EXHIBIT 10.9(i)
NINTH AMENDMENT TO LEASE
THIS NINTH AMENDMENT TO LEASE (hereinafter "Ninth Amendment") is made this day
of October 2003, by and between XxXXXXXXXX LIMITED, a California limited
partnership (Landlord") and NOVACEPT, a California corporation formerly known as
Envision Surgical Systems, Inc. ("Tenant").
RECITALS
This Ninth Amendment is made and entered into with reference to the following
facts:
A. Tenant currently leases from Landlord approximately
eighteen thousand seven hundred and sixty-five (18,765) square feet of space as
described in Exhibit A attached hereto (collectively the "Existing Premises") of
which approximately eight thousand six hundred and fifty (8,650) square feet of
space is located at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx ("1047 Xxxxxx") and
approximately ten thousand one hundred and fifteen (10,115) square feet of space
is located at 0000-0000 Xxxxxx Xxxxx, Xxxx Xxxx ("1052-6 Xxxxxx") pursuant to
that certain lease dated August 26, 1993 as amended by the First Amendment To
Lease dated July 8, 1996, the Second Amendment To Lease dated May 13, 1998, the
Third Amendment To Lease dated July 13,1999, the Fourth Amendment To Lease dated
August 4, 2000, the Fifth Amendment To Lease dated September 30, 2000, the Sixth
Amendment To Lease dated January 5, 2001, the Seventh Amendment To Lease dated
June 12, 2001 and the Eighth Amendment To Lease dated January 25, 2002
("Lease").
B. Tenant desires to expand the Existing Premises to
include an additional seven thousand four hundred and eighty (7,480) square feet
of space located at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx as described in
Exhibit A attached hereto ("Expansion Space"), thereby increasing the total
space leased to twenty-six thousand two hundred and forty-five (26,245) square
feet ("Expanded Premises"). The Expansion space at 0000 Xxxxxx Xxxxx is
currently occupied by Allegroup LLC (formerly Xxxxxx Image and Good Earth
Bakeries), whose term expires November 30, 2003.
C. The term of the Lease respecting the Premises expires
on December 31, 2003. Tenant desires to extend the term of such Lease for the
Expanded Premises for approximately two years, until December 31, 2005.
Notwithstanding the above, Tenant desires an option to terminate the Lease
respecting the Expansion Space effective upon six (6) months prior written
notice to Landlord, provided such option may be exercised only after three (3)
lease months from the Expansion Space Commencement Date.
D. Prior to Tenant's occupancy of such Expansion Space,
Tenant desires that Landlord shall improve the Expansion Space at Landlord's
expense, as described on Exhibits B and C. In addition, Tenant desires that
Landlord provide to Tenant a Tenant improvement allowance amounting to
thirty-five thousand and 00/100 ($35,000.00) dollars to be applied at Tenant's
discretion to the construction of improvements to the Existing Premises (and the
Expansion Space after Landlord's work in the Expansion Space is completed and
Tenant has occupied the Expansion Space), as well as trenching between the
building in which 1047 Xxxxxx is located and the building in which 1052-6 Xxxxxx
and the Expansion Space are located and installing telecommunication lines in
such trenching.
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E. Landlord is willing to so expand the Existing
Premises, perform such tenant improvements, grant the $35,000 allowance and
extend the term of the Lease with the option to terminate the Expansion Space
tenancy on the terms and conditions set forth herein.
ACCORDINGLY, in consideration of the above recitals and the
mutual covenants and agreements contained herein and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Incorporation of Recitals and Exhibits. The above
Recitals are true and accurate and the Recitals and Exhibits are incorporated
herein by reference.
2. Expansion into 1058 Xxxxxx. As of the sooner of (i)
the date Allegroup, LLC vacates (or Landlord otherwise obtains legal possession
of) the Expansion Space, Landlord substantially completes the Expansion Space
Improvements as described in Exhibits B and C and Landlord delivers the
Expansion Space to Tenant, or (ii) the date Tenant occupies the Expansion Space
("Expansion Space Commencement Date"), the Existing Premises shall be expanded
to include the Expansion Space as described above and the total square footage
of the Expanded Premises shall be twenty-six thousand two hundred and forty-five
(26,245) square feet.
3. Term. The term of the Lease respecting the Existing
Premises is hereby extended for twenty-four (24) additional months from January
1, 2004 until December 31, 2005. The term of the Lease respecting the Expansion
Space shall be from the Expansion Space Commencement Date until December 31,
2005. The period commencing on January 1, 2004 (or the Expansion Space
Commencement Date in the case of the Expansion Space) and ending on December 31,
2005 is referred to herein as the Ninth Extended Term.
4. Basic Rent. As of January 1, 2004, the monthly basic
rent as described in Paragraphs 4 (a) and 5 of the Lease shall decrease from
seventy four thousand and seven hundred and four and 44/100 dollars ($74,704.44)
per month to thirteen thousand one hundred and thirty-five and 50/100 dollars
($13,135.50) per month. The calculation for such basic rent is reached by
multiplying 18,765 square feet x $0.70 per square foot. As of the Expansion
Space Commencement Date, the monthly basic rent as described in Paragraphs 4 (a)
and 5 of the Lease shall increase to eighteen thousand three hundred and
seventy-one and 50/100 dollars ($18,371.50) per month. The calculation for such
Expanded Premises basic rent is reached by multiplying 26,245 square feet x
$0.70 per square foot. As of January 1, 2005, the basic rent for the Expanded
Premises shall be increased by five percent (5%).
5. Adjustments to Basic Rent. The monthly basic rent
shall be adjusted as follows:
January 1, 2004 through the
Expansion Space Commencement Date $13,135.50 per month
The Expansion Space Commencement
Date through December 31, 2004 $18,371.50 per month
January 1, 2005 through December 31, 2005 $19,290.08 per month
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6. Common Area Charges. Tenant shall continue to pay its
proportionate share of common area charges as set forth in paragraphs 5 (b) and
16 of the Lease, as amended to reflect Tenant's occupancy of the Existing
Premises. Upon the Expansion Space Commencement Date, Tenant's proportionate
share of such common area charges shall continue to be 55.52% of the common area
charges allocable to the building in which 1047 Xxxxxx is located and shall
increase to 100% of the common area charges allocable to the building in which
1052-6 Xxxxxx and the Expansion Space are located.
7. Parking. As of the Expansion Space Commencement Date,
Tenant's proportionate share of parking spaces shall be fifty-five percent (55%)
of those spaces allocable to the building in which 1047 Xxxxxx is located and
one hundred percent (100%) of those parking spaces allocable to the building in
which 1052-6 Xxxxxx and the Expansion Space are located.
8. Expansion Space Tenant Improvements. Landlord shall,
at Landlord's sole cost and expense and in a diligent and workmanlike manner,
construct Tenant Improvements in the Expansion Space as described in Exhibits B
and C.
9. Tenant Improvement Allowance. As described in Exhibit
D, Landlord shall grant to Tenant a Tenant Improvement Allowance amounting to
thirty-five thousand and 00/100 dollars ($35,000.00) for the construction of
Tenant Improvements to be performed by Tenant in (i) the Existing Premises, (ii)
the Expansion Space after Landlord has completed the Expansion Space Tenant
Improvements described in Exhibits B and C and Tenant has occupied the Expansion
Space and (iii) the common area to install telecommunications lines between 1047
Xxxxxx and 1052-8 Xxxxxx as described in Exhibits D and D-1.
10. Expansion Space Option To Terminate. Notwithstanding
the provisions of paragraph 3 of this Ninth Amendment, Tenant shall have the
right to terminate this Lease respecting the Expansion Space, but not the
Existing Premises, (hereinafter "Right To Terminate"), upon six (6) months prior
irrevocable written notice to Landlord of any proposed Expansion Space
termination date, provided any such written notice to Landlord of Tenant's
intention to terminate shall be delivered and deemed effective no earlier than
three (3) lease months following the Expansion Space Commencement Date. If
Tenant fails to give Landlord written notice of its intention to terminate this
Lease respecting the Expansion Space, as provided above, prior to July 1, 2005
then this Right To Terminate shall lapse and be of no further effect. If Tenant
subleases or assigns its interest in all or a portion of the Expanded Premises,
and such sublease or assignment includes the Expansion Space, then this Right To
Terminate shall lapse and be of no further effect. In the event Tenant exercises
this Right To Terminate, then on or before the date such Expansion Space
termination becomes effective, Landlord and Tenant shall execute an amendment to
this Lease setting forth the amended premises, square footage, basic rent, and
proportionate share of common area charges, parking and other relevant matters.
11. First Right To Lease. Landlord hereby grants to
Tenant a first right to lease all of the feasible space adjacent to the 1047
Xxxxxx, as described on Exhibit A ("1049 Xxxxxx"), subject to the following
terms and conditions:
(a) Prior to entering into a lease for all or a portion of
0000 Xxxxxx, Xxxxxxxx shall notify Tenant of Landlord's intention to lease all
or a portion of 1049 Xxxxxx to a third party, which notice shall set forth the
terms and conditions, including, but not limited to, basic rent, under which
Landlord intends to lease 1049 Xxxxxx. Such notice shall constitute an offer to
lease 1049 Xxxxxx to Tenant.
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(b) Tenant shall have five (5) business days from the date of
the notice to deliver to Landlord its written acceptance of such offer. If
Tenant accepts the offer, an amendment to this Lease or a new lease covering
1049 Xxxxxx and incorporating such terms and conditions shall promptly be
executed. If a new lease is executed with Tenant covering 1049 Xxxxxx, such new
lease shall provide that any default thereunder will also constitute a default
under this Lease and Tenant agrees that any default by it under this Lease shall
also constitute a default under such new lease. In the event Tenant rejects the
offer, or does not answer within the specified time, or fails for any reason
(unless such failure to execute is due to the fault or delay of Landlord) to
execute such amendment or new lease within fifteen (15) days of acceptance of
such offer, Landlord shall thereafter be released of any obligation to Tenant
hereunder and be free to negotiate with any number of third parties and to lease
(without further obligation to Tenant) 1049 Xxxxxx, or any part thereof, to a
third party upon any terms and conditions (whether more or less favorable) that
Landlord and such third party may agree and this first right to lease shall be
of no further force or effect.
(c) This first right to lease shall be subordinate to any
existing rights of refusal, rights of expansion, first rights to lease, options
to extend or renew, and other rights contained in leases (or amendments to
leases) executed prior to the date of this Lease. This first right to lease
shall not apply on the occurrence any future renewals granted to a tenant
currently or then occupying all or a portion of 1049 Xxxxxx, or its successors
or assigns.
(d) This first right to lease shall be void and of no force
and effect and shall confer no rights on Tenant during any period in which
Tenant is in default under this Lease or confer any rights to any assignee or
sublessee of Tenant if Tenant subleases or assigns all or a portion of the
Existing Premises or the Expanded Premises.
(e) Notwithstanding anything in this paragraph 11 to the
contrary, Tenant's exercise of this first right to lease shall be subject to
Landlord's review and approval of Tenant's financial condition (including net
worth, current ratio and working capital reserves) at the time Tenant exercises
this first right to lease and notwithstanding Tenant's rights hereunder Landlord
shall have no obligation to lease 1049 Xxxxxx, or any portion thereof, to Tenant
unless Tenant's financial condition at the time of exercise is acceptable to
Landlord.
12. Signage: Subject to the provisions of paragraph 50 of
the Lease, Tenant shall have the right to install, replace and maintain signage
bearing the Novacept name and logo on (i) the entire monument sign serving
0000-0 Xxxxxx Xxxxx and (ii) a proportionate share of the monument sign serving
0000-0 Xxxxxx Xxxxx. In addition, Tenant shall have the right to install and
maintain signage on either of such monument signs, or a new sign located in the
common area of 1047-9 or 0000-0 Xxxxxx Xxxxx, indicating the location of
Tenant's headquarters. Notwithstanding the foregoing, Tenant shall comply with
all permit, notice and consent provisions and other requirements specified in
paragraph 50 of the Lease. Landlord shall provide to Tenant an allowance of one
thousand and 00/100 dollars ($1,000.00) applicable to the installation of such
signage ("Sign Allowance"). Such Sign Allowance shall cover all design, permit,
material and labor costs related to the removal of existing sign placards and.
the installation of new signage as described, in this paragraph 12. Landlord
shall disburse and Tenant shall spend such Sign Allowance in a manner consistent
with the terms and conditions of the Tenant Improvement Allowance described in
paragraph 9 and Exhibit D of this Ninth Amendment.
13. No Representations: Tenant acknowledges that, except
as expressly contained in this Lease, neither Landlord nor anyone acting for or
on behalf of Landlord has made any representation, warranty or promise to Tenant
concerning the physical aspects or condition of any of the Expansion Space
and/or the furniture, fixtures and equipment
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within the Expansion Space or given to Tenant by Landlord ("FF&E"); the
feasibility, desirability or convertibility of any of the Expansion Space or any
such FF&E into any particular use; the zoning, building or land use restrictions
applicable to the Expansion Space; the projected income or expenses for any of
the Expansion Space or any business conducted thereon; or the suitability of the
Expansion Space and/or FF&E for any particular use; and that in entering into
this Ninth Amendment, Tenant has not relied on any representation, statement or
warranty of Landlord or anyone acting for or on behalf of Landlord, other than
as expressly contained in this Lease, and that all matters concerning the
Expansion Space and/or FF&E shall be independently verified by Tenant and that
Tenant shall enter into this Ninth Amendment on Tenant's own examination thereof
(or Tenant's election not to do so); and that Tenant, upon entry onto the
Expansion Space, accepts the Expansion Space, and all other improvements,
furniture, fixtures, equipment and systems situated thereon in "as is" physical
condition and in an "as is" state of repair, except to the extent such
improvements, furniture, fixtures, equipment and systems situated thereon are
demolished and/or constructed by Landlord in the Expansion Space as described in
Exhibits 8 and C. Tenant does hereby waive, and Landlord does hereby disclaim,
all warranties of any type or kind whatsoever with respect to the Expansion
Space and/or FF&E, express or implied, including by way of description, but not
limitation, those of fitness for a particular purpose, tenantability,
habitability and use. Tenant hereby expressly waives any and all claims for
damages or for rescission or cancellation of the Lease or this Ninth Amendment
because of any representations made by Landlord or any agent of Landlord.
14. Acknowledgement of Limitation of Agent's Authority:
No person acting on behalf of Landlord is authorized to make, and by execution
hereof Tenant acknowledges that no such person has made, any representation,
warranty, guaranty or promise except as may be expressly set forth herein; and
no agreement, statement, representation, guaranty or promise made by any such
person which is not expressly contained herein shall be valid or binding on
Landlord and Landlord's agents, heirs, successors or assigns. The only
representations or warranties outstanding with respect to the Expansion Space or
the Expanded Premises, or Landlord, either express or implied by law, are
expressly set forth herein.
15. Documentary Information: Tenant acknowledges that any
and all documentary information, soil reports, environmental audits, site
assessments, analyses or reports, insurance policies or other information of
whatever type which Tenant has received or may receive from Landlord or
Landlord's agents is furnished on the express condition that Tenant shall make
Tenant's own independent verification of the accuracy and completeness of such
information. Tenant agrees that Tenant shall not attempt to assert any liability
upon Landlord or Landlord's agents for furnishing such information and Tenant
does hereby release Landlord and Landlord's agents, heirs, successors and
assigns from, and does hereby agree to indemnify, protect, defend and hold
Landlord and Landlord's agents, heirs, successors and assigns free and harmless
from and against, any and all such claims or liability.
16. Use of Premises: Tenant shall use the Expansion Space
for general office, research and development, light manufacturing and light
distribution purposes and for no other purpose without the express written
consent of Landlord, which consent shall not be unreasonably withheld.
17. Warranty of Authority: Each signatory to this Ninth
Amendment represents that he or she possesses full authority to exercise this
Ninth Amendment and to bind the entity on whose behalf such signatory is
signing.
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18. Brokers. Each party represents that it has not had
any dealings with any real estate broker, finder or other person with respect to
this Ninth Amendment, and that there are no leasing commissions to be paid by
Landlord or Tenant in connection with this transaction. Each party hereto shall
hold harmless the other party from all damages, loss or liability resulting from
any claims that may be asserted against the other party by any broker, finder or
other person with whom such party has dealt, or purportedly has dealt, in
connection with this transaction.
19. Restatement of Other Lease Terms. Except as
specifically modified herein, all other terms, covenants and conditions of the
Lease, including Tenant's obligation to pay common area charges for both the
Existing Premises and the Expansion Space, shall remain in full force and
effect.
20. Capitalized Terms. All capitalized terms used in this
Ninth Amendment shall possess the same meaning ascribed to that term in the
Lease.
21. Conflicts. In the event of any conflict between the
Lease on the one hand and this Ninth Amendment on the other, the terms of this
Ninth Amendment shall govern and control.
22. Counterparts. This Ninth Amendment may be executed in
identical counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
LANDLORD: TENANT:
XxXXXXXXXX LIMITED, NOVACEPT, a California corporation
a California limited partnership formerly known as Envision Surgical
Systems, Inc.
By: The Xxxx X. XxXxxxxxxx Trust By: /s/ [ILLEGIBLE]
U / T / A 1/25/77, General Partner -----------------------------------
(Signature)
By: /s/ X. X. Xxxxx
-----------------------------------
By: /s/ Xxxx X. XxXxxxxxxx (Printed Name)
------------------------
Xxxx X. XxXxxxxxxx or
Xxxxxx Xxxxxx, Trustee By: VP Operations
-----------------------------------
(Title)
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EXHIBIT A
[FLOOR PLAN]
EXHIBIT B
[FLOOR PLAN]
EXHIBIT B-1
[FLOOR PLAN]
TURNKEY WORK LETTER AGREEMENT
NOVACEPT EXPANSION SPACE
0000 XXXXXX XXXXX, XXXX XXXX
CONSTRUCTION EXHIBIT C
THIS WORK LETTER AGREEMENT (hereinafter "Exhibit C") is attached to and
forms a part of that certain Ninth Amendment To Lease ("Ninth Amendment") by and
between XxXXXXXXXX LIMITED, a California limited partnership ("Landlord"), and
NOVACEPT, a California Corporation ("Tenant"), pursuant to which Landlord leases
to Tenant those certain premises located and 1047 and 0000-0 Xxxxxx Xxxxx, Xxxx
Xxxx, Xxxxxxxxxx consisting of approximately 26,245 square feet ("Expanded
Premises"). All capitalized terms used herein shall have the meaning ascribed to
them in the Ninth Amendment unless otherwise defined below. Landlord shall, at
Landlord's expense, substantially improve the Expansion Space located at 0000
Xxxxxx Xxxxx in accordance with the following.
1. EXISTING IMPROVEMENTS:
Tenant accepts the Expansion Space in it's existing condition
and the improvements constructed therein as shown in Exhibit B-1 (the "Existing
Expansion Space Improvements"), and Tenant hereby approves the same as
installed, subject only to construction of the Expansion Space Tenant
Improvements specified herein and such changes as may subsequently be agreed
upon by Landlord and Tenant.
2. TENANT IMPROVEMENTS:
Landlord shall, at Landlord's expense improve the Expansion
Space as described on Exhibit B and this Exhibit C. As used herein, "Expansion
Space Tenant Improvements" shall include the substantial demolition of the
Existing Expansion Space Improvements as depicted on Exhibit B-1 and the
construction of new improvements the Expansion Space as shown in Exhibit B.
Specifically, these Expansion Space Tenant Improvements shall include removal of
all existing restrooms, floor covering, bakery equipment (including repairs
necessitated by such removal) and walls not consistent with Exhibit B. The
12'xl3' conference room in the northwest corner of Exhibit B and 13'xl0' office
in the northeast corner of Exhibit B shall remain. In addition, Landlord shall
install in the Expansion Space new fully finished ADA compliant restrooms, new
HVAC units and ducting with air supply vents and return registers as needed, new
carpeting in the remaining front office and conference room and the lobby/open
office space between them up to the new restrooms, vinyl acrylic tile over the
balance of the floor space. Landlord shall also install (i) such removable and
fully painted sheetrock walls and standard trim and (ii) such 48" x 9' doors and
frames as are delineated in bold and highlighted with arrows on Exhibit B
(including the 48' wall separating the R&D area from the PEAK assembly area if
needed), new florescent lighting as needed, 2'x4' dropped acoustical ceiling as
needed to cover the entire expansion space and eight (8) L15-20R electrical
outlets with 20 amp-3 phase circuit breakers for the PEAK 3 machines and two (2)
208-volt, 20-30 amp electrical outlets and corresponding circuit breakers for
the machine shop, all distributed as approved by Tenant, with electrical service
to support such outlets and electrical outlets for standard office use in the
balance of the Expansion Space, fire extinguishers and related design and permit
fees. The cost, transportation and installation of the eleven PEAK 3 machines,
and the moveable partitions comprising the four office cubicles, shall be at
Tenant's cost.
Landlord shall complete the Expansion Space Tenant
Improvements at Landlord's sole cost and expense. Unless otherwise specifically
agreed to by Landlord in writing, and except for the Tenant Improvement
Allowance described in Exhibit D, the installation, wiring, maintenance and
removal of telephone and other communications systems, data cabling, alarm
and/or security systems, movable furniture systems or any other systems, and all
costs and expense associated therewith, shall be the sole responsibility of
Tenant. In connection with the construction and installation of the Expansion
Space Tenant Improvements, Landlord and/or Landlord's general contractor shall
have no obligation to relocate or move any of Tenant's property located in or
about the Premises including, but not limited to, furniture, open office cubicle
partitions, inventory and trade fixtures, at the time of such construction and
installation. If at the time of construction and installation of Tenant
Improvements, Tenant has property (including open office cubicle partitions)
located in or about the Expansion Space that inhibits or prevents in any way the
construction or installation of the Expansion Space Tenant Improvements, Tenant
shall immediately, upon receipt of notification therefore from Landlord or
Landlord's general contractor, at Tenant's sole cost and expense, move such
property to another location or, upon the receipt of Landlord's prior approval,
to another location within the Project designated by Landlord in Landlord's sole
discretion. If at the time of construction and installation of the Expansion
Space Tenant Improvements Tenant has property located in or about the Expansion
Space, Landlord or Landlord's general contractor shall incur no liability to
Tenant or any other party in the event such property is damaged, destroyed or
stolen during the construction and installation of the Expansion Space Tenant
Improvements.
3. TENANT IMPROVEMENT DESIGN SCHEDULE:
Once Tenant has approved paint, carpet, VCT and all other
color and material specifications and Tenant has approved in writing all
preliminary drawings of the Expansion Space Tenant Improvements, Landlord shall
promptly complete construction drawing sufficiently detailed and complete to
submit to the City of Palo Alto for a building permit and Landlord shall so
submit such drawings. Once such building and all other necessary permits are
obtained, Landlord shall complete construction of such Expansion Space Tenant
Improvements in a diligent, timely and workmanlike manner. Delays in the
construction or installation of the Expansion Space Tenant Improvements due to
any changes required by the City of Palo Alto or by Tenant, or failures by
Tenant to perform its obligations under this Ninth Amendment, or delays for any
other reason, shall not delay commencement of the Ninth Extended Term or
Tenant's obligation to pay rent or to make other payments due Landlord under the
Lease.
4. CHANGES BY TENANT:
Tenant may request changes, deletions or additions to the Expansion
Space Tenant Improvements; provided, however, that the effectiveness of any such
requested change, deletion or addition shall be subject to written approval by
an authorized representative of Landlord and to obtaining any required
governmental permits or other approvals. If any such changes increase the cost
of constructing or installing the Expansion Space Tenant Improvements, Tenant
shall immediately pay to Landlord, within five (5) days of demand, the full
amount of such increase in the cost of constructing or installing the Expansion
Space Tenant Improvements.
5. CHANGES BY AUTHORITY:
Tenant agrees that if any change, deletion or addition to any of the
improvements proposed to be constructed or installed is required by any
governmental authority in connection with obtaining any governmental permit or
approval, or otherwise, then such change, deletion or addition shall promptly be
made at Tenant's expense. Failure to obtain any required
governmental approval or permit for the Expansion Space Tenant Improvements
desired by Tenant shall in no way be cause for Tenant to terminate the Lease or
this Ninth Amendment.
6. PUNCH LIST:
Within ten (10) business days after the Expansion Space Commencement
Date, Tenant shall deliver to Landlord a list of items ("Punch List") that
Tenant believes Landlord should complete or correct in order for the Expansion
Space to be acceptable. Landlord shall commence to complete or correct the items
as soon as possible, except those items that Landlord reasonably contends are
not justified. If Tenant does not deliver the Punch List to Landlord within the
ten (10) day period, Tenant shall be deemed to have accepted the Expansion Space
and approved the construction. Nothing in this paragraph 6 shall delay the
commencement of the Ninth Extended Term, the Expansion Space Commencement Date
or Tenant's obligation to pay rent or to make other payments due Landlord under
the Lease for the Expanded Premises or the Expansion Space.
WORK LETTER AGREEMENT
EXISTING PREMISES
NOVACEPT TENANT IMPROVEMENT ALLOWANCE
1047 AND 0000-0 XXXXXX XXXXX, XXXX XXXX
CONSTRUCTION EXHIBIT D
THIS WORK LETTER AGREEMENT (hereinafter "Exhibit D") is attached to and
forms a part of that certain Ninth Amendment To Lease ("Ninth Amendment") by and
between XxXXXXXXXX LIMITED, a California limited partnership ("Landlord"), and
NOVACEPT, a California Corporation ("Tenant"), pursuant to which Landlord leases
to Tenant those certain premises located at 1047 and 0000-0 Xxxxxx Xxxxx, Xxxx
Xxxx, Xxxxxxxxxx consisting of approximately 18,765 square feet ("Existing
Premises") and those certain premises located at 0000 Xxxxxx Xxxxx, Xxxx Xxxx,
Xxxxxxxxxx consisting of approximately 7,480 square feet ("Expansion Space"),
together comprising the total space leased by Tenant of approximately 26,245
square feet ("Expanded Premises"). All capitalized terms used herein shall have
the meaning ascribed to them in the Ninth Amendment unless otherwise defined
below. The Existing Premises (and the Expansion Space after Landlord has
completed the Expansion Space Tenant Improvements described in Exhibits B and C
and Tenant has occupied the Expansion Space) shall be improved in accordance
with the following:
1. Existing Improvements. Tenant accepts the Existing
Premises in their existing condition and the improvements constructed therein
(the "Existing Improvements"), and Tenant hereby approves the same as installed,
subject only to construction of the Tenant Improvements as may subsequently be
agreed upon by Landlord and Tenant.
2. Tenant Improvement Allowance. Tenant may perform
alterations, additions and improvements to (i) the Existing Premises, (ii) the
Expansion Space after Landlord has completed the Expansion Space Tenant
Improvements described in Exhibits B and C and Tenant has occupied the Expansion
Space and (iii) to the common area between the building located at 0000-0 Xxxxxx
Xxxxx and the building located at 0000-0 Xxxxxx Xxxxx as necessary to trench
approximately 275 feet and install telecommunications lines connecting such
buildings as described in Exhibit D-1, all in accordance with the terms of the
Lease and this Paragraph 2. All work to be performed by Tenant shall be
performed in a good and workmanlike manner, and in accordance with (i) all
rules, regulations, codes and ordinances of any local, municipal, state and/or
federal authorities having jurisdiction thereover, and (ii) all requirements of
industry and rating bureaus. Permits, licenses or approvals required for said
work from such authorities shall be obtained by Tenant at its sole cost and
expense. In a timely manner, Tenant will obtain and provide to Landlord all
approvals, tests and inspections with respect to electrical, HVAC, plumbing and
telephone work, all as may be required by any agency or utility company.
Landlord reserves the right to require changes in Tenant's work when necessary
by reason of the requirements of any agency or utility company. Without limiting
the generality of the foregoing, Tenant will be responsible for paying all fees
and charges, however designated, which are payable as a condition to obtaining
the building permit for Tenant's work.
All work to be performed by Tenant will be in accordance with
detailed plans and specifications prepared at Tenant's cost and submitted by
Tenant to Landlord for Landlord's prior written approval. Landlord's approval
(as to both design and materials) may be granted or withheld in Landlord's
reasonable discretion. Tenant will be responsible for any and all actual
out-of-pocket costs incurred by Landlord directly related to the review and
approval of Tenant's plans and specifications, including, but not limited to,
plan expediting or courier service if required by all appropriate authorities,
review by outside
consultants, overnight mail and photocopying. It is expressly agreed that Tenant
will not commence any work until the detailed drawings prepared for Tenant by an
appropriate design professional in accordance with preliminary plans and
specifications approved by Landlord have been approved by Landlord and any and
all required building permits have been issued by applicable governmental
authorities. No changes of materials or finishes are permitted after final
approval by Landlord of the detailed drawings unless those changes are expressly
approved in writing by Landlord. It is Tenant's sole responsibility to complete
and submit drawings per the requirements and protocols of all appropriate
authorities.
Landlord and Tenant hereby agree that Landlord shall pay to
Tenant as a construction allowance an amount equal to thirty-five thousand and
00/100 dollars ($35,000.00) (hereinafter "Tenant Improvement Allowance"). The
Tenant Improvement Allowance shall be paid to Tenant in accordance with the
following terms and conditions:
2.1 Payment of Tenant Improvement Allowance.
Provided Tenant is not in default at the time the payment is due, the Tenant
Improvement Allowance will be paid by Landlord to Tenant within thirty (30) days
after the following list of documents have been submitted to Landlord for
Landlord's prior approval (hereinafter "Required Documentation"):
2.2 Required Documentation.
(i) Notice of Completion. Notice from
Tenant or its general contractor certifying in writing to Landlord, and Landlord
approves such certification that one hundred percent (100%) of the Tenant's work
is completed.
(ii) Invoices. Copies of paid invoices
evidencing Tenant's expenditure amounts for actual construction costs (exclusive
of "soft costs") up to the amount of the Tenant Improvement Allowance, plus an
affidavit of Tenant's chief financial officer stating the total cost of the
construction. In no event shall the Tenant Improvement Allowance be applied for
the payment of furniture, furnishings, fixtures, equipment (except the
aforementioned telecommunication lines, installation and connections described
in Exhibit D-1) or soft costs of construction, unless otherwise approved by
Landlord in writing.
(iii) Lien Waivers. Final unconditional
releases of liens (in the form recognized by California law) executed by all
applicable suppliers, materialmen, contractors and subcontractors.
(iv) Affidavit of Payment. An affidavit
executed by Tenant or its design professional listing (a) the names of all
contractors, subcontractors, suppliers and materialmen who provided or supplied,
labor, services, goods and materials to the Existing Premises, Common Area for
work as described in Exhibit D-1 or the Expansion Space, and (b) all listed
contractors, subcontractors, suppliers and materialmen have been paid in full
for the labor, services, goods and materials provided or supplied to the
Existing Premises, Common Area for work as described in Exhibit D-1 or the
Expansion Space as of the date of the affidavit.
(v) Certificate of Occupancy (if
applicable). If construction work is sufficiently extensive that a new
certificate of occupancy is required by the City of Palo Alto, a permanent or
temporary Certificate of Occupancy (or other certificate customarily issued in
the City of Palo Alto) for the Existing Premises or the Expansion Space
(whichever is applicable) has been issued by the appropriate governmental agency
of the City of Palo Alto.
(vi) Form W-9 Request for Taxpayer
Identification Number and Certification. Tenant must submit to Landlord a Form
W-9 with Tenant's taxpayer identification number completed.
Failure to satisfactorily supply any of the above stated
Required Documentation shall result in the Tenant Improvement Allowance being
held by Landlord until such Required Documentation has been satisfactorily
submitted to Landlord.
2.3 Landlord's Right to Retainage and Offset.
Landlord at its sole option hereby retains the right either (a) to withhold from
the Tenant Improvement Allowance an amount equal to the total monies due to any
contractor, supplier or materialmen, who provided or supplied labor, services,
goods, work or materials to the Existing Premises, Common Area for work
described in Exhibit D-1 or the Expansion Space, (b) to issue two party checks
to Tenant and the contractor, subcontractor, suppliers or materialmen to whom
Tenant owes or is alleged or claimed to owe funds; and/or (c) to offset from and
against the Tenant Improvement Allowance any monies due Landlord under the terms
of the Lease.
2.4 Third Persons. Under no circumstances shall
the Lease, or this Ninth Amendment, be construed to confer upon any third person
or entity any right or cause of action against the Landlord or Tenant, including
but not limited to, all contractors, subcontractors, suppliers, laborers or
materialmen.
2.5 Exclusions. No amount of the Tenant
Improvement Allowance shall be allowed as a setoff against Rent. In no event
shall Landlord be required to pay any portion of the Tenant Improvement
Allowance for any cost incurred by Tenant after June 30, 2004.
2.6 Inducement Recapture. In the event the Lease
is terminated prior to the expiration of the term then in effect by reason of
Tenant's default (but not by Tenant's exercise of its option to terminate the
Lease respecting the Expansion Space as described in paragraph 10 of the Ninth
Amendment), the unamortized portion of the Tenant Improvement Allowance shall be
deemed sums advanced by Landlord on Tenant's behalf and such unamortized portion
(in accordance with the formula set forth below) shall be due from Tenant as
additional rent payable in a lump sum as an additional remedy of Landlord under
the Lease. The unamortized portion of the Tenant Improvement Allowance shall be
computed by: (a) multiplying (i) the number of months remaining in the Ninth
Extended Term without consideration for any future extended terms by (ii) the
amount of Tenant Improvement Allowance (plus interest thereon at ten percent
(10%) per annum) and (b) dividing the product of (i) and (ii) by twenty-four
(24) months (the length of the Ninth Extended term).
ESTIMATE
[SURECONNECTIONS LOGO] DATE ESTIMATE #
10/8/2003 5049
0000 Xxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxxx. XX 00000 LIC. NO. 807484-C7
TEL: 000-000-0000 FAX: 000-000-0000
WEB: xxxxxxxxxxxxxxx.xxx
Novacept
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
DESCRIPTION QTY TOTAL
----------------------------------------------------------------------------------------------------
Conduit Installation - Labor and Materials
1. Bore to finish and place approx, 275' of (1) 4" duct 17,875.00
2. Provide 2 bldg. connections to include all EMT and core bores 6,000.00
Wiring Installation - Labor and Materials 7,970.00
1. Install (1) 100 pair copper tie cable between bldgs. approx. 500 feet
2. Install (2) 100 pair Circa protection fuses
3. Install (1) 1" fiber innerduct approx. 500 feet
4. Install (1) 6 strands 62,5/125 MM fiber approx. 500 feet
5. Terminate both ends using Corning/Unicam SC MM connectors
6. Install (12) Cat5E gel filled cable between bldgs. approx. 275 feet
7. Install (2) fiber LIU
8. Install (2) 12 port Cat5E patch panel
9. Test all cables and provide documentation
Excludes:
Night, weekend or holiday work
Handling or disposal of hazardous materials
Permits, bonds or inspection fees
Please sign this estimate to indicate your approval
Purchase Order required to start the job TOTAL $31,845.00
Signature _________________________
EXHIBIT D-1
