exv10w21








    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 9540 S.W. Nimbus Avenue, Beaverton,
    Oregon 97008 (the “Premises”).



 




    WITNESSETH:



 



    WHEREAS, Landlord’s predecessor SCHNITZER INVESTMENT
    CORP., an Oregon corporation, SCHNITZER TRUST PARTNERS, an
    Oregon general partnership, MARK PROPERTIES LIMITED PARTNERSHIP,
    an Oregon limited partnership, CARDER-NIMBUS LLC, an Oregon
    limited liability company, DAVE Z’S LLC, an Oregon limited
    liability company, J. SCOTT ANDREWS LLC, an Oregon limited
    liability company, MJMARK LLC, an Oregon limited liability
    company, DJP NIMBUS, LLC, an Oregon limited liability company,
    KENDIG-NIMBUS, LLC, an Oregon limited liability company,
    SCHRECK-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 9560 S.W. Nimbus
    Avenue, Beaverton, Oregon, as stated in Article 1 of the
    Lease Agreement dated November 17, 2005, is hereby amended
    to include 9540 S.W. Nimbus Avenue, Beaverton, Oregon, 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.





    

    1








 





 



    d.  Rent Schedule:  The Rent
    Schedule as shown in Article 3 of the Lease Agreement dated
    November 17, 2005 is hereby amended as follows:



 


	 	 	 	 	 	 	 	 	 	 	 
	
 
	
 
	
 
	
 
	
 
	
 
	
    Increased

    
	
 
	
    Revised

    
	
 
	
 

	
 
	
 
	
    Square

    
	
 
	
    Monthly

    
	
 
	
    Monthly

    
	
 
	
    Total

    
	
 
	
    Annual

    

	

    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


	
 
	
    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.




    

    2








 






    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 ACORD Form 25 and a certificate of
    Property insurance on ACORD 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.




    

    3








 






    IN WITNESS WHEREOF, Landlord and Tenant have executed the
    Amendment as of the day and year first written above.



 


	 	 	 
	
 
	
 
	
 

	

    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


	
 
	
 

	
 
	
 
	
 

	

    By: /s/  David
    Kotansky

Name:     David
    Kotansky

    Title: Regional Director

    Dated:  3-2-07



	
 
	

    By: /s/  Jack
    D. McMaken


    
Name:     Jack
    D. McMaken

    Title: President & CEO

    Dated:  3-1-07













    

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