EXHIBIT 10.9(h)
EIGHTH AMENDMENT TO LEASE
THIS EIGHTH AMENDMENT TO LEASE (hereinafter "Amendment") is made this
twenty-fifth day of January 2002, by and between XxXXXXXXXX LIMITED, a
California limited partnership (Landlord") and NOVACEPT, a California
corporation formerly known as Envision Surgical Systems, Inc. ("Tenant").
RECITALS
A. Tenant currently leases from Landlord approximately eleven thousand
tour hundred and sixty-one (11,461) square feet of space as described in Exhibit
A attached hereto (the "Premises") of which approximately eight thousand six
hundred and fifty (8,650) square feet of space is located at 1,047 Xxxxxx Xxxxx,
Xxxx Xxxx, Xxxxxxxxxx ("0000 Xxxxxx") and approximately two thousand eight
hundred and eleven (2,811) square feet of additional space is located at 0000
Xxxxxx Xxxxx, Xxxx Xxxx ("0000 Xxxxxx") pursuant to that certain lease dated
August 26, 1998 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 and the Seventh Amendment To Lease dated June 12, 2001
("Lease").
B. Tenant desires to expand the Premises in two phases to include (i)
an additional three thousand seven hundred and eighty-four (3,784) square feet
of space located at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx as described in
Exhibit A attached hereto ("1054 Xxxxxx") and (ii) an additional three thousand
five hundred and twenty (3,520) square feet of space located at 0000 Xxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxxxxx as described in Exhibit A attached hereto ("1052
Xxxxxx"). Together, 1052 Xxxxxx and 1054 Xxxxxx comprise seven thousand three
hundred and four (7,304) square feet of space. Both 1052 Xxxxxx and 0000 Xxxxx
are currently occupied by ZF Microsystems, Inc., whose term expires January 31,
2002. ZF Microsystems, Inc. intends to vacate 0000 Xxxxxx and to reduce its
space to only 1052 Xxxxxx as of January 31, 2002 and Landlord and ZF
Microsystems, Inc. intend to extend the term for ZF Microsystems, Inc. in. 1052
Xxxxxx until June 30, 2002.
C. The term of the Lease respecting the 1047 Xxxxxx Space expires on
December 31, 2003 and the term of the Lease respecting the 1056 Xxxxxx Space
expires on January 31, 2002. Tenant desires to extend the term of the Lease
respecting the 1056 Xxxxxx Space for twenty-three (23) additional months until
December 31, 2003, Tenant also desires to lease 0000 Xxxxxx from the sooner of
February 1, 2002 or the date Landlord obtains legal possession of, and Tenant
occupies, 0000 Xxxxx until December 31, 2003. Tenant further desires to lease
1052 Xxxxxx from the sooner of July 1, 2002 or the date Landlord obtains legal
possession of, and Tenant occupies, 1052 Xxxxxx until December 31,2003.
D. As described in the Sixth Amendment To Lease, Tenant extended the
term for the 8,650 square foot 1047 Xxxxxx space from January 1, 2001 through
December 31, 2003 at the monthly basic rent rate of $5.50 par spare foot with
five percent (5%) annual increases, The annual adjustments ate scheduled So
occur on January 1 of each year except for calendar year 2002 when the
adjustment is scheduled to occur on February 1, 2002 as described in the Seventh
Amendment To Lease. In the Sixth Amendment To Lease, Tenant also extended the
term for the 2,811 square soot 1036 Xxxxxx space at $5.50 per square foot but
only until June 30, 2001. From July 1, 2001 through January 31, 2002, the
monthly rate for 1056 Xxxxxx was reduced to $2,50 per square fool as described
is the Seventh Amendment To Lease From February 1, 2002 through December 31,
2002 the monthly basic rent rats for 1056 Xxxxxx shall be $1.80 per square
foot, increasing to $2.20 per square
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foot from January 1, 2003 through December 31, 2003. From the later of February
1, 2002 or the date landlord obtains legal possession of 10S4 Xxxxxx through
December 31, 2002 the monthly basic rent rate for 0000 Xxxxxx shall be $1,80 per
square foot, increasing to $2.20 pet square foot from January 1, 2003 through
December 31, 2003. From the later of July 1, 2002 or the date landlord obtains
legal possession of 0000 Xxxxxx through December 31, 2002 the monthly basic rent
rate for 1052 Xxxxxx shall be $1.80 per square foot, increasing to $2.20 per
square foot from January 1, 2003 through December 31, 2003.
D. Landlord is willing to so expand the Premises and extend the term of
the Lease on the terms and conditions set forth herein.
NOW, THEREFORE, 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. Expansion into 1054 Xxxxxx. As of the later of February 1, 2002 or
the date ZF Microsystems, Inc. vacates 1034 Xxxxxx, Landlord obtains legal
possession of, and delivers to Tenant, 1054 Xxxxxx or the date Tenant occupies
1054 Xxxxxx if Tenant so occupies 1054 Xxxxxx prior to February 1, 2002 ("1054
Expansion Commencement Date"), the Premises shall be expanded to include the
1054 Xxxxxx as described above and the total square footage of the Promises
shall be fifteen thousand two hundred and forty-five (15,245) square feet.
2. Expansion into 1052 Xxxxxx. As of the later of July 1, 2002 or the
date ZF Microsystems, Inc. vacates 1052 Xxxxxx and Landlord obtains legal
possession of, and delivers to Tenant, 1054 Xxxxxx or the date Tenant occupies
1052 Xxxxxx if Tenant so occupies 1052 Xxxxxx prior to July 1, 2002 ("1052
Expansion Commencement Date"), the Premises shall be expanded to include 1052
Xxxxxx as described above and the total square footage of the Premises shall be
eighteen thousand seven hundred and sixty-five (18,765) square feet
3. Term. The term of the Lease respecting 1056 Xxxxxx is hereby
extended for twenty-three (23) additional months from February 1, 2002 until
December 31, 2003. The term of the Lease respecting 1054 Xxxxxx shall be from
the 1054 Expansion Commencement Date until December 31, 2003. The term of the
Lease respecting 1052 Xxxxxx shall be from fee 1052 Expansion Commencement Date
until December 31, 2003.
4. Basic Rent. As of January 1, 2002, the monthly basic rent as
described in Paragraphs 4 (a) and 5 of the Lease shall continue to be fifty four
thousand and six hundred and two and 50/100 dollars ($54,602.50) per month. The
calculation for such basic rent is reached by multiplying 8,650 square feet x
$5.50 per square foot plus 2,811 square feet by $2.50 square for foot.
5. Adjustments to Basic Rent. The monthly basic rent shall be adjusted
as follows
January 1, 2002 through January 31, 2002 $54,602.30 per month
February 1, 2002 * through June 30, 2002 $61,824.75 per month
July 1, 2002 ** through December 31, 2003 $68,160.75 per month
January 1, 2003 through December 31, 2003 $74,704.44 per month
* or the 1054 Expansion Commencement Date
** or fee 1052 Expansion Commencement Date
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In the event Tenant occupies 1054 Xxxxxx prior to February 1, 2002 or
the 1054 Expansion Commencement Date occurs after February 1, 2002, or Tenant
occupies 0000 Xxxxxx prior to July 1, 2002 or the 1052 Expansion Commencement
Date occurs after July 1, 2002, then the basic rent shall be adjusted and
prorated accordingly.
5. 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 and paragraph 5 of the Second Amendment To Lease. Upon the 1054 Expansion
Commencement Date, Tenant's proportionate share of such common area charges
shall be 55.52% of the common area charges allocable to the building in which
1047 Xxxxxx is located and 37.48% of the common area charges allocable to file
building in which 1054 Xxxxxx and 1056 Xxxxxx are located. Upon the 1052
Expansion Commencement Date, Tenant's proportionate share of such common area
charges shall be 55.52% of the common area charges allocable to the building in
which 1047 Xxxxxx is located and 57.49% of the common area charges, as described
in paragraphs 5 (b) and 16 of the Lease, allocable to the building in which 1052
Xxxxxx, 1054 Xxxxxx and 1056 Xxxxxx are located.
6. Tenant Improvements. Tenant is leasing, and accepts, 0000 Xxxxxx
and 1054 Xxxxxx form Landlord "as is" in their existing condition as of the date
hereof except for the carpeting in 1052 Xxxxxx and the two wall openings
connecting 1052 Xxxxxx and 1054 Xxxxxx as described below. Landlord shall have
no obligation to alter or improve 1052 Xxxxxx and 1054 Xxxxxx except only to
close the two wall openings connecting 1052 Xxxxxx and 1054 Xxxxxx and to create
opening between 1054 and 1056 Xxxxxx and to replace the existing carpeting in
1052 Xxxxxx, all at Tenant's expense and so long as Tenant is not in default
under the Lease. Landlord shall seal the wall openings between 1052 Xxxxxx and
1054 Xxxxxx with materials to match the existing wall promptly after ZF
Microsystems, Inc. vacates, and Landlord obtains legal possession of, 1054
Xxxxxx. Tenant shall pay to Landlord the cost of closing and sealing such wall
openings in three equal monthly installments with the first installment due
within thirty (30) days of receipt by Tenant from Landlord of an invoke for such
wall closing and sealing supported by an itemization of the final cost of such
wall closing work. Promptly after ZF Microsystems, Inc. vacates, and Landlord
obtains legal possession of, 0000 Xxxxxx, Xxxxxxxx shall, at Tenant's expense,
(i) reopen and refinish the two wall openings between 1052 Xxxxxx and 1054
Xxxxxx (ii) replace the existing carpeting in 1052 Xxxxxx with new office
standard carpeting of a make, color, grade and weight mutually agreed upon
between Landlord and Tenant and (iii) dismantle, remove and store furniture and
cubicles as needed to replace the existing carpet in 1052 Xxxxxx and then
reassemble and restore such furniture and cubicles to their prior configuration.
Tenant shall pay to Landlord the cost of replacing such carpeting in 1052 Xxxxxx
(and the cost of dismantling, removing, storing and reassembling such furniture
and cubicles) in six (6) equal monthly installments with the first installment
due within thirty (30) days of receipt by Tenant from Landlord of an invoice for
such carpet replacement and furniture disassembly, removal and reassembly
supported by an itemization of the final cost of such work. Notwithstanding the
above, the, cumulative cost to Tenant of all the work described above shall not
exceed eighteen thousand dollars ($19,300.00) Landlord shall pay, at Landlord's
expense, any costs of such work exceeding eighteen thousand dollars ($19,300.00)
Tenant shall have decided upon carpet selection and all other color and
material specifications by April 15, 2002. If the 1054 Expansion Commencement
Date or the 1052 Expansion Commencement Date is delayed due in any respect to
Tenant's acts or omissions, including, without limitation. Tenant's failure to
meet the schedule set forth above, or due to construction delays related to any
changes required by Tenant, or due to any other failures by Tenant to perform
its obligations under this Eighth Amendment To Lease or otherwise under the
Lease, then any such delays all be deemed Tenant caused delays for purposes of
determining the 1054 Expansion Commencement Date and the 1052 Expansion
Commencement Date and neither of such commencement dates shall be delayed due to
such
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Tenant caused delays.
Within ten (10) business days after commencement of the 1054 Expansion
Commencement Date and the 1052 Expansion Commencement Date respectively, Tenant
shall deliver to Landlord a list of items ("Punch list") that Tenant believes
Landlord should complete or correct in order for 0000 Xxxxxx and 1052 Xxxxxx to
be acceptable. Landlord shall commence to complete or correct the items as
soon as possible, except those items that Landlord 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 1054 Xxxxxx and 1052 Xxxxxx,
respectively, and approved the construction. Nothing in this paragraph 6 shall
delay the 1054 Expansion Commencement Date or the 1052 Expansion Commencement
Date or Tenant's obligation to pay rent or to make other payments due Landlord
under the Lease.
7. Brokers. Each party represents that it has not had any dealings with
any real estate broker, finder or other person with respect to this 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 fee other party by any broker, finder or other person
with whom such party has dealt, or purportedly has dealt in connection with this
transaction.
8. 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, shall remain in fall force and
effect.
9. Capitalized Terms. All capitalized terms used in this Eighth
Amendment To Lease shall possess the same meaning ascribed to that term in the
Lease.
10. Conflicts. in the event of any conflict between the Lease on the
one hand and this Eighth Amendment To Lease on the other, the terms of this
Eighth Amendment To Lease shall govern and control.
11. Counterparts. This Eighth Amendment To Lease 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: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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Xxxx XxXxxxxxxx or Xxxxxx Xxxxxx, as Trustee (Signature)
under the March 17, 1998 Restatement of the
Xxxxxxx X. XxXxxxxxxx and Xxxx X. By: /s/ X.X. Xxxxx
XxXxxxxxxx Inter Vivos Trust Agreement -----------------------------------
dated January 25, 1977, as amended by (Printed Name)
amendments dated April 14 1998 and
July 27, 1999, a General Partner By: /s/ VP Operations
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(Title)
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EXHIBIT A
[FLOOR PLAN]
