Attached files
| file | filename |
|---|---|
| 10-Q - FORM 10-Q - SCOLR Pharma, Inc. | form_10-q.htm |
| EX-32.1 - EXHIBIT 32.1 - CEO CERTIFICATION - SCOLR Pharma, Inc. | exhibit_32-1.htm |
| EX-31.2 - EXHIBIT 31.2 - CFO CERTIFICATION - SCOLR Pharma, Inc. | exhibit_31-2.htm |
| EX-31.1 - EXHIBIT 31.1 - CEO CERTIFICATION - SCOLR Pharma, Inc. | exhibit_31-1.htm |
| EX-10.4 - EXHIBIT 10.4 - SCOLR Pharma, Inc. | exhibit_10-4.htm |
| EX-32.2 - EXHIBIT 32.2 - CFO CERTIFICATION - SCOLR Pharma, Inc. | exhibit_32-2.htm |
| EX-10.3 - EXHIBIT 10.3 - SCOLR Pharma, Inc. | exhibit_10-3.htm |
Exhibit 10.6
FIRST AMENDMENT TO
LEASE
(NORTH
CREEK I)
THIS
FIRST AMENDMENT TO LEASE ("First Amendment") is made and
entered into as of the 5th day
of November, 2009, by and between ARDEN REALTY LIMITED PARTNERSHIP, a Maryland
limited partnership ("Landlord"), and SCOLR PHARMA,
INC., a Delaware corporation ("Tenant").
R E C I T A L S
:
A. Landlord
and Tenant entered into that certain Standard Multi-Tenant Lease dated as of
June 19, 2008 (the "Lease"), concerning those
certain premises, as further delineated on Exhibit “A” attached
hereto, containing a total of approximately 20,468 rentable square feet of space
(the "Original
Premises") consisting of office, lab and warehouse space located on the
first (1st)
floor of that certain office building known as Building One of North Creek
Corporate Center located at 19204 Northcreek Parkway, Bothell, Washington (the
"Building").
B. Landlord
and Tenant desire to modify the Original Premises to include only that certain
space consisting of approximately 15,615 rentable square feet of space (the
"Premises") located on
the first (1st)
floor of the Building, and to make other modifications to the Lease, and in
connection therewith, Landlord and Tenant desire to amend the Lease on the terms
and conditions contained herein.
C. Unless
otherwise defined herein, capitalized terms shall have the meanings given such
terms in the Lease.
A G R E E M E N T
:
NOW,
THEREFORE, in consideration of the foregoing Recitals and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Lease is amended and the
parties hereby agree as follows:
1. Modification
of Premises. Landlord and Tenant hereby acknowledge that,
effective as of October 31, 2009 (the "Partial Termination
Date"): (i) the Lease shall terminate and be of no
further force or effect with respect to that portion of the Original Premises
containing approximately 4,853 rentable square feet of office space on the first
(1st)
floor of the Building, located as delineated on Exhibit "A" (the
"Termination Premises"),
and (ii) the “Premises,” as that term is defined in the Lease, shall be
deemed to exclude the Termination Premises and shall be located as delineated on
Exhibit "A". Accordingly, as of the Partial Termination Date, the
Premises shall consist of a total of approximately 15,615 rentable square feet
of space comprised of 4,507 rentable square feet of office space ("Office Portion"), 8,939
rentable square feet of lab space and 2,169 rentable square feet of warehouse
space.
2. Surrender
of Termination Premises. Tenant hereby agrees to vacate the Termination
Premises and surrender and deliver exclusive possession thereof to Landlord on
or before the Partial Termination Date, in accordance with the provisions of the
Lease, as amended hereby, provided however, Landlord shall allow Tenant's
furniture and equipment to remain in the Termination Premises until November 30,
2009 (the "Furniture Removal
Date"). Any furniture, equipment or other property remaining in the
Termination Premises as of the Furniture Removal Date shall be considered
abandoned by Tenant ("Abandoned
Property") and may be disposed of or utilized by Landlord in any manner
whatsoever. Tenant hereby waives any and all rights and remedies
under the Lease and/or Washington law with respect to the Abandoned
Property. In the event that Tenant fails to timely vacate and
surrender the Termination Premises, then notwithstanding any contrary provision
of this Section 2, Tenant shall be deemed to be holding over in the Termination
Premises and Landlord shall have all rights and remedies set forth in the Lease,
and at law, with regard to such holdover condition.
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3. Representations
of Tenant. Tenant represents and warrants to Landlord that
(a) Tenant has not heretofore assigned or sublet all or any portion of its
interest in the Lease or in the Termination Premises; (b) to Tenant's
knowledge, no other person, firm or entity has any right, title or interest in
the Lease or in the Termination Premises; (c) Tenant has the full right,
legal power and actual authority to enter into this First Amendment and to
terminate the Lease with respect to the Termination Premises without the consent
of any person, firm or entity; and (d) Tenant has the full right, legal
power and actual authority to bind Tenant to the terms and conditions
hereof. Tenant further represents and warrants to Landlord that as of
the date hereof there are no, and as of the Partial Termination Date there shall
not be any, mechanic's liens or other liens encumbering all or any portion of
the Premises arising by, through or under Tenant or any work, services or
materials ordered by Tenant. Notwithstanding the termination of the
Lease with respect to the Termination Premises, the representations and
warranties set forth in this Section 3 shall survive the Partial Termination
Date and Tenant shall be liable to Landlord for any inaccuracy or any breach
thereof.
4. Monthly
Basic Rental. Notwithstanding anything to the contrary in the Lease,
beginning on November 1, 2009 and continuing throughout the remainder of the
Lease Term, which Lease Term shall expire on January 31, 2016, Tenant shall pay,
in accordance with the applicable provisions of the Lease and this
Section 4, monthly installments of Monthly Basic Rental for the Premises as
follows:
|
Period
|
Monthly Basic Rental – Office
Portion
|
Monthly Basic Rental
- Total Premises
|
|
|
*November
1, 2009 – August 31, 2010
|
$6,174.59
|
*$25,684.60
|
|
|
*September
1, 2010 – October 31, 2010
|
$6,354.87
|
*$26,444.60
|
|
|
November
1, 2010 – August 31, 2011
|
$6,354.87
|
$26,444.60
|
|
|
September
1, 2011 – August 31, 2012
|
$6,580.22
|
$27,249.67
|
|
|
September
1, 2012 – August 31, 2013
|
$6,760.50
|
$28,009.67
|
|
|
September
1, 2013 – August 31, 2014
|
$6,985.85
|
$28,904.13
|
|
|
September
1, 2014 – August 31, 2015
|
$7,166.13
|
$29,775.21
|
|
|
September
1, 2015 – January 31, 2016
|
$7,391.48
|
$30,669.67
|
|
|
*From
November 1, 2009 through October 31, 2010 (the "LOC Rental Application
Period"), Landlord shall be entitled to draw down from Tenant's
Letter of Credit pursuant to Section 5 below, on a monthly basis, the
amount of $18,000.00 (the "Monthly LOC Amount"),
which amount will be applied towards Tenant's Monthly Basic Rental and
Direct Costs for that particular
month.
|
|||
5. Letter of
Credit. Landlord and Tenant acknowledge that Tenant
currently has on file with Landlord a Letter of Credit in the amount of Four
Hundred Seventy-Three Thousand Seven Hundred Ten and 85/100 Dollars
($473,710.85). Beginning November 1, 2009 and continuing until October 31, 2010,
Landlord shall, on a monthly basis, draw down the amount of Eighteen Thousand
and 00/100 Dollars ($18,000.00) from the Letter of Credit and apply such amount
toward Tenant's Monthly Basic Rental and Direct Costs obligations during the LOC
Rental Application Period. The total draw down amount of the Letter of Credit
shall be Two Hundred Sixteen Thousand and 00/100 Dollars ($216,000.00) and
effective November 1, 2010, the Letter of Credit shall equal Two Hundred
Fifty-Seven Thousand Seven Hundred Ten and 85/100 Dollars ($257,710.85), barring
any additional reductions which the Lease permits Landlord to make due to
Tenant's default. Landlord's delay or failure to draw down the
Monthly LOC Amount at any time during the LOC Rental Application Period will not
be deemed a waiver of its right to do so at any subsequent time during or after
the LOC Rental Application Period, nor affect Landlord's right to draw down on
Tenant's Letter of Credit for any other reason permitted by the Lease. Landlord
shall continue to hold the Letter of Credit pursuant to the terms
2
of Article 4 of the Lease, provided however, the reduction schedule of the Letter of Credit on the Adjustment Dates contained therein shall no longer apply.
6. Security
Deposit. Landlord and Tenant acknowledge that Landlord
is currently holding a cash security deposit in the amount of Thirty-Eight
Thousand Six Hundred Twenty-Eight and 59/100 Dollars ($38,628.59) as a security
deposit (the "Existing Security
Deposit") in connection with Tenant's lease of the Original Premises, and
such amount shall continue to be required. To the extent the Existing Security
Deposit is not used, applied or retained by Landlord with respect to the
Original Premises, Landlord shall continue to hold the Existing Security
Deposit. If
Landlord must apply any or all of the Existing Security Deposit toward
improvements to the Termination Premises, then Tenant shall, upon ten (10) days
written notice, deliver to Landlord such remaining amount to equal the Existing
Security Deposit. Landlord shall hold the Existing Security Deposit
pursuant to the terms of Article 4 of the Lease.
7. Tenant’s
Proportionate Share. Notwithstanding anything
to the contrary set forth in the Lease, and effective as of November 1, 2009,
Tenant's Proportionate Share for the Premises shall be 31.40%.
8. Condition
of the Premises. Tenant hereby agrees to accept the Premises
in its "as-is" condition and Tenant hereby acknowledges that Landlord has made
no new representations and shall not be obligated to provide or pay for any
other work or services related to the improvement of the Premises except as
expressly provided in the Lease. Tenant also acknowledges that
Landlord has made no representation or warranty regarding the condition of the
Premises except as expressly provided in the Lease.
9. Parking. Effective
as of the Partial Termination Date, Tenant shall be entitled to use a total of
fifty-five (55) unreserved parking passes for use in the Building's parking
facility. Tenant's rights to use of such additional parking passes
shall be in accordance with, and subject to, all provisions of Article 23 of the
Lease.
10. Brokers. Landlord
and Tenant hereby warrant to each other that they have had no dealings with any
real estate broker or agent in connection with the negotiation of this First
Amendment and that they know of no other real estate broker or agent who is
entitled to a commission in connection with this First
Amendment. Each party agrees to indemnify and defend the other party
against and hold the other party harmless from any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including,
without limitation, reasonable attorneys' fees) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of the
indemnifying party's dealings with any real estate broker or
agent. The terms of this Section 10 shall survive the expiration or
earlier termination of the Lease, as hereby amended.
11. Defaults.
As of the date of this First Amendment, Tenant hereby represents and warrants to
Landlord that Tenant is in full compliance with all terms covenants and
conditions of the Lease and that there are no breaches or defaults under the
Lease by Landlord or Tenant, and Tenant knows of no events or circumstances
which given the passage of time would constitute a default under the Lease by
either Landlord or Tenant. Notwithstanding the foregoing, Landlord
and Tenant agree that certain 2009 estimated utility recovery costs due under
the Lease are currently subject to resolution and both parties reserve all
applicable rights and remedies under the Lease.
12. Applicability
of Lease. All terms, covenants and
conditions of the Lease, except as expressly amended herein, are hereby ratified
and shall continue in full force and effect throughout the term of the Lease,
including any extension or renewal thereof. The terms, covenants and
conditions expressly amended herein shall become effective upon the execution of
this First Amendment by both Landlord and Tenant.
13. Binding
Effect. The provisions of this First Amendment shall be
binding upon and inure to the benefit of the heirs, representatives, successors
and permitted assigns of the parties hereto.
14. No
Further Modification. Except as set forth in this First
Amendment, all of the terms and provisions of the Lease shall apply during the
Term and shall remain unmodified and
3
in full force and effect. Effective as of the date hereof, all references to the "Lease" shall refer to the Lease as amended by this First Amendment.
IN
WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment to be
executed on the day and date first above written.
"Landlord":
ARDEN
REALTY LIMITED PARTNERSHIP,
a
Maryland limited partnership
|
By:
|
ARDEN REALTY,
INC.,
A Maryland corporation,
Its: Sole General Partner
|
| By: |
/s/ Joaquin de
Monet
|
|
Its:
|
Joaquin de
Monet
President &
CEO
|
"Tenant":
|
|
SCOLR Pharma,
INC.,
a Delaware Corporation
|
| By: |
/s/ Richard M.
Levy
|
|
Its:
|
VP,
CFO
|
| By: | /s/ Stephen J. Turner |
| Its: | CEO & President |
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OUTLINE OF
PREMISES
AND TERMINATION
PREMISES
5