CONSENT BY XXXXXX TO ASSIGNMENT
The Manufacturers Life Insurance Company (U.S.A.)(the
"Lessor"), is the lessor of premises described in Paragraph 1 of the lease dated
the 7th day of November, 1996 (the "Lease"), between the Lessor and Photomatrix
Corporation and subsequently Photomatrix Imaging Corporation, a Nevada
corporation, as successor in interest to Photomatrix Corporation (the "Lessee"),
a copy of which Lease is attached hereto as Schedule "A". The Lease contains a
restriction against assignment or subletting by the Lessee without the Lessor's
prior written consent thereto. The Lessor consents, subject to the following
conditions, to the assignment of all of the Lessee' s right, title and interest
in the Lease by the Lessee to Cryogen, Inc. a California corporation (the
"Assignee") dated in the 15th day of April, 1998 (the "Assignment"), a copy of
which Assignment is attached hereto as Schedule "B".
1. The Lessor's consent is expressly conditional upon the payment of the
Rent reserved by the Lease, and the performance and observance of the
covenants, conditions and agreements in the Lease and this consent in
no way affects or releases the Lessee from its obligations, liabilities
and responsibilities under the Lease. The Lessee confirms and
acknowledges that, notwithstanding the Assignment, that it, together
with the Assignee, will be jointly and severally liable under the Lease
for the fulfilment of all the Lessee's agreements, covenants and
obligations thereunder.
2. This consent is given without prejudice to the Lessor's rights under
the Lease, and is expressly limited to the Assignment to the Assignment
to the Assignee, and will not be deemed to be the consent to or
authorization for any further or other assignment or subletting or
parting with or sharing possession of all or any part of the Leased
Premises.
3. In granting its consent to the Assignment, the Lessor does not:
(a) make any representation or warranties with respect to the status
of the Lease, or
(b) acknowledge or approve of any of the terms of the Assignment.
Further, nothing contained in the Assignment or this consent will be
construed as modifying, waiving or affecting any of the provisions,
covenants and conditions or any of the Lessor's rights or remedies
under the Lease other than as specifically set forth herein.
4. In consideration of the Lessor's consent to the Assignment the Assignee
covenants with the Lessor:
(a) to assume, observe and perform, all of the Lessee's obligations and
liabilities under the Lease, and without limiting the generality of the
foregoing, to pay the Base Rent and Common Area Operating Expenses and other
rent or charges, reserved in the Lease and to fulfil all of the other covenants,
agreements and conditions of the Lessee under the Lease; and
(b) at the end of the current Fiscal Period, the Lessor will adjust the
items of Common Area Operating Expenses and other rent or charges payable by the
Lessee per Paragraph 4.2 (d) of the Lease and Assignee shall either pay to the
Lessor the deficiency or receive the credit of any overpayment from the Lessor
as if the Assignee had been the Lessee for the entire Term.
The Assignee further expressly acknowledges that is shall be bound by
the prohibition against subletting, assigning, mortgaging or
encumbering or permitting the occupation or use of all or part of the
Leased Premises by others without the prior written consent of the
Lessor, upon the terms and conditions as are set forth in Paragraph 12
of the Lease.
5. Notwithstanding any provisions of the Assignment or this consent to the
contrary, the Lessor, the Lessee and the Assignee amend the following
paragraphs of the Assignment and the Assignee agrees to and
acknowledges this amendments to the Assignment:
INITIAL
(07/97) ASSIGN CONSENT _______
(a) Paragraphs A(ii) and A(iii) of the Assignment assign various
Leasehold Improvements to the Assignee. Notwithstanding, it is hereby agreed by
all Parties that all Leasehold Improvements deemed to be fixtures per the Lease
shall be the property of the Lessor upon the termination of the Lease at the
sole option of the Lessor.
(b) Paragraph E of the Assignment indicates that there are minor leaks
in the roof. The Lessee hereby agrees that there are no leaks in the roof and
the Assignee hereby accepts the Premises in "as is" condition. All matters
regarding repair now or in the future shall be addressed per the Lease.
(c) The Landlord's Estoppel, page 8 of the Assignment is hereby
deleted.
6. The Lessee and the Assignee represent and warrant that they have dealt
with no broker, finder, agent or other person in connection with the
Assignemnt other than The Xxxxxx Xxxxxx Group (the "Broker") and they
agree to indemnify and hold the Lessor harmless from and against any
claims or causes of action for a commission or other form of
compensation arising from the Assignment of the Lease, whether advanced
by the Broker or any other person or entity. The provisions of this
paragraph will survive the termination of the Lease any renewal
thereof.
7. The Lessee and the Assignee agree that to the extent that the Lessor
holds any prepaid rent or security deposit under the Lease such prepaid
rent or security deposit has been assigned to the Assignee.
8. Any capitalised term not otherwise defined herein has the meaning
ascribed to such term in the Lease.
In witness whereof, the undersigned have executed this Consent
By Xxxxxx to Assignment on this ____ day of May, 1998.
THE MANUFACTURERS LIFE INSURANCE
COMPANY (U.S.A.)
__________________________________
Witness (Lessor)
By Signature:___________________________
Name: Xxxxx X. Xxxxxxx
Title: Real Estate Director
I/We have the authority to bind the
corporation
PHOTOMATRIX IMAGING CORPORATION, Nevada
corporation
(Lessee)
___________________________________
Witness
By Signature:__________________________
Name:
Title:
I/We have the authority to bind the
corporation
INITIAL
(07/97) ASSIGN CONSENT _______
CRYOGEN, INC., a California corporation
(Assignee)
_____________________________________
Witness
By Signature:___________________________
Name:
Title:
I/We have the authority to bind the
corporation
EXSCRIBE CORPORATION
(Lease Guarantor)
_____________________________________
Witness
By Signature:___________________________
Name:
Title:
I/We have the authority to bind the
corporation
INITIAL
(07/97) ASSIGN CONSENT _______
LEASE ASSIGNMENT AND ASSUMPTION 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"). All terms used herein having
initial capital letters and not otherwise herein defined shall have the meanings
ascribed to such terms in the Lease (as defined below).
WITNESSETH:
A. Assignment. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby assigns, transfers
and conveys to Assignee all of the Assignor's right title and interest in and
to:
(i) that certain Standard Industrial/Commercial Multi-Tenant
Lease -- Gross, dated November 7, 1996 between TBE
MANUFACTURERS LIFE INSURANCE COMPANY (the "Landlord"), as
lessor, and Photomatrix Corporation ("Lessee") (Assignor
being 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). All such sums
1
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 ($19,360.00), 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 after June 8, 1998 (the "Assignment Date") and (ii) with Assignor to
perform all of Assignee's obligations under this Assignment accruing from and
after 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 accruing 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 'm 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 initial
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
2
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, in which event the parties shall 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,.however, 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 finishes 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 canceled 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'!-, 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; (b) 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 full 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
3
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).
X. Xxxxxxxx's Indemnity. As between Assignor and Assignee, Assignee
shall be responsible for the performance of all obligations of the lessee under
the Lease accruing from and after the Assignment Date (except 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, indemnify 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.
X. Xxxxxxxx'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 all- 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 pro@ 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
4
of the lessee under the Lease accruing from and after the Effective Date and for
the remainder of the Original Term.
I. Xxxxxxxx's Consent. This Assignment is conditioned upon Xxxxxxxx'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 canceled 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. 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 Xxxxxxxx'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
Carlsbad, California 92008
Attn: Xx. Xxxxx Xxxxx
with a copy to: Sullivan, Xxxx, Xxxxx, Xxx, Xxxxx & LaBazzo
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx R- Xxxxx, Esq.
Assignee: 00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
with a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxx X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: X. Xxxxx Xxxx, Esq.
5
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 more
Counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement after each party has executed such a
counterpart.
O. Governing Law. This instrument shall be construed and interpreted
in accordance with the laws of the State of California.
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
after 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 this 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, Xxxxxxxx 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 Bill
of Sale executed by Assignor, in the form of Exhibit B attached hereto and
incorporated herein ("Bill 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 System 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
6
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 remaining Term of the Lease following the date of
purchase to reflect the depreciation of the Alarm System.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Assignment to be duly executed as of the Effective Date.
"ASSIGNOR"
PHOTOMATRIX IMAGING
CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
"ASSIGNEE"
CRYOGEN, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
7
LANDLORD'S ESTOPPEL
This Estoppel Certificate is made by the undersigned "Landlord" with
respect to that certain Standard Industrial/Commercial Multi-Tenant Lease --
Gross, dated November 7, 1996 (the "Lease"), between the Landlord, as lessor,
and Photomatrix Corporation ("Lessee")(Assignor being 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"), as guaranteed by XSCRIBE CORPORATION (the "Guarantor") under that
certain Guaranty dated November 15, 1996 (the "Guaranty"). All terms used herein
having initial capital letters and not otherwise herein defined shall have the
meanings ascribed to such terms in the Lease.
The undersigned Landlord does hereby certify to Cryogen, Inc., a
California corporation ("Assignee"), that (1) the copy of the Lease attached
hereto as Exhibit A (the "Lease") is a true, full and correct copy of the Lease
and the Lease has not been modified or amended in any way; (2) the term of the
Lease shall expire on August 31, 2002, subject to the option rights contained
therein; (3) the Lease is in full force and effect, neither party is in default
thereunder, nor do any circumstances exist which, upon notice and/or expiration
of any applicable grace period, would constitute a default thereunder; (4) the
current monthly base rent payable under the Lease is $17,955.00 and payment of
such rent and all other amounts payable by Assignor under the Lease is current
through the month of April 1998; and (5) the Landlord shall not require any of
the leasehold improvements made in and to the Premises (excluding furnishings,
fixtures and equipment) made by or on behalf of the Assignor or Lessee as of the
date hereof to be altered or removed by the holder of the lessee's interest in
and to the Lease upon the expiration or earlier termination of the Lease.
Further, the undersigned Landlord does hereby represent and warrant that the
Landlord holds record title to the premises demised under the Lease and that the
Lease is subject to no underlying ground lease.
From and after the date of this Estoppel, if Landlord sends any notice,
demand or other communication relative to any claim of a default under the Lease
on the part of the holder from time to time of the lessee's interest in and to
the Lease, Landlord agrees to provide the same concurrently to the Assignee, at
the notice address of the Assignee set forth in the Lease, and to the Assignor,
at 1958 Xxxxxxx, Carlsbad, California 92008; Attn: Xx. Xxxxx Xxxxx.
Executed under seal as of this _____ day of ________________, 1998.
THE MANUFACTURERS LIFE INSURANCE
COMPANY
By:_____________________________
Title:__________________________
1
EXHIBIT A
LEASE
[To Be Attached]
2
Received 1-7-97
GUARANTY
XSCRIBE CORPORATION, a California Corporation, (herein called the "Guarantor"),
whose address is 0000 Xxxxx Xxxxx Xxxxx, Xxx Xxxxx, XX 00000-0000, as a material
inducement to and in consideration of THE MANUFACTURERS LIFE INSURANCE COMPANY
entering into a written lease with PHOTOMATRIX CORPORATION dated November 7,
1996, pursuant to which Lessor leased to Lessee, and Lessee leased from Lessor,
premises located at 00000 Xxxxxxxx Xxxxxx Xxxxx, xx xxx Xxxx xx Xxx Xxxxx,
Xxxxxx of San Diego, California, (attached to this guaranty, and made a part of
it), unconditionally guarantees and promises to and for the benefit of Lessor
that Lessee shall perform the provisions of the lease that Lessee is to perform.
If Guarantor is more than one person, Guarantor's obligations are joint and
several and are independent of Lessee's obligations. A separate action may be
brought or prosecuted against any Guarantor whether the action is brought or
prosecuted against any other Guarantor or Lessee, or all, or whether any other
Guarantor or Lessee, or all, whether any other Guarantor of Lessee, or all, are
joined in the action.
Guarantor waives the benefit of any statute of limitations affecting Guarantor's
liability under the guaranty.
The provisions of the lease may be changed by agreement between Lessor and
Lessee at any time, or by course of conduct, without notice to Guarantor. This
guaranty shall guarantee the performance of the lease as changed. Assignment of
the lease (as permitted by the lease) shall not affect this guaranty.
This guaranty shall not be affected by Lessor's failure or delay to enforce any
of its rights.
If Lessee defaults under the lease, Lessor can proceed immediately against
Guarantor or Lessee, or both, or Lessor can enforce against Guarantor or Lessee,
or both, any rights that it has under the lease, or pursuant to applicable laws.
If the lease terminates and Lessor has any rights it can enforce against Lessee
after termination, Lessor can enforce those rights against Guarantor without
giving previous notice to Lessee or Guarantor, or without making any demand on
either of them.
Guarantor waives the right to require Lessor to (1) proceed against Lessee; (2)
proceed against or exhaust any security that Lessor holds from Lessee; or (3)
pursue any other remedy in Lessor's power. Guarantor waives any defense by
reason of any disability from any cause by Xxxxxx, and waives any other defense
based on the termination of Lessee's liability from any cause. Until all
Lessee's obligations to Lessor have been discharged in full, Guarantor has no
right of subrogation against Lessee. Guarantor waives its right to enforce any
remedies that Lessor now has, or later may have, against Xxxxxx. Guarantor
waives its right to participate in any presentments, demands for performance,
notices of non-performance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this guaranty, and waives all notices of the
existence, creation, or incurring of new or additional obligations.
If Lessor disposes of its interest in the lease, "Lessor", as used in this
guaranty, shall mean Xxxxxx's successors.
If Lessor is required to enforce Guarantor's obligations by legal proceedings,
Guarantor shall pay to Lessor all costs incurred, including without limitation,
reasonable attorneys' fees.
Guarantor's obligations under this guaranty shall be binding on Guarantor's
successors.
XSCRIBE CORPORATION
a California Corporation
By:_______________________________ Dated:_____________________
Xxxxx X. Xxxxx, President & CEO
