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EXHIBIT 10.29
LEASE AMENDMENT NO. 1
THIS LEASE AMENDMENT NO. 1 (this "Amendment") is made as of the 15th
day of February, 1997, by and between AIRPORT ASSOCIATES, a New Jersey general
partnership ("Landlord"), and VIVUS, INC., a Delaware corporation ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant are parties to a certain Lease dated as
of January 1, 1997 (the "Lease"), pursuant to which Landlord demised and leased
to Tenant, and Tenant hired and took from Landlord, certain premises located at
735 Airport Road, Lakewood, New Jersey, as further described in the Lease (the
"735 Premises"); and
WHEREAS, the initially capitalized terms used, but not defined, in
this Amendment shall have the same meanings as the terms defined in the Lease,
directly or by cross-reference, unless the context requires otherwise; and
WHEREAS, Tenant desires to hire and take from Landlord, and Landlord
desires to demise and lease unto Tenant, the building (consisting of
approximately 50,000 square feet) and land located at 745 Airport Road,
Lakewood, New Jersey (the "745 Premises"), upon the terms and conditions set
forth in this Amendment;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto,
Landlord and Tenant agree as follows:
1. Landlord demises and leases unto Tenant, and Tenant hires and
takes from Landlord, the 745 Premises. This demise by
Landlord to Tenant of the 745 Premises shall be upon all the
terms, covenants and conditions set forth in the Lease
applicable to the 735 Premises, except as amended by this
Amendment. The term of the Lease with respect to the 745
Premises shall commence on February 15, 1997 (the "745 Term
Commencement Date"). From and after the 745 Term Commencement
Date, all references in the Lease, as amended by this
Amendment, to (a) the "Premises" shall mean, collectively, the
735 Premises and the 745 Premises, and (b) the "Building"
shall mean, collectively, the building (consisting of
approximately 40,000 square feet) located on the 735 Premises
and the building (consisting of approximately 50,000 square
feet) located on the 745 Premises. Tenant covenants and
agrees that it will accept the 745 Premises in their existing
"as is" state or condition as of the 745 Term Commencement
Date and without any representation or warranty, expressed or
implied, in fact or by law, by Landlord or its agents and
without recourse to Landlord or its agents, as to the nature,
condition or useability thereof, the title thereto, or the use
or occupancy which may be made thereof, except as specifically
provided in the Lease, as amended by this Amendment.
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2. The expiration date of the original Term of the Lease (set
forth in Section 1.2 of the Lease to expire on December 31,
2001) is extended until midnight on the day preceding the
fifth (5th) anniversary of the 745 Term Commencement Date.
3. Commencing as of the 745 Term Commencement Date, Section 2.1
of the Lease is hereby amended to read as follows:
Tenant shall pay to the Landlord, at the address set
forth above or at such other place of which Landlord
shall have given Tenant written notice, a basic
annual rental of $454,500.00, in monthly installments
of $37,875.00 each.
The basic annual rental and the additional rent payable by
Tenant hereunder shall be, with respect to the 745 Premises,
prorated for the unexpired portion of the month in which the
745 Term Commencement Date occurs.
4. Tenant shall be entitled to construct an enclosed passageway
connecting the 735 Premises and the 745 Premises, provided
that (a) the same shall be constructed by Tenant at its sole
cost and expense, and (b) such passageway shall constitute an
"Alteration" to be performed in accordance with all applicable
terms and conditions of the Lease, including Section 9.3
(including, without limitation, the requirement that all plans
and specifications for such passageway shall be subject to the
prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed) and Section 9.4 (including,
without limitation, the requirement that Tenant shall remove
such passageway, and repair any damage caused by the removal
of such passageway, prior to the expiration of the Term or
sooner termination of this Lease).
5. Tenant shall this day deposit with Landlord the sum of
$42,083.33 as an additional security deposit to be held by
Landlord in accordance with the terms of Section 10 of the
Lease, so that upon collection of such amount the total
security deposit shall be $75,750.00 (and the reference to
"$33,666.67" in the last sentence of Section 10 shall be
deleted and "$75,750.00" shall be inserted in lieu thereof.
6. Notwithstanding anything to the contrary contained in the
Lease, as amended by this Amendment (including, without
limitation, the definition of the "Building" set forth in
Paragraph 1(b) of this Amendment), for purposes of Section 6
of the Lease all references in this section to the "Building"
shall be deemed to refer individually to the Building on the
735 Premises and the Building on the 745 Premises; it being
understood that in the event of any damage to a Building which
would allow either Landlord or Tenant to terminate the Lease,
such right of termination shall apply only to the Building
which was damaged and the Lease shall remain in full force and
effect as to the other Building which was not so damaged.
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7. Landlord warrants and represents to Tenant that the 745
Premises are encumbered by that certain mortgage (the
"Manufacturers Mortgage") described in the Subordination,
Non-Disturbance and Attornment Agreement dated January 24,
1997 (the "Manufacturers Non-Disturbance Agreement") by and
among Landlord, Tenant and The Manufacturers Life Insurance
Company ("Manufacturers") (and no other mortgage), which
Manufacturers Mortgage also encumbers the 735 Premises.
Landlord shall use its diligent, good faith efforts to obtain,
as soon as reasonably practicable, from Manufacturers an
amendment to the Manufacturers Non-Disturbance Agreement, in
form and substance reasonably satisfactory to Tenant, to the
effect that the terms (a) "Property" and "Demised Premises"
set forth in the Manufacturers Non-Disturbance Agreement shall
mean, collectively, the 735 Premises and the 745 Premises, and
(b) "Lease" set forth in the Manufacturers Non-Disturbance
Agreement shall mean the Lease, as amended by this Amendment.
8. Landlord and Tenant warrant and represent to each other that
they have no dealings with any real estate broker or like
agent in connection with the negotiation and execution of this
Amendment, and that each knows of no other real estate broker
or like agent who is or might be entitled to a commission in
connection with this Amendment. Each party shall indemnify,
defend and hold the other party harmless from any breach of
the foregoing representation and warranty and/or a claim for a
brokerage commission or similar fee by any party claiming to
have represented or dealt with the indemnifying party in
connection with the negotiation and execution of this
Amendment.
9. Except as provided herein, the Lease is hereby ratified and
shall remain in full force and effect. Tenant certifies that
there exists no default by Landlord of any term, covenant or
condition contained in the Lease, as amended hereby.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
as of the day and year first above written.
LANDLORD
WITNESS: AIRPORT ASSOCIATES
/S/ June Langbern Edmund Bennett, Jr.
______________________________________ By:____________________________
Name: June Langbern Edmund Bennett, Jr., Partner
/S/ June Langbern /S/ Ronald Bennett, Jr.
______________________________________ By:____________________________
Name: June Langbern Ronald Bennett, Jr., Partner
TENANT
ATTEST: VIVUS, INC.
/S/ A. Greg Sturmer /S/ David C. Yntema
_____________________________________ By: ___________________________
Name: A. Greg Sturmer Name: David C. Yntema
Title: Controller Title: Chief Financial Officer
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