Exhibit 10.2


 


FIFTH AMENDMENT TO LEASE


 


This FIFTH AMENDMENT TO LEASE (this “Fifth
Amendment”) is made this 20th day of October, 2004, by and between TIAA REALTY,
INC., a Delaware corporation (“Landlord”) and PROCYTE CORPORATION, a Washington
corporation (“Tenant”).


 


RECITALS


 


A.            Landlord
is the landlord and Tenant is the tenant under that certain Lease dated August
30, 1993 (the “Initial Lease”), as modified by First Amendment to Lease dated
for reference purposes January 17, 1994 (the “First Amendment”), Second
Amendment to Lease dated for reference purposes February 28, 1997 (the “Second
Amendment”), Third Amendment to Lease dated for reference purposes July 11,
2001 (the “Third Amendment”), and Fourth Amendment to Lease dated for reference
purposes October 28, 2002 (“Fourth Amendment”) (collectively the “Lease”).


 


B.            The
Lease is for premises located at 8511 154th Avenue NE, Redmond,
Washington 98052, Building A, Units 8511 (the “Initial Premises”) and 8525 (the
“Expansion Premises”) (collectively the “Premises”).  The legal description of the land on which
the Premises are located is attached hereto as Exhibit A.


 


C.            The
parties desire to amend the Lease to terminate the Lease with respect to that
portion of the Initial Premises shown in cross hatching on Exhibit B (the “Deleted
Area”) leaving the portion shaded on Exhibit B. 
The Initial Premises, the Expansion Premises and the Deleted Area are
designated on Exhibit B


 


D.            Except
as otherwise specifically defined herein all capitalized terms shall have the
meanings assigned in the Lease.


 


AGREEMENT


 


Now, therefore, for good and valuable
consideration, the receipt of which is hereby acknowledged, the parties
acknowledge and agree to the following:


 





















 


1.             On the date on
which the contingency described in Section 12 has occurred (the “Fifth
Amendment Effective Date”), the Lease shall terminate with respect to the
Deleted Area as though the expiration date for the Deleted Area were the Fifth
Amendment Effective Date, and Tenant shall surrender the Deleted Area broom
clean and in the condition existing on October 15, 2004, except that Tenant
shall have removed from the Deleted Area the Hazardous Materials as set forth
in Section 2 below.  Except for the
obligation to remove Hazardous Materials as described in the preceding
sentence, Tenant shall not be bound by any of the obligations set forth in
Sections 6.04, 6.05 and 6.06 of the Lease with respect to the restoration or
the condition of the Deleted Area.


 


2.             Prior to the Fifth
Amendment Effective Date, Tenant shall at its sole cost and expense  remove from the Deleted Area all Hazardous Materials
(as defined below), except those materials which ICOS Corporation is purchasing
from Tenant in the asset purchase and sale transaction, in compliance with
applicable laws and regulations.  Upon
completion of such removal and in any event prior to the Fifth Amendment
Effective Date Tenant shall provide Landlord with a certification from Tenant
that it has completed all removal of Hazardous Materials required of it under
the preceding sentence.


 


3.             As used herein, the
term “Hazardous Materials” means and includes any substance, material, waste,
pollutant, or contaminant  that is or
could be regulated under any Environmental Requirement or that may adversely
affect human health or the environment, including, without limitation, any
solid or hazardous waste, hazardous substance, asbestos, petroleum (including
crude oil or any fraction thereof), natural gas, synthetic gas, polychlorinated
biphenyls (PCBs), radioactive material, viruses and bioengineered materials,
pharmaceuticals, Medical Waste as defined in 42 U.S.C. 6992 (1998) or any
comparable law, drugs and other medical or research items and substances and
any and all materials used in biomedical research for which special reporting,
handling (including special security measures to prevent theft or misuse)
and/or disposal is required.  The term “Environmental
Requirements” means all applicable present and future statutes, regulations,
ordinances, rules, codes, judgments, permits, authorizations, orders, policies
or other similar requirements of any governmental authority, agency or court
regulating or relating to health, safety, or environmental conditions on,
under, or about the Premises or the environment and all industry standards,
including, without limitation, the following: 
the Comprehensive Environmental Response, Compensation and Liability
Act; the Clean Air Act; the Clean Water Act; the Toxic Substances Control Act,
the Chemical Hazards Regulation, the Transportation of Dangerous Goods Control
Act and Regulation, and the Occupational Health and Safety Act and all state
and local counterparts thereto; including but not limited to all applicable
Washington requirements, including, but not limited to, the Washington Model
Toxics Control Act, the Washington Industrial Safety and Health Act, and any
policies or rules promulgated thereunder as well as any County or City
ordinances (including King County waste management ordinances and regulations)
that may operate independent of, or in conjunction with, the State programs, as
well as the


 





















 


standards, policies and procedures set forth in the CDC/NIH publication
Biosafety in Microbiological and Biomedical
Laboratories.


 


4.             From and after the
Fifth Amendment Effective Date, the rentable square footage of the Initial
Premises shall be deemed to be 12,182 square feet, the rentable square footage
of the Expansion Premises shall be deemed to be 1,727 square feet, and the
rentable square footage of the Project shall be deemed to be 40,898 square
feet, and all calculations in the Lease based on square footages or Tenant’s
pro rata share shall be based on these square footages, except for Base Monthly
Rent which will be adjusted as set forth in Sections 5 and 6 below.


 


5.             From the Fifth
Amendment Effective Date through June 30, 2005, the Base Monthly Rent for the
Initial Premises shall be $14,462, and from July 1, 2005 through the expiration
date of the Lease, the Base Monthly Rent for the Initial Premises shall be
$15,240.  The parties confirm that the
Lease will expire with respect to the Initial Premises on June 30, 2007.


 


6.             The Base Monthly
Rent for the Expansion Premises shall be as set forth in the Fourth Amendment
(including January 1, 2005 adjustment). 
The parties confirm that the Lease will expire with respect to the
Expansion Premises on December 31, 2005.


 


7.             Upon full execution
of this Fifth Amendment, Landlord, at its sole expense, will promptly commence
and diligently pursue construction of a demising wall in the location shown as “Demising
Wall” on Exhibit B.  Landlord will
install one building-standard door between the office and the warehouse
premises of the newly-demised space as determined by Tenant and approved by
Landlord.  Landlord will construct the
demising wall in accordance with all applicable building codes and construction
standards commonly used for demising walls in similarly situated
office/warehouse space.  Landlord will
use reasonable best efforts to construct the demising wall in such a manner and
at such times as will minimize interference with Tenant’s normal business
activities.  The completion date of the
demising wall will not affect the Fifth Amendment Effective Date.


 


8.             From and after the
Fifth Amendment Effective Date, Tenant shall not be allowed to have any
exterior storage trailer or container on the Project, except in connection with
reasonable commercial use for loading and unloading.


 


9.             On the Fifth
Amendment Effective Date, Section 6.06(b) of the Initial Lease shall be deemed
deleted.


 


10.           Tenant will maintain
the current security deposit level of $38,277 throughout the remainder of the
term; however, should Tenant vacate the Expansion Premises, the security
deposit shall be lowered by $2,495 as described in paragraph 6 of the Fourth
Amendment.


 





















 


11.           This Fifth Amendment
constitutes the entire agreement between Landlord and Tenant with respect to
the subject matter of this Fifth Amendment.


 


12.           This Fifth Amendment
is contingent on Landlord entering into a lease with ICOS Corporation for the Deleted
Area on terms and conditions satisfactory to Landlord in its discretion.  If Landlord has not entered into such a lease
by November 1, 2004, this Fifth Amendment shall be deemed null and void.


 


13.           From and after the
Fifth Amendment Effective Date, all references to the defined terms:  (a) “Initial Premises” and “Expansion
Premises” will exclude the Deleted Area, and (b) “Property” and “Premises” will
mean the Initial Premises and the Expansion Premises as defined in this Section
13.


 


14.           This Amendment may
be executed in counterparts, and, when all counterpart documents are executed,
the counterparts shall constitute a single binding instrument.  The delivery of this Amendment by Landlord to
Tenant shall not be deemed to be an offer and shall not be binding upon either
party until executed and delivered by both parties.


 


15.           Except as
specifically set forth herein, the Lease is and remains unmodified, in full
force and effect and binding on the parties.


 


 


	
  Landlord:

  	
  TIAA Realty,
  Inc., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:  Teachers
  Insurance & Annuity Association,

  
	
   

  	
   

  	
  a New York
  corporation, as

  
	
   

  	
   

  	
  authorized
  representative

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mario
  Mirabelli

  	
   

  
	
   

  	
   

  	
   

  	
  Mario
  Mirabelli

  
	
   

  	
   

  	
  Its:

  	
  Assistant
  Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Tenant:

  	
  ProCyte
  Corporation, a Washington corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  W. Benson

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Chief
  Financial Officer

  	
   

  
									



 





















 


Landlord:


 


	
  STATE OF

  	
  New York

  	
  )

  
	
   

  	
   

  	
  ) ss.

  
	
  COUNTY OF

  	
  New York

  	
  )

  



 


I certify that I know or have
satisfactory evidence that Mario Mirabelli signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it in
his capacity as authorized signatory of Teachers Insurance & Annuity
Corporation, authorized representative of TIAA REALTY, INC., to be the free and
voluntary act of such party for the uses and purposes mentioned in the
instrument.


 


GIVEN under my
hand and official seal this 21st day of October, 2004.


 


	
   

  	
  /s/  Tekecia Reynolds

  	
   

  
	
   

  	
  NOTARY
  PUBLIC in and for the

  State of New York, residing

  at New York;

  
	
   

  	
  My
  commission expires: July 3, 2007 

  
	
   

  	
  Tekecia Reynolds

  	
   

  
	
   

  	
  [Type or
  Print Notary Name]

  



 


Tenant:


 


	
  STATE OF

  	
  Washington

  	
  )

  
	
   

  	
   

  	
  ) ss.

  
	
  COUNTY OF

  	
  King

  	
  )

  



 


I certify that I know or have
satisfactory evidence that Robert Benson signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it in
his/her capacity as CFO of ProCyte Corporation, to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.


 


GIVEN under my
hand and official seal this 21st day of October, 2004.


 


	
   

  	
  /s/  Vicki A. Berry

  	
   

  
	
   

  	
  NOTARY
  PUBLIC in and for the

  State of Washington, residing

  at King County;

  
	
   

  	
  My
  commission expires:  December 11, 2007

  
	
   

  	
  Vicki A.
  Berry

  	
   

  
	
   

  	
  [Type or
  Print Notary Name]