AGREEMENT
00000 XXXXXXXX XXXXXX XXXXX, XXX XXXXX, XXXXXXXXXX
THIS LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment"), is made
and entered into this 16th day of April, 1998 (the "Effective Date"), between
PHOTOMATRIX IMAGING CORPORATION, a Nevada corporation having a mailing address
of 00000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, as successor in
interest to Photomatrix Corporation (the "Assignor") and CRYOGEN, INC., a
California corporation having a mailing address of 0000 Xxxxxxxxxxx Xxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000 (the "Assignee"). Mi terms used herein having
initial capital letters and not otherwise herein defmed shall have the meanings
ascribed to such terms in the Lease (as defmed below).
WITNESSETH:
A. Assinment. For good and valuable consideration, the receipt and
sufficiency of are hereby acknowledged, Assignor hereby assigns,
transfers and conveys to Assignee all Assignor's right, title and
interest in and to:
(i) that certain Standard Industrial/Commercial Multi-Tenant
Lease -- Gross, dated November 7, 1996 between THE
MANUFACTURERS LIFE INSURANCE COMPANY (the "Landlord"), as
lessor, and Photomatrix Corporation ("Lessee") (Assignor
bemg the successor to Lessee), as lessee, relating to
certain premises located at 00000 Xxxxxxxx Xxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000, as more particularly therein
described (the "Premises"), a copy of which is attached
hereto and incorporated herein as Exhibit A (the "Lease"),
as guaranteed by XSCRIBE CORPORATION (the "Guarantor") under
that certain Guaranty dated November 15, 1996 (the
"Guaranty"); and all advance rentals and other advance
payments made thereunder;
(ii) Assignor's leasehold interest in the Premises, including,
without limitation, any improvements and alterations to the
Premises ("Leasehold Improvements") which are not owned by
Assignor; and
(iii) Subject to the provisions of Paragraph Q herein, Assignor's
ownership interest in category 5 network cabling, if any,
vertical blinds and alarm system sensors of the Premises
("Assignor's Personal Property") which are owned by
Assignor.
Assignor hereby releases all claims to any prepayment or deposit held
by any person or entity relating to the Premises, the Leasehold Improvements
(except relating to the existing alarm/telephone system of the Premises) or
Assignor's Personal Property (including, without limitation, any utility
deposits, performance and/or completion bonds, and the like). Ml such
sums shall be held by such person or entity for the benefit of Assignee, subject
to the provisions of the applicable agreement requiring such prepayment or
deposit.
B. Consideration for Release of Assignor's Interest in Security
Deposit. Upon the execution of this Assignment, Assignee shall pay to Assignor
the amount of Nineteen Thousand Three Hundred Sixty Dollars ($19,360.QO), as
consideration for Assignor's release of its interest in the Security Deposit set
forth in the Lease to Assignee (the "Release Consideration").
X. Xxxx of Assignment. Assignee hereby accepts the foregoing assignment
and hereby assumes primary liability for and agrees (i) with each of Assignor
and Landlord to perform all of Assignor's obligations under the Lease accruing
from and aiter June 8, 1998 (the "Assignment Date") and (ii) with Assignor to
perform all of Assignee's obligations under this Assignment accruing from and
alter the Effective Date. Notwithstanding the Assignment Date, Assignor shall be
solely responsible for the payment of Rent until June 15, 1998, and the June
payment of Rent under the Lease shall be paid as follows: Assignor shall pay the
entire June payment of rent due under the Lease to Landlord on or before June 1,
1998, and shall concurrently deliver to Assignee a written request for the
amount of such payment attributable on a pro rata basis to the period June 16 -
June 30, 1998 ("Assignee Initial Rent Payment"); within five (5) days after
receiving such written request, Assignee shall pay Assignor the Assignee Initial
Rent Payment. Commencing on July 1, 1998, and for the duration of the Lease
term, Assignee shall make all payments of rent accrumg under the Lease directly
to Landlord.
X. Xxxxx in Possession. Notwithstanding the Assignment Date set forth
above, if for any reason Assignor cannot deliver possession of the Premises to
the Assignee on said -date for any reason other than a delay caused by Assignee
or a delay in the receipt of the Landlord's consent hereto, such "Assignor
Delay" shall not affect the validity of this Assignment, but in such case, the
Assignment Date shall be delayed, Assignee's obligations hereunder shall not
accrue, and Assignor's obligations under the Lease shall continue to accrue
until the earlier of the following events: (a) one (1) business day after
Assignor delivers written notice to Assignee that the Premises can be delivered
to Assignee in the physical condition required under this Assignment, clean and
free of any assignees or occupants (other than Assignee) and any personal
property of Assignor and any prior assignee or occupant of the Premises (except
for Assignor's Personal Property); or (b) that date upon which Assignee occupies
the Premises for any Permitted Use other than construction of Assignee's xxxxxx
tenant improvements approved by Assignor and Landlord or pre-construction
activities associated therewith. Notwithstanding the foregoing, Assignor hereby
agrees to use its best efforts to vacate the majority of the Premises (with the
exception of those certain offices currently occupied by Assignor's accounting
and administrative staff) no later than May 8, 1998. The Assignor shall deliver
the entire Premises to Assignee within two (2) days following completion of the
FY 1997-98 audit of Assignor, but no later than June 8,1998. If the Assignor is
unable to deliver the entire Premises to Assignee on or before June 8, 1998 in
the condition set forth herein solely because of any Assignor Delay, Assignor
will pay to Assignee, as liquidated damages (which Assignee and Assignor agree
fairly reflect Assignee's damages for delays in delivery of the Premises beyond
the anticipated Assignment Date), Two Thousand Dollars ($2,000.00) for each
calendar day that Assignor so delays in delivering the Premises to Assignee. If
possession of the Premises is not delivered to Assignee by June 15, 1998,
Assignee may, at its option, by notice in writing to Assignor (which shall be
delivered no later than June 25, 1998), cancel this Assignment, m which event
the parties sh be discharged from all obligations hereunder; and any funds paid
by either party shall be returned to such party, including commissions.
E. Condition of Premises.
1. Physical Condition. Assignor hereby represents and warrants
that, to the best of Assignor's knowledge, the roof, mechanical systems, windows
and seals, structural components of the Premises, all electrical and plumbing
Systems of the Premises, each portion of the Premises that Assignor is obligated
to repair and maintain under the Lease, and the Assignor's Personal Property are
all in good operating condition and repair and, are or will be in good working
condition on the Assignment Date; provided, ~owever, that the existence of
certain minor leaks in the Premises roof previously disclosed to Assignee shall
not constitute a breach of the foregoing warranty so long as Assignor continues
to diligently enforce its rights under the Lease to cause the Landlord to repair
such leaks. Additionally, Assignor shall deliver the Premises to Assignee in
good and broom-clean condition, with all lighting, mechanical and plumbing
systems, and building fmishes in good working order and condition. The Premises
shall be delivered to Assignee in the foregoing condition on the date of
Assignor's delivery of each portion of the Premises between the Effective Date
and the Assignment Date. Notwithstanding the foregoing, Assignee's physical
inspection of the Premises to Assignee's satisfaction shall be a condition
subsequent to the effectiveness of this Assignment. Such inspection shall be
performed, if at all, prior to April 30, 1998. In the event that Assignee
determines from such physical inspection that the Premises are not satisfactory
for Assignee's use or occupancy based upon the physical condition of the
Premises only, Assignee shall notify Assignor of such determination in writing
no later than May 5, 1998, and this Assignment shall be deemed cancelled as of
the date of such notice, in which event the parties shall be discharged from all
obligations hereunder and Assignor shall return the Security Deposit, if
previously delivered to Assignor, to Assignee. Failure by Assignee to deliver
such notice by said date shall be deemed Assignee's acceptance of the Premises
in its existing physical condition on the Assignment Date (with the exception of
any damages caused by Assignor's agents, employees or contractors occupying the
Premises between the Effective Date and the Assignment Date, which damages shall
be Assignor's obligation to repair in a prompt and diligent manner).
2. Assignor's Representations and Warranties. As of the
Effective Date, Assignor represents and warrants that (a) Assignor is lawfully
possessed of the lessee's interest in and to the Lease, the Leasehold
Improvements and the Assignor's Personal Property; ) Assignor has the right and
authority to assign its interest in the Lease and the Leasehold Improvements and
to convey the Assignor's Personal Property to Assignee; (c) the Lease attached
hereto as Exhibit A is complete, unmodified and in fill force and effect; (d)
the Premises have not been previously assigned or subleased by Assignor; (e)
Assignor is not in default under the Lease and, to the best of Assignor's
knowledge, Landlord is not in default thereunder, and Assignor is not aware of
any event or existing condition which, with the giving of notice and/or the
passage of time, would constitute such a default; (f) Assignor's interest in the
Lease, the Leasehold Improvements (with the exception of the alarm/telephone
system of the Premises, which is controlled by Paragraph Q below) and the
Assignor's Personal Property shall be delivered to Assignee free and clear of
all liens, encumbrances and creditor's rights held by any party claiming by,
through or under Assignor; and (g) to the best of Assignor's knowledge, the
Premises is free of any Hazardous Substances (other than de minimis amounts in
compliance with Applicable Laws and the Lease, and associated with the operation
and use of Premises, including, without limitation, cleaning and maintenance
activities).
F. Assignee's Indemnity. As between Assignor and Assignee, Assignee
shall be responsible for the performance bf all obligations of the lessee under
the Lease accruing from and alter the Assignment Date (exce~t as specifically
set forth herein), for all liabilities arising from Assignee's use or occupancy
of the Premises to the extent arising from and after the Effective Date and for
all claims, costs, expenses and liabilities relating to Assignee's material
breach of any term, condition, covenant or agreement of the Lease to be
performed by Assignee from and after the Assignment Date, and Assignee agrees to
protect, defend, indemiiify and hold harmless Assignor and Guarantor from any
claims, losses, costs or expenses (including reasonable counsel fees) suffered
or incurred by Assignor or Guarantor arising out of or resulting from any
failure by Assignee to perform any such obligations, including without
limitations the Hazardous Substances obligations of the Lease arising from
Assignee's use of any such Hazardous Substances in the Premises. The foregoing
indemnification shall include indemnity against all costs, expenses and
liabilities reasonably incurred in connection with any such claim or proceeding
brought thereon, and the defense thereof, and shall survive the cancellation or
termination of this Assignment.
G. Assinor's Indemnity. As between Assignor and Assignee, Assignor
shall be responsible for the performance of all obligations of the lessee under
the Lease that accrue prior to the Effective Date, for all liabilities arising
from Assignor's or Lessee's use or occupancy of the Premises to the extent
arising prior to the Assignment Date and for al~ claims, costs, expenses and
liabilities relating to Assignor's material breach of any term, condition,
covenant or agreement of the Lease to be performed by Assignor or Guarantor
prior to the Assignment Date, and Assignor agrees to protect, defend, indemnify
and hold harmless Assignee from any claims, losses, costs or expenses (including
reasonable counsel fees) suffered or incurred by Assignee arising out of or
resulting from any failure by Assignor or Guarantor to perform any such
obligations, including without limitations the Hazardous Substances obligations
of the Lease arising from Assignor's use of any such Hazardous Substances in the
Premises. The foregoing indemnification shall include indemnity against all
costs, expenses and liabilities reasonably incurred in connection with any such
claim or proceeding brought thereon, and the defense thereof, and shall survive
the cancellation or termination of this Assignment.
H. Confirmation of Landlord's Liability Requirements. As set forth in
Section 12.2 of the Lease, Assignor and Assignee hereby acknowledge and agree
that, notwithstanding the assignment and assumption hereby accomplished,
Assignor shall remain fully and primarily liable, which liability shall be joint
and several with that of Assignee, for the performance of all obligations of the
lessee under the Lease accruing from and alter the Effective Date and for the
remainder of the Original Term.
I. Landlord's Consent. This Assignment is conditioned upon Landlord's
written approval of this Assignment prior to the Assignment Date. If Landlord
does not consent to this Assignment prior to the Assignment Date, delivery of
possession of the Premises to Assignee shall be delayed in accordance with the
provisions of Paragraph D of this Assignment; provided,
however, that such delay shall not be considered an Assignor Delay so long as
Assignor is diligently attempting to enforce Assignor's rights under Section 12
of the Lease. If Landlord refuses to consent to this Assignment, then this
Assignment shall be deemed cancelled as of the date of Landlord's notice of such
refusal, in which event the parties shall be discharged from all obligations
hereunder and Assignor shall return the Security Deposit, if previously
delivered to Assignor, to Assignee; provided, however, that if Landlord acts
unreasonably in withholding, delaying or conditioning such consent, Assignor
shall promptly exercise commercially reasonable efforts to enforce Assignor's
rights under Section 12 of the Lease.
J. Signage. At Assignor's cost, Assignor shall remove its signs from
the Premises and perform all repairs required to restore the Premises to the
condition required by the Lease as a result of such removal.
K. Notices. Assignor's and Assignee's address for all notices and other
communications under the Lease before the Assignment Date shall be their
respective addresses set forth in the first paragraph of this Assignment, and
after the Assignment Date shall be:
Assignor: 1958 Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
with a copy to: Sullivan, Hill, Xxxxx, Rez, Xxxxx & LaBazo
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Assignee: 00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
with a copy to: Xxxxxxx, Phieger & Xxxxxxxx, LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: W. Xxxxx Xxxx, Esq.
L. Brokers. Assignor shall pay a commission to The Xxxxxx Xxxxxx Group
(the "Broker") in the amount of Twenty Three Thousand Four Hundred Dollars
($23,400.00), fifty percent (50%) of which shall be due and payable to Broker
upon Landlord's consent to this Assignment following full execution hereof by
the parties, and fifty percent (50%) of which shall be due and payable to Broker
upon commencement of rent payments by Assignee directly to Landlord.
M. Attorneys' Fees. Should any party commence any legal action or
proceeding against another based on this Assignment, the prevailing party shall
be entitled to an award of reasonable attorneys' fees, in addition to any other
relief to which such party would be entitled.
N. Counterparts. This instrument may be executed in one or mor
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the smae agreement after eachparty has executed such
counterpart.
0. Governing Law. This instrument shall be construed and mterpreted in
accordance with the laws of the State of Califorma.
P. Binding Effect. The provisions hereof are binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
Q. PERSONAL PROPERTY CONVEYANCE
1. Use of Leasehold Improvements. Assignor and Assignee agree
that the following Assignor's Personal Property shall remain in the Premises
alter the Assignment Date and shall be conveyed to the Assignee as its sole and
separate property in accordance with the terms and conditions of this Paragraph
Q to the Assignment: the Premises category 5 network cabling; all vertical
blinds of the Premises; and the Premises alarm system sensors.
2. Purchase of Personal Property. Effective upon the
Assignment Date and following the receipt of Landlord's consent hereto, Assignee
agrees to purchase and Assignor agrees to sell the Assignor's Personal Property.
Assignee agrees to pay Assignor the sum of Nine Thousand Seven Hundred
Seventy-One and 14/100 Dollars ($9,771.14) ("Personal Property Purchase Price")
for the Assignor's Personal Property, which shall be payable upon the delivery
of a Xxxx of Sale executed by Assignor, in the form of Exhibit B attached hereto
and incorporated herein ("Xxxx of Sale"), conveying title to Assignee; provided,
however, that if the network cabling is not category 5, then the Personal
Property Purchase Price shall be reduced to Two Thousand Two Hundred Ninety-Six
and 63/100 Dollars. No commission shall be paid to any Broker or third party on
account of the Personal Property Purchase Price.
3. Alarm Svstem Lease or Purchase. As part of the Lease
obligations of Assignee and Assignor pursuant to this Assignment, Assignor
agrees to lease or sell (as determined by Assignee, and as permitted by the
applicable vendor and Landlord) to Assignee, and Assignee agrees to lease or buy
from Assignor, the Assignor's interest in the Premises alarm system not conveyed
to Assignee as part of the Assignor's Personal Property (the "Alarm System"). If
Assignee elects to lease the Alarm System, Assignor shall be responsible for the
repair and maintenance of said Alarm System, and Assignee shall pay Assignor as
rent for such Alarm System monthly rent of Ninety Dollars ($90.00) each month
for the remainder of the Lease Term. If Assignee elects to purchase the Alarm
System (and such purchase is permitted by the applicable vendor(s) and
Landlord), such purchase shall be on an "as-is" basis, and Assignee shall pay
Assignor a lump sum of Four Thousand Dollars ($4,000.00) as the purchase price
for such Alarm System, which purchase price shall be amortized over the
remaiiiing Term of the Lease following the date of purchase to reflect the
depreciation of the Alarm System.
[SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION AGREEMENT]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Assignment to be duly executed as of the Effective Date.
"ASSIGNOR" "ASSIGNEE"
PHOTOMATRIX IMAGING CORPORATION CRYOGEN, INC.
By:_______________________________ By:_______________________________
Name:_____________________________ Name:_____________________________
Title:____________________________ Title:____________________________
