Exhibit 10.5
THIRD LEASE EXTENSION
AGREEMENT
Building #6
1360 O’Brien Drive
Menlo Park, California 94025
THIS THIRD 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 February 4, 2000, the Lease Extension Agreement
dated April 30, 2003 and the Second Lease Extension Agreement
dated July 28, 2006 (the “Lease”) of the premises
referred to as Building #6 located at 1360 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 20,624 rentable square feet
of space.
B.
The expiration date of the Second
Extension Term of the Lease is June 30, 2009. Lessor
and Lessee wish to extend the expiration date of the Second
Extension 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 “Third Extension Term”). The Third
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 Third 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 Third
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 Third 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 Second 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-Four Thousand Six Hundred Fifty-Three and Sixty
Hundredths Dollars ($54,653.60) per month ($2.65/square
foot/NNN).
(b)
Commencing on May 1,
2009 , (the “Rental Adjustment Date”), and on
each anniversary date of this commencement, the Monthly Base Rent
shall be adjusted to reflect any increase 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 Third Extension Term occurs shall be considered the “Base
Index.”
(b) 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
