Exhibit 10.1
THIRD AMENDMENT TO LEASE
THIS
THIRD AMENDMENT TO LEASE (this “ Amendment ”) is
entered into as of this 5 th day of March, 2009, by and
between BMR-3450 MONTE VILLA PARKWAY LLC, a Delaware limited
liability company (“ Landlord ,” as
successor-in-interest to Phase 3 Science Center LLC (“
Original Landlord ”)), and MDRNA, INC., a Delaware
corporation (“ Tenant ,” as
successor-in-interest to Nastech Pharmaceutical Company Inc.
(“ Original Tenant ”)).
RECITALS
A. WHEREAS, Original Landlord and Original
Tenant entered into that certain Lease dated as of April 23,
2002, as amended by that certain First Amendment to Lease dated as
of July 1, 2003, and that certain Second Amendment to Lease
dated as of January 29, 2004 (collectively, the “
Lease ”), whereby Tenant leases certain premises (the
“ Premises ”) from Landlord at 3450 Monte Villa
Parkway in Bothell, Washington (the “ Building
”);
B. WHEREAS, Tenant intends to vacate the
Premises prior to the expiration of the term of the Lease and has
requested rent, operating expense and maintenance payment relief
and that Landlord assume certain maintenance obligations at the
Building;
C. WHEREAS, Tenant is in default of
Tenant’s obligation to pay Rent and replenish the Security
Deposit as set forth in the Lease; and
D. WHEREAS, Landlord and Tenant desire to
modify and amend the Lease only in the respects and on the
conditions hereinafter stated.
AGREEMENT
NOW,
THEREFORE, Landlord and Tenant, in consideration of the mutual
promises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, agree as
follows:
1. Definitions . For purposes of
this Amendment, capitalized terms shall have the meanings ascribed
to them in the Lease unless otherwise defined herein.
2. Maintenance Obligations .
Notwithstanding anything in the Lease to the contrary, Landlord
hereby agrees to (a) maintain and repair the roof; the
exterior of the Building; the landscaping; the parking lot; the
elevators; and the Building’s HVAC, electrical, plumbing,
security, exterior generator, fire sprinkler (including related
alarms) systems, and other building systems including the DI water
system, air compressors, vacuum pumps and nitrogen (b) wash
the outside windows of the Building, (c) supply regular
janitorial service, including refuse removal, (d) maintain 3
small and 1 large Millipore water systems, 2 large glass washers,
approximately 60 small “R&D” cubicles,
approximately 40 standard size cubicles, approximately 20 sets of
furniture for private offices and an autoclave (e) supply the
following utilities: phones for the elevators and alarms, water,
sewer, gas and electricity (collectively, the “
Maintenance Obligations ”), the cost of which shall be
paid by Tenant as Additional Rent, except as abated in
Section 6 below. The parties acknowledge that the building
systems and other items within the Premises referenced in this
Section 2 are attached to and have become an integral
part of the Premises and shall not be considered Tenant’s
Removable Property or otherwise allowed to be removed by
Tenant.
3. Entry into Premises .
Landlord’s right to enter the Premises as set forth in
Section 32.2 of the Lease shall be expanded to permit
Landlord to perform the Maintenance Obligations and for Landlord
and Landlord’s agents to show the Premises to any potential
tenant, purchaser, affiliate or lender.
4. Basic Annual Rent and Operating
Expenses . Concurrently with the execution and delivery of this
Amendment, Tenant shall pay Landlord funds that total $205,943.51
(“ Cure Amount ”), which amount shall be applied
to Basic Annual Rent and Tenant’s Pro Rata Share of Operating
Expenses (including late fees) in default for the month of
January 2009 and to replenish the Cash Deposit to the amount
required under the Lease (i.e., $277,140). From and after
Tenant’s delivery of the Cure Amount, Landlord shall no
longer be required to keep the Cash Deposit in a separate account
bearing interest for the benefit of Tenant. Landlord may
intermingle the Cash Deposit with Landlord’s general funds
and Tenant shall not be entitled to any interest accruing on the
Cash Deposit.
5. Cash Deposit and Letter of
Credit . Notwithstanding anything to the contrary in the Lease,
Landlord may on the first day of each month commencing on
March 1, 2009, draw upon the Cash Deposit or Letter of Credit
to cover payments of Rent without the need for notice to Tenant or
affording Tenant an opportunity to cure. In addition, Landlord
shall remain entitled to draw on the Security Deposit for any other
purpose set forth in the Lease or this Amendment. Tenant shall
cooperate with Landlord and shall sign any necessary documents
requested by the lender issuing the Letter of Credit to assist in
Landlord drawing upon the Letter of Credit in accordance with the
Lease or this Section 4 . Following payment of the Cure
Amount, there shall be no obligation now or at any time in the
future by Tenant to replenish or renew the Cash Deposit or Letter
of Credit, unless Tenant re-commences business operations in all or
part of the Premises. The preceding sentence shall not apply to the
cash deposit or letter of credit security of any subtenant or
assignee of the Lease.
6. Abatement and Resumption of Basic
Annual Rent and Operating Expense Payments . After the Cash
Deposit and Letter of Credit are fully exhausted, Tenant’s
obligation to pay Basic Annual Rent or Additional Rent
(exc
