FIRST AMENDMENT TO LEASE
Exhibit
10.16
FIRST AMENDMENT TO LEASE
THIS
FIRST AMENDMENT TO LEASE (the "Amendment") is made this
23 day of February, 2018
(the "Effective Date"), between COLFIN COBALT I-II OWNER, LLC, a
Delaware limited liability company ("Landlord"), and GUIDED
THERAPEUTICS, INC., a Delaware corporation ("Tenant").
W
I T N E S E T H:
WHEREAS, Landlord, as
successor-in-interest to Cobalt Industrial REIT, and Tenant are
parties to that certain Industrial Building Lease dated October 2,
2009 (the "Lease"), pursuant to which Tenant is currently leasing
approximately 23,035 Rentable Square Feet (the "Original Premises")
in the Building owned by Landlord and located at 0000 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx; and
WHEREAS, the Term of the Lease expired
on June 30, 2017, but Tenant has remained in possession of the
Premises; and
WHEREAS, the parties desire to reduce
the size of the Premises, extend the term of the Lease and
otherwise modify the Lease as set forth herein; and
WHEREAS, any capitalized terms not
otherwise defined in this Amendment shall have the meanings
ascribed to them in the Lease.
NOW, THEREFORE, in consideration of the
mutual covenants and agreements hereinafter set forth, and for
other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. Ratification
of Lease. By their respective execution of this Amendment, each of
Landlord and Tenant (i) acknowledge and agree that the Lease
remains in full force and effect, and (ii) ratify and confirm the
Lease in all respects, subject only to the terms and conditions of
this Amendment.
2. Extension
of Term. The Term is hereby extended to expire at 11:59PM local
time on March 31, 2021. For purposes of this Amendment, (i) the
period between January 1, 2018 and March 31, 2018 shall be known as
the "Interim Term," and (ii) the period between April 1, 2018 and
March 31, 2021 shall be known as the "Extension Term."
3. Reduction
of Premises. Effective
immediately on the Effective Date of this Amendment, the "Premises"
shall be reduced to consist of approximately 12,835 Rentable Square
Feet out of the Original Premises, known as Suite 5835-B in the
Building, as shown on Exhibit A
attached hereto. The Effective Date is
the date of Landlord's execution of this Amendment after Tenant has
executed and delivered same to Landlord, as indicated
above.
4. Surrendered
Space. As of the Effective
Date, the Lease shall be deemed terminated with respect to the
remaining 10,200 Rentable Square Feet of the Original Premises (the
"Surrendered Space"); accordingly, prior to such date, Tenant shall
vacate the Surrendered Space and surrender same to Landlord broom
clean and in good order, condition and repair, ordinary wear and
tear excepted, and shall remove all of Tenant’s Property from
the Surrendered Space, all as verified by Landlord's inspection.
Tenant's failure to surrender the Surrendered Space as required
herein shall be deemed a holdover under Article XX
of the Lease. Upon surrender and
delivery of the Surrendered Space in the condition required by this
paragraph, neither Tenant nor any party claiming by, through or
under Tenant shall have or claim any right to occupy the
Surrendered Space or any part thereof, and Tenant shall be released
from all covenants, obligations and liability under the Lease with
respect to the Surrendered Space first arising thereafter, other
than those covenants, obligations (including indemnity obligations)
and liabilities which survive the termination of the Lease pursuant
to the express terms thereof.
5.
Basic Rent.
(a) Notwithstanding
that the reduction of the Premises shall occur on the Effective
Date, and regardless of whether Landlord leases the Surrendered
Space at any time during the Interim Term, Tenant shall continue to
pay Basic Rent on the Original Premises during the entire Interim
Term, as follows:
|
Period
|
Approximate Annual
Basic Rent PSF
|
Monthly
Basic Rent
|
|
1/1/18-3/31/18
|
$7.22
|
$13,859.39
|
1
(b)
During
the Extension Term, Tenant shall pay Basic Rent on the Premises, as
follows:
|
Period
|
Approximate Annual
Basic Rent PSF
|
Monthly
Basic Rent
|
|
4/1/18-3/31/19
|
$7.50
|
$8,021.88
|
|
4/1/19-3/31/20
|
$7.73
|
$8,267.88
|
|
4/1/20-3/31/21
|
$7.96
|
$8,513.88
|
6. Additional
Rent. Notwithstanding that the
reduction of the Premises shall occur on the Effective Date, and
regardless of whether Landlord leases the Surrendered Space at any
time during the Interim Term, Tenant shall continue to pay
Additional Rent on the Original Premises, calculated based on
Tenant's Proportionate Share of 9.93% of the Project, during the
entire Interim Term. During the Extension Term, Tenant's
Proportionate Share of the Project shall be reduced to
5.53%.
7. Prepaid
Rent. A prepayment of Rent in
the amount of $27,718.78, minus a credit of $ 7,012.47 for
overpayment of January 2018 rent, shall be due and payable at the
time of Tenant’s execution and delivery of this Amendment,
which shall occur no later than February 15, 2018. The net
prepayment amount due at execution shall be $20,706.31. The
prepayment shall be applied by Landlord to installments of Basic
Rent and Additional Rent first coming due under the Lease,
specifically to cover rent payments for February and March,
2018.
8. Brokers.
Tenant and Landlord each represent that it has not had any dealings
with a real estate broker, finder or other person with respect to
this Amendment in any manner, except Xxx & Associates, broker
for Landlord (the "Broker"). Landlord shall pay any commissions or
fees that are payable to the Broker with respect to this Amendment
in accordance with the provisions of a separate commission
agreement. Each party shall indemnify the other party against all
costs or liabilities for commissions or compensation claimed by any
broker or agent claiming the same by, through, or under the
indemnifying party.
9. Acknowledgements of
Tenant. Tenant hereby acknowledges and
agrees as follows: (a) Tenant does not have, and hereby waives any
option to renew or extend the Term beyond the expiration of the
Extension Term, and Article XXVII of the Lease is hereby deleted;
(b) Tenant does not have, and hereby waives any option under the
Lease to expand the Premises, and Article XXVIII of the Lease is
hereby deleted; (c) Tenant does not have, and hereby waives any
option under the Lease to terminate the Lease prior to the
expirationof the Extension Term; (d) Landlord does not have any
obligation to complete or construct any improvements to the
Premises except that Landlord shall, at its sole cost and expense,
demise the Premises from the Surrendered Space; and (e) Tenant is
occupying the Original Premises, and shall continue to occupy the
Premises, in its “AS IS” “WHERE IS”
condition, “WITH ALL FAULTS”.
10. Landlord's Notice
Address. Until Landlord
provides further written notice to Tenant, any written notice
required to be given to Landlord under the Lease shall be delivered
to Landlord at the following address:
ColFin
Cobalt I-II Owner, LLC
00000
Xxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Asset Manager
2
11. Rent
Payment Address. Until Landlord
provides further written notice to Tenant, all Rent shall be paid
as follows:
|
Payment
by Check:
XX Xxx
000000
Xxxxxx,
XX 00000-0000
|
Electronic
Payment:
Available via
"Commercial Cafe" Payment Services Tenant Portal
Email
XxxxxxxxXxxxxxxxxxxxxxxxxxxx@xxxxxxxxx.xxx
User
name and password to be provided
User
training will also be provided
|
12. Counterpart
Execution. This Amendment shall
not be effective or binding until such time as it has been executed
and delivered by all parties hereto. This Amendment may be executed
in counterparts, all of which shall constitute a single
agreement.
13. Continued
Effect. Except as modified by
this Amendment, the Lease and all terms, conditions, covenants and
agreements thereof shall remain in full force and effect and are
hereby in all respects ratified and confirmed. For the avoidance of
doubt, Landlord reserves all of its rights and remedies under the
Lease and no provision of the Lease shall be waived, except by an
instrument in writing (referring specifically to the Lease)
executed by the party against whom waiver is
sought.
SIGNATURES ON FOLLOWING PAGE
3
IN
WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
as of the date first above written.
LANDLORD:
COLFIN
COBALT I-II OWNER, LLC,
a
Delaware limited liability company
By:
Name:
Title:
TENANT:
GUIDED
THERAPEUTICS, INC.,
a
Delaware corporation
By
/s/ Xxxx X Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Chief Operating Officer
0000 XXXXXXXXX XXXXXXXXXX
XXXX
XXXXX X
Office
98.019 SF
Warehouse
4,811 SF
Total
12.835 XXX-
0
0
