EXHIBIT 10.12
FIFTH AMENDMENT TO LEASE
I. PARTIES AND DATE.
This Fifth Amendment to Lease (the "Amendment") dated May 18, 2006, is by
and between THE IRVINE COMPANY LLC, a Delaware limited liability company,
formerly The Irvine Company, a Delaware corporation ("Landlord"), and ALSIUS
CORPORATION, a California corporation ("Tenant").
II. RECITALS.
On March 16, 1999, Landlord and Tenant entered into a lease for space in a
building located at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
("Premises"), which lease was amended by a First Amendment to Lease dated
October 24, 2001, by a Second Amendment to Lease dared July 16, 2003, by a Third
Amendment to Lease dated July 21, 2004, and by a Fourth Amendment to Lease dated
September 20, 2005. The foregoing lease, as so amended, is hereinafter referred
to as the "Lease".
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, to adjust the Basic Rent, and to make such other modifications as are set
forth in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions are hereby amended as
follows:
1. Item 5 is hereby deleted in its entirety and substituted therefor
shall be the following:
"5. Lease Term: The Term of this Lease shall expire at midnight
on December 31, 2008"
2. Item 6 is hereby amended by adding the following:
"Commencing January 1,2007, the Basic Rent shall be Twenty Five
Thousand Two Hundred Fifty-Four Dollars ($25,254.00) per month,
based on $.94 per rentable square foot.
Commencing January 1, 2008, the Basic Rent shall be Twenty Six
Thousand Three Hundred Twenty-Nine Dollars ($26,329.00) per
month, based on $.98 per rentable square foot."
B. Landlord's Responsibilities. The provisions of Subsection 2.4(iii) of
the Lease shall remain in full force and effect during the Term of the Lease as
extended by the provisions of this Amendment.
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C. Right to Extend the Lease. The provisions of Section 3.3 of the Lease
entitled "Right to Extend this Lease" shall remain in full force and effect,
with the "expiration date" as provided in said Section 3.3 being the expiration
date of the Term as extended by the provisions of this Amendment.
D. Security Deposit
(i) Section 4.3 of the Lease is hereby amended to provide that,
upon a of "Default" by Tenant (as defined in Section 14.1 of the
Lease), Landlord may, in its sole and absolute discretion
additionally retain, use or apply the whole or any part of the
Security Deposit to pay amounts estimated by Landlord as the
amount due Landlord for prospective rent and for damages pursuant
to Section 14.2(a)(i) of the Lease and/or California Civil Code
Section 1951.2.
(ii) Section 4.3 of the Lease is further amended to add the
following provisions to the end of said Section:
"Provided that: (a) no Default by Tenant has occurred at any
time during the Term of this Lease, (b) Tenant has not at
any tithe been more than five (5) days late with respect to
any payments of Basic Rent due under this Lease more than
once during the prior twelve (12) month period, and (c)
Tenant shall demonstrate by the delivery to Landlord of its
financial statements that Tenant has cash on hand in the
amount of at least Fifteen Million Dollars ($15,000,000.00),
then, upon written request of Tenant, Landlord shall return
to Tenant a portion of the Security Deposit in the amount of
Thirty Eight Thousand Four Hundred Ninety-Seven Dollars
($38,497.00) in the form of credit(s) against the Basic Rent
next coming due under the Lease."
E. Late Payments. The reference to "Two Hundred Fifty Dollars ($250.00)" in
Section 14.3(a) of the Lease is hereby amended to "One Hundred Dollars
($100.00)."
F. Waiver of Jury Trial. Section 14.7 of the Lease is hereby deleted in its
entirety and substituted therefor shall be the following:
SECTION 14.7. WAIVER OF JURY TRIAL/JUDICIAL REFERENCE.
(a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS
HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL
BY JURY, AND, TO THE EXTENT ENFORCEABLE UNDER CALIFORNIA LAW, EACH PARTY
DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, TENANT'S
USE OR OCCUPANCY OF THE PREMISES, AND/OR
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ANY CLAIM OF INJURY OR DAMAGE. FURTHERMORE, THIS WAIVER AND RELEASE OF ALL
RIGHTS TO A JURY TRIAL IS DEEMED TO BE INDEPENDENT OF EACH AND EVERY OTHER
PROVISION, COVENANT, AND/OR CONDITION SET FORTH IN THIS LEASE.
(b) IN THE EVENT THAT THE JURY WAIVER PROVISIONS OF SECTION 14.7(a)
ARE NOT ENFORCEABLE UNDER CALIFORNIA LAW, THEN THE PROVISIONS OF THIS
SECTION 14.7(b) SHALL APPLY. IT IS TILE DESIRE AND INTENTION OF THE PARTIES
TO AGREE UPON A MECHANISM AND PROCEDURE UNDER WHICH CONTROVERSIES AND
DISPUTES ARISING OUT OF THIS LEASE OR RELATED TO THE PREMISES WILL BE
RESOLVED IN A PROMPT AND EXPEDITIOUS MANNER. ACCORDINGLY, EXCEPT WITH
RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER OR WITH RESPECT TO THE
PREJUDGMENT REMEDY OF ATTACHMENT, ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBSIDIARY OR AFFILIATED
ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF TEE PREMISES AND/OR ANY CLAIM
OF INJURY OR DAMAGE, SHALL BE HEARD AND RESOLVED BY A REFEREE UNDER TEE
PROVISIONS OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 638-645.1,
INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR STATUTE(S) THERETO)
(THE "REFEREE SECTIONS"). ANY FEE TO INITIATE THE JUDICIAL REFERENCE
PROCEEDINGS SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE; PROVIDED
HOWEVER, THAT TEE COSTS AND FEES, INCLUDING ANY INITIATION FEE, OF SUCH
PROCEEDING SHALL ULTIMATELY BE BORNE IN ACCORDANCE WITH SECTION 14.6 ABOVE.
THE VENUE OF THE PROCEEDINGS SHALL BE IN THE COUNTY IN WHICH THE PREMISES
ARE LOCATED. WITHIN TEN (10) DAYS OF RECEIPT BY ANY PARTY OF A WRITTEN
REQUEST TO RESOLVE ANY DISPUTE OR CONTROVERSY PURSUANT TO THIS SECTION
14.7(b), THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO SHALL TRY ALL
ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH
ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE PARTIES ARE UNABLE TO
AGREE UPON A REFEREE WITHIN SUCH TEN (10) DAY PERIOD, THEN ANY PARTY MAY
THEREAFTER FILE A LAWSUIT IN THE COUNTY IN WHICH TUE PREMISES ARE LOCATED
FOR THE PURPOSE OF APPOINTMENT OF A REFEREE UNDER CALIFORNIA CODE OF CIVIL
PROCEDURE SECTIONS 638 AND 640, AS SAME MAY BE AMENDED OF ANY SUCCESSOR
STATUTE(S) THERETO. IF THE REFEREE IS APPOINTED BY THE COURT, THE REFEREE
SHALL BE A NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE
IN THE RELEVANT MATTERS TO BE DETERMINED, FROM JAMS/ENDISPUTE, INC., THE
AMERICAN ARBITRATION ASSOCIATION OR SIMILAR MEDIATION/ARBITRATION ENTITY.
THE PROPOSED
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REFEREE MAY BE CHALLENGED BY ANY PARTY FOR ANY OF THE GROUNDS LISTED IN
SECTION 641 OF TEE CALIFORNIA CODE OF CIVIL PROCEDURE, AS SAME MAY BE
AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO. TILE REFEREE SHALL HAVE THE
POWER TO DECIDE ALL ISSUES OF FACT AND LAW AND REPORT HIS OR HER DECISION
ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES AVAILABLE AT LAW XXXX
EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE TILE REFEREE, INCLUDING AN
AWARD OF ATTORNEYS' FEES AND COSTS IN ACCORDANCE WITH CALIFORNIA LAW. THE
REFEREE SHALL NOT, HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR
ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY THE EXPRESS PROVISIONS OF THIS
LEASE, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES.
THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE
CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY
AND MAY ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT
JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND ENFORCE
SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE
UNDER CALIFORNIA LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN
ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE RULES OF EVIDENCE), AND IN
ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE TIME
OF THE REFERENCE PROCEEDING. IN ACCORDANCE WITH SECTION 644 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE, TILE DECISION OF THE REFEREE UPON TEE
WHOLE ISSUE MUST STAND AS THE DECISION OF THE COURT, AND UPON THE FILING OF
THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE JUDGE IF
THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN TILE SAME MANNER AS
IF THE ACTION HAD BEEN TRIED BY THE COURT. TILE PARTIES SHALL PROMPTLY AND
DILIGENTLY COOPERATE WITH ONE ANOTHER AND THE REFEREE, AN]) SHALL PERFORM
SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION
OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS SECTION
14.7(b). TO THE EXTENT THAT NO PENDING LAWSUIT HAS BEEN FILED TO OBTAIN THE
APPOINTMENT OF A REFEREE, ANY PARTY, AFTER THE ISSUANCE OF TILE DECISION OF
THE REFEREE, MAY APPLY TO THE COURT OF THE COUNTY IN WHICH THE PREMISES ARE
LOCATED FOR CONFIRMATION BY THE COURT OF THE DECISION OF THE REFEREE IN TEE
SAME MANNER AS A PETITION FOR CONFIRMATION OF AN ARBITRATION AWARD PURSUANT
TO CODE OF CIVIL PROCEDURE SECTION 1285 ET SEQ. (AS SAME MAY BE AMENDED OR
ANY SUCCESSOR STATUTE(S) THERETO).
G. Prorations. The third sentence of Article XVI of the Lease is hereby
deleted in its entirety, and substituted therefor shall be the following:
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"All payments requiring proration shall be prorated on the basis of
the number of days in the pertinent calendar month or year, as
applicable."
H. Acceptance of Premises. Tenant acknowledges that the lease of the
Premises pursuant to this Amendment shall be on an "as-is" basis without further
obligation on Landlord's part as to improvements whatsoever.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect
except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Defined Terms. All words commencing with initial capital letters in this
Amendment and defined in the Lease shall have the same meaning in this Amendment
as in the Lease, unless they are otherwise defined in this Amendment.'
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. Attorneys' Fees. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
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V. EXECUTION.
Landlord and Tenant executed this Amendment On the date as set forth in "I.
PARTIES AND DATE." above.
LANDLORD: TENANT:
THE IRVINE COMPANY LLC ALSIUS CORPORATION,
a Delaware limited liability company a California corporation
By: /s/ Xxxxxx X. Case By /s/ H. Xxxx Xxxxx
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Xxxxxx X. Case, Senior Vice President Name Xxxx Xxxxx
Leasing, Office Properties Title V.P. MFG
By: /s/ Xxxxxxxxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxx, Vice President Name Xxxx Xxxxxxx
Operations, Office Properties Title CEO
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