**Exhibit 10.5.3**

 

**CERTAINCONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HASBEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSIONPURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.**

 

FIFTH AMENDMENT TOOFFICE LEASE AGREEMENT

 

THIS FIFTH AMENDMENT TO OFFICE LEASE AGREEMENT (this “Amendment”),dated as of June 16, 2008, (the “Effective Date”) is entered into by andbetween 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 Delawarelimited liability company (“CDC”) and Tenant entered into that certain OfficeLease dated April 23, 2001, as amended by that certain First Amendment andCommencement Date Memorandum dated as of November 1, 2001, that certainSecond Amendment to Lease dated as of November 12, 2002, that certainAmended and Restated Second Amendment to Lease dated as of December 9,2002, that certain Third Amendment to Lease dated as of November 23, 2003and that certain Consent of Landlord to Sublease and Fourth Amendment to Leasedated as of January 12, 2005 (collectively the “Lease”), pertaining to the premises containing approximately43,956 rentable square feet (“RSF”), commonly known as Suite 200, Suite 160and Storage Space, Suite 170, Suite 180 and Suite 190 located inthe office building located at 11080 Circle Point Road, Westminster, Colorado80020 (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 nototherwise defined herein shall have the meanings given to them in the Lease.

 

D.                                    Landlord and Tenant desire to amend the Leasein the manner and form hereinafter set forth.

 

NOW, THEREFORE, for good and valuable consideration, Landlord andTenant hereby agree as follows:

 

# 1.                                       Reduction of Premises. As of the Extension Commencement Date, the Original Premises shall bereduced by approximately 9,420 RSF as more particularly depicted andcross-hatched on Exhibit A attached hereto and incorporated hereinby this reference (the “Vacated Space”). The resulting space shall be Suite 200 and Suite 160 (and storagespace) consisting of approximately 34,536 RSF (the “Reduced Premises”) and allreferences in the Lease to the “Premises” shall mean the Reduced Premises.  Tenant agrees to vacate and surrenderpossession of the Vacated Space and, unless Landlord provides written notice toTenant to the contrary, to cause all parties claiming by, through or underTenant to vacate and surrender possession of the Vacated Space as of theExtension Commencement Date in the condition as required by the Lease and thisAmendment.  Landlord and Tenant herebyacknowledge 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 theExtension Commencement Date by Landlord or any party claiming by, through orunder Landlord shall not be deemed an eviction (constructive orotherwise).  As of the ExtensionCommencement Date, rights under the Lease solely for the Vacated Space shall bedeemed terminated as though they had expired according to their terms, andexcept as provided herein, Landlord and Tenant shall be relieved of any and allfurther obligations thereunder; provided, however, such termination shall notaffect Tenant’s liability for rental and other obligations accruing prior tothe Extension Commencement Date, including, without limitation, its obligationto pay Tenant’s Percentage Share of Operating Expenses and Tenant’s PercentageShare of Real Property Taxes attributable to the period prior to the ExtensionCommencement Date, at such time as such obligation is finally determined, norshall the same affect Landlord’s liability to Tenant with respect toAdjustments due to Tenant under the Lease with respect to the Vacated Space.

 

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# 2.                                       Term.  Providedthere 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 Premisesshall 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 ofthe Lease except as specifically provided herein to the contrary.  Tenant’s renewal hereunder shall be deemedexercise 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 thepart of Tenant to extend the term of the Lease as amended by this Amendment.

#  

# 3.                                       Base Rent.  Subject to Section 10below, commencing on the Extension Commencement Date and continuing throughoutthe Extension Term, Tenant shall pay Base Rent for the Reduced Premisesmonthly, in advance, in the manner as set forth in the Lease as follows:

#  

| **Period** | ** ** | **Rate Per RSF** | ** ** | **Monthly Base Rent** | ** ** |
|------------|------------|----------------------------|------------|---------------------------------|------------|
|       |       |                       |       |                            |       |
| [*]        |       | [*]                        |       | [*]                             |       |
| [*]        |       | [*]                        |       | [*]                             |       |
| [*]        |       | [*]                        |       | [*]                             |       |
| [*]        |       | [*]                        |       | [*]                             |       |

 

4.                                       AdditionalRent.  Subject to Section 10below, commencing on the Extension Commencement Date and continuing throughoutthe Extension Term, Tenant shall pay Tenant’s Percentage of Operating Expensesand Tenant’s Percentage of Real Estate Taxes in accordance with the Lease;provided, however, that as of the Extension Commencement Date, Tenant’sPercentage Share shall be equal to 22.809% and the RSF of the Building shall beequal to 151,412 RSF.

 

5.                                       Conditionof Premises.  Except as otherwise setforth herein, Landlord shall have no obligation for the completion orremodeling of the Reduced Premises and Tenant shall accept the Reduced Premisesin its “**as is**” condition and configuration asof the Extension Commencement Date. Notwithstanding the foregoing, subject to Section 10 below,Landlord agrees, as its only obligation hereunder with respect to remodeling ofthe Reduced Premises (other than the Additional Allowance described herein), atits sole cost and expense to the extent of the sum of [*] ([*]) per RSF in thePremises (the “Construction Allowance”), to finish the Reduced Premises withBuilding Standard (as hereinafter defined) improvements of the scope to bemutually agreed upon and which, shall then be attached as Exhibit Bhereto and incorporated herein (the “Finish Work”) in accordance with amutually agreed upon space plan, which, upon its completion, shall be attachedas Exhibit C hereto and incorporated herein by this reference (the “SpacePlan”) using a mutually acceptable contractor. The Construction Allowance may be used by Tenant for costs of the FinishWork 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 noobligations for the completion or remodeling of the Reduced Premises, andTenant shall accept the Reduced Premises in their “as is” condition on theExtension Commencement Date.  “BuildingStandard” as used herein shall mean building standard tenant finish itemsprestocked or in place in the Premises which Landlord normally provides totenants (e.g., ceiling grid, paint, sprinklers, HVAC and similar items).  Tenant agrees that because Tenant iscurrently occupying the Reduced Premises and will continue to occupy theReduced Premises as of the Extension Term Commencement Date that Landlord (itsagents, employees and contractors) shall have the right to enter the Reduced Premisesto allow Landlord to perform certain construction and remodeling work inconnection with the construction of the Finish Work.  Tenant acknowledges and that because Landlordwill perform the Finish Work in and about the Reduced Premises, that certaininterruption and interference with Tenant’s business will likely occur.  Landlord will use reasonable efforts toattempt to minimize the interferences with Tenant’s business during theconstruction of the Finish Work. Nevertheless, Tenant waives (a) any and all claims against Landlordbased on constructive eviction and loss of use or business; and (b) anyand all claims against Landlord for any interruption and interference withTenant’s business during Landlord’s construction activities including constructiveeviction.  Landlord or its agent shallsupervise the Finish Work, make disbursements required to be made to thecontractor, act as a liaison between the contractor and Tenant and coordinatethe relationship between the Finish Work, the Building and the Building’ssystems.  In consideration for Landlord’sconstruction 

 

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supervision services,Tenant shall pay to Landlord a construction supervision fee equal to threepercent (3%) of the total construction costs of the Finish Work (excluding theconstruction supervision fee and any other cost items not directly supervisedby Landlord as are more particularly identified on the scope of Finish Work tobe attached as Exhibit C hereto). At Tenant’s election, Landlord shall contribute an additional sum not toexceed [*] ([*]) per RSF in the Reduced Premises (the “Additional Allowance”)solely toward additional permanent leasehold improvements for or in thePremises, excluding any costs related to Tenant’s furniture or fixtures.  The amount of the Additional Allowanceactually utilized by Tenant shall be amortized as additional Base Rent over theinitial Term at nine percent (9%) per annum, in the same manner as a loan havingequal monthly payments of principal and interest.  Tenant’s election to use all or a portion ofthe Additional Allowance shall be made by written notice to Landlord given nolater than upon approval of the Space Plan. If Tenant elects to receive  theAdditional Allowance, then within ten (10) days after Landlord’s request,Tenant shall execute and return an amendment (in form reasonably acceptable toTenant) modifying the Base Rent accordingly. If Tenant fails timely: (i) to make its election regardingutilization of the Additional Allowance; or (ii) to execute and return therequired lease amendment, then Landlord shall automatically be released fromits obligation to contribute the Additional Allowance, whereupon Tenant shallpromptly pay Landlord the full amount of any out of pocket costs of the FinishWork in excess of the Construction Allowance in accordance with this Section 5(i.e., in accordance with the provision below describing the fifty percent(50%) payment method).  If, for anyreason, less than all of the Extension Term remains at the time the requiredlease amendment is executed and returned to Landlord, then Tenant shall, upondemand, promptly pay all amortization payments (including interest) which wouldhave been payable for the elapsed portion of the Term through the month inwhich such lease amendment is actually so executed and returned.  Any failure by Tenant to make any paymentsrequired under the foregoing provisions within ten (10) days after noticeshall constitute an Event of Default under the Lease as amended by thisAmendment. In the event Tenant does not elect or fails to timely elect toutilize the Additional Allowance, all out of pocket costs for performing theFinish Work in excess of the Construction Allowance shall be paid by Tenant.  In the event Tenant timely elects to utilizethe Additional Allowance, all costs for performing the Finish Work in excess of the Construction Allowance andAdditional Allowance shall be paid by Tenant. Tenant shall pay to Landlord fifty percent (50%) of the amount by whichthe total costs for the Finish Work will exceed the Construction Allowance  (and, if applicable the Additional Allowance)prior to Landlord beginning the Finish Work and the remaining fifty percent(50%) after Landlord completes the Finish Work. The Construction Allowance and the Additional Allowance, if applicable,shall not be disbursed to Tenant in cash, but shall be applied by Landlord tothe payment of the costs of the Finish Work if, and when the cost of the FinishWork is actually incurred and paid by Landlord. Subject to force majeure and items within the control of Landlord, theConstruction Allowance and the Additional Allowance, if applicable, must beused within twelve (12) months following the Extension Commencement Date orshall be deemed forfeited with no further obligation by Landlord with respectthereto.

 

6.                                       RenewalOption.  Subject to Section 10below, if no uncured Event of Default exists at the time of exercise or at thecommencement of the extended term, and Tenant is occupying at least seventy-fivepercent (75%) of the entire Reduced Premises at the time of such election,Tenant may renew the Lease, as hereby amended, for one (1) additionalperiod of three (3) years, by delivering written notice of the exercisethereof to Landlord not earlier than twelve (12) months nor later than nine (9) monthsbefore the expiration of the Extension Term. The Base Rent payable for each month during such extended term shall bethe prevailing fair market rental rate (the “Prevailing Market Rental Rate”), atthe commencement of such extended term, for renewals of space in the Buildingor complex, if applicable, of equivalent quality, size, utility and location,with the length of the extended term and the credit standing of Tenant to betaken into account.  Within thirty (30)days after receipt of Tenant’s notice to renew, Landlord shall deliver toTenant written notice of the Prevailing Market Rental Rate and shall adviseTenant of the required adjustment to Base Rent, if any, and the other terms andconditions offered.  Tenant shall, withinten (10) days after receipt of Landlord’s notice, notify Landlord inwriting whether Tenant accepts or rejects Landlord’s determination of thePrevailing Market Rental Rate.  If Tenanttimely notifies Landlord that Tenant accepts Landlord’s determination of thePrevailing Market Rental Rate, then, on or before the commencement date of theextended Term, Landlord and Tenant shall execute an amendment to this Leaseextending the Extension Term on the same terms provided in the Lease as amendedby this Amendment, except as follows:

 

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(a)                                  BaseRent shall be adjusted to the Prevailing Market Rental Rate; and

 

(b)                                 Tenantshall have no further renewal option unless expressly granted by Landlord inwriting.

 

If Tenant rejectsLandlord’s determination of the Prevailing Market Rental Rate, Tenant shallnotify Landlord, within ten (10) days after Landlord delivers notice ofthe Prevailing Market Rental Rate to Tenant, of the rental rate that Tenantasserts as the prevailing market rental rate applicable hereunder.  Each party shall, at their own expense,within ten (10) days after Landlord receives Tenant’s notice of suchdispute, designate by written notice to the other party one (1) qualified,unbiased real estate broker of good reputation, having at least five (5) years’experience in the Highway 36 Corridor Denver metropolitan area real estatesubmarket. The two (2) brokers so designated shall each submit adetermination of the prevailing fair market rate.  Landlord and Tenant shall each require thebrokers to make such determination and report it in writing to Landlord andTenant within twenty (20) days after such selection, and each party shall useits best efforts to secure such determination within such time period.  If the two (2) selected brokers agree asto what is the prevailing fair market rental rate, such rate shall deemed thePrevailing Market Rental Rate.  If thetwo (2) selected brokers fail to agree as to what is the prevailing fairmarket rental rate and the disparity between the two (2) brokers’ assertedprevailing fair market rate is ten percent (10%) or less, the average of thetwo (2) broker’s rates shall be deemed the Prevailing Market RentalRate.  If the disparity between the two (2) brokers’asserted prevailing fair market rate is greater than ten percent (10%) then,the two (2) brokers shall together immediately select a third similarlyqualified broker who shall then (within ten (10) days of the brokers’selection) determine which rate is closest to the prevailing fair market rentalrate as determined by the third (3rd) broker. The third (3rd) broker shall notify Landlord and Tenant of the broker’sdetermination and the rental rate selected shall be the Prevailing MarketRental Rate applicable hereunder.

 

Unless otherwise agreedto in writing, Landlord shall not be obligated to pay a commission with respectto Tenant’s exercise of the Option, and Tenant shall indemnify, defend, andhold Landlord harmless from and against all costs, expenses, attorneys’ fees,and other liability for commissions or other compensation claimed by any brokeror agent claiming the same by, through, or under Tenant.  If Tenant rejects Landlord’s determination ofthe Prevailing Market Rental Rate, or fails to timely notify Landlord inwriting that Tenant accepts or rejects Landlord’s determination of thePrevailing Market Rental Rate, time being of the essence with respect thereto,Tenant’s rights under this Section 6 shall terminate and Tenantshall have no right to renew this Lease. Tenant’s rights under this Section 6 shall terminate if (1) theLease as amended by this Amendment or Tenant’s right to possession of theReduced Premises is terminated, (2) Tenant assigns any of its interest inthe Lease as amended by this Amendment except to an Affiliated Assignee orsublets any portion of the Reduced Premises except to an Affiliate, (3) Tenantfails to timely exercise its option under this Section 6, timebeing of the essence with respect to Tenant’s exercise thereof, or (4) Landlorddetermines, in its reasonable judgment, that Tenant will be unable to meet itsfinancial obligations under the Lease as extended due to Tenant’s financialcondition or creditworthiness.

 

7.                                       ExpansionOption.  During the Extension Term,Tenant shall have the Right of First Offer as set forth in Section 2.5 ofthe Lease.

 

8.                                       Parking.  As of the Extension Commencement Date, Tenantshall have the right to One Hundred Forty-Five (145) parking spaces inaccordance with the terms of the Lease.

 

9.                                       Notices.  Wherever any notice is required or permittedunder the Lease as amended by this Amendment such notice shall be in writingand delivered in accordance with the terms of the Lease; provided, however thatLandlord’s address for notices shall be as follows:

 
| Landlord:                           |
|-------------------------------------|
|                                |
| Cushman &  Wakefield       |
| 11080 Circle Point Road             |
| Westminster, Colorado  80020        |
| Attn:  Cushman & Wakefield |

 

 

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| With a copy to:                         |
|-----------------------------------------|
|                                    |
| Circle Point  Properties, LLC           |
| c/o Northridge Capital,  LLC            |
| 1000 Potomac Street NW,  Suite 150 |
| Washington, DC 20007                    |
| Attn.:  Kevin Fay                  |
|                                    |
| Tenant:                                 |
|                                    |
| AT THE PREMISES                         |
|                                    |
| With a copy to:                         |
| Attn: General Counsel                   |

 

10.                                 ConditionSubsequent.  This Amendment isexpressly subject to the following condition subsequent, that as of theExtension Commencement Date there exist no uncured Events of Default.  If such uncured Event of Default does existas of the Extension Commencement Date then, at Landlord’s election, Landlordmay declare this Amendment null and void *ab initio*, andthereafter: (i) Tenant’s right to exercise the Option to Extend pursuantto Section 3.2 of the Lease shall be forfeited and there shall be nofurther rights on the part of Tenant to extend the term of the Lease under theoriginal Lease or as amended by this Amendment; and (ii) the Lease shallbe deemed to have terminated at the end of the original Lease Term andthereafter Tenant shall surrender possession of the Premises in the mannerrequired under the Lease.

 

11.                                 Moldand Moisture.  It is generallyunderstood that mold spores are present essentially everywhere and that moldcan grow in most any moist location. Emphasis is properly placed on prevention of moisture and on goodhousekeeping and ventilation practices. Tenant acknowledges the necessity of housekeeping, ventilation, andmoisture control (especially in kitchens, janitor’s closets, bathrooms, breakrooms and around outside walls) for mold prevention.  In signing this Amendment, Tenant has notobserved mold, mildew or moisture within the Reduced Premises; however, Tenanthas not hired any inspector to confirm/deny such claim, nor has Tenantinvestigated behind any of the walls in the Reduced Premises or theBuilding.  Tenant agrees to promptlynotify Landlord if Tenant observes mold/mildew and/or moisture conditions (fromany source, including leaks), and allow Landlord to evaluate and makerecommendations and/or take appropriate corrective action at Landlord’s costunless otherwise set forth in the Lease. Tenant releases Landlord from any liability for any personal injury ordamages to property caused by or associated with moisture or the growth of oroccurrence of mold or mildew on the Reduced Premises or the Building of whichTenant knew and failed to notify Landlord in accordance with this Section 11.  In addition, execution of this Amendmentconstitutes acknowledgement by Tenant that control of moisture and moldprevention are integral to its obligations under the Lease as modified by thisAmendment; provided, however, that Landlord, at its sole cost and expense,shall be responsible for remediation of any mold or mildew in the Building, forfixing leaks in the Building, for providing proper ventilation to the Buildingto prevent moisture accumulation, and for causing its cleaning service providerto diligently mop up or otherwise remove any mold, mildew or moisture that suchprovider encounters in its daily cleaning of the Reduced Premises.

 

12.                                 Brokers.  Tenant and Landlord hereby warrant andrepresent each to the other that neither has engaged any brokers or agents inthe transaction which resulted in this Amendment other than CB Richard Ellis, Inc.,(“Landlord’s Broker”) and Jones Lang LaSalle (“Tenant’s Broker”), which shallbe paid a commission by Landlord pursuant to a separate agreement.  Each party shall indemnify the other againstany expense incurred as a result of any claim for brokerage or othercommissions made by any other broker, finder, or agent, whether or not meritorious,employed by the other party or claiming by, through, or under Tenant orLandlord respectively.

 

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13.                                 Interpretation.  If there is any conflict between the terms ofthis Amendment and the terms of the Lease, the terms of this Amendment shallgovern.  Except as herein specificallyset forth, all other provisions of the Lease shall remain in full force andeffect and be binding upon the parties in accordance with their terms.  The Lease as hereby amended is in full forceand effect, is hereby ratified and affirmed by the parties, and is binding uponthe parties in accordance with its terms.

 

14.                                 Timeof Essence.  Time is of the essenceherein and, unless waived by Landlord (which it shall have the right, but notthe obligation, to do so) this Amendment is contingent upon execution anddelivery by Tenant to Landlord no later than **5:00 p.m.,  May 15, 2008**.

 

15.                                 Counterparts.  This Amendment may be executed in one or moreseparate counterparts but each separate counterpart, when assembled with theother signature pages from the corresponding counterpart signature pages,shall constitute one original executed Amendment.

 

[Remainder of Page IntentionallyLeft Blank]

 

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IN WITNESSWHEREOF, the parties have executed this Amendment as of the day and year firstabove written and is effective upon delivery of a fully executed copy toTenant.

 

 
|   | **LANDLORD:**                         |
|--------|---------------------------------------|
|   |                                  |
|   | CIRCLE POINT  PROPERTIES, LLC,        |
|   | a Delaware limited  liability company |
|   |                                  |
|   | By:                                   | Circle Point Properties  II, LLC |
|   |                                  | a Delaware limited  liability company |
|   |                                  | its:   Sole Member |
|   |                                  |   |
|   |                                  | By: | Circle Point Holdings,  LLC |
|   |                                  |   | a Delaware limited  liability company |
|   |                                  |   | its:   Sole Member |
|   |                                  |   |   |
|   |                                  |   | By: | NORTHRIDGE CAPITAL,  LLC, |
|   |                                  |   |   | a Delaware limited  liability |
|   |                                  |   |   | company, its Managing  Member |
|   |                                  |   |   |   |
|   |                                  |   |   | By: |   /s/ Kevin J. Fay |
|   |                                  |   |   | Name: |  Kevin J. Fay |
|   |                                  |   |   | Title: |  Vice President |
|   |                                  |   |   |   |
|   |                                  |   |   |   |
|   | **TENANT:**                           |   |
|   | ** **                            |   |
|   | ALLOS THERAPEUTICS,  INC.,            |
|   | a Delaware corporation                |
|   |                                  |
|   | By:                                   |  /s/ Marc Graboyes |
|   | Name:                                 |  Marc Graboyes |
|   | Title:                                |   SVP,  General Counsel |
|   |                                  |   |   |   |
|   | ATTEST:                               |
|   |                                  |
|   | By:                                   |   /s/ David C. Clark |
|   | Name:                                 |  David C. Clark |
|   | Title:                                |  VP Finance |
|        |                                       |  |  |  |  |  |  |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**(TheVacated Space)**

 

 

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**EXHIBIT B**

 

**(Scopeof the Finish Work)**

 

[to be attached]

 

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**EXHIBIT C**

 

**(TheSpace Plan)**

 

[to be attached]

 

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