ex1021.htm


    EXHIBIT
10.21

     

     

    SEVENTH
AMENDMENT

    


    THIS SEVENTH AMENDMENT (the “Amendment”) is made and
entered into as of May 12, 2009, by and between WALTON CWCA MISSION INDUSTRIAL 27,
L.L.C., a Delaware limited liability company (“Landlord”), and CARDIMA, INC., a Delaware
corporation (“Tenant”).

    


    RECITALS

    


    
      	
              A.

            	
              Landlord
      (as successor in interest to CalWest Industrial Holdings, LLC, a Delaware
      limited liability company, successor in interest to State of California
      Public Employees’ Retirement System) and Tenant are parties to that
      certain Standard Form Lease (the “Original Lease”) dated
      April 25, 1994, which Original Lease has been previously amended by that
      certain Lease Amendment No. 1, dated September 28, 1994, that certain
      Second Amendment to Lease, dated April 10, 1995, that certain Third
      Amendment to Lease, dated June 18, 1999, that certain Fourth Amendment to
      Lease, dated August 30, 2002 and that certain Fifth Amendment dated as of
      September 5, 2005, that certain Sixth Amendment (the “Sixth Amendment”), dated
      as of March 20, 2007 (collectively, the “Lease”).  Pursuant
      to the Lease, Landlord has leased to Tenant space currently containing
      approximately 29,000 rentable square
      feet (the “Premises”) located at
      47266 Benicia Street, Fremont, California (the “Building”).

            


    

    


    
      	
              B.

            	
              The
      Lease by its terms shall expire on May 31, 2010 (“Prior Termination
      Date”), and the parties desire to extend the Term of the Lease, all
      on the following terms and
conditions.

            


    

    


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

    


    
      	
              1.  

            	
              Extension.  The
      Term of the Lease is hereby extended for a period of fifty (50) months and
      shall expire on July 31, 2014 (“Fifth Extended Termination
      Date”), unless sooner terminated in accordance with the terms of
      the Lease.  That portion of the Term commencing the day
      immediately following the Prior Termination Date (“Fifth Extension Date”)
      and ending on the Fifth Extended Termination Date shall be referred to
      herein as the “Fifth
      Extended Term”.  That portion of the Term commencing May
      1, 2009 and ending on the Prior Termination Date shall be referred to as
      the “Remaining Portion of
      the Fourth Extended Term”.

               

            


    

    
      	
              2.

            	
              Monthly
      Rent.  Notwithstanding anything to the contrary contained
      in the Lease,, the schedule of Monthly Rent payable with respect to the
      Premises during the Remaining Portion of the Fourth Extended Term and
      Fifth Extended Term is the
following:

            


    

    


    
      
        
          
            
              
                	
                        Period

                      	 	
                        Rentable
      Square Footage

                      	 	 	
                        Annual
      Rent

                      	 	 	
                        Monthly
      Rent

                      	 
	
                        6/1/09
      – 7/31/10

                      	 	 	29,000	 	 	$	202,941.96	 	 	$	16,911.83	*
	
                        8/1/10
      – 7/31/11

                      	 	 	29,000	 	 	$	208,683.96	 	 	$	17,390.33	 
	
                        8/1/11
      – 7/31/12

                      	 	 	29,000	 	 	$	214,598.28	 	 	$	17,883.19	 
	
                        8/1/12
      – 7/31/13

                      	 	 	29,000	 	 	$	220,689.96	 	 	$	18,390.83	 
	
                        8/1/13
      – 7/31/14

                      	 	 	29,000	 	 	$	226,964.40	 	 	$	18,913.70	 


              

            

          

        

      

    

    


    All such
Monthly Rent shall be payable by Tenant in accordance with the terms of the
Lease, as amended hereby.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    *Notwithstanding
anything in the Lease or this Amendment to the contrary, provided that Tenant is
not in default under the Lease, as amended hereby, Tenant shall be entitled to
an abatement of Monthly Rent with respect to the Premises in the amount of
$16,911.83 per month during the months of June and July of 2009.  The
maximum total amount of Monthly Rent abated with respect to the Premises in
accordance with the foregoing shall equal $33,823.66 (the “Abated Monthly
Rent”).  If Tenant defaults under the Lease, as amended hereby,
at any time during the Remaining Portion of the Fourth Extended Term and the
Fifth Extended Term and fails to cure such default within any applicable cure
period under the Lease, then all Abated Monthly Rent shall immediately become
due and payable.  Only Monthly Rent shall be abated pursuant to this
Section, as more particularly described herein, and Tenant’s Share of Operating
Expenses and all other costs and charges specified in the Lease shall remain as
due and payable pursuant to the provisions of the Lease, as amended
hereby.

    


    
      	
              3.

            	
              Additional
      Security Deposit.  No additional Security Deposit shall
      be required in connection with this
Amendment.

            


    

    


    
      	
              4.

            	
              Operating
      Expenses.  During the Remaining Portion of the Fourth
      Extended Term and the Fifth Extended Term, Tenant shall pay for Tenant’s
      Share of Operating Expenses in accordance with the terms of the Lease, as
      amended hereby.

            


    

    


    
      	
              5.

            	
              Improvements
      to Premises.

            


    

    


    
      	
               
      

            	
              5.1

            	
              Condition of
      Premises.  Tenant is in possession of the Premises and
      agrees that Tenant shall continue to occupy the Premises in its existing
      condition “as is” without any agreements, representations, understandings
      or obligations on the part of Landlord to perform any alterations, repairs
      or improvements, except as may be expressly provided otherwise in the
      Lease or this Amendment.

            


    

    


    
      	
               
      

            	
              5.2

            	
              Responsibility for Improvements
      to Premises.  Tenant may perform improvements to the
      Premises in accordance with Exhibit B attached
      hereto and Tenant shall be entitled to an improvement allowance in
      connection with such work as more fully described in Exhibit B.  Landlord
      shall restripe, as reasonably determined by Landlord, the parking lot
      serving the Premises at Landlord’s sole cost and
  expense.

            


    

    


    
      	
              6.

            	
              Option
      to Renew.

            


    

    


    
      	
               
      

            	
              6.1

            	
              Section
      6 of the Sixth Amendment is hereby deleted in its
      entirety.  Tenant shall, provided the Lease, as amended hereby,
      is in full force and effect and Tenant is not in default under any of the
      other terms and conditions of the Lease beyond any applicable cure periods
      at the time of notification or commencement, have one (1) option to renew
      (the “Fifth Renewal Option”) the
      Lease for a term of five (5) years (the “Fifth Renewal Term”),
      for the Premises and the Must-Take Space (defined below), on the same
      terms and conditions set forth in the Lease, except as modified by the
      terms, covenants and conditions as set forth
  below.

            


    

    


    
      	
               
      

            	
              6.2

            	
              If
      Tenant elects to exercise the Fifth Renewal Option, then Tenant shall
      provide Landlord with written notice no earlier than the date that is two
      hundred seventy (270) days prior to the expiration of the Fifth Extended
      Term and no later than the date which is one hundred eighty (180) days
      prior to the expiration of the Fifth Extended Term.  If Tenant
      fails to provide such notice, Tenant shall have no further or additional
      right to extend or renew the Fifth Extended
  Term.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
               
      

            	
              6.3

            	
              The
      Monthly Rent in effect at the expiration of the Fifth Extended Term shall
      be adjusted to reflect the current fair market rental for comparable space
      in the Building and in other similar buildings in the same rental market
      as of the date the Fifth Renewal Term is to commence, taking into account
      the specific provisions of the Lease, as amended hereby, which will remain
      constant.  Landlord shall advise Tenant of the new Monthly Rent
      for the Premises and the Must-Take Space no later than thirty (30) days
      after receipt of Tenant's written request therefor.  Said
      request shall be made no earlier than ninety (90) days prior to the first
      date on which Tenant may exercise its Fifth Renewal Option under this
      Section 6.  Said notification of the new Monthly Rent may
      include a provision for its escala­tion to provide for a change in
      fair market rental between the time of notification and the commencement
      of the Fifth Renewal Term.  If Tenant and Landlord are unable to
      agree on a mutually acceptable rental rate not later than sixty (60) days
      prior to the expiration of the Fifth Renewal Term, then Landlord and
      Tenant shall each appoint a qualified MAI appraiser doing business in the
      area, in turn those two indepen­dent MAI appraisers shall appoint a
      third MAI appraiser and the majority shall decide upon the fair market
      rental for the Premises as of the expiration of the Fifth Renewal
      Term.  Landlord and Tenant shall equally share in the expense of
      this appraisal except that in the event the Monthly Rent is found to be
      within five percent (5%) of the original rate quoted by Landlord, then
      Tenant shall bear the full cost of all the appraisal
    process.

            


    

    


    
      	
               
      

            	
              6.4

            	
              This
      Fifth Renewal Option is not transferable; the parties hereto acknowledge
      and agree that they intend that the Fifth Renewal Option shall be
      “personal” to Tenant and any transferee pursuant to a Permitted Lease
      Transfer, as described in Rider 14.1 of the Original Lease, and that in no
      event will any assignee or sublessee have any rights to exercise this
      Fifth Renewal Option.

            


    

    


    
      	
               
      

            	
              6.5

            	
              If
      the Fifth Renewal Option is properly exercised or if Tenant fails to
      properly exercise the Fifth Renewal Option pursuant to the terms of this
      Section 6, Tenant shall have no further right to extend the term of
      the Lease.

            


    

    


    
      	
               
      

            	
              6.6

            	
              Notwithstanding
      anything herein to the contrary, if Tenant validly exercises its Fifth
      Renewal Option and has not exercised its Right of First Refusal pursuant
      to Section 7 below, effective as of the first day of the Fifth Renewal
      Term, Tenant shall be required to lease from Landlord and Landlord shall
      be required to lease to Tenant the remainder of the Building comprising
      approximately 15,810 rentable square
      feet as shown on Exhibit
      A hereto (the “Must-Take Space”).  Landlord
      shall deliver possession of the Must Take Space to Tenant and Tenant shall
      accept such space on the first day of the Fifth Renewal Term (the “Must-Take Effective
      Date”).  The Term with respect to the Must-Take Space
      (the “Must-Take
      Term”) shall end, unless sooner terminated pursuant to the terms of
      the Lease, as amended hereby, on the last day of the Fifth Renewal Term,
      it being the intention of the parties hereto that the term for the
      Must-Take Space and the Term for the Premises shall be
      coterminous.  The Must-Take Effective Date shall be delayed to
      the extent that Landlord fails to deliver possession of the Must-Take
      Space for any reason, including but not limited to, holding over by prior
      occupants.  Any such delay in the Must-Take Effective Date shall
      not subject Landlord to any liability for any loss or damage resulting
      therefrom.  If the Must-Take Effective Date is delayed, the
      Termination Date shall not be similarly extended. Tenant agrees to accept
      the Must-Take Space in its “as is” condition, without any agreements,
      representations, understandings or obligations on the part of Landlord to
      perform any alterations, repairs or improvements; provided, however, that
      the Must-Take Space shall not have been damaged beyond normal wear and
      tear or destroyed as a result of a casualty event or modified for a use
      other than general office use, in which case Landlord shall return the
      Must-Take Space to a condition habitable for general office use.  As of
      the Must-Take Effective Date, the Must-Take Space shall become part of the
      Premises and the Premises shall be increased from approximately 29,000
      rentable square feet of the Building to 44,810 rentable square feet of the
      Building by the addition of the Must-Take Space.  The Must-Take
      Space shall be subject to all the terms and conditions of the Lease except
      as expressly modified herein and except that Tenant shall not be entitled
      to receive any allowances, abatements or other financial concessions
      granted with respect to the Premises except as expressly provided in this
      Section 6.6.  Landlord shall prepare an amendment (the “Must-Take Amendment”)
      adding the Must-Take Space to the Premises on the same terms of the Lease
      (including, without limitation, the rental rate) and reflecting the
      changes in the Monthly Rent, rentable square footage of the Premises,
      Tenant’s Share and other appropriate terms.  A copy of the
      Must-Take Amendment shall be sent to Tenant, and Tenant shall execute and
      return the Must-Take Amendment to Landlord within fifteen (15) days
      thereafter, but the addition of the Must-Take Space on the same terms and
      conditions as contained in the Lease shall be fully effective whether or
      not the Must-Take Amendment is
executed.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              7.

            	
              Right
      of First Refusal.

            


    

     

    
      
        	 	 7.1 	
                Tenant
      shall have the one time right of first refusal (the “Right of First Refusal”)
      with respect to the Must-Take Space (hereinafter referred to in this
      Section as the “Refusal Space”).  Tenant’s
      Right of First Refusal shall be exercised as follows:  when
      Landlord has a prospective tenant, other than the existing tenant in the
      Refusal Space, (the “Prospect”) interested in
      leasing the Refusal Space, Landlord shall advise Tenant (the “Advice”) of the terms
      under which Landlord is prepared to lease the Refusal Space to such
      Prospect and Tenant may lease the Refusal Space, under such terms, by
      providing Landlord with written notice of exercise (the “Notice of Exercise”)
      within four (4) business days after the date of the Advice, except that
      Tenant shall have no such Right of First Refusal and Landlord need not
      provide Tenant with an Advice if:  (a) Tenant is in default
      under the Lease at the time that Landlord would otherwise deliver the
      Advice; (b) the Premises, or any portion thereof, is sublet at the time
      Landlord would otherwise deliver the Advice; (c) the Lease has been
      assigned prior to the date Landlord would otherwise deliver the Advice; or
      (d) Tenant is not occupying the Premises on the date Landlord would
      otherwise deliver the Advice.

              
	 	 	 
	 	 7.2 	 The
      term for the Refusal Space shall commence upon the commencement date
      stated in the Advice and thereupon such Refusal Space shall be considered
      a part of the Premises, provided that all of the terms stated in the
      Advice, including the termination date set forth in the Advice, shall
      govern Tenant’s leasing of the Refusal Space and only to the extent that
      they do not conflict with the Advice, the terms and conditions of the
      Lease shall apply to the Refusal Space.  Tenant shall pay
      Monthly Rent and Tenant’s Share of Operating Expenses for the Refusal
      Space in accordance with the terms and conditions of the
      Advice.  In no event shall the Monthly Rent for the Refusal
      Space be less on a per square foot basis than the Monthly Rent for the
      Premises. Notwithstanding anything elsewhere in this Section to the
      contrary, any leasing of the Refusal Space under this Section will not
      include terms or provisions of the Advice that are specific to the parties
      involved in the transaction giving rise to the Advice, such as payment of
      commissions to the brokers involved in that transaction; options or rights
      to expand, contract, renew, extend or shorten the term; security deposit;
      and any rights that are personal to the third party making the
      Advice.


         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        	 	 	 
	
                 
      

              	
                7.3

              	
                The
      Refusal Space (including improvements and personalty, if any) shall be
      accepted by Tenant in its condition and as-built configuration existing on
      the earlier of the date Tenant takes possession of the Refusal Space or
      the date the term for such Refusal Space commences, unless the Advice
      specifies work to be performed by Landlord in the Refusal Space, in which
      case Landlord shall perform such work in the Refusal Space.  If
      Landlord is delayed delivering possession of the Refusal Space due to the
      holdover or unlawful possession of such space by any party, Landlord shall
      use reasonable efforts to obtain possession of the space, and the
      commencement of the term for the Refusal Space shall be postponed until
      the date Landlord delivers possession of the Refusal Space to Tenant free
      from occupancy by any party.

              


      

    

     

    
      	
               
      

            	
              7.4

            	
              The
      rights of Tenant hereunder with respect to the Refusal Space shall
      terminate on the earlier to occur of (a) Tenant’s failure to exercise its
      Right of First Refusal within the four (4) business day period provided in
      Section 7.1 above; and (b) the date Landlord would have provided Tenant an
      Advice if Tenant had not been in violation of one or more of the
      conditions set forth in Section 7.1
above.

            


    

     

    
      	
               
      

            	
              7.5

            	
              If
      Tenant exercises its Right of First Refusal, Landlord shall prepare an
      amendment for review by Tenant (the “Refusal Space
      Amendment”) adding the Refusal Space to the Premises on the terms
      set forth in the Advice and reflecting the changes in the Monthly Rent,
      the rentable square footage of the Premises, Tenant’s Share and other
      appropriate terms.  A copy of the Refusal Space Amendment shall
      be sent to Tenant within a reasonable time after Landlord’s receipt of the
      Notice of Exercise executed by Tenant, and Tenant shall promptly review
      and respond to the Refusal Space Amendment to Landlord within ten (10)
      days thereafter, but an otherwise valid exercise of the Right of First
      Refusal shall be fully effective whether or not the Refusal Space
      Amendment is executed.

            


    

     

    
      	
               
      

            	
              7.6

            	
              Notwithstanding
      anything herein to the contrary, Tenant’s Right of First Refusal is
      subject and subordinate to (a) the renewal or extension rights of any
      tenant leasing all or any portion of the Refusal Space, and (b) the
      expansion rights (whether such rights are designated as a right of first
      offer, right of first refusal, expansion option or otherwise) of any
      tenant of the Building existing on the date
  hereof.

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              8.

            	
              Other
      Pertinent Provisions.  Landlord and Tenant agree that,
      effective as of the date of this Amendment, the Lease shall be amended in
      the following additional respects:

            


    

    


    
      	
               
      

            	
              8.1

            	
              Address of
      Landlord.  The Address of Landlord set forth in Section 1
      of the Original Lease and replaced in Section 7.1 of the Sixth Amendment
      is hereby deleted in its entirety and replaced with the
      following:

            


    

    


    “Walton
Street Capital, LLC

    Attention: 
Brian T. Kelly, Principal

    900 North
Michigan Avenue, Suite 1900

    Chicago,
Illinois 60611

    


    With a
copy to:

    


    c/o
Colliers International

    450 West
Santa Clara Street

    San Jose,
California 95113

    Attention:  Property
Manager”

    


    
      	
               
      

            	
              8.2

            	
              Address for Payment of
      Rent.  The following shall be added to the Lease after
      the Address of Landlord:

            


    

    


    Address for Payment of
Rent:

    


    “Walton
CWCA Mission Industrial 27, L.L.C.

    P.O. Box
60780

    Los
Angeles, California 90060-0780

    


    Wire
Instructions:

    


    US
Bank

    ABA
#81000210

    Account
Name: Walton Calwest Holdings, LLC

    Account
#152307765163”

    


    
      	
              9.

            	
              Miscellaneous.

            


    

    


    
      	
               
      

            	
              9.1

            	
              This
      Amendment, including Exhibit A (Outline and
      Location of Must-Take Space) and Exhibit B (Tenant
      Alterations) attached hereto, sets forth the entire agreement between the
      parties with respect to the matters set forth herein.  There
      have been no additional oral or written representations or
      agreements.  Under no circumstances shall Tenant be entitled to
      any Rent abatement, improvement allowance, leasehold improvements, or
      other work to the Premises, or any similar economic incentives that may
      have been provided Tenant in connection with entering into the Lease,
      unless specifically set forth in this Amendment.  This Amendment
      shall not be relied upon by any other party, individual, corporation,
      partnership or entity as a basis for reducing its lease obligations with
      Landlord or for any other purpose.

            


    

    


    
      	
               
      

            	
              9.2

            	
              Except
      as herein modified or amended, the provisions, conditions and terms of the
      Lease shall remain unchanged and in full force and
  effect.

            


    

    


    
      	
               
      

            	
              9.3

            	
              In
      the case of any inconsistency between the provisions of the Lease and this
      Amendment, the provisions of this Amendment shall govern and
      control.

            


    

    


    
      	
               
      

            	
              9.4

            	
              Submission
      of this Amendment by Landlord is not an offer to enter into this Amendment
      but rather is a solicitation for such an offer by
      Tenant.  Landlord shall not be bound by this Amendment until
      Landlord has executed and delivered the same to
  Tenant.

            


    

    


    
      	
               
      

            	
              9.5

            	
              The
      capitalized terms used in this Amendment shall have the same definitions
      as set forth in the Lease to the extent that such capitalized terms are
      defined therein and not redefined in this
  Amendment.

            


    

    


    
      	
               
      

            	
              9.6

            	
              Tenant
      hereby represents to Landlord that Tenant has dealt with no broker in
      connection with this Amendment other than Colliers
      International.  Tenant agrees to indemnify and hold Landlord and
      the Landlord Related Parties harmless from all claims of any other brokers
      claiming to have represented Tenant in connection with this
      Amendment.  Landlord hereby represents to Tenant that Landlord
      has dealt with no broker in connection with this Amendment other than
      Colliers International.  Landlord agrees to indemnify and hold
      Tenant and the Tenant Related Parties harmless from all claims of any
      other brokers claiming to have represented Landlord in connection with
      this Amendment.

            


    

    


    
      	
               
      

            	
              9.7

            	
              Each
      signatory of this Amendment represents hereby that he or she has the
      authority to execute and deliver the same on behalf of the party hereto
      for which such signatory is acting.  Tenant hereby represents
      and warrants that neither Tenant, nor any persons or entities holding any
      legal or beneficial interest whatsoever in Tenant, are (i) the target of
      any sanctions program that is established by Executive Order of the
      President or published by the Office of Foreign Assets Control, U.S.
      Department of the Treasury (“OFAC”); (ii) designated
      by the President or OFAC pursuant to the Trading with the Enemy Act, 50
      U.S.C. App.  § 5, the International Emergency Economic Powers
      Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive
      Order 13224 (September 23, 2001) or any Executive Order of the President
      issued pursuant to such statutes; or (iii) named on the following list
      that is published by OFAC: “List of Specially Designated Nationals and
      Blocked Persons.” If the foregoing representation is untrue at any time
      during the Term, an Event of Default under the Lease will be deemed to
      have occurred, without the necessity of notice to
  Tenant.

            


    

    


    
      	
               
      

            	
              9.8

            	
              Redress
      for any claim against Landlord under the Lease and this Amendment shall be
      limited to and enforceable only against and to the extent of Landlord’s
      interest in the Building.  The obligations of Landlord under the
      Lease are not intended to and shall not be personally binding on, nor
      shall any resort be had to the private properties of, any of its trustees
      or board of directors and officers, as the case may be, its investment
      manager, the general partners thereof, or any beneficiaries, stockholders,
      employees, or agents of Landlord or the investment
  manager.

            


    

     

     

    [SIGNATURES ON FOLLOWING
PAGE]

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this Amendment as of the day and year first above
written.

    


    
 

    
      attached
to and made 

        	
                LANDLORD:

              	
                TENANT:

              
	 
      	 
      
	
                WALTON CWCA MISSION INDUSTRIAL
      27, L.L.C., a
      Delaware limited liability company

                 

              	
                CARDIMA,
      INC.,

                a
      Delaware corporation

              
	
                By:WCV
      Commercial Properties Inc.,

                an
      Illinois corporation,

                its Authorized
    Agent

              	 
      
	
                 

                By:        /s/
      Thomas B. Hwang

              	
                By:       /s/
      Paul Cheng

              
	 
      	 
      
	
                Name:  Thomas
      B. Hwang

              	
                Name:  Paul
      Cheng

              
	
                Title:     Vice
      President, Regional Asset Manager

              	
                Title:    Chief
      Accounting Officer

              
	
                Dated:   May
      13, 2009

              	
                Dated:  May
      13, 2009

              
	 
      	 
      

a part of the Amendment dated as of May 12,
2009, between

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

       

       

      
        
          	
                   
      

                	
                  EXHIBIT
      A - OUTLINE AND LOCATION OF MUST-TAKE
SPACE

                


        

        


        attached
to and made a part of the Amendment dated as of May 12, 2009,
between

        WALTON
CWCA MISSION INDUSTRIAL 27, L.L.C., a Delaware limited liability
company,

        as
Landlord and CARDIMA, INC., a Delaware corporation, as
Tenant

      

    

     

     

    

     

    May
12, 2009, between

    WALTON
CWCA MISSION INDUSTRIAL 27, L.L.C., a Delaware limited liability
company,

    as
Landlord and CARDIMA, INC., a Delaware corporation, as Tenant

    


    


    


    
      
        
        

      

      
        
        

        
          

          A-1

      

      
        
        

      

    

    


     

    
      	
               
      

            	
              EXHIBIT
      B – TENANT ALTERATIONS

            


    

    


    attached
to and made a part of the Amendment dated as of May 12, 2009,
between

    WALTON
CWCA MISSION INDUSTRIAL 27, L.L.C., a Delaware limited liability
company,

    as
Landlord and CARDIMA, INC., a Delaware corporation, as Tenant

    


    1.           Tenant,
following the delivery of the Premises by Landlord and the full and final
execution and delivery of the Amendment to which this Exhibit B is attached, shall
have the right to perform alterations and improvements in the Premises (the
“Tenant
Alterations”).  Notwithstanding the foregoing, Tenant and its
contractors shall not have the right to perform the Tenant Alterations in the
Premises unless and until Tenant has complied with all of the terms and
conditions of Article 8 of the Original Lease,
including, without limitation, approval by Landlord of the final plans for the
Tenant Alterations and the contractors to be retained by Tenant to perform such
Tenant Alterations. Tenant shall be responsible for all elements of the design
of Tenant’s plans (including, without limitation, compliance with law,
functionality of design, the structural integrity of the design, the
configuration of the Premises and the placement of Tenant’s furniture,
appliances and equipment), and Landlord’s approval of Tenant’s plans shall in no
event relieve Tenant of the responsibility for such design.  In
addition to the foregoing, Tenant shall be solely liable for all costs and
expenses associated with or otherwise caused by Tenant’s performance and
installment of the Tenant Alterations (including, without limitation, any legal
compliance requirements arising outside of the Premises).  Landlord’s
approval of the contractors to perform the Tenant Alterations shall not be
unreasonably withheld.  The parties agree that Landlord’s approval of
the general contractor to perform the Tenant Alterations shall not be considered
to be unreasonably withheld if any such general contractor (a) does not
have trade references reasonably acceptable to Landlord, (b) does not
maintain insurance as required pursuant to the terms of the Lease, (c) does
not have the ability to be bonded for the work in an amount of no less than one
hundred fifty percent (150%) of the total estimated cost of the Tenant
Alterations, (d) does not provide current financial statements reasonably
acceptable to Landlord, or (e) is not licensed as a contractor in the
state/municipality in which the Premises is located.  Tenant
acknowledges the foregoing is not intended to be an exclusive list of the
reasons why Landlord may reasonably withhold its consent to a general
contractor.

    


    2.           Provided
Tenant is not in default, Landlord agrees to contribute the sum of $60,000.00 (the “Allowance”) toward the cost of
performing the Tenant Alterations in the Premises.  The Allowance may
only be used for the cost of preparing design and construction documents and
mechanical and electrical plans for the Tenant Alterations and for hard costs in
connection with the Tenant Alterations.  The Allowance shall be paid
to Tenant or, at Landlord’s option, to the order of the general contractor that
performed the Tenant Alterations, within thirty (30) days following receipt by
Landlord of (a) receipted bills covering all labor and materials expended
and used in the Tenant Alterations; (b) a sworn contractor’s affidavit from
the general contractor and a request to disburse from Tenant containing an
approval by Tenant of the work done; (c) full and final waivers of lien;
(d) as-built plans of the Tenant Alterations; and (e) the
certification of Tenant and its architect that the Tenant Alterations have been
installed in a good and workmanlike manner in accordance with the approved
plans, and in accordance with applicable laws, codes and
ordinances.  The Allowance shall be disbursed in the amount reflected
on the receipted bills meeting the requirements
above.  Notwithstanding anything herein to the contrary, Landlord
shall not be obligated to disburse any portion of the Allowance during the
continuance of an uncured default under the Lease, and Landlord’s obligation to
disburse shall only resume when and if such default is cured.

    


    3.           In
no event shall the Allowance be used for the purchase of equipment, furniture or
other items of personal property of Tenant.  If Tenant does not submit
a request for payment of the entire Allowance to Landlord in accordance with the
provisions contained in this Exhibit B by November 30,
2009, any unused amount shall accrue to the sole benefit of Landlord, it being
understood that Tenant shall not be entitled to any credit, abatement or other
concession in connection therewith.  Tenant shall be responsible for
all applicable state sales or use taxes, if any, payable in connection with the
Tenant Alterations and/or Allowance.  Landlord shall not be
entitled to a construction management fee for Landlord’s oversight of the Tenant
Alterations.

    


    4.           Tenant
agrees to accept the Premises in its “as-is” condition and configuration, it
being agreed that Landlord shall not be required to perform any work or, except
as provided above with respect to the Allowance, incur any costs in connection
with the construction or demolition of any improvements in the
Premises.

    


    5.           This
Exhibit B shall not be
deemed applicable to any additional space added to the Premises at any time or
from time to time, whether by any options under the Lease or otherwise, or to
any portion of the original Premises or any additions to the Premises in the
event of a renewal or extension of the original Term of the Lease, whether by
any options under the Lease or otherwise, unless expressly so provided in the
Lease or any amendment or supplement to the Lease.

     

     

    B-1