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:


 


	
  Period

  	
   

  	
  Rate Per RSF

  	
   

  	
  Monthly Base Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  
	
  [*]

  	
   

  	
  [*]

  	
   

  	
  [*]

  	
   

  



 


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 


 


2

















 


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 made by written notice to Landlord given no
later than upon approval of the Space Plan. 
If Tenant elects to receive  the
Additional Allowance, then within ten (10) days after Landlord’s request,
Tenant shall execute and return an amendment (in form reasonably acceptable to
Tenant) modifying the Base Rent accordingly. 
If Tenant fails timely: (i) to make its election regarding
utilization of the Additional Allowance; or (ii) to execute and return the
required lease amendment, then Landlord shall automatically be released from
its obligation to contribute the Additional Allowance, whereupon Tenant shall
promptly pay Landlord the full amount of any out of pocket costs of the Finish
Work 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 any
reason, less than all of the Extension Term remains at the time the required
lease amendment is executed and returned to Landlord, then Tenant shall, upon
demand, promptly pay all amortization payments (including interest) which would
have been payable for the elapsed portion of the Term through the month in
which such lease amendment is actually so executed and returned.  Any failure by Tenant to make any payments
required under the foregoing provisions within ten (10) days after notice
shall constitute an Event of Default under the Lease as amended by this
Amendment. In the event Tenant does not elect or fails to timely elect to
utilize the Additional Allowance, all out of pocket costs for performing the
Finish Work in excess of the Construction Allowance shall be paid by Tenant.  In the event Tenant timely elects to utilize
the Additional Allowance, all costs for 
performing the Finish Work in excess of the Construction Allowance and
Additional Allowance shall be paid by Tenant. 
Tenant shall pay to Landlord fifty percent (50%) of the amount by which
the 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 to
the payment of the costs of the Finish Work if, and when the cost of the Finish
Work is actually incurred and paid by Landlord. 
Subject to force majeure and items within the control of Landlord, the
Construction Allowance and the Additional Allowance, if applicable, must be
used within twelve (12) months following the Extension Commencement Date or
shall be deemed forfeited with no further obligation by Landlord with respect
thereto.


 


6.                                       Renewal
Option.  Subject to Section 10
below, if no uncured Event of Default exists at the time of exercise or at the
commencement of the extended term, and Tenant is occupying at least seventy-five
percent (75%) of the entire Reduced Premises at the time of such election,
Tenant may renew the Lease, as hereby amended, for one (1) additional
period of three (3) years, by delivering written notice of the exercise
thereof to Landlord not earlier than twelve (12) months nor later than nine (9) months
before the expiration of the Extension Term. 
The Base Rent payable for each month during such extended term shall be
the prevailing fair market rental rate (the “Prevailing Market Rental Rate”), at
the commencement of such extended term, for renewals of space in the Building
or complex, if applicable, of equivalent quality, size, utility and location,
with the length of the extended term and the credit standing of Tenant to be
taken into account.  Within thirty (30)
days after receipt of Tenant’s notice to renew, Landlord shall deliver to
Tenant written notice of the Prevailing Market Rental Rate and shall advise
Tenant of the required adjustment to Base Rent, if any, and the other terms and
conditions offered.  Tenant shall, within
ten (10) days after receipt of Landlord’s notice, notify Landlord in
writing whether Tenant accepts or rejects Landlord’s determination of the
Prevailing Market Rental Rate.  If Tenant
timely notifies Landlord that Tenant accepts Landlord’s determination of the
Prevailing Market Rental Rate, then, on or before the commencement date of the
extended Term, Landlord and Tenant shall execute an amendment to this Lease
extending the Extension Term on the same terms provided in the Lease as amended
by this Amendment, except as follows:


 


3

















 


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


 


(b)                                 Tenant
shall have no further renewal option unless expressly granted by Landlord in
writing.


 


If Tenant rejects
Landlord’s determination of the Prevailing Market Rental Rate, Tenant shall
notify Landlord, within ten (10) days after Landlord delivers notice of
the Prevailing Market Rental Rate to Tenant, of the rental rate that Tenant
asserts 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 such
dispute, 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 estate
submarket. The two (2) brokers so designated shall each submit a
determination of the prevailing fair market rate.  Landlord and Tenant shall each require the
brokers to make such determination and report it in writing to Landlord and
Tenant within twenty (20) days after such selection, and each party shall use
its best efforts to secure such determination within such time period.  If the two (2) selected brokers agree as
to what is the prevailing fair market rental rate, such rate shall deemed the
Prevailing Market Rental Rate.  If the
two (2) selected brokers fail to agree as to what is the prevailing fair
market rental rate and the disparity between the two (2) brokers’ asserted
prevailing fair market rate is ten percent (10%) or less, the average of the
two (2) broker’s rates shall be deemed the Prevailing Market Rental
Rate.  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 similarly
qualified broker who shall then (within ten (10) days of the brokers’
selection) determine which rate is closest to the prevailing fair market rental
rate as determined by the third (3rd) broker. 
The third (3rd) broker shall notify Landlord and Tenant of the broker’s
determination and the rental rate selected shall be the Prevailing Market
Rental Rate applicable hereunder.


 


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


 


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


 


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


 


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


 


	
  Landlord:

  
	
   

  
	
  Cushman &
  Wakefield

  
	
  11080 Circle Point Road

  
	
  Westminster, Colorado
  80020

  
	
  Attn:
  Cushman & Wakefield

  



 


 


4

















 


	
  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.                                 Condition
Subsequent.  This Amendment is
expressly subject to the following condition subsequent, that as of the
Extension Commencement Date there exist no uncured Events of Default.  If such uncured Event of Default does exist
as of the Extension Commencement Date then, at Landlord’s election, Landlord
may declare this Amendment null and void ab initio, and
thereafter: (i) Tenant’s right to exercise the Option to Extend pursuant
to Section 3.2 of the Lease shall be forfeited and there shall be no
further rights on the part of Tenant to extend the term of the Lease under the
original Lease or as amended by this Amendment; and (ii) the Lease shall
be deemed to have terminated at the end of the original Lease Term and
thereafter Tenant shall surrender possession of the Premises in the manner
required under the Lease.


 


11.                                 Mold
and Moisture.  It is generally
understood that mold spores are present essentially everywhere and that mold
can grow in most any moist location. 
Emphasis is properly placed on prevention of moisture and on good
housekeeping and ventilation practices. 
Tenant acknowledges the necessity of housekeeping, ventilation, and
moisture control (especially in kitchens, janitor’s closets, bathrooms, break
rooms and around outside walls) for mold prevention.  In signing this Amendment, Tenant has not
observed mold, mildew or moisture within the Reduced Premises; however, Tenant
has not hired any inspector to confirm/deny such claim, nor has Tenant
investigated behind any of the walls in the Reduced Premises or the
Building.  Tenant agrees to promptly
notify Landlord if Tenant observes mold/mildew and/or moisture conditions (from
any source, including leaks), and allow Landlord to evaluate and make
recommendations and/or take appropriate corrective action at Landlord’s cost
unless otherwise set forth in the Lease. 
Tenant releases Landlord from any liability for any personal injury or
damages to property caused by or associated with moisture or the growth of or
occurrence of mold or mildew on the Reduced Premises or the Building of which
Tenant knew and failed to notify Landlord in accordance with this Section 11.  In addition, execution of this Amendment
constitutes acknowledgement by Tenant that control of moisture and mold
prevention are integral to its obligations under the Lease as modified by this
Amendment; provided, however, that Landlord, at its sole cost and expense,
shall be responsible for remediation of any mold or mildew in the Building, for
fixing leaks in the Building, for providing proper ventilation to the Building
to prevent moisture accumulation, and for causing its cleaning service provider
to diligently mop up or otherwise remove any mold, mildew or moisture that such
provider encounters in its daily cleaning of the Reduced Premises.


 


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


 


5

















 


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


 


14.                                 Time
of Essence.  Time is of the essence
herein and, unless waived by Landlord (which it shall have the right, but not
the obligation, to do so) this Amendment is contingent upon execution and
delivery by Tenant to Landlord no later than 5:00 p.m.,  May 15, 2008.


 


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


 


[Remainder of Page Intentionally
Left Blank]


 


6

















 


IN WITNESS
WHEREOF, the parties have executed this Amendment as of the day and year first
above written and is effective upon delivery of a fully executed copy to
Tenant.


 


 


	
   

  	
  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

  
														



 


7

















 


EXHIBIT A


 


(The
Vacated Space)


 





 


8

















 


EXHIBIT B


 


(Scope
of the Finish Work)


 


[to be attached]


 


9

















 


EXHIBIT C


 


(The
Space Plan)


 


[to be attached]


 


10