Exhibit 10.12
FIRST AMENDMENT TO LEASE AGREEMENT
This FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of August 1, 2003, by and between SPI COMMERCE PARK, LP, a
California limited partnership ("Landlord"), and VNUS MEDICAL TECHNOLOGIES,
INC., a Delaware Corporation ("Tenant"), with reference to the following facts:
A. Pursuant to that certain Lease (the "Lease") dated January 24, 2001,
Landlord leased to Tenant those certain premises (the "Premises") described in
the Lease located at 0000 Xxxxxx Xxxx, Xxxxxx X xxx X, Xxx Xxxx, Xxxxxxxxxx.
B. Landlord and Tenant now desire to amend the Lease to add the
adjacent premises known as Suite D ("Expansion Premises") thereto, on the terms
and conditions described herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. EFFECTIVE DATE. This Amendment shall be effective on the date of
substantial completion of the Tenant Improvements ("Expansion Premises Delivery
Date"), which date is anticipated to be approximately November 1, 2003. Tenant
shall be granted early access to the Expansion Premises four weeks prior to the
Effective Date, at no cost to Tenant, for purposes of installing furniture,
fixtures and equipment. Tenant agrees not to interfere in any way with
Landlord's contractors.
2. AMENDMENT OF BASIC LEASE TERMS. Certain of the Basic Lease Terms are
hereby amended as follows, as of the Effective Date unless otherwise noted:
SECTION TERMS
(LEASE REFERENCE)
Section 1.20 Premises: That area consisting in the aggregate of
22,446 square feet of gross leasable area, the address
of which is 0000 Xxxxxx Xxxx, Xxxxx X (which is agreed
to be 5,048 square feet) and Suite F (which is agreed
to be 10,150 square feet), and Suite D (which is agreed
to be 7,248 square feet) Xxx Xxxx, Xxxxxxxxxx, 00000,
as shown on the Site Plan attached hereto as Exhibit A.
Section 1.28 Tenant's Share: 9.30%, which has been determined by
dividing the agreed square footage of the Premises by
the agreed square footage of the Project.
Section 4.5 Allocated Parking Spaces: Shall be amended to be sixty
seven (67) spaces [45 spaces + 22 for Expansion
Premises].
Section 3.1 Base Monthly Rent: The Base Monthly Rent shall be
increased according to the following schedule, which is
attributable to the Expansion Premises. Note that month
1 shown below begins on the Expansion Premises Delivery
Date. Should the Expansion Premises Delivery Date occur
on a day other than the first day of a calendar month,
month 1 shall include the remainder of the month in
which the Expansion Premises Delivery Date occurs and
the following full calendar month.
Expansion Premises/Months Monthly Amount
------------------------- --------------
1 - 12 $7,610.40
13- 24 $7,972.80
25 - 36 $8,335.20
37 - 6/30/07 $8,697.60
For example, per the terms of the pre-amended lease,
the Base Monthly Rent for November 2003 is $46,848.74.
If the Expansion Premises Delivery Date occurs on
November 1, 2003, the revised Base Monthly Rent for
November 2003 would be $46,848.74 + $7,610.40 =
$54,459.14.
3. TENANT IMPROVEMENTS. Landlord shall deliver the Expansion Premises
with building standard improvements as shown on the attached Exhibit B. In no
event shall the Tenant Improvements include (i) any costs of procuring or
installing in the Premises any trade fixtures, equipment, furniture,
furnishings, telephone equipment, cabling for any of the foregoing or other
personal property to be used in the Premises by Tenant, and the cost of such
personal property shall be paid by Tenant, or (ii) any costs or expenses of any
consultants retained by Tenant with respect to design, procurement, installation
or construction of improvements or installations, whether real or personal
property, for the Premises.
4. RIGHT OF FIRST OFFER. Tenant shall have the on-going Right of First
Offer ("ROFO") on the adjacent space (Suite C). The ROFO shall be valid for five
days effective commencing upon notice from Landlord that a potential bona-fide
tenant has expressed serious interest in Suite C . If Tenant does not
affirmatively exercise its right in writing within five days of notice, then
Tenant shall be deemed to have passed on its right.
5. RETAINED REAL ESTATE BROKERS. Colliers International representing
Landlord and CRESA Partners representing Tenant.
6. DELAY IN DELIVERY OF EXPANSION PREMISES. Landlord shall have no
liability to Tenant due to delays in the Expansion Premises Delivery Date.
7. BROKERS. Each party hereto (a) represents and warrants to the other
that it has not had any dealings with any real estate brokers, leasing agents or
salesmen, or incurred any obligations for the payment of real estate brokerage
commissions or finder's fees which would be earned or due and payable by reason
of the execution of this Amendment, other than to the Retained Real Estate
Brokers described above, and (b) agrees to indemnify, defend, and hold harmless
the other party from any claim for any such commission or fees which result from
the actions of the indemnifying party. Landlord shall be
responsible for the payment of commissions owed to the Retained Real Estate
Brokers pursuant to a separate written commission agreement between Landlord and
Colliers International.
8. ENTIRE AGREEMENT. This Amendment and the Lease constitute the entire
understanding and agreement of the parties with respect to the subject matter
hereof, and shall supersede and replace all prior understandings and agreements,
whether verbal or in writing. The parties confirm and acknowledge that there are
no other promises, covenants, understandings, agreements, representations or
warranties with respect to the subject matter of this Agreement except as
expressly set forth herein. If the provisions of this Amendment and the
provisions of the Lease are inconsistent, the provisions of this Amendment shall
prevail. Except as expressly modified by this Amendment, the Lease shall remain
in full force and effect as initially executed.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT AS
OF THE DATE FIRST SET FORTH ABOVE.
LANDLORD: TENANT:
SPI COMMERCE PARK, LP VNUS MEDICAL TECHNOLOGIES, INC.
a California limited partnership a Delaware corporation
/s/ Xxxxx Xxxxxx
By: SPI Holdings, LLC, By: ____________________
a Delaware limited liability company Name: Xxxxx Xxxxxx
Its General Partner Title: President and CEO
/s/ Xxxxxx X. Xxxx
By: ____________________ /s/ Xxxxxx Xxxxx
Name: Xxxxxx X. Xxxx By: ____________________
Title: Manager Name: Xxxxxx Xxxxx
Title: CFO