Exhibit 10.4
SECOND LEASE EXTENSION
AGREEMENT
Building #5
1330 O’Brien Drive
Menlo Park, California 94025
THIS LEASE EXTENSION AGREEMENT (this
“Agreement”) is made and entered into on March 18
2008 by and between MENLO BUSINESS PARK, LLC, a California limited
liability company (“Lessor”), and DEPOMED, INC., a
California corporation (“Lessee”).
RECITALS
A.
Lessor and Lessee entered into a
Lease dated April 30, 2003 and the Lease Extension Agreement
dated July 28, 2006 (the “Lease”) of the premises
referred to as Building #5 located at 1330 O’Brien Drive,
Menlo Park, California 94025, more particularly described on
Exhibit “A” attached to the Lease and incorporated
by reference herein (the “Premises”). The
Premises contain approximately 25,366 rentable square feet
of space.
B.
The expiration date of the extended
term of the Lease is June 30, 2009. Lessor and
Lessee wish to extend the expiration date of the term of the Lease,
subject to the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of
the mutual covenants contained herein, the parties agree as
follows:
1.
Defined Terms
. Terms defined in the Lease
and used in this Agreement shall have the meaning ascribed to them
in the Lease.
2.
Extension of
Term .
(a)
The term of the Lease is hereby
extended for a period of thirty-one (31) calendar months commencing
on July 1, 2009 and ending on January 31,
2012 (the “Second Extension Term”). The
Second Extension Term shall be upon all of the same terms and
conditions of the Lease, except that the Monthly Base Rent payable
by Lessee to Lessor during the Second Extension Term shall be as
set forth in Paragraph 3 hereof.
(b)
The option to extend provided for in
Paragraph 3 of the Lease shall be for one (1) period of sixty
(60) calendar months immediately following the expiration of the
Second Extension Term and shall otherwise be upon the same terms
and conditions as set forth in Paragraph 3 of the Lease.
3.
Monthly Base Rent
. Lessee shall pay to Lessor
Monthly Base Rent during the Extension Term, in monthly
installments in advance on a triple net basis in lawful money of
the United States, as follows:
(a)
Under the terms of the First Lease
Extension Agreement, the next Rental Adjustment Date is scheduled
to occur on May 1, 2008, resulting in a new Monthly
Base Rent of Fifty Thousand Seven Hundred Thirty-Two Dollars
($50,732.00) per month ($2.00/square foot/NNN).
(b)
Commencing on May 1,
2009 (the “Rental Adjustment Date”), on each
anniversary date of the commencement the Monthly Base Rent shall be
adjusted to reflect any increases in the cost of living. The
adjustment shall be calculated upon the basis of the United States
Department of Labor, Bureau of Labor Statistics Consumer Price
Index, all items, for all Urban Consumers - San
Francisco-Oakland-San Jose (1982-84=100), hereafter referred to as
the “Index.” The Index for said subgroup
published most recently as of the end of the calendar month
immediately preceding the month in which the commencement date of
the Extension Term occurs shall be considered the “Base
Index.”
(c)
The Monthly Base Rent shall be
adjusted as of the Rental Adjustment Date to an amount equal to the
product obtained by multiplying the Monthly Base Rent for the
Premises commencing on May 1, 2009 referred to in
Paragraph 3(a) above), by a fraction, the numerator of which
is the Index most recently published as of the end of the
calendar month immediately preceding the Rental Adjustment
Date and the denominator of which is the base Index; provided that
in no event shall the Monthly Base Rent be increased on the Rental
Adjustment Date to an amoun
