landlord (defined therein as "Landlord's Work"),
Tenant shall be responsible for performing any work necessary to
bring
the Premises into condition satisfactory to Tenant. By signing
this
Lease, Tenant acknowledges that it has had adequate opportunity
to
investigate the Premises, acknowledges responsibility for making
any
corrections, alterations and repairs to the Premises (other than
the
Landlord's Work), and acknowledges that the time needed to
complete
any such items shall not delay the Commencement Date.
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LEASE AGREEMENT
(CONTINUED)
Attached Exhibit C sets forth all Landlord's Work, if any, and
all
tenant improvements to be completed by Tenant ("Tenant's Work"),
which
is to be performed on the Premises. Responsibilities for
design,
payment and performance of all such work shall be as set forth
on
attached Exhibit C. If Tenant fails to notify Landlord of any
defects
in the Landlord's Work within ten (10) days of delivery of
possession
to Tenant, Tenant shall be deemed to have accepted the Premises
in
their then condition. If Tenant discovers any major defects in
the
Landlord's Work during this 10-day period that would prevent
Tenant
from using the premises for its intended purpose, Tenant shall
so
notify
Landlord in writing and the Commencement Date shall be delayed
until after Landlord has corrected the major defects and Tenant
has
had five (5) days to inspect and approve the Premises after
Landlord's
correction of such defects. The Commencement Date shall not by
delayed
if Tenant's inspection reveals minor defects in the Landlord's
Work
that will not prevent Tenant from using the Premises for their
intended purpose. Tenant shall prepare a punch list of all
minor
defects and provide the punch list to Landlord. Landlord shall
promptly correct all punch list items.
4. RENT. Tenant
shall pay Landlord without demand, deduction or offset, in
lawful money of the United States, the monthly rental stated in
Section
1(d)
in advance on or before the first day of each month during the
Lease
Term
beginning on (check one): [X] the Commencement Date, or [ ]
___________________________ (specify, but if no date specified,
then on the
Commencement Date), and any other additional payments due to
Landlord,
including Operating Costs (collectively the "Rent") when required
under
this
Lease. Payments for any partial month at the beginning or end of
the
Lease term shall be prorated.
If
any sums payable by Tenant to Landlord under this Lease are not
received
by
the fifth (5th) day of each month, Tenant shall pay Landlord in
addition
to
the amount due, for the cost of collecting and handling such
late
payment, an amount equal to the greater of $100 or five percent
(5%) of the
delinquent amount. In addition, all delinquent sums payable by
Tenant to
Landlord and not paid within five (5) days of the due date shall,
at
Landlord's option, bear interest at the rate of twelve percent
(12%) per
annum, or the highest rate of interest allowable by law, whichever
is less.
Interest on all delinquent amounts shall be calculated from the
original
due
date to the date of payment.
Landlord's acceptance of less than the full amount of any payment
due from
Tenant shall not be deemed an accord and satisfaction or compromise
of such
payment unless Landlord specifically consents in writing to payment
of such
lesser sum as an
accord and satisfaction or compromise of the amount which
Landlord claims.
5. SECURITY
DEPOSIT. Upon execution of this Lease, Tenant shall deliver to
Landlord the security deposit specified in Section 1(f) above.
Landlord may
commingle the security deposit with its other funds. If Tenant
breaches any
covenant or condition of this Lease, including but not limited to
the
payment of Rent, Landlord may apply all or any part of the security
deposit
to
the payment of any sum in default and any damage suffered by
Landlord as
a
result of Tenant's breach. In such event, Tenant shall, within five
(5)
days
after written demand therefor by Landlord, deposit with Landlord
the
amount so applied. Any payment to Landlord from the security
deposit shall
not
be construed as a payment of liquidated damages for any default.
If
Tenant complies with all of the covenants and conditions of this
Lease
throughout Lease term, the security deposit shall be repaid to
Tenant
without interest within thirty (30) days after the vacation of the
Premises
by
Tenant.
6. USES. The
Premises shall be used only for the uses(s) specified in
Section
1(g)
above (the "Permitted Use"), and for no other business or
purpose
without the prior written consent of Landlord. No act shall be done
on or
around the Premises that is unlawful or that will increase the
existing
rate
of insurance on the Premises or the Building, or cause the
cancellation of any insurance on the Premises or the Building.
Tenant shall
not
commit or allow to be committed any waste upon the Premises, or
any
public or private nuisance. Tenant shall not do or permit anything
to be
done
in the Premises or on the Property which will obstruct or
interfere
with
the rights of other tenants or occupants of the Property, or
their
customers, clients and visitors, or to injure or annoy such
persons.
7. COMPLIANCE
WITH LAWS. Tenant shall not cause or permit the Premises to be
used
in any way which violates any law, ordinance, or governmental
regulation or order. Landlord represents to Tenant, to the best
of
Landlord's knowledge, that with the exception of any Tenant's Work,
as of
the
Commencement Date, the Premises comply with all applicable laws,
rules,
regulations, or orders, including without limitation, the Americans
with
Disabilities Act, if applicable, and Landlord shall be responsible
to
promptly cure any non-compliance which existed on the Commencement
Date.
Tenant shall be responsible for complying with all laws applicable
to the
Premises as a result of Tenant opening the Premises to the public
as a
place of public accommodation. If the enactment or enforcement of
any law,
ordinance, regulation or code during the Lease term requires any
changes to
the
Premises during the Lease term, the Tenant shall perform all
such
changes at its expense if the changes are required due to the
nature of
Tenant's activities at
the Premises, or to alterations that Tenant seeks to
make
the Premises; otherwise, Landlord shall perform all such changes
at
its
expense.
8. OPERATING
COSTS.
A.
DEFINITION. As
used herein, "Operating Costs" shall mean all costs of
operating, maintaining and repairing the Premises, the Building,
and
the Property, determined in accordance with generally accepted
accounting principles, and including without limitation the
following:
all taxes and assessments (including, but not limited to, real
and
personal property taxes and assessments, local improvement
district
assessments and other special purpose assessments, and taxes on
rent
or gross receipts); insurance premiums paid by Landlord and (to
the
extent used) deductibles; water, sewer and all other utility
charges
(other than utilities separately metered and paid directly by
Tenant
or other tenants) janitorial and all other cleaning services,
refuse
and trash removal; refurbishing and repainting; carpet
replacement;
air conditioning, heating, ventilation and elevator service;
pest
control; lighting systems, fire detection and security
services;
landscape maintenance; management (fees and/or personnel
costs);
parking lot, road, sidewalk and driveway patching, resurfacing
and
maintenance; snow and ice removal; amortization (in accordance
with
generally accepted accounting principles) of capital improvements
as
Landlord may in the future install to comply with governmental
regulations and rules or undertaken in good faith with a
reasonable
expectation of reducing operating costs (the useful life of
which
shall be a reasonable period of time as determined by Landlord);
and
costs of legal services (except those incurred directly relating to
a
particular occupant of the Building); accounting services,
labor,
supplies, materials and tools. Operating Costs shall not
include:
Landlord's income tax or general corporate overhead, depreciation
on
the Building or equipment therein; loan payments; real estate
broker's
commission, capital improvements to or major repairs of the
Building
shell (i.e., the Building structure, exterior walls and roof)
not
described in this paragraph; or any costs regarding the
operation,
maintenance and repair of the Premises, the Building, or the
Property
paid directly by Tenant or other tenants in the Building. If Tenant
is
renting a pad separate from any other structures on the Property
for
which Landlord separately furnishes the services described in
this
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LEASE AGREEMENT
(CONTINUED)
paragraph, then the term "Operating Costs" shall not include
those
costs of operating, repairing, and maintaining the enclosed mall
which
can be separately allocated to the tenants of the other
structures.
Operating Costs which can not be separately allocated to the
tenants
of the other structures may include but are not limited to:
insurance
premiums; taxes and assessments; management (fees and/or
personnel
costs); exterior lighting; parking lot, road, sidewalk and
driveway
patching, resurfacing and maintenance; snow and ice removal; and
costs
of legal services and accounting services.
B.
TYPE OF PAYMENT.
Options one and two below address the manner in which
Operating Costs are paid under this Lease. To select the pure
triple
net option, check option 1. To select the base year option,
check
option 2.
[ ]
OPTION ONE: TRIPLE
NET. As additional Rent, Tenant shall pay to
Landlord on the first of each month with payment of Tenant's base
Rent
one-twelfth of Tenant's Pro Rata Share of Operating Costs.
[X]
OPTION TWO: BASE YEAR.
The base Rent paid by Tenant under this Lease
includes Tenant's Pro Rata Share of Operating Costs for the
calendar
year in which the Commencement Date occurs (the "Base Year").
As
additional Rent, Tenant shall pay to Landlord on the first day of
each
month commencing on the first day of the first year after the
Commencement Date, with Tenant's payment of base Rent, one-twelfth
of
the amount, if any, by which Tenant's Pro Rata Share of
Operating
Costs exceeds Tenant's annualized Pro Rata Share of Operating
Costs
for the Base Year.
C.
METHOD OF
PAYMENT. Tenant shall pay to Landlord Operating Costs as
provided above pursuant to the following procedure:
i) Landlord shall provide to Tenant, at or before the
Commencement
Date, a good faith estimate of annual Operating Costs for the
calendar
year in which
the Commencement Date occurs. Landlord shall also
provide to Tenant, as soon as possible following the first day of
each
succeeding calendar year, a good faith estimate of Tenant's annual
pro
Rata Share of Operating Costs for the then-current year;
ii) Each estimate of Tenant's annual Pro Rata Share of Operating
Costs
determined by Landlord as described above, shall be divided
into
twelve (12) equal monthly installments. If Tenant pays Operating
Costs
under Option One, Tenant shall pay to Landlord such monthly
installment of Operating Costs with monthly payment of base Rent.
If
Tenant pays Operating Costs under Option Two, Tenant shall pay
to
Landlord with each monthly payment of base Rent the amount, if any,
by
which such monthly installments of Operating Costs exceed
one-twelfth
of Tenant's annualized Pro Rata Share of Operating Costs for the
Base
Year. In the event the estimated amount of Tenant's Pro Rata Share
of
Operating Costs has not yet been determined for any calendar
year,
Tenant shall pay the monthly installment in the estimated
amount
determined for the preceding calendar year until the estimate for
the
current calendar year has been provided to Tenant. At such time as
the
estimate for the current calendar year is received, Tenant shall
then
pay any shortfall or receive a credit for any surplus for the
preceding months of the current calendar year and shall,
thereafter,
make the monthly installment payment in accordance with the
current
estimate; and
iii) As soon as reasonably possible following the end of each
calendar
year of the Lease term, Landlord shall determine and provide to
Tenant
a statement (the "Operating Costs Statement") setting forth the
amount
of Operating Costs actually incurred and the amount of Tenant's
Pro
Rata Share of Operating Costs actually payable by Tenant with
respect
to such calendar year. In the event the amount of Tenant's Pro
Rata
Share of Operating Costs exceeds the sum of the monthly
installments
actually paid by Tenant for such calendar year, Tenant shall pay
to
Landlord the difference within thirty (30) days following receipt
of
the Operating Costs Statement. In the event the sum of such
installments exceeds the amount of Tenant's Pro Rata Share of
Operating Costs actually due and owing, the difference shall be
applied as a credit to Tenant's future Pro Rata Share of
Operating
Costs payable by Tenant pursuant to this Section.
9. UTILITIES AND
SERVICES. Landlord shall provide the Premises the following
services, the costs of which shall be included in the Operating
Costs:
water and electricity for the Premises seven (7) days per week,
twenty-four
(24)
hours per day, and heating, ventilation and air conditioning from
9
a.m.
to 5 p.m. Monday through Friday, and 9 a.m. to 12 p.m. on
Saturday.
Tenant shall provide their own janitorial service to the Premises.
Heating,
ventilation and air conditioning services will also be provided by
Landlord
to
the Premises during additional hours on reasonable notice to
Landlord,
at
Tenant's sole costs and expense, at an hourly rate reasonably
established by Landlord from time to time and payable by Tenant, as
billed,
as
additional Rent.
Tenant shall furnish and pay, at Tenant's sole expense, all other
utilities
(including, but not limited to, telephone and cable service if
available)
and
other services which Tenant requires with respect to the
Premises,
except those to be provided by Landlord as described above.
Notwithstanding
the
foregoing, if Tenant's use of the Premises incurs utility
service
charges which are above ordinary usage, Landlord reserves the right
to
require Tenant to pay a reasonable additional charge for such
usage. For
example, where Tenant installs and uses a number of electronic
devices
which is greater than normal, the increased usage may result in
higher
electrical charges and increased charges for cooling since
overheating of
rooms may result.
10. TAXES. Tenant
shall pay all taxes, assessments, liens and license fees
("Taxes") levied, assessed or imposed by any authority having the
direct or
indirect power to tax or assess any such liens, by reason of
Tenant's use
of
the Premises, and all Taxes on Tenant's personal property located
on the
Premises. Landlord shall pay all Taxes with respect to the Building
and the
Project, including any Taxes resulting from a reassessment of the
Building
or
the Project due to a change of ownership or otherwise, which shall
be
included in Operating Costs.
11. COMMONS AREAS.
A.
DEFINITION. The
term "Common Areas" means all areas and facilities
that are provided and designated from time to time by Landlord for
the
general non-exclusive use and convenience of Tenant with other
tenants
and which are not leased or held for the exclusive use of a
particular
tenant. Common Areas may, but do not necessarily include,
hallways,
entryways, stairs, elevators, driveways, walkways, terraces,
docks,
loading areas, restrooms, trash facilities, parking areas and
garages,
roadways, pedestrian sidewalks, landscaped areas, security areas
and
lobby or mall areas. Tenant shall comply with reasonable rules
and
regulations concerning the use of the Common Areas adopted by
Landlord
from time to time. Without advance notice to Tenant and without
any
liability to Tenant, Landlord may change the size, use, or nature
of
any Common Areas, erect improvements on the Common Areas or
convert
any portion of the
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LEASE AGREEMENT
(CONTINUED)
Common Areas to the exclusive use of Landlord or selected tenants,
so
long as Tenant is not thereby deprived of the substantial benefit
of
the Premises. Landlord reserves the use of exterior walls and
the
roof, and the right to install, maintain, use, repair and
replace
pipes, ducts, conduits, and wires leading through the Premises
in
areas which will not materially interfere with Tenant's use
thereof.
B.
USE OF THE
COMMON AREAS. Tenant shall have the non-exclusive right in
common with such other tenants to whom Landlord has granted or
may
grant such rights to use the Common Areas. Tenant shall abide by
rules
and regulations adopted by Landlord from time to time and shall
use
its best efforts to cause its employees, contractors, and invitees
to
comply with those rules and regulations, and not interfere with
the
use of Common Areas by others.
C.
MAINTENANCE OF
COMMON AREAS. Landlord shall maintain the Common Areas
in good order, condition and repair. This maintenance cost shall be
an
Operating Costs chargeable to Tenant pursuant to Section 8.
12. ALTERATIONS.
Tenant may make alterations, additions, or improvements to the
Premises, including any Tenant's Work identified on attached
Exhibit C
("Alterations"), with the prior written consent of Landlord. The
term
"Alterations" shall not include the installation of shelves,
movable
partitions, Tenant's equipment, and trade fixtures which may be
performed
without damaging existing improvements or the structural integrity
of the
Premises, and Landlord's consent shall not be required for
Tenant's
installation of those items. Tenant shall complete all Alterations
at
Tenant's expense in compliance with all applicable laws in
accordance with
plans and specifications approved by Landlord, using contractors
approved
by
Landlord, and in a manner so as to not unreasonably interfere with
other
tenants. Landlord shall be deemed the owner of all Alterations
except for
those which Landlord requires to be removed at the end of the Lease
term.
Tenant shall remove all Alterations at the end of the Lease term
unless
Landlord conditioned its consent upon Tenant leaving a specified
Alteration
at
the Premises, in which case Tenant shall not remove such
Alteration.
Tenant shall immediately repair any damage to the Premises caused
by the
removal of the Alterations.
13. REPAIRS AND
MAINTENANCE. Tenant shall, at its sole expense, maintain the
Premises in good condition and promptly make all repairs and
replacements,
whether structural or
non-structural necessary to keep the Premises safe
and
in good condition, including all utilities and other systems
serving
the
Premises. Landlord shall maintain and repair the Building
structure,
foundation, exterior walls, and roof, and the Common Areas, the
cost of
which shall be included as an Operating Cost. Tenant shall not
damage any
demising wall or disturb the structural integrity of the Premises
and shall
promptly repair any damage or injury done to any such demising
walls or
structural elements caused by Tenant or its employees, agents,
contractors
or
invitees. If Tenant fails to maintain or repair the Premises,
Landlord
may
enter the Premises and perform such repair or maintenance on behalf
of
Tenant. In such case, Tenant shall be obligated to pay to
Landlord
immediately upon receipt of demand for payment, as additional Rent,
all
costs incurred by Landlord. Notwithstanding anything in this
Section to the
contrary, Tenant shall not be responsible for any repairs to the
Premises
made
necessary by the acts of Landlord or its agents, employees,
contractors or invitees therein.
Upon
expiration of the Lease term, whether by lapse of time or
otherwise,
Tenant shall promptly and peacefully surrender the Premises,
together with
all
keys, to Landlord in as good condition as when received by Tenant
from
Landlord or as thereafter improved, reasonable wear and tear and
insured
and
casualty excepted.
14. ACCESS AND RIGHT
OF ENTRY. After reasonable notice from Landlord (except in
cases of emergency, where no notice is required), Tenant shall
permit
Landlord and its agents, employees and contractors to enter the
Premises at
all
reasonable times to make repairs, alterations, improvements or
inspections. This Section shall not impose any repair or other
obligation
upon
Landlord not expressly stated elsewhere in this Lease. After
reasonable notice to Tenant, Landlord shall have the right to enter
the
Premises for the purpose of showing the Premises to prospective
purchasers
or
lenders at any time, and to prospective tenants within 180 days
prior to
the
expiration or sooner termination of the Lease term.
15. DESTRUCTION OR
CONDEMNATION.
A.
DAMAGE AND
REPAIR. If the Premises or the portion of the Property
necessary for Tenant's occupancy are partially damaged but not
rendered untenantable, by fire or other insured casualty, then
Landlord shall diligently restore the Premises and the portion of
the
Property necessary for Tenant's occupancy and this Lease shall
not
terminate; provided, however, Tenant may terminate the Lease if
Landlord is unable to restore the Premises within six (6) months
of
the casualty event. The Premises or the portion of the Property
necessary for Tenant's occupancy shall not be deemed untenantab
