Exhibit 10.1


 


FIRST AMENDMENT TO LEASE


 


THIS AMENDMENT TO LEASE,
dated November 18, 2008 for reference purposes only (this “Amendment”), is
made by and between CASTRO MOUNTAIN VIEW, LLC, a California limited liability company, and CP6CC, LLC, a Delaware limited liability company, as tenants
in common and successor in interest  to THOMAS A. LYNCH; Trudy Molina Flores,
Trustee of the JOLEN FLORES AND TRUDY MOLINA FLORES JOINT LIVING TRUST DATED
APRIL 3, 2001; E. WILLIAM AND CHARLOTTE DUERKSEN,
husband and wife; E.
William and Charlotte Duerksen, Trustees of the DUERKSEN FAMILY TRUST DATED FEBRUARY 16, 1999; Daniel F. Dutton, Jr. and Joyce
F. Dutton, Trustees under the DUTTON
FAMILY TRUST DATED SEPTEMBER 16, 1993; Noel S. Schuurman, Trustee of the NOEL S. SCHUURMAN TRUST; THE DUARTE FAMILY
PARTNERS, L.P., a California limited partnership; Marie Straube, Trustee of the MARIE ANTOINETTE CLOUGH REVOCABLE LIVING
TRUST DATED JANUARY 11, 1989; and BLUE OAK
PROPERTIES, INC., a California corporation (collectively the “Landlord”) and VIVUS, Inc.,
a Delaware corporation (“Tenant”), to be effective and binding upon the parties
as of the date the last of the designated signatories to this Lease shall have
executed this Lease (the “Effective Date of this Lease”).


 


Recitals


 


A.                                   Tenant
and Landlord’s predecessor in interest have entered into a certain Lease Agreement
dated October 16, 2006 (the “Lease”) for approximately 14,237 square feet,
located at 1172 Castro Street, which is part of a two- building complex (“Complex”)
in the City of Mountain View, County of Santa Clara, California (“Premises”).


 


B.                                     Tenant
and Landlord now desire to extend the term of the Lease on the terms and
conditions set forth below.


 


Agreement


 


1.                                       Extension of Term:  The
current term of the Lease expires on July 31, 2009. Landlord and Tenant
have agreed to extend the lease term for an additional twenty four (24) months commencing
on August 1, 2009 and ending on July 31, 2011 (the “Extended Term”).  All references to “Lease Term” in the Lease
shall also include the Extended Term, and the “Lease Expiration Date” shall be July 31,
2011.


 


2.                                       Fixed Minimum Rent:  The Minimum Rent shall be as follows for the
Extended Term:


 


	
  Period

  	
   

  	
  Minimum Rent (per 

  leaseable square foot)

  	
   

  	
  Minimum Rent (total 

  per month)

  	
   

  
	
  August 1, 2009-July 31, 2011

  	
   

  	
  $

  	
  1.64

  	
   

  	
  $

  	
  23,348.68

  	
   

  
								



 


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Total of Fixed Minimum Rent and Additional
Rent: 
Notwithstanding anything to the contrary contained herein or in the
Lease, the Fixed Minimum Rent during the Extended Term shall be adjusted either
up or down, such that the total of Fixed Minimum Rent and Additional Rent shall
be $3.00 per square foot, per month. 
Landlord may not require Tenant to contract or pay for directly any
services or other items that are included in Additional Rent as of the date
hereof.


 


3.                                       Additional Rent: 
The term “Tenant’s Expense Share” shall mean the percentage
obtained by dividing the rentable square footage of Leased Premises at the time
of calculation by the rentable square footage of all buildings located on the Property
at the time of calculation.  Such
percentage is currently 100% of the Building and 34.3% of the Complex.  In the event that any portion of the Property
is sold by the Landlord, or the rentable square footage of the Leased Premises
or the Property is otherwise changed, Tenant’s expense shall be recalculated to
equal the percentage described in the first sentence of this paragraph, so that
the aggregate Tenant’s Expense Share of all tenants of the property shall equal
100%.  Tenant’s share of Property
Operating Expenses during this Extended Term is estimated to be one dollar and
36/100 ($1.36) per square foot, per month.


 


4.                                       Exclusive Use of the Common Conference Room


 


Effective August 1, 2009, Tenant shall have exclusive use, at no
additional cost, of the Common Conference Room located on the first floor
of the Building, consisting of approximately 400 additional square feet.  Prior to August 1, 2009, at Landlord’s
sole cost, Landlord shall re-key, to be accessed by the same key, (a) the
entrance door to the Common Conference Room and (b) the entrances to
the Building, to allow only Tenant’s personnel to access the Common Conference Room and
the Building.  Landlord shall also, at
Landlord’s sole cost, concurrently therewith, remove the locks from the
restrooms on the first floor of the Building.


 


5.                                       First Right of Refusal:  Tenant shall receive an ongoing
First Right of Refusal on any vacant space located at the 1174 Castro Street
building, Mountain View, CA (the “Expansion Space”).  Prior to leasing to any third party, Landlord
would be required to present the terms and conditions agreed upon with a
proposed third party tenant in a bona fide letter of intent that Landlord would
accept without change.  Upon receipt of
the notice from Landlord, Tenant would have four (4) business days to
accept or reject said third party offer. 
Notwithstanding the foregoing, if Landlord negotiates with the proposed
tenant lease terms materially more favorable than those offered to Tenant but
rejected, Landlord shall be required to submit the more favorable terms to
Tenant for its review.  Tenant shall have
four (4) business days after receipt of the more favorable terms to accept
or reject the 


 


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Expansion Space.  If Tenant rejects the more favorable terms,
Landlord shall be free to enter a lease with the proposed tenant.  Tenant’s right of first refusal shall be
continuous during the Lease Term and any extension thereof.  Tenant’s rejection of any particular offer
shall not relieve Landlord of its obligation to again offer any Expansion Space
to Tenant at any time that the Expansion Space subsequently becomes available.


 


6.                                       Landlord’s Improvements:  Landlord shall make the following
improvements to the Building at Landlord’s sole cost on or before January 31,
2009:


 


Paint and carpet in the downstairs hallway and both downstairs


conference rooms


Paint and carpet in back stairwell


New ceiling tiles where necessary


 


Landlord shall use commercially reasonable efforts to repair HVAC
system in the upstairs Telephone Room of the Premises, at a cost not to
exceed $3,000, at Landlord’s sole cost on or before January 31, 2009.


 


Landlord shall perform all of the work described in this Section 6
in a good and workmanlike manner using new materials of good quality.  In performing such work, Landlord shall use
commercially reasonable efforts not to unreasonably interfere with Tenant’s use
of the Premises and shall give Tenant not less than three (3) business
days’ prior notice of its entry to perform such work.  Tenant shall not be required to restore the
foregoing alterations or any other alterations that are in the Premises as of
the date hereof.


 


7.                                      Option
to Extend:  Tenant shall have one
option to extend the term of the Lease beyond July 31, 2011 for twelve
months commencing on August 1, 2011 and terminating on July 31, 2012
under the same terms and conditions as stated in the Lease under Article 15.


 


8.                                       Notices: 
The addresses for notice pursuant to Section 27 of the Lease are updated
as follows:


 


Tenant Notice Address:


VIVUS, Inc.


1172 Castro Street


Mountain View, CA 94040


Attn:       Timothy E. Morris, VP,
Chief Financial Officer


 


Landlord Notice Address:


Castro Mountain View, LLC


C/O West Valley Properties, Inc.


280 Second Street, Suite 230


Los Altos, California 94022


 


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9.                                       Miscellaneous:  All terms not specifically defined herein are
as defined in the Lease.  Except as
amended or modified by this Amendment, all terms and conditions of the Lease
shall remain unchanged and in full force and effect and Landlord and Tenant
shall be bound thereby.  This Amendment may
be executed in one or more counterparts, which counterparts shall together
constitute an original document.


 


10.                                 Lender
Approval:  This Amendment is
subject to and conditioned upon Landlord obtaining the approval for this
Amendment from Landlord’s existing 1st mortgage lender (the “Current
First Lender”).  Landlord shall use
commercially reasonable efforts to obtain such approval, including delivering a
copy of this Amendment to the Current First Lender within three (3) business
days of the full execution of this Amendment. 
Landlord shall provide prompt written notice to Tenant of its receipt of
the approval of the Current First Lender to this Amendment (in which case, the
condition in this Section 10 shall be deemed satisfied) or the disapproval
of the Current First Lender to this Amendment (in which case, this Amendment
shall be terminated and of no further force and effect).  If Landlord fails to deliver written notice
to Tenant of the Current First Lender’s disapproval of this Amendment within
forty-five (45) days of the date of this Amendment, the condition in this Section 10
shall be deemed satisfied.


 


11.                                 Use:  From and after the date hereof, the Permitted
Use shall mean general office and research and development.


 


12.                                 SNDA:  Landlord shall promptly: (a) sign, and
request that the Current First Lender sign and return to Tenant, the Subordination,
Non-Disturbance and Attornment Agreement in the form attached hereto as Exhibit A
and (b) request that its ground lessor sign and return to Tenant the
Non-Disturbance and Attornment Agreement attached hereto as Exhibit B.


 


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Tenant:


 


	
  VIVUS, Inc., a Delaware corporation

  
	
   

  
	
  By:

  	
  /s/ Timothy E. Morris

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  VP Finance, Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  December 16, 2008

  	
   

  



 


	
   

  	
   

  
	
  Landlord:

  	
   

  
	
   

  	
   

  
	
  Castro Mountain View, LLC

  	
   

  
	
  a California limited liability company

  	
   

  
	
   

  	
   

  
	
  By: West Valley Properties, Inc.,

  	
   

  
	
  a California corporation, Manager

  	
   

  



 


	
  By:

  	
  /s/ Jon Rayden

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 20, 2008

  	
   

  



 


 


	
  By: Guardian
  Equity Growth, Inc.

  
	
  a California corporation, Manager

  



 


	
  By:

  	
  /s/ Jerry Moison

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Manager

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 20, 2008

  	
   

  



 


	
   

  	
   

  
	
  CP6CC, LLC, a Delaware limited liability

  	
   

  
	
  Company

  	
   

  
	
  By: Cupertino Partners VI, a California limited

  	
   

  
	
  Partnership, its Sole Member

  	
   

  
	
  By: West Valley Properties, Inc., a

  	
   

  
	
  California corporation

  	
   

  
	
  Its:  General Partner

  	
   

  



 


	
  By:

  	
  /s/ Jon Rayden

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  November 20, 2008