Exhibit 10.5.3
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
FIFTH AMENDMENT TO OFFICE LEASE
AGREEMENT
THIS FIFTH AMENDMENT TO OFFICE LEASE
AGREEMENT (this “Amendment”), dated as of June 16,
2008, (the “Effective Date”) is entered into by and
between CIRCLE POINT PROPERTIES, LLC, a Delaware limited liability
company (the “Landlord”) and ALLOS THERAPEUTICS, INC.,
a Delaware corporation (the “Tenant”).
Recitals :
A.
Catellus Development Corporation, a
Delaware limited liability company (“CDC”) and Tenant
entered into that certain Office Lease dated April 23, 2001,
as amended by that certain First Amendment and Commencement Date
Memorandum dated as of November 1, 2001, that certain Second
Amendment to Lease dated as of November 12, 2002, that certain
Amended and Restated Second Amendment to Lease dated as of
December 9, 2002, that certain Third Amendment to Lease dated
as of November 23, 2003 and that certain Consent of Landlord
to Sublease and Fourth Amendment to Lease dated as of
January 12, 2005 (collectively the “Lease”),
pertaining to the premises containing approximately 43,956 rentable
square feet (“RSF”), commonly known as Suite 200,
Suite 160 and Storage Space, Suite 170, Suite 180
and Suite 190 located in the office building located at 11080
Circle Point Road, Westminster, Colorado 80020 (collectively, the
“Original Premises”).
B.
Landlord has succeeded to all of
CDC’s right, title, obligations, and interest under the
Lease.
C.
Capitalized terms used herein and
not otherwise defined herein shall have the meanings given to them
in the Lease.
D.
Landlord and Tenant desire to amend
the Lease in the manner and form hereinafter set forth.
NOW, THEREFORE, for good and
valuable consideration, Landlord and Tenant hereby agree as
follows:
1.
Reduction of
Premises . As of the Extension
Commencement Date, the Original Premises shall be reduced by
approximately 9,420 RSF as more particularly depicted and
cross-hatched on Exhibit A attached hereto and
incorporated herein by this reference (the “Vacated
Space”). The resulting space shall be Suite 200
and Suite 160 (and storage space) consisting of approximately
34,536 RSF (the “Reduced Premises”) and all references
in the Lease to the “Premises” shall mean the Reduced
Premises. Tenant agrees to vacate and surrender possession of
the Vacated Space and, unless Landlord provides written notice to
Tenant to the contrary, to cause all parties claiming by, through
or under Tenant to vacate and surrender possession of the Vacated
Space as of the Extension Commencement Date in the condition as
required by the Lease and this Amendment. Landlord and Tenant
hereby acknowledge and agree that effective as of the Extension
Commencement Date, Tenant renounces all right of possession in and
to the Vacated Space. Any occupancy of the Vacated Space as
of the Extension Commencement Date by Landlord or any party
claiming by, through or under Landlord shall not be deemed an
eviction (constructive or otherwise). As of the Extension
Commencement Date, rights under the Lease solely for the Vacated
Space shall be deemed terminated as though they had expired
according to their terms, and except as provided herein, Landlord
and Tenant shall be relieved of any and all further obligations
thereunder; provided, however, such termination shall not affect
Tenant’s liability for rental and other obligations accruing
prior to the Extension Commencement Date, including, without
limitation, its obligation to pay Tenant’s Percentage Share
of Operating Expenses and Tenant’s Percentage Share of Real
Property Taxes attributable to the period prior to the Extension
Commencement Date, at such time as such obligation is finally
determined, nor shall the same affect Landlord’s liability to
Tenant with respect to Adjustments due to Tenant under the Lease
with respect to the Vacated Space.
2.
Term . Provided there is no
uncured Event of Default by Tenant as of November 1, 2008 (the
“Extension Commencement Date”), the term of the Lease
for the Reduced Premises shall be extended for thirty-nine (39)
months to expire at 12:00 midnight on January 31, 2012 (the
“Extension Term”) and shall be on all of the terms and
conditions of the Lease except as specifically provided herein to
the contrary. Tenant’s renewal hereunder shall be
deemed exercise of its option to renew, pursuant to
Section 3.2 of the Lease and, except as otherwise set forth
herein, there shall be no further rights on the part of Tenant to
extend the term of the Lease as amended by this
Amendment.
3.
Base
Rent . Subject to
Section 10 below, commencing on the Extension
Commencement Date and continuing throughout the Extension Term,
Tenant shall pay Base Rent for the Reduced Premises monthly, in
advance, in the manner as set forth in the Lease as
follows:
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Rate Per RSF
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Monthly Base Rent
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4.
Additional Rent
. Subject to
Section 10 below, commencing on the Extension
Commencement Date and continuing throughout the Extension Term,
Tenant shall pay Tenant’s Percentage of Operating Expenses
and Tenant’s Percentage of Real Estate Taxes in accordance
with the Lease; provided, however, that as of the Extension
Commencement Date, Tenant’s Percentage Share shall be equal
to 22.809% and the RSF of the Building shall be equal to 151,412
RSF.
5.
Condition of Premises
. Except as otherwise set
forth herein, Landlord shall have no obligation for the completion
or remodeling of the Reduced Premises and Tenant shall accept the
Reduced Premises in its “ as is ” condition and
configuration as of the Extension Commencement Date.
Notwithstanding the foregoing, subject to Section 10
below, Landlord agrees, as its only obligation hereunder with
respect to remodeling of the Reduced Premises (other than the
Additional Allowance described herein), at its sole cost and
expense to the extent of the sum of [*] ([*]) per RSF in the
Premises (the “Construction Allowance”), to finish the
Reduced Premises with Building Standard (as hereinafter defined)
improvements of the scope to be mutually agreed upon and which,
shall then be attached as Exhibit B hereto and
incorporated herein (the “Finish Work”) in accordance
with a mutually agreed upon space plan, which, upon its completion,
shall be attached as Exhibit C hereto and incorporated
herein by this reference (the “Space Plan”) using a
mutually acceptable contractor. The Construction Allowance
may be used by Tenant for costs of the Finish Work including the
architectural design, permitting, engineering, construction,
signage and project management thereof, as well as voice and data
cabling, security, furniture, moving and restacking. Other
than as set forth on the Space Plan, Landlord shall have no
obligations for the completion or remodeling of the Reduced
Premises, and Tenant shall accept the Reduced Premises in their
“as is” condition on the Extension Commencement
Date. “Building Standard” as used herein shall
mean building standard tenant finish items prestocked or in place
in the Premises which Landlord normally provides to tenants (e.g.,
ceiling grid, paint, sprinklers, HVAC and similar items).
Tenant agrees that because Tenant is currently occupying the
Reduced Premises and will continue to occupy the Reduced Premises
as of the Extension Term Commencement Date that Landlord (its
agents, employees and contractors) shall have the right to enter
the Reduced Premises to allow Landlord to perform certain
construction and remodeling work in connection with the
construction of the Finish Work. Tenant acknowledges and that
because Landlord will perform the Finish Work in and about the
Reduced Premises, that certain interruption and interference with
Tenant’s business will likely occur. Landlord will use
reasonable efforts to attempt to minimize the interferences with
Tenant’s business during the construction of the Finish
Work. Nevertheless, Tenant waives (a) any and all claims
against Landlord based on constructive eviction and loss of use or
business; and (b) any and all claims against Landlord for any
interruption and interference with Tenant’s business during
Landlord’s construction activities including constructive
eviction. Landlord or its agent shall supervise the Finish
Work, make disbursements required to be made to the contractor, act
as a liaison between the contractor and Tenant and coordinate the
relationship between the Finish Work, the Building and the
Building’s systems. In consideration for
Landlord’s construction
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supervision services, Tenant shall pay to
Landlord a construction supervision fee equal to three percent (3%)
of the total construction costs of the Finish Work (excluding the
construction supervision fee and any other cost items not directly
supervised by Landlord as are more particularly identified on the
scope of Finish Work to be attached as Exhibit C
hereto). At Tenant’s election, Landlord shall
contribute an additional sum not to exceed [*] ([*]) per RSF in the
Reduced Premises (the “Additional Allowance”) solely
toward additional permanent leasehold improvements for or in the
Premises, excluding any costs related to Tenant’s furniture
or fixtures. The amount of the Additional Allowance actually
utilized by Tenant shall be amortized as additional Base Rent over
the initial Term at nine percent (9%) per annum, in the same manner
as a loan having equal monthly payments of principal and
interest. Tenant’s election to use all or a portion of
the Additional Allowance shall be mad
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