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EXHIBIT 10.7 AMENDMENT TO OFFICE LEASE AGREEMENT

Office Lease Agreement

EXHIBIT 10.7 AMENDMENT TO OFFICE LEASE AGREEMENT | Document Parties: EMPHASYS MEDICAL, INC. | CA-Seaport Centre Limited Partnership | EMPHASYS MEDICAL, INC | SLOUGH REDWOOD CITY, LLC You are currently viewing:
This Office Lease Agreement involves

EMPHASYS MEDICAL, INC. | CA-Seaport Centre Limited Partnership | EMPHASYS MEDICAL, INC | SLOUGH REDWOOD CITY, LLC

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Title: EXHIBIT 10.7 AMENDMENT TO OFFICE LEASE AGREEMENT
Date: 9/21/2007
Law Firm: Folger Levin    

EXHIBIT 10.7 AMENDMENT TO OFFICE LEASE AGREEMENT, Parties: emphasys medical  inc. , ca-seaport centre limited partnership , emphasys medical  inc , slough redwood city  llc
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EXHIBIT 10.7

AMENDMENT TO OFFICE LEASE AGREEMENT

Seaport Centre East

700-750 Chesapeake Drive

Redwood City, California

THIS AMENDMENT TO OFFICE LEASE AGREEMENT (“ Amendment ”) is dated as of April 3, 2007 (the “ Effective Date ”), and is entered into by SLOUGH REDWOOD CITY, LLC, a Delaware limited liability company (“ Landlord ”) and EMPHASYS MEDICAL, INC., a Delaware corporation (“ Tenant ”), with reference to the following facts:

Recitals

A. Landlord (as successor to CA-Seaport Centre Limited Partnership) and Tenant are parties to an Office Lease Agreement dated as of October 31, 2003 (the “ Initial Lease ”), covering premises consisting of 12,309 rentable square feet (the “ Initial Premises ”) located in the one-story building commonly known as 700 Chesapeake Drive (Building 19) (the “ Building ”) in the project formerly known as Seaport Centre East and presently part of the Britannia Seaport Centre, Redwood City, California. The Term of the Initial Lease is scheduled to expire on April 14, 2010, subject to two 5-year renewal options as set forth in the Initial Lease.

B. As of the Expansion Commencement Date (as defined below), Landlord and Tenant wish to add the “Refusal Space” as defined in the Initial Lease, consisting of 12,282 rentable square feet located adjacent to the Initial Premises and comprising the entire remainder of the Building, to the Premises covered by the Lease for the remainder of the initial Term of the Lease (as extended by this Amendment) and, if applicable, for any renewal term duly elected by Tenant under the Lease. For purposes of this Amendment and of the Lease as modified by this Amendment, the term “ Expansion Premises ” shall mean the additional 12,282 rentable square feet described in the preceding sentence; the term “ Premises ” shall mean and include both the Initial Premises and the Expansion Premises; and the term “ Lease ” shall mean the Initial Lease as modified by this Amendment. In connection with the addition of the Expansion Premises to the Initial Premises pursuant to this Amendment, Landlord and Tenant also wish to modify certain provisions of the Initial Lease and certain of their respective rights and obligations thereunder, all subject to and as more particularly set forth in this Amendment. As of the Effective Date, this Amendment modifies and amends the Initial Lease and supersedes any inconsistent provisions of the Initial Lease with respect to the matters covered by this Amendment.

C. Capitalized terms used in this Amendment as defined terms but not specifically defined in this Amendment shall have the meanings assigned to such terms in the Initial Lease.

Agreement

NOW, THEREFORE, in consideration of the mutual agreements contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:

 


1. Expansion Premises Included in Premises; Base Rent; Pro Rata Share; Utilities .

(a) As of the date Landlord designates, by written notice to Tenant, as the date on which the Expansion Premises are available for early occupancy by Tenant as provided in this Amendment (the “ Expansion Commencement Date ”), the Expansion Premises are added to the Initial Premises and shall constitute part of the Premises under the Lease for all purposes, except as otherwise expressly provided herein. The parties acknowledge that the Expansion Premises are presently occupied by an existing tenant, which is expected to vacate the Expansion Premises on April 4, 2007. Landlord will use reasonable efforts to cause the Expansion Commencement Date to occur on April 5, 2007 or as soon as practicable thereafter, but Tenant acknowledges that the Expansion Commencement Date may be delayed beyond April 5, 2007 to the extent there is any delay by the existing tenant in its surrender of the Expansion Premises and its completion of any required decommissioning or closure procedures with respect to the Expansion Premises, and/or to the extent that Landlord may require a brief vacancy period (which Landlord presently estimates at no more than two weeks) in order to perform any of the work Landlord is required to perform in the Expansion Premises pursuant to this Amendment and to prepare the Expansion Premises for tender to Tenant for early access purposes.

(b) The Base Rent specified in the Initial Lease for the period through April 14, 2010 shall remain applicable to the Initial Premises and is not affected by this Amendment. The Base Rent applicable to the Expansion Premises for the period from the Expansion Commencement Date through the remainder of the initial Term of the Lease (as extended by this Amendment), which Base Rent shall be added to the Base Rent for the Initial Premises to arrive at the total Base Rent payable for the Premises under the Lease for the period through April 14, 2010, shall be as set forth in the following table, and the Base Rent applicable to the entire Premises for the period from April 15, 2010 through April 14, 2012 (the period for which the initial Term of the Lease is being extended pursuant to this Amendment), shall be as set forth in the following table.

 

Period

   Monthly Base
Rental Rate
   Square
Feet
   Monthly Base
Rent
 

Through 08/31/07

     none    N/A      none *

09/01/07 — 12/31/07

   $ 2.20 psf    8,000 sf    $ 17,600.00 *

01/01/08 — 04/14/08

   $ 2.20 psf    12,282 sf    $ 27,020.40 *

04/15/08 — 04/14/09

   $ 2.30 psf    12,282 sf    $ 28,248.60 *

04/15/09 — 04/14/10

   $ 2.40 psf    12,282 sf    $ 29,476.80 *

04/15/10 — 04/14/11

   $ 2.50 psf    24,591 sf    $ 61,477.50 **

04/15/11 — 04/14/12

   $ 2.60 psf    24,591 sf    $ 63,936.60 **

* For Expansion Premises only
** For entire Premises

(c) The square footage used in Paragraph 1(b) above in calculating the monthly base rental applicable to the Expansion Premises for periods prior to January 1, 2008, in being less than the entire square footage of the Expansion Premises, is not meant to imply any limitation on Tenant’s right or ability to have access to and to use the entire Expansion Premises during such months, and shall not affect in any way the calculation of Tenant’s Pro Rata Share under the Lease (which shall include the entire square footage of the Expansion Premises,

 

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beginning on the date specified in Paragraph 1(e) below). Such reduced square footage in Paragraph 1(b) merely represents a method of implementing an economic agreement between the parties with respect to the calculation of Tenant’s monthly base rental obligation during the periods prior to January 1, 2008.

(d) Since the Expansion Premises are the same as the Refusal Space defined in the Initial Lease, the Right of First Refusal set forth in Exhibit F to the Initial Lease is superseded by this Amendment and is of no further force or effect.

(e) Effective as of the earlier to occur of September 1, 2007 or the date Tem’ commences actual business operations in the Expansion Premises (as opposed to construction of tenant improvements and performance of other work in preparation for Tenant’s commencement of actual business operations in the Expansion Premises), Tenant’s Pro Rata Share under the Lease shall be increased from 6.9928% to 13.2545% , based on a rentable square footage of 24,591 square feet for the Premises and on a rentable square footage of 185,529 square feet for the six buildings located at 200, 400, 600, 700, 800 and 900 Chesapeake Drive. For purposes of Expenses and/or Taxes which are billed and allocated on a per-building basis rather than for the entire 6-building Chesapeake campus, however, Tenant’s Pro Rata Share of such Expenses and/or Taxes allocable to the 700 Chesapeake Drive Building shall be increased, as of the date specified in the preceding sentence, from 50.0055% to 100% .

(f) Notwithstanding the provisions of Paragraph 1(e) above, from and after the Expansion Commencement Date (including during Tenant’s early access period under this Amendment with respect to the Expansion Premises), Tenant shall be responsible for payment all costs for utilities and services supplied to the entire Premises (including the Expansion Premises).

2. Term; Renewal Options .

(a) The Termination Date for the initial Term of the Lease, which had previously been established as April 14, 2010 pursuant to the Commencement Letter dated April 20, 2004 executed by Tenant and by the original landlord under the Lease, is hereby extended to April 14, 2012.

(b) Tenant shall have the option to extend the Term of the Lease, at the minimum rental set forth in Paragraph 2(c) or 2(d) below, as applicable, and otherwise upon all the terms and provisions applicable to the initial Term of the Lease, for up to two (2) additional periods of five (5) years each, the first commencing upon the expiration of the initial Term hereof on the revised Termination Date set forth above and the second commencing upon the expiration of the first extended term hereof (if applicable). Exercise of such option with respect to the first extended term shall be by written notice to Landlord at least six (6) months and not more than twelve (12) months prior to the Termination Date for the initial Term. Exercise of such option with respect to the second extended term shall be by written notice to Landlord at least six (6) months and not more than twelve (12) months prior to the expiration of the first extended term hereof (if applicable). If Tenant is in default hereunder, beyond any applicable notice and cure periods, on the date of such notice or on the date the applicable extended term is to commence, then the exercise of the applicable option shall be of no force or effect, the

 

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extended term shall not commence and this Lease shall expire at the end of the then current term hereof (or at such earlier time as Landlord may elect pursuant to the default provisions of this Lease). If Tenant properly exercises one or both renewal options under this Paragraph 2(b), then all references in the Lease (other than in this Paragraph 2(b) itself) to the “Term” of the Lease shall be construed to include the extension term(s) thus elected by Tenant. Except as expressly set forth in this Paragraph 2(b), Tenant shall have no right to extend the term of this Lease beyond its prescribed term. Without limiting the generality of the preceding sentence, the renewal options set forth in this Paragraph 2(b) supersede and replace the First Renewal Option and Second Renewal Option set forth in Exhibit F to the Lease, which shall be of no further force or effect. The renewal options set forth in this Paragraph 2(b) may be exercised by Tenant or by any permitted assignee of Tenant’s interest under the Lease which is in possession of the Premises at the time of such exercise, but may not be exercised by or assigned to any subtenant of the Premises or any portion thereof.

(c) If Tenant duly exercises its renewal option for the first extended term provided under Paragraph 2(b) above, the monthly base rental payable for the entire Premises during such first extended term shall be as follows (representing, as to each year, an increase of four percent (4%) over the monthly base rental for the immediately preceding Lease year):

 

Period

   Monthly Base
Rental Rate
   Square
Feet
   Monthly Base
Rent

04/15/12 — 04/14/13

   $ 2.7040 psf    24,591 sf    $ 66,494.06

04/15/13 — 04/14/14

   $ 2.8122 psf    24,591 sf    $ 69,153.83

04/15/14 — 04/14/15

   $ 2.9246 psf    24,591 sf    $ 71,919.98

04/15/15 — 04/14/16

   $ 3.0416 psf    24,591 sf    $ 74,796.78

04/15/16 — 04/14/17

   $ 3.1633 psf    24,591 sf    $ 77,788.65

(d) If Tenant duly exercises its renewal option for the second extended term provided under Paragraph 2(b) above, the monthly base rental payable for the entire Premises during such second extended term shall be as follows (representing, as to each year, an increase of four percent (4%) over the monthly base rental for the immediately preceding Lease year):

 

Period

   Monthly Base
Rental Rate
   Square
Feet
   Monthly Base
Rent

04/15/17 — 04/14/18

   $ 3.2898 psf    24,591 sf    $ 80,900.20

04/15/18 — 04/14/19

   $ 3.4214 psf    24,591 sf    $ 84,136.20

04/15/19 — 04/14/20

   $ 3.5583 psf    24,591 sf    $ 87,501.65

04/15/20 — 04/14/21

   $ 3.7006 psf    24,591 sf    $ 91,001.72

04/15/21 — 04/14/22

   $ 3.8486 psf    24,591 sf    $ 94,641.79

3. Condition of Expansion Premises . Tenant is accepting the Expansion Prem


 
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