Image Exhibit


Exhibit 10.27


 


FIRST AMENDMENT TO SUBLEASE AGREEMENT


 


THIS FIRST AMENDMENT TO SUBLEASE AGREEMENT (hereinafter referred to as this “Amendment”) is made effective as of March 15, 2021 (the “Effective Date”) by and between Ingredion Incorporated, a Delaware corporation (“Sublandord”), and Viveve Medical, Inc., a Delaware corporation (“Subtenant”).


 


WITNESSETH:


 


WHEREAS, Sublandord and Subtenant are party to that certain Sublease Agreement, dated as of January 26, 2017 (the “Sublease”, as may be further amended or modified from time to time), pursuant to which Sublandord subleases to Subtenant certain premises consisting of approximately 12,303 rentable square feet with a common address of 345 Inverness Drive South, Building B, Suite 250, Englewood, Colorado 80112, as more particularly described in the Sublease (the “Subleased Premises”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed thereto in the Sublease.


 


WHEREAS, the Term is scheduled to expire on May 31, 2021 and Sublandord and Subtenant desire to extend the Term for an additional thirty-four (34) full calendar months from such expiration date and to amend the terms and conditions of the Sublease as hereinafter provided.


 


AGREEMENT:


 


NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, and the mutual covenants set forth herein, the parties hereto agree as follows:


 


1.    Extension of Term. The Term is hereby extended for a period of thirty-four (34) full calendar months, commencing as of June 1, 2021 (the “Extended Term Commencement Date”) and expiring on March 31, 2024 (the “Extended Term”). From and after the date hereof, the “Term” shall be deemed to include the Extended Term.


 


2.    Rent


 


(a)    Gross Rent Schedule. Effective as of the Extended Term Commencement Date, the monthly gross Rent for the Subleased Premises payable by Subtenant to Sublandord during the Extended Term is as follows:


 


	
			From:

				
			To:

				
			Gross Rent (per month)

			
	
			June 1, 2021

				
			May 31, 2022

				
			$21,027.88

			
	
			June 1, 2022

				
			May 31, 2023

				
			$21,643.03

			
	
			June 1, 2023

				
			March 31, 2024

				
			$22,258.18

			



 


Except as otherwise set forth in this Amendment, all other terms and conditions with respect to the payment of any other sums due and payable by Subtenant under the Sublease shall remain as set forth thereunder.


 


(b)    Rent Abatement Period. Notwithstanding the foregoing subsection (a), Subtenant’s obligation to pay gross Rent shall be conditionally abated as follows (the “Rent Abatement Period”):


 


	
			From:

				
			To:

				
			Gross Rent


			(per month)

				
			Gross Rent Abated


			(per month)

				
			Gross Rent Due and Payable


			(per month)

			
	
			June 1, 2021

				
			June 30, 2021

				
			$21,027.88

				
			$21,027.88

				
			$0.00

			



 


During the Rent Abatement Period, Subtenant’s obligation to pay any and all other charges pursuant to the terms of the Sublease shall continue in full force and effect without abatement of any kind. The abatement of gross Rent described above is expressly conditioned on Subtenant’s performance of its obligations under the Sublease throughout the Term. If there is default under the Sublease and such default leads to the enforcement of any remedies against Subtenant (including the termination of the Sublease prior to the expiration of the Term), then Subtenant shall immediately pay to Sublandlord on demand, in addition to all other amounts and damages to which Sublandlord is entitled, the amount of gross Rent which would otherwise have been due and payable during any portion of the Rent Abatement Period.


 





 










 








 


	 	
			3.

				
			AS-IS Condition; Sublandord’s Work.

			



 


(a)     AS-IS Condition. Subtenant hereby acknowledges and agrees that it has accepted the Subleased Premises as of the date hereof, and will continue to accept the Subleased Premises as of the Extended Term Commencement Date, in AS-IS, WHERE-IS condition without any representation or warranty of any kind made by Sublandord in favor of Subtenant.


 


(b)    Sublandord’s Work. Notwithstanding the foregoing subsection (a), Sublandord shall complete the work set forth on Exhibit A attached hereto in accordance with the terms and conditions set forth on such exhibit.


 


4.    Notice. Notwithstanding anything to the contrary, the parties’ addresses for notice shall be as follows:


 


	
			Subtenant:


			 


			Viveve Medical, Inc.


			Attn: Jim Robbins


			345 Inverness Drive South


			Building B, Suite 250


			Englewood, CO 80112


			JRobbins@viveve.com

				
			Sublandord:


			 


			Ingredion Incorporated


			345 Inverness Drive South


			Building B, Suite 200


			Englewood, CO 80112


			Attn: Adams Berzins


			 


			With a copy to:


			 


			Ingredion Incorporated


			5 Westbrook Corporate Center


			Westchester, IL 60154


			Attn: General Counsel

			



 


Either party may by notice given aforesaid change its address for all subsequent notices.


 


5.    Limitation of Liability. Any obligation or liability whatsoever of Sublandord which may arise at any time under the Sublease or any obligation or liability which may be incurred by it pursuant to any other instrument, transaction, or undertaking contemplated hereby shall not be personally binding upon, nor shall resort for the enforcement thereof be had to the property of, its trustees, directors, shareholders, officers, employees or agents, regardless of whether such obligation or liability is in the nature of contract, tort, or otherwise.


 


6.    Additional Changes. Effective as of the date hereof, Section 7 of the Sublease is hereby deemed null and void and of no further force and effect.


 


7.    OFAC. Subtenant hereby represents and warrants that, to the best of its knowledge, neither Subtenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Subtenant, 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, a default will be deemed to have occurred, without the necessity of notice to the defaulting party.


 





 










 








 


8.    Brokers. Subtenant represents and warrants to Sublandlord that Subtenant was not represented by any broker or agent with respect to this Sublease except Colliers International ("Subtenant's Broker''). Sublandlord represents and warrants to Subtenant that Sublandlord was not represented by any broker or agent with respect to this Sublease other than Cushman & Wakefield ("Sublandlord's Broker''). Subtenant and Sublandlord each agree to indemnify and hold harmless the other party against any loss, expense, cost or liability incurred by such party as a result of any claims by brokers other than Subtenant's Broker and Sublandlord's Broker.


 


9.    No Offer. Submission of this Amendment by Sublandord is not an offer to enter into this Amendment, but rather is a solicitation for such an offer by Subtenant. Sublandord shall not be bound by this Amendment until Sublandord and Subtenant have fully executed and delivered this Amendment.


 


10.    Authority. Subtenant represents and warrants to Sublandord that Subtenant has been and is qualified to do business in the state in which the Subleased Premises is located, that the entity has the full right and authority to enter into this Amendment, and that all persons signing on behalf of the entity were authorized to do so by appropriate actions. 


 


11.    Severability. If any clause or provision of this Amendment is illegal, invalid or unenforceable under present or future laws, then and in that event, it is the intention of the parties hereto that the remainder of this Amendment shall not be affected thereby. It is also the intention of the parties to this Amendment that in lieu of each clause or provision of this Amendment that is illegal, invalid or unenforceable, there be added, as a part of this Amendment, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.


 


12.    Counterparts and Delivery. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Amendment. Execution copies of this Amendment may be delivered by facsimile or email, and the parties hereto agree to accept and be bound by facsimile signatures or scanned signatures transmitted via email hereto, which signatures shall be considered as original signatures with the transmitted Amendment having the binding effect as an original signature on an original document. Notwithstanding the foregoing, Subtenant shall, upon Sublandord’s request, deliver original copies of this Amendment to Sublandord at the address set forth in such request. Neither party may raise the use of a facsimile machine or scanned document or the fact that any signature was transmitted through the use of a facsimile machine or email as a defense to the enforcement of this Amendment.


 


13.    Conflict; Ratification. Insofar as the specific terms and provisions of this Amendment purport to amend or modify or are in conflict with the specific terms, provisions and exhibits of the Sublease, the terms and provisions of this Amendment shall govern and control. Sublandord and Subtenant hereby agree that (a) this Amendment is incorporated into and made a part of the Sublease, (b) any and all references to the Sublease hereinafter shall include this Amendment, and (c) the Sublease, and all terms, conditions and provisions of the Sublease, are in full force and effect as of the date hereof, except as expressly modified and amended hereinabove.


 


[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS.]


 





 










 








 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly authorized, executed and delivered as of the day and year first set forth above.


 


 


	
			SUBTENANT:


			 


			VIVEVE MEDICAL, INC.,


			a Delaware corporation

				 	
			SUBLANDLORD:


			 


			INGREDION INCORPORATED,


			a Delaware corporation

				 
	 	 	 	 	 	 
	 	 	 	 	 	 
	By:	/s/ Scott Durbin   	 	By:	/s/ E Yildiz    	 
	Name:	Scott Durbin    	 	Name:	M. Erhan Yildiz    	 
	Its:	Chief Executive Officer 	 	Its:	Sr. Director, Technical Services 	 



 


 





 










 








 


EXHIBIT A


 


SUBLANDLORD’S WORK


 


(a)    Sublandlord’s Work. Sublandlord agrees to perform or cause to be performed that certain construction, repair, maintenance, or those certain improvements to the Subleased Premises as specified below (the “Sublandlord’s Work”), without warranty and using Sublandlord’s standard building materials and finishes:


 


	 	
			1.

				
			The work generally described in Exhibit B attached hereto.

			



 


(b)    Substantial Completion. Sublandlord agrees to use commercially reasonable efforts to Substantially Complete (as hereinafter defined) the Sublandlord’s Work by the date that is seven (7) months from the Effective Date, subject to extensions for force majeure and any Subtenant caused delays (including, without limitation, Subtenant’s failure to provide Sublandlord with reasonable access to the Subleased Premises to undertake the Sublandlord’s Work); provided, however, Subtenant acknowledges and agrees that Sublandlord makes no guaranty or warranty of Substantial Completion by such date. The Sublandlord’s Work shall be deemed substantially completed (“Substantially Completed” or “Substantial Completion”) when, in the opinion of the construction manager (whether an employee or agent of Sublandlord or a third party construction manager, the “Construction Manager”), the Sublandlord’s Work is substantially completed except for punch list items which do not prevent in any material way the use of the Subleased Premises for the purposes for which they were intended. In the event Subtenant, its employees, agents, or contractors cause, directly or indirectly, the construction or completion of the Sublandlord’s Work to be delayed, then the date of Substantial Completion shall be deemed to be the date that, in the opinion of the Construction Manager, Substantial Completion would have occurred if such delays or impairments had not taken place. Without limiting the foregoing, Subtenant shall be solely responsible for delays caused by Subtenant’s request for any changes in the plans, Subtenant’s request for long lead items, Subtenant’s failure to provide Sublandlord with reasonable access to the Subleased Premises to undertake the Sublandlord’s Work, and/or Subtenant’s interference with the construction of the Sublandlord’s Work, and such delays shall not entitle Subtenant to any abatement of rent or other rights of any kind. Substantial Completion is only material for purposes of determining the completion of the Sublandlord’s Work and has no impact whatsoever on the Extended Term Commencement Date and/or Subtenant’s other obligations under the Sublease, including, without limitation, the obligation to pay rent. In no event shall Sublandlord have any obligation for any defects in the Subleased Premises or any limitation on its use.


 


(c)    Access. From and after the date of execution of this Amendment, Subtenant shall provide Sublandlord with all necessary access to the Subleased Premises, and shall cooperate with Sublandlord in all respects, to undertake and complete the Sublandlord’s Work, it being understood that Subtenant shall not be entitled to any abatement of rent or claims of any kind against Sublandlord in connection with any inconvenience or accommodations which are required by Sublandlord, or in connection with any interference with Subtenant’s business operations or damage to any of Subtenant’s property, as part of the completion of the Sublandlord’s Work. Subtenant, at its sole cost and expense and prior to the commencement of the Sublandlord’s Work, shall promptly remove all personal property, trade fixtures, equipment, office furniture and/or other similar items, if any, as may be required by Sublandlord for Sublandlord to undertake and complete the Sublandlord’s Work.


 





 










 








 


EXHIBIT B


 


DESCRIPTION OF SUBLANDLORD’S WORK


 


 


(See attached)