FIRST AMENDMENT TO LEASE
Exhibit
10.21
FIRST
AMENDMENT TO LEASE
THIS AMENDMENT, dated this 8th day of February, 2007,
between IPERS NIMBUS OAKS — OREGON, INC., a Delaware
corporation (“Landlord”) and ACRYMED INCORPORATED, an
Oregon corporation (“Tenant”), for the premises
located in the City of Beaverton, County of Washington, State of
Oregon, commonly known as 0000 X.X. Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxx 00000 (the “Premises”).
WITNESSETH:
WHEREAS, Landlord’s predecessor SCHNITZER INVESTMENT
CORP., an Oregon corporation, SCHNITZER TRUST PARTNERS, an
Oregon general partnership, XXXX PROPERTIES LIMITED PARTNERSHIP,
an Oregon limited partnership, XXXXXX-NIMBUS LLC, an Oregon
limited liability company, XXXX Z’S LLC, an Oregon limited
liability company, J. XXXXX XXXXXXX LLC, an Oregon limited
liability company, MJMARK LLC, an Oregon limited liability
company, DJP NIMBUS, LLC, an Oregon limited liability company,
XXXXXX-NIMBUS, LLC, an Oregon limited liability company,
XXXXXXX-NIMBUS, LLC, an Oregon limited liability company as
tenants in common (collectively, “Landlord”) and
Tenant, entered into that certain Lease dated November 17,
2005 and Commencement Letter dated April 5, 2006
(hereinafter collectively referred to as the
“Lease”); and
WHEREAS, Landlord and Tenant desire to amend the Lease as
more fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants
and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise
specifically set forth herein, all capitalized terms herein
shall have the same meaning as set forth in the Lease.
a. Premises: Tenant’s
existing square footage of 16,238 located at 0000 X.X. Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx, as stated in Article 1 of the
Lease Agreement dated November 17, 2005, is hereby amended
to include 0000 X.X. Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, see
attached Exhibit “A”, with an approximate square
footage of 4,096 square feet, increasing the total square
footage to 20,334 square feet.
b. Term: The term of the increased
square footage shall commence on April 1, 2007 or upon
substantial completion of tenant improvements and shall be
coterminous with the existing lease dated November 17,
2005, with an expiration of July 31, 2012.
c. Tenant Improvements: Tenant
shall lease the increased space “As Is”, except
Landlord at Landlord’s cost shall perform the following:
| • | Connect the expansion premises with the existing premises. |
| • | Remove one door and remove two walls at connection of the two premises. |
| • | Paint expansion premises with same color as existing space. |
| • | Patch carpet to match, using existing carpeting, if possible. If existing carpet is not available, match existing carpet as well as possible. |
| • | Build one 15’X15’ office in lobby of expansion space. |
| • | Make modest additional and/or adjustments to electrical outlets, lights and HVAC as required. |
| • | Insure all electrical, plumbing and HVAC systems are in good working order. |
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d. Rent Schedule: The Rent
Schedule as shown in Article 3 of the Lease Agreement dated
November 17, 2005 is hereby amended as follows:
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Increased |
Revised |
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Square |
Monthly |
Monthly |
Total |
Annual |
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Period
|
Footage
|
Base Rent
|
Base Rent
|
Base Rent
|
Base Rent
|
|||||
|
4/1/07 - 6/30/07
|
20,334 | $14,938.96 | $0.00 | $14,938.96 | $179,267.52 | |||||
|
7/1/07 - 7/31/07
|
20,334 | $14,938.96 | $4,506.00 | $19,444.96 | $233,339.52 | |||||
|
8/1/07 - 4/30/08
|
20,334 | $15,426.10 | $4,506.00 | $19,932.10 | $239,185.20 | |||||
|
5/1/08 - 7/31/08
|
20,334 | $15,426.10 | $4,641.00 | $20,067.10 | $240,805.20 | |||||
|
8/1/08 - 4/30/09
|
20,334 | $15,913.24 | $4,641.00 | $20,554.24 | $246,650.88 | |||||
|
5/1/09 - 7/31/09
|
20,334 | $15,913.24 | $4,780.00 | $20,693.24 | $248,318.88 | |||||
|
8/1/09 - 4/30/10
|
20,334 | $16,390.64 | $4,780.00 | $21,170.64 | $254,047.68 | |||||
|
5/1/10 - 7/31/10
|
20,334 | $16,390.64 | $4,924.00 | $21,314.64 | $255,775.68 | |||||
|
8/1/10 - 4/30/11
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20,334 | $16,887.52 | $4,924.00 | $21,811.52 | $261,738.24 | |||||
|
5/1/11 - 7/31/11
|
20,334 | $16,887.52 | $5,072.00 | $21,959.52 | $263,514.24 | |||||
|
8/1/11 - 4/30/12
|
20,334 | $17,374.66 | $5,072.00 | $22,446.66 | $269,359.92 | |||||
|
5/1/12 - 7/31/12
|
20,334 | $17,374.66 | $5,224.00 | $22,598.66 | $271,183.92 |
e. Security Deposit: Upon
execution of this First Amendment, Tenant shall deliver to
Landlord a security deposit in the amount of $5,224.00 for the
expansion space, making a total security deposit for the
existing and expansion space being held by Landlord of
$22,037.93.
f. Prorata Share: Tenant’s
prorata share shall increase to 49.19% of the total building
square footage of 41,330 square feet and 11.83% of the
total project square footage of 171,828 square feet.
g. Monthly Operating Expenses
(CAM): Tenant is currently paying
$4,086.13/mo for monthly operating expenses on their existing
space, with the expansion space monthly operating expenses
estimated at $943.00/mo, making a total monthly operating
expense (CAM) cost of $5,029.13. Both amounts are subject to the
upcoming annual CAM reconciliations.
h. First Rent/CAM Payment: Upon
execution of this First Amendment, Tenant shall deliver to
Landlord the first month’s rent for the expansion space in
the amount of $4,506.00 and the first month’s CAM in the
amount of $943.00.
2. Authority
(OFAC). Article 19, General
Provisions, as stated in the Lease Agreement dated
November 17, 2005, Paragraph 19.6 shall be
replaced in its entirety with the following:
If Tenant signs as a corporation, partnership, trust or other
legal entity each of the persons executing this Lease on behalf
of Tenant represents and warrants that Tenant has been and is
qualified to do business in the state in which the Building is
located, that the entity has full right and authority to enter
into this Lease, and that all persons signing on behalf of the
entity were authorized to do so by appropriate actions.
Each party hereby represents and warrants to the other party
that neither it, nor any persons or entities holding any legal
or beneficial interest whatsoever in it, are (i) the target
of any sanctions program that is established by Executive Order
of the President or published by the Office of Foreign Assets
Control, U.S. Department of the Treasury
(“OFAC”); (ii) designated by the President or
OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C.
App. § 5, the International Emergency Economic Powers
Act, 50 U.S.C.
§§ 1701-06,
the Patriot Act, Public Law
107-56,
Executive Order 13224 (September 23, 2001) or any
Executive Order of the President issued pursuant to such
statutes; or (iii) named on the following list that is
published by OFAC: “List of Specially Designated Nationals
and Blocked Persons.” If the foregoing representation is
untrue at any time during the Term, an Event of Default will be
deemed to have occurred, without the necessity of notice to the
party in default.
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3. Insurance. Article 9,
Tenant’s Indemnification/Liability Insurance, stated
in the lease dated November 17, 2005;
Paragraph 9.2 is hereby deleted in its entirety and
replaced with the following:
Tenant shall keep in force throughout the Term: (a) a
Commercial General Liability insurance policy or policies
regarding Tenant’s use of, and, any accident occurring in
or upon the Premises with a limit of not less than $1,000,000
per occurrence and not less than $2,000,000 in the annual
aggregate, or such larger amount as Landlord may prudently
require from time to time, covering bodily injury and property
damage liability and $1,000,000 products/completed operations
aggregate; (b) Business Auto Liability covering owned,
non-owned and hired vehicles with a limit of not less than
$1,000,000 per accident; (c) Workers’ Compensation
Insurance with limits as required by statute and Employers
Liability with limits of $500,000 each accident, $500,000
disease policy limit, $500,000 disease — each
employee; (d) All Risk or Special Form coverage protecting
Tenant against loss of or damage to Tenant’s alterations,
additions, improvements, carpeting, floor coverings, panelings,
decorations, fixtures, inventory and other business personal
property situated in or about the Premises to the full
replacement value of the property so insured; and,
(e) Business Interruption Insurance with limit of liability
representing loss of at least approximately six (6) months
of income.
Landlord acknowledges that Tenant may not obtain the Business
Interruption Insurance referred to in (e) above, and in
that case, Landlord agrees to waive item (e) Business
Interruption Insurance requirements of the Tenant. In that
event, Tenant hereby agrees that the Tenant waives all claims
for recovery against Landlord for business interruption expenses
that would have been covered by the waived Business Interruption
Insurance. Tenant agrees that Tenant’s insurance carrier
will not subrogate against Landlord’s carrier for the same.
The aforesaid policies shall (a) be provided at
Tenant’s expense; (b) name the Landlord Entities as
additional insureds (General Liability) and loss payee
(Property — Special Form); (c) be issued by an
insurance company with a minimum Best’s rating of
“A−:VII” during the Term; and (d) provide
that said insurance shall not be canceled unless thirty
(30) days prior written notice (ten days for non-payment of
premium) shall have been given to Landlord; a certificate of
Liability insurance on XXXXX Form 25 and a certificate of
Property insurance on XXXXX Form 28 shall be delivered to
Landlord by Tenant upon the Commencement Date and at least
thirty (30) days prior to each renewal of said insurance.
Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises (“Work”) the
aforesaid insurance protection must extend to and include
injuries to persons and damage to property arising in connection
with such Work, without limitation including liability under any
applicable structural work act, and such other insurance as
Landlord shall require; and the policies of or certificates
evidencing such insurance must be delivered to Landlord prior to
the commencement of any such Work.
4. Incorporation. Except as
modified herein, all other terms and conditions of the Lease
between the parties above described, as attached hereto, shall
continue in full force and effect.
5. Limitation of Landlord’s
Liability. Redress for any claim against
Landlord under this Amendment and the Lease shall be limited to
and enforceable only against and to the extent of
Landlord’s interest in the Building. The obligations of
Landlord under this Amendment and the Lease are not intended to
be and shall not be personally binding on, nor shall any resort
be had to the private properties of, any of its or its
investment manager’s trustees, directors, officers,
partners, beneficiaries, members, stockholders, employees, or
agents, and in no case shall Landlord be liable to Tenant
hereunder for any lost profits, damage to business, or any form
of special, indirect or consequential damages.
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IN WITNESS WHEREOF, Landlord and Tenant have executed the
Amendment as of the day and year first written above.
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LANDLORD:
|
TENANT: | |
|
IPERS NIMBUS OAKS — OREGON, INC., a Delaware corporation |
ACRYMED INCORPORATED, an Oregon corporation |
|
|
By: RREEF Management Company,
a Delaware corporation, its Property Manager |
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|
By:
/s/ Xxxxx
Kotansky Name: Xxxxx
Xxxxxxxx
Title: Regional Director Dated: 3-2-07 |
By:
/s/ Xxxx
X. XxXxxxx Name: Xxxx
X. XxXxxxx
Title: President & CEO Dated: 3-1-07 |
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