exv10w9







    Exhibit 10.9



 




    SECOND
    LEASE AMENDMENT



 



    This SECOND LEASE AMENDMENT (this “Amendment”) is made
    and entered into as of April 15, 2009 by and between SY
    CORPORATION, a Nevada corporation, (“Landlord”) and
    I-FLOW CORPORATION, a California corporation,
    (“Tenant”).



 




    Recitals



 



    A.  Tenant occupies approximately 66,675 square feet of
    space within the building located at 20202 and 20200 Windrow
    Drive, Lake Forest, California (the “Building”)
    pursuant to that certain Lease Agreement entered into as of
    April 14, 1997 between Tenant and Industrial Developments
    International, Inc., a Delaware corporation and predecessor in
    interest to Industrial Property Fund L.L.P., as landlord,
    with a lease term terminating on August 31, 2010, subject
    to an option to renew vested in Tenant for an additional term of
    five (5) years (the “Lease”). Capitalized terms
    used but not otherwise defined herein shall have the meaning
    given to such terms in the Lease.



 



    B.  Landlord acquired its interest in the above premises
    through purchase of the real property from Industrial
    Developments International Inc. and assignment of the Lease
    Agreement under an Assignment of Lease dated October 6,
    2004.



 



    C.  Landlord and Tenant now desire to amend the Lease
    Agreement on the terms and conditions set out herein.



 



    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 are
    hereby acknowledged, the parties hereto hereby agree as follows:



 




    Amendment
    Terms



 



    1. Additional Premises.  As of
    April 15, 2009, Landlord does hereby lease and demise to
    Tenant an additional 20,000 square feet of space located
    within the current Building, as described and depicted on
    Exhibit ‘A’, attached hereto and incorporated herein
    by reference, pursuant to all the terms and provisions of the
    Lease, as hereby amended. The total square footage of the
    Demised Premises will be 86,675 square feet of space.
    Tenant acknowledges and agrees the above square footage figure
    shall be used for determination of the additional rental amount
    irrespective that the actual amount of square footage leased to
    Tenant may differ slightly.



 



    2. Expiration
    Date.  Section 1(h) of the Lease is
    hereby deleted in its entirety and in place thereof, the
    following is inserted: “Expiration Date: The Expiration
    Date of the Lease shall be December 31, 2013.”



 



    3. Renewal Option.  Notwithstanding
    Section 2 above Tenant shall retain the right granted under
    Section 3.1(a) of the Lease to exercise its right to renew
    for an additional five (5) year Renewal Term from and after
    December 31, 2013, in accordance with the terms of
    Section 3.1(a).



 



    4. Right of First Refusal.  If the
    space between the Tenant’s Originally Demised Premises and
    the Tenant’s Additional Premises becomes available at any
    time during the lease term or any renewal thereof, the Landlord
    shall offer any such space first to the Tenant to occupy. Once
    offered by Landlord, the Tenant shall have sixty (60) days
    to decide whether it wants such additional space offered.



 



    5. Rental
    Rate.  Sections 1(d), 1(e) and 17(d) of
    the Lease are hereby amended such that commencing April 15,
    2009, the Annual Base Rent and corresponding Monthly Base Rent
    shall increase each year on the anniversary date




    

    1








 






    of September 1, commencing in 2009, by three percent (3%),
    except for the period beginning September 1, 2010 and
    ending August 31, 2011, in which there will be no increase
    to the Annual Base Rent, as follows:



 


	 	 	 	 	 	 	 	 	 
	

    Year


	
 
	
    Annual Base Rent
	
 
	
 
	
    Price per Sq. Ft.
	
 

	 

	

    9-1-08 through 4-14-09


	
 
	
    $
	
    390,811.51
	
 
	
 
	
    $
	
    .90176
	
 

	

    4-15-09 through 8-31-09


	
 
	
    $
	
    429,880.26
	
 
	
 
	
    $
	
    .90176
	
 

	

    9-1-09 through 8-31-10


	
 
	
    $
	
    966,063.56
	
 
	
 
	
    $
	
     .9288
	
 

	

    9-1-10 through 8-31-11


	
 
	
    $
	
    966,063.56
	
 
	
 
	
    $
	
     .9288
	
 

	

    9-1-11 through 8-31-12


	
 
	
    $
	
    995,504.47
	
 
	
 
	
    $
	
     .9567
	
 

	

    9-1-12 through 8-31-13


	
 
	
    $
	
    1,024,905.83
	
 
	
 
	
    $
	
     .9854
	
 

	

    9-1-13 through
    12-31-13


	
 
	
    $
	
    351,865.83
	
 
	
 
	
    $
	
    1.0149
	
 









 



    6. Security
    Deposit.  Sections 1(k) and 5 of the
    Lease remains the same.



 



    7. Landlord Improvements.  Prior to
    April 15, 2009, Tenant shall relocate the existing fence
    physically to segregate the Additional Premises from the
    premises within the Building presently occupied by another
    tenant (the “Adjacent Tenant”) along the column line
    pursuant to Exhibit A. In addition, notwithstanding
    anything to the contrary contained in the Original Lease, First
    and Second Amendment. Tenant shall not be required to install
    the new demising fence three and one-half (3.5) feet from the
    industrial racks in the adjacent premises. Tenant shall also
    have the right, at Tenant’s expense, to permanently remove
    the existing racks on Tenant’s side of the new demising
    fence location. Tenant shall store said removed racks inside of
    Tenant’s Premises.



 



    8. Operational and Utilities
    Expenses.  Operational and Utility Expenses
    for the Additional Premises shall be prorated between Tenant and
    the other tenant within the larger building on the basis of
    their relative square feet and based upon the Adjacent
    Tenant’s current utility usage. Such expenses shall be paid
    by Tenant as set forth in the Lease Agreement.



 



    9. Use of Racks.  Tenant shall have
    the right, without further consideration, during the Term of the
    Lease to use for its own business purposes the industrial racks
    presently located on the Additional Premises, provided however,
    Tenant shall abide by any and all applicable codes and
    regulations and shall not permit the racks or any other fixture
    or equipment to come within three and a half feet (3.5’) of
    the Chain Link Fence. Tenant shall use reasonable commercial
    efforts to obtain a high-pile permit for use of the racks,
    however, should Tenant be denied that permit but be allowed to
    use the rack system under the permit issued to the Adjacent
    Tenant, as contemplated by this Amendment, Tenant expressly
    agrees to perform no act or to allow any condition to exist that
    would jeopardize the high-pile permit issued to the Adjacent
    Tenant.



 



    10. Condition of Additional
    Premises.  Landlord shall deliver possession
    of the Additional Premises to Tenant on April 15, 2009 and
    in good operating condition and repair. Tenant shall notify
    Landlord no later than May 15, 2009 of the need for repair
    or replacement required with respect to the Additional Premises,
    and Landlord shall timely make said repair or replacement at
    Landlord’s expense, provided that Landlord shall not be
    responsible for the repair or replacement of any damage caused
    by Tenant.



 



    11. Free Rent.  Landlord herby
    agrees to abate two (2) month’s Base Rent, commencing
    September 1, 2010 and continuing through October 31,
    2010 (but not the triple net charges). In the event that Tenant
    constructs the approximate 3,000 square feet of office
    improvements outlined in Section 12 below. Landlord shall
    abate another one (1) month of rent. Said additional rent
    abatement shall occur one (1) month after Tenant has
    completed the below referenced office improvements and
    Tenant has provided Landlord with “as built” drawings
    of the same.



 



    12. Office Construction and
    Refurbishment.  Tenant shall be allowed to add
    up to 3,000 square feet of additional office space within
    Tenant’s originally demised Premises. Tenant shall also be
    allowed to refurbish the existing office space with new carpet
    and paint. Such office construction and refurbishment shall be
    at the sole cost and expense of Tenant and subject to the prior
    written approval by the Landlord and the City of Lake Forest and
    shall be in compliance with all other applicable terms and
    conditions of the Lease. Tenant shall not have to remove or
    modify any of the existing office space or additional office
    space referenced in this Second Lease Amendment and the
    expiration of the lease term.




    

    2








 






    13. Roof Repairs.  Within six
    (6) months after the execution of this Second Lease
    Amendment, Landlord agrees to completely, and to the
    satisfaction of the Tenant, repair, or completely replace, the
    roof to avoid any leaking into the any of premises occupied by
    the Tenant. In addition, commencing April 15, 2009,
    Landlord shall be responsible for the repair and maintenance of
    the roof, keeping it in a leak free condition, at
    Landlord’s sole cost and expense.



 



    14. Security System.  Tenant before
    occupation of the Additional Premises shall install at its sole
    expense on the Additional Premises security monitoring alarm
    system which shall be operational 24 hours per day
    7 days per week.



 



    15. Parking.  Commencing
    April 15, 2009, Tenant’s exclusive parking shall be
    two-hundred eight (208) parking stalls. Tenant shall have
    the right to designate Ten (10) of said spaces as reserved
    near the Tenant’s main lobby entrance.



 



    16. Brokerage Fee.  Tenant shall be
    responsible for paying Tenant’s broker. CB Richard Ellis,
    any brokerage fee.



 



    17. Reaffirmation of Lease.  Except
    as expressly set forth in this Amendment, all of the terms and
    provisions of the Lease shall remain unmodified and in full
    force and effect.



 



    18. Counterparts.  This Amendment
    may be executed in multiple counterparts, each of which shall be
    deemed an original, but all of which will constitute one and the
    same instrument.



 



    LANDLORD:



 








    SY CORPORATION, a Nevada Corporation



 


			
	    By: 
	
    /s/  Jeff
    Yassai

	 







    Name:     Jeff Yassai




    Title: Manager



			
	    Date: 
	
    4-15-2009
	 



 



    TENANT:



 








    I-FLOW CORPORATION, a Delaware corporation



 


			
	    By: 
	
    /s/  James
    J. Dal Porto

	 







    Name:     James J. Dal Porto




    Title: Exec VP COO



			
	    Date: 
	
    4/15/09
	 




    

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