exv10w36



 








EXHIBIT 10.36




THIRD AMENDMENT TO LEASE




     This Third Amendment to Lease Agreement (“Third Amendment”) is to be
effective upon the closing of the Purchase and Sale Contract, Church Ranch
Business Park, entered into by and between Scott Kaufman (“Landlord”) and
LaSalle Bank, N.A., made and entered into effective as of July 30, 2004
(“Effective Date”) and is entered into by and between Landlord and Myogen, Inc.
(“Tenant”). The Tenant and Landlord may be referred to herein as the “Parties”
and either one of them may be referred to herein as a “Party”.



RECITALS




     A. Church Ranch Business Center, LLC, a Colorado limited liability
company, as Landlord (“Original Landlord”) and Tenant entered into that certain
lease agreement dated January 1, 2002 (which, together with the First
Amendment, the Second Amendment, and Third Amendment described below shall be
referred to herein as the “Lease”), for the lease of space designated as Suites
102-107, Building 1, and Suites 209-212, Building 2, totaling approximately
22,040 gross square feet, in the Church Ranch Business Center, 7575-7577 West
103rd Avenue, Westminster, Colorado 80021 (the “Project”).



     B. Sevo Miller, Inc. as receiver (“Receiver”) by that certain order
appointing receiver dated June 16, 2003, and Tenant entered into that certain
First Amendment to Lease dated December 2, 2003, to amend the Lease for an
additional 6,202 square feet of space and to add Suite 213, Building 2 to the
definition of the Property being leased by the Tenant.



     C. LaSalle Bank, N.A. is the successor in interest to the Original
Landlord and is the current owner of the Project.



     D. LaSalle Bank, N.A. and the Tenant entered into that certain Second
Amendment to Lease dated April 15, 2004 to amend the lease for an additional
9,734 square feet of space and to add Suite 109, Building 1 to the definition
of Property being leased by the Tenant.



     E. Scott Kaufman and LaSalle Bank, N.A. entered into a Purchase and Sale
Contract Church Ranch Business Park, made and entered into effective as of July
30, 2004 (the “Purchase Contract”) under which Scott Kaufman agreed to purchase
the real property located at 7575-7581 103rd Street, Broomfield, Colorado,
commonly known as the Church Ranch Business Park (the “Project”).



     F. The Tenant has requested that Scott Kaufman, or his assigns, as
permitted under the Purchase Contract, upon the closing of the purchase of the
Project under the Purchase Contract and contingent upon the closing of the
Purchase Contract on or before November 1, 2004, enter into a lease for an
additional 2,025 square feet of space at the Project, which additional space is
currently occupied by GoEngineer (the “GoEngineer Space”) and Tenant and Scott
Kaufman, or his assigns, upon becoming the owner of the Project, have agreed to
amend the terms of the Lease to permit Tenant to lease the GoEngineer Space,
subject to and contingent upon the GoEngineer Space becoming available for
lease to the Tenant.



 









 





     In consideration of the mutual agreements set forth herein, Scott Kaufman,
as Landlord, and Tenant agree that the Lease will be amended as follows:



     1. Property. Upon delivery of the GoEngineer Space to the Tenant, the
definition of the “Property”, as defined in Section 1.04 of the Lease, is
amended to include the GoEngineer Space. The GoEngineer Space is depicted
on Exhibit A to this Third Amendment. Except as set forth herein, the
Property shall be deemed to include the GoEngineer Space for all purposes
under the Lease. This provision of the Third Amendment to Lease is
subject to and
conditioned upon the Landlord being successful in its efforts to relocate
GoEngineer or to terminate the lease between GoEngineer and the Landlord
with an out-of-pocket expense of the Landlord not to exceed Ten Dollars
($10.00) per square foot of the space currently being leased by GoEngineer.
The Landlord agrees to use reasonable efforts to relocate GoEngineer or to
terminate the GoEngineer lease, but if Landlord is not successful in those
endeavors, Landlord will have no obligation to lease the GoEngineer Space to
the Tenant.



     2. Term. The definition of “Lease Term” as set forth in Section 1.05 of the
Lease, which shall be applicable to all property leased by the Tenant
including the property leased under the original Lease, the property
leased under the First Amendment to Lease, the property leased under the
Second Amendment to Lease, and the GoEngineer Space, upon delivery of that
space to the Tenant, shall commence on November 1, 2004 (or such earlier
date as Scott Kaufman, or his assigns, closes on the purchase of the
Project under the Purchase Contract) and shall terminate at 11:59 p.m. on
October 31, 2008. The Tenant’s lease of the GoEngineer Space shall
commence on the date that the Landlord delivers that space to the Tenant.



     3. Security Deposit. No security deposit is being required in addition to
the $27,299.15 Security Deposit that has already been deposited with
LaSalle Bank, N.A. Upon the closing of Landlord’s purchase of the
Project, Landlord shall take possession of Tenant’s existing Security
Deposit and hold the same in trust pursuant to the terms and conditions of
the Lease. Upon the expiration or earlier termination of the Lease,
Landlord shall return to Tenant all unused portions of the Security
Deposit in accordance with the terms and conditions of the Lease.



     4. Base Rent. Commencing on the effective date of this Third Amendment, and
provided that Scott Kaufman, or his assigns, is successful in delivering
the GoEngineer Space to the Tenant, the base rent as described in Section
1.12(a) of the Lease, for all property subject to the Lease, as modified
by the various amendments to the Lease, shall be the fixed amount of
Thirty Thousand Dollars and Seventy-Five Cents ($30,000.75) per month
(based on 40,001 square feet of space at a rental rate of $9.00 per square
foot). The base rent shall remain at that amount from the commencement
date of this Third Amendment through October 31, 2005. Thereafter, the
base rent shall be increased 2.5% per annum. During any period in which
the Landlord is not successful in delivering the GoEngineer Space to the
Tenant, the base rent for all space shall be the fixed amount of
Twenty-Eight Thousand Four Hundred Eighty-Two Dollars ($28,482.00) per
month (based upon a rate of $9.00 per square foot x 37,976 square feet of
rentable space), subject to an annual increase of 2.5%.



     5. Additional Rent. Tenant shall pay Additional Rent as provided by the
terms of the Lease. Current operating expenses for the Property are
estimated to be approximately $4.50 per rentable square foot per annum,
excluding Tenant’s utilities and janitorial expenses. Landlord agrees
that the Additional Rent controllable expenses to be paid by the Tenant
under the Lease



2









 







shall not exceed an annual increase of more than four
percent (4%) per year in excess of the current operating expenses.
“Controllable expenses” are expenses controllable by the Landlord but do
not include, for example, taxes, utilities, insurance, and other charges
beyond the Landlord’s control.



     6. Acceptance of GoEngineer Space. The taking of possession of the
GoEngineer Space shall be deemed acceptance of the same by Tenant in its
“As Is” condition, except for latent defects, without any obligation
whatsoever on the part of the Landlord to repair, remodel, reconstruct, or
modify the GoEngineer Space for Tenant. EXCEPT WITH RESPECT TO LATENT
DEFECTS, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GOENGINEER SPACE,
OR OF ANY OTHER KIND ARISING OUT OF THIS THIRD AMENDMENT, AND THERE ARE NO
WARRANTIES WITH RESPECT TO THE GOENGINEER SPACE THAT EXTEND BEYOND THOSE
EXPRESSLY STATED IN THIS THIRD AMENDMENT. Notwithstanding the foregoing,
Landlord shall be responsible for the costs of any latent defects in the
GoEngineer Space, provided Tenant gives written notice of same to Landlord
within ninety (90) days of occupancy of the GoEngineer Space. “Latent
defects” as used herein, shall mean a defect that would not ordinarily be
observed during a walk-through inspection of the GoEngineer Space.



     7. Right of First Refusal.



          a. Right of First Refusal to Lease Additional Property. Provided the Lease
is in full force and effect, and that the Tenant is not in default under
the Lease and that space is available, Tenant shall have a right of first
refusal to lease any additional space owned by the Landlord in the Church
Ranch Business Center. If the Landlord desires to lease any additional
space in the Church Ranch Business Center and receives from a third party
a bona fide offer to lease additional property in the Church Ranch
Business Center, which offer is acceptable to the Landlord, Landlord
agrees to disclose the terms of such offer to the Tenant, in writing.
Tenant shall have five (5) business days after receiving notice of the
terms of the offer from the Landlord within which to elect to lease
additional property in the Church Ranch Business Center, or a portion
thereof, on terms identical to those offered to the Landlord by the third
party. Such an election shall be made by written notice to the Landlord
within five (5) business days after the Tenant receives the Landlord’s
notice of its intent to lease all or a portion of the space in the Church
Ranch Business Center which has been requested by a third party. If
Tenant elects to exercise its right of first refusal, Tenant shall enter
into a lease with the Landlord for the additional space on the terms and
conditions as contained in the offer from the third party. Said lease
shall be entered into within thirty (30) days after the Tenant receives a
draft of the Lease. The term of any lease for additional space pursuant
to this paragraph shall be coterminous with the term of all space leased
by the Tenant. In the event the offer from the third party includes
Tenant incentives, such as, but not limited to, an offer to lease space
with the requirement that the Landlord provide and pay for tenant finish,
any lease to be entered into by Tenant and Landlord, pursuant to this
right of first refusal, shall provide that all such Tenant incentives or
requirements of the Landlord to provide tenant finish shall be prorated
based on the length of the term of the lease to be entered into by the
Landlord and by the Tenant as compared to the offer from the third party.
For example, if the offer from the third party includes a provision that
the Landlord provide tenant finish in the amount of $10,000.00 and the
lease is for a five (5) year



3









 







term and the lease to be entered into by the
Landlord and Tenant is only for a two (2) year term, the lease between the
Landlord and Tenant shall only obligate Landlord to provide tenant finish
in the amount of $4,000.00 rather than tenant finish in the amount of
$10,000.00. Tenant’s right of
first refusal under this paragraph 7(a) shall terminate and shall
automatically expire, as to that portion of the Property known as Buildings
3 and/or 4 if Landlord receives an offer to purchase Buildings 3 and/or 4,
which offer is acceptable to the Landlord, and Tenant fails to exercise its
right of first refusal to purchase the building that is subject to that
offer as set forth in paragraph 7(b) below. Tenant’s right of first refusal
to lease additional space in that portion of the Property known as Buildings
1 and 2 shall continue notwithstanding Tenant’s failure to exercise its
right of first refusal to purchase Buildings 3 and/or 4 as set forth in
paragraph 7 b below.



          b. Right of First Refusal to Purchase Buildings 3 and/or 4. In the
event Landlord desires to sell that portion of the Property known as
Buildings 3 and/or 4 (“Buildings 3 and/or 4”) and Landlord receives from a
third party a bona fide offer to purchase either Building 3, Building 4 or
both Buildings 3 and 4, and that offer is acceptable to Landlord, Landlord
agrees to disclose the terms of such offer to Tenant, in writing, within
five (5) business days following receipt of the offer. Upon receiving
written notice of the terms of the offer and upon receipt of a copy of that
offer, Tenant shall have five (5) business days in which to elect to
purchase the building or buildings subject to that offer on terms identical
to those offered by the third party. Such an election shall be made by
written notice to the Landlord. Within thirty (30) days thereafter, the
parties shall enter into a written contract of sale in a form approved by
the Colorado Real Estate Commission expressly including and incorporating
all of the terms of the third party offer made to the Landlord, except as
the parties may mutually agree. Within three (3) days after the full
execution of the Colorado Real Estate Commission Contract, the Tenant shall
deposit an earnest money check with a mutually agreed upon title company in
the amount contained in the third party offer, to be applied to the purchase
price. If the Tenant, after receiving notice of the third party offer,
fails to exercise its right of first refusal to purchase the building or
buildings subject to that offer, within the allotted five (5) business day
period, Tenant’s right of first refusal to purchase the building or
buildings subject to that offer and Tenant’s right of first refusal to lease
space in the building or buildings subject to that offer, as set forth in
paragraph 7(a) above, shall terminate and Tenant shall thereafter have no
further right to either lease space in the building or buildings subject to
that offer nor shall Tenant thereafter have any further right to purchase
the building or buildings subject to that offer. Notwithstanding the
foregoing, if the property subject to the right of first refusal is not sold
to the third party pursuant to the offer submitted by the third party and
accepted by the Landlord, as may be extended for a period of time not to
exceed sixty (60) days, Tenant’s right of first refusal to purchase the
property subject to that offer shall be reinstated and Tenant shall have a
right of first refusal on any additional or subsequent offers to purchase
the property subject to that offer in accordance with the provisions of this
paragraph 7b.



     8. Option to Extend Term. Tenant shall have two options to extend the term
of this lease for an additional five (5) years each. The options must be
exercised by written notice to the Landlord not later than nine (9) months
prior to the then current term expiration date. Failure to timely notify
the Landlord of the exercise of the option to extend the term of this
lease shall result in the expiration of such option to extend term. In
the event of any timely exercise of the option to extend the term of this
Lease, the base rent shall be in an amount to be mutually agreed upon by
the Landlord and the Tenant, which in no event shall be less than the rent
being paid by the Tenant, including all annual increases, at the end of
the then
current term. In the event the parties are unable to agree upon the base
rent for the renewal terms, within sixty (60) days after



4









 







the Landlord’s
receipt of the Tenant’s notice, the base rent for the renewal terms shall be
determined in the following manner:



          a. Procedure. If the Landlord and the Tenant cannot agree upon the then
current market rent for the Leased Premises, the market rent shall be
determined by appraisal as set forth herein. The Landlord and the Tenant shall
each select a qualified independent leasing professional, each of whom shall
determine the market rent for the Leased Premises. Each party shall be
responsible for paying the leasing professional which they select. If there is
a difference between the appraisals of such two leasing professionals of
fifteen percent (15%) or less of the highest such appraisal, the fair market
value for the purposes hereof shall be the average of the two appraisals. If
the difference between the appraisals is in excess of fifteen percent (15%),
the two leasing professionals shall select a third qualified independent
leasing professional who shall also determine the market rent of the Leased
Premises, and, in such event such market rent for the purposes hereof shall be
the average of such three appraisals. If either party does not appoint its
leasing professional within twenty (20) days after the date of the notice of
the exercise of the extension option, the appraisal made by the leasing
professional selected by the other party within such period shall be used to
determine the fair market value. In the event a third leasing professional is
necessary, such leasing professional shall be chosen within twenty (20) days
after the comparison of the appraisals of the first two leasing professionals.
The fees and expenses of the third leasing professional, if necessary, shall be
paid equally by the Landlord and the Tenant. If either party fails to
contribute the funds or the fees and expenses of the third leasing
professional, the appraisal of the leasing professional hired by the other
party shall be determinative of the fair market value.



          b. Guidelines. In order to be properly selected hereunder, a leasing
professional must have (i) submitted an estimate of the cost of such appraisal,
and (ii) contracted to provide the appraisal within ten (10) days after being
hired. The market rent of the Leased Premises shall be the leasing
professional’s opinion of comparable then existing market rate rents for
comparable premises, for a comparable term within a five-mile radius of the
Property. In order to be considered a qualified independent leasing
professional for purposes hereof, a leasing professional must be a licensed
real estate broker employed by a reputable local, regional or national real
estate brokerage company, with at least five (5) years of experience in
representing landlords and/or tenants in commercial leasing transactions. The
determination of the market rent in accordance with the foregoing shall be
final and binding upon the parties.



     Tenant shall also have the right, upon giving the Landlord written notice
no later than sixty (60) days prior to termination of the Lease, to extend the
term of this Lease for an additional four (4) months, at the then current
rental rates. In the event the Tenant holds over and remains in possession
after this Lease has expired, for a period of time not to exceed one (1) year
from the date this Lease was to have otherwise terminated, and without any
written agreement with the Landlord, the base rent shall be at a rental rate of
150% of the base rent prior to the holdover. Unless Tenant holds over pursuant
to a written agreement, Tenant’s occupancy of the premises shall be on a
month-to-month basis.



     9. Tenant Improvement Allowance. Landlord shall provide Tenant a tenant
improvement allowance, to construct Tenant finish and improvements in the space
leased by the Tenant (including the GoEngineer Space), in an amount up to Two
Hundred Fifty Thousand Dollars ($250,000.00). The Tenant shall be entitled to
the entire $250,0000.00 improvement



5









 







allowance whether or not the Landlord is able to deliver the GoEngineer
Space to the Tenant. The tenant improvement allowance shall be allowed for any
costs related to the Tenant’s occupancy including space planning, voice and
data cabling, furniture, tenant improvements, or rent credits. The tenant
improvement allowance shall be paid by the Landlord to the Tenant within
forty-five (45) days of receipt from the Tenant of invoices and documentary
evidence, reasonably acceptable to the Landlord, supporting the expenditures,
or upon the date that Tenant notifies the Landlord that it will apply the
improvement allowance as a rent credit, and provided Tenant has delivered to
the Landlord invoices and documentary evidence reasonably acceptable to the
Landlord supporting the expenditures. Any amounts to be paid to the Tenant for
a tenant improvement allowance shall be for expenditures incurred by the Tenant
not more than nine (9) months prior to the effective date of this Third
Amendment, and not more than six (6) months after the Landlord delivers the
GoEngineer Space to the Tenant. If Tenant elects to apply some or all of the
Tenant Improvement Allowance as a rent, common area maintenance, insurance and
property tax credit, Tenant shall so inform the Landlord in writing, on or
before the expiration of forty-five (45) days from the effective date of this
Third Amendment, that Tenant has elected to take the rent, common area
maintenance, insurance and property tax credit in lieu of paying rent, common
area maintenance, insurance and property taxes in the amount of that credit.
Notwithstanding the foregoing, Tenant, in its sole discretion, may apply the
$250,000 improvement allowance towards both the reimbursement of its tenant
improvement costs, and towards Tenant’s rent, common area maintenance,
insurance and property tax credits.



     10. Tenant’s Right to Terminate Lease. Tenant’s right and option to
terminate Lease, as set forth in Section 5 of Exhibit A to the Lease, as
amended by the Third Amendment to Lease, shall automatically expire, unless
previously exercised, upon the closing of the Purchase Contract by Scott
Kaufman.



     11. Generator and Outside Storage. Tenant shall have the right to install
its own generator, additional laboratory support equipment, and to use
available building riser conduit, and to run additional riser conduit within
the building from the emergency generator and laboratory equipment to the
Tenant’s leased premises from the roof and the exterior pad and storage space
to the interior of the leased premises. The exact location for the additional
generator, laboratory support equipment and conduit shall be mutually agreed to
by the Landlord and Tenant. Tenant shall also have the right to install a
modular exterior storage structure for the storage of hazardous materials. The
size of the structure will be approximately ten feet by thirty feet. The
location of the structure and the construction specifications shall be subject
to the Landlord’s consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Any structure to be constructed by the Tenant shall
comply with all applicable covenants, and all applicable city, state, and
federal laws, rules and regulations concerning Tenant’s use of the Property.
Tenant shall have and maintain in effect at all times an environmental
insurance policy naming the Landlord as an additional insured with a limit of
not less than $1 Million per occurrence, and in the aggregate. The
environmental insurance policy shall add the Landlord as an additional insured
with respect to the generator, outside storage, and any storage of hazardous
materials on the premises. The Tenant shall comply with the terms of the
Lease, and specifically Exhibit D to the Lease Agreement for the generator,
outside storage, and any storage of hazardous materials on the premises.



     12. Assignment and Sublease. In the event of any assignment or sublease,
as permitted by Article Nine under the Lease Agreement, in addition to the
terms as set forth in



6









 







Article Nine of the Lease Agreement, any assignment or
sublease, which is authorized by the Landlord, shall be made under conditions
in which the Tenant remains liable under the Lease. In the event that there is
any assignment or sublease which provides for payment to the Tenant of an
amount in excess of what the Tenant is obligated to pay the Landlord under the
Lease, as a condition to approving the assignment or sublease, the Landlord
shall be entitled to receive fifty percent (50%) of any additional rent or
amounts to be paid to the Tenant by any subtenant or assignee over and above
what Tenant is obligated to pay Landlord for the lease of that same space,
after deduction of Tenant’s actual costs of subleasing the space to include,
but not limited to, brokerage fees, improvement allowances and transaction
concessions.



     13. Security System. Tenant shall have the right to install at its
expense, an independent security system to monitor its premises.



     14. Access. Tenant shall have unlimited access to the Property it is
leasing from the Landlord under this Lease and there shall be no restrictions
on the Tenant’s hours under which it may access the Property.



     15. Additional Tenant Improvements. Provided there is no damage to the
structure of the Project, and upon consent of the Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed, the Tenant has the right
to install equipment on the roof of the structure and the right to connect
cabling and the right, at its expense, to install pipe chase space and conduits
for telecommunication purposes, including a satellite dish, antennae, microwave
dish, tower, cabling and fiber optics, and other uses within the building, and
at designated areas on the roof of the building, at no additional rental
expense to the Tenant. Tenant shall be permitted to install up to four (4)
telecommunication devices in a designated area on the roof and to connect such
equipment to the premises. All work and additional improvements to be
constructed by the Tenant shall be constructed in a workmanlike manner and upon
satisfaction to the Landlord that the structure of the roof and building has
not been adversely impaired.



     16. Condition Upon Termination. Notwithstanding the provisions of Section
6.06 of the Lease or any other provision of the Lease, or any prior amendment
thereto, the Tenant will not be required to remove the Tenant improvements
which Tenant installs or has installed or which Tenant constructs or has
constructed on the Property, provided that Tenant shall be required to remove
all of Tenant’s equipment, supplies, furniture, hazardous materials, inventory,
appliances and other easily movable property, and leave the premises in a
Abroom-clean condition.@



     17. Subordination and Attornment. Article Eleven of the Lease is hereby
deleted and replaced by the following:



Landlord reserves the right to place liens and
encumbrances on the Leased Premises superior in lien
and effect to this Lease subject to the following.
This Lease, and all rights of Tenant hereunder shall
be subject and subordinate to any liens and
encumbrances now or hereafter imposed by Landlord upon
the Leased Premises or the Property or any part
thereof; provided, however, that so long as Tenant is
not in default after the expiration of notice and cure
periods under the terms and conditions of this Lease,
Tenant’s



7









 






possession of the Leased Premises
shall not be disturbed. Tenant agrees to execute,
acknowledge and deliver to Landlord, within ten (10)
days after receipt of written request, any and all
instruments required by Landlord or Landlord’s
lender(s) to subordinate this Lease and all rights
herein to any such lien or encumbrance, provided that
such instrument contains nondisturbance language
satisfactory to Tenant. In the event of a foreclosure
of any mortgage on the Property or a deed in lieu
thereof, Tenant shall attorn to, and become the Tenant
of, the purchaser at the foreclosure sale or the
grantee of such deed in lieu thereof, and shall
recognize such party as the Landlord under this Lease.
Tenant waives any right to terminate this Lease
because of any such foreclosure proceedings or deed in
lieu thereof.



     Tenant shall, in the event of sale or assignment
of Landlord’s interest in whole or in part in the
Demised Premises or the building in which the Demised
Premises is located, or this Lease or the Property, or
if the Demised Premises or such building comes into
the hands of a mortgagee, ground lessor or another
person whether because of a mortgage foreclosure,
exercise of a power of sale under a mortgage, or
otherwise, attorn to the purchaser or such mortgagee
or other person and recognize the same as Landlord
hereunder, provided that such purchasers or mortgagee
agrees not to disturb Tenant’s occupancy of the
Demised Premises as long as Tenant is not in default
of its obligations under this Lease after the
expiration of all applicable notice and cure periods.
Tenant shall execute, at Landlord’s request, any
attornment agreement required by any mortgagee or
other such person to be executed, containing such
provisions as such mortgagee or other person requires
and containing such non-disturbance provisions as are
described above. Such attornment shall be effective
upon mortgagee’s or other person’s acquisition of
title to the Property. Tenant agrees to execute such
further evidences of attornment as mortgagee or other
person may from time to time request. The attornment
of Tenant shall not be terminated by foreclosure and
in no event shall mortgagee or other person, as holder
of any security instrument or as successor landlord,
be liable to Tenant for any act or omission of any
prior landlord or for any liability or obligation of
any prior landlord occurring prior to the date that
mortgagee or any subsequent owner acquires title to
the Property; provided, however, that the foregoing
shall not relieve the mortgagee or subsequent owner
from any Landlord obligations under this Lease
following the date that mortgagee or the subsequent
owner acquires title to the Property. Mortgagee may,
at mortgagee’s option, accept or reject such
attornment. Within ten (10) days after written
request therefor by Landlord, or in the event that
upon any sale, assignment or hypothecation of the
Demised Premises or the land thereunder by



8









 






the Landlord, an offset statement shall be required from
Tenant, Tenant agrees to deliver a certificate
addressed to any such proposed mortgagee or purchaser
or to the Landlord certifying that this Lease is in
full force and effect (if such be the case) and there
are no defenses or offsets thereto, or stating those
claimed by Tenant. Tenant agrees to non-material
modifications of this section in the event the same is
requested by Landlord’s lender.



     18. Brokerage Fees. The Staubach Company is the exclusive agent of the
Tenant and owes fiduciary responsibilities to the Tenant. Any fees to be paid
to the Staubach Company by the Landlord shall be paid in accordance with the
terms of a commission agreement previously entered into by and between the
Landlord and the Staubach Company.



     19. Counterparts. This Third Amendment may be executed in counterparts
and the parties agree that facsimile signatures thereon shall be sufficient to
bind the parties to the terms hereof.



     20. Ratification. Tenant acknowledges that to its actual knowledge,
LaSalle Bank, N.A., as the current owner of the Property, is not in default
under any term or provisions set forth in the Lease as of the date of this
Third Amendment. All of the terms, covenants and conditions of the Lease, as
modified by the First Amendment, by the Second Amendment, and by the Third
Amendment, shall continue in full force and effect and the same are hereby
reaffirmed, made and rewritten, except to the extent that any such terms,
covenants or conditions have been nullified hereby or conflict or are
inconsistent with this Third Amendment, in which event the terms of this Third
Amendment shall in all respects govern and prevail.



     21. Binding Effect. This Third Amendment shall only be effective upon the
purchase of the Project by Kaufman, or his assigns, on or before November 1,
2004. If the closing of the Purchase Contract by Kaufman, or his assigns, does
not occur on or before November 1, 2004, this Third Amendment shall have no
force and effect. Upon the closing of the Purchase Contract, this Third
Amendment shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective successors and assigns.



9









 





	 	 	 
	

	 	/s/ Scott Kaufman
	

	 	
 
	

	 	Scott Kaufman
	 
	 	 
	

	 	MYOGEN, INC.
	 
	 	 
	

	 	By: /s/ J. William Freytag
	

	 	
 
	

	 	Title: President & CEO








10