EXHIBIT 10.7
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE is made this 21 day of March, 1997,
between XXXXX X. XXXXXXXX ORGANIZATION, a California corporation, herein
referred to as "Landlord", and PERCLOSE, INC., a Delaware corporation, herein
referred to as "Tenant".
RECITALS
1. Landlord and Tenant's predecessor in interest have previously entered
into a Lease entitled "Business Park Lease" dated July 6, 1993 for demised
premises located at 000-000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as more
particularly described in said Lease.
2. Landlord and Tenant's predecessor in interest have previously entered
into a First Amendment to Lease dated January 31, 1995, which First Amendment
to Lease demised to Tenant certain additional space located at 191 and 000
Xxxxxxxxx Xxxxx as more fully set out therein.
3. Tenant acquired its interest in the Lease as a result of the
reincorporation of Perclose, Inc., a California corporation, to Perclose,
Inc., a Delaware corporation, on or about September 1, 1995.
4. Landlord and Tenant have previously entered into a Second Amendment to
Lease date September 10, 1996 (the Lease, as amended, is herein referred to
as the "Lease"), which Second Amendment to Lease demised to Tenant certain
additional space located at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as
more fully set out therein.
5. Landlord and Tenant now wish to provide for the expansion of Tenant
into additional space located at 000 Xxxxxxxxx Xxxxx and 000 Xxxxxxxxx Xxxxx,
Xxxxx Xxxx, Xxxxxxxxxx, and to amend the base rent due under the Lease, the
Security Deposit held pursuant to the Lease, and otherwise modify the Lease,
all as more particularly set forth hereinbelow.
NOW, THEREFORE, in consideration of the covenants and conditions contained
herein, Landlord and Tenant agree to amend the Lease as follows:
1. A Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the demised premises located at 000 Xxxxxxxxx Xxxxx (hereinafter,
"171 Expansion Space") as described in EXHIBIT "X" and shown on EXHIBIT "X-1"
hereto for a term commencing on February 1, 1997 (the date Landlord delivered
possession of the 171 Expansion Space to Tenant in an "as is" condition), and
continuing through and including February 29, 1999. Base rent for the 171
Expansion Space shall be as set forth in paragraph 1.B. hereof. Effective
February 1, 1997, the 171 Expansion Space shall become part of the demised
premises under the Lease for all purposes set forth therein.
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B. Commencing on February 1, 1997, Tenant's base rent under the Lease
shall increase by Forty Eight Thousand Two Hundred Ten Dollars ($48,210.00)
per annum, payable in twelve (12) equal monthly installments of Four Thousand
Seventeen and 50/100 Dollars ($4,017.50).
2. A. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the demised premises located at 000 Xxxxxxxxx Xxxxx (hereinafter,
"175 Expansion Space") as described in EXHIBIT "Y" and shown on EXHIBIT "Y-1"
hereto for a term commencing on the EARLIER to occur of: (i) delivery of
possession of the 175 Expansion Space to Tenant after Landlord's work for
such 175 Expansion Space is completed pursuant to paragraph 6.B. hereinbelow,
or (ii) July 1, 1997 (the "175 Expansion Space Commencement Date"), and
continuing through and including June 30, 1999. Base rent for the 175
Expansion Space shall be as set forth in paragraph 2.B. hereof. Upon the 175
Expansion Space Commencement Date, the 175 Expansion Space shall become part
of the demised premises under the Lease for all purposes set forth herein.
B. Commencing on the 175 Expansion Space Commencement Date, Tenant's
base rent under the Lease shall increase by Sixty Thousand Dollars
($60,000.00) per annum, payable in twelve (12) equal monthly installments of
Five Thousand Dollars ($5,000.00).
3. The increase in base rent scheduled to occur as of October 1, 1997 with
respect to certain premises demised to Tenant under the Lease (i.e., the
000-000 Xxxxxxxxx Xxxxx premises) shall not apply to the base rent reserved
hereunder for the 171 Expansion Space nor for the 175 Expansion Space which
will remain the same throughout the demised term thereof.
4. Upon execution of this Third Amendment to Lease, Tenant shall pay to
Landlord the amount of Nine Thousand Seventeen and 50/100 Dollars ($9,017.50)
which shall be held as a Security Deposit pursuant to the terms of SECTION
19.9. of the Lease. Upon payment of said amount to Landlord, Tenant's total
Security Deposit held pursuant to the Lease, as amended herein, shall be
Twenty Thousand Six Hundred Fifty Seven and 50/100 Dollars ($20,657.50).
5. The option to extend the demised term of the Lease contained in SECTION
1.3. of the Lease shall apply to the entire demised premises leased by Tenant
(including the 171 Expansion Space and the 175 Expansion Space) pursuant to
the Lease, as amended herein, and the parties agree to the following with
respect thereto:
A. In the event Tenant exercises its option to extend the demised term
of the Lease, the dates of the extended term shall be as follows: (i) for the
demised premises located at 000-000 Xxxxxxxxx Xxxxx, 191 and 000 Xxxxxxxxx
Xxxxx, and 000 Xxxxxxxxx Xxxxx (the "177, 191-199 Jefferson Premises"), from
October 1, 1998, to and including September 30, 2001; (ii) for the 171
Expansion Space (i.e., 000 Xxxxxxxxx Xxxxx), from March 1, 1999, to and
including February 28, 2002; and (iii) for the 175 Expansion Space (i.e., 000
Xxxxxxxxx Xxxxx), from July 1, 1999, to and including June 30, 2002.
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B. The base rent during the extended term shall be established pursuant
to SECTIONS 1.3, 2.3 AND 19.20 (if applicable) of the Lease, and shall
commence as of the applicable commencement dates of the extended term (i.e.,
October 1, 1998, for the 177, 191-199 Jefferson Premises; March 1, 1999, for
the 171 Expansion Space; and July 1, 1999 for the 175 Expansion Space). The
"fair market rental value" defined in SECTION 2.3 of the Lease shall also
include the value associated with the Tenant Improvements made by Landlord in
the 171 Expansion Space, as provided hereinbelow, as well as all other
improvements made to the 171 Expansion Space and 175 Expansion Space.
C. Should Tenant elect to exercise the option to extend, Tenant's
written notice to Landlord shall be given at least one hundred eighty (180)
days before September 30, 1998, with respect to the entire demised premises,
including the 171 Expansion Space and the 175 Expansion Space.
D. The option to extend the demised term can only be exercised by
Perclose, Inc., a Delaware corporation, for its use of the entire demised
premises and may not be transferred to any assignee, sublessee or other
successor in interest nor may it be exercised by Perclose, Inc., a Delaware
corporation, for any such assignee, sublessee or other successor in interest.
6. A. Subject to the provisions hereof, Landlord shall provide certain
leasehold improvements ("Tenant Improvements") to be made to the 171
Expansion Space in accordance with the plans and specifications dated
December 26, 1996, for the Tenant Improvements (the "Plans") prepared by
Xxxxxxx Design (the "Architect"). Once approved by Landlord and Tenant the
Plans shall be made a part hereof as EXHIBIT C. Landlord's and Tenant's
approval of the Plans shall not be unreasonably withheld. The actual cost of
the Tenant Improvements made pursuant to the Plans shall be borne by Landlord.
Immediately following approval of the Plans, Landlord shall apply for all
requisite building permits and approvals for construction of the Tenant
Improvements in accordance with the Plans. On or about June 1, 1997, subject
to the provisions hereof, Landlord shall cause a contractor ("Contractor")
selected by Landlord to commence construction of the Tenant Improvements and
diligently prosecute the same to completion in a good and workmanlike manner
in accordance with the Plans.
Tenant shall have the right to make changes in the Plans on or before
April 30, 1997, provided such changes are approved by Landlord, such approval
not to be unreasonably withheld or delayed, and provided further that the
increased construction costs for any and all changes to the approved Plans
shall be borne by Tenant. Tenant shall pay to Landlord the aggregate net
increase in cost for such changes within five (5) days after substantial
completion of the Tenant Improvements. Any such change(s) may be made only in
a writing approved and signed by Landlord. As used herein the cost of
providing the changes to the Plans shall include all soft costs, including
reasonable fees, architect's fees, fees for permits, consulting engineer
fees, contractor fees, inspection fees, fees for testing services and fees
for processing and completing changes to the Plans, in addition to actual
hard costs of construction.
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Landlord and Tenant agree that construction of the Tenant Improvements is
anticipated to commence on or about June 1, 1997, and is anticipated to be
substantially completed on or about July 1, 1997. The parties agree to the
following: (i) the Plans shall be approved by Landlord and Tenant on or
before May 1, 1997, to allow for the timely issuance of building permits and
approvals; (ii) Tenant, its employees, agents, contractors and
representatives, shall vacate the entire 171 Expansion Space before June 1,
1997 (or such later date as advised by Landlord to Tenant if commencement of
construction of the Tenant Improvements is delayed due to a delay in
obtaining building permits or approvals), to allow the Contractor to commence
to construct the Tenant Improvements and shall remain vacated until
substantial completion of the Tenant Improvements; (iii) the applicable
portion of Tenant's base rent for the 171 Expansion Space (i.e., the amount
of $4,017.50) shall xxxxx during the thirty (30) day period during which the
Tenant Improvements are being constructed, and the parties agree that in no
event shall the abatement of said portion of base rent be extended beyond
thirty (30) days; and (iv) upon notice from Landlord to Tenant of the
substantial completion of such work as certified by the Architect, Tenant
shall accept the 171 Expansion Space in an "as is" condition subject to the
punch list items described in the following sentence. Tenant shall, within
thirty (30) days of certification by Architect that the Tenant Improvements
are substantially complete, notify Landlord and Contractor of any items of
work that are defective or incomplete. Landlord shall thereafter diligently
pursue on Tenant's behalf the correction or completion of said items.
B. In addition to the Tenant Improvements to be made to the 171
Expansion Space in accordance with the Plans, Landlord shall, at Landlord's
expense, cause the Contractor to provide and install a fire sprinkler system
in the 171 Expansion Space and 175 Expansion Space.
C. Any additional work to be performed in the 171 Expansion Space and
175 Expansion Space other than that provided for hereinabove and designated
as Landlord's work shall be performed at the sole cost of Tenant in
accordance with detailed plans and specifications therefor which must be
approved, in writing, by Landlord or Landlord's Architect before work is
commenced. Tenant shall furnish Landlord with a set of "as built" plans after
any such work is completed.
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7. Except as herein modified, the terms of the Lease are and shall remain
the same.
IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Lease as of the date first hereinabove written.
TENANT: LANDLORD:
PERCLOSE, INC., XXXXX X. XXXXXXXX ORGANIZATION,
a Delaware corporation a California corporation
By: /s/ Xxxx Plain By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Vice President Vice President
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx, Xx.
---------------------------------- ---------------------------------
Secretary Assistant Secretary
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EXHIBIT "X"
XXXXXXXX INDUSTRIAL PARK
000 XXXXXXXXX XXXXX
XXXXX XXXX, XXXXXXXXXX
DESCRIPTION OF DEMISED PREMISES
FOR
"PERCLOSE"
All that certain real property situate in the State of California,
Country of San Mateo, City of Menlo Park and is described as follows:
A portion of Parcel 2, as said parcel is designated on the map entitled
"PARCEL MAP, BEING A RESUBDIVISION OF PARCEL 2 OF P.M. REC. IN VOLUME 27 AT
PAGE 39 AND PARCELS 2 AND 3 OF P.M. RECORDED IN VOLUME 28 AT PAGE 8, SAN
MATEO COUNTY RECORDS XXXXXXXX INDUSTRIAL PARK, MENLO PARK, SAN MATEO COUNTY,
CALIFORNIA," which map was filed in the Office of the Recorded of the County
of San Mateo, State of California on January 12, 1976 in Volume 30 of Parcel
Maps at Page 20, more particularly described as follows:
Commencing at the most westerly corner of said Parcel 2, from which
corner the point of beginning of the demised premises bears South 67 DEG. 17'
East 51.00 feet and North 22 DEG. 43' East 56.00 feet; Thence from said
point of beginning North 22 DEG. 43' East 100.00 feet; Thence South
67 DEG. 17' East 40.00 feet; Thence South 22 DEG. 43' West 40.00 feet;
Thence North 67 DEG. 17' West 13.10 feet; Thence South 22 DEG. 43' West
60.00 feet; Thence North 67 DEG. 17' West 26.90 feet to the point of
beginning.
Containing approximately 3,214 SQUARE FEET, more of less.
Jan. 14, 1997
[FLOOR PLAN]
JEFFERSON DRIVE
EXHIBIT "X-1"
EXHIBIT "Y"
XXXXXXXX INDUSTRIAL PARK
000 XXXXXXXXX XXXXX
XXXXX XXXX, XXXXXXXXXX
DESCRIPTION OF DEMISED PREMISES
FOR
"PERCLOSE"
All that certain real property situate in the State of
California, County of San Mateo, City of Menlo Park and is described as
follows:
A portion of Parcel 2, as said parcel is designated on the map entitled
"PARCEL MAP, BEING A RESUBDIVISION OF PARCEL 2 OF P.M. REC. IN VOLUME
27 AT PAGE 39 AND PARCELS 2 AND 3 OF P.M. RECORDED IN VOLUME 28 AT
PAGE 8, SAN MATEO COUNTY RECORDS XXXXXXXX INDUSTRIAL PARK, MENLO PARK, SAN
MATEO COUNTY, CALIFORNIA," which map was filed in the Office of the Recorded
of the County of San Mateo, State of California on January 12, 1976 in
Volume 30 of Parcel Maps at Page 20, more particularly described as
follows:
Commencing at the most westerly corner of said Parcel 2, from which
corner the point of beginning of the demised premises bears South 67 DEG. 17'
East 51.00 feet, North 22 DEG. 43' East 56.00 feet and South 67 DEG. 17'
East 80.00 feet; Thence from said point of beginning North 22 DEG. 43' East
100.00 feet; Thence South 67 DEG. 17' East 40.00 feet; South 22 DEG. 43'
West 100.00 feet; Thence North 67 DEG. 17' West 40.00 feet to the point of
beginning.
Containing approximately 4,000 SQUARE FEET, more or less.
March 13, 1997
[FLOOR PLAN]
JEFFERSON DRIVE
EXHIBIT "Y-1"
